Talking Points
Last updated: 11/25/2008
This page focuses on creating and assembling a defense for yourself.
Chilling Effects Clearinghouse
According to their website, the Chilling Effects Clearinghouse is "a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics."
Essentially, they are acting as voluntary watchdogs to ensure that people have the freedom to communicate freely but responsibly. According to their observations, they see individuals and corporations using intellectual property, copyrights, and other related laws to silence online users.
This is actually a fascinating website that covers a variety of topics. I suggest anyone who wishes to protect their rights to free speech on the Internet to visit this website.
As it relates to Getty Images, these are links to commentary that you may want to familiarize with.
- Full of Spa-Getty!, GettyImages, December 31, 2007
- No Getty Without License, Getty Images International Ltd, September 15, 2006
- Can't "Getty" No Satisfaction, Getty Images, August 15, 2006
Are the Images Even Registered?
Getty Images is accusing hundreds, perhaps even thousands, of people of copyright infringement. I wonder how many of these images they are managing have ever been registered with the U.S. Copyright Office. If I am forced to defend myself, I know one of the first questions I will be asking is if the image was even registered to begin with. I would also want proof that Getty Images has the right to enforce the specific image in question.
There are indications that most, if not all, of the images Getty manages is NOT registered. If they have not been registered, Getty would only be entitled to actual damages, not statutory damages. This means they do not get attorney's fees or whatever extravagant number they dream up. They actually have to substantiate and prove the number they come up with.
Getty' Image's own website seems to imply that there are many photographers not registering their own photos.
Defense Against Public Embarassment
Some of you are going to be embarassed by receiving a Letter from Getty Images and don't want anyone to know. You might be concerned of harassing phone calls. Others of you are going to be embarassed for being stupid and being a victim of some scam artist or unscrupulous web graphic designers. Others think your professional reputation will be tarnished and your livelihood affected.
All of this might be true to some degree but I will tell you that most people are pretty forgiving of your mistakes and your ignorance. But you have to own up to them. You have to be willing to publicly say you were an idiot but now you know better.
If you were a scumbag and intentionally ripped of Getty Images or anyone else for that matter, you get what you deserve. But so many more of us really were in the dark and only now learning about the crooks we have dealt with.
It takes courage to put up with public embarrassment. Once it is out in the open, people will eventually care less about your mistakes. So, if Getty Images hints at exposing you for your "crimes", beat them to the punch as I did. I posted this incident on my blogs and explained how this all went down. So far, so good. I still have my friends and business. No one is running anywhere yet. Everyone agrees that the $1,300 settlement letter I got was insane and plain nuts.
Defense Against U.S. Collection Agencies
I have some first-hand knowledge about dealing with colleciton agencies. I have hired a few over the years in my Property Management business. The good ones know what they can and cannot do. And they generally follow the rules because they do not want to get into legal trouble or put out of business by violating the Fair Debt Collections Practices Act (FDCPA).
Last year, I had to help put one crooked collections agency out of business. The business community literally rallied together along with help from local TV stations and we put them out of business. They totally ignored FDCPA which earned them some lawsuits and stealing from clients which got some police and TV attention on them.
I have heard reports that Getty Images will send people to collections agencies. There will be two types of collection agencies that might come calling. The crooked ones won't care about any rules. There will simply be a lot of yelling, cursing, screaming, and threats on their part. In those cases, you will want to make a recording of the phone conversations (if allowed by law). You can also inform them that you intend to record the conversation which means you are upfront and not doing it secretly. And let them do the talking. But they will likely not want to talk or will be on their best behavior if they know they are being recorded.
If they scream and curse threats into your answering machine and voice mail system. That will be evidence to turn those guys in. Actually, that could really work well to your advantage.
Now, if Getty Images uses a professional collections agency that follows the FDCPA rules, you will want to pay attention to the links I am posting up. This information will be extremely helpful in contesting the "debt" you allegedly owe to Getty Images.
- FTC Q&A on FDCPA - Simple overview of FDCPA
- The text of the FDCPA - The Law
- FDCPA on Wikipedia
- ExpertLaw.com on FDCPA - There appears to be some great sample letters to use.
