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« on: August 28, 2012, 09:18:55 PM »
Hi everyone and thank you so much Matthew, SG and Greg for responding.
And indeed I did read about that "flubbed" court case of Getty's a week or so ago when I first came to the forums. LOL!!!
So I have written another response back to them - here is the gist of my letter. If you ask me, if I were on the receiving end of my letter I would consider the situation that of a stalemate really and just simply "give up" and close the "case." But then again I'm a sane and rational and intelligent person .... so who knows:
"I thank you for your response, however I am no further ahead than what I was previously in terms of just who has the proper authority and claim to this image.
I have screenshots of 13 different websites with that image in use. Out of those 13 websites 2 of them offer the image for download – for free. A third website, when approached – it doesn’t publicly display that the image is available for download, but if you pay $10 you are given the link for the image itself (which when clicked apparently it will open up my photo viewer/editor) and I would be able to use the image for as long as I desire. A fourth website is pretty much the same, however the person requested $20 for unlimited usage of the image. I did not approach the remaining 9 websites as already by that time I was confused. Why bother? Both the third and fourth obviously claim rights to the image; as I approached them under the “assumption” that they were the sole copyright owners and requested permission to use their image – this was when the money was requested. I definitely did not go forward with the offers – it isn’t worth it. However ...
Besides also having been available in photobucket, I also found the link to another one of the websites anyways that did have it available for download for free. It was available for download during the month of July of this year – which was when I was able to download the image personally – and did so without issue – as stated for FREE. It seems that it’s unavailable or their server is down as of last night because now, while the image link is in fact still there, the download button for it is not: *link removed* The typing is in Russian, however translated it says “download.” I have included the two screenshots of this website. The first shows a list of all “available photos for download.” The second screenshot is the actual download page for the image itself.
Now in my own case here, as previously mentioned the website was in development – by a web creator – who was the original owner of the site itself. The site was not completely “live” for some time and most areas were not readily accessible to the general public - including the self-help/growth articles. The image in question was most likely inserted into the article by the web creator and owner – as it was stated that the design would include image placeholders so that I could insert my own images when I was comfortable to do so and when I was ready to make that particular area of the website available to the public.
In Canadian copyright law, it states and I quote directly from the Justice Department itself:
27. (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.
Marginal note:Secondary infringement
(2) It is an infringement of copyright for any person to
(a) sell or rent out,
(b) distribute to such an extent as to affect prejudicially the owner of the copyright,
(c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,
(d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or
(e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
Besides the fact that I myself did not ever even use or post the image in question, the image was obviously already placed there when I took over ownership of the site, it likewise was NOT sold or rented out, or distributed to others – and most definitely was not at all exposed/exhibited in public – as it was within an area of the website that was still under development and was not able to be reached by the general public. I have stated this in previous letters. So legally-speaking there hasn't really been any true infringement here. However I also need to state here that your own CEO Mr. Klein has publicly stated on video that he is fine with people taking and using images up to the point that they are actually used to make money – that's where he draws the line - that is even if this particular image in question is actually yours. The image in question, even being that of a temporary placeholder through the development of the website, was not used in any way to generate income. It was inserted in a self-help/growth article for educational purposes only – and as mentioned was a temporary placeholder anyways within an area inaccessible to the public. The article wasn’t even accessible by the public until I made it so – at which time there were absolutely NO images on the webserver that were not of my own creation. All of my photography images were in place throughout the entire website the very second it became live to the public. The web development itself is likewise clearly illustrated within your own “screenshot” of the article (which was included in your previous letter). It shows clearly the old design/layout – and the article itself wasn’t even completely written. This was a placeholder image left by the developer before the site went live and has never been viewed by anyone – nor is it even located anywhere on the server itself. Since this was a placeholder image, placed within an inaccessible/still being written self-help article, and was never live where no one ever saw it nor was it ever used for the live website at any time … that in turn means there are no damages as well.
At this time I do require proof of claim to this particular image, as clearly to me the rights to it are quite blurry due to my experience with and discovery of the other websites. Furthermore, in Canada it is legal to download any copyrighted file as long as it is for non-commercial use, but it is illegal to distribute the copyrighted file – which has not been done not at any time in this case - it was not distributed and was not used commercially. It was used privately. You also imply in your previous letter that I am a corporation by stating that for a license “for corporate or promotional use for a three month term is $396.00.” I am not a corporation – I wish I was! And there is nothing “corporate” about a self-help article – nor was there any promotional usage. Nothing was seen by the public – therefore no promoting or advertising or monetary gain.
I must stand firm in my position at this time and state that until solid proof of your claim is given, I cannot move forward. Should solid proof be shown to me in order to clear up just who exactly has the rights to this image, then as a person of good faith and honesty, even though I personally have not at any time infringed anyone’s copyright - even from a legal standpoint, I will actually "meet in the middle" - or try to here - and stand by a final offer of $275 to be paid by the end of October just to get this chaos away from me ($275 is based on the minimum that would be awarded legally in court of $200, plus $75 to cover your proposed costs to pursue this - which shouldn't even be pursued to begin with). Given my dwindling health, rising healthcare costs, and being a single mother of three with an income that doesn’t even equal your “amended settlement offer” in one month, I cannot nor will not pay anything more than this especially likewise given the facts of this particular situation. So if paying the $275 will allow peace for me then so be it.
I kindly have given you proof of where I was able to acquire the image in question not just for $10 but also for free. It would only be appropriate if you could reciprocate the gesture and please provide to me the Copyright Registration of the image in question, and the signed paperwork of the artist transferring copyright paperwork to Getty. If this information and proof cannot be provided, I request that all communication cease and I will consider this matter closed. Any further communication by Getty Images, their employees, or any other entity that Getty Images may retain will be considered as harassment and will be reported. But as mentioned should this be proven as a legitimate claim by sending me this proof for my clarification purposes for establishing the true claimholder of the image in question, I am willing to pay $275 postmarked by the end of October - which is a more than reasonable and fair offer considering. I am unable to pay anything more than that amount.
I do look forward to receiving the copies of the copyright registration and artist transfer. I do wish to settle this matter."
While I did give a "reasonable settlement offer" ... notice I added that I won't pay a dime until proof is given to me first. Well, we all know that they will NOT provide that proof; they already refused to give that to me in their most recent letter - I doubt that they will bend this time. I think it's safe to likewise say that they will not accept my amended offer either lol. I'd like to know what legal standpoint they have at this point now as well - considering not only my specific situation but also the fact that I found even just 1 website where it was available for free download. I think that I have safely "covered myself" should this go to court - however unlikely that may be. I don't think the judge would look too kindly upon them after all this. Also notice I didn't tell them specifically what websites I found but did include screenshots. What you can't see is that within those screenshots that I gave them - you can't make out the website address! So they'll have to do their own research and work. I'm not doing it for them.
But we shall see what comes next. Most likely just another threatening letter demanding their outrageous "amount due" and once again they'll refuse to provide proof. I won't know what to do after that other than not respond at all. I don't know where I could possibly file a complaint against them up here in Canada. I will keep you posted on what comes next ...
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