settlement demand letter from Getty Image. What to do?

[landing]

Recently received the settlement demand letter from Getty Images stating I published an image on my secondary page without a valid license from them. 4200 SEK (sweedish krone) or about $800 USD to be paid.

The image is size: 150x105 pixels
I have removed it now.

What should I do? pay them? What will happen if I dont?

- Sweedish web developer -

[thomas]

Sorry you are dealing with this issue.  Please realize a few things:  

1)  A demand letter is not a legal binding contract between you and any instituation or business.  It is a "quick" way to attempt to engage you in a binding agreement.  If you choose to agree to enter a binding agreement for whatever cost is being requested or negotiated, then the binding agreement can be upheld directly through legal action without the image supplier establishing an illegal use of their service, product, image, royality, or royalty management for an amount you agree to settle.

2)  The cost to establish litigation against an entity from any instituation to an individual, business, corporation or other is quite expensive.  Even if the litigation were to lean towards the favor of a stock photography company; the corporation would have to prove that the image could have no other possible avenue for distribution except through their institution (i.e. being mutually exclusive).  If you did in fact get the image from a Royalty-Free service from an organization, you might be liable for damages, but unless a court can show proof, the case has little bearing.

3)  Use good judgement.  An organization should establish business with the public and private business in good faith.  Most all companies are explicit by establishing images with logo, and (c) protention overlays directly on the image.  It does not appear that GettImages has attempted to protect their images in a way that provides an established visual breach; and has not attempted to incorporate one since these letters began surfacing several years ago.  


4) Even should a judge rule in the favor of GettyImages, the court has the opportunity to establish the actual "street" value of any said image, or images which may be the value of an established professional photographers work in taking a "like-image."

5) Bottom line, GettyImages is making money by persuing damages against any good faith form of business.  If a settlement can formed without moving through a formal legal process, they immediatly win.  If you decide to let them pursue legal action, they have an extremely small chance of taking away a settlement from a court, and the cost of the legal process has lead their company to eventually give up after a few letters are sent out, so they can "pray" on someone else.  

Piece.

[thomas]

Sorry you are dealing with this issue.  Please realize a few things:  

1)  A demand letter is not a legal binding contract between you and any instituation or business.  It is a "quick" way to attempt to engage you in a binding agreement.  If you choose to agree to enter a binding agreement for whatever cost is being requested or negotiated, then the binding agreement can be upheld directly through legal action without the image supplier establishing an illegal use of their service, product, image, royality, or royalty management for an amount you agree to settle.

2)  The cost to establish litigation against an entity from any instituation to an individual, business, corporation or other is quite expensive.  Even if the litigation were to lean towards the favor of a stock photography company; the corporation would have to prove that the image could have no other possible avenue for distribution except through their institution (i.e. being mutually exclusive).  If you did in fact get the image from a Royalty-Free service from an organization, you might be liable for damages, but unless a court can show proof, the case has little bearing.

3)  Use good judgement.  An organization should establish business with the public and private business in good faith.  Most all companies are explicit by establishing images with logo, and (c) protention overlays directly on the image.  It does not appear that GettImages has attempted to protect their images in a way that provides an established visual breach; and has not attempted to incorporate one since these letters began surfacing several years ago.  


4) Even should a judge rule in the favor of GettyImages, the court has the opportunity to establish the actual "street" value of any said image, or images which may be the value of an established professional photographers work in taking a "like-image."

5) Bottom line, GettyImages is making money by persuing damages against any good faith form of business.  If a settlement can formed without moving through a formal legal process, they immediatly win.  If you decide to let them pursue legal action, they have an extremely small chance of taking away a settlement from a court, and the cost of the legal process has lead their company to eventually give up after a few letters are sent out, so they can "pray" on someone else.  

Piece.

[Oscar Michelen]

I answered your question on your private messages.  If you need more info just message me again with your  new question and I will address it. Thomas - good post!

[eyeswide]

First ,  thank-you everyone for posting this issue and OM 's continued effort and support for the small businesses that find themselves in this unsettling situation . My business has recently be targeted with a Getty request letter back in April 2010 and we have had several emails back and fore trying at get clarification regarding cost breakdown and an offer of market value. Long short short , Getty is not interested in any discussion of any type other than full payment as outlined . Our particular case is for one web photo which was in our web database amongst many other photos 98% Istock photo , which is now owned by Getty . Their demand is for  $1170  and a comparable photo purchased at the same time as 8 credits equals $12
and a comparable Getty license photo  is $ 49 for 3 months , so either way a tremendous cash grab and proves this not an effort to protect  their clients ( owners ), but a new profit center based of fear and the law of averages. I have read many blogs and letters of similar cases , and the same profile seems to emerge , sit tight  and wait it out.  My Question for any past victims , what have been their experience since the initial letters Getty , then Legal? or Debt collection ? and has anyone made it through , or has anyone settled at different stages ?  

