Received second notice last month and asking for input on my response.

[Vicki]

Thanks in advance for comments on the following draft. We received the initial claim in May and second notice was received last month. I'd like to send the letter soon, so your input is greatly appreciated. The reference to Oscar at the end is optional, and I believe this should be sent certified mail, correct?
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I am writing in response to your copyright infringement claim. To reiterate what we discussed on both May 11 and July 16, 2012, our company was given permission by a third party to use any images from their website, as one of their 2011 event sponsors. Using an image that incorporated that organization’s name was done in good faith, as it appeared to be the event logo, and so your claim was a complete surprise.
 
Our research shows that Getty Images is notorious for these unsubstantiated claims, and because no copyright registration has been included with your claim, there is no proof that the image in question is actually yours.  We have found comparable images for as low as $6.68, and so we are not paying an outrageous fee based on your claim. The image obtained from the third party’s website was used for less than 6 months on the Earth Heart blog, and no money was made on the use of the image.  As a startup company with low assets, we would not have purchased a high-priced image.
 
Because I am a reasonable person, and want this resolved, I’ve included a check for $40.08, which is 6 times the above rate of $6.68. Cashing the check will be proof of settlement. Follow up letters from you will be posted on the ELI forum and sent to Oscar Michelen.
 

[Robert Krausankas (BuddhaPi)]

I would remove the ELI and Oscar mention, that's just an idle threat and of no use. They'll send the check back, and send another letter..they want your money..as long as you are aware that any letter you send them will not make them go away, and you're prepared to go back and forth for 3 years..go ahead and send it..you could also considering adding if they return the check and do not supply proof of ownership, you will file a complaint with the AG..if nothing else it will be a time suck for them.

[meontheweb]

I would remove the ELI and Oscar mention, that's just an idle threat and of no use. They'll send the check back, and send another letter..they want your money..as long as you are aware that any letter you send them will not make them go away, and you're prepared to go back and forth for 3 years..go ahead and send it..you could also considering adding if they return the check and do not supply proof of ownership, you will file a complaint with the AG..if nothing else it will be a time suck for them.

Robert - question for you, as I'm in Canada will a letter to the AG help?  Will they respond to a Canadian?

[Robert Krausankas (BuddhaPi)]

Not sure, but couldn't hurt to try, and I'm sure there is a canadian office of some sort you can complain to..perhaps SG will chime in here..he's our "canadian expert" in all things...well maybe not all things..

I would remove the ELI and Oscar mention, that's just an idle threat and of no use. They'll send the check back, and send another letter..they want your money..as long as you are aware that any letter you send them will not make them go away, and you're prepared to go back and forth for 3 years..go ahead and send it..you could also considering adding if they return the check and do not supply proof of ownership, you will file a complaint with the AG..if nothing else it will be a time suck for them.

Robert - question for you, as I'm in Canada will a letter to the AG help?  Will they respond to a Canadian?

[stinger]

@Vicki - I would not admit to anything in your letter.  In other words, even though you may have had conversations with them about how the image got on your site, do not admit that it even was on your site in writing.

Part of what you need to understand is that Getty is on a Phishing expedition.  The more information you give them, on the record, the better they can decide how to proceed.  I don't think they will proceed, but by admitting things, you are clarifying the process for them.

What is better is to make it very murky.  The murkier the better.  Then they have to decide if the potential revenue gained by pursuing you is greater than the cost of pursuit.  And by potential revenue gained, I mean if they talk you into knuckling under and paying.  They likely won't win anything any other way (from what I have seen on this board).

What's even better is to let them know that, if they get on the wrong side of you, you can be a thorn in their side.  That raises the costs of coming after you.

So something like, "We are looking into your allegations, which come as a complete surprise to us, because our policy is . . ." "Nothing in your letter proves that you hold the copyright to the images as you claim, so before we can even consider your settlement offer, you need to prove that you hold the copyright and . . ." "We typically license photos of the sort you allege for $X.XX.  Without admitting any guilt, we would be happy to pay $X.XX to put this matter to rest once and for all and continue on with our business.  Enclosed is a check for . .. "

I only include the last section as a sign of good faith.  As Robert says, they will probably return it because they are not in it for photo licensing fees, they are in it for what they can scare out of you.

I do like the suggestions about contacting the Attorney General if they do not prove ownership or go away.  That raises their cost of coming after you.  And I think that anyone who gets a Getty letter should contact not only the AG, but also their Senators and Congressmen to let them know how Getty is turning copyright law into a for profit extortion business.  My feeling is that if, everywhere they turn, Congressmen see letters from different people about the same issue, they will eventually do something about it.

Hope this helps and, for the record, I am not an attorney, just another Getty target who is in this fight to make the world a better place.

[Robert Krausankas (BuddhaPi)]

Great post Stinger!! Totally agree never admit to anything at any time. The burden is upon them to prove your guilt..

[SoylentGreen]

I was soaking in the tub, thinking about this.

We're pretty familiar with the tactics of Getty, Masterfile and a few others.
But, some people that don't even own a website or blog are receiving monetary claims over "copyright infringement".
It's best not to even respond to such emails.

Additionally, I wouldn't send any checks to these trolls.  In the event of a legal dispute, they'll have your banking info.
During disputes in court, plaintiffs sometimes seek to freeze accounts.
Also in the event of a win for the plaintiff (and non-payment by plaintiff), they'll usually attempt to garnish bank accounts if they can find out enough info.

