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Getty Images Letter Forum / Re: LCS Trunk Archive Follow Up Letter

« on: March 29, 2017, 03:00:34 PM »

Thanks for the reply.

It was an image that I saw on Instagram from a fashion designer in New York. Basically I screen shotted it and posted it to my Instagram which automatically posts to the blog on my website. The image did not have any water marks, copyright info etc. associated with it.

It seems pretty far reaching. The image was immediately deleted once I got their first correspondence.

At this point as far as I'm concerned they didn't respond to any of my demands that they produce documentation of the registration of the copyright, their authorization by the owner of the copyright etc.

Re Gap: They seem to have blown off my argument and be saying that they are allowed to make up their own "reasonable licensing fee"?? In my letter to them I found and used about 10 images from stock websites that were almost totally similar and about half of those were royalty free and the other half ranged from $20-$75 bucks. They seem to have totally ignored this and construed it into something else. They said, "the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.
 
Trunk Archive license millions of images each year at fair market prices.  The offer of settlement in this case is based on established rates for like license terms of images of like quality. In fact, it goes further and it is based on the exact license terms you would have required for the exact image.  Your reference to the pricing of royalty-free imagery is not valid in this case."

These people are unbelievable. Any advice on next steps would be great.

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Getty Images Letter Forum / LCS Trunk Archive Follow Up Letter

« on: March 27, 2017, 01:29:20 PM »

Hey all. I received the original boiler plate letter from LCS demanding 675 dollars for use of an image. I responded to them in kind with the Gap case law, multiple similar images from stock sites and their costs and the demand for them to produce their entitlement, proof of registration etc.

Instead of going away they responded with this:

"License Compliance Services Inc. is a company that specializes in assisting copyright holders with the management and protection of their content. Our customers have mandated LCS to handle the matter of your online use of their imagery. We are here to protect the interests, intellectual property and livelihoods of our artists. 
 
The image in question is a copyrighted image, which have a very restrictive licensing model that limits use of an image to the specified size, type of use, placement, and duration of use set forth in the license.  This image license is not transferrable or shareable. That is to say, a specific license is required for the use of the image on any given website. Ultimately, the responsibility to settle this case lies with your company directly.
 
A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. You do not have a valid license to use the images in question. All it takes for you to infringe is to post a rights managed image publicly without a valid license.
 
If you have proof of use, copy of the license or letter from the artist authorizing the use of the restrictive copyrighted rights managed imagery please forward us a copy for review.
 
While we appreciate the removal of the infringing imagery from your website, the prior unauthorized use of the image is still considered copyright infringement. A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. Since the copyright infringement has already occurred payment for that unauthorized use is necessary. Unfortunately, being unaware of licensing requirements does not change your liability for the infringing use. Your company does not have a valid license to use the images in question.
You have identified several images that are available for license on a ‘royalty-free’ basis. Leaving aside the quality of the image for a moment, a royalty-free license is non-exclusive (meaning there is no limit to the number of people that can license that image).  Additionally, many royalty-free files found on sites such as the ones that you have identified are non-exclusive to those sites, meaning that many stock photo sites have the same commodity content.
The image that you actually infringed is licensed on a ‘rights managed’ basis.  In addition to being of a higher technical quality, a Trunk Archive rights managed image is made available exclusively through Trunk Archive and its distributors and the license fee is based on size, type of use, and placement.  Unlike royalty-free images, rights managed images are available for license on an exclusive basis, at a premium that reflects the high quality and limited availability
 
Your letter quotes On Davis v. The Gap Inc. as support for your offer of the cost of a royalty-free image license.  As you correctly point out, the question is not what the owner would have charged but what the fair market value is.  What you failed to identify, however, is that the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.
 
Trunk Archive license millions of images each year at fair market prices.  The offer of settlement in this case is based on established rates for like license terms of images of like quality. In fact, it goes further and it is based on the exact license terms you would have required for the exact image.  Your reference to the pricing of royalty-free imagery is not valid in this case.
 
Resolution in this matter includes the removal of the imagery and the payment of the settlement fee for the unauthorized use.
 
For information regarding the infringement, please visit: https://settle.lcs.global/2245-7461-8796. Here you will see the imagery in question and where it was captured on your website.
 
To view the Rights Holder Form, Statement of Authorization and Settlement Release Agreement go to “Additional Supporting Documents.”
 
If you have proof of use, copy of the license or letter from the artist authorizing the use of the restrictive copyrighted rights managed imagery please upload any relevant documentation by clicking on “I have a license/authorization to use the imagery. What is the next step?”
 
Also, this link is a video that was created by Getty Images to help explain how copyright infringement can occur and how to avoid it.
 
 
 
Thank You,
Koleta Vee
License Compliance Services, Inc."

Is this a normal response? Is there something particular about my case that is different than others? Any suggestion on responses?

Thanks!