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Topics - Oscar Michelen

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16
A recent post on this forum suggested I update everyone on the status of the Getty Demand Letter Program. So while I try to coordinate a new audio update with Matthew, I thought I would just do a quick post to tell everyone what is going on. The Letter Program is still going strong as thousands of web site owners and developers continue to receive the Getty Demand Letter.  Our site has gotten some attention from the media as both the LA Times and Seattle Times did stories on the Getty program and mentioned this site.

We've learned of no new lawsuits filed by Getty since our last post.  The most interesting thing to have changed is that in the last few months, the demand in the letter has gone down from the traditional $1,000 or $1,300 per image to $750 and in some cases even $450.  I think this is likely in response to some of the efforts done through this site.  I think is terrific and a major change in Getty's position. I am glad that Getty is realizing that there is no basis for the amounts they demand and that they have begun to adjust their demand letters accordingly.  Now if they will negotiate reasonably against that initial demand, we may have some real progress here. Let's see what happens.

Masterfile continues to expand their program.  When it started, they had one individual doing all of their correspondence and negotiation.  Now the program has 3 "Compliance Officers" all of whom continue to send out letters to those allegedly found to have Masterfile images on their sites. Masterfile has increased the demand amounts in their letters from around $2,000 per image to now between $4,000 and $6,000 per image. No explanation was given for the increased amounts.
So, our position with Masterfile has really not changed - it is best to try and reach an amicable settlement with them since they have registered their images and would be entitled in a court of law to attorney's fees and costs, as well as statutory penalties.

17
Getty Images Letter Forum / Beware! Corbis Demand Letter Now Prevalent !
« on: February 14, 2010, 11:40:11 AM »
So digital image giant Corbis, owned by Bill Gates, has entered the infringement arena in a big way. We have been contacted by several businesses who have received strong demand letters from Corbis' attorney, Jefferey Loop of NYC white-shoe firm Carter, Ledyard. In typical Microsoft fashion, Mr. Gates has decided to use a machine gun to swat a fly. The demands are around $4-$6K per image and they give a very short leash or threaten litigation. I will keep you posted as our case progresses.

18
So - Just wanted to update everyone about a recent Federal case in a suit filed by Masterfile that at first seems like a legal victory for Masterfile (since they were awarded nearly $6,000 in damages) but which in fact vindicates the position we have been espousing on this website.  This may get a little wordy and legalistic, but stick with it as it is important for those who are facing claims brought by Masterfile and Getty and others.

Facts of the Case

The case is called Masterfile Corporation v. Country Cycling & Hiking Tours By Brooks, Inc. (even the title is wordy). From now on in this post I will refer to Masterfile as "MF" and the Defendant as "CC" MF sued CC, a small bike touring business for having four MF images on its website without authorization. The images were on CC's website for over 3 years (which is the statute of limitations period under the Act anyway)  CC got the usual letter demanding huge amounts including a warning that the infringer faced up to $150,000 in statutory penalties since MF had registered the images with the US Copyright Office. CC immediately removed the images from its website. Apparently the parties tried to settle pre-litigation, but they were too far apart.  MF would not go below $5,880 and CC offered only "a nominal sum."  So Masterfile filed a Federal Copyright Infringement claim in the Southern District of New York.  

CC did not hire a lawyer, nor did it contest the lawsuit. MF entered what is called a default judgment, meaning they win automatically on this issue of liability (fault); however, you still have to prove your damages at a hearing, called an inquest. CC only sent in a letter explaining their circumstances (which will be discussed later). While this was not proper under the Federal Rules, the court accepted it since CC was pro se (unrepresented by counsel). MF filed affidavits and other documents seeking $5,600 in statutory damages per image.  Not far from what it usually seeks in its demand letters, by the way.  Let's analyze the court's decision written by Magistrate Judge Frank Maas.  

