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Tips for Responding to a Getty Images Extortion Letter

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Getty Images is one of the largest purveyor of stock photos in the world and aggressively protects their copyrights.  With the Internet being an ocean of visual imagery ripe for the picking, many stolen images are from one of the Getty Stock Photography sites.  It’s so easy to copy photos from the web that we often forget that each one is someone’s copyrighted material. Add to that the prevalence of social media icons actually asking you to copy posts with just a click. Plus, the multitude of people who mistakenly believe that copying photos for their website is “fair use,” as long as they aren’t making money makes it easy to see why infringement proliferates across the Internet. Although these acts are infringements, most don’t rise to the level required to initiate lawsuits. Legal action is generally reserved for those who have damaged the copyright holder or have received a benefit that should rightly belong to the image owner. The majority though can be rectified with little more than a letter asking for removal of the infringing work.

However, Getty Images leads a new breed of copyright trolls who target these infringers, sending extortion letters designed to scare them into paying hundreds of dollars or risk a more expensive lawsuit. The infringing images are arbitrarily priced at levels high enough to claim significant damages, while similar images in their catalog sell for a fraction of that price. Because people don’t realize that most Federal Districts only require infringers to pay based upon the fair market value, not the asking price, companies like Getty can make a windfall with these demand letters. Also, understand that it is unlikely that you will actually be sued.  Litigation is time consuming and expensive.  Even filing a case can cost several hundred dollars, so a $1000 lawsuit may actually be a money loser for the firm.

Strategies and Tactics in a Getty Extortion Letter

First, and foremost, before responding, make sure the image is removed.  Your use of the image may be an infringement, so it is best to begin by correcting the problem. Also, your response should be cordial; write in a business-appropriate manner. There is no need to be mean or indignant. The people handling this are merely staff for a firm. The firm’s profit is based on volume, with little incentive to draw out an action or litigate.  Give them a reason to end the action, and they will move on to the next person. Irritating the staff will just provide a reason for them to make your life miserable.

Start your letter with an apology, explaining that any use of the image was inadvertent and innocent; once you were made aware of this presumed infringement, the image was removed pending the outcome of these discussions. Now, you can begin crafting a story that, first, will show Getty that even assuming an infringement, their damage request is too high.  And second, that Getty needs to provide certain information before you will consider payments. The more time the law firm has to spend on this case, the less money they make.  You need to make moving forward not worth it for them. Generally, the courts have decided that in infringement action like this, the infringer is only responsible for damages based on the Fair Market Value (FMV) of the image, not the asking price. So you need to show them what a reasonable FMV is for this particular image.

 “The question is not what the owner would have charged, but rather what is the fair market value.” Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001).  

To find the FMV, search for similar images on stock sites like Think Stock, Deposit Photos, iStock Photo or Dreamtime.  These sites are membership-based, where either a monthly fee allows unlimited downloads or you buy a block of credits which can be used toward image purchases. Most images at web resolutions should only be a few dollars. Make sure you include some Getty-owned sites in the mix. Find 10-15 images that are substantially similar to the infringing one. Averaging their prices will provide a reasonable FMV. This is not a legal standard but it will be enough for your letter.

Next, make a list of the images, with their prices and links, so they can see for themselves that the infringing image is unremarkable and easily replaced. An example of a list item might be:

 iStockphoto: “Puppy ready for a bath” (available on iStockphoto for 2 credits or $4.00):

At this point, you can counter with an offer based on the FMV. Assuming they don’t accept your offer, ask Getty for information showing they have the right to take this action. The firm you will be dealing with is likely making their money on volume of cases, with slim margins, so any case that takes too long is a loss for them. By making the case more difficult, they will be more likely to walk away. Here are some examples of information you might want to request:

  • Proof that Getty has the right to manage the image in question.
  • Proof of proper copyright registration and the chain of title for the image.
  • Explain their calculations for determining the current sales price
  • Provide sales data for the image

Hopefully, the case will end with this rebuttal but you may receive another letter or two. Respond with your offer again and remind them that you requested information that they have not provided. If you keep receiving letters, you may want to have an attorney write a response, which will hold more weight. Of course, if your actions were egregious, or the demand is for a significant sum, you should hire an attorney. But for your garden-variety Getty extortion letter, these tactics should prove useful.

For more information on Getty letters and a sample response, take a look at our article: How to Respond to a Getty Images Demand Letter

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • Getty beat me up for $570.00, one half the first requested amount. With the help of my sister, a former judge, we bothered for three months and several letters, some following your recommendations. They finally turned it over to a slimy law firm that probably does consumer collection cases along with the Getty work. It would cost more to fight it than to pay. But, we felt they had invested more fending us off than they earned. We kind of won. But, really – no cease and desist opportunity. Just – you used, now you pay – that’s a shake down. And, the small 160 pixel picture of camels was posted in 2009.

    If Carol Highsmith’s law suit against Getty gains some traction it would be great to see Getty squirm.

    http://www.thestranger.com/slog/2016/07/28/24405612/could-this-lawsuit-change-photo-history-a-photographer-is-suing-getty-for-1-billion

    Their initial response (covered in the Seattle Times) was that – “It’s standard practice for image libraries to distribute content that’s in the public domain. And it said it’s legal to charge fees to cover costs – INCLUDING INDEXING, ARCHIVING, DIGITIZING AND MAKING CONTENT EASILY SEARCHABLE”.

    In all our correspondence they never mentioned this convenient fee arrangement. Only that the photographer was being impacted by my blatant misuse of their photo. I wondered how much of my $570.00 went to the photographer to cover his losses. And, how much might have gone to Getty’s costs to shake me down, or the “archive and digitize” convenience fees.

    What goes around comes around – Getty!

  • Thanks for the most informative and practical comments and conversations on how to deal with this problem.

    In Australia here, I’m a self employed single Dad doing graphic design and websites for local businesses. It’s my choice to work and prioritise like I do, so I’m not complaining… But financially it’s a real struggle. Some of my clients are doing it tough too so, trying to save them a few more dollars I looked for free-to-use images. Unfortunately, I just got one wrong; $1400 wrong according to Getty.

    I am all for fair, and the very idea of taking something from another without fair compensation goes against my values. I accept I made a mistake and I’ve since learned there’s a lot more to copyright than I realised. It’s not taught in school though, hey. As it stands, this bill will hurt me for a long time.

    I’ve already had my first response from Getty’s representative firm in Melbourne. True to other posts here, they haven’t provided a proper breakdown but rather reiterated letter #1.

    I will be furnishing a letter in line with http://artlawjournal.com/respond-getty-images-demand-letter/ with a well considered and generous (by my reckoning) offer. Hopefully, some sense of fairness and consideration will have a place in this seemingly ominous legal wilderness.

  • I received the Getty letter and checked and the one photo I used was indeed a RM image as it was not available on any other no-Getty website. I followed the advice from this Tips article, removed the image from my website, and wrote them a letter requesting all the information suggested above, and offered to settle for $20. I quickly received an email back from Getty providing all the information I’d requested with the exception of the sales data which they said would only released in court proceedings. They requested $520 for the use of the one image I’d used and that that offer was only good for a week. I consulted a copyright attorney here in Portland who said they appeared to be within their rights to request I pay for the use of the image, that in his experience $520 was on the low end of what other clients had been asked for, and that if I tried to play hardball they would up their demand. He further suggested that II could either 1) pay the $520 to make it go away, 2) push back gently and ask to negotiate or 3) fight it. He said it wouldn’t make any difference if a follow-up letter came from him, so I wrote back. I said the photos on Getty Images that were not RM cost about $175 for use similar to mine, that my use was only one image that was not watermarked, that I’d taken the image down and that $520 was a burden on my small business. I offered $350 and they wrote back accepting my offer.

    • Not every situation will work with this letter, especially if there are statutory damages involved. If you get back a form letter, that is one thing but if the company answers the questions then that is a sign that something is different about a case. I am glad you were able to resolve it.

  • Can’t believe I’m reading these comments. It’s common sense, really. It’s illegal billing. I received the same fraudulent billing. It’s photo shopped and extortion. There Director called after I called the FBI, FTC, two separate Attorney General’s and the crime division of the US Postal. Said they were closing my case. Step up to the plate and start turning these people in to the authorities. Bill for your time in the aggravation and time associated with having to interact on their scam. No need for an attorney unless you wish to sue for your own damages.

    In today’s society and technology being what it is; how stupid is a photographer NOT to watermark or protect their work if they put it online? Some images are protected in that you cannot copy or save it.

  • Check that your image is not one of the tens of thousands available free for public use at the Library of Congress. Also, search for the name Carol Highsmith, a photographer and read about her billion dollar lawsuit against Getty Images.

  • Hate to sound out of line here but…

    You could just purchase images you use, then you wouldn’t need to worry about Getty or anyone else!

  • Steve
    I by mistake put my real last name, is it possible for you to remove?
    Also thank you for all of the help previously provided, I forgot to say that

  • Hi Steve
    I have received a response to the letter I sent ( i originally hadnt offered a settlement amount) as well as a letter from their attorney.
    The response
    For proof they told me to go to their site and type in the image #
    On the copyright registration they claimed that it wasn’t relevant to this matter?
    They provided a link to the getty images valuation.
    This response was followed by a letter from Yarmuth & Wildson pllc stating that they were the outside counsel.
    Should I now offer a settlement ? The amount is for $520. This has been going on since last fall and the image had been pulled down then
    I appreciate any further advice you can offer

    • I cant you give you nay definitive guidance without reviewing the case, but I can say that $520 is near what it would cost them to file a case in court. Unless the image was registered with the copyright office prior to the infringement, in which case, they can ask for their legal fees from you as well, then it wouldn’t make economic sense for them to sue you.

