... is a good offense. I am new here and have joined because I feel there is strength in numbers and I wanted to suggest a way to turn the tables on Getty Images so that they are eventually prevented from continuing their present practices regarding these Demand Letters and the exorbitant amounts of damages they seek to extract from frightened recipients.
To begin with, I want to share my own experience at their hands, in case any of the things I have done will be helpful to anyone else. I have benefited from the many sites that offer help on this issue and would like to "pay it forward" if I can.
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MY EXPERIENCEBy way of background, I created the first version of my web site in June 1999. At the time, I was supporting myself through doing book production services for publishers and authors and had even been a managing editor for a small New Age publisher, so I was keenly aware of copyright law and issues at the time I created my site. The site has always provided its content at no charge to anyone, and downloadable copies have always been provided in printer-friendly format. My entire life has been about service and this web site is totally about service, as well.
When people wrote to me and asked for the material in book form because their printouts were unwieldy and falling apart, I obtained donations for printing the books, using my own skills to produce them. When my site provided support for people following 9/11, people asked if they could talk to others of like mind, so I created a private online forum to meet that need. I have not asked for donations for the forums service since November 2014, and scrape by each month through the generosity of others who give me donations because they wish to support my work in the world.
There have never been any ads or links to other sites at any time, and at present, there is only one book (a "Combined Works" edition) described on the site. There are no order forms, shopping carts, or other commercial trappings whatsoever. The description of the book links to the Amazon.com page about the book so that people can "Look Inside the Book" to see the annotated table of contents and read sample material. I carry no inventory and do not sell the book myself and I do not have an affiliate relationship with Amazon.com. The book is produced on demand from booksellers through LSI, and I have priced the book such that it barely covers printing costs in order to keep the price as low as possible. This is a totally educational site, offered as a public service and there is no income that accrues from the site.
I have always tried to make use of either licensed RF images or ones that were offered at no charge. In recent times, the subject matter has sometimes required the use of images I obtained through a web search to illustrate a given point being discussed. There are very few of these, perhaps 20 out of a total of 555 images on the site, and I both give attribution when I can and have a "Fair Use" notice at the bottom of my home page. I was therefore understandably blindsided (and terrified) when I received that first letter from LCS. The amount of money they were asking for was impossible for me to pay, but it wasn't until I got back a reply to my response that I suspected something more was going on than what it seemed to be on the surface. I dug deeper and did a search on "copyright infringement scam" and realized the magnitude of what was going on and just how many people were being attacked.
The first sites I found were very helpful in both defining the problem and offering tactics for dealing with it. The most important suggestion was to request proof that there was a registered copyright behind the demand. I have since learned that it also has to be an EXCLUSIVE right, pursuant to Title 17 Chapter 5 USC:
"§ 501. Infringement of copyright
(b) The legal or beneficial owner of an
exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it."
In my particular case, neither Getty Images or its subsidiary Science Photo Library, has an exclusive right to the image they are trying to collect compensation for. In addition, I have copies of gettyimages.com and gettyimages.de pages for this image that clearly state (in English and German, respectively), ""Sorry, we are not able to license media #123737816 due to country, company and/or publication restrictions." (Here's the
link to the page in English.) Getty Images can't license the image, and I found three other companies offering it for licensing, each with their own watermark that shows them as the "owner" of the image. The bottom line of this is that Getty Images (or their wholly owned LCS division) CAN'T proceed against me in court for the unlicensed use of this particular image.
That's a great relief to discover, but I am still very disturbed about the entire experience and it's not over yet, by a long shot. I am still relying on an assertion of fair use protection, which they continue to deny without providing support for their denial. The burden is on them to prove that they are entitled to compensation, and so far, I have gotten the same boilerplate replies that so many others have been given and they are not sufficient, so I am now waiting for their response to my most recent reply to them.
I will be very surprised if they simply drop the issue, but enough has gone back and forth that I am convinced that there are grounds for both criminal action against them (for extortion, fraud, and unfair business practices) and a class-action suit (civil litigation) asking for 1) injunctive relief (preventing them from making these demands if they don't already possess an exclusive right to the image itself); 2) restitution (paying back all of the sums they extracted illegally whenever they did not possess that exclusive right), and 3) punitive damages for causing emotional distress.
There are enough people who have been affected by this to make for a very solid base for a class action suit. I also have done some research into the various authorities that COULD prosecute the criminal charges, but I do not have confidence that they would on an individual basis, so there, too, a case would have to be made for the large number of victims being harmed through these illegal practices. They ARE illegal because they rely on fraudulent assertions of right, denials of the victim's assertions that are not based in law, and fabrication of grounds not based in fact, such as alleging injury that is not proven. They know that this can only be determined in a court setting and they are using fear to intimidate people into "settling" outside of court, using tactics that are illegal and meet the definitions for extortion and fraud.
That being said, it is much more difficult to PROVE criminality "beyond a reasonable doubt" than it is to prove liability through a "preponderance of evidence," the standard for civil litigation.
We live in times when the large corporations may be fined, but are "too big to jail," and Getty Images has created firewalls for itself that limit liability through its many corporations that it then "assigns" to handle its business. I don't have any objection to any company conducting its business fairly and I do feel that copyrights should carry some enforceable protection for the creator of the work. Under US copyright law, the copyright has to be registered with the Copyright Office of the Library of Congress to be enforceable, and in my case, I got the usual boilerplate response to my request for proof of copyright:
"Copyright registrations are required prior to filing suit but are not required for the work to be protected under the copyright act. We would submit any registrations to the courts at that time and the requested copyright registration(s) would be made apparent through discovery. We have chosen to try to quickly close unauthorized use cases such as this by avoiding the burden and cost of litigation. Registration(s) are not required with respect to settlement, especially when the damages we seek are based on what Science Photo Library and its represented photographers have been injured as a result of the unauthorized use and now seeks to be made whole. These damages are calculated by the lost licensing fees, including our costs of enforcement. Had there been no infringement on our represented photographers' copyrights, we would not be attempting to recover these fees and the added efforts to pursue this unauthorized use matter."
They don't have a registered copyright and they don't have exclusive rights to this image, so they have no legal standing to claim compensation from me for use of this image. As soon as I realized that there was a problem with the image, I removed it from the site and the server and replaced it with another that is public domain. I also sent LCS proof of my having done so. I would NOT have purchased a license for this image even if I had been aware of it as being a licensable property. It just wasn't that good or important to me. It was a minor image to illustrate ONE point being made on a minor page, one of 125 pages in the site, and one of four images on that page.
If it would be helpful to anyone here for me to post the entire correspondence I have had with LCS to illustrate the tactics I used at each step, I will be happy to do so. However, my purpose in coming here is to "rally the troops" to take this bully down and prevent them from being able to continue their illegitimate attacks and from profiting from them. I am quite sure there are enough injured parties to collectively prove harm, but someone (not me) will have to take the responsibility to organize the effort and engage a lawfirm willing and able to proceed on a contingency basis. I will be 74 years old on Saturday, and do not not have either the energy or the inclination to make this a long-running focus for my life, so I am not the one to do this, but as long as I am here, I can offer comments and support.
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