Statutory Damages        

The court conducted an analysis of MF's claim for statutory damages. Let me first remind everyone that one only gets these damages if the image was registered with the copyright office.  While the court acknowledged that the Act allows up to  $150,000 it quickly pointed out that the court has "broad discretion" in awarding these damages and that "Ultimately, the statutory damages should bear some relation to actual damages suffered." The court noted that MF admitted that its licensing fee for the images would have been $1,120.00 per year per image. It also pointed out that even in statutory damages cases, one factor the court shold consider is the defendant's "individual culpability" in the infringement. This is our first area of vindication since we have been arguing with MF and Getty ("G") that even though innocence is not a defense to infringement, courts will look at the defendant's culpability in assessing damages.  MF and G refused to acknowledge this position - one point for our side!  

The Court then went on to state that "There are several problems with MF's proposed statutory damages."  

First problem: Since MF registered all four images at the same time in one compilation (as they always do - they never individually register images) this counts as ONE INFRINGEMENT!! The Court cited the "unambiguous language" of the Act  which states that a compilation that contains separate and independent works of art counts as one work for infringement purposes.  Another point for our side!! We have been trying to get MF to concede  this point for nearly a year now and they have refused to acknowledge it essentially talking in double-speak and and claims of it being "a gray area."  Well if it was gray before (it wasn't) it ain't gray now.  To quote Judge Maas: "Therefore for purpose of calculating statutory damages, [CC] infringed only one work."

Second problem: CC used a professional web designer. The court stated that since CC did so, "it had no knowledge it was using copyrighted material." The court also noted that CC immediately removed the images from its website once it became aware of the issue. Judge Maas said that these two factors suggest "that any damages awarded should be at the low end of the spectrum."  Another HUGE point for our side!!! (Notice that I add one exclamation point for each point in our favor as we go along so we can keep track) This really is very important for a number of reasons. We have always advised folks to immediately remove the images and that this will be looked on favorably by courts. Nearly all of our MF and G clients employed web designers or template companies to get their images for them and design their sites. The image companies have argued that this did not make them "innocent infringers" since they would still be liable for their "agents" acts. When I pointed out that these are not agents, but independent contractors who were paid for their services I was told that this made no difference. Oh well, now we know that it does.          
 
Third Problem: The court found that CC is a small company with gross revenues of about $16,400 per year and that almost none of its business comes through its website. In fact, all of its income comes from three law firms that book cycling programs. (That apparently none of these firms were willing to help CC out with a little bit of free legal advice or representation is unfortunate, but anyway I digress).  The court then stated that had CC known what the licensing fee was "it is highly unlikely that it would have spent $1,120 per year for a license, rather than looking to the public domain for artwork."  This is another significant point for our side!!!!  OK let me explain why this is so important to our position on G cases especially - All the images companies argue that their licensing scheme should be the basis for an "actual damages claim"  My position has been that this is just the starting point because it was a 2001 case called Davis v. The Gap which established the notion that a plaintiff could get a "retroactive license fee" as "actual damages" but in that case the court also said that crafting too large a retroactive fee would not be correct since the infringer would not have likely paid that amount. So we have been arguing with G especially that this part of the Davis case envisions a negotiation between the plaintiff and defendant meaning that a court will look at the fee to see if the infringer would have paid that in the market place or gone elsewhere. This new MF case says exactly that!!  

Fourth Problem:  CC does not need to be deterred. The court noted that given the circumstances of this case (which by the way are nearly identical to the circumstances of all other cases) a high award is not necessary to deter CC from infringing anew nor is it necessary to further the goal of general deterrence of others.  We have directly made this argument almost verbatim to the image companies and sometimes they have nearly laughed back at me asking "How could you say this would not have value as general deterrence" (only a lawyer could chuckle as they uttered that sentence by the way).  Now they know how I can say it - cause a Federal Court just did!  To quote the Harry Potter book series: One point for Gryffindor!!!!!

The court awarded $1,120.00 in statutory damages to MF because (1) CC was unaware it had infringed (2) It infringed only one work since  all the images came from one compilation (3) It acted appropriately once it learned of the problem.

