Messages

1171

Getty Images Letter Forum / Re: I too received the letter and have a few questions

« on: October 25, 2008, 12:29:29 PM »

The answer to question one is generally three years from the date of the infringement or the date by which the copyright holder could have discovered the infringement.  The answer to question 2 is unknown.  Getty is claiming that they charge about $1200 for a two year license so if the image was up for two years then they would claim $1200 as their actual damages.  A good question would be whether Getty's inflated pricing would be the measure of actual damages or the market rate from other sites.

1172

Getty Images Letter Forum / Re: Australian Victim

« on: October 25, 2008, 12:25:05 PM »

Great job mudpuppy. The issue would then become how does Getty know that the photographer didn't allow it to be on those sites.  These are precisely the issues we have been asking them to clarify. They have now admitted - after being pressed on the issue -  that they did not register the images and therefore are NOT seeking statutory damages so maybe one day soon they will be forced to admit that they cannot guarantee the exclusivity of the image and this campaign can end.

1173

Getty Images Letter Forum / Re: Greedy Getty in Europe: Hello from Switzerland

« on: October 22, 2008, 06:47:12 PM »

Welcome Switzerland! So much for neutrality! In all seriousness, Reggy, I am very sorry to hear that this "settlement program" has now reached your fair country. I certainly have no knowledge of Swiss copyright law though I did look at the links you attached to your message. The problem is that while you may take a reasonable approach to this situation Getty will not. They will not likely accept a fair offer based on your non-benefit from the infringement, but you may as well try. I can also let you know that they have not instituted any lawsuits in Germany, Belgium  or Singapore either and all of those locations are being run out of the London Office as well.  Hopefully their approach will be the same in Swtizerland, which is to scare but not sue. Good luck and keep us posted

1174

Getty Images Letter Forum / Re: how do i make sure i do not use copyrighted materials?

« on: October 22, 2008, 02:24:53 PM »

Dear Gettyvictim120:

Thanks for the great post reminding all of us that taking the image yourself is the only 100% safe method. The law is actually set up pretty fairly, but could be improved. If you have a filed copyright (registered with the Copyright Office)  you may be entitled to a whole host of statutory damages including legal fees, costs, etc. But there is a provision in the law that allows the federal court to reduce all of the damages to $200 per infringement if the court finds that it is an "innocent infringement."  If you don't have a registered copyright, then you are entitled to nothing but your "actual damages." You are not entitled to legal fees and costs. All you get is "How were you financially harmed by the infringement?" And that makes sense.  But Getty has twisted this around by demanding statutory-like damages when they don't have a copyright.  They also keep reminding all of us that you don't have to have a registered copyright to enforce a copyright and that lack of knowledge of copyright is no excuse. What they won't admit is that while all of the above is true, it is also true that lack of registration and lack of intent do make a difference with respect to how much you are entitled to receive in damages.

The only change I would suggest in US law (IMHO as the kids say) is to adopt a provision like they have in place in the UK that provides for no monetary damage for a one-time innocent infringement. Perhaps that's something we should start working for on this site - a petition to your congressman and senator to amend the Copyright Act of 1976 to help it catch up with the digital age. It's a thought.

1175

Getty Images Letter Forum / Re: Oscar, thank you for being a Champion in this cause!

« on: October 21, 2008, 10:34:25 PM »

Thanks for the kind words and support. It really is appreciated

1176

Getty Images Letter Forum / Re: how do i make sure i do not use copyrighted materials?

« on: October 21, 2008, 10:31:20 PM »

Dear David:

Good question and a tough to answer in this age of "right-click" to save and download.  Images and videos, etc are so easily copied these days that it would be easy to copy a copyrighted image without knowing. Purchasing a CD of images which contains an end user licensing agreement (EULA) that details the permissible use is one way of protecting yourself. Of course, going to a pay photo site like Getty's site and paying the license fee is also another way. You can also go to established free photo sites like www.sxc.hu  But the whole point of this site is to try to get Getty to understand that no one is in favor of using copyrighted material, but that there are better ways to address it than to instill fear into innocent people. Normally, if you use a copyrighted image by mistake you would get a letter telling you to cease and desist and you would take it down.  That would be the end of the story, particularly if you were not making money off the use of the image.  

Avoid using anything with a watermark obviously and read carefully the content of any site that you download from.

1177

Getty Images Letter Forum / Re: Interesting Recent Intellectual Property Issues

« on: October 21, 2008, 01:42:02 PM »

Just wanted to share some language from another court case I came across while doing some legal research on another copyright claim. The court had decided the defendants were innocent infringers and stated:


"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, District Judge, Central District of California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555


Sound applicable to the Getty cases?

1178

Getty Images Letter Forum / Re: Australian Victim

« on: October 21, 2008, 01:39:50 PM »

Dear Mark:

I have received numerous contacts from Australian recipients of Getty letters and they have been reaching me through and on occasion posting on this website. Matt and I would welcome additional posts from Australia as the Getty program there appears to be growing. I think you should continue to assert that the use was either licensed or at worst "an innocnet infringement" which would gretly reduce any damages that they would be permitted to receive.  One of the issues we have raised with Getty here in the States is that how can Getty be so sure that  its photographers have not licensed the use of the image elesewhere - such as on a CD. Getty makes no effort to ascertain this.  Thanks for a very informative post.

1179

Getty Images Letter Forum / Re: Get it Straight or Get Lost

« on: October 21, 2008, 01:21:29 PM »

Dear Beedee:

I misspoke and should have said "first in the US" because your FSB forum has clearly been out in front on this issue well before our site.My apologies and please do not think that I do not appreciate all the incredible information on your forum. THank you for your kind words and thank you for all your effort on this issue.

