Messages

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Getty Images Letter Forum / Re: Statute of Limitations

« on: December 24, 2010, 12:34:24 PM »

Well, my real world experience involved Masterfile (who does register) not Getty, so I see the situation a bit differently from a Getty recipient, but...

"Incidentally I don't know where Getty is coming from asserting that "enforcement costs" are part of "actual damages." Do they actually say that in their demand letter ? I don't think so. "

It wasn't in their initial demand letter, but in the course of negotiating with them they did tout enforcement costs as justification for their demand amount.

"Do they even go into the period of infringing activity when making their demand? Can they even determine what it is ?"

Yes, they did.  In my case the initial demand was 3x the cost of a license for the period I had been using the image.  It's pretty easy to determine how long an image was being used on a website with the internet way back machine (see: www.archive.org).

"Obviously any argument convincing them of anything making their case weak(er) will help."

Precisely why I'm interested in the SOL.  Masterfile does sue over single-image infringements, so reaching a settlement was what was recommended to me.  Coming up with a fair settlement offer is difficult because there are lots of nuances to how courts arrive at damages (as this discussion clearly shows).  The more arguments this site can provide to people in the same situation I was in the better.

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Getty Images Letter Forum / Re: Statute of Limitations

« on: December 23, 2010, 08:50:43 PM »

OK, I see the point you're trying to get across now.  If I had an unlicensed image on my website up until 2005 and Getty didn't become aware of it and send their letter until 2010, I would still be exposed if the court is using the discovery rule.  Good to know.  However, I don't think any of the stock image companies are scouring the way back machine for infringement... yet.

As far as exposure to damages for periods > 3 years: I understand what Oscar's opinion is, but what I'm asking is how effective is his argument with the stock image companies?  I'm sure they will say that they are entitled to all damages, but is the argument an effective tool in getting them to reduce their settlement demand?

And yes, you assumed correctly regarding what I meant by registration.  I apologize for being unclear.

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Getty Images Letter Forum / Re: ADVICE NEEDED: How to deal with Getty

« on: December 23, 2010, 10:03:26 AM »

IANAL and I haven't used Oscar to represent me, but let me try to answer some of your questions:

If they won't send you the copyright registration then you can only assume that they don't have it.  As you know from reading this site, they are not entitled to statutory damages and attorney's fees without a proper copyright registration at the time you were using their image.  Considering that attorney's fees are upwards of $5000 in such a case, it doesn't make any sense for Getty to sue over a $1000 claim.  As you've stated, their pricing is ridiculous and no way represents the actual damages that would be awarded anyway.  You have two options: 1) stand your ground with Getty and handle the matter personally or 2) hire Oscar or another attorney to write a letter to Getty stating your position.  Once you have an attorney contact Getty all correspondence with you has to go through the attorney.  You're still liable of course, but the letter works because Getty can't bully you directly anymore.  They will see that you're educated and move on to lower hanging fruit.  I don't see any way for them to get around that.

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Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 02:51:24 PM »

As far as Getty goes, the bigger question I see is like you said - could they file a lawsuit 3 years after you take down their images AT ALL?  I think we all agree the answer is no.  This injury rule vs discovery rule debate only seems relevant to cases involving registered images (e.g. where the plaintiff is Masterfile).  It would be interesting to hear from Oscar how effective the argument of recovering a maximum of 3 years worth of damages is with Masterfile.

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Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 12:24:32 PM »

The way I see it, the point Helpi is trying to make is very significant if you're faced with a demand letter for a registered image (i.e. from Masterfile) that you had been using for > 3 years.  If the image was registered when you used it, you must settle or likely face a lawsuit.  The copyright holder is going to demand damages based on the length of time they believe you have been using the image (usually by looking your site up in the Way Back Machine).  If the circuit you are in is using the injury rule and you had the image for 6 years, you are in a better position to negotiate because you are only exposed to 3 years of damages.  Otherwise, if the court uses the discovery rule, you'll loose out on that bargaining chip.

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Getty Images Letter Forum / Re: Getty Letter

« on: December 20, 2010, 04:57:06 PM »

IANAL, but I think everyone agrees that the first thing to do is take the images down (which you've already done).  Then spend some time absorbing the content on this site to get a better idea what kind of a position you are in.  You'll find that the problem Getty has with their letter campaign is that the vast majority of their images are not registered with the US copyright office, which makes it difficult to pursue and recover damages.  Getty will continue to harass you though, so ignoring them will be difficult and not advisable.  My advice is contact Oscar or another IP attorney.

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Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 20, 2010, 04:11:28 PM »

Sure, it seems fair to me if I were a contributor.  However, if you're a letter recipient they will tout their enforcement costs as justification for sending you a $1000 bill for a "retroactive license" when an actual license only costs $200.  It sounds to me like they are in reality passing this cost on to their contributors (or at least a potion of it).