Wow - a Federal lawsuit over a $1,120.00 claim. I think had I represented CC I could have gotten this down even further by arguing to the court that MF's licensing scheme should just be the starting point and that the fair market value of a stock image is what should apply. Also, while the court briefly mentions the section in the Act that allows a court to reduce damages in cases of innocent infringement there is no discussion of applying it to this case even though the court found CC was an innocent infringer.

Legal Fees

The court then went on discuss legal fees.  It is this exposure to potential legal fees that makes me strongly encourage my MF clients to reach a settlement with them.  But even this section was good for our side.  The court noted that an award of legal fees is "generally awarded to a  prevailing plaintiff" in a copyright infringement case involving registered works (you can't get it in cases involving works that were not registered at the time of the infringement). The court also noted that MF should get legal fees because it had to file suit since CC only offered a "nominal sum" prior to litigation. Well - this is really good for us! Presumably if CC had offered something at or over the $1,120.00 MF ended up winning, then suit may not have been reasonable and fees would have been unjustified. We routinely advise offering more than $300 per image on MF claims so that had we represented CC we would have come in at  or over the $1120 and likely avoided having any legal fees awarded. Another point!!!!!!    

The court conducted an analysis of the the time spent and costs incurred and awarded $4,860.00  So MF's lawyers made over 4 times what MF did by bringing this case.  You think this is going to be encouraging to MF?  I hope they read this case carefully and be guided accordingly

Permanent Injunction

The court went on to address MF's request for a permanent injunction - a court order stopping CC from ever infringing MF's copyrights again.  This should be a ground ball for MF right?  WRONG! The court denied this routine request as CC's owners are semi-retired and immediately removed the images so that it is not likely that they would ever infringe in the future.


Conclusion    

This case clearly establishes that our position is correct on so many key points from innocent infringement to value of damages to how courts will look upon small businesses caught in this trap. I only regret CC had not come to my firm first as we may have been able to reduce this judgment even further. In any event, I sincerely hope that the various image companies take this decision to heart and begin to realize that coming closer to our side of these issues will save them time and effort and that litigation (and therefore the threat of litigation) may not get them the great results they seek!

19
Just wanted to alert everyone to the status of the class action lawsuit filed against Masterfile in Nevada. It appears that the Plaintiff settled by paying Masterfile's claims for an unstated amount! Plaintiffs in turn dropped their class action.  I am trying to get more details about what occurred.

You may recall that the lawsuit claimed that Masterfile was seeking damages for infringement of images it had allegedly licensed to a web template designer.  The claim was that while Masterfile may have later retracted or refused to renew the license to the designer, the company was still seeking damages for lawful use that occurred during the license period.  

I would be curious to know how much the plaintiff paid and why the sudden turnaround.

20
Getty Images Letter Forum / Free Photos: Fully Legitimate and Legal
« on: August 06, 2009, 04:11:38 PM »
Hey everyone:

Very often Matt and I are asked about where to acquire digital images from in the post Pic Scout, Digimark, demand letter era. Matt even put up a post on the subject.  I thought it would be good to make everyone aware that Uncle Sam is a good source.  Government works are not copyrightable as they belong to the public. So you can go to usa.gov and search the Graphics page for excellent pictures on a variety of topics. I also found a site that provides links to several government sites that have free photos for download:

 http://www.dotgovwatch.com/index.php?/archives/8-The-Best-Copyright-Free-Photo-Libraries.html

Even Getty can't compete against Free!

