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Getty Images Letter Forum / Re: Attorney advises to JUST IGNORE THE GETTY & McCORMACK LETTERS

« on: March 14, 2014, 04:38:43 PM »

Jerry,

Thanks for your reply.  I did take down the image right after the first demand letter.

I am going to try to look up the legal term that is the core issue, so that everyone else can get off of the "admission of guilt" bandwagon.

That is a rabbit trail that is distracting everyone!

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Getty Images Letter Forum / Re: Attorney advises to JUST IGNORE THE GETTY & McCORMACK LETTERS

« on: March 13, 2014, 03:11:01 PM »

Lettered, 

No I did not take your responses as an attack.  Varied opinions are to be expected.  Productive discussions are good. 

I guess the point to be made is in trying to give an answer to those that think that if their case goes to trial, they want to be able to prove to the trial judge that they at least made an effort to resolve the matter.  When I told my judge acquaintance this, he told me that the trial judge wouldn’t care if the accused had made a good faith prior attempt to settle out of court.  The trial judge would mainly be interested in the facts.

When he was explaining to me the legal ramifications of a response to Getty vs. no response, I was trying to relate this concept of “you responded because thought you should respond” to the closest concept that I could think of at the time, which was an action that could be interpreted (perhaps incorrectly) as an admission of guilt.  He was not telling me that the concepts were the exactly the same.  I have tried to explain this as clearly as I can, but my recall of his words can not be expected to be exact.  The conversation was about 2 weeks ago.  I was only trying to convey the gist and general points of the conversation, not an exact quote.

Yes, the idea of “...you responded because thought you should respond” is kind of obvious.  If someone does something, it is because they thought that they should do it.  But, if a person is challenged by the question: “Why didn’t you respond?”  A valid and acceptable answer is:  “I did not believe that I had to respond.”

This is, after all, an extortion scheme.  A reasonable judge should be able to quickly discern that fact, regardless of any valid legal position that Getty may maintain.  Nevertheless, the judge must still apply the law to the facts, regardless of his opinion of Getty’s money making business model.  If the accused had made no reply to the Getty letters, that fact would likely be evaluated by the trial judge in the light of the situation being an extortion scheme, and not be held against the accused.

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Getty Images Letter Forum / Re: Attorney advises to JUST IGNORE THE GETTY & McCORMACK LETTERS

« on: March 13, 2014, 01:02:47 PM »

The advice from the retired judge would only apply to the my personal situation, as I explained it to him.  I was not taking the position that ignoring the Getty letters was the proper position to take for all recipients of the Getty extortion scheme.  Every person’s circumstance is different.  It is expected there is a high probability that forum responses will be misinterpreted.  This is the case with mine.  Some readers have totally misunderstood the points made.  For that, I apologize.  It was not intended that ignoring Getty letters would be the “definitive” answer for everyone.

I will not share the retired judge’s name on a public forum, but if one of the moderators wants to PM me, I will tell them in private.  He has experience as District Attorney, Circuit Court Judge, Presiding Judge of State Bar on the State Supreme Court's bar complaint Tribunal; as well as trial attorney of hundreds of jury and non-jury trials over a very long career.  From my viewpoint, considering his background, I thought that I needed to carefully consider that he might be giving me useful and valuable advice.

I would like to clarify one point.  After I explained my circumstances, his advice was to not answer the Getty letters.  I told him that many people thought that they should at least make an effort to resolve the matter, because if the case went to court, the judge would not look favorably on them if they had done nothing.  He said that the judge won’t care whether you responded or not.  This was his opinion.  Yes, no one can definitively say what a judge will or will not care about.  He told me that the judge will mainly be interested in the facts.  Did you break the law?  Yes, or no?  What does the law say?  What is the evidence?  What are the claimed monetary damages?  What is the true market value of the image?  That sort of thing.  The accused would get no brownie points for the fact that they at least made a good faith effort to settle it out of court.

I asked why not get an attorney to write a letter back to Getty?  He explained that there is a legal term that associates action with knowledge of duty.  I asked him if responding to the Getty letters would be like an admission of guilt.  This was my term, not his.  Readers have zeroed in on the false concept that responding to Getty is because you think you are guilty.  This was not what was meant.  He said that responding would be interpreted by the court as you responded because thought you should respond.  You believed that you had a responsibility to respond.  If you don’t respond, it would be interpreted by the court as you did not respond because you did not think you had to.  In this retired judge’s opinion, as far as the court is concerned, there would be no negative implications for the accused, if they had not previously tried to resolve the matter with Getty directly.

In theory, yes it would be preferable to try to settle a dispute outside of a courtroom.  If Getty was open to reason, then it might be work out better to respond to their demands, but as we have learned, they are not.

