Client received letter demanding $15,000 for single image usage. How to respond?

[myxmlcigar]

Some Background:

I am web designer who was hired to develop an ecommerce site on behalf of a client in Dec 2011. The Ecommerce store launched around Feb 31, 2012.

Around September 30,  2012 my client informed me that they had received a letter from a law-firm stating that one of the banner images used on the store was a copyrighted photo and the firm had been retained by the original photographer to seek monetary damages.

My client (who has a CMS) immediately took the photo down and wrote an email to the firm stating that they were not aware of the copyright violation, immediately removed it, and apologized for the oversight. 

During the development of the store, I had a buddy (who is learning design) help in sourcing stock photos from free stock sites. I implicitly explained to stay away from any Getty photos and to check if there was a Creative Commons license for commercial usage on any photos that were sourced from the countless “free stock photo” sites.  Unfortunately, one of the shots (which was repurposed as a banner) was copyrighted and now the law firm is seeking damages in the amount of $15,000 for a single photo that was accidently used for roughly 7 months on the store

In doing some research, it appears that this person/law firm is  an adovacate and quite versed in photo copyright and there’s numerous sightings of his name on various cases.  I can’t attest to wether this firm/person is a copyright troll, but I read the article below which is quite sickening and this attorneys defense of his photographer client seems a bit absurd.

http://www.petapixel.com/2011/02/19/public-outcry-causes-photographer-to-drop-copyright-lawsuit/

I’m not disagreeing that the photographers copyright was violated but the intent was not willful in any manner.  Nor did my friend knowingly use copyrighted material. It was an oversight while working on the site and accidental usage of an image.

I’ve since tried to determine where the shot ‘may’ have come from. In doing some research, the photo in questions is publically posted on a stock sharing site under a different filename and different author than the original photographer. Additionally, the photo in question is on numerous other sites that I have identified.

I feel that this is an extortion tactic to try and squeeze dollars from my client who  does not have the resources to pay $15,000 for a single image. Nor do I feel that the damages that this firm is seeking on behalf of their client are justifiable.

The firm recently sent my client a letter stating that they have 10 days to respond to the $15,000 demand.

Some questions:

1. How should we respond?
2. Should my client make an offer to settle?
3. Neither myself nor my client can afford attorney fee's. Is there some sort of pro-bono outfit that we can perhaps get some additional insight from?

Looking for any insight on how to handle this. I’ve been a freelance designer/developer for nearly 18 years and this is the first time I’ve encountered anything like this.

[Greg Troy (KeepFighting)]

Hello and welcome to the forums. Since I don't know which law firm you are referring to or if they are tied to a specific photo agency my comments will be generic. If you'd be willing to share your letter we may be able to offer you more insight. You could scan and email it to either myself, Robert or Matthew is this may be something new and we are always interested in any new letters that may surface. Rest assured that any personal information would be redacted from the letter if it was new and added to our library.

Now as for your questions and how you may wish to proceed. $15,000 for one image is ludicrous and I think most courts would agree with that especially if you can show the images available other "free" sites. I would also ask that they provide you with proof that the images are registered properly and how they arrived at this amount. There's a wealth of information available here in the forms so read all you can and do not panic over the 10 day deadline, we've seen time and time again these letters always include artificial deadlines designed to panic you and get you to pay before you have a chance to research and see what the situation really is and what your options are. You may wish to consider the support phone call with Matthew in which he can bring you up to speed and provide you with options very quickly. If you wish not to have to deal with them anymore you can use Oscar's defense letter program provided you are here in the states, once you retain a lawyer they may no longer contact you directly.

I would look online and find similar images and see what they are selling for as I'm sure you can find them very inexpensively which can be used to show the ridiculousness of their demands. I am including an example of a letter I sent to Getty images in which I demanded proof of their claims and offered what I considered to be a reasonable settlement for you to review.


Dear D. Bieker:

I am writing in response to your letter dated April 16, 2012. I believe that we are fundamentally disagreeing on this issue. I still wish to settle this matter amicably between us. You have sent me a letter alleging copyright infringement; I have sent you my information regarding the image. Before we can continue with further discussions 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.