21
Introduction
I thought it was time I responded to some of the concerns and posts on the Imageline issue.  I want to make clear that this post is for informational purposes only and does not constitute legal advice. Every legal situation is different and needs to be analyzed on an independent basis. First of all, all sides need to keep a more civil tongue.  Name calling, labeling, insults, etc, have no place in this matter and we should try to address these issues in a careful and considered manner. I for one will not engage in this behavior nor try to keep up with Mr. Riddick's tactics.  He has made many derogatory comments about me and Matthew Chan on posts on this site and in private emails to us.  He has questioned my abilities and my motivations and I will not grace his comments with a similar reply. My reputation speaks for itself and the scores and scores of people we  have helped in the digital image arena for very little money are enough testament to my motivations. In fact, my motivations for being involved in this are spelled out on the home page of this website. In repeated emails to those who he believes infringed on his intellectual property, he often talks about how much intellectual property lawyers cost and how expensive it would be to litigate these matters or  try to get a lawyer to even respond to his claims. So how would I, a partner in a litigation boutique in NYC, be in this for money by charging $150 for a letter and $150 per hour for litigation? Just google my name and you will see some of the high-profile cases I have been involved in all areas of litigation. It makes no sense to claim that this is a money-making scheme on my part. It makes even less sense to claim that money somehow motivates Mr. Chan, who created and moderates this site. He gets no portion of the $150 clients pay me for a letter to Getty and we just recently put up a paypal donation button (at the suggestion of one of the folks who posted I might add) which helps defray the costs of maintaining the site. Matt should be given credit for creating a forum for discussion of an issue that is of critical importance in the digital millennium and for giving information on that and other topics. Rather than attack him on his motives, point out if he (or I for that matter) has stated anything in error or falsely accused anyone of any impropriety. Lets try and stick to facts.

 A brief summary of Riddick's claims

Riddick is the CEO of Imageline, a Virgina corporation that apparently owns the copyright to a collection of clip art and graphic images. He has begun a campaign, similar to Getty's, of sending out notices to people whom he believes infringed on his intellectual property by digitizing the images into embroidery designs. Some of these folks then sell these designs and some people give the designs out for free on websites. He demands very high amounts for settlement and often asks the alleged infringer to sign over the designs to him for which he will "credit" them against their claim.  I have seen emails where he offers to give a $200 credit per design for example. He seems to rely on strong language and on the copyright law's allowance of up to $150,000 per infringement in statutory damages along with attorneys fees and costs. The effect of the email is to make the receiver feel as if they have very little option because the law is so cut and dried.  From the numerous posts and emails Matt and I have been receiving, it appears that many people are agreeing to his demands and that many are also very concerned about their businesses and their exposure.                    

Is Imageline correct?

Yes and no. Let's assume for the moment that Imageline has registered the clip art that someone has used to create a digital embroidery design. That use would infringe on Imageline's intellectual property.  It would not be a defense to the claim that the design was a simple one that anyone could have come up with independently (though his claim to owning flag designs needs to be examined more closely as flags are generally not subject to copyright, though a particular stylized version of a flag may be).  It would also not be a defense that the infringer did not know the design was copyrighted either because it did not contain a watermark or copyright notice or because the infringer paid fair market value to another entity for the design. The Copyright Act of 1976 does allow a registered copyright holder to collect statutory damages and attorney's fees as well as litigation costs in successful copyright lawsuits. The law does allow up to $150,000 in damages per infringement. That's the "Yes" part

The "No" part is that it is highly unlikely that a court will award that level of damage in most of the cases I have seen. The users ceased and desisted  in using the image once notified, did not make huge amounts of money off of the image and were "innocent infringers." Innocence plays a role in the damages portion of any copyright lawsuit. First of all, courts take that into consideration when assessing statutory damages. Second of all, the copyright law allows judges to reduce ALL statutory damages to $200 per infringement in cases of innocent infringement.  Courts often do that. In fact , courts have repeatedly done so in lawsuits brought by the RIAA over illegal downloading of songs. Any certainly people are more aware that music is copyrighted than they are aware that clip art is copyrighted. It should also be made clear that Imageline could not get both statutory damages and its actual damages.  It must choose one over the other. If it chooses its actual damages  then it would be entitled to receive the fair market value of a license for the use of the image PLUS recovery of the actual profits the user made off of the image. It could not receive attorneys fees and costs as part of actual damages.

Of course, in any lawsuit, the alleged infringer could implead (bring into the lawsuit) the entity that sold it the offending image    as being responsible for causing the alleged infringement.  

In any lawsuit brought by Imageline, it would first have to prove its ownership of the image (easy if it has registered it) and that the design involved actually came from that image or substantially came from that image.

