Feel sick! Lovely Email from Getty! Please help

[Kelly]

Hi there, so glad I came across the forum, and I really hope someone can help me as I will definitely me contributing to the Forum if that is the case! (I'm UK based - I hope I have put this in the right area)

Stupidly - I have started up a business and have also a Cashmere website. Now I know that I am  in the wrong here if no active license can be found for the image. (I had a young girl help me with the website blog - who claims she got the image elsewhere on the web) Problem is I generally do not have £750 to give to Getty and it is over double the cost if I was to purchase the image.

I have paid for images through IStock before, so assumed this is the account she would have used.
Regardless, the business is not earning money from the Cashmere side ( I am a freelance digital marketeer) but I keep the site open for portfolio reasons mainly (I don't earn enough for it to carry itself currently!)

I received a email from them with the image print screened, saying they need to see an active license.
With that I felt sick! I am still trying to get to the bottom of it all but I really doubt there is one! The image that the intern put onto the blog was of extremely low quality - the site does not get much traffic at all apart from the team going on there every so often. I took the image off straight away - shocked!!

- - See Below :

TO RESOLVE THIS MATTER - (Case Number: 380106631)

You are requested to take action within 14 days of the date of this email, as follows:
•   If your company has a valid license / authorization for the use of the imagery, please email the license purchase / authorization information to: [email protected]

•   If your company does not have a valid license / authorization for the use of the imagery:
o   A £750.00 settlement payment should be remitted (see payment options below).
Please note, we are only charging the average licensing fee for commercial use of the rights-managed image(s) found on your website. Getty Images has incurred additional costs of $400 per image related to the pursuit of this matter; we are currently waiving this cost, as we understand this unlicensed use may have been unintentional.

I simply cannot afford £750 - I can barely support myself currently. I saw an email online that states about pushing fair market value. (As this would have cost me under £319 to purchase) I don't even have this!! But I could manage to borrow it perhaps.

This is what I was going to respond with after looking through things, but I just need some advice if possible as I am so scared they are going to take it further and I don't have that money!
Just another huge hurdle to jump over after just starting my own business, I am so upset and I do understand it is my fault, but it was unintentional, I just really hope I can get this down.

I am scared to send them this however without some feedback first - I have already emailed and grovelled, but just got the above emailed to me.

-----

Dear Anne (Compliance Team)

As I have mentioned prior in the email of the 7th May. We are checking into this and all I can do is apologise if this has indeed been the case. Reading through your latest email; whilst I accept that if we did use this image without the correct licensing, this would have been mistake on our part, it would have been done so by mistake and the photo would have been sourced elsewhere – not from the Getty website, as it would have been completely unintentional. The website currently is used as a website portfolio, whilst this does not give me the right, I would just like to mention that if there is no license found for this photo, the resolution is of low quality. It is also on a blog post where the only traffic it receives, is by the 3 people that are working on the website. 

Whilst we are still looking into this our end, I thought it would be best to seek advice on this matter, due to the settlement offer being double the cost of the proposed license as checked on your website and after we have also analysed very similar images on the Getty website.


27/05/2015

Copyright Compliance Team
Getty Images Inc.
101 Bayham Street
London, NW1 0AG, UK

Getty Case Number: #380106631

To Whom it may concern:

Thank you for your email dated 26/05/2015 notifying Duck Soup Designs Ltd (“Duck Soup”) that the website www.shopducksoup.com may have used an image represented by Getty Images (“Getty”), without authorization.

If the alleged copyright infringement did take place, be assured that it was entirely innocent and unwilling. The website is actually used for website design portfolio purposes. However, until this matter is resolved, the potentially infringing image has been removed from the Website as from April 2015 and any other location on our server, including any server backups.
As a proposed licensing fee does not determine copyright infringement damage awards while admitting no guilt or wrongdoing, we are willing offer reasonable settlement based upon the fair market value. As noted in Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. 2001);

“Courts have construed “actual damages” by examining the fair market value of a license fee that the copyright owner would have obtained for the infringer’s use of the copyrighted material” . . . . “The question is not what the owner would have charged, but rather what is the fair market value.”
We have found dozens of nearly identical or similar images that could easily replace the image at issue here. In some cases, the photos are available for a fee while others require credits. Below find some of the many functionally identical images from comparable stock photo sites. All prices listed are for sizes equivalent to the image in question, approximately 10MB. This also includes the offending image license pricing.

