Messages

1201

Getty Images Letter Forum / They Put Me Into Collection!

« on: August 29, 2008, 10:38:07 AM »

Dear Readers:

Now that this issue has matured somewhat, it seems Getty has retained some collection agencies, NRS Recovery being the most popular, to ramp up the pressure on those contacted by Getty.  I want to remind everyone that this is just another tactic by Getty and that they are not actually "in collection" as most people understand that term. Being "in collection" means that a person has refused or been unable to pay A JUST DEBT that is owed to the creditor. Getty does not have a debt against you, you are not indebted to Getty. All they have presently is a CLAIM. A claim is very different from a debt. A debt means you ordered and received some goods and services and did not pay for them. That is not what happened here. Here, Getty CLAIMS they own the license to a copyrighted image which you have wrongfully used. You have denied that you wrongfully used the image. They would have to prove their case in court before you owed them a dollar. They are not allowed to report this to a credit agency or a credit reporting bureau. Nor would this show up on a credit report as an outstanding debt that is "in collection." Getty sends you an invoice as if you did not pay for ordered goods but all they really have is a claim against you.

It would be like someone calling you and saying that you hit their car with your car last week and they incurred $1,000 in damages. They insist you pay them immediately. You would tell them you had no idea what they were talking about as you were not in an accident.  They would have to go to court to prove it was your car and that you negligently caused the accident. Now copyright law is very different from accident law as under US copyright law even innocent infringers may be required to pay some damages to the copyright holder, but this was just to illustrate the difference between a claim and a debt.  If Getty or its collection agency wrongfully sends negative information that ends up on your credit report, you should call your state's attorney general for assistance.

1202

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

« on: August 29, 2008, 10:22:02 AM »

Dear BSM:

Oh, because The Copyright, Designs and Patents Act 1988 (c. 48) is a British law applicable only to the United Kingdom. US copyright is governed by the The Copyright Act of 1976 and DMCA.  US copyright law does not contain a similar provision regarding innocent infringement.  Under US copyright law, if the court finds it was an innocent infringement the court in its discretion may (and usually does) limit damages to $200.00 per infringement.Just wanted to give you a heads up on that.

1203

Getty Images Letter Forum / My Letter Policy

« on: August 29, 2008, 10:16:36 AM »

Dear Readers:

Let me explain what I have been doing and why. I am a seasoned litigator in NYC and was brought into this issue by the founder of this website, who was a publisher that received a Getty Images Letter. He had been handling it on his own until he sought legal counsel. After I answered his question and agreed to send a letter on his behalf, he surmised that many, many others must be in the same position. So he decided to put up a website to address some of the issues. After receiving thousands of hits almost immediately, and hearing people's similar complaints about Getty, we decided to offer something to help out those who are caught in this current dilemma.    

My Fee Policy

I agreed to write a letter for any company that received a demand letter from Getty or their collection agency for the total fee of $150.00US. I also decided that I would include a second letter at no extra cost should Getty respond to the first. Now, I have to tell you that I regularly charge $450.00 per hour for my services in litigation matters. I am routinely retained at that rate by clients on litigation issues. As a result, I now represent many companies at various stages of the Getty Issue. My first letter went out six weeks ago and to date, Getty has not responded. The letter is not a boilerplate form letter. While it does contain some stock language (don't worry I wrote it myself so I own the copyright) it is specifially geared to how the client got the image and used the image.  
   
While Getty has not filed a single lawsuit over this issue, I have also told my clients that I would reduce my hourly rate to $150.00 per hour should Getty sue them and should they decide to retain me as their litigation counsel. I make it clear that they are under no obligation to retain me as litigation counsel and they can terminate my services at any time. Paying the $150 for the letter(s) does not obligate them in any way to pay any further fees to my firm.  

So that is my firm's fee policy on the Getty Issue  

Why am I doing this?


I am doing this because I see it as the only way to level the playing field a little bit. I believe Getty chose the $1,000 per image demand because tht number is high enough to make it enormously profitable to Getty yet low enough that folks who took one or two images would be hard pressed to find competent counsel who could defend the claim. (And as you can see from other posts of mine and others and from my web conversation posted on this site there are defenses). This letter now assures clients that they will not be contacted directly by Getty again and that the fictitious deadline set by Getty has been satisfied. Yes, I gain some "web presence" by doing this and have been introduced to many wonderful and successful entrepreneurs through this issue, but that is just a small bonus compared to the satisfaction of helping out someone needlessly put into distress.

