Messages

1186

Getty Images Letter Forum / Re: indemnifying my client who got the Getty Letter

« on: September 25, 2008, 11:11:07 PM »

Dear Jen:

I would be glad to write the letter on your and your client's behalf. This has been my policy for the several web designers I already represent who are in similar situations. As I recently reported in a separate post, NCS is fully aware of this site and our position on this matter and will return this back to Getty once they get a response letter from my firm. We are waiting to see what Getty will do from that point but once NCS or Getty hears from a lawyer, they can no longer contact the user or the designer directly but must deal with the attorney. So the letter at least puts the client at ease and gives everyone peace of mind. Please contact me at my firm via my email:  xxx  or via my office phone 516 248 8000

Oscar Michelen

1187

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

« on: September 23, 2008, 05:11:42 PM »

Dear Tony:


Thank you so much for your support and your kind words. I think there are so few complaints because Getty's letters are done very professionally and appear to make it an "open & shut" case. People just try to work at reducing the settlement amount and sending Getty a check.  I don't want to discuss the potential class action on this site for a number of reasons. Having now sent letters to Getty or NCS  Recovery on over 30 clients, I expect we may see a different response from Getty. As you can see from some of my other posts on this site, Getty and NCS have been modifying their position lately and I have to believe its in response to what we're doing on these pages. In the meantime, I would encourage anyone who has recently received a demand letter to read through this site, listen to the taped interviews and get informed of your and Getty's legal rights. Its an old saying but its true - Knowledge is power.

1188

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

« on: September 23, 2008, 05:03:31 PM »

Grame:

I did not get it please re-send to [email protected]  thanks

Oscar

1189

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

« on: September 17, 2008, 11:04:47 PM »

Great Graeme - look forward to seeing it

1190

Getty Images Letter Forum / Re: They Put Me Into Collection!

« on: September 17, 2008, 02:25:59 PM »

Dear Readers:

Just wanted to update this post. NCS has now retracted this position and their new letters state it is an attempt to collect a settlement.  They will also admit that they cannot put you into collection as it si only a claim not a debt. Nice to know they read the site.

1191

Getty Images Letter Forum / Getty and NCS Changing Strategy?

« on: September 17, 2008, 02:24:14 PM »

Dear Readers:

Just wanted to give you some news from the frontlines on this ongoing Copyright Battle with Getty Images and their "collection agency" NCS.

Our letter campaign was begun about 7-8 weeks ago and we now have been retained by over 30 small businesses and not-for-profits. I can tell you that the number of "contacts" and "questions" are in the several hundred from all over the world - the UK, Australia (almost daily), The British Channel Islands, Belgium, Germany, Finland and almost every state in the United States. It has been very heartwarming for us to see how this site has helped give people some direction and courage that they are not facing this issue alone. Even those who have not retained my firm tell me they have been helped by the information we have presented.  That is great and we will keep this up and keep everyone posted.

 While Getty has not responded to the letters, NCS has. Their response frankly has been very professional, non-antagonistic and business-like.  While they are willing to negotiate the amounts demanded, they would not accept my premise that Getty should only be entitled to actual damages of $49 per image. They have referred those cases back to Getty. We await to hear from the mothership.

What is interesting is that I have seen a visible change in the way Getty and NCS are handling these claims since we began.  NCS used to send letters and notices stating that they were a collection agency attempting to collect a debt and threatening to put people "into collection" Now the letters state that it is a "settlement demand" and an "attempt to resolve a claim." Already, this language will make people more relaxed than the "into collection"  language they used to employ.  I have to believe this change came about after they read my post on the topic on this site and having seen this issue addressed in my letters to them.  Who care why they changed ,its just great that they are taking a softer,more correct approach.    

Getty too has changed its position since our little website got up and running.  In response to an email sent by a reader of this post about copyright registration Chloe from Getty stated as follows:

[While copyright registration is a prerequisite to bringing an infringement action in court, we typically try to settle these matters without litigation and therefore do not make a practice of pre-registering our copyrights (although we do so in some instances). Copyright registration is also a prerequisite to seeking statutory damages in court, but we are simply seeking our actual damages and registration is not required to do this.]

Here Getty is making two huge admissions: (1) that they do not have a registered copyright for most of the images (in fact I think its closer to none) and (2) they are not seeking statutory damages!! That means no attorney's fees! Actual damages are all they can get.  We would have a strong argument that $49 per image is their actual damages.  