•   “Woman washing hair in bathroom sink” (available on [GettyImages.co.uk] for [Price £319.00]:
 http://www.gettyimages.co.uk/detail/photo/woman-washing-hair-in-bathroom-sink-high-res-stock-photography/53289370
•   “Woman washing hair” ” (available on [GettyImages.co.uk] for [Price £319.00]: http://www.gettyimages.co.uk/detail/photo/woman-washing-hair-high-res-stock-photography/53288973




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[stinger]

My advice to you:

• Do not correspond with them via email.  It only makes their life easier.  Force them to use registered mail.  It drags things out and leaves a real record.
• Read as much as you can on this forum about Getty.  The more you understand how they work and what they do, the less angst you will feel about what happened.
• Understand that you can try to explain what happened, but they don't care.  The people you will be corresponding with are likely paid on how much money they bring in.  In the past, they have shown themselves willing to say anything to collect fees.  They will likely ignore whatever excuses you put forth.  So why bother.
• Your having removed the offending image has accomplished one of Getty's goals.  They need to show photographers that they are policing images they license.  Good job.  This also makes them far less likely to sue you.  It also shows a court that as soon as you found out about the mistake, you took action.
• In the U.S., the cost of filing a case like this is more than they are likely to win by filing.  Ergo, they usually don't file.  What they do is threaten to file, I call it using the law to extort funds from the weak who are willing to pay.  There is a risk to ignoring them, if they do choose to file.  But they rarely do.  Again, read more.  Educate yourself and you will feel better that yours is not the only organization to make this mistake.
• Recognize that, at least in the U.S., many judges are onto Getty's game.  I expect it is the same in the U.K.  You will find some experiences of U.K. people on this forum as well.

[codeman]

Firstly take a deep breath and don't panic.

I had a letter from Getty demanding over over a £1000 for a small poor resolution image over a couple of years ago.

My advice is do not respond to the email/letter because if you do they know they have hooked a live one, Getty do not care about any mitigating circumstances they are just after your money and send the settlement demand letter to scare you into giving them money without any proof they have the copyright of the image.

They do not charge an average fee as they have claimed they bump up the price to try and screw you for every penny they can, in my case they were asking 10 times the actual license cost.

Bear in mind it is up to them to prove that you have infringed and to do that it would have to go to court, don't do their work for them by admitting anything in writing, email or by telephone.

Before paying anything they would have to prove to you that they own the copyright or the exclusive rights to mange it, therefore demand that they provide you a copy of the agreement between themselves and the photographer (redacted only where necessary).

If you have to put anything in writing make sure you send it recorded delivery and unless they send letter to you recorded delivery I would ignore them.

They set an artificial deadline to panic you into paying up under threat of legal action, the best thing you can do is slow the process down and makes it more expensive for them and therefore not worth pursuing.

If you ignore their letter they will eventually pass it to a debt collection agency (Attradius) to further try and intimidate you into paying up but as it is not a debt they cannot do anything.

When Attradius contacted me I said I was not prepared to discuss until I had spoken to a solicitor however these people are trained to trip you up and get you to agree to pay the money (they get a cut of it if you pay up) so stonewall them and make it as expensive as possible to chase you.

The only response to every question they asked was responded to with the same answer, they will keep on and on trying to wear you down but all you have to do is stonewall them with 'I will have to discuss this with my solicitor'.

The last contact I had from them was over a year ago.

Like you I was worried sick when I got a letter from these reptiles but after reading up on these forums I realized that Getty is trying it on, remember they have never successfully sued, although they like to give the impression they have.

Remember don't panic and don't get stressed over it.

[erika1959]

Hi,

Is the best advice still as here - not to respond to demand letters?  I'm UK based and recently received a demand letter from Pixsy.com.  I was about to reply with a response highlighting a number of similar photos on stock websites and their prices for use (far less than 1/20 of the fee being demanded), when I came across the responses on this thread which suggest it is better not to respond at all.