When I first discovered this forum, my thoughts were along the lines of considering the Defense Letter Program.  That is why I specifically asked this retired judge if I should take advantage of such a program that has direct experience with this exact situation.  The judge’s answer was surprising, and not what I expected.  Yes, it is understood that he does not know all of the information that those on the ELI team know.  I agree that his advice to me does seem to fly in the face of the Defense Letter Program.  It is because the advice was not what I expected, that I thought that some readers on this forum would find it as food for thought.  I stated that I do not wish to engage in a debate over this subject, but I did not expect my points to be attacked by the founder of this forum.  Don’t shoot the messenger.  I was only wanting to share the advice that this retired judge gave to me, because I thought it was worth consideration.

My perception is that this retired Circuit Court Judge can quickly recognize a money making extortion scheme.  Perhaps other judges can also.  That may be one of the reasons he recommended that I just ignore the letters.

From all of my previous reading on this forum and considerable research on the matter from other sources, the following is MY OPINION:

For many people, responding by letter to the Getty extortion scheme, is like why you should not try to mud wrestle with a pig.

1.  You can’t win
2.  It is a waste of time.
3.  The pig enjoys it.

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Getty Images Letter Forum / Re: Attorney advises to JUST IGNORE THE GETTY & McCORMACK LETTERS

« on: March 12, 2014, 07:55:13 PM »

Lettered,

To ignore the Getty/McCormack letters was not the answer that I was expecting from an attorney.  I was expecting the exact opposite.  However, this attorney had no vested interest in my case.  He knew that he would not be representing us, and stood to make no money off of us.  If the opposite were true, meaning that he would be representing us, them perhaps his advice would be for him to engage in negotiations with Getty.  I sometimes wonder about the thought processes that attorneys may go through.  Perhaps it goes something like this:

“My client has admitted he copied an image without permission.  There is no chance that Getty will sue over this.  If I write letters for him to Getty, it will take up a lot of my time, and that process will cost my client more money than if he settles with Getty.  I will just advise my client to settle out of court.”

My statement that is interpreted as ambiguous, was as close an exact quote from the retired judge and trial attorney as I can remember.  He told me that the judge won’t care if I tried to respond to Getty.  He explained that any response would be interpreted by the judge as not in our favor, and that the best response to this kind of letter scheme is no response.  I asked him if a letter response back to Getty was like an admission of guilt.  He said that if we responded, it would be interpreted that we did so because we believed that we had a duty to respond.  Actually, we have no duty to respond.  It would be like if we received a request to transfer money to Nigeria, and we did not respond.  If we were ever asked, “Why didn’t you respond to the the Nigerian money laundering scheme?”  Our answer would be that we believed that we didn’t have to.

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Getty Images Letter Forum / Attorney advises to JUST IGNORE THE GETTY & McCORMACK LETTERS

« on: March 12, 2014, 04:13:03 PM »

This is my first post on this forum, but I have been an occasional lurker since October 2013.

Here is some background on our situation:

My wife, has a very small business, which is barely profitable.  I put up a website for her business around Feb. 2012.

I looked online for a simple image for an illustration.  I used a small thumbnail sized image from a Google image search.  I do not remember exactly where I got the image, but I did not pay for it, and wrongly assumed that if the image did not have a watermark, then it was in the public domain and was free to use.

In October 2013, my wife received the standard letter from Getty Images, addressed to her place of business.  The amount demanded was over $800. 

I immediately removed the image from her website, and began researching the matter, and discovered this forum almost immediately.

The alleged copyright infringement concerns an image designated in the Getty Images Catalog, listing the photographer’s name.  Out of curiosity, I checked the price Getty Images would charge for a one year licence to use this image on a web page in the United States.  Their price was an astounding amount of over $600. 

Searching the U.S. Copyright Office for all copyrights under the name of the photographer, only one work is listed.  That image has a Getty Images number, but that image is completely unrelated to the image in question.

Searching the U.S. Copyright Office for all copyrights for visual materials under the name Getty Images, yielded 131 results.  None of these appears to have any connection with the image in question.

Searching the U.S. Copyright Office for all copyrights for visual materials under the name “The Image Bank”, yielded no results. 

Searching the U.S. Copyright Office for all copyrights for visual materials under the title that Getty Images has attached to the imagine in question, yielded no results.

Searching the U.S. Copyright Office for all copyrights for visual materials under the keyword, document number, or registration number for the specific Getty Image number yielded no results.

The conclusion is that no properly registered copyright for this image exists.

Using the free online search tool, TinEye, there were 61 worldwide results for an image match.
Apparently this image is relatively popular and is used as an illustration on websites for similar businesses.  Did any of these 61 users of this image purchase an exclusive rights licence?  Probably not.

In fact, purchasing a “Rights Managed licence” for this image from Getty Images, would not guarantee that the purchaser and only the purchaser would have exclusive rights to use the stock image during the license duration.

A second standard cover letter, came from Getty in Nov. 2013, with a copy of the initial Oct. 2013 Getty letter.  A third standard form letter, dated Feb. 2014, came from McCormack, and demanded over $1300.  In Mar. 2014, my wife received an email from Lauren Kingston with McCormack, demanding the same amount of over $1300.

