June 21, 2008

Getty Images
601 N. 34th Street
Seattle, WA  98103

Reference #:  4930098
Case #:  867947

Dear Getty Images:

This letter is in response to the letter your company sent regarding an allegedly infringing image on our website banner.  You have brought to our attention that an image in our web banner actually belongs to a professional artist/photographer named Martin Barraud and does not belong in the public domain.

First, I thank you for bringing this very important information to my attention.  I am treating your letter with the highest regard and attention.  As President, I have personally taken upon myself to write this letter to you.  This matter is not being delegated to anyone.  This is a very serious situation and demands my full and prompt attention.

Second, I cannot apologize enough for this unfortunate circumstance.  It would be an understatement to say that this letter was quite shocking to me especially when you consider that we, as book and audio publishers, tremendously value copyrights and intellectual property rights. 

Third, because we are book and audio publishers, this incident is tremendously embarrassing to me as the publisher for my company especially when we take such care in the books and audio titles we produce.  We fell victim to unscrupulous web graphic designers in India.  Despite the fact that this is very embarrassing, I also understand that the only way to peacefully resolve a problem is to acknowledge your issues and your concerns.  Better for me to be personally and professionally embarrassed than to have this matter be unnecessarily blown out of proportion.

Fourth, I can assure you that the use of the image was very much unintentional, unauthorized, unsanctioned, and quite frankly countermanded my instructions to use only public domain images.

Fifth, I want you to know that within 2 hours of my receiving this letter on June 16, 2008, immediate actions were taken to resolve this situation.  I stripped away all web banner images from every web page from our website.  I made two attempts to call your office to establish initial verbal communications.  However, because of no answer, I personally left a voice message with the reference and case numbers.  And of course, I began writing this lengthy letter.

Sixth, I conducted an internal investigation with aggressive information-gathering efforts to clarify how and why this has happened. The short version is that I contracted the creation of this web banner (among four others) through the elance.com website some time ago.  The contracted firm based in India had a website named DigiAvenues.com (now defunct) that sold web banners.  As we guided the creative process in approving the web banner styles we preferred, we were in no way associated with the acquisition or selection of individual elements for the banners including the allegedly infringed image. 

The web banners were presented to us “as a whole” which we either liked or did not like as the various revisions came through.  We were never informed as to where the images came from.  In the U.S., it is common for graphic designers to inform their clients if they use non-public domain images.  Clearly, that practice does not appear to happen in India.

It has become clear that every web banner we had them design for my company has now become suspect and we will be discarding all of them.  Because they have gone out of business, there is no way of my knowing which images came from public domain and which ones were not.  Clearly, we will be incurring a substantial cost in both time and money to correct this.

We may also have to temporarily shut down some websites to make these corrections.  While none of this is directly related to you, I am conveying to you the seriousness of which I am treating this entire matter.  In fact, I am quite angry with them as I write this.  I am angry with the dishonest Indian contractors we hired to do this work. 

Essentially, we have wasted our time and money with this unscrupulous vendor while taking a hit on our credibility and reputation.  We will clearly incur a financial cost to once again hire someone to ensure that all of their “creative” work has been totally eliminated from our various websites.

In closing out this portion of the letter, you can be assured we have entirely deleted the allegedly infringing files from our web hosting server and will no longer be using them in any way.

At this point of the letter, I would like to focus on the tone and Settlement Demand portion of your letter.  While I most certainly understand and respect your need and right to protect your copyrights, there is generally a more cordial and professional way to do this.

Generally speaking, it is common business courtesy and practice to first issue a Cease and Desist letter allowing the alleged infringer the opportunity to correct the situation before threatening them.  In this case, either remove the copyrighted material or pay a reasonable fee for the license.

Having researched the gettyimages.com website for the very first time, I have discovered that the alleged infringing image is offered for $49.  The fact that you have “offered” a settlement fee of $1,300.00 is extortionistic.  In my conversation with Chloe, she offered an $800-something amount.  That too is extortionistic.

In any case, I do not want that image even if it were given “for free”.  I did not order or select that image to use.  It was simply presented to us within the banner as one of several design elements.  I wanted an overall professional and pleasing web banner that fit our color scheme, not necessarily any image of any bird.  There is nothing special about that bird image, it was simply one that was inappropriately selected by the unscrupulous graphic designers from India.

