Cease and desist letter received from Getty Images for possible copyright infringement

The "Getty Barrage" of letters has been going on for some time now. They employed a firm to do a web scouring for their images and have sent letters out to all commmercial sites that have any Getty images on them. This is very likely just an attempt to show an effort at enforcing and declaring their copyright for images for which they may not have filed copyright protection. So, the main issue has been whether Getty has a filed copyright for the images they are talking about in their letter. Now that you have taken the images off your site (a smart move) you can write Getty back asking for proof of their legal claim in a nice polite letter. You can also have an attorney draft that response for you. That your site was created by a third party would not be a defense to a copyright lawsuit. You should ask the third party from where they obtained the images; it is possible that Getty may have had the images availabe for download at some time or on some site that could effect their copyright claim. Also, just because Getty says they will file suit doesn' t mean that they will or that they will get $8,000 in damages. This is a small amount that is not likely to be worth Getty's hiring an attorney in your area to file a federal litigation, especially once you have pulled the images from your site. If there is no filed copyright, then they may have to prove actual damages, which will be very difficult. Finally, once they file, you will still be likely able to settle it with them for less than the $8,000 they are seeking now. Other than sending them a letter telling them you've taken the images down and asking for proof of copyright, I would hang on right now and see if Getty starts taking any steps towards the larger alleged violators.

Firstly, Getty Images does not own copyrights to any of those images... Each individual photographer does. Since the Copyright Act was substantially revised in 1976, you don't even have to register a work in the United States Library of Congress anyway. Writing a letter to Getty Images advising the images have been removed will not work. They will continue to pursue. To comment on the "filing suit" answer above...if Getty Images says they're going to file suit, they will. Otherwise, they would be breaking laws in threatening something they would never do. As you will notice, the $8,000.00 they are seeking is for a settlement, so they don't have to file suit. If they do have to put their "legal hounds" on it, it will increase...not to mention, you have less of an opportunity for settlement. THE AMOUNT IS NEGOTIABLE!!!! It is a settlement, not a debt. Provide a reasonable counter offer and walk away without paying thousands on an attorney. Please know, "hangin on" until Getty takes steps towards the "larger alleged violators" will not do any good. From what I know, it's the photographers who file suit (since they own the copyrights) anyway. Getty is simply a mediator for not only managing legitimate licenses, but the infringements as well. Best of luck!

All over the web there are postings, articles, and opinions on this matter. The previous poster who assured you that they will sue fits a pattern...wherever this is discussed, someone who to me seems to be a Getty employee pops up putting the frighteners on everyone. Take no notice. The consensus seems to be to ignore it completely, tell them you don't know what they are talking about if they call, tell them to stop bothering you if they keep calling, make it clear there is no way you will be paying anything, and generally just keep on keeping on. So far as I have been able to ascertain, despite sending these letters throughout the world (I am in Europe), they are yet to take ANYONE to court on this. They just want to frighten people and hoppe a few will pay up without a fuss. A typical scam, basically. Of course, you should take down any images that they claim rights to, and be careful in future as to what you put on your site.

Ask them nicely to send you a copy of the Copyright Registration for the images they have identified. If they cannot, they don't have much of a case, but I would still remove the images if you can.

Please see our site that relates directly to this issue for further information. This barrage is continuing and we are repesenting a number of companies that are taken a united stance against Getty. I have attached a link to site

This issue is straightforward. The product that Getty Images, Inc. sells is photographs. Its photographs are taken by people who, in exchange for money, assign to Getty their rights in their photographs. The photographers are, therefore, compensated for their work and can go about their business of taking more photographs -- which is a good thing for our society (thanks Getty). Getty protects its product by doing what every business does: it takes measures to make sure that its products are not diverted to those who chose not pay for them.

In our digital age Getty's photographs are easily reproduced and so its protection burden is more difficult than, for example, a company that sells baseball bats. The people who copy photographs from websites without seeking permission, however, not only know they are getting something for free (a sure sign that something is amiss) but they are also undermining the licensing value of the photographs. This results in the photographers being paid less for their works because Getty has to discount the photographs purchase price to take the freeloaders' use into account. Note that our society enjoys a rich public domain of photographs available for everyone to freely use. Infringers, however, chose not to educate themselves as to where to find those photographs and instead take the easy route of simply copying photographs found online.