What should my course of action be in 2017?

Many thanks!

[Robert Krausankas (BuddhaPi)]

DO NOT  RESPOND, DO NOT ADMIT GUILT!!  this only helps them and their case..if they want to bring you to court, MAKE THEM PROVE THEIR CASE!... keep reading get educated, before doing anything...deadlines are designed to get under your skin and to make you react, they mean NOTHING!

[erika1959]

Thank you - I hope I'm doing the right thing, but will just try to relax 

[Greg Troy (KeepFighting)]

Robert's advice is sound based on past experiences.  Make sure you have removed the image and any others you do not own or have a license for from your site and server.

The letters are designed to scare you and make you feel the way you are feeling, read and get educated, you will feel better.

[erika1959]

Just received a second notice letter from Pixsy - I ignored the first as advised here. There's what I imagine is the usual threat - "pay up now or we'll bring in the lawyers and the original demand will be off the table".

Do I still ignore? I'm guessing the answer from you good folks here is guess, but I just want to check - call it virtual hand holding if you like

Thanks in advance.

[erika1959]

Just received a third letter an "escalation" notice a week after the second. Is this the normal pattern? The threat is to ass the case to a "local attorney" (the use of language there gives it away that the email hasn't been prepared locally,as we don't the term attorney here in the UK, as does the fact that the last email was sent at 11pm UK time)

At what point does it become necessary to engage with these people?  When I receive communication from a solicitor/lawyer (who will merely be acting as a strong arm man), or is this just more bluff? Do I need to talk to these guys/debt collection agency,albeit just to stonewall them, or can/should I simply I completely ignore all communication?

[Greg Troy (KeepFighting)]

With places like Getty yes, it is normal to receive a letter "escalating" to the legal department.  Getty would even have the "law firm" (cough) of McCormick Law start sending out threating letters.  I don't think I've read anywhere here where Pixsy has really sued anyone over a single image.  If someone knows of a case I'm sure they will add it here.

[erika1959]

Anyone received a live telephone call from Pixsy? I've just screened a call from them. Is this standard practice?

[victim2]

I have to say the advice given here to ignore the claim is very high risk and completely counter to the ethos of Civil Procedure Rules which encourages parties in a dispute to engage with one another and try to reach an out of court settlement.

If you ignore a legitimate claim, you will only be ahead if the claimant gives up. If they go ahead and issue a claim in the High Court then lack of response from a defendant will count very much against that defendant.

I realise many on here have said that Getty's policy is to bluff with never a real intention to issue a claim. However given that the universal reaction is to ignore the claim, then Getty will sooner or later realise it has no option but to follow through on its threats. If it does not take court action then it will not be able to  enforce its copyright and if it cannot enforce its copyright then nobody is going to pay it a licence fee. This is a multi million pound corporation, they are not stupid people, sooner or later Getty will be forced to bring court actions and if they do, do you really want to be a defendant in a High Court Action ?

The best advice for Copyright infringement claims is the same advice where you are faced with any other form of legal claim for damages. If the claim is legitimate, then your lowest cost option is to reach an out of court Settlement. Contrary to advice on here, I would suggest you argue your case well and certainly challenge quantum , however try to seek an out of court settlement. jaw jaw is better than war war.

[Robert Krausankas (BuddhaPi)]

Not every case should be  ignoted, but many of them can be, in many cases Getty simply sends an email, as they have no name, no address or no "person" to contact directly, they get this info from the domain whois mainly, sometimes they get info form the offending site as well.. Naturally they can't file a claim against an email address.

[Matthew Chan]

Actually, we do tell people to negotiate and settle the matter if people need certainty and closure.  In a broader sense, the numbers that are stated in the letters are overinflated and designed to have wiggle room.

However, rightfully or wrongfully, many victims do not want to pay anything but a low or zero fee. By virtue of that, they are forced into a more aggressive non-payment position which includes "ignoring" or "going dark".