Please understand that I am bringing this issue up to put your Settlement Demand in perspective.  This allegedly infringing image was one small element of a greater whole that was greatly changed and modified.  The low-resolution web banner was placed in a low-volume website for decorative purposes, not marketing purposes.

I understand that you contend because the image was in our banner, the photographer lost money and we should pay for the usage of it.  What I am telling you is that photographer would never have earned any money from me because it was one I would never have ordered on my own.  In fact, I have no particular interest in birds as a theme.  It simply was one element of a greater whole.

I assert we did not order web images from the Indian graphic designers.  We wanted and ordered a web banner which happened to have a “stolen” image component within it.  We would have been fine with a stylistic and creative banner with no images whatsoever if it had been presented to us.

I would like to point out that when criminal behavior happens, everyone in society loses.  There are no winners.  Our company have taken a loss and will take further loss to requisition and replace all our web banners with something that is “certifiably” authentic, self-created, and/or licensed.  As such, it is unreasonable for you to expect someone to take a double loss so that Getty can “win”.  I promise you we are losing even if without your so-called “settlement fee”.  Without meaning to be condescending, any reasonable business person can see that.

For your company to assert an outrageous and extortionistic “settlement fee” in such unfortunate circumstances is highly distasteful and disturbing.  This action breeds much bad feelings and kills any goodwill your letter recipients may have had towards your company.

Remember, I am an independent publisher and author.  I am also a member the Independent Publishers Book Association which in its membership has many artists, designers, and other creative talent.  My company sells our publications to the National Association of Realtors which is one of the largest business associations in the world.  I am also an avid supporter of the ACLU (American Civil Liberties Union).  I frequently deal with legal issues and collection issues in my other business of Property Management.  I am not listing these things to brag.  The point I am trying to make here is I am a very involved businessman and aware of the issues.  I am not a legal simpleton as some of the letter recipients might be.

I would like to share an analogy with you to illustrate one of my points with a scenario that frequently happens in the “real world”.

Pawn shops often buy DVD players and Video tape players (VCRs) both knowingly and unknowingly for resale.  There are clear laws that pawn shops should not buy suspected stolen goods.  But it happens anyway whether a pawn shop owner is honest or dishonest.  They sell those stolen players to an unsuspecting customer and they in turn “use” it to play movies in their homes thinking they are the rightful owners of the players. 

However, one day, law enforcement tracks down the stolen players to the unsuspecting customer’s home, the police will confiscate the stolen players and return it to the rightful owner, no matter what the condition is.  When that happens, the unsuspecting customer clearly incurs a loss.  They get no refund or reimbursement from anyone unless the pawn shop voluntarily chooses to refund the money which isn’t likely.

The rightful owner that had their players returned to them does not then go to the unsuspecting customer and insist they pay for any physical damages or rental fees for using the players.  They also do not sue them.  Why not?  Because the unsuspecting customer did not know nor did they have intent.  And when it is confirmed that it is stolen merchandise, it is returned.  Plus, it is simply bad form.

I fully understand my argument does not exactly match infringement and copyright issues but it does the job.  I also understand the argument that if Getty Images did not take more aggressive steps towards everyone, there would be more piracy and infringements.  However, the flaw in your argument is that you are going after everyone, guilty or not guilty.  You are implying that the ends justify the means.  And you are basing it on your company’s sensibilities and sense of right and wrong.  But you are not the judge, society and the courts are. 

This is one important reason why the ACLU exists.  Even in a time of war, the Bush Administration is learning that the American public will not tolerate such actions of bypassing due process and trampling over civil liberties and rights.  The end does not justify the means.  In your efforts to “protect the photographers” and your company, Getty Images wants to steamroll over the legal and civil rights of others without due process?  You will presume guilt over innocence for every letter you send out?  This is highly inappropriate and unconscionable.  Anyone with any dignity or self-respect would not tolerate this.

I have the good fortune in my personal and business life to have had a good education and business experience.  Otherwise, I would not have been able to write this letter in detail to explain my thoughts to you.  But I pity others who are not able to communicate their positions and stand up for their rights.