Known Members of the Getty Images License Compliance Group
Readers of this website have provided additional names of the Getty Images License Compliance Group. To date, known names of members of this group are:
- Lisa Sawaya Willmer - Director, Corporate Counsel
- Chloe Surdyk
- Andrew Joslyn
- Ivette Johnson
- Enjay Santos
- Sam Brown
- Lauren Kingston
- Douglas J. Bieker
- Kate Gardner - Information provided by LinkedIn.
GettyImages.com provides a list of Corporate Officers on their website. Without further substantiation, my educated guess is that License Compliance and other legal matters would fall under the direct jurisdiction of John Lapham, Senior Vice-President / General Counsel.
Getty Images Hires College Legal Interns in License Compliance Group
For months, I have suspected that line members of the Getty Images License Compliance Group skewed young and were individuals who were not "streetwise" or "courtwise" legal professionals. It did not take me long to figure out by their written responses that the line workers preach the corporate line and have little insights of what actually can happen in an actual court of law with real people and real judges. It doesn't matter what you say to defend yourself, they have a textbook response. I also surmise most have never been actively involved as principals in any court case of any significance.
I have discovered a work study job description document on the University of Washington website that outlines Getty Images actively seeks legal interns to work in the License Compliance Group at a pay rate of $15.00/hour reporting to Lisa Willmer. When you view this document, please note what has been highlighted.
Look at the qualifications they are asking for. They want someone in law school who is a quick learner, a good writer, and a positive attitude. These Getty Images legal interns do not know what they are getting themselves into by becoming line employees entering the fight. I will not get into specifics but the things I have found in MySpace and Facebook does not bode well for many on their team.
For $15.00/hour, these Getty Images legal interns have the opportunity to join the rest of us in this negative and unpleasant controversy and have their personal names preserved in the Google and Yahoo search engines. If these interns have any smarts, they will have researched what Getty Images is all about BEFORE they get hired.
It will not surprise me if the turnover rate in the Getty Images License Compliance Group accelerates over time. I have gotten indications that some members of the team do not like the exposure this website is bringing to them. I think some of them know that for $15.00/hour, it is not worth some of the unintended grief being brought to them.
Can you imagine being a young, 20-something Getty Images legal intern and receiving the scorn of so many in the Internet community? I personally would not want that all that grief for $15.00/hour.
Who is Lisa Sawaya Willmer?
Director of Corporate Counsel, Lisa Sawaya Willmer recently issued a written response to one of Attorney Oscar Michelen's client letters. Because of her higher corporate position, we did a Google and Yahoo search on her.
According to FindLaw.com, Lisa went to University of Geogia School of Law in Athens, Georgia until 1998 where she got her J.D. She also attended University of Philadelphia, PA and got her B.A. degree. She was admitted to the Washington State Bar in 2001.
She was admitted to the Hawaii State bar in May 1999, JD # 7232. It appears she is no longer authorized to practice law in Hawaii.
According to the ACLU, Lisa worked for the law firm of Perkins Coie in September 2001.
In 2004, WorldBank.org states she worked in the Computer Crime and Intellectual Property Section of the U.S. Dept. of Justice.
According to Professor Mark Vinet's Entertainment Industry Blog, Lisa worked for Microsoft as an anti-piracy attorney in April 2006. She was quoted in the article.
There is obviously more to Lisa's career than can be found but these are her career highlights as reported on the Internet. Taken as a whole, she has always been a corporate attorney which means she has always taken the corporate perspective. I am not optimistic she can view the perspective from the "other side".
Based on loose calculations, I estimate Lisa Sawaya Willmer to be in her mid-to-late 30's with approximately 7 years of legal experience. In my view, definitely more experienced than any newbie attorney but not a heavy-hitter when compared to Attorney Oscar Michelen. Nevertheless, she does have the resources of Getty Images behind her.
Who is Chloe Surdyk?
In my limited interactions with Chloe Surdyk, she has been my sole contact (to date) both on the telephone and my mail correspondence working in the Licensing Compliance Department. She is professional, intelligent, and takes her job seriously. She genuinely believes the "party line" that she is telling.