What should one do if they receive an Imageline claim?

First, evaluate if the image they claim you used infringes on the image they claim they own. Is it substantially similar, Did they send you proof of registration of the image?

Second, figure out how, when and from where you acquired the image you used for your design. Contact that entity and forward them a copy of Riddick's communication asking them.

Third, ascertain how many times the design was used, sold given away.

Fourth, contact an IP attorney. Don't just rely on the information provided here. Have a trained set of eyes review Riddick's claim against you. Call a local IP lawyer and ask what his/her consultation rate is (many are free) You can find one by using your local bar association for a referral or by going on Avvo.com or lawyers.com.   I will agree to extend my Getty rate ($150 per hour) to this matter and will accept a four hour retainer to start).

Fifth, send an email back to Riddick advising him that you are evaluating his claim and considering retaining counsel. If you hire an attorney he can no longer contact you directly. Do not engage in a nasty back and forth with him as it will get you nowhere.

Will he sue?

There is no way to predict what a person will do.  If it is true as has been posted here by others that his corporation is in default on some issues, then he will have to correct those issues before he can sue. He will generally have to sue you in your home state as it might be difficult for him to get jurisdiction against you in his home state. The suit would be brought in Federal court.  

 If you don't want to get a lawyer, the law allows you to represent yourself.

Conclusion

The best approach for anyone receiving one of these claims is to review the posts on this site and familiarize yourself with the issues. Refrain from a back-and-forth with Riddick and get some legal advice from a qualified practitioner in your area.

I will be glad to address new posts on this and I will be emailing this directly to Mr Riddick as well to give him an opportunity to respond

22
Please note that though I am a lawyer, this summary is presented for informational purposes only and not as a substitute for legal advice. I say that because every case is different and may present different defenses and liabilities. If you feel that something in this summary is incorrect or inappropriate, please send me a private message and I will evaluate whether the summary needs to be changed. Similarly, if you would like to add additional information, please DO NOT POST to this thread.  Either send me a private message asking  me to add the new information or start a new thread or post the info to one of the many current threads. This summary is derived from various other posts so if you are truly interested in the whole picture, take a look at the threads and read through the appropriate posts. Also, you can listen to the two recorded conversations on the home page between myself and Matthew Chan, this website's founder.

I. What's It All About?

Some time in 2005 - 2006, imaging companies like Getty and Corbis formed partnerships with a company called PicScout. PicScout developed a technology whereby bots trawl the internet, attach onto sites and compare images on websites to the images on the Getty and/or Corbis catalog.

When they find a match, they send the information to Getty or Corbis who then search their records for a license for that image. Finding no license, they then send out a demand letter. The rumor is that PicScout and the image companies split the revenue from the program, 50-50, but we've found no proof for that. From here on, I will address only Getty's pattern and practice.

The Getty Demand Letter

A copy of the letter is posted on the homepage. Generally, it tells you about the images found on your website and then shows you a screenshot of the image along with the copy from the Getty catalog where their image is located. They routinely demand anywhere from $1,000 to $1,400 per image. They provide a list of FAQ's which set forth that US Copyright Law is strict liability and lack of knowledge is no excuse. They provide a tight deadline for you to respond or they threaten that they will take further steps.  A second letter then comes with a shorter deadline. If that is ignored or if no settlement is reached, they send it to a "collection agency," NCS Recovery, based in Sarasota, Florida.

NCS Recovery

NCS steps up the communication stream by calling , emailing and repeatedly mailing you letters and demands. NCS began this process by saying they were attempting to "collect a debt."  When we became involved and began responding to them, they changed their position and now say they are attempting to "settle a claim."  While this may seem insignificant, it has two important repercussions. The first is that when you are  advised that a creditor is trying to collect a debt, then, under the law, anything you say to that debt collector is admissible in court. The opposite is true if you are engaged in "settlement discussions." Federal Rule of Evidence 403 and most states' laws protect settlement discussions and hold that what is said during settlement talks is not admissible. The second benefit is that they cannot report you to a credit agency or do anything to harm your credit rating. This is always the favored sword of any debt collector. Just because Getty and then NCS send you an "invoice" which you did not pay, does not make this a debt. You never ordered the images from Getty nor agreed to pay their inflated prices.  It is merely a copyright infringement claim which you are contesting. Once you tell NCS you are not paying the amounts requested, they will send the file back to Getty.