As I mentioned, I am a publisher and I am also engaged in intellectual property with copyright issues.  In my other business of Property Management, I have been to court many times over the years as a plaintiff and occasionally as a defendant.  I have both hired attorneys and represented myself.  As such, I have my own arguments and a sense of right and wrong.  Just as you seem to be aggressively pursuing your position in this matter, I am just as aggressive in defending my position.  Further, if I am aggressively provoked enough, you can be sure I will not simply defend this, I would take more proactive measures.  With this letter, I trust it will not come to anything more severe.

I cannot speak for anyone else except myself.  There may be many people who intentionally steal and use licensed images.  I am not one of them.  Forgive me but I don’t accept your presumption of our financial responsibility of your so-called “losses” given these specific circumstances.  As I said, everyone loses when criminal behavior happens.  I am already taking a loss without the “settlement fee”.  What makes your position more entitled for restitution and reparation than mine?  Anyone with common sense can see and understand this.  I believe if any judge were to hear this case and evaluate the overall context, intent, and actual damages (if any) your company incurred, it would strongly weigh in my company’s favor.

At this point, I could go on endlessly explaining my position and you may still disagree.  I have done my research on Getty Images.  There is widespread information on the extortionistic tactics Getty Images uses in these matters.  In this regard, we are prepared.  Without getting into any specific statements, I just want to say I will not “roll over”.

I respect your company.  I respect your opinions.  I thank you for bringing the alleged infringement to my attention.  I promptly deleted the entire web banner off the web server.  I called your offices and left a message.  I had a cordial conversation with Chloe.  I respectfully disagreed with her.  And finally, you have received this long letter with my best explanations I can give with assurances that this matter is closed.

We have further work and expenses to incur to replace the “work” we paid for but must now destroy.  This whole ordeal has already been frustrating and maddening.  But all of us have to move on.

It is my hope that we can both move forward from this unfortunate circumstance peacefully.  In closing, with this written reply, I consider this unfortunate matter and circumstance resolved and closed.

Thank you for your time, attention, and consideration of my explanations.

Respectfully,

Matthew Chan
President/Publisher

July 16, 2008

Getty Images
601 N. 34th Street
Seattle, WA  98103

Reference #:  4930098
Case #:  867947

Dear Ms. Surdyk:

I am writing in response to your letter dated July 3, 2008.  There are issues within the letter I wish to address.  Because we fundamentally disagree at a very deep and core level, I will keep my statements brief.

As you suggested, I have already taken it upon myself to consult with a well-established attorney that is more than familiar with copyright and intellectual property.  That has been quite helpful to me. 

I respectfully disagree that lack of intent is not relevant to copyright law.  Intent absolutely affects actions and outcomes.  I also respectfully disagree that I am liable based on a dollar figure you determine.  To date, I have been presented with no less than four settlement figures of which no one has clearly explained the formulas of how those numbers have been determined.  As such, I am distrustful of you and your company.  The credibility of your settlement “offers” is very low.

The figures appear quite arbitrary and speculative.  I find it disturbing and dishonest that if I had simply complied with the initial letter vs. contesting the matter further, I would have “been taken”.  Essentially, I view it as your company running a scam on me and other people.  It both disturbs and angers me how many other letter recipients may have been taken because they did not have the foresight, insight, intelligence, or writing ability to pursue and inquire further.  They simply paid when the “settlement” could have been lower.  Or will you claim I am a “special case” worthy of the $500.00 offer but no one else is?

I would also like to point out you and your company’s insistence to place the infringement and liability upon me as an individual when the website, where the alleged infringement occurred, was clearly owned by a well-established, fully compliant Georgia corporation of good standing for well over 10 years.  I have worked in the capacity as an Officer and President of that corporation for the same amount of time.  The letter you received was clearly printed on corporate letterhead and that portion was clearly and intentionally disregarded.

I prefer to be correctly addressed in writing as such, not condescendingly, as if I were an uninformed layman.  Even if there were personal liability as an Officer and President of a Corporation, I would prefer to be addressed as such if for no other reason out of professional courtesy and respect.