 I can't tell you how great it feels to hear small business owners sighing in relief when they see the letter (a draft of the letter is sent to each client for approval before it is sent to Getty) and know that this is being handled and they can get back to focusing on what they want to focus on. In addition to my practice, I am a law professor at New York Law School which is on the cutting edge of intellectual property and patent law. I teach the first year legal writing and appellate advocacy classes there. I regularly tell my students to be proud to be lawyers as law and the courts are often the only place that individuals and small companies can get a fair shot. And I remind them that it can't always be about the fee, sometimes it has to be about "doing the right thing." So I am also putting my money where my mouth is as well.          
 
My take on Getty

I want to conclude by saying that I am no fan of copyright infringement.  More often, I am on the side of the small company or startup  that puts out content only to have a larger company or rival take its idea and profit off of it. What I am against is hard pressure tactics designed to scare someone into paying a claim and also masquerading a claim as a debt that is in collection. Were I Getty's counsel, I would have recommended a cease and desist letter and then brought a claim only if the party persisted in the use, unless I had proof of an intentional infringement.  I believe this issue may tarnish Getty's reputation in the end.  The company has been for sale for some time now and this may also be a way to show a revenue stream for prospective buyers as less and less people are paying for these types of images. Who knows why they are taking this approach? I only know that it subjects innocent people to undue stress and concern.  I hope that my efforts and this website's efforts help to alleviate that stress somewhat.    

Oscar Michelen

1204

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

« on: August 29, 2008, 09:15:54 AM »

Dear kimbomc:

Thanks so much for your post.  Your UK lawyer has been telling you pretty much what I have been saying here inthe states - that is, that at best Getty may be entitled to the $49 they charge for the picture. But I have a question about two issues - in speaking with another UK Copyright Lawyer, I was informed that under the British Copyright Act,if the infringement was a one-time innocent infringement then no damages apply.  

Secondly, I know that here in the states, we have found that some of these images were placed by the photographers on other sites and made availabel to the public, but the photograpohers either forgot or never told Getty they did so. DId the lawyer ever discuss whether these two issues might change his opinion on owing Getty anything for the image?  

Finally, you can offer Getty the $49, they won't accept it. at least that has been my and my client's experience here in the US. Please keep us posted on your progress and on the above two issues if you can. Thanks again.

1205

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

« on: August 29, 2008, 09:08:45 AM »

Dear BSM:

Thanks for the post. Are you referring to the British Copyright Law? I have discussed some of the differences between the two on prior posts.
With respect to the "collection agency" I am posting a new topic on this issue later this morning.

1206

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

« on: August 29, 2008, 09:06:11 AM »

Dear Grame:

Thanks so much for the post. I cannot advise you on the details of Australian Copyright Law but from my contact with other sites that have dealt with this issue, Australia's law mirrors much of the UK and America's Copyright Acts.  Actually Wikipedia has a fairly good explanation and outline of the Australian Copyright Law.  What I can state is that no lawsuits have been commenced in Australia to my knowledge either.  So  I don't think they are taking a different tactical position in your country as opposed to what they are doing in mine.

With respect to them attacking your customers or the end-users of the image, that has been their approach here as well.  We currently have sent letters on behalf of three site developers who want to protect their clients. As a service to their customers, they are paying the fee for the letter and it goes out on behalf of both the developer and the customer. In the State of Idaho, a website template company entered into a signifnicant settlement with Getty ( in my mind they overpaid) and part of the agreement was that Getty would not go after the end-user customer.  Getty did of course anyway and even received money from some of the customers as well.  The  Idaho Attorney General got involved and Getty returned the money to the end users.  There is a report of this on this website.  

While I would be delighted to send a letter for you I can't practice law in Australia and I am not familiar enough with your country's copyright act to be sure I am drafting a coherent response. I would be able to send you a copy of what I have drafted  for my clients (with their names redacted of course)so you can see what the letter I send here states.  You might then be able to tailor it for your purposes.  I charge only $150US for the letter. That $150 also includes a second letter should Getty respond to our intial letter.  I have sent letters out on dozens of clients, the first one being mailed about six weeks from today. So far, I have no received a response from Getty. Later this morning I will post my letter policy for all to read.