I have gone to your website and searched for images similar to the image in question and found you have literally hundreds available ranging in price from $10.00 to $25.00 for the size of the image. As I stated earlier I would like to settle this matter amicably, even though I still firmly believe that I do not owe Getty anything. As a good faith effort to attempt to resolve this matter I will offer Getty Images a total of $75.00,which is 3 times the amount charged for similar images. Also, in both of your letters you demand settlement within 14 days, I will not now nor will I ever be rushed into any decisions and will always take a reasonable amount of time necessary to research, consult and decide my actions before I respond to any letter. Whether you choose to accept my offer or not I do require that you provide all of the documentation requested providing proof of copyright, contract and sales history. No monies will be paid without full and complete documentation. You have it in your power to resolve this issue and get on with the work of protecting your client’s rights from those who are willfully and knowingly taking and using images. Again, thank you for taking the time to consider this matter and I hope you will accept my offer and then consider the issue closed as I do. I await your response.
 
Respectfully,
Gregory A. Troy
Owner Yeah, We Do That.



I have all of my correspondence between Getty and myself as well as complaints filed against Getty with several agencies available for viewing along with an outline of what I did to stop Getty from harassing me.

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/an-experiment-against-getty/

Hope this helps and please keep us posted on what you decide to do as well as the status of your case and welcome to the wonderful world of copyright trolls.

[Robert Krausankas (BuddhaPi)]

Sounds like a Carolyn Wright (photoattorney.com) letter..please do share the lawyers name and firm name, you are not required or obligated to protect them in any way shape or form..expose them for the trolls that they are!

They would never get 15k in a court of law unless it's an image of Jimi Hendrix looking up Marilyn Monroes skirt or something, which I doubt.

[Jerry Witt (mcfilms)]

Ditto everything Greg and Robert said.

I know it is psychologically uncomfortable to publicly announce who is pestering you. I know for a brief time I thought that as long as I kept in on the down-low, the law firm would go easy on me. Actually it seems to be quite the opposite. The people that are loud and proud, willing to name names seem to get left alone.

The amount they are demanding is so disconnected from reality that it almost seems laughable to me. I like Greg's reply because it points out that similar images are available for much, much less. "$15,000, huh? How about I offer you $75. And by the way, I may not even owe that if you are unable to prove you hold the copyright to that image."

The best advice is to read about other people's experiences on this site. Type the firm's name into the search box and see if other people have encountered them. It would be helpful to post a redacted version of their demand and point us to where the image is offered for free. (While you are at it, be sure to take a snapshot of this page and document it.)

Two things to keep in mind. You're not alone. They've been pulling these shenanigans on thousands of people over the last several years. Second, in all that time only a very tiny number of cases have been filed.

If you are willing to go "all in" with the ELI crowd, you cannot find a better resource for fighting back. Seriously, the brain trust here is better than you would get from hiring a local attorney. There are no guarantees, but statistically speaking, you can now start sleeping easier.

[myxmlcigar]

Gentlemen,

Greatly appreciate your responses and insight. Because I'm not an attorney nor versed in this sort of matter, I want to be very careful about  any mis-steps or posting information without my clients knowledge or approval. I've sent my client an email asking for their permission to post the letters received by the law firm.

Regarding the law-firm, I posted a link to an article (in my original post) which references the attorney that represented the photographer.

I'll post more on this shortly. And again, THANK YOU for taking the time to respond.

Greatly appreciated!

[Robert Krausankas (BuddhaPi)]

Ed Greenberg of New York is looking for more attention? As if he didn't get enough the first time around.

Depending on the image used,this could be another easily won battle, i'm sure some of the news outlets that covered the last fiasco would entertain reporting on the fact that sleezebag attorney Ed Greenberg is still at it.

[Greg Troy (KeepFighting)]

ELI has been known to give attorneys in need of special attention just that.

Hopefully your client will see fit to share their letter with the Eli community.

Ed Greenberg of New York is looking for more attention? As if he didn't get enough the first time around.

Depending on the image used,this could be another easily won battle, i'm sure some of the news outlets that covered the last fiasco would entertain reporting on the fact that sleezebag attorney Ed Greenberg is still at it.