Based on what I have read on the extortionletterinfo.com forums, we have not responded to any of the letters or the email.

I have considered the Oscar Michelen's Getty Images Defense Letter Program, which would cost us money we don’t have to spend.

I have a paid membership with Pre-Paid Legal, and was considering the possibility of letting my Pre-Paid Legal attorney fire back a letter to Getty, informing Getty that we had legal representation, and requesting from Getty, evidence of a valid and proper Certificate of Registration issued by the United States Copyright Office of the image in question.

It is anticipated that Getty Images will only respond with a statement similar to the following: 

   â€śSince formal legal proceedings have not yet commenced, copyright registrations are irrelevant at this time.” 

It is my understanding, that without a proper Certificate of Registration issued by the United States Copyright Office, Getty Images cannot be awarded statutory damages and legal fees.  Damages would be limited to “actual damages” which would be fair market value or what the market would pay for the image, not the grossly inflated amount that Getty Images wants to charge for a Rights Managed Licence.  Fair market value would likely be something around $49.

A letter from my Pre-Paid Legal attorney would probably temporarily end the letters from Getty and McCormack to her place of business, but I don’t think my local Pre-Paid Legal attorneys want to participate in a 3 year letter writing exchange.  My Pre-Paid Legal membership only covers a maximum of 2 attorney letters a year.  If we are sued, then we would get representation from Pre-Paid Legal and a certain amount of Pre-Paid Legal attorney trial preparation hours would be covered.

The main reason for this forum post, is that I had an interesting long conversation with a very experienced Mississippi trial and tort attorney about this matter.  He was sort of my captive audience for over 4 hours and I think I beat the subject to death with him.  He is in his 80's but still has a sharp mind.  He has a background as a prosecutor, a defense attorney, and as a trial judge.  The following is the gist of what he advised:

Ignore the letters.  If even one response is sent back to Getty, it will tell Getty that they have some potential to get money and Getty will redouble their efforts to instill fear with their letters.  The act of a response to Getty will be as if we painted a target on our backs.

The Getty letters should go in the same place that is used for advertisements for Viagra, Nigerian money transfer scams, and other junk mail.

If Getty actually sues, only then should we respond.

He agreed that the Getty letter writing campaign is a form of extortion.  The reason Getty only attacks the small business owner, is that Getty knows that a certain percentage of victims will succumb to their own fear of being sued, and just roll over and pay Getty to be rid of the persecution.  The increasing demand amounts and short response deadlines are a form of psychological warfare.  Some victims will pay an inflated amount, fearing that it would be better to pay a high amount now, than let the demand amount increase even higher in the future.  This thinking is sort of like picking the lesser of two evils.  Getty knows how to exploit this part of human nature.

Of particular note, is that this very experienced trial attorney and judge, explained that the thinking that many people have, which is that they should at least make a good faith attempt to resolve the matter, so that if the case goes to trial, the judge will know that you did not simply ignore Getty, is not correct.  The judge will not care if you ignored Getty or responded.  The judge will only be interested in the facts.  He explained, in legal terms, that if you send a response to Getty, the court will interpret that your act of a response was because you believed that you were obligated to respond.  This is akin to an admission of guilt, or at the very least, an admission of responsibility.

The converse is also true.  I you do not respond to Getty, it is because you believed that you had no duty to respond.  If Getty sues, and if the case goes to trial, and if the judge asks why you did not respond to the Getty letters, then you can tell the judge that you did not believe that you had a duty to respond.  You did not respond, because you did not have to.

Getty will not likely sue over such a small amount.  There is not enough money in it for them.

I asked this very experienced trial attorney and judge if I should get my Pre-Paid Legal attorney to fire back a letter to Getty, even though it would not cost me anything.  He said no.

I asked him if I should use the Getty Images Defense Letter Program.  He said he wouldn’t recommend that either, because it would only encourage Getty to engage in an long, drawn out negotiation.

So the bottom line is this:
IGNORE THE LETTERS FROM GETTY AND McCORMACK. 
ONLY RESPOND IF YOU ARE SUED.

It is extremely unlikely that Getty will sue over a small amount.  It would cost Getty more in attorney fees than they could potentially get out of the victim if Getty prevailed in court.  There is more potential monetary return for Getty’s efforts by using fear and intimidation in the form of an unrelenting stream of letters.

So our decision is to continue to ignore the correspondence from Getty and McCormack.  In the extremely unlikely event that Getty sues us, then we will respond by using an attorney.

I think that the advice from the experienced judge and trial attorney was sensible, and useful enough to post on this forum.

It is expected that this legal advice may create some controversy.  It is not my desire to engage in a debate about the merits or pitfalls of ignoring the Getty letters.  My motivation for sharing this information is to solicit the learned opinions of others on this forum, and perhaps create some productive discussion.