I would be glad to communicate with you further on this. My email is [email protected] and my office number is 212-517-3200.

Thanks for the post and don't pay them yet!

1207

Getty Images Letter Forum / Re: how much for the letter

« on: August 27, 2008, 11:49:46 PM »

Thanks, much appreciated.  I have written these response letters for several clients now with the earliest one dating back to about 6 weeks ago. We simply state what we believe the correct legal position is - for innocent infringement, the maximum statutory award is usually $200 per infringement.  You are only entitled to statutory damages if you have actually registered your copyright with the Copyright Office.  Most photographers have not.  That means that Getty can only get "actual damages" We are stating that their actual damages are $49.00 since that is the usual cost for a Getty image. But what the letter provides is  peace of mind. In the letter, we advise Getty or their  "Collection Agency" to have no further direct contact with our client.  That means that Getty will no longer send you a letter email or call you.  I felt something had to be done to level the playing field and counter Getty's actions here. It is not a form letter either.  While each letter uses some stock language (don't worry, I wrote it so the copyright to the stock language is mine) each letter is tailored to the individual client's particular situation. I would be glad to discuss the letter with anyone in a free consultation as well.  I can be reached at 1-800-640-2000

1208

UK Getty Images Letter Forum / Re: New victim (UK) - used vista sample picture

« on: August 26, 2008, 05:48:07 PM »

Yes, I would include the source of the photo in your letter.  You may also want to cite The Copyright, Designs and Patents Act 1988 (UK law) which says an innocent infringer does not have to pay if they quickly cease and desist. Take a look at some of the other posts on this site that discuss UK law for additional pointers.  Good Luck and keep us updated! .

1209

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

« on: August 26, 2008, 05:45:58 PM »

Letter has gone out.  Will keep you posted

1210

Getty Images Letter Forum / Re: Oscar's Letter

« on: August 26, 2008, 05:44:49 PM »

Dear Ed:

Thanks so much for your post. I think your letter is a good start and you should do nothing further until you receive a response from Getty. This company is making a great deal of money off of this project.  These images could have been licensed from Getty for as little as $49.00 I am arguing therefore that these are their actual damages. (they only get statutory damages if they have a registered copyright).  So even paying the statutory  $200 per image as an innocent infringer may not be the right approach at this time though I could see how one may want to avoid any further aggravation.  I have been charging a small fee for a letter to Getty from my firm. The rate is well below the usual cost as my hourly rate is $450.00 per hour. Included in  the initial fee is the letter to Getty plus a response to their response if they write back.  Approximately two dozen companies have contacted me for the letter and to date I have no response from Getty.  The earliest one went out over six weeks ago. I want to make it clear that I am no fan of copyright infringement - in fact, I usually bring actions to enforce my clients trademarks and copyrights as most of my clients are small to mid-size businesses that often have their ideas and their content taken by larger companies.  But Getty's approach is overzealous, heavy-handed and I believe contrary to the letter and spirit of the Copyright Act. I would be glad to speak with you in a free telephone consultation, by the way.  Just call my office at 1-800-640-2000. Thanks for the post and keep up the good fight.

1211

Getty Images Letter Forum / Re: Reply referencing "The Copyright, Designs and Patents Act 1988 " & Getty Response

« on: August 26, 2008, 05:29:13 PM »

Thanks so much for the post. I just want to remind our readers that you are talking about British Copyright Law and not US copyright Law.  While there are similarities, and innocent infringement is dealt with much differently than intentional infringement also in the US,  The Copyright, Designs and Patents Act 1988 does not apply in the US.  I like the way Getty completely ignored that the law you cite specificially states they have no claim for damages if the alleged infringement was innocent. I also can't believe that they are stating that they are not seeking statutory damages as they claiming those damages in the US. You should be aware that my search indicates that they have never filed lawsuit in the UK either. Thanks again for the post and keep up the good fight!

