Extortion letter/s from August Images

[hackofalltrades]

Hello all, new to the forum, and victim of the dreaded extortion letter.

Here's the story.

On January 5, 2015 I got the following letter from August Image:



License Compliance Services, AUGUST.

605 Fifth Avenue South, Suite 400
Seattle, WA 98104
United States
[email protected]

05-Jan-2015


Dear XXXXXX,
It has come to the attention of AUGUST that an image or image(s) represented by AUGUST are being used or have been used online by your company. According to our records there is no valid license issued to your company for the use of the image(s).

To view the image(s) in question together with the usage(s) found on your company’s website, go to: https://XXXXXXX

Using a AUGUST image without a valid license is considered copyright infringement and in violation of the Copyright Act, Title 17, United States Code, entitling AUGUST to seek compensation for infringing uses. AUGUST is committed to protect the interests, intellectual property and livelihoods of the contributors with whom we work.


To resolve this matter (Case Ref: XXXXXX):
_____________________________________________________________

If a valid license has been issued for the image(s) in question:

Please email the license purchase information to [email protected] within 10 business days of the date of this letter.

If a valid license proof cannot be found:

Please cease using the image(s) in question immediately.

In addition, please remit settlement payment in the amount of $660.00. Ceasing use of the image(s) does not release your company of its responsibility to pay for the image(s) already used.
We are willing to offer you, ex gratia, a 20% discount off the settlement payment amount, provided that you submit payment within 10 business days from the date of this letter. Failure to do so will result in the settlement amount being returned to its original amount upon the expiration of the aforesaid time period.
                     Please see below information for payment.

 

Remittance Payment Options (settlement fee: $660.00)
_____________________________________________



So, immediately upon receipt of the e-mail I deleted the image and the page it was on, off of my website. A few days later, just out of paranoia I deleted my entire website just to be sure.


A little back story…

This is not a business, a blog or any type of commercial website. I generate no revenue, have no ads etc. It's a personal portfolio site showcasing artwork and Photo-manipulations that I have created. The Image in question was used as the source of one of my photoshops. Here's where they have a point. the image in question, was in fact hosted on my site, next to the heavily photoshopped version, as an example of a "before" image. It was a scaled down thumbnail from the original file that I got off of one of the dozens of fan websites that are also hosting the image.

Are they correct? Technically, yes. Do I have a leg to stand on.. technically no… But.. I want to know how best to proceed.

Another tidbit. When I downloaded the file from who knows where, it was 2006. I know this because the time stamp on the photoshop layered file that I have, says 2006. The company, August Image, was, according to Wikipedia, founded in 2007. So.. They did not have the rights to the image then. I know that's not much to stand on, but my indignation is rising as a result.

So just for due diligence I did some digging to see if I could find any connection to this image and August. Through google reverse image searches I dug for several hours and found nothing but dozens of other potential infringers.

I discussed my situation with friends and colleagues. Most thought it prudent to ignore it and see if they came back sniffing.

Well… they came back with a physical letter.

They reiterated the same stuff. and called it my second notice.

I tried other avenues of reverse image searching.. tineye found the original photographer and I eventually traced it back to him being represented by August.

So I now know that they do have the rights to it.

So, after sitting on it for another two days, I decided since they did have a point, I would contact them, with as reasonable of a letter as I could, pleading my case/ignorance. Obviously after reading other posts on your site, I now understand this was playing at least somewhat into their hands.

I e-mailed the following:

I received a written notice in regards to infringement of one of your images. I believe this to be in error and wish to resolve this amicably.

Reference Number: XXXXXXX

The website in question, is a personal portfolio site. It is not a company site, nor does it have any monetary value or source of revenue. (There are no ads etc.)

Usage was for a non-commercial, personal, photoshop parody piece, and was only displayed as a low resolution thumbnail, for a comparison/before image. I was under the impression this would be viewed as usage for educational purposes. Obviously you disagree.

The image was removed from the site seconds after receiving notification of an infringement claim. Furthermore, for good measure the entire site has been taken down. This was done in good faith, and I'd very much like to treat it as a take-down notice.