I believe in order to effectively defend yourself, you have to know who you are dealing with.
Based on my limited research (I have done my best to be accurate), I have compiled the following:
It appears Chloe graduated from Everett High School in Everett, WA around 1995 and Everett Community College in Everett, WA in 1997. I estimate her age to be 31-years old.
Based on her educational background, I believe her "knowledge" comes from what her company and their legal counsel have taught her, not from actual "street" or courtroom experience.
Legal Representation Against Possible Lawsuit
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I have been in contact with Oscar Michelen, a highly-respected and successful Attorney with 20+ years experience and a Partner of Sandback, Birnbaum, and Michelen in New York. I "discovered" Oscar on a Google search when he graciously provided some great advice on AVVO.com to a fellow Letter recipient in Houston, TX. He also posted some good comments on our Discussion Forum. It made a lot of sense to me. I am pleased to find that Oscar has an Excellent AVVO rating. |
Independent of this website, Oscar has actually been following the Getty Images Settlement Letter phenomena on the Internet for awhile. He informed me that he has spent hours of his own time researching this.
In my phone conversation with Oscar, I found him to be amazingly insightful of this particular case. He has also been following the Corbis case. One of Oscar's passions, which he says his entire law firm has been founded upon, is to represent the underdog against "corporate bullies". Oscar does not like "corporate bullies". Oscar claims that in the legal and court system, with the right represenation, everyone is equal.
Oscar told me about the various cases he has taken on where his client was the "underdog" equivalent to a "corporate David" going up against a "corporate Goliath" and come out triumphant. As I interpret what he said, one reason for his success is that courts are fundamentally "reasonable" and have an inherent bias towards doing what is "right" which often goes against what "corporate bullies" do in their actions. And so, "corporate bullies" often do not like going to court against someone that is well represented. They tend to prey upon those that are legally ignorant, legally unaware, and easily intimidated.
Oscar shared with me that INTENT absolutely matters in a court case. Establishing and proving ACTUAL DAMAGES also matters. ECONOMIC FEASIBILITY is also an issue. How much does a "corporate bully" have to spend to establish, try, and win a case? If they win, how much would they win? And if they lost, what is the reputational fallout? These are all issues to consider.
Attorney Oscar Michelen Shares October 2008 Updates in Phone Interview
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On July 25, 2008, New York Attorney Oscar Michelen agreed to a 1-hour interview to discuss Getty Images, the infamous Letter, and issues/distinctions that ever Letter Recipient needs to know. For the very first anywhere on the Internet, we are providing original audio content with Oscar's professional and legal opinion. On October 14, 2008, Oscar provides an update of the latest developments, insights, and strategies relating to the Getty Images Demand Letter controversy. |
Do not assume what you know or what Getty Images says is correct until you have listened to these insightful phone interviews.
Do not take advice from amateur advice-givers who do not know copyright law, it's application in a court of law, or have never set foot in a courtroom.
You can listen to this informative July 2008 interview here. Because of the length of this phone interview, it is being provided here in 2-parts.
- Oscar Michelen Phone Jul-2008 Interview - Part 1 (28-minute MP3 file)
- Oscar Michelen Phone Jul-2008 Interview - Part 2 (25-minute MP3 file)
You can listen to the updated October 14, 2008 interview here. Because of the length of this phone interview, it is being provided here in 2-parts.
- Oscar Michelen Phone Oct-2008 Interview - Part 1 (24-minute MP3 file)
- Oscar Michelen Phone Oct-2008 Interview - Part 2 (15-minute MP3 file)
Getty Prefers to Settle with Photographers and Filmmakers on Infringement Claims
According to Getty Images Inc, Quarter 1-2008, Form 10-Q filing with the SEC under the Legal Proceedings section on page 23, they state the following:
"We have been, and may continue to be, subject to legal claims from time to time in the ordinary course of our business, including those related to alleged infringements of the intellectual property rights of third parties, such as the failure to secure model or property releases for imagery we license. Claims may also include those brought by photographers and filmmakers relating to or handling of images submitted to us or to the companies we have acquired. We have accrued a liability for the anticipated costs of settling such claims for which we believe a loss is probable."