1212

UK Getty Images Letter Forum / Re: Worried UK

« on: August 18, 2008, 03:50:15 PM »

Dear Worried:


Their response to you frankly makes no sense.  You wrote them trying to establish an innocent infringement defense and by telling them that the third party told you THEY owned the image you establish that innocence. Their response would only make sense if you were trying to claim that the images were in the public domain. While I am not an attorney in the UK, I can state that UK laws protect innocent infringement.  If you feel you need to respond you should respond with a sentence that mirrors section 97: "While I was stated that the third party asserted rights to the image, when the image was posted I did not know, and had no reason to believe that alternative copyright subsisted in the work. It was only after the fact that I was told someone owned the image and I was told it was the third party not Getty. I therefore decline to pay the damages you seek unlkess you can establish that Getty owns the images in question and section 97's inapplicability."  You can also ignore the message and see if they re-contact you.  I remind you that, to date, Getty has not filed a single lawsuit over any of this.

1213

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

« on: August 11, 2008, 03:00:02 PM »

A reader of this site sent me the following via email :

http://recordingindustryvspeople.blogspot.com/2008/08/innocent-infringement-defense-may.html
 

The text below is taken from the link above - seems to me most of us in the Getty case had no idea we were getting images that "belonged" to Getty and how would we find out?  And in many cases the images used were actually thought to be in the public domain or purchased properly.  So, would the below "innocent infringement" defense apply to us since we had no way of knowing the images were (perhaps) copyrighted???

Innocent infringement defense may reduce damages to $200 per song file in Maverick v. Harper

In Maverick v. Harper, a San Antonio, Texas, case of which we were unaware until yesterday, the RIAA has been pursuing a college age defendant who admitted to having committed copyright infringement using the Kazaa program when she was 16 years old.

Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.

The RIAA argued that defendant could not qualify for 'innocent infringer' status, since CD's of the songs sold in stores have copyright notices.

The Court disagreed, and denied the RIAA's motion for summary judgment unless the RIAA agrees to accept $200 per infringement:

Plaintiffs request the statutory minimum damages of $750 per work rather than a calculation of actual damages. Defendant contends that due to her age—sixteen years old at the time of the infringement—and technological experience, she did not intentionally violate Plaintiffs’ copyrights and should therefore be considered at most an innocent infringer.

The damages provision of the Copyright Act provides that a plaintiff may elect to seek
minimum damages of $750 per work. 17 U.S.C. § 504(c)(1). However, it also provides that “where the infringer . . . was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2). The defendant has the burden to prove the lack of intent necessary for innocent infringement. Id.

As evidence of her “innocent” infringement, Defendant presents a signed affidavit stating that before the lawsuit, she “had no knowledge or understanding of file trading, online distribution networks or copyright infringement.” In addition, Defendant stated that “Kazaa and similar products did not inform me that the materials available through their service were stolen or abused copyrighted material and I had no way of learning this information prior to this lawsuit.” (Id., at 13). Plaintiffs contend that by complying with 17 U.S.C. § 402 and placing notices on each the containers and on the surface of the compact discs of the Recordings, they have provided notice such that Defendant could have learned that the Recordings were copyrighted. This argument is not completely satisfactory. In this case, there were no compact discs with warnings.

The Copyright Act provides that “f a notice of copyright . . . appears on the published phonorecord . . . to which a defendant had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement” unless the infringement was believed to be fair use. 17 U.S.C. § 402(d). Although the Fifth Circuit has not addressed this issue directly, the Seventh Circuit has found that an innocent infringer defense did not apply in a case where the defendant “readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzales, 430 F.3d 888, 892 (7th Cir. 2005). Defendant, relying on Electra Entertainment Group v. McDowell, a case involving a thirteen-year-old girl, argues that her age and knowledge of technology alone should be sufficient to introduce a genuine issue of material fact as to innocent infringement. The McDowell Court held that a genuine issue of material fact was present as to the defendant’s access to the copyright notices. See Electra Entertainment Group Inc. v. McDowell, No. 4:06-CV-115 (CDL), 2007 WL 3286622, at *2 n.2 (M.D. Ga. Nov. 6, 2007).

