Template Monster and Getty - my story

[gettyvictim120]

Note: I have previously posted this story in the google group Help for Getty Victims and elsewhere. I have made a few minor edits. My thanks to the forum hosts for providing this space to share my story. I received my refund check from Getty Images and have sort of closed this incident. I have continued to follow other cases and have learned a great deal about copyright and intellectual property laws and I strongly believe that Getty Images is exploiting US copyright law for financial gain. In any event, I have saved all of my Getty paperwork and will happily submit it if there is ever a class-action in the US.

I call this a small victory because I think I just got lucky. Because
of a set of circumstances and my State Attorney General applying some
pressure, I will be receiving a refund on the demand fees I paid. I
will try to explain what happened to me and maybe some of you in
similar situations can find relief.

I purchased a web template from Template Monster. Getty Images
pursued me for use of an image included with the template. I had proof of
purchase, plus copies of the terms of use included with the template.
The image had no notice of copyright and I assumed that template
monster had the right to distribute that image for my use.

Getty Images notified me in January 2007 with the first demand letter,
more than 6 months after being published on the web. The demand was
for $1300. I removed the image from my server immediately and I
contacted Steve Chizmar, copyright officer with TM, informing him of
the situation. He advised me to ask for proof of copyright and to take no
further action. I ignored the first letter.

I received a second demand May 2007. I ignored this letter too. Tried
to seek advice from an IP/Business lawyer. My state has about 5 IP
lawyers and none were willing to look at the case mostly because the demand
was for such a small amount (not small to a business start-up though!).

In August 2007 I was sent to collection. I received a letter and a
phone call from the collection agency within one week of each other.
After telling the agent the invoice was in dispute, she informed me
that I had to pay or Getty would sue me for 10 times the amount of the
invoice (which is illegal if Getty never truly intends to sue). I
decided to pay the invoice and seek financial redress from Template
Monster. I also sent a formal letter of complaint to my State Attorney
General and asked them to negotiate in my behalf with Getty Images.

In September I started my weekly letter writing campaign with Steve
Chizmar at TM asking for financial redress for the fraudulent product
sold to me. Steve Chizmar responded and said that there was an
agreement with Getty and all I had to do was remove the image and not
owe any money.

One week ago I received a phone call from Getty Images. They informed
me that they received my formal complaint from my State Attorney
General. They now have an agreement with Template Monster and will be
refunding me my demand fees. The phone conversation went like this:

GI: We have been pursuing TM for years for outright theft of our
images.

Me: Why, then, have you pursued me for more than 6 months for this
money?

GI: We had no way of knowing how you obtained the image and had to
assume you stole it. Ultimately you are responsible for the use of the
image regardless if you obtained the image from a third-party like
template monster.

Me: Why then did I have to go through the extreme measure of being
sent to collection when I did NOTHING wrong? The image had no notice
of copyright and there was no way for me to know the image belonged to
anyone other than Template Monster.

GI: Someone had to pay for the image. You're right, there would have
been no way for you to know, but someone still has to pay for it
whether it is you or template monster.

Me: That isn't really fair.

GI: Well hopefully we can do better by you next time.

Me: Um. Hello! You don't treat potential customers like criminals and
expect to turn them into paying customers. No. Getty Images has lost a
possible customer as I will never, NEVER, have future dealings with
Getty Images.

I don't think I would be receiving a refund check if I hadn't filed a
formal complaint. My state AG doesn't always mediate unless they feel
it is in the state's best interest. They must of felt this case
warranted it and for that I am grateful. I should received a refund
check in about 2 weeks.

Best of luck to those in similar situations.

[Matthew Chan]

This is an excellent story.  It proves that fighting back helps.  This notion that "somehow has to pay" is flawed.  You cannot simply tag someone else to pay if that party is not at fault.

Which state did you file a complaint to the Attorney General?  I would like to know to give them some public kudos and recognition.

[gettyvictim120]

Idaho.

The letter Getty received from the Attorney General only notified them that a formal complaint had been made and asked them to negotiate.

[Matthew Chan]

Nicely done.  It had not occurred to me to complain to our own home state's Attorney General.  It would sort of make sense that they would want to help protect your own citizens.

I extrapolate that to our own Congressmen and Senators might be called upon to help stand up for us.

Thanks for your contribution.  Our readers will appreciate it very much.

