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

Houston, TX |

I recently received a letter requesting I pay $8,000 to Getty's Images for the unauthorized use of images on my website. My website was created by a third party who may or may not have the license for the pictures on my website. I removed my website immediately. I have read many blogs talking about these letters in the Uk and Canada. I get mixed info about what most are doing who are in this situation. Many say to ignore the scare tactics, some are being reported to collection agencies, and some are worried about having to fight it in court. I have not been successful in finding out what is being done in the U.S. with regards to our copywrite laws. I am obvioulsy wanting out of a mess that I was put in unknowingly. Thanks for any advice!

Attorney Answers 7

Posted

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.

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Posted

i had a meeting with our MP yesterday about the getty extortion letters - she was appalled that large companies using expensive lawyers bullying small businesses with extortionate demands for money - using copyright laws not for what they were originally intended - which is to protect the originator and not to be used to keep a company that is in administration from going under by menacing small businesses to pay large sums of money to them. She wants everybody receiving these letters to contact their MP to make everyone aware that these laws are being abused. Steve Livesley UK

Posted

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.

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Posted

Some so called experts in law and I am not refering to Oscar Michelen pretend to ignore that this is clearly a take advantage of every situation, if there was a violation why they still sue after the image is removed. You don't have a to be an savvy to understand that they are ripping off the packet of who ever they can. Again don't act like you ca ignore this.

Posted

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

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Posted

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.

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Posted

Brilliant eloquent answer on the topic and 100% true! Elle,copyright holder :-)

Asker

Posted

great answer, very clear. I'm curious what the law allows copyright owners who have not registered their images.

Asker

Posted

DNB, A well-written analysis that proceeds with airtight logic toward the proper legal conclusion. But that ultimately reaches the absolute wrong moral conclusion because it is built on a faulty foundation. So-called "infringers" have stolen no property of Getty that should be accorded any time of legal protection. Getty still has the physical photographs that it paid to produce. If Getty did not want the images reproduced online, it should not have published them online. Property rights are meant to protect the use and control of scarce goods. Infinitely reproducible digital images are not scarce, and should therefore do not give rise to a property right that should be accorded the protection of law. The better moral conclusion is that Getty is a monopolist bully that is seeking to extort money from those weaker than itself by means of a morally defective law and a morally defective legal system. I'm not saying that those attacked by Getty have completely clean hands themselves, but that still does not excuse the reprehensible conduct of Getty. No King But God

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

All law is founded on either (1) a moral principle [thou shall not kill] or (2) an expediency to promote social order [speed limits]. The people, like you, who do not believe "intellectual property" should exist improperly characterize that issue as one based on morality. Specifically, it is immoral to define as "property" the exclusive right to copy a creative work once the author of that work presents it to the public. THAT is your 'foundation" for your alleged moral objection to the existence of intellectual property. I submit that your position is not only not a "moral" one but it also is very, very poor social policy. Does society benefit by the creation of new works of authorship and inventions? Of course. Will more of those creations be created if the creator is granted a time-limited exclusive right to commercialize those creations. Of course. [And I do not want to hear arguments otherwise -- they're all old and tripe and unsubstantiated]. Do we have that bargain set up perfectly? No -- the copyright term is too long and patents too easy to get, though both are too hard to enforce with our judicial system. It is not a moral question as to whether intellectual property [copyright, patent, trademark, trade secrets] should exist or not. They do because they are useful tools to motivate members of society to create new works and new inventions. If you have a better alternative then lay it out. But playing the "intellectual property is not moral" card is silly.