I do not address you, Chloe, in such an unprofessional manner in my letter.  I recognize you and your efforts as an employee of Getty Images, not Chloe Surdyk, the individual.  Perhaps I need to be defending myself against both Chloe Surdyk in addition to Getty Images.  I find it insulting, distasteful, and revealing of how the “License Compliance” division appears to work.  The appearance of civility is simply that.  An appearance.

Because you do not consider this matter closed and my explanations are clearly insufficient, I will not waste time in more explanations.  For the moment, we will have to agree to disagree.  In the meantime, I must ask you to provide some information for me.  I believe what I am asking is entirely reasonable and, as such, should not be difficult to provide.  Instead of working in a cloud of mystery, secrecy, and uncertainty, I believe it is time to shed some light on this case.  I am respectfully requesting the following information:

• You mention your manager.  I would like to know the name of your manager and what his/her position is and the contact information.  Additionally, I would also like to know the name and position of your manager’s superior and the contact information.

• I would like to see a copy of the copyright registration and/or license of the image allegedly being infringed upon.

• I would also like to see a copy of your license agreement with Martin Barraud on that specific image where he has authorized you to take the actions that you have against me.

• I would like to know if Martin Barraud of London has been contacted and informed on the specifics of this particular case.  

• I would like a precise formula of how you determined each of the four settlement figures and why they continue to differ over time.  I would also like to know how it compares to the actual damages and liability you have allegedly calculated.

• I would like an explanation of why, if I considered paying a “settlement fee”, must this settlement be confidential.  (As I said in my letter, I am professionally embarrassed but not to the degree I believe it must be kept confidential.  What is the public not allowed to see?  Is there something inappropriate that must be hidden?)

• I would like an explanation of why this process must be settled “quickly”.  You probably have hundreds of letters to deal with.  I prefer take the amount of time necessary to do a proper investigation and get an explanation of where I stand.

I feel that the information I have requested is both fair and reasonable.

As I close out this letter, I would like to leave you with the following thoughts.  By your own admission, you acknowledged my apology and prompt removal of the image.  You acknowledge that it was unintentional and do not believe this is a case of willful infringement.  You claim that your actions are to be fair to your artists.  But do you think we should take the step of asking Martin Barraud’s opinion?  Perhaps he can assist in resolving this.  If I offered a written apology and explanation of the circumstances to Mr. Barraud in London and he accepted them, would that be sufficient to resolve this?

You claim to want to settle this amicably.  I want the same thing.  You have it within your authority to do so quite easily but refuse to do so.  As I had previously written, you are not dealing with a legal simpleton that will simply roll over.  Despite your best attempts to state your position, there are always two sides of a story.  And because of the trickery, deceit, and dishonesty I have discovered that goes into your “settlement process”, I find what your company does to be coercive, extortionate, and distasteful.  It is no surprise that that your company has generated an incredible amount of negative karma and negative public opinion from so many people in the Internet community. 

Despite my personal feelings, I will continue to maintain a civil and professional tone through this communication process.  Since you do not want nor consider this matter closed, I patiently await the information I have requested.  Thank you.

Respectfully,

Matthew Chan
President

July 10, 2008

Hello all,

I have to admit I am actually quite surprised that the little website I put together has spiked in traffic and starting to take life. One reason is the post in this blog.

To all who have posted, thank you for being respectful, civil, and not letting it degrade into some name-calling and personal insults.

I understand some may disagree with my decision and my rationale. I also have taken the time to read copyright law and so research. What I (and the counsel I have gotten) have concluded in the context of my own situation is that intent is very much key and instrumental. So are proving damages. I know the counter-argument says it does not matter.

The funny thing is that in life and practical application, INTENT ABSOLUTELY DOES MATTER. I have been in court many times as a plaintiff, and occasionally as a defendant. What SHOULD BE is not how it turns out. Anyone who has "played" in the legal system knows this to be true.

Actual Damages (not imagined ones) also matters. It has to be proven.

In many ways, it WOULD be easier for me to simply pay the settlement fee given the time I have taken to compile and research information on this case. Not to mention creating and update the website.

The EASY way out is to pay. The hard way is to subject myself to public criticism and scrutiny. I also risk damaging my reputation and alienating some people by taking a position.