Eyeswide in Ontario , Canada .

[Oscar Michelen]

While every case is different and Getty's response is not the same in every country.  In the States generally Getty goes to a company called NCS Recovery which acts as a debt collector.  But see my post on this forum about how they can't put you into collection actually.  After that they go to the McCormack Law Firm out of Settle which generates a letter and settlement offer.  We have not see McCormack file a suit yet, but Getty insists that the day when they do file suits is fast approaching.  We are all still adopting a wait and see attitude though I remain hopeful that we can get to the point where Getty agrees to accept a reasonable figure for the infringement and lets people move on with their lives.

[SoylentGreen]

With regard to Eyeswide's post,

Companies like Getty and Masterfile et al are Copyright Trolls.  They troll the Internet looking to scare money out of people under the guise of copyright infringement.

Getty hasn't registered any of their content with the Canadian Intellectual Property Office, “Copyrights Database” at this time.  So, it doesn't look like they're doing much in Canada to bolster a Canadian lawsuit.

These Copyright Trolls ask for a lot of money, so that even when you negotiate them down to half that (many think, 'what a deal!'), you're still paying ten times the actual retail price.

As Oscar mentioned, they can get a collections agency to pester you, but since it's simply a legal dispute, the agency cannot affect your credit rating or attempt any real efforts to "collect".

People are beginning to get wise to the extortion scams of Getty and their ilk; that's because word is spreading quickly that they haven't sued hardly anyone as yet. Surely fewer people are paying up; therefore we can probably expect that Getty will actually file suit against an "infringer" once the threatening letters are no longer as effective. Such a lawsuit could instill enough fear to get the gravy train moving once again, simply by these Copyright Trolls sending more 'extortion letters'.

I can't see them starting a lawsuit over a single image. It'll be over something much bigger, against an uncooperative opponent. Probably in a country having laws that are amenable to such a litigation.  It has to be worth their while, and they must have a good expectation of winning in court.

S.

[cpa2client]

Hi Everyone

They are after me also.  There is a whole other side to this.  Getty and like, obviously have some kind of software that can scan your website for ID markers and/or image recognition.  

So the really unfair part of this whole deal is that they are not sharing their technology with us.

Say you are a company owner and have a website and were told your images are lic’ed correctly.  You don't actually know and there is no way to find out if the images on your website are lic’ed.  

So you are stuck just waiting for them to find you.  Getty and companies owned by Getty literally have millions of photos it could take you months to find the images that are on your website and probably will not find them as at some point you will give up.  

This puts you in the position of having to replace all the images and they win again.

The fair thing to do, and a court somewhere should force them to do is share the technology that they are using to find these images, and give it to the public.  This way it is a win, win for everyone involved.


Thanks for the rant.

[SoylentGreen]

Hey Friend,

'Copyright Trolls' such as Getty and Masterfile are using software called "Picscout"  created by an Israeli company.  It's my understanding that Picscout is an image recognition 'bot' originally based on technology developed for the Israeli military.

You can read some interesting tidbits here:

http://williamfaulkner.co.uk/2007/09/picscout-getty-images-and-goodbye-istockphoto/

Folks like you and I might be allowed to use Picscout... but, not for free, silly!!  Where would the profit be in doing that?  Additionally, while a nice person like you might want to check your site for copyright violations in order to avoid any trouble, remember that the Copyright Trolls will make less money if people like you do that. So, why would they help you and lose money because of it?

Another conscientious person like you had a similar idea to have Getty check their site, just to be diligent and sure that they weren't infringing on any copyrighted images.  Here's a quote:

'This company sent Getty a link to their web site and asked them to review every photo and advise if they feel any were being used improperly. I had the same conversation with a Getty employee. Getty refused to do so. Instead, they sent their catalogue and asked that it be reviewed. The company returned the catalogue to Getty and renewed the invitation for Getty to check every photo they have. '  So, no help there..!

Read more here:

http://www.flickr.com/groups/gettyimagesonflickr/discuss/72157612849664574/

I guess that if you are making your own website, you should assume that if you didn't create a picture or photo yourself then somebody else owns said content.  If you bought the content, then keep your receipt... even years later. If somebody else made your website for you, then you should ask to see receipts for photos/images that have been bought, and make copies of those. Perhaps, you could make up a contract wherein the people who made your site will sign that the images were either created by them and/or bought in good faith.  That way if a copyright troll comes after you, then you can hold the site creators responsible for your costs.  Keep in mind that if you have someone in another (third world?) country build your site, you may have little recourse if something bad happens.  So, support your local web designer..!  Maybe others have some other ideas too?

Good luck,

S

[Oscar Michelen]

On the money SG as usual.

The best thing to do is take your own pictures or hire a professional photographer to do so. If you hire a pro, then have him sign a release agreeing that you own the pictures not him.  Also check out government websites with picture catalogs.