[Oscar Michelen]

Dear Getty Victim 120:

Thanks for the post! Congrats on getting your payment back. What apparently happened in your case is that Getty was trying to "double-dip" - that is they had reached a settlement with Template Monster and were trying to get double damages from the end user as well. It is imperative that people not just roll-over and pay the demanded amounts. That is what Getty Images is counting on. That Getty "put you into collection" does notmean anything, it is just another scare tactic. They would have to institute suit aginst you, win, enter a judgment, and onmly then would they be a judgment creditor against you. Since you never ordered anything from them, they can't just invoice you and say you are in collection. All they have against you right now is a "claim." They allege that you did something wrong and owe them money.  That's it, just a claim. A claim that they would have to prove in court if they decided to seriously pursue it.  The text of your conversation with them is frightening. That a major corporation would be making statements like this in an attempt to get a quick settlement on a claim is really troubling.     I commmend you and your State AG for following through and getting your money back. Please tell us your home state so I can send them a letter requesting information about how they are dealing with the Getty issue and to thank them for taking action on it.  Let us know when you get the check (and if it clears!).

[gettyvictim120]

I received the refund check about one month after the phone conversation and it cleared. This all happened about one year ago.

I don't know that Getty was necessarily double dipping. I think Template Monster and Getty had been in negotiations for quit some time. What is clear is they knew that Template Monster was selling templates with "their" photos. Regardless, they wanted payment from somebody for the use of the photos, whether it was me or Template Monster. They don't really care if you get your picture through a third party as long as they get payment. They will pursue both offending parties until they get their money. So it is possible they were double dipping with other victims and that other Template Monster customers paid Getty in addition with Template Monster's settlement. Any other Template Monster customers who received the Getty letter should ask for a refund on any fees paid.

I got lucky because my formal complaint with my state AG converged about the same time as the agreement between Template Monster and Getty. If I had paid out when I received the first letter I might have been out of luck.

[Oscar Michelen]

Dear GettyVictim120:


Thanks for the info. Great job getting you rmoney back.  What state are you in?

[Matthew Chan]

In an earlier post, he said he was from Idaho.

[gettyvictim120]

Oscar, I am wondering if you would like me to send you a copy of my case even though it has been resolved? I am not seeking legal counsel but would like to help others. Keep up the good fight!

[Matthew Chan]

Yes, please send your information in to us.  You can email it to [email protected].

Thanks.

Matthew

[Oscar Michelen]

that would be great and very helpful as we compile as much info on this situation as possible

[marhevek]

Hello,

Now I am in very similar situation. I am in TM affiliate program offering their templates on my site. About 3 months ago I received a  doc from an advisor representing a man claiming rights to the photos on a template - he claims he is on a photo kiteboarding and as a famous kiteboarder his  image has been reduced and he wants about 5K USD satisfaction otherwise he will bring action against me. Apart from that they mention that they buy the template on my site so that they have proofs and I can confirm he did, he is the only one who bought it.

I reply that I am in an TM affiliate program and I am not interfiring into TM packages and he should demand satisfaction from TM not me.

I contacted Steve Chizmar and asked for help. He replied he was working on it and that he was waiting for answer from Bigstockphoto -

I contacted Bigstockphoto Legal Department; they asked me for time to investigate on their end. I will follow up on this case and get back to you once there is an update. - it came 05.17.2010 and I got nothing from him since then even though I wrote to him several e-mails.

Today I received new letter from kiteboarder's advisor in which he gives time till the end of July to prove I have the rights to the photo otherwise he will bring the action to court.

I've sent next e-mail to Steve Chizmar but probably I won't get any reply. I also noticed they chenged photos on the template mentioned.

What do you suggest I should do in this case? It's really a lot of money they want from me and no support from TM so far :/.

[Robert Krausankas (BuddhaPi)]

How are you serving the templates? Usually TM affiliates would use an IFrame to serve them thru thier sites, if this is the case, you could simply point out that the template they are referring to is not hosted on your site and is being hosted/servede thru TM server, that could /should get you off the hook..same goes for the purchase of the template was the purchase actually done on your site or was it done thru TM's affiliate interface???

Hope this helps..

[marhevek]

Thanks buddhapi but unfortunatelly we made our own script that imports and categorize templates and customers oreders them directly on our site and then we purchase the template and reinvoice it to the customer. We put link to the script which downloads it to our server and sends e-mail notification to the client with the link to our server and the passwords for the sources and after 12h the link is desactivated automatically.

We made it this way because we also offer the templates with our CMS so users can order an individual offer of particular template and chosen cms funcionalities and then we semi-manually prepare the offer and send it to the client. It's semi automated.

So in this case the template was invoiced by us.

[Robert Krausankas (BuddhaPi)]

well thats a bummer to say the least...perhaps you could grab a screenshot from archive.org of the template in question from TM, before they removed the offending image to further prove that TM supplied you with the template.. It's a stretch, but you might get lucky and if they realise that TM was selling this template to potentially 100's/1000's of affiliates, they may change direction.. Good luck and please keep us posted on this