But I fundamentally disagree with Getty Images' tactics at a deep core level of my being. I absolutely don't take kindly to being bullied. Because I did speak to Chloe Surdyk at Getty Images, I also know when to stop wasting my breath and arguing. I was polite, professional, and respectful. She had her position and I had my position.

I actually am treating Getty Images very seriously. They are Goliath and I am David in this fight. I am clearly the underdog. They have my attention. Probably too much in the last few days. If they decide to pursue this legally, I will be in the fight of my business life and I will have pull out the stops to rally a good legal team and community to support the cause. I could lose but as I wrote to them, they will know they have been in a fight.

The more they push this matter, the greater the zeal and passion I will fight this. I will not reveal everything here which is why I have my own website to communicate without someone editing me.

A large part of this is that I believe a lot of innocent people are being "rolled over". And so, for me, it has become a "Cause" if you will. I don't have a problem with Getty Images wanting to ensure their copyrights are being protected but I (nor many others) will not be extorted under threat of "escalation".

By the very existence of this post on this highly respected blog, the matter has been escalated more into the public eye. And that is very much my intent. The more this is talked about and the more publicity this cause is getting, the better I am achieving my goal that you cannot bully or extort people in getting your way.

In my view, the Getty Images Settlement number is arbitrary, outrageous and not based on any formula I can see.

Think about it. If you are going to be accused of something and asked to pay, the courts always ask how you come up with that number, not some number you make up. When I go after my tenants for non-payment of rent or damages, I don't make up a number. I actually have to back up the number I come up with.

Also, keep in mind that Getty Images is asking me to pay a "settlement fee" not a "license fee" in exchange for this case to quickly go away. I am ok with this process being extended out because I want the publicity. It has only been 2 weeks and here my little case is on this highly-trafficked blog. Imagine the exposure and awareness after another 2 months?

People with some common sense can understand why I might be unhappy with them. I am pissed and they have made it personal with me.

You may disagree with me but I am holding to my convictions. I am fighting for what I believe is right. I am perfectly willing to let the gas off the pedal. But if they continue to hold an axe over my head, then I will continue to be an aggressive opponent.

Anyhow, thanks for the opportunity for me to reply. I have tried to explain my position and rationale for making a stand. If you disagree with my position, then I will have to accept it. And if you "get it" and understand why I am making a stand, I thank you.

Win, lose, or draw, this will be a life-learning experience.

Respectfully,

Matthew Chan

From: License Compliance [mailto:LicenseCompliance@gettyimages.com]
Sent: XXXXXXday, XXXXXXXX XX, 2008 XX:XX AM
To: Legal Department
Subject: RE: Reference XXXXXXX, Case XXXXXXX CRM:XXXXXXXX

FOR SETTLEMENT PURPOSES ONLY

Dear XXXXXXXXXXXX,

Thank you for taking the time to address this matter. We would like to apologize for the delay in our response.

The presented settlement demand is a reflection of our intent to recover the lost cost of licensing based on what it would have cost your company to license the image in question at the time it was placed on your company's website. Based on our preliminary research, the image in question has been in use for longer than 3 months. As such, your company would not be eligible for the $XXXX pricing scale (which went into effect earlier this year).

As you may know, the settlement demand we have presented covers more than the cost of lost licensing alone. A portion of this demand is also a reflection of our administrative costs related to the time and effort it has taken our teams to find, qualify, and pursue this matter. The presented settlement demand is significantly less than what we would expect to recover if this case went to court, but it is in our intentions to resolve this matter before such escalation becomes necessary.

In response to your email dated XXXXXXXXX XX, 2008, although I understand the circumstances under which your particular infringement occurred, we must respectfully decline your offer to settle this case at a settlement amount of $XXXXXX.  Getty Images is encouraged with your initial gesture to settle this matter; however matters related to unauthorized use are not generally settled at the cost you have calculated.  The amount detailed in our settlement demand presented to you is in line with the amount that would be typically owed for a license required for your usage of the image on your website, together with a premium typically charged to individuals that have used our imagery without proper authorization. Your attempt to settle this matter with the amount of $XXXXXX however does not help to recover the lost cost of licensing or any of the additional fees.

