1111
Getty Images Letter Forum / Re: Getty Images Extortion Letter in China
« on: January 07, 2009, 05:08:18 PM »
Their hopes are that people won't look into the law and just send a check! Hey, wait, that's their hopes everywhere!
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1112
Getty Images Letter Forum / Re: Getty Images Extortion Letter in China
« on: December 23, 2008, 02:00:00 PM »
Sure, there is no reason you can't do so. The Getty program has reached Singapore and Hong Kong. ( I know because I have been in contact with several victims from those places) so China can't be far behind.
1113
Getty Images Letter Forum / Re: My customer received the famous Getty Letter
« on: December 19, 2008, 10:51:33 AM »
Dear security:
Take a moment to read the summary of the issue I posted a little while ago.. It should give you a basic understanding of the issues and give you some framework of how you can proceed.
Take a moment to read the summary of the issue I posted a little while ago.. It should give you a basic understanding of the issues and give you some framework of how you can proceed.
1114
Getty Images Letter Forum / Re: Strict Liability
« on: December 17, 2008, 07:19:29 PM »
You are right on the money. The law discourages copyright holders from taking steps to insure their rights are protected. When the second version of the US copyright law was passed in 1909 (the first was in the 1790s) , it was mandatory that the work bear a copyright notice, otherwise it was automatically in the public domain. While I think that's a bit extreme and unfair, our law should mirror the UK law - if you prove it was an innocent infringement then the copyright holder gets NO monetary damages. They can still of course make you cease and desist, but it won't cost you anything if you didn't know or had no reason to know the work was copyrighted. Those dam Brits are so much more civilized!
1115
Getty Images Letter Forum / Re: banner exchange, but still liable?
« on: December 17, 2008, 07:14:16 PM »
You're right Alan, the Digital Millennium is definitely impacting copyright law on a daily basis. As to your example, let me just explain that while the copyright holder (Getty) can go after the end-user (guy who just did a banner exchange or website owner) if that person loses in a lawsuit or even settles with Getty, then they have a right to go after the person who put them in that predicament (web site developer, template maker or competitor who intentionally caused the infringement). Getty just does the easiest thing - go after the end user and make the end user sweat it out. Also, by going after the web user and not the techie, Getty is likely to come up against someone who can understand the true value of a low-res website image or who can explain the source of the image. Most of my clients were victims of web developers/template makers in Pakistan and India who are now impossible to locate so they are stuck holding the bag.
1116
Getty Images Letter Forum / Re: New here, received the "famous" letter today!
« on: December 15, 2008, 03:38:54 PM »
Yes, your next step should be to notify the carrier and let them know of the situation and ask for any proof they may have over the image's origin. Whether it was legally OK for you to use the image will depend on how and when the image was acquired by the carrier. Keep me posted on what the carriier's response is. If Getty responds, let me know as well. Good Luck.
1117
Getty Images Letter Forum / Re: New here, received the "famous" letter today!
« on: December 14, 2008, 11:56:32 AM »
Dear Belinda:
I suggest you review the summary that is on the forum to gain some info on your options from here. Your situation with your carrier is similar to many clients we are dealing with who used promo materials from national real estate companies and got the Getty letter.
I suggest you review the summary that is on the forum to gain some info on your options from here. Your situation with your carrier is similar to many clients we are dealing with who used promo materials from national real estate companies and got the Getty letter.
1118
Getty Images Letter Forum / Re: banner exchange, but still liable?
« on: December 12, 2008, 10:53:02 AM »
That's good analogy though a paid advertisement would be different. When it is a paid advertisement on a hard copy medium, it is fairly clear who provided the material in the ad. Advertisements in newspapers must contain their own copyright notice to be enforceable, and are not covered by the newspaper's general notice in the newspaper. This requirement is erased, however, if the newspaper itself is the sole owner of the advertisement. The newspaper should include in its rate card information concerning the requirement of notice if the advertiser intends on claiming copyright protection for the ad. Newspapers can be responsible for violating copyright and trademark law if they knowingly placed ads with material that infringed those rights. With a banner it may be harder to show that you did not put it up yourself or benefit from it directly by having it "adorn your site."