Copyright law, however, grants to registered copyright owners the right to recover at least $750 for each infringing reproduction. The law also recognizes that some people "innocently infringe" others copyrights and so, if the infringer proves in court that his or her infringement was innocent, the statutory damages amount drops to $200. Instead of filing suit to recover its damages, which it has the right to do, Getty pays someone to send settlement demand letters to infringers. This non-litigation approach should be lauded, not criticized. Remember, as between Getty and the infringer, it is the infringer who has done the harm.

Some assert that the amount of money Getty demands is too high -- which, to me, is like saying that the thief should be the one to decide how much your stolen car is worth. The established and society-approved consequence of infringing a photograph is that the infringer must defend itself in a court of law. Which costs far more than the amount Getty typically demands from infringers. The logical error of often self-righteous infringers is that they assume that Getty is entitled only to a "fair" return for the infringer's unlicensed use of the photograph. Not so. Getty is entitled to have its rights vindicated in a court of law.

In short, those who reproduce photographs (especially for commercial use) without paying a license fee should admit their wrongdoing and compensate Getty (or whoever owns the copyright in the photograph) and move on to conduct their business lawfully.

I completely disagree with the last statement I've read.

1. The fact that some infringes don't even know that they are at breach is very questionable. That does not make them systematically guilty, especially if they remove the pictures. No one will ever make me purchase something at a price I don't want to pay. Sorry this is a basic right.

2. As stupid as it might sound, should we sue the browser designers for the creation of the function "Right-Click - Save Image As" ? This is crazy, but this is exactly where we're at.

Any movement, opinions, persons that approve Getty Images actions in order to "settle" the pretended infringement is completely wrong. If an image is right managed and the web owner refused to remove it, yes he should be sued for intentional infringement because yes he is fully guilty and aware. In another hand if we let Getty sue innocent unaware people, imagine how at risks are everybody else ! Any company will rise pretending they owe the rights on anything they choose to be and claim huge amount of money and they will get away with it ? - No way... I am standing against this - Laws are made to protect the people - not turning everyone into a potential criminal...

Sorry for my english - I am french.

Regards

The post from “andyart” is admirably passionate but wholly lacking in any analysis of the law as it is now. Discussing whether copyright law ought to be changed or not to more accurately reflect our conduct in a digital world is a VERY worthwhile discussion. And is one where passion and insights into our present and future conduct is necessary. But that discussion does not speak to whether Getty is within its rights to enforce the copyright in its photographs under the current state of the law.

Copyright infringement is a “strict liability” tort — that is, it does not matter whether a person knows that he’s infringing or not, if he is then he is. Period. The law provides the infringer, however, with an opportunity to persuade the judge that the infringement was “innocent” which, if proved, gives the judge leeway to reduce the amount of damages the infringer owes to the copyright owner. That’s the law. Whether you like it or not is irrelevant. And defending the infringer by arguing that the law is simply unfair is not only irresponsible but reckless.

One argument for changing the law is that people have come to accept as a right that they may right-click and cut and paste the text or photograph that they copy. Under the current state of the law, that conduct is NOT a right but rather a limited license to copy the material for personal use. In the typical Getty case, the person is not using the copied photograph for personal use but rather for commercial gain.

Should Getty vigorously enforce the copyright in its photographs within the bounds of the law? Reasonable minds can come down on that question either way. But at the end of the day it’s Getty’s call, not yours. Morally you may disapprove. But there are many laws that grant people the right to do things that morally offend others. I suggest that a more beneficial use of your passion is to work to change the law.

Note: The racketeering statutes make unlawful certain conduct engaged in while enforcing property rights (including, perhaps, enforcing copyrights). If Getty is violating those statutes then it should be held accountable.

Hi,

I found very accurate and rational what Daniel brought up to comment my post.

So I am asking the following (especially to him)...

For how much a judge would settle this dispute here in Canada for a 2000$ claim for two small pictures sold for 49$ if they were miss used without knowing they were covered by managed rights ?

I went very far with this question. I just want to add the answer inside my database.