  • Hi Steve, thanks for the great post! I followed your instructions in deal with different company, ImageRights International, Inc. which is doing similar things as Getty. They sent me all the documents and didn’t agree on the counter offer. Can I refer the company somewhere where it says that FMV is what we are expected to pay in this case?

    Thanks!

    • Sorry for the delayed response. In my experience, resending the original letter usually works, unless there is something specific about the case that may change that outcome. Or make them a reasonable offer. The issue isn’t your guilt. You did use an image without permission and even if it were for a day, it is still an infringement. the issue si the exorbitant fees and the way that these companies prey upon what are called “innocent infringers.” people just don’t understand copyright. That being said, making a reasonable offer is always good policy and if they don’t accept it, then they can take you to court. However, given the costs vs potential return, that is unlikely. Just be sure that the image wasn’t registered with the copyright office prior to your use as that changes things. If that were the case though, I am sure they would have mentioned it in the letters.

  • Question: The website owner and I (me personally) har being requested payments at the same time for the same case. The letter they sent, was addressed to the site owner, whom I then helped remove the image. I also then informed Getty Images about how the image had ended up on the site etc. (all the typical communication stuff with them, where they just ignore anything you say or ask about.)

    On 22th April, they then (after I inform them that I personally will not pay them anything), get an e-mail from them saying they will now progress with the case and I personally will be held responsible for all the costs. Strange enough they then send a letter to the website owner (EXACT same date and Compliance Officer), still demanding settlement and giving them 14 days to consider.

    How can they demand the same payment from two independent parties in the same case and at the same time? To me this shows that they are wrongly accusing people/companies, without first establishing who is the guilty part and its just all about getting paid.

    Can you really, legally do that? If so, I guess they could also legally accuse and demand my wife to pay up.

  • Here’s my story in brief…. decades ago, a student gave me a gift of a postcard from the 30’s / 40’s of a neatly dressed and conservative teacher standing in front of a blank blackboard and pointing to it. The accompanying text read, “Well, that’s about all i know.” There was no credit line, copyright, publisher to attribute the antique to. I used this image in the Teaching and Workshops section of my website as a lead in image.
    Years went by and then i get a letter from the President of the University and the University lawyer telling me that Getty Images has informed them that i am facing charges of copyright violation and that i have a few days to respond. The lawyer said that a hearing was being called to investigate this serious matter. I called the person threatening me in the Getty Images letter. The threat… pay them $1500 or be taken to court and that i had only days to respond. I explained that the image was not for sale, had never been sold, did not have a price and was a joke. I informed them that i had removed the image and wanted to see if they would be reasonable. They refused to negotiate. Getty said that they had acquired the image and that it resided in what they called a “petrified archive” and that they now owned the copyright and that i was a copyright violated. I asked why they threatened me through my university and the person replied that it was the fastest way to get results.
    I called a copyright lawyer friend in Boston and he said to pay them… that paying him $400 an hour would be a break even deal if the courts made me wait 3.5 hours and was a better solution to the extortion than losing my job and livelihood over putting an image from a postcard on my website.
    I paid… they went away. F’Getty Images.

    • I am surprised the copyright attorney said to pay them since I am almost sure that the image would have been in the public domain. Images that old require a copyright notice, without one, there is no copyright. That is no longer the case but back then it was. 🙁

  • Question:

    On the letter sent to my old client Getty Images has taken a screen shoot of a logo I made. Is this not a violation of copyright laws?

    • Possibly. There are a few factors such as fair use that would need to be reviewed as part of the analysis. But even if it is technically an infringement, there are probably no damages from the use and so not much to sue over.

  • Thanks so much for this great site and generous help. It’s good to know I’m not alone! Can anyone give a bit of advice on my situation?

    Our very small company had an image nested inside a larger graphic to represent a paused video being played. The larger graphic demonstrated a game concept that was scrapped before it was developed. We went with a different game concept in our product in the end. The larger graphic (with the pic in question nested in it) was developed by a now-defunct graphic design company so I had no knowledge about the image. We had placed the larger graphic on our website to represent games and concepts that we have developed in the past (the end game was developed several years ago and, again, never used the photo in question. Further, the end game was never sold, and we did not derive new business from it. I doubt anyone ever even looked at this buried webpage on our site.
    When I got “the letter”, I called right away and left a message. But then I read your site and, when they called back, I said I would respond via letter. They said they would make a note of that. I have no way of reaching the owners of the now-defunct company. It has been defunct for several years. Should I go the route of sending the letter offering $20 and showing comps or should I suggest they look for the principals of the now-defunct company? Either way, we immediately removed all instances of the image from our server.
    Thanks SO MUCH for anyone’s advice!

    • Well, from my experience with them, the best you can do is just write a letter to them that you did not know about the image and it has been removed. After that I would just ignore them and say you will not pay. (if you offer the real price, they will not agree anyway)

      Their business is only about money extortion and nothing else. The more you communicate with them, the easier a collection target you become.

      I personally could care less if they sue me or send a dept collector my way. I will NEVER pay anything to that scam company. Use their letters as toilet paper.

    • Thanks Dylan. I agree. SteveAdmin, any advice from your perspective? And for clarification, this Mike is a different Mike than the one who recently made other posts.

    • Mike,

      Steve will agree with this point, you have an issue that probably requires at least a little time with an attorney.

      Even though you purchased the image/video from another company it appeared on your site and unfortunately that makes it your responsibility unless you can find the the contract that you had with the “now defunct” company that has language in it that says that the now defunct company indemnifies you.

      Your second issue revolves around commercial use, please don’t go to, it was buried, I made no money or it got very little traffic. I understand your thought process along those lines but the court and the in essence the law does not agree, the first thing looked at is the site built around a commercial use, notice I use the term, “the site”.

      Many of the so called news aggregating sites are commercial and there is a new term out there or maybe not so new but it has cropped up in regards to copyright infringement and that is, “clickbait”, part of the reason a still image would be placed into a video is so the Google bots can see it and grab it to use as a thumbnail for your site. You clearly have a commercial component to your site by your own description. So where Getty may leave some blogger alone you will be seen as a more probable target because of the commercial use.

      Should you be on the target list, lack of response will not serve you well should the case go to court, and if you ignore as some have advocated, their correspondence you may miss the fact that you are being sued until it is to late. If you hire an attorney Getty cannot talk with you any longer, only your attorney, may not be want you want to hear but that is my advice.

      Let’s look at it this way would you ignore a letter from your local city/county about a possible infraction/violation of the law or would you seek professional help. It really isn’t much different.

      You admit you used the image, you admit it was on your site, you note that you are a commercial site, you have a problem.

  • After trying to communicate like a normal and decent person with Getty Images, I have realised that the best thing to do when receiving a claim from them, is just to remove the picture and then just ignore them completely.

    They will not listen to reason or common sense, because all they want is money. It does not matter who is right or wrong, because if you ask them a normal sane question about e.g. why they are asking so much money for a single picture, then they will just say “that is not relevant”.

    What they do is twist the law and threaten people, in order to get easy money out people and small businesses. They are nothing but criminals. I am amazed that they can get away with what they do. But no matter what I am never going to pay them anything.

    • And my case is actually funny…

      1) I am not the website owner, but worked as the director in a small company that built the website 4 years ago.
      2) The company I worked for was closed 2 years ago.
      3) The image was made and sold to us by a Design Company and I gave that info to Getty Image.
      4) I now live in South East Asia and have nothing to do with the website owner and design company.

      Still Getty Images wants me personally to pay them… and at the same time is also demanding the website owner to pay the exact amount. So they are basically asking double payment from to different parties at the same time, hoping one of us will pay.

      Its a total joke 🙂 And it shows exactly what the Getty Images Letters are all about. Its not about going after the guilty person/company and they will not listen to common sense at all. Its not about justice or copyrights. Its extortion and criminal behaviour and they should be ashamed of themselves.

      BTW… Where can I report them for personal harassment?

    • You seem to have a few misconceptions.

      1) Why they want the amount they want IS irrelevant. They owe you no explanations whatsoever. They’re free to assign whatever value they want to the image. It then falls to you to either pay them that amount or not.

      2) You don’t say whether the “Design Company” you paid actually had the right to sell you that image. As I mentioned on another comment, you’re still liable for infringement if you earnestly pay the wrong party.

      3) It doesn’t matter if they site was non-profit or not. “Not for profit” doesn’t automatically translate into fair use. “Educational” COULD, but that would depend on a number of factors. Further, as explained repeatedly, “fair use” is a defense. It’s wholly irrelevant at this stage.

      • One added point, since fair use is a defense, that means nothing is actually fair use until the court says it is for that particular case. While there are certainly cases where few would disagree that the use is fair use, such as copying an article for a college class, it still cannot be a fair use until litigated.

  • Really?! I contacted the FBI internet crimes, State Attorney Generals, US Postal Mail Fraud division, FTC and the complaints are horrendous. The image they were trying to get me to pay for was photo shopped images from a collage and they knew it. The girl on their receiving end was a bitch and she knew it.

