Copyright Infringement Claim

[WCR]

I took over a website for a friend (Who is a REALTOR) a few years ago. He received a copyright infringement claim from Picscout for an image in his header.

The problem: I don't think I was the designer working on the site when the header was made. It doesn't look like something I would have designed. I took over the site when she passed away, so I can't really ask anyone.

So, anyways, the image is of a horse. More specifically, this horse: https://media.lcservices-inc.com/v1/Reports/v4ePJoJqB7Nnksy8IbbEEw2/Catalog

The horse's head looks to appear in the header (The header is a flash object). I can't verify for sure, but they look identical to me.

He received this letter:
-------------------------------------
License Compliance Services on behalf of © Design Pics Inc

605 Fifth Avenue South, Suite 400
Seattle, WA 98104
United States


8/11/2014 5:05:22 PM


Dear **************,

It has come to the attention of Design Pics Inc. that an image or image(s) represented exclusively by Design Pics Inc. is/are being used or have been used for online promotional use by your company. According to our records there is no license issued to your company for use of the image(s). Notwithstanding, we realize that a valid license may have been obtained, which is not currently showing in our records, and therefore we are seeking clarification of a license having been obtained by your company or someone representing your company for the use of the image.

To view the image(s) in question together with the usage(s) found on your company’s website (http://www.************), go to: https://lcs.designpics.com/***********.

Using a Design Pics Inc. image without a valid license constitutes copyright infringement and places you or your company in violation of the Copyright Act, Title 17, United States Code. Whether intentional or not Design Pics Inc. is entitled to seek compensation for infringing uses and is committed to protect the interests, intellectual property and livelihoods the contributors with whom Design Pics Inc. represents. We believe that prompt cooperation will benefit all concerned parties.


To resolve this matter (Case Ref: ****-****):
_____________________________________________________________

If a valid license has been issued for the image(s) in question and was for whatever reason not discovered by Design Pics Inc.:
Please email the license information to [email protected] within 10 business days of the date of this letter and include the invoice number of the license purchase.
If the image(s) was/were validly licensed on your behalf by a third party please provide us with the company name, contact person and phone number.
If a valid license proof cannot be found:
You must immediately cease using the image(s) in question.
You must either confirm that no other uses of the image(s) other than the above noted use, or provide detailed information on such additional uses.
In addition, a $600.00 settlement payment should be received within 10 business days of the date of this letter for the use as noted above. The payment options are detailed below. Ceasing the use of the image(s) does not release your company of its responsibility to pay for the image(s) already used.
Please note that failure to make payment within 10 business days will result in withdrawal of our Offer Of Settlement.
If you would like to continue to use the images in question:
You are welcome to email [email protected] or call +1 855 387 8725 and we will assist you with obtaining a valid license.


If you believe you have mistakenly received this letter, please contact us by email at [email protected].

This letter is without prejudice to Design Pics Inc.’s rights and remedies, all of which are expressly reserved.

Sincerely,

License Compliance Services on behalf of © Design Pics Inc.
[email protected]


 
Remittance Payment Options (settlement fee: $600.00)

_____________________________________________________________


You can remit your payment online on:
https://lcs.designpics.com/********

Remit Check Payment To:

License Compliance Services
Picscout Inc.
605 Fifth Avenue South, Suite 400
Seattle, WA 98104
United States

Please include Reference Number ****-**** with check payment.


Alternatively, you may contact us at +1 855 387 8725 or Pay by Wire Transfer to:

Bank of America
Picscout Inc.
Bank Account number: 138110423135
Routing (ABA) Number: 125000024
Swift Code: ********* (Redacted this, because I have no clue what it is)
Address: PO Box 25118, Tampa, FL 33622-5118

Please include Reference Number ****-**** with wire transfer.

No virus found in this message.
Checked by AVG - www.avg.com
Version: 2014.0.4716 / Virus Database: 4007/8017 - Release Date: 08/11/14

--------------------------

What should we do?