Michael M. Wechsler

Michael M. Wechsler

Posted

I am troubled by this legal argument, which assumes that all "infringers" is are "thieves" who should not be permitted to define the cost or the value of the infringement. It's also virtually impossible for most of the victims to have prevented this unknowing "theft" from having occurred. It is just as morally objectionable to require an innocent purchaser - not thief - to pay the arbitrary value that an artist decides should be paid for that item. It has been used a sword to create massive damages where none would ever have existed. So how many people would pay a $1,500 monthly usage charge for a clip art photo of a television had they been reasonably made aware of what they were receiving? Is this any different from someone who buys an item from a merchant on the street for perceived market value only to later find out they are out the object and the money they paid? The law needs to reflect a punishment to fit the crime and address a problem with a fair and appropriate solution. In this case, making innocent infringers pay even additional damages is adding insult to injury - and I'm a fellow artist who is troubled by a difficult problem that currently has no viable solution.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Q1. "I am troubled by this legal argument, which assumes that all "infringers" is are "thieves" ... ." R1: No it does not. Intellectual property rights are, properly, very porous. The scope of the "right" conferred extends only so far as to benefit society, not the creator of the work. Lots of Supreme Court case law on that. Q2: "It's also virtually impossible for most of the victims to have prevented this unknowing 'theft' from having occurred." R2: Replace "theft" with "infringement" [see R1]. Your assertion becomes that it's "virtually impossible" for a person to know whether he has infringed another's rights. That's clearly not true. If a person fails to pay to do with a work what only the rights holder is granted the right to do then the assumption is that the person infringes -- IF there's an exception, privilege or excuse to use the work then it's rightfully up to the person to find and prove it. Q3: "It is just as morally objectionable to require an innocent purchaser - not thief - to pay the arbitrary value that an artist decides should be paid for that item." R3: Wow. I think you're saying that a creator does NOT have the right to sell his creations at the price that he chooses. If that's what you're saying then it would have been nice of you to start your commentary by confessing that you do not believe in capitalism. That would explain much and make any dialogue that we may have uttery futile. Absent an agreed-upon view of the rights of marketplace participants we will forever be talking past each other. Good luck with your law practice.

Michael M. Wechsler

Michael M. Wechsler

Posted

My comments weren't condescending or disrespectful, counselor. It's manifestly clear that in the context of discussion, my comment was pertaining a price demanded by the artist retroactively and enforced without the opportunity for *both* parties to have bargained freely. I'm assuming that you may be aware that this concept is fundamental to capitalism. The intelligent discussion I thought I might be able to have was in discussing a solution that, IMHO, might work more effectively and provide for a more satisfying result for both parties, not just one of them. I appreciate the referral to and refresher of Supreme Court opinions and how the law currently handles this problem and the benefits to society. I can't stop an attorney from zealously pursuing every grandmother who pays for a website for her grandson, created by a local professional, only to be surprised with a demand letter at three times the cost of the entire website for a single, mediocre, low res graphic image. I'm aware that ignorance of the law is no excuse. Granny should have known about this problem and taken some unmentioned screening measure to ensure that not one image among 500 was infringing. All that matters is that she didn't have rights and can't find a legal exception to grasp. And as a result, if the artist feels that his out of focus picture of a chair leg is a masterpiece, Granny should be forced to pay that price without having had the benefit of considering whether she or anyone in their right mind would pay that price. That's the price you pay for being an infringer - plus attorneys fees, since our work isn't free. I'm not saying that I'm not sympathetic to the rights holders about a copyright infringement problem that exists, where many Internet surfers believe that the "images" tab that is a part of most search engines means royalty free clip art. I'm not saying someone is not permitted to make a living this way at the present time if they so desire. I'm also not looking to engage in any acrimonious dispute. Best of luck with your law practice.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

Michael, I represented the very first Doe defendant in the RIAA cases way, way back when the fight was over whether the section 512(c) subpoeanas were Constitutional [the Verizon case]. After they started suing Doe defendants I negotiated innumerable settlements with the RIAA and MPAA and spoke on the issue at conferences. In short, I know when copyright holders are too extreme in their enforcement efforts. On the flip side, I also know under what circumstances infringers should know damn well that they're infringing. And that is, by far, most of the time.

Posted

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.

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Posted

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 which links to other sites relating to Canadian copyright law (see , ). 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 ( ) who may have law students available to assist you. Good luck.

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Posted

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

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