    • You can contact whomever the heck you want. It doesn’t mean they’re the right person to contact or that you’re even in the right.

      What does “photo shopped images from a collage” mean? Are you saying that you had permission to use the images or that the images you used were owned by someone else?

  • Hi There. I’m producing a documentary and I notice that Science Photo Library which I believe is part of Getty is selling footage and animations that you can get for free from NASA, ESA, CERN etc…. It just goes to show you what kind of jerks they really are. I wonder if NASA knows they are selling their stuff?

    • Most NASA images are public domain. That means that whomever wants to profit from them can do so, as long as they don’t claim ownership.

      As such, NASA has no power to stop them, and they have every right to demand payment if the photo is stolen from their site without a valid license. If you don’t want to pay them for a license for those images, than all you have to do is get them directly from NASA. Problem solved.

  • Steve, is it safe to assume that copying the images from other sites to include in the response letter does not create other infringement problems? Thanks for the feedback; it’s appreciated.

  • Hi, folks. We need your feedback, please. We are a very small organizational development company who recently received the Getty Images’ letter being discussed.

    The image in question is one of 11 very small thumbnail images (¾” x ¾”) on the second page of a two-page pdf document describing, in a brief two or three sentences each, 11 different measurement/assessment instruments available to organizations. The pdf document is behind the website and not visible without clicking the “If you would like more information” link. The image in question removed from the document and, as best we can tell, there have been no downloads of the pdf document.

    Frankly, we’re offended as they want a “settlement” of over $800 and are offering discounts on their other products if we accept their offer.

    Our question: In addition to the response letter template (thank you Steve for being kind enough to provide both the template and the education; both are invaluable) is there any other approach to consider? Is there any other information that you need?

    Thank you for your feedback and insights; both are much appreciated.

    • Your case has different facts but seems the same as the other cases people have discussed in the comments. In copyright, it doesn’t matter where it was used or that you take it down, only that it was used. Getty looks at their license for a thumbnail and uses that price to calculate the damages. They don’t prorate the license or anything, nor are they necessarily entitled to that license. In any case, try the letter. You may hear back from them again, so just resend the letter letting them know they haven’t answered your questions. Then if they don’t go away, let me know.

  • I am secretary for a non-profit [educational] mining association with an annual technical symposium. At the symposium, industry experts present topics on safety, technology, economics and equipment related to the surface mining industry.

    We post pdf versions of our annual technical PowerPoint presentations on our website for member’s later reference and download.

    One of our 2009 presentations included a 1.5 x 1.5 inch image that apparently does appear on Nordic Photos, a site apparently related to Getty. LCS found the presentation [done by an engineer in the power industry] and sent us a letter and a bill typical of the others noted on this site.

    We immediately removed the “offending” paper from the site, of course.

    The images we use on the site itself are not protected images.

    We have a limited budget, and no legal staff [all volunteer]. Is the image in the second hand posting liable for such action by LCS ? When we respond what would be the best basis? Appeal to our non-profit status? Offer a small amount as others on this site have done?

    I have read the bulk of this whole thread, so I am familiar with it, and a brief reply will be sufficient and appreciated.

    • You post it, you’re liable.

      You can even mistakenly pay someone else for the rights to use it. Even if they lied to you about their ownership status & you honestly believed you paid the right person, you’re still liable.

      • That’s true. Even if they were only up on your site for a minute. The question then is not whether you infringed but what that infringement is worth. If you registered your work prior to the infringement, then at the very least you would receive $750 in statutory damages plus legal fees. If you didn’t register, then maybe you wouldn’t receive and award high enough to warrant suing but that doesn’t mean that you aren’t infringing.

        • I’d LOVE to see proof of that.

          You might also take notice of the first two words of Steve’s comment. Or does he work for Getty too?

          Law’s the law, toots. Just because you don’t like it doesn’t make it my problem.

  • Hi Steve,

    I have just received one of these little gems in Australia. Could you please advise if the legal case sited in your suggested response letter have basis in international law? They have decided that an image used is worth $1595 which is a heck of a lot for a struggling business to provide for a misunderstanding.

    • Sorry, the cases are U.S only and I don’t know if there are any legal issues in Australia that would negate this strategy. So you might want to talk to someone local. That being said, read the response I wrote to Mike. I would bet the same costs issues would apply in that the cost of a lawsuit would be too high for the company to take action, that is unless thy would be allowed to recoup legal fees, which is not available to plaintiffs in U.S Copyright cases.

  • I have been in business for 25 years, have had a web site for most of that time. I just received my first threatening letter. It was LCS, which also as the same reply address as Getty (I think Getty realized the rest of us have figured out they are full if it?!) The picture they claim, supposedly owned by Stock Food America Inc, is on my site is through an affiliated site for travel packages. You really have to look deep, do a ‘search for travel to Mexico and Guatemala’ to even see the thumbnail picture of peppers, really- vegetables!! They demand $830.00 even provided a settlement link to pay by credit card! I didn’t fall of the turnip truck yesterday! I have written a rebuttal and offered them $15.00 , followed the format suggested. Sending the letter via snail mail, VIA USPS. Not signing it or putting my full name on it. Not replying to the email, think I might report as spam 😉 I have no way of removing the picture except by removing the link to the other sites feed. The picture is on the travel companies site that links on to mine.
    I did also searched on Stock Food site for about an hour looking for the pepper picture, the photo ID number they mention in the letter… not a thing comes up. I looked on the other photo sites, still cannot find that exact same picture. If it was stolen from them it should be easy to find, I find that very interesting. I am hoping for the best for me and all of you!!

    • I don’t understand your comment “the thumbnail picture of peppers, really- vegetables”.

      If a picture of vegetables is so meaningless to you, then why did you need to steal one?

  • Getty and a few other stock photo companies are intentional spamming google (all search engines) search with their watermarked content and hiding all normal non-stock photos from the search results. Google should ban their domains for doing this but Google is asleep on this one (for now).
    So let me get this straight, you can no longer find non-stock photos for many common items. Lets use the word “car” as an example. The return results now are in the thousands from stock photos and they completely bury what was once all non-stock photo search results. Like someone that just took a pic of their car. So you are left with no other options but to use their white background crap if you are just creating a quick meme for instance. After they remove your options they will then sue for using their content for something as short term as a disposable meme? This sounds like anti-trust monopoly happening here. Even if their water mark is left in the image you are still infringing?

    • Or…here’s an idea: take your own pictures and don’t steal other people’s.

      Nobody took away any of your options. Your options are still the same as they’ve always been: (1) use your own pictures -or- (2) get permission from someone else to use theirs.

      It doesn’t matter if it’s a stock image or “someone that just took a pic of their car”. It’s not yours to use without their permission. Google Images NEVER granted (or so much as implied) permission to steal other people’s photos for any reason.

      Just because stock image companies have the manpower and funds necessary to seek out offenders (unlike “someone that just took a pic of their car”) doesn’t mean that theirs are the only images that you can’t use.

      As for your example of memes, that COULD fall under “parody”, but that’s something you’d have to prove in court.

  • I manage a website for an academic medical fellowship. A couple of years ago we received a grant to develop a mentoring program for minority medical students. Workshop sessions were recorded and made available in an archive on the site along with a PDF of the PowerPoint slides developed by the volunteer lecturers. In late October 2015, I received a letter from LCS demanding $980 for a picture used by one of the presenters in her slides. I have removed the page and PDF. We are obviously a non-profit educational organization and the usage was unintentional. They verbally offered to lower the price by 80% if we provided our non-profit statement. How should I proceed?

    • Pam,

      First ask the presenter where she got her image.

      Second, if her response is that she got it from the internet and thought that it was free I would provide the requested proof.

      Third, I would then ask LCS for proof that they have the rights to pursue the matter. The chances are they will respond with some boilerplate letter, I would reiterate that your are either a c3 or c4 which ever you are and that you have provided them the requested information and again ask them politely to provide you with at least the contract between them and the photographer that allows them to pursue the matter. If they fail I would turn the matter over to your internal attorney and then leave it to him/her to deal with.

      If your presenter used a copyrighted image and you have hosted it on your website then the chances are very good you are guilty of copyright infringement, the exception would be if it were in the “public domain”, (don’t get your hopes up), or that the photographer has placed the image in a sharing type network, (again, don’t get your hopes up). It will depend on the photographer or Trunk Archive how far they intend to proceed, the chance is not very far. They will harass you but the chances are not very good that they will file suit, again this is free information and it is worth what you pay for it.

  • Just got an email from LCS for Almay saying we used one of their images on our website. Well, when we were creating the page and before it went live, an intern did use an image we didn’t own. When the page proof was sent to me, I removed it, put in one of ours and made the proof live.
    Question is, how in the world did this LCS even “see” the proof as it was never live on the site? They have a screen capture, but it is of the proof page. This is a little scary if there is a bot that is grabbing pages that aren’t even live…..

    • That’d be a question for your web builder. Based on what you said, I’d assume that the pages are all always live, just in such a way that they aren’t accessible to the average user.

  • Getty seems to punish smaller companies if they use their images, but not multi billion companies like imdb. imdb have openly used getty’s images of celebrities, which clearly have not been paid for as they still have the getty image watermark across it. So how can they justify taking action against smaller organisations and not the bigger companies? What the difference, why do they only take legal action against smaller companies not the bigger organisations that can afford to pay for their images ?