Getty's Legal Position

Liability

Getty's letters and NCS's follow-up all advise that their is no defense to copyright as the Copyright Act of 1976 makes copyright infringement a strict liability offense. Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. They are also correct in stating that the law does not require registration.  Once a work is created the creator obtains the copyright to it automatically. There is no need to post a copyright notice or a watermark on the image. They do not need to send a "cease and desist" letter first. The Digital Millenium Copyright Act only requires a cease and desist first in cases where a search engine or web service provider like Google, Yahoo etc., is accused of allowing others to download or post copyrighted material. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they do provide the boilerplate text of the agreement which grants these rights.

Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Recently, I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the company's that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted.


Damages

There are two general types of  damages awarded in copyright cases: statutory damages and actual damages. Statutory damages allow courts to award large numbers per infringement and also award attorney's fees and enforcement costs. In order to obtain these valuable statutory damages, the "work," in this case the image, must have been registered with the US Copyright Office. As of this writing, about 1% of Getty's catalog has been registered.  That means in about 99% of the cases, Getty cannot claim statutory damages and may not even be able to get automatic Federal Court jurisdiction, which also requires registration. A copyright holder seeking actual damages, can only get the lost value for the image; they are not entitled to incidental fees and costs.
 
How you obtained the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office, a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount.

Getty chooses to ignore the law in this area; they have tried all kinds of arguments to support their position of demanding $1,000+ per image:

(1) First, they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:

(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:

(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:

(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average cost of a Getty license as being their basis for the claim.

I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to, visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.   

What to Do?

The first thing is to relax and realize that your legal position is not as bad as Getty makes it out to be.  There may be helpful facts and defenses on both issues - liability and damages. Try to ascertain where the image came from and locate any records you have to show how you got it onto your website. Can you figure out how long it was on the site? Try to see if you can find everywhere your contested image is available and get some details of how much it would cost.  You should take the image down from your site as soon as possible. You should contact archives.org (The Wayback Machine) which takes constant screenshots of all websites and ask them to delete the saved screenshots of your website. You should clear out the Google cache for your website as well. You then have three basic options:

(1) Ignore it:  Many folks who have been contacted about a single image have chosen to ignore it. As a lawyer I cannot recommend this tactic. Getty and the NCS will also step up their contacts with you and it can get annoying and disruptive.But, it is a fact that Getty has not to our knowledge ever sued anyone through this PicScout program so folks who have ignored it have not been sued yet either.

(2) Answer Getty yourself. This site and others put up enough information so that  a sophisticated person can respond intelligently to Getty and their cohorts.

(3) Retain counsel. Hiring a lawyer assures that you will no longer be personally contacted by either Getty or NCS as they cannot communicate with someone who they know are represented by counsel.  It is for this reason that I decided to offer the $195 letter program as a way to give people a method of responding to Getty that is low cost and effective. Please visit the homepage to see my explanation of the letter program and to understand that this is not a money-making project for me or my  firm.


Conclusion

Knowledge is power. Don't be put off by the threats and allegations.  Learn about the issue by going through this and other websites. We get contacted every day by many folks who are concerned about their businesses and cannot afford these exorbitant demands. This has been going on for about three years and there has been no litigation; there is no court decision in Getty's favor or against its legal position.  That may be coming soon, but for right now it has been a letter exchange and we have not seen anything in Getty's response which we feel effects our legal position. I hope this has been informative and helpful to those of you dealing with this issue.

23
Getty Images Letter Forum / Getty and NCS Changing Strategy?
« on: September 17, 2008, 02:24:14 PM »
Dear Readers:

Just wanted to give you some news from the frontlines on this ongoing Copyright Battle with Getty Images and their "collection agency" NCS.