These are still rare scenarios, however, I'd still play it safe.

S.G.

[Vicki]

Thanks for the great ideas.  I have unfortunately talked with them about the use of the image on our blog and how we got it, but nothing is in writing.  The third letter is due to arrive in about 2 weeks, so I am guessing I should get mine out asap. Send certified?

[Vicki]

And here is the updated letter.  I left off the AG reference until I see what they reply with:

We are looking into your allegations, which come as a complete surprise to us, because our policy is to pay licensing fees on images with a copyright.

Nothing in your letter proves that you hold the copyright to the image in question, so before we can even consider your settlement offer, we are asking for proof that you hold the copyright.

We have previously licensed photos with fees ranging from $9.75 to $39.50, and have found images comparable to the one in question for as low as $6.68. Without admitting any guilt, we would be happy to pay you $40.00 to put this matter to rest once and for all and continue on with our business.

[stinger]

That looks much better Vicki.

I might also add something about, "Please do not contact me again, unless it is to accept my offer or to provide the proof I need that you control the copyright to this image.  To date, I have found your communications full of allegations, short on proof, and harassing in tone.  I will report further harassment to the Washington Attorney General and my elected representatives."

I only toss this in because it tends to make them slow down and back off a bit.  Unless of course their communication with you was professional and unthreatening.  No wait, we are talking about Getty, aren't we?

[Matthew Chan]

Vicki,

You are missing the point of the your response letters.  You aren't going to be able to write a letter to stun them into silence. It is to get YOUR message across to them and where you stand.

The goal is to write your letter that sufficiently acknowledges your story, bring up the problem issues (lack of adequate copyright registrations, inflated market value of images), present an offer (which will likely get turned down anyway), and make a strong stand.

The best letters come from your inner strength.  Trying to write a letter by committee is going to be a hodge-podge.

If you are truly in a quandary over what you are trying to accomplish, your letter will be a wasted exercise.  You are almost better off ignoring it then.

Mention ELI and Oscar Michelen absolutely will help if you actually mean it.  Mentioning the AG complaints and any other array of viable threats absolutely help IF YOU MEAN IT!  Otherwise, it is all a big bluff and they will continue to send letters.

If you don't write a letter with some teeth and inner conviction, your letter will simply be empty words.

At some point, you make a stand.  If that doesn't sit well for you, be prepared to get some ulcers because the letters won't stop. It isn't a big deal if the letters don't stop because letters have no power in themselves.  But only YOU can decide this.

People experienced in this already know with 99% certainty the letters mean almost nothing in practical terms.

The fact that you are asking the questions you are asking means you have somehow forgotten the high points of your conversation with me and you have once again fallen for their smoke-and-mirrors.

[Vicki]

Matthew, I disagree that I have forgotten our conversation - I originally submitted a letter to the forum based on what you and I had discussed. I edited it according to the advice of others on the forum who've been through this. Not sending an actual check made sense and I've considered sending a money order instead so they don't have a record of my back account. Keeping things murky - keeping the story to verbal rather than written - also made some sense.  But I think you are saying that my original letter is preferred because they already know my story and it showed some teeth.  I have researched some ideas on the forum an have included this revision:

I am writing in response to your copyright infringement claim. To reiterate what we discussed on both May 11 and July 16, 2012, our company was given permission by a third party to use any images from their website as one of their 2011 event sponsors, and so your claim was a complete surprise.

Our company has licensed photos with fees ranging from $9.75 to $39.50, and have found images comparable to the one in question for as low as $6.68, and so we are not paying an outrageous fee based on your claim and inflated market value. As a startup company with low assets, we would not have purchased a high-priced image such as this.

Because no copyright registration has been included with your claim, there is no proof that the image in question is actually yours, and so before I will even consider your claim seriously, I am asking you to provide the following information:

1 - Copyright Registration of the image in question.
2 - Signed paperwork from the artist transferring its copyright to Getty.
3 - The formula used to determine the settlement demand.
4 - Sales records, including all fees, of the image.
5 – The exact day the alleged infringement started.

I request that Getty Images cease all communication if you cannot provide me with this information. I further request that Getty Images, their employees, or any other entities they retain not contact me if Getty Images will not prove to me that they own the rights to this image.

If Getty Images or its employees continue asking for settlement without any proof to this claim, I will consider it harassment, and I will file a harassment complaint with the Office of the Attorney General. In addition, follow up letters from you will be posted on the ELI forum and sent to Oscar Michelen.

[Jerry Witt (mcfilms)]

This reads spot-on perfect to me. I'd say put a stamp on that letter.

[Vicki]

I have not yet sent the above letter, and it's been almost 2 months since I received the second demand for settlement letter. now I am wondering if I should send my letter or just wait and seeif they have forgotten about us.

[Mulligan]

They have a way of timing so just when you think they're done messing with you another letter shows up. I suspect this is due more to sending out zillions of letters than anything psychologically set up for optimal fear tactics. So, no, I don't think they've forgotten about you... at least not until you've had a couple rounds of letters demanding even more money from an outside counsel collection agent like copyright troll Timothy B. McCormack or his paralegal Ashanti A. Taylor.

If any of these trolls can't or won't provide proof of a right to demand money, then the whole deal is nothing but a payment extraction scheme, and you have no reason to fear them or respond to them.