The image was not taken from your site, nor was your site found to have any connection to this image when doing a reverse image search. I also could not verify that the image is on your site without signing up as a member and giving you credit card information. Please understand that I am not disputing your rights to the image at all. I just did not find any reasonable way to verify either of our positions.

I'd like to discuss it further. Please let me know how you'd like to proceed.

Could you provide me with a few bits of information?

1. What does a license for this image cost?
2. How did you arrive at the price demanded in your letter?

Yes, I realize now, I've basically copped to it. I don't see a way not to.


This morning they responded with a very unhelpful reply full of double speak:



The price for a license for this image would need to be discussed directly with August Image after you have completed your settlement.

Settlement amounts are based on the fair market value of a license, taking into consideration usage, placement, and additional information. The settlement is calculated by taking the average cost of licensing, plus a portion of costs incurred in the pursuit of the unlicensed use. Using the image without a license ultimately costs more than properly licensing the image before use.

Lastly, while we appreciate the removal of the imagery from the website, the prior unauthorized use of the imagery on the website is considered copyright infringement. Since copyright infringement already occurred, payment for that unauthorized use is necessary.

Regards,

XXXXXXXXX
License Compliance Services, AUGUST Image
P: 1.855.387.8725 E: [email protected]
605 Fifth Avenue South, Suite 400
Seattle, WA 98104


Anyone have any brilliant ideas of what I should do now?

[stinger]

Well, you did cop to the use.  That is not so good.

I am wondering if your use could be considered "fair use".  After all, you are trying to demonstrate photoshopping techniques.  It would be difficult to show the extent of the work without the before photo.  I am not up enough on "fair use" laws to know how a court might look at this.  Perhaps a member of this board who is more up on fair use might choose to comment.

In any case, before I paid them anything, they would have to justify to me that they are the owners of this photo or that they have been given the exclusive right to represent this photo with all rights to it, from the photographer.  Your point that you were using the photo before they were even in business should justify the need for this kind of evidence.

I will say this.  Getty or August Images or whatever they are calling themselves today have cleaned up their correspondence considerably.  They have cut back on the legal threats and spell checked their documents before sending them out.  That's a big change from where they were 3 - 5 years ago.

[Robert Krausankas (BuddhaPi)]

may very well be a case of fair use here, if you showed a comparrison and discussed it in any way, also worth noting is that you have a photoshop file that shows 2006, if August was founded in 2007, they have no way of knowing if you had a license from somewhere else, if you had permission from the artist, ect.. and it would be ON THEM to prove their case, IF they were to file suit.. If it were me I would not pay, knowing what I know now after 4=yrs in this, I would take the chance and simply ignore them here on out, and IF they file suit, I would immediately file for dismissal based on the fact that august did not exist in 06, but the image did.

I'm not a lawyer...

[hackofalltrades]

Does anyone else think this statement is odd?

"The price for a license for this image would need to be discussed directly with August Image after you have completed your settlement."

The wording of it makes it sound as if this is a little scammy... like... they're a separate entity that has nothing to do with August.
They just want the money.. who cares who did what or has the license.... Just sounds odd.

In other news, I'm really feeling like I need to get a lawyer that specializes in this. But.. I'm worried that it would amount to more money than what these guys are demanding.

Having never employed a lawyer before, is that likely to be true?

[stinger]

Although there are no guarantees, I suspect that Oscar's letter program will put this thing to bed for you once and for all, and for quite a bit less than they are asking.

I would think the Getty letter program applies because August Images looks and smells a lot like Getty.

Check with Oscar.

[Robert Krausankas (BuddhaPi)]

the original demand letter comes from picscout on behalf of August, and we know who owns picscout..hence all of these letter are identical except for the company name.. we may have seen a downturn in Getty letters, but we've certainly seen an upswing with letters coming from piscout ( pronounced GETTY).

[hackofalltrades]

So, do you all think I should just play dead for a while and see what happens? They know I'm a person now, since I stupidly responded.