1180

UK Getty Images Letter Forum / Re: Has anyone been to court

« on: October 20, 2008, 10:09:00 PM »

My pleasure, good luck

1181

Getty Images Letter Forum / Re: Letter scheme

« on: October 20, 2008, 05:28:08 PM »

Dear David:

Let me respond to you in case others may have similar thoughts. I believe that Getty will not institute proceedings because they have a weak legal claim and the potential damages are non consequential.  That is expllained all over the site so I won't get into detail about our legal position. I also want to be clear that if Getty does institute legal proceedings, I stand by my word that my firm wiill represent any entity sued by Getty for the fee of $150.00 per hour. That rate will not go up. That's why it does not say it anywhere else on the site that "it will go up from there." Let me repeat.  It will NOT go up from there ever and yo uhave NO obligation to use us as litigation counsel at that rate either.

Matt is not an attorney but this website is very important to him so he gets justifiably upset when his reputation is wrongfully impugned. Before this site went up no one was taking an adverse position to Getty and people were just either settling for exorbitant sums or closing their businesses up. He put his heart and soul into putting up an informative site to try and give folks a place to go for info and support. He makes absolutely no money off the site at all.  None. Guaranteed. He should be receiving accolades (actually he has if you read some of the posts and if I were to post the numerous thank you letters from people all over the country most of whom DID NOT hire us for the letter).              

As for why I am doing it, that is also posted all over the site but let me repeat. It is not for the money. I have been practicing law since 1986, graduated magna cum laude near the top of my class, am an adjunct professor of law at a well known law school, and an experienced and seasoned litigator.  Just google my name if you would like to see some of the high profile matters I have been involved with. But as I tell my law students, sometimes you just have to do what's right.  I am blessed with a successful practice and a good living. My firm is a small litigation boutique (3 partners 3 associates) so the $150 essentially covers my employee's time to get the letters out and track responses, etc,  otherwise I would do it all pro bono.

If Getty began to file suits all over the country, I already have a plan of action for that in the event that I cannot handle all the cases. I don't want to go into detail, but every State has at least one law school with an intellectual property or litigation clinic. l have already been in contact with some. I am confident they would be willing to take on the defense in their State. I feel strongly that this will "come back to me one hundred fold" as a recent person told me. Call it good karma, call it a good deed call it what you will but don't call it a scam. Sometimes a good thing is just a good thing.  

I would like to speak with you in person.  Feel free to call my office if you are interested. 516 248 8000.

1182

UK Getty Images Letter Forum / Re: Has anyone been to court

« on: October 20, 2008, 05:04:05 PM »

Declaratory relief does not cost the alleged infringer any money. It is an order from the court that states that the item in question (in this case an image) belongs to the plaintiff and does not belong to the defendant.  An entity can even being an action for a declaratory judgment that says an image does not belong to a particular person but rather belongs to the person bringing the action. When I wrote that in July, I did not know (nor would I ever imagine) that Getty had no registered copyright for any of these photos. In order to file for declaratory relief in Federal court as they assert, they would  have to have registered the image for copyright protection. So in fact Getty cannot seek this relief in Federal court either.

1183

Getty Images Letter Forum / Re: got the letter

« on: October 07, 2008, 01:35:54 AM »

Dear Lettergettertoo:

Welcome to the club and thank you for posting.  Let me answer your questions in order. I have been away so I am sorry it took me so long to get to a response to you.
) what is the downside of ignoring the letter?

Continued contact from Getty and then their "collection agency" NCS Recovery is the main risk right now.  Getty has not sued anyone under this program which they have been operating since 2006.   Our $150 letter program gets a response to Getty on record and forces them to take a position. I believe our footing is legally sound and that we are being reasonable in our approach.

2) Is there anything Getty can be counter-sued for?

We are currently looking at a potential class-action RICO lawsuit against Getty based on certain things we've uncovered in the course of our representation of scores of businesses.  I do not want to discuss that possibility any further on this site. We'll keep you posted

3) would a company be breaking any laws if they made it easy (either purposefully or through negligence) for unscrupulous people to steal their images to sell ... then scour the internet demanding damage settlements?

This is a little too conspiratorial even for me. I think PicScout developed this program, Getty is taking advantage of it and has determined a price point that is high enough to be a home run for them (and then some ) when people pay but which is low enough that most folks would not be able to find a lawyer to fight the case for less than it would cost to settle.

It is amazing to me that a company this size is behaving this way. I would think this campaign would result in a net loss for them (lost business, tarnished reputation, etc). Are they just trying to cash in before going bust or something?


There are a number of theories out there about why they are doing this.  I think it is a major revenue stream for them.  They have been on the sale block for some time and this activity shows that they can make money through enforcement of their copyright. Think about it. To date we have been retained by about 30 companies or so.  That's a drop in the bucket. If hundreds of businesses are paying between $500 and $1,000 an image think of the money Getty is generating.  Recently, I met a lighting  designer who was so angry when he read our site because he paid Getty $31,000.00 for about 40 images! You don't need to look any further for Getty's motivation.

1184

Getty Images Letter Forum / Re: International - any difference?

« on: September 29, 2008, 10:46:50 AM »

email me at [email protected] and I will forward it to you

1185

Getty Images Letter Forum / Re: International - any difference?

« on: September 25, 2008, 11:11:28 PM »

got it