Finally, another reader of this site posted about a contact they had with a Getty employee in Chicago. According to the poster, this employee admitted that the $1,000 - $1,200 per image they are claiming is an arbitrary figure generated by a computer program and not a statement of their actual damages.  As anyone who has listened to the recorded interview on this website knows, we predicted this was the case many months ago.
 
So it is clear that we are in our on small way impacting Getty's campaign. It is critical that we keep track of all these changes in strategy  from Getty and NCS.  It may soon be time for affirmative litigation against Getty and NCS for their practices.

1192

Getty Images Letter Forum / Re: What to do...

« on: September 17, 2008, 01:32:46 PM »

Okay,let me answer the two questions you post first:

 1- on AVVO someone mentioned : "Since the Copyright Act was substantially revised in 1976, you don't even have to register a work in the United States Library of Congress anyway" ---- is this valid & true. If so, how does asking them to prove a copyright have any value??
Answer-  It has always been the law that once you create a work of art- a song, a piece of music, a photograph, a novel- you automatically own the copyright to it.  There is no need to record it to own the copyright. You may have heard of a "poor person's copyright" putting the song, image, etc, in an envelope and mailing it to yourself and never opening it. While this method has never been usedin a US court of law, I suppose there is no reason why it would not stand up. But under the Copyright of 1976 (which is the one still in effect today) you only get certain STATUTORY DAMAGES if you have registered your copyright. If you did not register your copyright with the Copyright Office or online, then you can only get ACTUAL DAMAGES.  There is a big difference between the two, especially for an image. For example, if it were a song that was improperly used, you could get actual damages for every time that song was played on the radio or in a concert. But for an image which could have been licensed for use on a website for $49.00 that's all your actual damages.  I have been reviewed by AVVOand it is a wonderful site, but look at the experience and knowledge of the person posting responses before you decide to act on their advice or answers.

2- on AVVO someone mentioned: "Copyright law, however, grants to registered copyright owners the right to recover at least $750 for each infringing reproduction" - is that true?? If so, the large amount they are asking is less than 2x more.  
Answer- Yes,  but read your question - it grants to REGISTERED COPYRIGHT OWNERS that right.  Getty and its photographers are not registered copyright owners because photographers don't register each image as it would be too expensive. Additionally, the very next section of that law also states that if the alleged infringer can establish that they were "innocent infringers" as almost all of the people getting letters from Getty are, then the court has the discretion to reduce the STATUTORY DAMAGES to $200 per infringement. So that even if a photographer has registered his image, chances are that Getty would end up with $200 in damages as most courts award this for one time innocent infringement.  


If your corporation is closed up and no longer functioning, then why even bother with all of this.  I will be lgad to write the letter for you for our agreed rate of $150.00 if you want some closure and peace of mind that they will not be able to contact you directly. As for being a test case, Getty has not field a single lawsuit over this since 2005/2006 when this campaign began. I doubt they woudl start with you.  More than likely they will start with my client who began this website and has still not paid Getty their demanded sums.   You can call me at 516-248-8000 if you would like to discuss your claim.

1193

Getty Images Letter Forum / Re: Settled with Shane Phillips of Chicago office

« on: September 17, 2008, 01:14:55 PM »

I am glad you are pleased with your result and thanks so much for reporting it back to us. I hope the site was helpful to you in some way. I have to tell you that they all follow a script and get their authority to settle from Getty; its just maybe a person's personality may come through in the process, which is great.

1194

Getty Images Letter Forum / Re: My letter - Belgium

« on: September 12, 2008, 12:19:30 AM »

That's great! I should move there and run for office!  Mayor Michelen of Mechelen has a nice ring to it. Good Luck and keep us posted

1195

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

« on: September 10, 2008, 12:12:12 PM »

Dear Richard:

As I stated in myprevious post, Wikipedia has a pretty good site about the Australian Copyright Act. You may want to take a look.  I sent Grame the lettter I prepared for him last week, so I doubt he has heard from Getty yet.  We will definitely keep the site posted if Getty ever responds to any of the numerous letters we have sent them on behalf of clients. Thanks for the post

1196

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

« on: September 09, 2008, 10:22:44 AM »

Today the NY Times reported that a judge ruled in favor of J.K. Rowling, popular author of the Harry Potter series, in a copyright/trademark infringement claim she brought against a fan who developed an online encyclopaedia of Potteralia (my word, don't steal it).  

