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Do I need to pay a Demand Notice for images used online?

Mesa, AZ |

I received a letter today from Getty Images demanding I pay them $1200 for an image I used for a short time on a test site I was designing with a Weebly.com template. I haven't used the image in several months and did not know it was a royalty image. I found it on google images and it had nothing attached to it indicating it needed to be purchased. I'm not a professional web designer and only design sites for friends and relatives. I no longer have the site up and do not have the domain name. In researching online I see many blogs devoted to Getty Images and this demand letter tactic. It seems to be a big, big problem. Some have paid the fee only to be charged another fee. Some say to ignore the letters. Most say do not contact them or they'll haunt you forever. Do I need to pay?

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Attorney answers 4

Posted

Based on the research you have done, as well as the fact that there was no notification that there was a charge for use of the images, I would not pay them. If they continue to contact you, you might retain counsel to send a cease and desist letter.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

Asker

Posted

Thank you Celia! Can you tell me what a cease and desist letter from counsel might cost - a range?

Celia R Reed

Celia R Reed

Posted

Unfortunately, no. Usually the attorney will want to consult with you first, so all facts are clear, before the attorney can determine whether it's even advisable to draft the cease and desist letter. Attorney rates vary and some attorneys work on a flat fee, so it's worthwhile to call around.

Bruce E. Burdick

Bruce E. Burdick

Posted

That is not good advice and is pretty much backwards. Getty does not go away if you ignore them, instead the price goes up. Asker, you need to be talking to an IP expert not a family lawyer on this topic. You don't send a cease & desist letter back to a copyright owner like Getty when you get one from them, which is what you did, along with a settlement demand and a settlement offer. What would you have them cease & desist from? Asserting their valid copyright?

Maurice N Ross

Maurice N Ross

Posted

Asker, Celia has not given you good advice here. You need to retain IP counsel to negotiate a settlement. The price of settlement will go up if you just ignore this. And you have no valid defense. You used an image without a license---you just admitted it on this web-site.

Celia R Reed

Celia R Reed

Posted

Although your sustain for my answer is clear, your rant may not be particularly useful to the asker. You are free to disagree but I question your manner of doing so.

Celia R Reed

Celia R Reed

Posted

Your distain not sustain

Bruce E. Burdick

Bruce E. Burdick

Posted

I think you mean disdain not distain or sustain. Hardly a rant, unless everything critical of an answer of yours is by definition a rant.

Celia R Reed

Celia R Reed

Posted

No, you can disagree with me all you want, especially as I was off the mark. It's a rant when the asker is so upset about the written attacks that she contacts avvo to be removed from the system.

Posted

Consult a local IP attorney - most offer free initial consultations. Can locate them here on AVVO under the heading "Find a Lawyer"

This is not intended to be legal advise or as legal representation. I am a California personal injury attorney . Be aware that every state has its own statute of limitations; and statutes & case laws that govern the handling of these matters.

Bruce E. Burdick

Bruce E. Burdick

Posted

Go to find a lawyer and Google "Oscar Michelen" for the leading defense attorney in this area of Getty Images "extortion letters."

Posted

First, don't rationalize. The facts are that you published a photograph for commercial purposes without a license from the copyright owner. That's copyright infringement. Period. You can use the remainder of the facts to persuade a judge that the damages Getty sustained warrant only imposition of a STATUTORY damages award to Getty on the low end of the $750 - $150,000 permissible range. But I wouldn't be persuaded. You chose NOT to use one of the many, low-cost photograph licensing companies and, instead, simply published a photograph you knew you did not have permission to use. That ain't good. Getty makes its money licensing its photographs -- money that it then uses to buy the rights to other photographs. Which goes to photographers who are trying to make a living. You, however, simply took a photograph and used it because you wanted to. Your assertion that you did not know it was a "royalty image" insults reason.

As far as what to do, you should know that Getty only sometimes sues those who infringe its copyrights. You should also know that Getty has a reputation as a bully [see http://www.extortionletterinfo.com ]. Do you need to pay? The legal answer is yes -- you infringed and so the rights holder is entitled to a remedy. The practical answer only you can provide.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Asker

Posted

I appreciate your perspective. Thank you. There was no indication that this image required purchase and no reason to believe that a copyright subsisted. I would not have used it had it shown a copyright in anyway. Can you offer your opinion on: Section 97 of the Copyright, Designs and Patents Act 1988 (“the Act”) there is no entitlement for the claimant to recover damages where the defendant did not know, and has no reason to believe that alternative copyright subsisted in the work?