[cpa2client]

Thanks for the info.

It is kind of like you are walking down the street and someone slips something into your pocket.  It is a stolen item from a shop on the street.  You notice it is in your pocket and you take it out.  You look for the owner but can not find it.  Then you are attacked by a SWAT team.  Possession of item means you are guilty, now pay 100 times the lic fee and we will let you go.

Ok now for the real question.  Say you pay this one violation just to get it off your desk; you assume the payment ends this issue.  Three months later you get a notice for 10 more images.  

You have already agreed to the fees previously, so have paying the fees previously ended your legal ability to fight the second notice and expect to win?

Thanks

[Oscar Michelen]

My understanding is that once PicScout finds your site, it searches the whole site for all of the images of the particular image company it is working for at the time.  So you should be in the clear as far as Getty is concerned.  Some of your remaining images may be discovered by Corbis and Masterfile however, which also use PicScout.  

In any event, a settlement is not an admission and evidence of a settlement is normally inadmissible in Federal court under the federal rules of civil procedure.

[SoylentGreen]

I agree with Mr Michelen.  If you’re worried about it, you can ask for a ‘full release’ which would simply state that the matter is settled, and cannot be brought up in the future.  If you have other images on your site whose origin you’re not sure of, you should remove those to avoid possible future trouble.

I’ve seen quite a few people on this forum state that Copyright Trolls such as Getty or Masterfile are harassing them over one or two images.  There are some things that are important to keep in mind in such situations.  These cases are extremely low-priority.  At any one time, the Copyright Trolls are likely pursuing thousands of similar people.  Although they make it seem that the copyright boogeyman is out to get you, you must realize that there’s no ‘war room’ set up with your name on the wall, they’re not saying “that ignorant John Doe who stole one image better pay up” in the boardroom,  and they’re not saying your name in the lunchroom on break. They have a project management system on computer that reminds them of who they need to send letters (or even phone) to at preset intervals.  The letters are simply form letters with your name stuck in there saying you’ve stolen “x” number of images on “y” date, and “here’s another photocopy of your web site” attached.  Each form letter is pre-made to sound more serious in tone each time, to make it seem like things are escalating. Although the fact that they don’t negotiate on price makes it appear that they are confident and quite serious, the real fact is that they simply could not afford the staff that it would take to make deals with thousands of people, so the answer is, “just pay it”.  Those who have allegedly absconded many images might wonder why they always phone on Wednesday at 1:30 PM, for example; that’s simply their project management system reminding them to bug you at a preset time; they’ll spend a couple of minutes a week on each target.  They next guy always gets called on Wednesday at 1:32 PM…

Getty in particular hasn’t done much to copyright any of their content at this time. So, the likelihood of them winning anything in court is practically non-existent.  Similar companies are presently losing court cases because they didn’t register their content correctly, so how could Getty win by not registering anything at all? To keep things in perspective, imagine that they sued you for use of their $49 image.  Even if they won, and got their legal fees awarded too, they would net a big $49 dollars for going to court. That $49 dollars would be eaten up several times over by the labor of preparing a case. It’s just not worth it for them to sue you for one or two images.  In addition, they cannot “invent” phony damages and seek them in court.  Even if you used one of their images, this never prevented them from selling the image to others or damaged the reputation of the company, etc.

The more Copyright Trolls such as Getty, Masterfile and others harass people, the more their reputation is damaged. Type “getty” into Google search.  Google attempts to complete the search with “getty images”.  But how long before that’s replaced with “getty extortion”, or “getty copyright troll”? People will click on those to see what the rhubarb is about, then they’ll begin to approach any business with them with distrust, and they lose. You don’t need an MBA to figure that out.

S.

[Oscar Michelen]

Good post SG - I just want to add that since the images were not registered at the time of the infringement Getty woul dnto be able to recoup their legal expenses.

[Jowik]

I have been a web designer/consultant for over 13 years in Canada.  I have always been very cautious of copyright.  In fact, I use Microsoft's royalty-free clipart site (or my own camera) because I know they have the lawyers and money to ensure the free use of the images there.

Anyway, to my point and thoughts about Getty.  One of my clients, where I took over the hosting of their website and conversion over to a content management system, wanted to maintain the same look and feel but I suggested to redesign the site.  Fool on me for not researching the images that the previous web designer used!  My client just contacted me and told me that they received THE letter from Getty demanding a large sum for 3 small images.  They did show that these images were rights-managed, citing the photographer and such.

My issue is, what's to stop Getty from dumping these rights-managed images on image database sites and other sources themselves, hoping that someone grabs it and uses it, like bait?  I would not be surprised if that is what they are doing.  In any case, they should be going after the places that the end user got the images in the first place to rule this out, instead of laying ALL the responsibility on the end user.

Just my two cents...