An Experiment Against Getty

[Lettered]

Just some clarifications.  An image HAS to be registered before the copyright holder can sue you in court.  But just to be clear, if you are infringing on an unregistered image, all the copyright holder has to do is register the image and file suite, but only for actual damages (see below *).  I think that generally they dont even bother registering them (if theyre not already registered) during the demand letter stage ... they only bother with that if and when they decide to go to court. 
*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.

Its worth noting on registered images, if the infringment can be shown to be unwillfull then the judge is allowed (not required) to lower statutory damages to $200 per infringement.

I know ... clear as mud.

Copyright exists from the moment the picture is taken and belongs to the photographer.  The photog can come after you even if the image is not registered but only for actual damages.  Registering the image allows me to seek statutory damages the  up to 150,000 the demand letters like to quote per image.

I believe there is also a clause in there that says if I find you are infringing I have 3 months from the date I find the infringement to register the image and can then still get statutory damages.  The ones Getty are registering now are outside the 3 month window and Getty is only seeking actual damages on those pics.

I have a question that nobody may have thought about.  Since the majority of images that Getty claims to own or manage do not have a registered copyright, what would happen if a victim of the Getty Scam were to register the alleged infringement image themselves and then claim Getty is the infringer?  What a twist.

[Lettered]

For what its worth I threw together this visual that shows the flow of a demand as I understand it.  The heavier the line the more likely the path as I see it.  This my understanding of a Getty situation.  For Masterfile there probably needs to be more weight on the lines involving registration.

Maybe someone more artistically inclined than me can correct and enhance the idea of putting this into a flowchart. 

http://i1366.photobucket.com/albums/r771/mcrasterhd/copyright_zps71ae7918.jpg

[crazycatlady]

The graphic was a big help; thank you.

[Greg Troy (KeepFighting)]

You are correct that Getty does not bothered to register images during the demand letter phase. I know I had question the registration on the image my demand letter was about an Getty replied to me basically saying they don't know if the artist has the image registered or not but the image would be registered prior to suing me.

Just some clarifications.  An image HAS to be registered before the copyright holder can sue you in court.  But just to be clear, if you are infringing on an unregistered image, all the copyright holder has to do is register the image and file suite, but only for actual damages (see below *).  I think that generally they dont even bother registering them (if theyre not already registered) during the demand letter stage ... they only bother with that if and when they decide to go to court. 
*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.

Its worth noting on registered images, if the infringment can be shown to be unwillfull then the judge is allowed (not required) to lower statutory damages to $200 per infringement.

I know ... clear as mud.

Copyright exists from the moment the picture is taken and belongs to the photographer.  The photog can come after you even if the image is not registered but only for actual damages.  Registering the image allows me to seek statutory damages the  up to 150,000 the demand letters like to quote per image.

I believe there is also a clause in there that says if I find you are infringing I have 3 months from the date I find the infringement to register the image and can then still get statutory damages.  The ones Getty are registering now are outside the 3 month window and Getty is only seeking actual damages on those pics.

I have a question that nobody may have thought about.  Since the majority of images that Getty claims to own or manage do not have a registered copyright, what would happen if a victim of the Getty Scam were to register the alleged infringement image themselves and then claim Getty is the infringer?  What a twist.

[Jerry Witt (mcfilms)]

Lettered, that is a great and useful chart for anyone analyzing the possible outcomes of "The Letter". But I would suggest adding notes that in most cases Getty Images is NOT the copyright holder. Is some cases they are not even the "exclusive" representative of an image.

[starmanalpha]

Here's an update from my client...

I wrote a response letter for my client to Getty regarding the preview image supposedly used on their blog. The image was 100px by 133px - so really small.

1) We removed the image as soon as we were notified. This alleged infringement was unintentional at best and we want to keep it that way.

2) The image was used on a blog post discussing a news story and was not commercial - not directly. So we are claiming fair use. Probably not the best line but it was a paragraph non the less.

3) We send a document showing the same image on hundreds of sites via Google search. Many of these sites had publish dates in excess of 6 years so they are not hell bent on finding infringers if I can find so many in 5 seconds. Though we only pointed out that the image was prolific.

4) We searched their catalog and found the image was in a different color than the one in their catalog.

5) Keeping the above in mind how could we be sure Getty was indeed the legal copyright holder? We asked for the original copyright claimant and any assignment or granting of exclusive rights including the right to enforce violations.