[stinger]

I am not an attorney but the letter sounds like a phishing expedition to me.

You should read the forum to educate yourself before doing anything.  Rushing would be playing into their hands.

If it were me, I might ignore the letter completely.  It depends on what "I took over a website for a friend a few years ago." Means.

[WCR]

I do a few websites for REALTORS that are friends (I've known some of my "clients" since the 1990s). The E-Mail was sent to the owner of the site (We'll call him Steve, but it's not his real name). Steve received this letter. He doesn't work with computers very well, so he just forwarded it to me.

I took over his site a few years ago (Can lookup the date when I get home). The last web designer (Well call her Melissa, but again- not her name) did the site until she was kicked badly by a horse. She was rushed to the hospital, but passed away. She was a very nice person, but not the best with computers. Could she have pirated an image? Maybe. I can't say either way.

I get along real well with Steve. He spent hours on end to save our property when a relative went to the hospital. The hospital billed incorrectly, and to make the story short, we still have our house because of Steve.

If there is a fine to be paid, I'd do it for him. It's the least I can do for all he did for us.

We re-uploaded everything to a new FTP hosting site when I took it over. Ironically, we were redesigning the banner. I thought it was kind of ugly: http://i1017.photobucket.com/albums/af296/AvantA6/header_zps56e42852.jpg

I blocked out the names, but you can see the horse fades away. The back half isn't visible. The front half does look like the image in question to me, though.

I have a new header designed, and am assuming that I should just upload it and dump the old one.

$600 is a lot of money for me- especially for something that I'm not sure I did. If I did use that image, who knows- it could have been on a public site, licensing could have changed, it may have been in the folder of stuff from Melissa,....

It was sent to Steve, though, so I don't know if it's phishing or not. I just can't afford a hefty, multi-thousand dollar lawsuit. I know the quick action plays into their hands, but I'm at a loss for what to do.

What would you guys do?

[stinger]

Again, you should read the forum and EDUCATE yourself.  My thinking is if you contact them and pay, they will be happy - for now.  But if they find any other skeletons in Steve's closet, they will go after them hard because by paying them, you will have given them hard evidence that:

• Steve and you exist and are real people that can be pushed around
• Steve and you paid once, so you may have the money to do so again

If you give them any kind of push-back, like asking for proof that the copyrights were registered, asking for the sales history of the images to support their price, etc., they will revert back to chasing Steve.  You need to remember that they are NOT interested in doing what's right.  They are interested in collecting money based on their threats to Steve.

I, for one, would not give them a dime without knowing the status of the copyright of the image.  I would think that a court would find for innocent infringement, but I doubt they would ever go to court over something so small.  The costs of filing are greater than they are likely to receive.  An innocent infringement judgement could be as low as $200.  You should read Greg Troy's thread, "An Experiment against Getty . . ." on this forum.

[WCR]

I've read the Experiment thread. I'm a little confused on the the 90 day registration period. The image has been on the website for a long time (At least a couple years). So, according to that logic, We're (Steve, technically) is only liable for the retail value of the image? Design Pics shows their licenses as being $130. So, Steve would owe Design Pics $130, correct?

How do I find out if the image was/is registered with the Copyright office?

--------------------------------------------
This is from the other thread:
"If it was registered before you started infringing, then he can get statutory damages and his legal fees.  The registration grace period, as I understand it, allows the photographer to register his image withing 3 months of publication and still have the same options as if it were registered since publication.  If its been 3 months or more since first publication (by the copyright holder) and the image isnt registered there is no way to recover statutory damages and legal fees .... only actual damages."

So if it's been up there for a few years, and has not been registered (or was just registered), they can only sue for the value of the image... $130???


Is this flowchart still valid? http://s1366.photobucket.com/user/mcrasterhd/media/copyright_zps71ae7918.jpg.html

Is my logic correct?

@Stinger Thanks for pointing me in the (I assume) right direction.

