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Messages - Oscar Michelen

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1216
Getty Images Letter Forum / Re: My Reply from Getty Images
« on: August 06, 2008, 12:30:07 PM »
Thanks for the post!  You may want to refer whomever responded to you form Getty to the prior post on this forum from "gettyvictim120" who received a full refund of his payment to Getty  as Getty was apparently caught "double-dipping" by his State's Attorney General. If Getty is claiming that "reputable" companies don't file claims that get dismissed or are proved meritless then it should look at the docket sheet for New York commercial claims cases to see how often that occurs.  

But to provide you with a practical response - let me say this. In any copyright or trademark infringement lawsuit, the plaintiff must first allege and prove its copyright or trademark.  So I respectfully disagree with Getty's legal position on this issue. When Getty states:

Getty Images asserts, for the purposes of settling this matter--and can further assure you under penalty of perjury--that all copyrights related to the images in question are owned by our represented photographers.  

that does not prove that it registered the copyright. They are two different things.  The minute I take and develop a photograph I own the copyright to that image, the same way that I own the copyright to a song as soon as I compose the song. There is no legal requirement for me to register a copyright in order for me to be able to enforce a copyright. But in order to be eligible for statutory damages over and above actual (out of pocket) damages I would need to have registered the item.  I don't dispute that the photographers that Getty represents own the copyrights to the images, I dispute whether they have registered the images entitling them to the relief they are seeking.  
Similarly, I  take issue with Getty's other statement in their response to you:        

the demand presented is the minimum Getty Images would expect to receive in a matter such as this.
     

That statement is meaningless. It does not state that the demand presented is the minimum Getty would be likley to receive in a successful outcome of the case. It says it is the minimum they would expect to get.  But what is their expectation based on?  Is is accurate?  Is it based on the law? or just their hope? That it does not say that it is what their lawyers tell them is the likely outcome is very telling. They choose their words carefully as one would expect when someone is engaging in debt collection.  

Finally, in response to Getty's statement:

for us to bring a meritless claim against your client would be irresponsible and quickly lead to the diminished credibility of our good name

Getty must not be surfing its name on the net - otherwise it would come up with many pages -especially ours - that talk about the company negatively based on this recent practice of theirs. There are forums similar to ours in the UK, Canada, and Australia. So if they were truly concerned about their reputation, they would start dealing with people fairly and stop this over-aggressive and over-zealous behavior.


Please feel free to give me a call at my firm's national toll free phone number 1 800 640 2000. I would be delighted to talk to you and give you a free consultation on how to next proceed.  I am available anytime after 2:30 EST today (8-6-08)

1217
Getty Images Letter Forum / Re: Template Monster and Getty - my story
« on: August 04, 2008, 05:37:54 PM »
Dear Getty Victim 120:

Thanks for the post! Congrats on getting your payment back. What apparently happened in your case is that Getty was trying to "double-dip" - that is they had reached a settlement with Template Monster and were trying to get double damages from the end user as well. It is imperative that people not just roll-over and pay the demanded amounts. That is what Getty Images is counting on. That Getty "put you into collection" does notmean anything, it is just another scare tactic. They would have to institute suit aginst you, win, enter a judgment, and onmly then would they be a judgment creditor against you. Since you never ordered anything from them, they can't just invoice you and say you are in collection. All they have against you right now is a "claim." They allege that you did something wrong and owe them money.  That's it, just a claim. A claim that they would have to prove in court if they decided to seriously pursue it.  The text of your conversation with them is frightening. That a major corporation would be making statements like this in an attempt to get a quick settlement on a claim is really troubling.     I commmend you and your State AG for following through and getting your money back. Please tell us your home state so I can send them a letter requesting information about how they are dealing with the Getty issue and to thank them for taking action on it.  Let us know when you get the check (and if it clears!).

1218
Getty Images Letter Forum / Re: Is this sound legal advice?
« on: August 04, 2008, 05:27:10 PM »
Dear scoopsdad:

Thanks for the post.  Yes, it is certainly a good idea to contact your local Attorney General. They may already have received a number of complaints about Getty Images and they do not charge for help! Of course, it can be difficult to get a gov't bureaucracy to move on anything, but they generally don't like improper collection techniques. Since I can't post every State's Fair Debt Collection practices, go to your attorney general's website. Most have them directly online.  Filed complaints would also help to maintain a record of Getty Images' abusive techniques.