And even if one were to stand their ground, it is always good to have a response on file of why you refuse to settle. Many times if the terms of settlement is unreasonable or disproportionate, the other side will compromise. However, this is all premised on someone's ability to negotiate and take the risk to take a stand.

The best advice for Copyright infringement claims is the same advice where you are faced with any other form of legal claim for damages. If the claim is legitimate, then your lowest cost option is to reach an out of court Settlement. Contrary to advice on here, I would suggest you argue your case well and certainly challenge quantum , however try to seek an out of court settlement. jaw jaw is better than war war.

[victim2]

I would agree with Mathews  point on wiggle room. Bringing an action in the High Court is a lot of work for the claimant and thus I am sure most if not all claimants , would prefer an out of court settlement , even at a significant discount.  They will naturally claim at the higher end of what they consider reasonable.

How much they can claim depends  on various factors including the normal selling price of the work in question, the extent of the use and the behaviour of the parties, both in relation to the infringement and their behaviour during litigation.

My own personal view, and unfortunately I have no evidence to back it, is that there are two types of claimants, those who intend to pursue the claim and those who are bluffing and have no intention of ever bringing a claim.

If a claimant were the latter type then I can see that it they may be tempted to issue a vastly exaggerated claim because it is never going to be censured by the courts. 

When considering whether a claim is exaggerated, one cannot just look at any given figure of X GBP and say whether or not it is exaggerated. It all relates to the value that that particular work is normally sold for plus any aggravating factors. Most Copyright Infringement Claims involve photographs and the value of a photographs in general can vary wildly from free, to a few pounds to thousands of pounds for a single image.

Now the normal licencing costs may be a starting point but there are other factors to be considered as well, eg has the defendant also altered the image, removed a copyright notice, meta data  etc  etc. In the UK the IPEC has awarded 20x the normal Value of a work ( Absolute Lofts South West London Ltd vs Artisan Home Improvements Ltd &  Darren Mark Ludbrook  [2015] EWHC 2608 (IPEC) )  Thus I personally , would consider a claim exaggerated if it was in excess of 20 x the normal value of the work, unless there were exceptional circumstances. ( eg the defendant made a lot of money from the infringement )


The figure mentioned of 10 x the normal value of the work is not necessarily exaggerated, however to achieve it court, the claimant would have an awful lot of work to do and would have to show that the defendant was particularly outrageous or made a lot of money from the infringement.  If it were to go to court, I think if the case was a fairly standard infringement and not particularly outrageous then the court would likely award a lower amount. I would not see it as exaggerated per se but merely the starting point for negotiations. This is just the way litigation works. As defendant your starting point would be the normal licencing cost of the work. Having a starting point of Zero is not helpful in reaching a settlement and would almost certainly  have a negative influence on damages if the case does go to court. Whatever the starting point and whether you are a claimant or a defendant, you should expect to move your position nearer your opponent during negotiations.

In all the case judgements I have read, and I have read an awful lot of them, no defendant has ever been found liable for copyright infringement and then been awarded zero damages, indeed the EU Directive 2004/48/EC  on the enforcement of intellectual property rights, states that the courts must award "at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question". The Directive is online and is essential reading for anyone involved in IP litigation within the EU. It also takes precedence over UK statute law -

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32004L0048R(01)&from=EN

Article 3 of the above states that damages must be "dissuasive" which indicates that they should be rather more than the normal value of the work. Copyright Infringement would not be dissuaded if copyright holders were forced to undertake time consuming litigation, only to be awarded what they should have been paid without litigation. Thus almost all of the IPEC SCT cases I am familiar with have resulted in damages significantly more than the normal licencing value of the work, typically in routine cases 2x to 6x.

One point I should mention, is referring to defendants in general as victims is unhelpful. As with a large proportion of Civil Litigation, both sides may regard themselves as Victims. From a legal point of view the Victim will be the one who has suffered loss due to the unlawful conduct of the other party. Where one is a defendant in a case where ones own conduct has been unlawful, a more apologetic and reasonable negotiating stance is likely to achieve a better settlement outcome , or ,  should reasonable negotiations fail, would be looked on more favourably by the court.