Moelle,
Thanks for your posting of Canadian info. But, the information that you've gleaned from Mr Fewer is really, really old.
It has the "not matter what, you've infringed, and you have to pay" spin. This argument assumes that your accuser is the actual owner of the copyrighted material.
We've seen that this is most often not the case, especially with Getty.
Your only difficulty will be in handling this in a manner that doesn't make your client irate.
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"Innocent infringement" is an angle that could work for you if necessary. Again, Getty usually doesn't own the actual copyrights to their content.
That is, they not do have the copyright registrations in their name, nor exclusive contracts with the artists in most cases. Consider the following:
"Registration, while not necessary, provides certain presumptions that are useful if the copyright is litigated and prevents any person from relying on the defence of “innocent infringement” (i.e., where the infringer did not know and had no reason to suspect that copyright existed in the work). If there is no registration, an infringer who successfully proves the defence of innocent infringement could be prohibited from further copying but would not be liable for damages." from page 66:
http://www.osler.com/uploadedFiles/News_and_Resources/Publications/Guides/Doing_Business_in_Canada_-_2011/DBIC-Chapter13.pdfThere's nothing to stop anyone from asking for "Statutory Damages". However, the above would likely nullify this option.
Keep in mind here that we're talking about Canada. So, a US registration counts for nothing.
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My personal opinion is that very few people "get it".
They get a Getty letter, post here, get on what I call the "herp-a-derp train" and it goes on and on.
They ask for advice, get advice, then say "yes, but...". It goes on and on again.
S.G.
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