[Greg Troy (KeepFighting)]

August deals mainly with images of celebrities if I remember correctly.  This is a little different situation that the typical Getty image of a sprinkler head.  While it sounds as if there may be a fair use claim I think you would need to talk someone like Oscar about that. 

I have not heard of any August lawsuits but I do not know for sure, I will try and check PACER this weekend to see if any show up.  My opinion on this one would be to use Oscars defense letter program. 

[hackofalltrades]

Yes, that is the case, it's a celebrity photo. So all of this may be more serious?

It certainly makes it difficult to determine fair market value on my end....  to even counter offer with, if I decided to go that route.

[Greg Troy (KeepFighting)]

Exactly, this was not a run of the mill photo.  My normal response is to fight it yourself but these types of photos are different and August is a different type of company.  Here's why:

1)  August only offers high end images of mainly famous people.
2)  These type of images are usually registered filed.
3)  August uses only a handful of artists as opposed to the thousands Getty represents.

Add it all together and you get an image with a much higher chance that it may be pursued and that is why I would recommend in this case using Oscar's defense letter program.  Oscar has handled close to 1000 demand letters, he knows what going on, he knows what's fair for a settlement. 

I hope this helps you, I'm sure it's not what you want to hear but as I said this is not a run of the mill Getty image where there are a 100 more just like it selling for 5 bucks a pop. August handles one of a kind high end images you are not going to find just anywhere and as such these images are much more valuable.

[Jerry Witt (mcfilms)]

You will obviously have to do what is right for you. If it were me, I would insist this thumbnail image on a non-commercial portfolio site that was used to show a photoshop technique falls under fair use. They will obviously disagree. I would notify them it is at their discretion to pursue this as a federal case, but starting immediately you will be billing them for time it takes to address any further questions.

That's just me.

[Greg Troy (KeepFighting)]

Nice to see you on here again Jerry!

[lucia]

Yes, that is the case, it's a celebrity photo. So all of this may be more serious?

It certainly makes it difficult to determine fair market value on my end....  to even counter offer with, if I decided to go that route.

It's not just a "celebrity photo". Celebrity photos can include papparazzi shots and so on. Those can be valuable-- but some are nearly interchangeable and of limited market value.  But August images are often clearly staged images created by well paid photographers who have been hired to create advertizing campaigns, magazine covers, and so on. 

To gauge the 'risk'.

On the one hand: August Images does carry truly valuable images. They do need to protect their images from being posted because those images have actual customers who don't want the value of the images devalued.   It's quite likely all the images are registered, and it's likely that if they pursued this, they could prove value of the particular image you copied.  The argument wouldn't be some general argument about the value of collections of the business model as a whole and so on. It would be showing the value of that particular image.

On the other hand: we don't have much history on August. It may very well be that they drop things if people don't pay. After all: They actually do have paying customers for these images.  So, their business model isn't to have a collection of near valueless images bymake money by scaring people into over-paying.  Given that, it may well be that they would drop this rather than suuing -- and that their real goal is to just get people to take these down. ( Scaring them enough to get the story out that you shouldn't just pick any old image to post would likely be part of their motive too.)

Factors making them (or anyone) less likely to sue are the the fact that you used a thumbnail -- which by it's nature has a lower commercial impact on saleable uses and that can affect the size of awards they could get.  After all: the image is small.

Other factors? I can't say, I don't know enough about your site to know how they might view it overall. I also don't know if the company is in a situation of wanting to send a message and so on.

As for the rest: I don't know how the "fair use" defense would pan out. I don't know enough about how strong the argument your use was "fair use" would be in court. After all: they could point out that you could have chosen any image at all to demonstrate what could be done with photo-shopping. You could have taken your own image of some young lovely and photoshopped her. The question they would ask you -- and the judge would want to hear the answer is: Why use that image? Why not some other image?

When it comes down to it: the risks are something you need to judge. I'd gauge this as "more risky" than the typical Getty Letter because (a) typical August images are more valuable and marketable than typical Getty Images images and (b) we don't know much about how August generally behaves.

How risky is it? That's the unpredictable thing. But really, no one here can tell you much more.