Although proper notice was provided on the cover of each of the Recordings, a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting. Defendant admitted that she owned compact discs. However, both in her affidavit and in her deposition, Defendant claimed that she believed using KaZaA and similar products to be akin to listening to radio over the internet and did not know that the Recordings were being either downloaded or distributed. She further claimed that prior to this lawsuit, she did not have any understanding of copyright infringement.

At the summary judgment stage, all factual disputes must be construed in the light most favorable to the non-moving party—in this case, Defendant. Anderson, 477 U.S. at 255. Defendant has the burden of proving by a preponderance of the evidence that her actions constituted innocent infringement. 17 U.S.C. § 502(c)(2). Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs’ copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer.


MY REPLY:


This is essentially a re-statement of our position relating to Getty Images. That is, that intent does matter particularly with respect to the amount of damages to which Getty may be entitled. This opinion, along with the case I mention above, Tiffany v. eBay, enforces that we have a strong legal position and just need to push back until Getty sees the light of day here. I want to thank the reader for bringing this case to our attention.

Oscar Michelen

1214

Getty Images Letter Forum / Recent Intellectual Property Legal Issues

« on: August 07, 2008, 12:31:24 PM »

This post is not directly related to our issue but should be of interest to readers as it relates to recent intellectual property issues and may provide guidance on the Getty case.

(1)  In late July, 2008, a federal court dismissed Tiffany, Inc.'s trademark infringement suit against eBay.  Tiffany had sued eBay due to the number of Tiffany "knock-offs" sold on eBay's e-marketplace website. Tiffany had made two claims against eBay: that eBay directly infringed on Tiffany's trademark by promoting the sale of Tiffany products and by advising sellers on how to better market Tiffany products, when all the time these were not Tiffany products and secondly that eBay indirectly infringed on the Tiffany trademark by hosting the sale of Tiffany knockoffs.  The court ruled that eBay's use of the Tiffany name and eBay's promotion of the sale of Tiffany items was a "fair use" of the trademark.  But it is the court's ruling on the "indirect trademark infringement " claim that is interesting.  The court said that since there was nothing about the proposed sale that would telegraph to anyone that the sale was of a knock-off item as opposed to an actual Tiffany item, that eBay could not be responsible for the seller's trademark infringement of Tiffany's name and design.  The court noted that in every instance of a Tiffany knock-off sale, as soon as eBay was notified by Tiffany that it was not an actual Tiffany product being sold, eBay took the sale off its website and derogated the seller to a "bad seller's" list  The court held this was sufficient conduct on the part of eBay to make it not responsible for indirect infringement. While trademark law is not identical to copyright law, there are  parallels in the two areas.   eBay's reaction to the notice from Tiffany is similar to many of our client's reaction to notice from Getty. They did not actually download the allegedly copyrighted image and took  it down immediately once notified of the alleged infringement. It should certainly give Getty pause as to whether they will be able to get the amount of damages they seek.

(2)  In today's NY Times, there is a front page story in the Arts section about DJ Girl Talk ( real name Gregg Gillis, be careful not to download the photo accompanying the article, it is from Getty Images!) who has released an album of "mixes" that are comprised of overlayed samples of songs. He claims it is a "fair use" of the copyrighted song because he uses such a small portion of it to create a new original work.  I suspect that if push came to shove a court of law would find that it is not a fair use as anyone working in the intellectual property field know that most labels and producers spend a fair amount of time getting clearances and licenses when their recording artists want to employ or sample even a "beat" from another song. While this position may seem at odds with my position on the Getty issue, it is not - please remember that more often I am on the side of the artist/author trying to protect his/her/its intellectual property, it is just that Getty is over-reaching and over-charging and may not have the correct legal position. But what is interesting about the DJ  Girl Talk issue is that the Times speculates that the music industry is cautious about bringing suit against the popular DJ because of bad publicity and the danger of setting a bad precedent.  Well, I am sure that Getty is (and should be) concerned about similar issues here. They are already getting bad publicity from this and if a court agrees with my legal position should it get to court, they will have to stop this gravy train of demand letters and settlements.  That may explain why no lawsuits have been filed even though they started this in 2005.

1215

Getty Images Letter Forum / Re: Template Monster and Getty - my story

« on: August 06, 2008, 02:46:13 PM »

Dear GettyVictim120:


Thanks for the info. Great job getting you rmoney back.  What state are you in?