With respect to the rest of your post you are essentially following the advice I have been giving my clients with one exception - rather than ignore it and hope it goes away, I advise sending a simple letter demanding Getty prove its copyright or license. Without a registered copyright, they can only get actual damages at best and considering that most of these images are available on their own site for $50 that would hardly make it worth their while.  

I have not heard from someone in my home state yet (New York) but once I do, Intend to recommend they file a complaint with NY's Attorney General Andrew Cuomo. A secondary letter to Washington State's AG (their address is available on this site) couldn't hurt either.

The whole purpose of this site is too inform people of their options and to try and balance the scales.  Getty Images is engaging in bullying tactics like the 800 pound gorilla in the room. And it has been working because most people get scared or nervous when they get their letter and their first reaction is to call Getty.  Once they do, Getty will work out a settlement.   If collectively, all letter recipients start demanding proof of Getty's claim of right and sending a message to Getty that they are not backing down and paying their demands, then Getty will be placed on the defensive; that will be heightened if in addition, State Attorneys General begin to get involved.

Once again, thanks for the post, and keep up the good fight!

1219
Getty Images Letter Forum / Re: Has anyone been to court
« on: July 24, 2008, 04:54:30 PM »
Dear MRL 72:


We have been drafting a strong but courteous response to Getty on behalf of our clients at a minimal cost just so the demand letter does not go unanswered. We are trying to take a proactive position on this site to get the best resolution possible which in some cases may be litigating the matter and in other cases, settling the matter. I also recommend that you take down the images (in an exercise of caution and not as an admission of liability) as soon as you receive the letter and replace them with stock photos. Then we send a letter asking Getty for proof of ownership or license of the image while we review their settlement demand.  The monetary demands bear no relation to the cost of the license for a photo so sometimes in the letter we may also ask them for proof of damages,etc. In any event, please feel free to contact me at my toll free number 1-800-640-2000 for a free consultation if you would like to chat about this further.  Thanks for the post.

1220
Getty Images Letter Forum / Re: Webmaster in Florida
« on: July 24, 2008, 04:42:41 PM »
Dear Webmaster:

Thank you for your post. I would not count on ignoring the letter as Getty will not ignore it and will likely follow up.  I of course agree that Getty asking for these amounts of damages for images that can be licensed for $49.00 is over-the-top. In the course of my involvement in this mattter,I have not seen Getty actually prove that they exclusively own either the images or the licenses to the images. It is very possible that the photographers that sold/licensed the rights to Getty put them on other web pages that were accessed by webmasters.  While we are all watching this issue very closely as it has great potential impact on the internet community, at this site we are trying to take a more proactive position so that our clients are ready inthe event Getty takes the next step.

1221
Dear Extorted:

I am sorry to hear about the stress this Getty issue has put you through. That one client who settled seems to have paid about what most entities that have reached an agreement with Getty have paid.  Very few people are asking Getty to show proof of their license or arrangement with the photographer (who is normally the actual author of the work or holder of the copyright).  As a website developer, you may be in a different legal position than your clients.  Either way, the issue should not be ignored and your clients should look to this and other sites that are trying to address the issue and provide some assistance.  Thanks for the post.  

Oscar Michelen

1222
UK Getty Images Letter Forum / Re: Has anyone been to court
« on: July 13, 2008, 01:21:51 PM »
Dear Scrumpers:

I can't speak for the UK, but here in the States I have not found an instance of Getty going to court over this matter. In the States, it is unlikely that these matters would end up in small claims.  Getty is not only seeking the monetary damages of  US$1,000 they are also lilkely to sue for "declaratory relief" That is, a judicial order establishing/declaring their right to the image and that the defendant infringed upon it. This would entitle them to file in Federal Court under the Copyright Act. It would hardly send shivers up a small web developer's spine to have to appear in small claims court. It would get a different reaction however to be served with a Federal action in the United States District Court.  

I can't get you advice on British law, so you should try to get advice from an attorney in your area.

Oscar Michelen

1223
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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