Any help would be great! What would you do? Pay the $600? Buy an image license for $130? Ignore these people? Flee to Canada? 

[Robert Krausankas (BuddhaPi)]

looks like we have a new copyright troll working with picscout, that now does "billing out of the same building as getty...interesting scenario..will have to look into this a bit further as time allows..

[WCR]

Same address? That's interesting.

Now, I looked through the DesignPics catalog, and can't even find the horse image in their catalog!?

Thoughts?

[stinger]

If it were me, I would ignore these people because they are working out of the same building as Getty.  That leaves me to believe that they are an offshoot of Getty, possibly a way for Getty to pursue their "claims" under a different name and get Getty's name out of the anti-troller's sights.

The reasons I would ignore them include:

• Getty often doesn't have their paperwork in order.  Their copyright registrations and right to pursue infringers on behalf of their artists, often does NOT stand up in court.  You will see examples of this if you continue reading through the forum.
• By observation over the last 2+ years, it appears to me that Getty pursues their collections through what I would consider a pyramid process.  They have junior people chasing claims and trying to dig up as much information as possible while trying to collect.  This is what I call Phase 1 - Phishing.  Give them no info and they don't have any idea of what they might stand to collect.
• If they learn enough to believe they have someone with a conscience and money, they then turn up the heat and might bring in the more experienced collectors.  Phase 2 - Pursuit.
• If they get too much push back, they threaten with their legal team.  Phase 3 - Send in the dogs. 
• Since they don't let that legal team pursue anything through the courts, if they fail, they threaten to go back to Getty and recommend litigation. Phase 4 - Ping Pong
• They pass the ball back and fourth this way for a while, hoping to catch their prey in a moment of weakness and collect a check.

By trying to be responsive to their initial request, victims tend to fall into their web.  It is tough to play the ignore them game when you are trying to do a solid for Steve, because they will continue to pursue Steve.  If they can play one party against another, they are very difficult to negotiate with.  You can offer them a settlement, and they will say it is not enough and that they will pursue Steve.

Your situation is a little more complicated than mine because you have to find a solution that both you and Steve can live with.  It just strikes me that in the worst of all possible worlds, if this did end up in court, no judge would find anything worse than innocent infringement based on the fact that no one alive today had any idea they were using someone's copywritten photo.  That severely lessens the worst case scenario's they will throw at you while going through their collection dance.

Remember, this advice is pure speculation of what I would do, knowing what I know now, if I were in your shoes.  Treat it as if it is worth what you paid for it, $0.  Get educated.  Do what you think is best for you.

[WCR]

What concerns me the most is that I can't even find the image. If DesignPics has exclusive marketing rights, wouldn't they want to market the image?

I used a couple of reverse image search programs, and found hundreds of instances of this image. None were from DesignPics, though.

I just can't tell if this is even a legitimate E-Mail. Of course, the last business day for us to anything according to the letter is Friday. Naturally.

Is there any way to prove if DesignPics has the image available? How do you just "ask them"?

[Robert Krausankas (BuddhaPi)]

they sent an email! bottom line is they don't even know if they sent it to a legimate address, email is certainly not a way to handle legal matters.. I would not be surprised if Getty does not own this company as well, hell they own a bunch of other srock site already, in addition to picscout.. a simple search of corporate records would tell us who owns what.

[Robert Krausankas (BuddhaPi)]

Heres some info that you need to look into..the photo site is a canadian company. so they would need to sue you in your state ( highly unlikely).. You need to find out the following.

is the image registered with the US copyright office?
if so to whom?
when was it registered? was it before or within 3 months from the date of the first letter?
does picscout have an exclusive contract to attempt to collect payment on alledged infringements?
is the image available on other stock image sites?
is the image available on free download ( screen saver sites)
does the photographer sell the image on their own site
does the photographer has an exclusive contract with designpics?


getting this info will help you decide how to move forward.