    • I am not sure that they only go after small companies. I hadn’t heard that. But it is more likely that the larger companies have corporate accounts with Getty, so they actually pay for the works. If they miss something, I would think there would be a process for dealing with that without requiring a letter. To find their images, they use software called PicScout which they bought a few years ago. So it is also possible that the software is set up to only crawl smaller companies but I don’t see why they would do that. Large companies that also have a lot of money are more likely to pay rather than fight.

      • The images on imdb definitely have not been paid for, here an example of one of the images http://www.imdb.com/media/rm4141921024/nm1386659?ref_=nm_ov_ph, clearly the watermark has not been removed. All images by getty that have been paid for DO NOT have the watermark as it is removed after payment. Getty have not provided any response as to why imdb are being allowed to download their images without paying.

        On the imdb site, all information is vented before it is uploaded by imdb administrators, many actors who have uploaded information on the site have had it removed or replaced, if they believed it was breaching any infringements and the same principle applies to images. Therefore the onus would sit with imdb to ensure no law are being breached.

        It seems like imdb have found a loop hole in the law to allow them to just download the images off the getty website and upload them on to their own site.

        It would be useful to know how imdb have bypassed the copyright laws and getty terms and conditions.

      • I have done some background research and the images on imdb are off the getty website and have not been paid for. Getty will not provide a response as to why imdb have not paid for these images and why they have not pursued the matter.

        Clearly there is a loop hole in the law that the imdb legal team have found and would be useful for others to know about

        • It may just be a compromise. Technically those images are still an infringement but if the watermark is still on them, then Getty may not care. It’s free advertising. Maybe, since IMDb is actually owned by Amazon, they may not want to deal with targeting Amazon. But there is no loophole per se, and Getty does not have to defend their copyrights if they don’t want, or they can defend them against only a certain group. That is up to them. There is no rule that if you defend copyright against one group, you have to do it against another group. If I had to guess though, I am assuming that they never file lawsuits unless there is a statutory infringement. To be cost effective, infringer need to pay with minimal time spent on the case. Otherwise, the legal fees won’t be covered. Sending these letters to companies like Amazon is just nto worth it since they have staff attorney that will make the process difficult. If I were the team setting up the demand letters, I would probably also avoid sending them to large companies. Then again, I wouldn’t take this approach anyway.

  • I just got one of these extortion letters from a different place called License Compliance Services. It shows me an image on a website that belongs to a colleague of mine (I have co-authored two research papers with him). The image is taken from a book that this person published (I have nothing to do with that other than I know the guy and actually own a copy of his book). Naturally, I am ignoring it since it came from a bot. Upon further research, the person who “contributed” the image to the plaintiff (Science Photo Library) did not even author it. This is 419 scam level, and they want $680 (with 20% discount offered if I pay in 10 days, haha). I’ll see myself out before the swearing phase kicks in.

  • Hello Steve,

    Here is my issue. I also received a letter from Getty demanding 980 USD for use of their photo. The showed a picture of my website however, a month before I received their letter the photo had already been taken down and replaced with our office photo. What do I make of this letter now???

    • Hi:

      The fact that you took the letter down doesn’t matter in copyright. Even if you had it up on your site for only a few hours, it is still an infringement. The infringement isn’t based on time, only based on the act of using the image without permission. Time may have soe bearing on damages, though. In any case, the letter is still asking for a lot. If you follow the sample letter here, that should help

  • WHO DOES THIS REALLY EFFECT??

    Im a stock photographer and have 10,000 images in stock – I sell about 2000 images per months (big numbers however the returns in reality are peanuts!) this is my lively hood and the result of over 20 years 16hrs a day hard work learning a craft. Why do people these days seem to think that if its on the web its free to use – the moment someone gets caught out for STEALING all of a sudden the library are accused of extortion. The demands the likes of Getty make are for a reason – Getty is recognized as one of the foremost quality libraries, if consumers want to use the images they charge rates according to the use (of which the photographer receives a small % of the fee – about 25%), Getty control the licencing of the images and their rates reflect this as such. How can ‘not so clever individuals’ who are claiming to be the victims for taking something without asking look for sympathy the moment they are caught?

    If they think that they should only pay what the inferior libraries charge – WHY DIDNT THEY DO THIS IN THE FIRST PLACE?

    Believe me Litigation is not part of the Getty business plan – they are one of the few stock libraries making a stand, others will be waiting in the wings monitoring how long you use images illegally and then in time when Internet law becomes more concrete and enforceable, will quietly stuff anyone who thinks they have got away with it with a hefty bill going back a few years! and yes the technology is already available to trace images –

    The crooks in all this are the consumers who are lacking the common decency to stop and think before they steal – 70% of web content is used illegally and ultimately at the cost of the photographer – until people learn that they cant just GRAB – RUN – CRY WHEN CAUGHT and think they can get away with it. Low cost images are available ‘so why dont people use them’? You can buy a poor image of an apple for a couple of $ but the cheaper sites have different licencing term compare that with a Getty apple shot and your into a whole new arena.
    People steal off Getty because they are the best images –

    Lets face it the web is here to stay and over time people will learn that technology is far more intelligent than the people using it the only way to do this is education – both the hard way and the easy way – people are becoming more aware of the implications – but it still goes on….. when will people learn???

    If you want to avoid paying for images I suggest to buy a camera learn the craft and then practice for years – then when your any good and can earn a nominal living stumble across a blog where poor unfortunates are comparing stories and feeling sorry for them selves because they have been caught steeling.

    If people want the likes of Getty to stop fighting for the greater good and making a stand then spread the word – tell your neighbor, tell your kids, tell your dog DONT COPY AND USE IMAGES OF THE WEB – ITS VERY VERY NAUGHTY!!!!

    And yes big brother is watching!

    THANK YOU GETTY !

    • Hi Neil – I understand your frustration, and I sympathize with you. However, here’s my situation.

      A year ago, one of our interns grabbed a couple of images off Google image search and used it on our blog. The images did not have a watermark or anything labeling it property of Getty, but still – she shouldn’t have used it.

      We received the first email from Getty, and it showed us a screenshot of our blog and demanded over $1000 for two images because they are “Rights Managed Images (RM)”, supposedly.

      We apologized and immediately removed the images as soon as we were made aware of the error. We offered to pay the fair market value for both images (about $60). We have asked them multiple times to show us proof of copyright and that the images are actually as much as they claim, and they ignore that request. I think it’s reasonable to ask what, exactly, we’re paying for – because we’re a business.

      If we just threw money at anyone who claimed we owed them something, without proof, that would be a pretty shoddy business practice. And so is demanding money of a company without showing a chain of title, copyright registration, and proof of the list price they’re claiming for the images. So, while I agree that stealing images is wrong, and we’ve insured that all images we use in the future are purchased (through 123RF, incidentally, because it’s one of the only outlets not owned by Getty), Getty’s practices in this matter are EXTREMELY shady and stink of extortion. They’re demanding an arbitrary price for images they can’t prove they own, hoping it will scare us into paying.

      Incidentally, they’ve offered three other “settlement” amounts – seemingly pulled from thin air, because they still can’t demonstrate how they are coming up with the costs for these images. They also won’t explain how the artist who took the photos originally will be reimbursed.

      We’ve been going back and forth on this for over a year, and it’s now with a collection agency who is regurgitating Getty’s party line. I’m sure they’ve spent more than the $1000 they want from us, so what’s the point?

      • Amanda,

        1. Where did you come up with the “fair market value” you were willing to offer to pay? Do you know what costs the photographer incurred in taking the image? How many licenses it may already have written on it for its use? Whether or not a studio was used and what its cost were? As well as many other normal costs photographers incur in the daily operation of their business.

        2. Did you include in your pricing, the costs involved in verifying whether or not you actually had a license, where you were located, who was the owner of the blog and other time consuming issues that a photography business must pay its employee in doing its due diligent search before sending out a letter.

        3. Since it was two images that you used, 500.00 per image for at least a year on a blog that probably is tied to a commercial venture,
        (“because we’re a business.”), is a rather cheap price per image, within the world of licensing “rights managed” images.

        4. Feel lucky that it is Getty and not a smaller stock agency, a smaller stock agency would not negotiate with itself and lower the use fees.

        Get yourself educated, your employee took two images without permission, by self admission, in the world of copyright you have violated the law, if Getty decides to pursue you it will cost you much more than what they are asking for in attorneys fees. Sometimes negotiating is better than going to court but when push comes to shove if you are taken into court your attorney will be trying to settle the case and it will be for much, much more than $1,000.00 dollars.

      • I am very surprised that they put you into collection. They cannot collect on something until they prove that you owe the money. They can certainly sue you, but you have no agreement with them. At this point, they haven’t even proven in court that you are the owner of the site. You made an offer of $60. Getty didn’t accept the offer and made other offers which you did not accept. Normally the next step is a lawsuit and that is too costly for Getty. Unfortunately, the best thing to do is have an attorney write a letter so that thy don’t hurt your credit rating. Of course, that will cost you several hundred dollars. First, you might try to send our sample letter to the collection agency. http://artlawjournal.com/respond-getty-images-demand-letter/

    • Unfortunately, people really don’t understand copyright, partly due to misinformation from the internet. Most people can’t grasp why they can put images on social media but not their blog. They can’t technically put them on social media either but it is become accepted. But it leads to market confusion. Further, many people think if they are not making money from it, they can use it. That is due a misunderstanding of fair use. As an IP attorney, I can tell you that the rules are very complicated, even for attorneys. There are many exceptions with no clear rules. There are fair use exceptions for thing like using copyrighted material for news and education but even deciding what constitues news or education is different in every court. Is the Art Law Journal news or education? Can you photocopy a chapter of a book for your class? Probably. What about a whole book? Probably not. What about half a book. Maybe. Maybenot.

