My "Extortion" Letter Experience (Part 2)

[flora]

(For background info please see my October 1, 2011 post "My "Extortion" Letter Experience (so far))

I have received a second attorney letter asking for a "reasonable settlement" of the alleged one image use of a SuperStock image for which they are asking $2200.  The image is copyright, was up for perhaps a year, was taken off immediately... I have no knowledge of where my web designer may have gotten it.  My web designer shocked my by admitting absolutely no responsibility for the matter and I am looking for another designer.

I am willing to offer them $500 to settle the matter.  Can I make this offer contingent on me not admitting guilt in the matter? What do you think?

[Robert Krausankas (BuddhaPi)]

I guess my question would be ...why would you offer them 500.00 to make it go away, when you can spend 195.00 have Oscar write the letter and send it off, and chances are very good that would be the end of it? I am by no means trying to send Oscar business, if you an "innocent infringer" why pay?? a 500.00 offer would probably be denied anyway as they want to squeeze as much as possible from you and it would just continue from there.

[flora]

I appreciate the reply.  My question is whether, if you do make an offer, you can stipulate that you are not addressing the question of guilt.  I wonder if someone could address this.

Thanks for the advice on the letter.  Perhaps the site needs to be more specific about the letter.  Just to get right down to it: are there statistics available that show that paying $195 for a letter will "be the end of it"?  Do I set up an attorney-client relationship which means that I am going to have my attorney speak for me in any future procedures?  On the site there is a statement that the attorney will attend to other litigation etc. as a first priority (understandable), which leaves the question of when this letter is sent a big vague.

Is there anyone out there who has had a letter sent? What's your experience?

I would love to see an organized list of cases, ie. code name of party, which image company, action, response, etc. etc. right through the history to start to get a sense of the breadth of this problem.

Thanks again!!

[Robert Krausankas (BuddhaPi)]

I'm sure in your offer, you can make the stipulation, if they agree to it is another story.

The letter basically is doing this: Opening a line of communication between the agency and your attorney. The agency can longer contact or harass you, everything must go thru your attorney, so yes there would be attonrney/client relationship. In the event there was a "need" your attorney would surely contact you, after all that's his responsibility. Any future infringemnts seperate from the initial, you would need to retain counsel seperately.

You won't see an organized list, because of attoney / client priveldge, I can however speak for myself.

I recieved the Getty letter and contacted Oscars office the same day, the next day I sent all of the info to his office. By the end of the week I had my letter draft in hand, approved and sent. That was over 2 years ago, haven't heard boo since.

You have to keep in mind there are no guarantees with the letter, very rarely if ever has there a been a suit filed over 1 image, it would cost them more, then they are trying to collect, and chances are slim any judge would award the maximum amount allowable, especially if you can show you are an innocent infringer.

[SoylentGreen]

If you are engaged in "settlement discussions."  US Federal Rule of Evidence 403 and most states' laws protect settlement discussions and hold that what is said during settlement talks is not admissible in court.

S.G.

[Matthew Chan]

Personally, I think you are overpaying with the $500 offer.  Superstock is obviously inflating their numbers drastically even beyond what Getty is doing.  After two letters to Getty, I was offered $500 fairly quickly which I still did not accept. I made it clear that I was willing to fight and make a lot of noise at the time and I think that motivated them to drop the settlement price quickly.

Having said that, a true settlement process generally requests that all parties keep the terms confidential.  By keeping it confidential, you are, in effect, agreeing not to publicize the terms of which you settled upon.

Also, how you position yourself in the negotiation makes a difference. If you are seen to "begging" for a settlement vs. them trying to convince you to settle (which they have done with the 2nd letter), it will hurt your position.  Too many people think about what THEY will lose vs. what the vendor has to go through to ultimately follow-up to make good on the letter.

As I have said before, filing a lawsuit by any company is no cheap endeavor and the risks to them can be great because of the possibility of a countersuit, discovery process, and they ultimately could lose or not get the ruling they want from the judge.  Most letter recipients are too ignorant or too inexperienced of the legal process.  They also rely too much on legal advice from many risk-averse "by the book" attorneys that live in a different universe in viewing such matters.

Hence, this forum exists with many opinions and suggestions.

Matthew

[Littlescoop]

Isn't that US Federal Rule of Evidence 408 rather than 403?  Just checking...  Also, doesn't Oscar charge $400 rather than $ 200 for a letter to SS?  I believe the $ 195 fee is just for Getty. 

[Oscar Michelen]

It is FRE 408 that makes settlement confidential and Getty when they settle will send a settlement agreement that says it is not an admission of guilt (as does Masterfile and Corbis and Superstock) You are also correct that $195 is just for Getty and that I usually charge $200 per hour for 2 hours of work for SS or MF cases (depending on the number of images -2 hours is the minimum) It is highly doubtful they will sue over a single image. If they have registered the image prior to the infringement $200 is the statutory minimum so you should try and get it as close to that as possible. For a registered image $500 is high but not totally out of the ball park - it depends on many factors