1119
Getty Images Letter Forum / A Summary of the Getty Issue in the United States
« on: December 12, 2008, 10:39:35 AM »
Please note that though I am a lawyer, this summary is presented for informational purposes only and not as a substitute for legal advice. I say that because every case is different and may present different defenses and liabilities. If you feel that something in this summary is incorrect or inappropriate, please send me a private message and I will evaluate whether the summary needs to be changed. Similarly, if you would like to add additional information, please DO NOT POST to this thread. Either send me a private message asking me to add the new information or start a new thread or post the info to one of the many current threads. This summary is derived from various other posts so if you are truly interested in the whole picture, take a look at the threads and read through the appropriate posts. Also, you can listen to the two recorded conversations on the home page between myself and Matthew Chan, this website's founder.
I. What's It All About?
Some time in 2005 - 2006, imaging companies like Getty and Corbis formed partnerships with a company called PicScout. PicScout developed a technology whereby bots trawl the internet, attach onto sites and compare images on websites to the images on the Getty and/or Corbis catalog.
When they find a match, they send the information to Getty or Corbis who then search their records for a license for that image. Finding no license, they then send out a demand letter. The rumor is that PicScout and the image companies split the revenue from the program, 50-50, but we've found no proof for that. From here on, I will address only Getty's pattern and practice.
The Getty Demand Letter
A copy of the letter is posted on the homepage. Generally, it tells you about the images found on your website and then shows you a screenshot of the image along with the copy from the Getty catalog where their image is located. They routinely demand anywhere from $1,000 to $1,400 per image. They provide a list of FAQ's which set forth that US Copyright Law is strict liability and lack of knowledge is no excuse. They provide a tight deadline for you to respond or they threaten that they will take further steps. A second letter then comes with a shorter deadline. If that is ignored or if no settlement is reached, they send it to a "collection agency," NCS Recovery, based in Sarasota, Florida.
NCS Recovery
NCS steps up the communication stream by calling , emailing and repeatedly mailing you letters and demands. NCS began this process by saying they were attempting to "collect a debt." When we became involved and began responding to them, they changed their position and now say they are attempting to "settle a claim." While this may seem insignificant, it has two important repercussions. The first is that when you are advised that a creditor is trying to collect a debt, then, under the law, anything you say to that debt collector is admissible in court. The opposite is true if you are engaged in "settlement discussions." Federal Rule of Evidence 403 and most states' laws protect settlement discussions and hold that what is said during settlement talks is not admissible. The second benefit is that they cannot report you to a credit agency or do anything to harm your credit rating. This is always the favored sword of any debt collector. Just because Getty and then NCS send you an "invoice" which you did not pay, does not make this a debt. You never ordered the images from Getty nor agreed to pay their inflated prices. It is merely a copyright infringement claim which you are contesting. Once you tell NCS you are not paying the amounts requested, they will send the file back to Getty.
Getty's Legal Position
Liability
Getty's letters and NCS's follow-up all advise that their is no defense to copyright as the Copyright Act of 1976 makes copyright infringement a strict liability offense. Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. They are also correct in stating that the law does not require registration. Once a work is created the creator obtains the copyright to it automatically. There is no need to post a copyright notice or a watermark on the image. They do not need to send a "cease and desist" letter first. The Digital Millenium Copyright Act only requires a cease and desist first in cases where a search engine or web service provider like Google, Yahoo etc., is accused of allowing others to download or post copyrighted material. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they do provide the boilerplate text of the agreement which grants these rights.
Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Recently, I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the company's that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted.
Damages
There are two general types of damages awarded in copyright cases: statutory damages and actual damages. Statutory damages allow courts to award large numbers per infringement and also award attorney's fees and enforcement costs. In order to obtain these valuable statutory damages, the "work," in this case the image, must have been registered with the US Copyright Office. As of this writing, about 1% of Getty's catalog has been registered. That means in about 99% of the cases, Getty cannot claim statutory damages and may not even be able to get automatic Federal Court jurisdiction, which also requires registration. A copyright holder seeking actual damages, can only get the lost value for the image; they are not entitled to incidental fees and costs.