      Getty prays on that confusion. Many of Getty’s targets are using images for small blogs, they are not ongoing businesses with resrouces. Had they known they would have easily swapped out for a $5 stock image. Most wouldn’t even know how or where to find those $5 images. No blogger with a few people a day viewing their site is going to spend $500 on a photo for their blog article. Nor would we at Art Law Journal. We spend $1 at Deposit Photos or 123rf.com. Not to mention that Getty doesn’t seem to have any rhyme or reason for which images are $500 and which are $5. As a photographer myself, I can attest to that fact.

      More importantly, Getty does not have the facts of the case before accusing a person of stelaing and demanding money wit the threat of a lawsuit. They are a big company with lots of resources and are using that to scare peopel into paying, even if they haven’t infringed. They bank on the fact that lawyers are expensive so peeople just pay, since they don’t have a viable means to fight. So when you say litigation is not part of the Getty business plan, you are dead wrong. This extortion model is a business model. It generates significant revenue, little of which goes to the photographers. They bought Picscout just for this purpose.

      Don’t get me wrong. I am not saying that people should steal photos but I am saying that not everyone who takes an image off the internet is a malicious crook. Eveybody deserves to be treated fairly, as an innocent, until proven guilty. They shouldn’t all be treated the same. Most infringement cases end in a negotiated settlement that takes into account many factors. Getty on the other hand assumes guilt, and rather than having a settlement discussion, they choose to use agressive scare tactics. They use the same tactics the the RIAA and MPAA used for years until public backlash forced them to stop. Now they have the the “6 strikes” plan, which penalizes multiple offenders but gives first time offenders a break. Perhaps if Getty tried that method, they wouldn’t be so hated.

      So i wouldn’t be too proud of Getty.

    • Getty Images leads a new breed of copyright trolls who target these infringers, sending extortion letters designed to scare them into paying hundreds of dollars or risk a more expensive lawsuit. The infringing images are arbitrarily priced at levels high enough to claim significant damages, while similar images in their catalog sell for a fraction of that price.

      My question for you is –
      As the photographer whose image has been infringed upon, when Getty collects these exorbitant fees, are they compensating you on their collection?

    • A great deal of content on many blogs is put their by VAs in other countries. The owner of the blog is completely unaware of the copyrighted material on the site. Many of these demand letters are directed at content, which is curated and the image is accompanied by the full article and commentary, which I understand is an allowed use.

      I completely agree that photographers should get reimbursed for their work, but their should be some form of digital signature, that allows site owners that content put on their site is copyrighted materials.

      • I have to disagree that a great deal of blogs have content put there by those in other countries. I am not sure where you are getting that information, but as far as Getty cases I have seen, that is hardly ever true.

        Also, while you are correct that commentary is a fair use exception, one still has to prove that the it is commentary. And there is also a case to be made that unless the unless the commentary is about the image itself, then it might not be fair use. Also, fair use is a defense, which doesn’t come into play until there is a lawsuit. So it is a bit more complicated than it appears.

        Despite the complexity, there certainly is a case to be made for some uses that it is commentary or some other fair use, like news reporting or whether there may be safe harbor protections from the DMCA. But it is important that you realize that copyright is a strict liability law so without a fair use defense or other exception, the act if posting the image on a site is an infringement. For example, even if someone were to purchase an image and then post it to their blog, if it turns out that the seller did not have the right to sell the image, then it is an infringement. It doesn’t matter than the buyer did not know. Intent or knowledge of the act being an infringement is not required and is no defense.

        The issue with Getty, or any of the other stock sites, isn’t that that they are accusing people of infringment; the vast majority they are sending letters to are infringers. The issue is the scare tactics they use to coerce infringers into paying. Especially when those infringers are paying higher prices than they ar required to pay.

        So, the people receiving letters are most likely infringers and should make some restitution, just not necessarily what Getty asks for.

    • Neil I am a small business man with a business that grossed $25,000. My webmaster ( a friend who does it for nothing ) uploaded a picture of slate houses that had no watermark. It was on my website about a month before I received a letter from Getty who claim copywrite and wanting $1000 +.

      If the picture had a watermark then my webmaster would not have used it.

      So an error was made and when pointed out was removed.

      I am not trying to cheat an artist from using their art. Of course you have to make a living.

      If you were in a park and saw a bag on a bench with no one around. You pick it up to see if there is a clue to who owns it. As you pick it up the owner and police man arrive and you are accused of stealing it. This is what Getty is doing.

      • Your example is flawed.

        It’s actually more like if you see no identification saying who owns it (“that had no watermark”) and decided that it’s therefore free for you to take (“If the picture had a watermark then my webmaster would not have used it”).

        And then after you took it (“uploaded a picture of slate houses”) and kept it for a month (“It was on my website about a month”), you got accused of stealing it.

        • I think the issue isn’t whether the person infringed, it’s the way that these companies approach the problem. Getty and other companies are not looking at the specific infringement with legal counsel prior to sending out their letters, but instead blanketing potential infringers with form letters demanding payments with threats of lawsuits, without any intention of actually suing. As well, they are claiming prices that do not reflect the market. You can’t take an object, let’s say a vase, which the market says is worth $100 and just declare it is worth $1000. Then when it gets stolen, claim $1000 on your insurance. The insurance company will give you $100 if you are lucky. In court, if Getty is asking $800 for an image, then they must show a history of that image being sold at $800. Getty isn’t taking the cases seriously, having someone check to make sure there are no false positives, and looking at the nature of the use to make sure it isn’t a fair use, etc, as most attorneys would do before sending a cease and desist letter. Getty resorts to scare tactics and harassment to get people to pay. They want a quick hit and don’t want to spend the time necessary to do things correctly. They see who they can scare and then if there is pushback, they walk away. I don’t like that approach and so I wrote these articles to let people know what their rights are. I think people should pay something for the use, but not necessarily what Getty, LCS or any of these other companies are asking for. Sometimes, the demanded licensing fees may be appropriate but then these companies should act appropriately and provide the information necessary for the potential infringer to make an informed decision and negotiate a settlement. The tactics Getty uses were similar to those used by the RIAA, which were eventually dropped in favor of market driven approaches, like ContentID, or penalties developed through negotiating a process with the ISPs where illegal downloading can result in throttling or canceling the accounts of repeat infringers. It would be nice to see Getty at least try to go down that path.

          • I don’t disagree with you. One of my pet peeves is someone who claims something is worth $X, because that’s what they saw it listed for on eBay or Amazon (despite the fact that they only saw that listing because it hadn’t sold yet). People can slap any dollar amount they want onto anything they want.

            But the fact is that Getty is within their legal rights to demand however much money they want–it falls to the demandee (and possibly the court) to decide if that amount is reasonable.

            The issue is a moral one. As you said in another article, just because you can do something doesn’t mean you should. I would love it if Getty would take the time to educate, rather than strong arm. Like a cop who approaches a minor traffic stop with an authority complex and his hand already on his gun, it puts the focus onto their behavior rather than the other party’s. I think they’d find people much more amicable if they worked toward a solution rather than how they do it.

          • This model is such a money maker for Getty that unless there is public pressure or outside education to the public such that the model is no longer profitable, I doubt we will see much change.

  • We just received an email today from Getty Images regarding an unlicensed photo that they own the rights to on our website. In the email, they included a tiny thumbnail of their copyrighted image, and a tiny screengrab from our site, purportedly showing the offending image posted on our site. Funny thing is, the pictures are completely different! in addition, I know precisely where the picture on our site came from. It was sent to us by one of our clients for the express purpose of being used on our site. Their PR department personnel personally shot the photograph. At the end of the email is this verbiage:

    “Rights managed imagery is the highest quality content representing the top 10% of our creative image collections. These premium images are used in major advertising campaigns, and their licenses reflect their high quality. Licenses for RM images are significantly more expensive than licenses for Royalty Free (RF). While RF licenses are based solely on size and are transferable RM licenses are based on many factors including use, size, and duration and are not transferrable. Please contact me if you have any questions about RM vs. RF imagery or licensed imagery in question. I will be happy to explain these items while helping you find an imagery solution. ”

    Happy to explain while helping me to find an imagery solution? Sounds to me like this is all one big marketing ploy, using scare tactics, outright falsehoods (in our case), and some good ol’ brown-nosing. Maybe I’ll respond with an invoice for my time that was wasted by having to deal with these imbeciles…

    • If the image is not the same, then certainly let them know. Although that fact that it was given to you by the client, doesn’t actually help, unless you have the receipt that the client purchased it. Otherwise, Copyright infringement is a no-fault law so the fact that you have it on your site, without Getty’s license, is an infringement. But that doesn’t mean you owe them the price they are asking.

      If they give you problems, just use the letter from this post http://artlawjournal.com/respond-getty-images-demand-letter/ That should get you out of it.

    • Same thing happened to my business. They sent me two photos, one of theirs and one snap shot from my website. The photos are not the same. I own the original and challenged them to produce the original, un-photoshoppped photo that currently displays on my site. I told them, if they could produce it, I would sue THEM for unauthorized use! Have yet to hear back from this latest email round.