[WCR]

I did some research.

First, DesignPics does claim to have rights to the image (sent an E-Mail from a fake account, asking about possibly using it).

The President, Rick Carlson, said in an E-Mail "Thanks for reaching out to us, and yes, this is one of our horse images from the Irish Image Collection"

I can't find anything on the Copyright.gov website. But, then again, I'm not very good with their website.

I don't know if Picscout has an exclusive agreement to collect payments.

Not on other stock sites, but on a bunch of Screensaver sites and the like.

It's on the Irish Image Collection site: http://theirishimagecollection.com/comp.asp?MediaID=1853526 I can't tell if it's for sale or not.

Don't know if the DesignPics contract is exclusive or not. But, I can't find it anywhere else.

I hate to be a pain to all of you, but any thoughts now???

[Jerry Witt (mcfilms)]

I ran it through TinEye.com and that image is on over 350 sites. Most are wallpaper sites, but it can be rights managed licensed from Media Bakery -- http://www.mediabakery.com/IRH0010119-Galloping-thoroughbred-horse.html -- for about $250.

So as long as Design Pics Inc. and Media Bakery are not the same company, neither has an exclusive on the image. I think you tell your friend of your research and tell him it is very unlikely they will file a suit and if they do, and if they win, they will likely be awarded $200.

Hopefully you can talk your friend down and convince him to ignore the email and possible letters that will come his way.

[Zorra]

Hi there,

We also received a very similar email on July 22/14 and then a letter on Aug11/14 from Design Pics Inc.

However, I just don't think this is legit. Here's what a little digging revealed:

Their email is sent from a Seattle company. Their website CONTACT is located in Edmonton. And the company they want you to pay is yet another name: Picscout Inc.

If you mail a cheque, they want you to mail it to Picscout in Seattle. But if you pay by wire transfer, the bank account address is listed as a PO box in Tampa, FL

For the mailed letter, the return address is in New York, but the prepaid 'stamp' is Wichita, KS.

So WHO is this company and WHERE are they located/registered?? Looks very fishy to me.

This is the email I sent back to them:

*****
Hello,

Perhaps you could first send us proof that you indeed hold the license for this image? This means a copy of your original agreement with the photographer who owns the rights to the image - not a link to a webpage.

We routinely purchase our images from iStock, Shutterstock, Fotalia and Dreamstime - which we have been buying from for about 10 years.

Perhaps we should report you for running a fraudulent scam site? I notice that the cow image in your site header actually belongs to iStockPhoto...

IF you are a legitimate service and you do own the rights to this image, or have SOLE representation of the photographer who supplied the image (as many photographers upload to numerous agencies), I suggest you send me the documentation requested above.
*****

They did not respond to my email. They just sent a similar letter snail-mail a few weeks later.

As someone who has been doing business online since 1995, the "proof" weblinks they send and the Design Pics website could be programmed in a week or so. Get a programmer in India and definitely a con worth running (financially).

Also, I just found this post from Oscar Michelen in another thread:

We have become aware of this new trend - Getty (acting through PicScout which it bought for $20 Million a few years ago) has been sending out these letters for various companies including stockfood.com It really is just a variant of their regular copyright program. All the info on this site that applies to Getty is applicable to this issue.

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/stockfood-com-extortion-letter-getty-images-what-to-do-any-help-apprec-3905/15/

Hope that helps.

[bravodirt]

I recently received a similar letter. However mine was a very odd situation. I am using a plugin that pulls photos and displays them from Instagram based on whatever hashtag I want to show photos from. So basically a Instagram user took a photo of a supposedly copyrighted photo and posted it on Instagram. My website then showed that photo for probably 30 minutes (popular hashtag) but yet I am the one they are trying to get pay $500. I am curious from the others that received this letter, what ever happened? Did you ignore it, pay it, how did you respond, and how did they respond? Seems like a scam, but I did call and talk to a human, so I'm not sure now... Thanks!