The fan had copied whole sections of her book as well as of course, all the names, characters, place names, plot lines, etc. His defense was that it was "a fair use" one of the exemptions of copyright infringement. Ironically, if he had made fun of the series or critically reviewed the books,and had used the exact same quotes in his parody or critique, he would have likely won his fair use defense. But instead his pure and unaltered devotion to the works meant that it was out and out copyright infringement.  

The point of this post - despite all of the above, the court awarded Rowling (actually her publishing company) the whopping sum of $6,000. Years of litigation, evidence of direct, intentional infringement and you get $6,000. Of course, it was vitally important for Rowling to fight this fight to establish that this kind of site does harm to her ownership rights and ability to market her ideas so the money was irrelevant.

Remember that the website owner in the Rowling case did not want to take the site down. But for Getty, its all about the money as almost everyone contacted by them immediately stops using the images and therefore stops any alleged infringement. This monetary award should give Getty pause (no legal fees were awarded according to the report) and make them realize that the damages they seek are insupportable in a court of law.

1197

Getty Images Letter Forum / Re: My letter - Belgium

« on: September 02, 2008, 12:22:07 PM »

Dear Tarck:

Unfortunately, I cannot practice law in Belgium, and there are many treaties, convention and Belgian laws that govern intellectual property in your country. I can give you some general advice. Copyright is granted automatically in countries such as the Netherlands that have signed the Berne Convention, meaning as soon as a person creates a work, it is covered by copyright. This means that technically it is not necessary to include copyright indicators such as "copyright © 2006."  They use a different word than copyright in Beligum - auteursrechten - which is author's rights. It is generally broader than copyright.  Recently, Google lost a copyright claim for posting news articles from Belgian sources without giving credit.  

I can also give you some comfort by telling you that to date, Getty has not filed any lawsuits in any country - not the US, not England, not Australia - where it has ran this campaign.  They have been doing this in the States since 2006 and not filed suit anywhere yet. Certainly, if you close up your company that would make it hard for Getty to collect anything should they win, but you may not have to do that yet.  I would do nothing further at this point and the next step they are likely to take is send it to a "collection agency."  You can look at our other post to see what to do when it gets to that stage. But I would not close up shop and shut down until you see that they are actually suing you.  You shold also try to find out form a lawyer in your area about what wouldhappen if your company got sued and you justdecided to "default' not answer the suit.  I could advise you on what would happen here in the States but it  may be verydiffernet in your country,so try to check that out.  You do not have to tell them what it is all about just ask for  a general answer. Hope this helps and thanks for the post.

1198

Getty Images Letter Forum / Re: My Letter Policy

« on: September 02, 2008, 11:08:33 AM »

Dear Getty Victim 120:

Just to add to the last response, it was the size of the claim that led lawyers not to get involved as they could not justify their fees when you could settle for $1,000 or so (and that is what Getty is counting on).  That's the whole purpose of our approach on this site, to try and give folks a way to "level the playing field." Thanks so much for your comments and post.

1199

Getty Images Letter Forum / Re: My first Getty letter.

« on: August 29, 2008, 05:51:35 PM »

No problem:

One last comment. Certainly, once an image is created or a song  or  book is written, the copyright belongs to the author and there is no need to record it anywhere. That applies in the US and the UK.  And what they describe at the UK office regarding the "envelope method" has been called "the poor man's copyright" for some time in the US as well.   We have talked about that in other posts. But if you choose that method in the US you cannot obtain "statutory damages" only your actual damages.  Also, a copyright holder is free to allow public access to the work without claiming the copyright or asking for money for the use of the work.  Some of the photographers who sold their collections or licensed their collections to Getty may have also allowed the same images to be placed on sites  that allow a person to download the image for free. Now Getty may have a claim against the photographer because they probably promised to grant Getty exclusive licensing rights to the image but that means that you did not infringe on that copyright if you got it from the site the photographer placed it on. Anyway, thanks so much for your post and yes , please let us know what the lawyer says on Monday. Have a great weekend.

1200

Getty Images Letter Forum / Re: My Response From Getty Images

« on: August 29, 2008, 10:40:52 AM »

Dear BSM:
No problem. Number one - look at my latest posts on the collection agency and letter issues.

Number two - call me at 1-800-640-2000 to discuss your issue. The consultation is free and I am in the office right now.

Oscar Michelen