How you obtained the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office, a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount.
Getty chooses to ignore the law in this area; they have tried all kinds of arguments to support their position of demanding $1,000+ per image:
(1) First, they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:
(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average cost of a Getty license as being their basis for the claim.
I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to, visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.
What to Do?
The first thing is to relax and realize that your legal position is not as bad as Getty makes it out to be. There may be helpful facts and defenses on both issues - liability and damages. Try to ascertain where the image came from and locate any records you have to show how you got it onto your website. Can you figure out how long it was on the site? Try to see if you can find everywhere your contested image is available and get some details of how much it would cost. You should take the image down from your site as soon as possible. You should contact archives.org (The Wayback Machine) which takes constant screenshots of all websites and ask them to delete the saved screenshots of your website. You should clear out the Google cache for your website as well. You then have three basic options:
(1) Ignore it: Many folks who have been contacted about a single image have chosen to ignore it. As a lawyer I cannot recommend this tactic. Getty and the NCS will also step up their contacts with you and it can get annoying and disruptive.But, it is a fact that Getty has not to our knowledge ever sued anyone through this PicScout program so folks who have ignored it have not been sued yet either.
(2) Answer Getty yourself. This site and others put up enough information so that a sophisticated person can respond intelligently to Getty and their cohorts.
(3) Retain counsel. Hiring a lawyer assures that you will no longer be personally contacted by either Getty or NCS as they cannot communicate with someone who they know are represented by counsel. It is for this reason that I decided to offer the $195 letter program as a way to give people a method of responding to Getty that is low cost and effective. Please visit the homepage to see my explanation of the letter program and to understand that this is not a money-making project for me or my firm.
Conclusion
Knowledge is power. Don't be put off by the threats and allegations. Learn about the issue by going through this and other websites. We get contacted every day by many folks who are concerned about their businesses and cannot afford these exorbitant demands. This has been going on for about three years and there has been no litigation; there is no court decision in Getty's favor or against its legal position. That may be coming soon, but for right now it has been a letter exchange and we have not seen anything in Getty's response which we feel effects our legal position. I hope this has been informative and helpful to those of you dealing with this issue.
I. What's It All About?
Some time in 2005 - 2006, imaging companies like Getty and Corbis formed partnerships with a company called PicScout. PicScout developed a technology whereby bots trawl the internet, attach onto sites and compare images on websites to the images on the Getty and/or Corbis catalog.
When they find a match, they send the information to Getty or Corbis who then search their records for a license for that image. Finding no license, they then send out a demand letter. The rumor is that PicScout and the image companies split the revenue from the program, 50-50, but we've found no proof for that. From here on, I will address only Getty's pattern and practice.
The Getty Demand Letter
A copy of the letter is posted on the homepage. Generally, it tells you about the images found on your website and then shows you a screenshot of the image along with the copy from the Getty catalog where their image is located. They routinely demand anywhere from $1,000 to $1,400 per image. They provide a list of FAQ's which set forth that US Copyright Law is strict liability and lack of knowledge is no excuse. They provide a tight deadline for you to respond or they threaten that they will take further steps. A second letter then comes with a shorter deadline. If that is ignored or if no settlement is reached, they send it to a "collection agency," NCS Recovery, based in Sarasota, Florida.
NCS Recovery
NCS steps up the communication stream by calling , emailing and repeatedly mailing you letters and demands. NCS began this process by saying they were attempting to "collect a debt." When we became involved and began responding to them, they changed their position and now say they are attempting to "settle a claim." While this may seem insignificant, it has two important repercussions. The first is that when you are advised that a creditor is trying to collect a debt, then, under the law, anything you say to that debt collector is admissible in court. The opposite is true if you are engaged in "settlement discussions." Federal Rule of Evidence 403 and most states' laws protect settlement discussions and hold that what is said during settlement talks is not admissible. The second benefit is that they cannot report you to a credit agency or do anything to harm your credit rating. This is always the favored sword of any debt collector. Just because Getty and then NCS send you an "invoice" which you did not pay, does not make this a debt. You never ordered the images from Getty nor agreed to pay their inflated prices. It is merely a copyright infringement claim which you are contesting. Once you tell NCS you are not paying the amounts requested, they will send the file back to Getty.