As a show of our continued willingness to resolve this matter between our two companies, Getty Images is willing to reinstate the reduction offered on the original demand, lowering the total amount due to $XXXXXXX.  This offer will remain open until XXXXXXX XX, 2008; however if this demand remains unpaid after XXXXXXXX XX, 2008, we will withdraw our offer and this matter will likely escalate beyond my group for handling. This offer is made without prejudice and Getty Images reserves all rights and remedies. Absent the appropriate licenses surrounding the specific use of the images in question – the demand presented is the minimum Getty Images would expect to receive in a matter such as this. As such, we encourage the immediate payment of this demand to avoid further escalation.

Getty Images looks forward to settling this matter between our companies quickly and amicably. The terms of this settlement offer shall be kept confidential, except as may be required by law. Getty Images expressly reserves all rights and remedies available under copyright law.

We appreciate your continued attention to this ongoing matter.

Regards,

From: License Compliance [mailto:LicenseCompliance@gettyimages.com]
Sent: XXXXday, XXXXXX XX, 2008 XX:XX PM
To: Legal Department
Subject: RE: Reference XXXXXXXXX, Case XXXXXXX CRM:XXXXXXXXXXXX

FOR SETTLEMENT PURPOSES ONLY

Dear XXXXXXXXX,

Thank you for your e-mail. I would like to apologize for the delay in our reply.

Publicly-accessible archived pages of your company's website shows that the image in question was up since at least XXXXXXXXX of 2007. Furthermore, it would appear that the image in question is still viewable on your website's server:

http://XXXXXXXXXXXXXXXXXXXXXX

Our previous offer of $XXXXXX has expired, but in consideration of the delay in my response, I would be willing to temporarily reinstate this reduction through XXXXXXXX XX, 2008. However, if this demand remains unpaid after XXXXXXXXX XX, 2008, we will withdraw our offer and this matter will likely progress beyond my group for further handling. This offer is made without prejudice and Getty Images reserves all rights and remedies. Absent the appropriate licenses surrounding the specific use of the images in question – the demand presented is the minimum Getty Images would expect to receive in a matter such as this. As such, we encourage the immediate payment of this demand to avoid further escalation.

Payment of this amount according to the aforementioned terms will serve as full and final settlement of this matter. This offer is made on a without prejudice basis and will automatically be withdrawn if payment is not made according to the conditions above.

Please remit check payment to:
Check remittance:
Getty Images (US) Inc
PO Box 84434
Seattle, WA 98124-5734

For Overnight Mail:
US Bank-Seattle Lockbox
fbo Getty Images #84434
2500 E Valley Road Suite C
Renton WA 98055

Alternatively, Getty Images can process a credit card payment over the phone and will be able to provide you with a receipt for this transaction once payment has been applied. Please call our offices and either myself or one of my associates will be able to take down the necessary payment information.

Getty Images looks forward to settling this matter between our companies quickly and amicably. The terms of this settlement offer shall be kept confidential, except as may be required by law. Getty Images expressly reserves all rights and remedies available under copyright law.

We appreciate your continued attention to this ongoing matter.

Regards,

From: Enjay Santos [mailto:Enjay.Santos@gettyimages.com]
Sent: XXXXXXday, XXXXXXX XX, 2008 XX:XX PM
To: Legal Department
Subject: RE: Reference XXXXXXXXX, Case XXXXXXX CRM:XXXXXXXXXXX

FOR SETTLEMENT PURPOSES ONLY

XXXXXXXXXXXXX,

Thank you for your email. Also, thank you for the removal of the image after our last request. I can confirm that the image in question is no longer viewable.

Unfortunately, neither you nor your third party designer had license, or permission, to utilize the image in question on your company's website. As you may know, unauthorized usage constitutes copyright infringement. Our offer is centered on what it would have cost your company to license the use of this image as well as recovering our costs in finding and pursuing this matter to settlement. [sentence deleted]

Getty Images' final offer in settlement of this matter has now expired. As you may recall, this reduction of $XXXXXXXX was good until XXXXXXXX XX, 2008. It is unfortunate that we were not able to come to some resolve in this matter. As you may know, this will case progress, likely costing you time and effort in continuing to resolve.

Getty Images continues to look forward to settling this matter between our companies quickly and amicably and would be willing to entertain a reasonable offer, but must respectfully decline what you have brought to the table to date.

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