  • I recently received a email letter from OTTO, License Compliance Services with a screenshot of my website showing their image. They requested to either show them the license for the image or I would need to pay $660. I used a third party site (ifttt.com) to generate content for my blog which resulted in about 100 posts to my site. NO images were uploaded to my server or hosted on my site, but were hot-linked from the original sources with attribution (eg: freshome.com and/or homedit.com). Since there were no images to remove from my site, I removed ALL posts generated by ifttt.com … I fear OTTO has more than 1 case and is waiting for a response or payment before they lower the boom with multiple cases. How should I proceed?

  • Steve (if you’re still out there): my case is a bit different, GettyBots identifying two images (one a thumbnail) on a server account we’d closed at least a year before, but the web host had apparently not deleted the files. We have inquired of the web host but they refuse to answer our inquiries except to issues a flutter of “Thanks for being our customer!” emails after they finally closed our account, some five years after we’d left.

    We can’t possibly be held responsible for the contents of a web server account we no longer manage. Getty’s initial demand was for $3k, now reduced to something attractively manageable. However, Getty is not addressing any correspondence to me by name but to the website URL. I would respond to any legal notice sent to me by name, but feel no obligation to respond to a robot writing to a URL.

    My larger concern is this: if they are not writing specifically to me, but *I* respond to them, then I am de facto admitting that I am the responsible party. Beyond the issue of copyright registration, were we to go to court, I would ask them to provide certified copies of server logs with IP addresses to prove the images were placed upon our server during the time within which we were contracted with the web host. If they are using some manner of Bot service, I would want them to produce some manner of legal certification that the service provides true and accurate data. These days, anybody can hack into any hosting account and anybody can fake up a report. Walking into court with a screenshot they pulled off of The Way Way Back Machine or what have you really shouldn’t cut it. This alleged infringement was years ago, extremely minor, and their relentless pursuit is beyond petty and ridiculous.

    Finally, I’m concerned that by stepping forward and identifying myself as their target, or even paying a settlement just to make them go away, that this may create a “shark effect” of subsequent extortion letters regarding whatever other insignificant thumbnail images may have been posted to a server we don’t even own. If Getty were to stipulate their dismissal of ALL copyright infringement claims *with prejudice* made as of or before the settlement date, sure, I’d pay ’em just to make this stop. My fear is, I pay this claim, they go “A-HA! He’s admitted to being the liable party,” and they just bury me. Absent that assurance, it is not worth it to me to answer them unless and until they actually start talking to me and not to some URL, “Dear DomainName.Com…”

    Curious to hear your thoughts. Thanks.

  • Hi Guys

    I have read through the whole conversation here.

    1. Copyright should be protected, but with the reasonable amount
    2. Conclusion try to settle for reasonable amount and get out of it, if the amount is higher then please see an attorney.

    I have received a letter last week, asking for 12k. Now my situation is a bit different I own number of websites, where people upload their listings such as gumtree. The notice I have received is for the images that are uploaded by others not me.

    I have asked a lawyer, he is asking for 2k to asses the situation, no reply no correspondence or make the case go away.
    I have terms and Conditions on website that mentions.

    “USER CONDUCT AND INDEMNITY
    Lawful use only
    You must use this site only for lawful purposes.
    General prohibitions
    You must not up-load, post, transmit or otherwise make available through this site any material which:
    Violates or infringes the rights of others (including their privacy and publicity rights).”

    and

    “However, we do not assume any obligation to monitor or censor materials.

    We reserve the right to host moderated or unmoderated forums or other web pages to which site users can post materials (“Forums”) .

    We are not responsible for:

    Materials posted to Forums by third parties, whether or not we moderate those Forums;
    Materials altered by us in moderating Forums; or
    Our removal of, or failure to remove, all or any part of those materials.”

    I am not a legal guy… but am I Liable for any of this ?

    Please if anyone provide the right direction, it will be a great help.

    Thank you very much in advance

    M

    • M –

      I am going to address your inquiry as factually as I can with no prejiduce. You can see from my previous posts I come down on the side of the creator but I have sympathies for those that truly are not intentionally trying to infringe.

      First I have to ask this question, are the images hosted on your server/site, or just hot-linked to another site? If they are just hot-linked than you have basically no worries there are two cases the most quoted Perfect 10 v Google basically says that if the image is hot-linked than you are not hosting it and therefor you have no liability, if it is on your server/site though you have an issue.

      First if you run a blog or hosting platform that allows anyone to post either images or excerpts from books, novels, etc. you need to register for a safe harbor from the copyright office. It is pretty simple, it will cost you a nominal amount but it will save you from this type of issue. To late for that protection now but information for the future.

      You probably will not like this part but Copyright law is very clear and you, the hosting party, have some liability, it could be a lot if you have any form of commercial activity on your site, or very little if the court agrees that you were not willful in what you did. There are a lot of sites out there that will tell you that folks that send you these letters are not serious, or that you can wait for the statue of limitations to expire, which is 3 years from the date of first notice. In some cases they are right and in others they are not. If you are in one of those where you are actually dealing with an aggressive plaintiffs attorney you will probably find yourself in a court case within a year to 18 months if you cannot reach an agreed settlement.

      My first recommendation to you is to make sure that if you hire an attorney that the attorney actually spends time handling copyright cases, the wrong attorney can actually cost you money. All he will do is rack up billable hours and settle the case, not saving you anything but costing you a lot. To be honest the amount you are being quoted is suspect, you should be able to get at least 30-60 minutes free from any good attorney, and most states have a referral system that when contacted will put you in touch with an attorney that practices in the field and provide a 30 minute consultation at no charge.

      Your disclaimer will not protect you entirely, it might mitigate the damage and get you a de minimus defense but that still means you will have to pay an amount and the only way to get to that kind of ruling is to go to trial and that is very costly, for both parties, but remember if you roll that dice and lose you may be paying the other guys legal costs as well. The number that you have been quoted leads me to believe that you have more than one image, and you have some form of commercial activity on your site/sites. That means that it will be much harder to get the de minimus ruling. Like in any negotiation the opening number is just that, it is always cheaper to settle than to go to court and in a settlement neither party is entirely satisfied, but if you ignore, or antagonize the other side all you will do is make the other party less likely to compromise and the chances are good that they are in the drivers seat.

      I would ask for proof that they actually own the rights to the images, or that whomever they are representing has that right. There was a guy a while back, a few years ago, that ran a scam but he got caught. Doesn’t mean that someone else isn’t out there doing it again. A legitimate copyright holder should not be afraid to show his registration but you need to understand they are not required to until they file the case. As to what is considered reasonable if the image is unique in any way you have an issue, if it is a celebrity, a news breaking event, or many other examples like that it will always be more costly. Your idea of reasonable will not likely be the other sides idea of reasonable. If the photographer makes his or her living in the field their costs of doing business can be quite high, if they have licenses out there for the work that is now on your site they are going to be pushing for what they have licensed those images for and so on.

      Copyright infringement has a wide range of awards, from as little as $200.00 per infringement for de minimus to as much as $150,000.00 for willful infringement of a registered image. Reaching the $150,000.00 is difficult but it does happen, what is more likely is the range between $750.00 to $30,000.00 for each registered image. Note the term registered, that means that the person or persons took the time to register the image with the copyright office in a timely manner, timely manner means within 90 days from the date of origination or first publication. If the image is not registered in a timely manner than the rights holder can not request statutory damages, (the numbers I listed) but is only entitled to actual damages, but if the image is a famous or iconic image that would be far more expensive than what I listed.

      Given that you have been contacted by an attorney the chances are much greater that the images have had the copyrights filed on them because for the attorney to ask for his fees should this go to court that would need to be the case. Just realize that they may not be registered and the other side is gambling as well.

      One thing, once you hire an attorney the other side cannot contact you directly, they can only deal with the attorney so if you are not versed in copyright which it appears you are not I would say a COMPETENT IP attorney should be the next thing you do.

  • My daughter received one of these ‘extortion’ letters from Getty via email. Is this common, or should they send letters through the US mail? I feel like an email is not as legal and sending a certified letter. Do you think she should answer the email?

    • Yes, The letters often come through email because the location of the web owner isn’t readily available. Take a look at the two articles on this, her at the Art Law Journal, and follow the directions. If you don’t answer, they won’t go away. Good Luck!

  • If you have dealt with Getty Image like our company has, you will know Getty employs never ending scared tactics to companies unaware of the law into submissions. Getty knows going after large companies take a long time and is very costly to do so and sometimes with fruitful results. Instead, Getty opts for small companies with no financial means to obtain an attorney by simply charge a low, but still a ridiculous amount (not market price;usually 10-100 times market price) for a single image. Check similar images with Getty and iStock (a company Getty own), you will find the 20X difference in price, one would wonder if Getty immediately moves the image in question from iStock to Getty right after PicScout (another company owned by Getty) finds a potential for profit image in question. Most of the time, you will find these companies are unaware of the image in question to be a violation of copyright, some simply linked the image for educational purposes.

    Getty created a company call Picscout an imaging scarping bot to do exactly that. Picscout generate millions in revenue yearly solely from their demand letter from small business alike. It is also rumored that Getty shares 50% of its revenue from Picscout. Instead resolving copyright infringement issue, Getty acts as judge, jury and executioner. Getty automatically calculates violation fines which far exceed any market price or court findings. To do so, Getty created an entire compliance department for the sole purpose of generating revenues. A bad business practice if Getty cannot rely on its main business to sustain.