It appears that are on the receving end of legal threats of photographers and filmakers. They prefer to settle those claims where they believe a loss is probable? Is that why they prefer to settle so quickly with me and other letter receivers?
In late 2007, Getty Images stated they felt there would be no material adverse effect on their consolidated financial position. However, in 2008, Getty no longer states this. In fact, they have anticipated costs for settling claims they do not believe they can win.
According to Getty Images Inc, Quarter 3-2007, Form 10-Q filing with the SEC under the Legal Proceedings section on page 23, they state the following:
"We have been, and may continue to be, subject to legal claims from time to time in the ordinary course of our business, including those related to alleged infringements of the intellectual property rights of third parties, such as the failure to secure model or property releases for imagery we license. Claims may also include those brought by photographers and filmmakers relating to our handling of images submitted to us or to the companies we have acquired. We have accrued a liability for the anticipated costs of settling claims for which we believe a loss is probable. There are no pending legal proceedings to which we are a party or to which any of our property is subject that, either individually or in the aggregate, we believe are expected to have a material adverse effect on our consolidated financial position, results of operations or cash flows."
According to Getty Images Inc, Quarter 2-2007, Form 10-Q filing with the SEC under the Legal Proceedings section, there are no statements regarding possible infringements.
Their legal standing appears to have materially changed from 2007 to 2008. In fact, in cases where Getty expects to lose, they prefer to settle. Does this sound familiar?
Google's Comments on the Digital Millenium Copyright Act
Someone brought to my attention Google's comments on the Digital Millenium Copyright Act and their instructions for dealing with Infringment Notifications.
After the 8-step procedure, I do find it interesting that Google informs the senders of such legal notices that they will be forwarded to 3rd parties such as Chilling Effects for annotation and commentary.
Interestingly, I took a similar approach. Essentially, insteading of hiding from the problem, I wanted the world to see what a travesty Getty Images is doing and that legitimate people will simply not tolerate such behavior. It is nice that I am in good company and Google is not taking this lying down either.
According to Google's statement,
"Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights."
Google has even cited an actual case Online Policy Group vs. Diebold Inc. Diebold lost because they were threatening many people for discussing the issues relating to their flawed voting machines. In fact, the article says:
“Diebold’s blanket cease-and-desist notices are a blatant abuse of copyright law,” said EFF Staff Attorney Wendy Seltzer.
That is such a powerful statement because this applies to Getty's Settlement Letters. Getty Images are sending out "blanket notices" and presuming the guilt of everyone they send to. Getty also is trying to "hammer" their statements to others. I certainly would say that Getty's letters are an abuse of copyright law.
Is it Possible that Getty Images is Violating the RICO Act?
I received information that the "blanket notices" that Getty sends out may be in violation of the RICO (Racketeering Influenced and Corrupt Organizations) Act. Based on my initial research, The RICO Act was originally designed to fight organized crime and the Mafia. However, in later years, violations of the RICO Act has been applied to businesses who engage in deliberate, extortionistic tactics.
Personally, I find what Getty Images is doing extortionistic which explains the name of my website.
Attorney Jeffrey Grell of Minnesota has put together an excellent website, RicoAct.com, which provides his interpretation of the RICO Act and how it applies in the business world. I warn you there is a lot to read.
I am not yet qualified to determine if Getty Images is under any violation of the RICO Act. I have been told by someone that an attorney family member is checking into it. If anyone has first-hand information of their systematic tactics, please let me know.
Show Your Support: A PayPal Donation
At the suggestion of one our enthusiastic supporters, I have set up a PayPal Donation Button for those of you who wish to show your support by contributing and assisting our ongoing cause to fight the Getty Images Extortion Letters. Help our cause by supporting the ongoing work and updates to this website by making a donation. I recommend a small donation of $5.00 to $10.00 if you have found useful and valuable information that assisted you in defending yourself against Getty Images. You may donate as little as $1.00 or as high as $100.00. You may donate as frequently or as infrequently as your prefer. But just realize this is an ongoing fight. I need ongoing community support to continue the work on this website. Thank you for your continued enthusiasm and support in our cause. Sincerely, Matthew Chan |
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