I am obviously not a judge, neither a lawyer. I am a simple plain citizen, entrepreneur and I one of my customer got cut in this process and I don't plan to get away from my responsibilities. If one of my free lancers used unlicensed pictures on the websites I have sold in good practices, I want to know how to settle this reasonably without having the certitude I am getting ripped off.

Thanks

Question: For how much a judge would settle this dispute here in Canada for a 2000$ claim for two small pictures sold for 49$ if they were miss used without knowing they were covered by managed rights ?

Answer: You should ask a Canadian attorney that question. A quick Google search reveals there are many websites that blog on Canadian copyright law. See < http://www.copyrightwatch.ca/ > which links to other sites relating to Canadian copyright law (see < http://www.digital-copyright.ca/ >, < http://www.copyrightforcanadians.ca/ >). Most blogs contain links to the contact information of those who contributor to the blog. You could use those links to contact copyright-savvy Canadian attorneys. You could also try to contact The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, Faculty of Law ( < http://www.cippic.ca/en/ > ) who may have law students available to assist you. Good luck.

HI,

Thanks for the time spent on that matter.

If I may, I would like to also add the following link that in my book are the most helpful one

http://extortionletterinfo.com/ (For the Americans who need a real good legal advise about this form of harassment)
http://excesscopyright.blogspot.com/2008/05/watching-getty-images-watching.html
The last one is quiet good for Canadians who got abused.

And Matter of fact, I didn't wait for getting legal advise from a credible source - in Canada and here is what I got from Mr. David Fewer from the Legal Counsel - CIPPIC - University of Ottawa, Faculty of Law
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Mr,

It looks like you've been doing your research, so you know what Getty is up to - it's a bit of a racket designed to obtain a settlement. Really, it's all about a dollar figure.

Some background information that might be of assistance: copyright is a property right. There in no intent element. If you've copied without permission, you've infringed. "Innocent" infringement is still infringement - innocence is only relevant to the damages award.

Now, about damages: Getty is entitled in cases of infringement to elect statutory damages in the amount of $500-$20,000 per instance (Cdn law - US law, $750 min.). In these cases, courts would be very unlikely to award more than the minimum of $500 (per image). In cases of innocent infringement, the court has discretion to go as low as $200 per. If you are looking to settle, that is an entirely equitable amount to offer.

Note that it is not clear to us that Getty has its ducks lined up properly. In many cases, Getty has claimed rights in images that defendants claimed they properly licensed from third parties. Getty is in the businesses of acquiring images - it may not have kept track of licenses associated with such images. Accordingly, there appear to be many cases in which Getty is demanding damages for properly licensed images. In each case, it is important to obtain from Getty the patrimony of each image claimed.

I have never heard of Getty going to court for such a low dollar figure (if we're talking about 2 images, we're talking about a legitimate expectation of statutory damages of around $1,000, perhaps as low as $200 in cases of innocent infringement). Rather, Getty tends to give the "debt" to a collection agency. You should know that this is not a debt, no one can hurt your credit rating here. Instead, what we have is an unproven allegation of a legal wrong. That's a different bird entirely. There is no "legal process" in your case - there is only an unsubstantiated allegation of infringement.

Your options are to continue to offer to settle, or to hold out. Note that your current offer is pretty generous - if you wish to withdraw it, you should do so immediately.

(...)

Hope this is helpful.

Best,
David Fewer
Legal Counsel
CIPPIC, the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic
University of Ottawa, Faculty of Law
57 Louis Pasteur St.
Ottawa, Ontario K1N 6N5
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Of course, before posting this email here, I previously got the authorization to do so.

So I hope it will be helpful to you guys out there who got embarrassed by Getty Images settlement demands...

I wish you all the best !!

thanks so much for keeping me posted on this. I have written Mr. Frewer and will keep you posted.

I received some inside information about Getty on this issue. All they are really after is to get you to cease and desist and if they make some money off of it, great. With the advent of blogs and site template mills, the abuse is rampant. There aren't enough lawyers in the US for them to sue everyone who doesn't respond.

If you request a list of the licensees to find out if "one of the designers" at XYZ design company legitimately purchased the photo, you'll never hear back from them.

Of course, this isn't legal advice, it's just based on my experiences.