    Do they follow the law? Sure they do! But! Getty tells you the law which benefits them without letting you know your rights. They simply treat a serious offender and innocent mistakes the same for the SOLE purpose of generating revenues.

    In our case, our Company is a health and workout product site focus on healthy living for our customers. With so much information out there, we look at YouTube for educational information to link to our site (both youtube and federal court findings allows linking in this nature). Now, if you have ever uploaded any videos onto YouTube, you know that people sometimes embed images into the video which under YouTube copyright the original Uploader is telling YouTube that they own the right. Therefore it would be perfectly ok for our site to link to. Now comes Getty………

    Dear Business Owner;

    By way of introduction, Getty Images is a leading global provider of digital media; our imagery is used by major newspapers, magazines, and in advertising campaigns around the globe. We represent over 200,000 artists, the largest community of photographers and filmmakers in the world. They rely on us to protect their livelihood, allowing them to thrive and produce future creative works.

    We have noticed imagery represented by Getty Images on your website, and, so far, we cannot locate an active license for this commercial use.

    Sounded perfectly legit, had we have done so knowingly or unknowingly. However, after our company have told them exactly what we have done and immediately took it down. Getty ignored the fact also federal court findings that linking is not a copyright infringement, violation and the pursuit with its demand for payment letter, suggesting a bigger trouble for our company if we do not comply. Following other company’s experience, we said okay give us proofs in writing so we in the case where if we complied that we are complying with something that is authentic.

    Getty being the largest imaging company that they think that their simple imaging link is their right to victory, what if I put that same exact image on my site and claim it as our own do we have the right to collect from them? No written proof was ever provided, not even a digital signature? So, why would our company want to pay this ridiculous claim?

    We also show them their own sub company iStock’s similar which costs 20X less than what they are asking of us. The feedback? Well, you did not buy it from iStock. Now why is that important? They are all your company with the same parent. Imaging when you buy a Chevy Tahoe at $40,000 dollars but when you want to buy a GMC Yukon, it will cost you $800,000 dollars. Is that right? I beg the differ.

    Finally, after many corresponds with Getty we realize this is never ending and Getty would never give-up. Perhaps their “Compliance Specialists” gets a commission for each payment? We then simply tell them, look, we’ve researched your questioned practice and would like to answer them all at once. Thanks to http://www.extortionletterinfo.com and attorney Michelen’s forum we were able to come out with the following:

    1. Sending us to collection agencies

    Our response would be:
    Please cease and decease all communications. No office visits.
    This is not a “debt collection” because it is not we do not owe you money.
    This is not a “settlement claim” because they have no claim without proof of ownership.
    These debt collectors cannot report my company or any personnel to a credit agency or do anything to harm my credit rating, because it is not a debt.

    2. Liability?

    Our response would be:
    Show us your ownership in writing first.

    3. Damages?

    Our response would be:
    If you cannot show predated US Copyright Office registration, you will not have grounds to automatically qualify in Federal court.

    4. if you say statutory damages, like attorneys fees and court costs?

    Our response would be:
    You only get that for registered images

    5. if you say our actual damages takes into consideration all the additional costs of enforcement?

    Our response would be:
    You have no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image.

    6. if you know that courts often award damage multipliers in these cases, so that’s why we ask for these amounts

    Our response would be:
    Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only

    Finally Getty told us:

    Had you been infringed on a iStock image than iStock pricing might be relevant. However, this isn’t the case here. I’m glad you’ve educated yourself on inexpensive ways to avoid claims like this in the future, but this doesn’t take care of the past unlicensed use of our Rights Managed content on your website.

    Let me tell you how this is going to work: My department is here to reach amicable resolutions in these matters. In your apparent online research about our pursuit of copyright infringement you have not likely come across this specific type of communication. You haven’t read about our willingness to accept low amounts like $249 (which we are willing to accept here for the specific type of use we found on your website). You’ve made it clear that you have no interest in reaching an amicable resolution with us. Our offer of $249 will be withdrawn. This case will not bet sent to NCS. You will be notified of the next steps.

    I won’t waste my or your time responding to any further e-mails from you that are not productive towards settlement.

    Sure, while iStock charges $12 dollars for similar images why would we pay $249 20 times over that of their similar images. As what we’ve mentioned, would you pay for a Yukon for $800,000 dollars? Getty is not trying to resolve any issue, Getty’s only interest is getting outrages money from law abiding companies unaware of the situation. These questionable practices are indeed in our mind extortion and scamming practices.

  • I recently received a email letter from Gettyimages with a screenshot of my website showing their image. They requested to either show them the license for the image or I would need to pay $580 for royalties. I quickly removed the image, and responded to their email stating that I was unaware that this image was copywritten by Gettyimages and required purchase. I let them know it was already removed, but they still want their royalties. On a follow up email I showed them that on a basic search of “Couple holding iPad City” their image shows up watermarked, however when I was searching for FREE images I search “Couple Holding iPad City FREE” and that same exact image showed up but without a watermark. This seems like a scam & a trap. Gettyimages obviously has the ability to show their images as watermarked on a Google image search, but they choose not to so they can get extremely marked up royalties and scare people with lawsuits. I just sent them an email showing other stockphoto sites with the same search of “Couple Holding iPad” and the prices were way drastically lower. What I was trying to prove is the fair market value, that $580 is not what that 1 picture is worth. I request for them to tell me how they calculated $580 and to show me sales data of that image. Gettyimages is intentionally setting traps for people who do not know or follow copyright law religiously. They have the ability to watermark their images, but choose not to so they can try and collect on innocent people & that isn’t right at all! I don’t have a resolution to this letter yet, but I am hoping to get some better news tomorrow w/ a lower settlement amount . Fingers crossed…

    • Fingers crossed for sure. I agree, they are not necessarily being transparent, and taking advantage of the “strict Liability” aspect of copyright law to everyone’s detriment. Please let us know what happens.

    • Hi.
      Thank you all for contributing to this thread. We received claim letters as well. We have our business in Sweden Europe and the showed us a screenshot of our website, demanding 800 USD. The picture was found as a “free” picture but edited and cut compared to their original.
      Our lawfirm advise us to pay up to avoid the problems… but I would rather not not so much for the money but rather for the scam.
      Any news yet from you Peter?

    • Whether images are watermarked (or not), registered with the Copyright Office (or not), and/or have licenses openly available (or not), you still don’t have the right to use them without the owner’s permission.

      They have every right to leave watermarks off their images. That doesn’t mean that they’re free to take. Even images with free licenses still come with conditions.

  • First to James – Do not believe that the image has to be registered to have an attorney take a case, or for the rights holder to have a case. There are numerous examples of an image or piece of art that has not has it’s copyrights filed going to court. Yes, I understand that you cannot receive statutory damages, but if the piece has a long history of selling and making money, or you have a licensing history that is high dollar for licenses then many times in that case actual damages will be much more costly. Granted it is not always what is discussed but it does happen. It is more costly because you have to front the fees to an attorney and you will not necessarily get them back, but it is not a given the attorney will get them back on a case that met the timely registration either but the statute is in his favor on that one.

    Secondly – your statement – “The 800 lb. gorilla is “Was copyright in the photograph registered?” Everything else is academic. Nowadays, absent statutory damages, NOBODY sues for these sorts of infringement (i.e., use of a photograph on a website).” I will humbly disagree with you on, I have done it and will continue to do it to protect both my copyrights and my clients. Sometimes I fall a little behind on my registration but if you take an image of mine that has been licensed and has a track record I will not hesitate to come after you, two reasons if I allow the flagrant infringement of my images with no action my copyrights can be invalidated in a court action, secondly the folks I have licensed the image to deserve to have me protect their interests for the price that they paid for a license. Remember you can register after the infringement began, you are precluded from the period of time prior to registration but not for the time after registration. A ninth circuit ruling.

    Third – There is always the option of small claims court, not as high a dollar as copyright but just as effective and sometimes more so. By billing the infringer for the use, if they refuse to pay, (like most do), you have a contractual dispute for goods or service used and at that point you have a small claims case. State by state of course.

    Steve – I agree with you on Getty, (to a point), but a lot of people read this and other blogs that have received a letter from either an attorney or the photographer himself, (not Getty), and they are responding as if the Getty model (what seems to be the bee in every ones bonnet), is a one size fits all, for all of the letters that are sent.

    To your point about “extortion” since all letters contain the statutes and the dollar amounts that someone “may” be liable for does that make all of the letters “extortion”?

    I will still point out that many, many photographers are much more vicious than Getty, we have to be, our margin is not what Getty’s is and therefore even small infringements are more costly to us. Treating all letters as if they come from Getty could very well be a recipe for disaster. If I send you a letter through my attorney it means I have already sent you a polite takedown request via e-mail and you sent if off to the spam folder or chose to ignore it.

    As to your point of the “six strikes”, do you believe that AFP and Getty should have been given a pass for the Daniel Morel issue or given a strike with five more to go before anything should have been done to them? Should it be the same for the AP or since they were only writing a story should they be given a pass on the McClatchey case?

    Both of these are very egregious cases, the Daniel Morel case is a case study of what goes on on the internet with someone taking images without permission and using them in whatever manner the infringer saw fit, and claiming they had permission because it was on social media, the McClatchey case has to do with removal of CMI and claiming the image as your own, (for everyone who is not aware of it), again something that goes on all the time on the internet.