Last week they sent a reply via FedEx. It's basically a similar form letter to the ones already posted. It more or less ignores the documentation requested on grounds of confidentiality. It also lowers the requested amount and puts in a nice fast date to make the receiver think fast. My client was actually out of town and thus didn't even get the letter till after the date had passed.

The most interesting thing was that the response letter DID NOT COME FROM AN ATTORNEY - but rather from Getty's "Copyright Compliance Department." Not sure if this shows a shift in strategy to keep the heat off from the AG and WA Bar.

Our reply strategy will be to ask for documentation on the copyright claimant and any assignment so we can be sure we are dealing with the right entity. We are willing to agree to confidentiality if needed but until we have that information we cannot simple assume Getty is telling the truth.

[Jerry Witt (mcfilms)]

5) Keeping the above in mind how could we be sure Getty was indeed the legal copyright holder? We asked for the original copyright claimant and any assignment or granting of exclusive rights including the right to enforce violations.

You can't and that's why so many have an issue with Getty. It seems they are unable (or unwilling) to provide the chain of title to the image and prove they are the exclusive representative of that image.

Once you draft a letter saying you cannot discuss any settlement until such documentation is delivered, keep it handy. By all reports you'll need to send it out a few more times as GI continues to pester you.

[Oscar Michelen]

Getty usually sends it to an attorney (Tim McCormack) as part of round three in communication.  They send their form letter by Fedex because they think it will make you believe they must be serious about his.

[Greg Troy (KeepFighting)]

Okay, It's been a long while but I have an update for those who are following this. 

I received an e-mail Friday from the SEC on my Freedom of Information Act (FOIA) request to get the documents relating to the SEC investigation into Jonathan Klein and his top officers backdating stock options. 

It basically said that we are about 12 months out from them getting to my request and if I still wanted to continue with the request.  Here is the email, my response and the documents.

 http://www.scribd.com/doc/166887419/9-7-SEC-Request-to-Continue

http://www.scribd.com/doc/166887420/9-8-SEC-Response-to-Request-to-Continue

[media]

Greg,
Thank you for great help...

I have exact case like yours...
Letter sent...
Thanks

[Greg Troy (KeepFighting)]

Welcome to the forums media,

Please keep us updated as to what you do and your results.

Greg,
Thank you for great help...

I have exact case like yours...
Letter sent...
Thanks

[Matthew Chan]

Congratulations to Greg Troy who started, organized, and nurtured this very important thread since July 2012.

This thread has been specifically linked by Christopher Zara as "first-person accounts" in the recent February 7, 2014 International Business Times article:

Getty Images Lawsuits: Enforcement Or Trolling? Fear Of Letters Dwindling, Stock-Photo Giant Hits Federal Courts
http://www.ibtimes.com/getty-images-lawsuits-enforcement-or-trolling-fear-letters-dwindling-stock-photo-giant-hits-federal

Thank you Greg for your contribution to the recent International Business Time article!

[Greg Troy (KeepFighting)]

 

Congratulations to Greg Troy who started, organized, and nurtured this very important thread since July 2012.

This thread has been specifically linked by Christopher Zara as "first-person accounts" in the recent February 7, 2014 International Business Times article:

Getty Images Lawsuits: Enforcement Or Trolling? Fear Of Letters Dwindling, Stock-Photo Giant Hits Federal Courts
http://www.ibtimes.com/getty-images-lawsuits-enforcement-or-trolling-fear-letters-dwindling-stock-photo-giant-hits-federal

Thank you Greg for your contribution to the recent International Business Time article!

[media]

Welcome to the forums media,
Please keep us updated as to what you do and your results.

Hi Again,
Well, after months back and forth mailing... We come to 4th letter and I offer a price for image in question and wanted to settle but I request

I need the following information from you as you are presenting me with a Settlement Demand but no documentation supporting your claims or the amount requested.
1.   I need to see verification that the image was filed with the U.S. Copyright Office
2.   Verification that the copyright is either for the individual image or a group of images.
3.   I need a copy of the signed contract, assignment or other documentation between Getty Images and the artist transferring copyright and giving you exclusive rights to the image as you have stated in your letter.
4.   Sales history and records of this image and prices received for the image.

above information and I have NOT heard anything since (Nov to now)

Waiting...

[Greg Troy (KeepFighting)]

Thank you for the update media.  After 4 letters the next step will most likely be their final attempt and "Notice of escalation" letter, then you will be contacted by NSC Solutions, McCormack IP Law or both.

Hang tough and keep demanding proof of claim.