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Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 20, 2010, 11:52:23 AM »

So if I understand Helpi, what that means is when you send Getty a check, they subtract the cost of enforcement (presumably whatever they paid to PicScout, any commission they paid to their "enforcement officer" and their own "enforcement fee" ) before calculating the cut that the photographer is entitled to.  Profitable indeed.

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Getty Images Letter Forum / Re: Getty's position on providing proof

« on: December 12, 2010, 04:00:21 PM »

Oscar, what about the question of who has to prove that the infringement was willful or innocent?  What kind of evidence do courts usually look for?

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Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 11, 2010, 03:36:18 PM »

And a lot of lawyers will discuss the matter with you for free.  The only lawyer I had ever hired before Masterfile entered my life was a real estate attorney when buying my house.  After receiving my letter from Masterfile, I contacted four lawyers and received a substantial amount of advice for free via e-mail.  That alone calmed my anxiety and helped me to look at the situation more objectively.

11

Getty Images Letter Forum / Re: Masterfile employee: 85% of revenue comes from litigation

« on: December 10, 2010, 11:22:10 AM »

I'm afraid that most people who are receiving demand letters are not savvy enough to realize what it really is.  A lot of people are not comfortable negotiating (especially with a gun to their head) and may even be sending a check for the original demand amount without even trying.  I consider myself to be a pretty cynical person, but like I said in my original post, I had no idea how lucrative these campaigns are for the stock photo industry.  This is why we need a site like ELI to expose what these companies are up to.  The music industry and Hollywood get a lot of press about their efforts to control their IP, but these guys have completely flown under the radar and a lot of people who would have done good otherwise are getting blindsided and taken to the cleaners.

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Getty Images Letter Forum / Masterfile employee: 85% of revenue comes from litigation

« on: December 09, 2010, 03:17:04 PM »

Hello,

My company recently negotiated a settlement with Masterfile under circumstances familiar to readers of this website.  A question I've been pondering that has come up on this forum before is: how much revenue is Masterfile and other stock photo companies receiving from these letter campaigns?  My original guesstimate was 20% of their revenue stream; It turns out I was off by a factor of 4.  The key piece of information comes from a presentation given by the "copyright compliance officer" we were dealing with at Masterfile to a Canadian women's organization:

"... she threw out some statistics to illustrate the extent of the copyright nfringement problem, stating that eighty-five percent of revenue from stock photography is not garnered from legitimate deals, but collected from infringement." (See: http://www.womenenter.com/womenenter.com/M.O.M.html)

Everyone negotiating with Masterfile and others need to keep that number in mind.  The person you are dealing with may call themselves a "compliance officer" but in fact they are nothing more than a salesman employing high-pressure sales tactics to get you to purchase a "retro-active licensing fee" for ridiculously over-priced images.  Since such a large portion of Getty and Masterfile's revenue comes from demand letters, I would not be surprised if they pay their representatives a commission on the negotiated settlement amount.

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Getty Images Letter Forum / Re: Just recived this letter

« on: December 07, 2010, 10:28:13 AM »

I agree, Lettered and I would add that it makes no sense for Getty to pursue a $1000 claim if they can't get attorney fees awarded.

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Getty Images Letter Forum / Re: Just recived this letter

« on: December 06, 2010, 11:22:46 PM »

IANAL, but let me try to answer your questions.  These demand letters are a part of Getty's business model.  They've realized that there are a lot of people out there using their images without authorization, so they scour the web to find them and send out bills (they wouldn't make money sending C&Ds).  I like to call it post-delivery sales.  You're liable because the law applies to end-users.  If you can prove that you thought you were licensing the image from a third-party (i.e. with receipts), you may be able to claim innocent infringement, which can substantially lower the amount of damages Getty would receive in court.

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Getty Images Letter Forum / Re: Getty's position on providing proof

« on: December 06, 2010, 02:36:52 PM »

If they went to court they would need to show the copyright registration.  If the image in question is not registered, they will register it before filing suit.  However, my understanding (IANAL) is if the image is registered after you are alleged to have used it, this may dramatically affect the amount of damages they are awarded.  In essence, Getty is keeping you in the dark about whether they have registered the work(s) or not.  They want you to assume that they have it registered so they can get a higher settlement out of you.  But as we know, a lot of their images are not registered.

---

Sorry, I read this again and realized you were asking about exclusive agent not copyright registration.  Either way, I think the same principal applies.  Getty wants you to assume that their agreement with the photographer is solid, even if it may vary on a case-by-case basis.  I view it as a bargaining chip, if they refuse to show you proof that they have exclusive ownership then you offer less unless they pony up.  Either way, if you go to sign a settlement with them you need it to be clear that they own the exclusive rights to the photograph and have the authority to give you a full release.