Getty's Legal Position
Liability
Getty's letters and NCS's follow-up all advise that their is no defense to copyright as the Copyright Act of 1976 makes copyright infringement a strict liability offense. Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. They are also correct in stating that the law does not require registration. Once a work is created the creator obtains the copyright to it automatically. There is no need to post a copyright notice or a watermark on the image. They do not need to send a "cease and desist" letter first. The Digital Millenium Copyright Act only requires a cease and desist first in cases where a search engine or web service provider like Google, Yahoo etc., is accused of allowing others to download or post copyrighted material. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they do provide the boilerplate text of the agreement which grants these rights.
Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Recently, I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the company's that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted.
Damages
There are two general types of damages awarded in copyright cases: statutory damages and actual damages. Statutory damages allow courts to award large numbers per infringement and also award attorney's fees and enforcement costs. In order to obtain these valuable statutory damages, the "work," in this case the image, must have been registered with the US Copyright Office. As of this writing, about 1% of Getty's catalog has been registered. That means in about 99% of the cases, Getty cannot claim statutory damages and may not even be able to get automatic Federal Court jurisdiction, which also requires registration. A copyright holder seeking actual damages, can only get the lost value for the image; they are not entitled to incidental fees and costs.
How you obtained the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office, a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount.
Getty chooses to ignore the law in this area; they have tried all kinds of arguments to support their position of demanding $1,000+ per image:
(1) First, they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:
(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average cost of a Getty license as being their basis for the claim.
I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to, visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.
What to Do?
The first thing is to relax and realize that your legal position is not as bad as Getty makes it out to be. There may be helpful facts and defenses on both issues - liability and damages. Try to ascertain where the image came from and locate any records you have to show how you got it onto your website. Can you figure out how long it was on the site? Try to see if you can find everywhere your contested image is available and get some details of how much it would cost. You should take the image down from your site as soon as possible. You should contact archives.org (The Wayback Machine) which takes constant screenshots of all websites and ask them to delete the saved screenshots of your website. You should clear out the Google cache for your website as well. You then have three basic options:
(1) Ignore it: Many folks who have been contacted about a single image have chosen to ignore it. As a lawyer I cannot recommend this tactic. Getty and the NCS will also step up their contacts with you and it can get annoying and disruptive.But, it is a fact that Getty has not to our knowledge ever sued anyone through this PicScout program so folks who have ignored it have not been sued yet either.
(2) Answer Getty yourself. This site and others put up enough information so that a sophisticated person can respond intelligently to Getty and their cohorts.
(3) Retain counsel. Hiring a lawyer assures that you will no longer be personally contacted by either Getty or NCS as they cannot communicate with someone who they know are represented by counsel. It is for this reason that I decided to offer the $195 letter program as a way to give people a method of responding to Getty that is low cost and effective. Please visit the homepage to see my explanation of the letter program and to understand that this is not a money-making project for me or my firm.
Conclusion
Knowledge is power. Don't be put off by the threats and allegations. Learn about the issue by going through this and other websites. We get contacted every day by many folks who are concerned about their businesses and cannot afford these exorbitant demands. This has been going on for about three years and there has been no litigation; there is no court decision in Getty's favor or against its legal position. That may be coming soon, but for right now it has been a letter exchange and we have not seen anything in Getty's response which we feel effects our legal position. I hope this has been informative and helpful to those of you dealing with this issue.
1120
Getty Images Letter Forum / Re: banner exchange, but still liable?
