Cease and desist letter received from Getty Images for possible copyright infringement
7 attorney answers
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.
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.
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.
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.