Our letter campaign was begun about 7-8 weeks ago and we now have been retained by over 30 small businesses and not-for-profits. I can tell you that the number of "contacts" and "questions" are in the several hundred from all over the world - the UK, Australia (almost daily), The British Channel Islands, Belgium, Germany, Finland and almost every state in the United States. It has been very heartwarming for us to see how this site has helped give people some direction and courage that they are not facing this issue alone. Even those who have not retained my firm tell me they have been helped by the information we have presented.  That is great and we will keep this up and keep everyone posted.

 While Getty has not responded to the letters, NCS has. Their response frankly has been very professional, non-antagonistic and business-like.  While they are willing to negotiate the amounts demanded, they would not accept my premise that Getty should only be entitled to actual damages of $49 per image. They have referred those cases back to Getty. We await to hear from the mothership.

What is interesting is that I have seen a visible change in the way Getty and NCS are handling these claims since we began.  NCS used to send letters and notices stating that they were a collection agency attempting to collect a debt and threatening to put people "into collection" Now the letters state that it is a "settlement demand" and an "attempt to resolve a claim." Already, this language will make people more relaxed than the "into collection"  language they used to employ.  I have to believe this change came about after they read my post on the topic on this site and having seen this issue addressed in my letters to them.  Who care why they changed ,its just great that they are taking a softer,more correct approach.    

Getty too has changed its position since our little website got up and running.  In response to an email sent by a reader of this post about copyright registration Chloe from Getty stated as follows:

[While copyright registration is a prerequisite to bringing an infringement action in court, we typically try to settle these matters without litigation and therefore do not make a practice of pre-registering our copyrights (although we do so in some instances). Copyright registration is also a prerequisite to seeking statutory damages in court, but we are simply seeking our actual damages and registration is not required to do this.]

Here Getty is making two huge admissions: (1) that they do not have a registered copyright for most of the images (in fact I think its closer to none) and (2) they are not seeking statutory damages!! That means no attorney's fees! Actual damages are all they can get.  We would have a strong argument that $49 per image is their actual damages.  

Finally, another reader of this site posted about a contact they had with a Getty employee in Chicago. According to the poster, this employee admitted that the $1,000 - $1,200 per image they are claiming is an arbitrary figure generated by a computer program and not a statement of their actual damages.  As anyone who has listened to the recorded interview on this website knows, we predicted this was the case many months ago.
 
So it is clear that we are in our on small way impacting Getty's campaign. It is critical that we keep track of all these changes in strategy  from Getty and NCS.  It may soon be time for affirmative litigation against Getty and NCS for their practices.

24
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.

25
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

26
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.

27
Dear Matthew:

Thank you for including a link to my Avvo response on the Getty image subject.  I think your website is a thorough, well-written site that will help many individuals and corporations who have received a Getty or Corbis letter. I also liked the letter you prepared in response to Getty's demand letter.

You are also correct that in order to support the kind of damages Getty is asking for -or indeed to sustain any damages at all- they will need to prove that the user "knowingly" used the copyrighted image without license.That will be impossible to prove for end-users who merely purchased a web banner or website template from a third party provider.  

Finally, I want to further commend you on linking the Chilling Effects website to yours.  Chilling Effects is a site I read and refer to often.  It helps keep me abreast of ongoing concerns and issues in the ever-changing minefield of internet law and the First Amendment.

I represent a number of individuals and companies in the entertainment and publishing field and they have real concerns regarding the content they post and distribute over the internet, particularly those clients with business in the adult entertainment industry. But even those clients of mine in mainstream entertainment have been concerned over aggressive prosecution and litigation in "conservative states."  

Chilling Effects is a one-stop site that even experienced attorneys can retreive up-to-date information on what's going on across the country.  It will be very interesting to see where Getty and Corbis go from here. Please keep me posted on the progress of your case and I will let you and your readers know of any new information or results I come across. Thanks again and keep up the good work!

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