« on: December 12, 2008, 09:32:54 AM »
I suggest you spend some time familiarizing yourself with the situation by reading the posts and listening to the conversations linked on the home page. In general, the "user" of a copyrighted image is liable to the copyright holder for any "use" of the image. For purposes of who is at fault, it doesn't matter that you did not know the image was copyrighted or even that you paid someone for the image with a belief it was licensed. Copyright law is strict liablility in the US. It is a defense of course to show that Getty is not the only licensor of the image if the copyright holder (photographer) posted the image for download on other sites. Your "innocence" however is a defense to the damages portion of Getty's claim. US Copyright law recognizes that innocent infringement should be treated differently than intentional infringement so they awar lower damages for innocent infringement. The law allows a court to go down to $200 per image for example. That amount is for images which have been registered with the US Copyright Office. Nearly all of Getty's images are not registered, leaving them only allowed to collect "actual damages." We argue this would be the fair market value of the image if you had to go out into the marketplace to buy the image. For most stock images, that would be somewhere between $20-$100. Our program here is to send a letter to Getty outlining this position. To date, they have sued no one but are threatening to do so any day now.
1121
Getty Images Letter Forum / Re: Strict Liability
« on: December 11, 2008, 02:17:17 PM »
Let me take some time and space to reiterate our position on this so people don't have to keep looking through all the old posts:
Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they did provide me with the boilerplate text of the agreement which grants these rights.
Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Just yesterday I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the companies that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted. But this should give pause to those that say "you stole it just pay up!" First of all, many may not have stolen anything. Not just because they received the image innocently or through a third party whom they paid but because the image may have legally been available elsewhere. Secondly, even if the image was licensed additionally through Getty and the photog just made an oversight by not listing Getty as a licensor, why is Getty demanding $1,200.00 when the same image can be purchased legally with license for $20.00. Ridiculous.
Which brings us to our other point point. How you took the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount. Getty chooses to ignore that; they have tried all kinds of arguments to support their position:
(1) FIrst they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:
(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average costs of a Getty license as being their basis for the claim.
I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to , visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.
Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they did provide me with the boilerplate text of the agreement which grants these rights.
Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Just yesterday I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the companies that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted. But this should give pause to those that say "you stole it just pay up!" First of all, many may not have stolen anything. Not just because they received the image innocently or through a third party whom they paid but because the image may have legally been available elsewhere. Secondly, even if the image was licensed additionally through Getty and the photog just made an oversight by not listing Getty as a licensor, why is Getty demanding $1,200.00 when the same image can be purchased legally with license for $20.00. Ridiculous.
Which brings us to our other point point. How you took the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount. Getty chooses to ignore that; they have tried all kinds of arguments to support their position:
(1) FIrst they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:
(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average costs of a Getty license as being their basis for the claim.
I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to , visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.
1122
Getty Images Letter Forum / Re: Getty and CENTURY 21
« on: December 08, 2008, 11:31:22 PM »
You can contact me at xxx or my office number 516 248 8000. NCS will not reasonably negotiate with anyone. I agree with your post and can tel you that we represent one Century 21 franchisee and one Remax franchisee as well. They both told me a very similar story. Once we write NCS, NCS refers it back to Getty as they do not have authority to go more than a few bucks below the amount demanded. I will be in my office tomorrow between 1030am and 1230 (NY time) and most of the day on Wednesday
Oscar
Oscar
1123
Getty Images Letter Forum / Re: A Taste of their own medicine ? Getty Images get sued by photographers
« on: December 07, 2008, 11:46:02 AM »
Getty has still not been responded to our most recent letter to them. I would like to see what their new/next/latest position is before moving forward on any affirmative initiatives. In the meantime, we keep seeking those who have paid Getty to see if the photgraphers who are suing Getty ever received any of the money Getty received.
1124
Getty Images Letter Forum / Re: Copyright Small Claims Court
« on: December 06, 2008, 01:03:24 PM »
They are not aware because they probably just searched through filed litigation. They would have no way of knowing about harassment without litigation unless they spent five minutes doing an internet search on the issue.
1125
Getty Images Letter Forum / Re: Canadian and Dealing with NCS
« on: December 03, 2008, 07:32:49 PM »
You are on the right track. Tell him when he calls back that because the image is not registered Getty cannot get costs and legal fees, so its not your problem that Getty chooses to spend more than it is entitled to receive and don't increase your offer at this time.
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