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

EVERY photograph [and every other type of copyrightable work] is automatically protected by a copyright as soon as it's created. The photographer [or writer, sculptor, computer programer, etc.] need not do anything. Copyright simply exists once the work is created. Only when the copyright term expires or when the author expressly places the work in the public domain is a copyrighable work free to use by anyone. This has been the rule in the U.S. for many decades. No one can claim ignorance of this rule -- especially those who create copyrightable works for a living [like a website]. As for the Copyright, Designs and Patents Act 1988, that is an English law. Of which I cannot, and am not going to, comment. If you are in England then you need to speak with a Solicitor who specializes in copyright law. My take is that Section 97 is an "innocent infringer" provision. If it operates like its U.S. analog then the provision permits a court to reduce the statutory damages amount from the floor amount to some amount lower [in the U.S. the floor is $750 and the court can reduce that to $250 if the infringer proves that he is "innocent."].

Asker

Posted

You've given me a lot to consider. So many people are creating their own web sites these days, as I do, without any formal training or knowledge of copyright. This information should be at the top of every site that sells templates - Go Daddy, Weebly, etc. I am learning a very valuable lesson and am willing to pay for my mistake. That is an extremely hefty price to pay and one that will take quite some time for me to save up and pay off. My concern is how to pay and make sure this company no longer harasses me. In researching online it seems the people who paid continued to receive threatening letters. Is there a letter template you might suggest I use along with payment? And, is there anyway I can get the payment reduced for stupidity? I live in the U.S. and appreciate you clearing up my inquiry on Act 1988. Thank you.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

It's time to speak with your own copyright attorney. Good luck.

Posted

You have already admitted on this web-site that you engaged in copyright infringement. With respect, anyone who is involved in designing web-sites must have a basic education in copyright law. Copyright protection arises automatically for any work that is fixed in a tangible medium of expression. Registration is necessary as a pre-requisite to bringing suit, but it is not necessary for protection. Further, copyright owners are no longer required to affix notices on their works---this is because the law for decades has made it clear to everyone that every work is protected by copyright. There is simply no excuse for lack of awareness of these basic fundamental legal concepts. Your suggestion that "Go Daddy" or other such companies should be notifying its users of these things is, frankly, an attempt to evade your own responsibilities to be familiar with the law applicable to your activities, professional and personal.

Getty Images is a very legitimate business, which generates substantial licensing fees for the photographers who enrich our lives by providing images. When you use an image in this context without paying a license fee, you undermine the confidence of the public in the integrity of our entire legal system. The internet is not the wild west, where you can grab anyone's content and use it for whatever purpose turns you on.

Copyright law provides for statutory damages of no less than $750 up to $150,000 (in the event the infringement is willful) using an infringing "work". Further, copyright law permits the copyright owner to recover its attorneys fees if someone in your situation forces the copyright owner to litigate and if you have no objectively reasonable defenses. You have no objectively reasonable defense to this claim.

But you should not immediately get out your check book. You not only need to settle with Getty, but you need to force Getty to enter into a written settlement agreement that releases you from further liability for your infringing misconduct. You need a lawyer to draft a settlement agreement with Getty that resolves this in a manner that stops them from coming after you----don't pay them until they agree to release you from any further claims for damages or fees. And such documentation including the release language needs to be drafted by legal counsel. You need to retain legal counsel to settle this. The horror stories in the press all relate to situations where people settle with Getty on their own without retaining legal counsel. Your counsel may get Getty to reduce somewhat the settlement amount, but realistically you will have to pay your counsel more than you will be paying Getty. But failure to get legal counsel in this situation is almost always a mistake. There are quite a few lawyers who will handle these negotiations for a reasonable flat fee (I do this on occasion).

Bruce E. Burdick

Bruce E. Burdick

Posted

I didn't know you were doing Getty responses. I thought Oscar handled all those!

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