A major problem is that they contacted me on my personal email and I didn't provide them that info. Is it legal for them to approach me this way? How can I protect myself from their harassment strategies?
It's probably legal for them to send you email. But I'm not a lawyer... so... don't know. Save whatever they send you so you'll have it should you learn it's not legal at some later point.
If they have a valid claim, it's difficult to protect yourself from their attempts to contact you to try to negotiate a settlement. It is legal to pursue a case. The main thing you can do is hire an attorney and have your attorney contact them. In that case, they have to contact your attorney, they can't contact you. This often reduces the number of contacts.
If they have no valid claim and you are 100% sure of it, you can file a suit the way Joel Rothman did. But that option would not be in your best interest if they do have a valid claim as you would then lose and have paid all the court costs yourself. In contrast, one of the reasons they don't file small claims is that even if they win they might not be awarded attorney's fees and that makes the case financially unwise: They spend more on attorneys than they are awarded in damages.
One of the things you need to do before responding further is be clear headed and consider their claims. Above whether you know it or not, you seem to be sayings that touch on two different issues:
- Whether your use is an infringement at all vs.
- Assuming it is an infringement, what's the proper level of damages.
These are different issues and it's best to keep these separate. Because if your use is not infringement at all, the proper level of damages is $0. (This is not to say you couldn't get sued. If you were you would have to convince a judge your use is non-infringing. ) On the other hand, if your use was infringing, you then might need to establish the proper level of damages.
For example, you say this
They also mentioned that the image is "part of the design element of a website"... but I imagine that an image used on a blog post is not a website design element.
If this was 'in a blog post', that might affect the correct price (which seems to be what you are focusing on.) But it might affect your use was infringing
at all. The "design element" issue might matter to both.
First: "blog post" isn't necessarily sufficient to prove it's not a "design element". Look at how images are used at The Atlantic
http://www.theatlantic.com/features/archive/2014/09/how-gangs-took-over-prisons/379330/Some bloggers have read "advice" suggesting they use sexy images to
decorate their blog posts. The people giving the advise won't use that verb- but that's pretty much the advice being given. I would categorize the use in "The Atlantic" article above to be "decorative". Notice the post (or news article) doesn't comment on the image itself. The top image isn't advancing the argument that gangs have taken over prisons, or show how they've done so and so on. It's sort of topical, but it's mostly used to "sex up" or "decorate" the blog hoping to catch eyeballs or something.
I would suggest using images that way can be very dangerous. It should only be done if you are going to go to the trouble to take all your own images or license the ones you use. In the latter case: keep records.
If you used it
that way and get sued by a copyright holder, a judge might see that use as "a design element" and would do so even if you said "it's just a blog". In that case, you would be making one of the precise uses these images are sold for. It will be very difficult to argue that your sort of use doesn't affect the marketability of photo licenses because if
that sort of use is permitted without licensing, the copyright holders really can't make any money by licensing copies. Basically, everyone can just use images for any old reason.
On the other hand, if you were discussing a topic (and actually discuss the content of
that specific photo is some obvious way,) it's rather clear that image was at least arguably "content" not "design element". If it's content, it
might turn out you have a good case that your use was not infringing at all-- that it falls under fair use. Or --depending on the sort of content-- it might not be 'fair use'. But to judge whether yours is a case where it's 'content' and falls under 'fair use', someone would need more details about your use. A four factor tests exist, and you'll need to apply it to see whether your use is there. Also, in the case of fair use: if it's at all close, you might want to discuss that with an attorney to see how strong your case is.
If your use is not "fair use", the "design element" may matter to pricing. I'm not sufficiently familiar with Getty Images price structure to know how much they would charge someone like "The Atlantic" above for using a photo in the way they use it. Possibly a lot-- possibly a little. I really don't know. But just saying "blog post" doesn't itself tell us much because different types of blogs exist. The New York Times has blogs. Grannies have hobby blogs. Judges are likely to view things differently.
Topic: Letter on image now available for embedding and unsolicited email? (Read 7598 times)