    Love the open discussions and the chance to help folks get an understanding of all sides of the issue and the law.

  • All this discussion about “Fair Market Value” seems entirely irrelevant – as does any discussion about whether it is good policy for Getty to send these letters. (For what it’s worth, I wouldn’t characterize these letters as “extortion.” Bear in mind that photographers/copyright holders constantly ENCOURAGE Getty to go after infringers).

    The 800 lb. gorilla is “Was copyright in the photograph registered?” Everything else is academic. Nowadays, absent statutory damages, NOBODY sues for these sorts of infringement (i.e., use of a photograph on a website). Getty (and everybody else) knows this. When engaging with Getty or any other licensing group (e.g., AUGUSTIMAGES, Corbis) the way to frame your inquiry is “As I continue to evaluate your claim, it would be helpful if you would provide the relevant information regarding copyright registration and chain of title.” Rest assured, if copyright to the image has been registered, Getty et. al. WILL tell you. If it has not been registered, then they will play coy and say “We are not required to provide that information until the discovery phase of litigation.”

    If copyright has been registered, then the prudent thing to do is try to negotiate a lower license fee, grit your teeth, pay the money, and be more careful next time.

    • I agree with you, in part. Without statutory damages, Getty isn’t likely to sue because the costs are too high. However, just asking whether Getty has a registration is not an argument for them to not sue. They will continue to send letter and harass. Under your scenario, you are not alleviating yourself of the burden, only saying that you won’t pay because you don’t think they will sue you. That may not always be the case.

      Lets be fair, most people who receive Getty letters are infringing and should pay something. So it’s important to put forward an argument, along with a corresponding settlement offer that has a coherent legal argument.

      As for them being extortion letters, the definition of extortion is “the practice of obtaining something, especially money, through force or threats.” Getty is use form letters without carefully vetting them first. I have seen a few cases in which Getty was suing for Thumbnails not even being hosted on a person’t site and receiving letters asking for hundreds of dollars. (Thumbnails are, in most cases, fair use). Sending a letter asking for an amount that they company is not necessarily entitled to, and then saying, “Pay me $XX now or we’ll sue you and raise our settlement price”, is a scare tactic and fits in with the definition of extortion.

      I am not saying that Getty doesn’t have the right to sue in many cases, but the company doesn’t carefully consider which cases are appropriate for a lawsuit. And, a threat of a lawsuit should not be used unless they are prepared to follow through. Using a lawsuit as a scare tactic for a group that doesn’t understand the rules, and where it would cost more to hire an attorney than to pay them, puts recipients in a difficult position, which Getty prays upon. That is a form of extortion. The RIAA and MPAA figured that out after they had PR problems. They use the 6 strikes policy now which I believe is very fair. I wish Getty would consider a similar policy.

  • I have been receiving these letters demanding $900.00 for some images that are not on our site.

    We have looked for the images but could not find them. The team believe that they are no longer there because they appear to have been images used by the web template builder and came with the template when we purchased it. Before going live, all those pictures were replaced but getty saw them while the site was going thru developments. Now, we are litterally being harassed with letters and invoices. Incredible… but I will rather dgo to court to make my point than to pay than $900.00. Let them send the letters… my shredder is still active. It seems this is the 21st century mafia….

    • You could keep shredding them. Or you could, ya know, respond and attempt to clear up their confusion.

      Not sure why you’d prefer that they sue you (and therefore cost you money, even if you win) rather than just explain what happened, provide proof that you purchased the template and that the template came with the appropriate licenses and cost yourself nothing.

  • I received my first letter a year ago and then just received another. My response then as just now is this appears to be a form of entrapment where the source file(s) are never removed but knowingly, Getty allows the “crime” to occur continually. If there was a sincere interest in reducing this (you can’t eliminate it) they would be removing source files. But they don’t. I appreciate the time the author took to share with us ways to respond.

    • Agreed Tony. They can at least put a watermark on their photos or something. It’s almost like they want people to “accidentally” use their photos in hopes they can go after them for more money.

      • How does one “accidentally” use a photo?

        Did your finger slip and hit the “copy” button and then just so happen to slip again in such a way that it pasted the image?

        It’s really simple. If you don’t have permission from the owner of the photo to use their photo, then you don’t have the right to use the photo. It doesn’t matter who the owner is. It doesn’t matter if they registered the photo. It doesn’t even matter if they charge money for the use of the photo. If you don’t have permission, it’s not yours to use.

        • Ha. Yes, that’s true. Perhaps he should have used “innocently” instead. You know, there is so much misinformation about copyright out there, that the vast majority of infringements are done by people who think they can use the images, and some ppeople try tot are advantage of that for sure. For example, most people think that if you don’t use the image to make money, like if you are using it for a blog article or something, then it is free to use. That probably comes from a misunderstanding fair use, where one of the 4 factors looked at is how much money you are taking away from the copyright holder. Also, the reality is that if the infringer isn’t making any money, and the licensing fee is not in the thousands of dollars, it doesn’t pay to sue since the legal fees will be more than the judgement. Then there is the statutory damages model which allows $750-$30,000 per infringement, for innocent infringers, or those that were unaware that their actions were infringing or that they believed they had a fair use defense available. But if the infringement can be shown as willful or with knowledge that they were infringing, (which is actually hard to prove from a legal standpoint), then damages go to $30,000 – $150,000 per infringement. You’d would be surprised at how many people call me and have off ideas around copyright including the belief that every image on Goggle images is free to use. Anyway, I hope you see my point.

          • As with above, I agree with you.

            That is so easy to copy and paste no doubt makes people think it’s acceptable. I’ve had arguments with professional journalists who think that “Source: Google Images” is an appropriate photo credit.

            Bringing it back to Getty, I think the time they spend threatening to sue individuals would be better spent educating the public as a whole. It would yield them less money from scared infringers, but it would cut down on the number of infringers.

            That said, as I mentioned above, it’s a moral argument, rather than a legal one.

  • Regarding the threats in the extortion letter by Getty Images, a legislation is pending Congress’ approval to punish copyright trolls like Getty Images for misusing laws to extort money from naïve people. Try talking to your local Congressman about it. For now, the best rule of thumb is to IGNORE such a non-sense. If you will speak to an attorney, that’s how they make money and they will want you to take it seriously. No court of law will punish you for doing an innocent mistake and removing/replacing the image immediately.

    Here are sources for FREE images. Pls. check each image’s license for a special word like “CC0” or Creative Commons 0 which pretty much means no rights reserved. On Google Images search , set ADVANCED SEARCH for FREE FOR COMMERCIAL USE. Other sites of free images include pixabay.com, freepixels.com (be careful of the sponsored images on top of the search results from shutterstock), imageafter.com (do not remove their copyright notice in the image which is too tiny for anyone to notice) and imagebase.net.

    • Hello
      I am a victim of the Getty Images extortion letter scam. I have removed the alleged image from my website and Getty’s lawfirm McCormack have been sending me demand letters to pay up. These letters were sent regular mail..not certified..so whose to say I received their letters. I also demanded they prove their right to this ridiculous claim and they have failed to do so. I refuse to pay them based on that fact. What is the probability they will sue me? I am a small business owner and cannot afford to pay this silly amount for a picture which I made no profit from. Please advise. Thanks

      • Marla –

        While Getty may or may not sue you,chance is they won’t, but since you are a business the chance goes up.

        As to making a profit the law on this is very clear, it makes no difference whether you made nothing or a bucket of money you are liable for copyright infringement. Now that is not to say you may not have an excuse a court will accept, the issue is whether you are willing to roll the dice.

        They are not required too provide with any evidence until they sue you and take you into court, good practice is they show you that they have the right to do so before hand but it is not required. Should you hire an attorney for the matter the chances are that they will show what they have since they know it would be fruitless otherwise.

        They have three years from the date of the first letter to sue you after that they cannot bother you for that infringement.

      • I’m in the same situation as well Marla. Getty Images is a corporate thug who preys on small businesses to keep their own unethical business alive. Our business received a letter from Getty Images a couple months latter stating that we had used one of their photos in one of our blog posts and they wanted close to a thousand dollars as payment for using their photo. We originally found this image on Google images and used it for our blog post, not knowing it belonged to Getty until we received our first threatening letter from Getty. We sent a letter back to Getty apologizing for our mistake and took the photo off of our blog (which makes no money, by the way). Getty sent another threatening letter stating that it would take us to court and they had sent this to their legal department. We wrote another letter back to Getty, apologizing again for the mistake and that we were willing to pay for the photo based on what there website was asking which was less than $300. We received a letter back from Getty stating they would take us to court and we would be responsible for the legal costs associated with their claim. This company uses strong arm tactics to intimidate small businesses so they can extort as much money from them as possible.

    • Amir –

      Be very careful, the court will and has punished people for exactly what has been discussed. Removing the image while laudable will not save you in the face of a lawsuit. As to laws regarding “copyright trolls”, I have talked with my congressman and at this time it is not even on the radar screen, “patent trolls” yes, but nothing regarding “copyright trolls”. I ask you this, are you saying that anyone whom is a producer of copyrighted materials that defends his or her copyrights is a troll?

      As to Creative Commons it is not as safe as you think, I have had my copyrighted images taken by unscrupulous individuals, used and then to hide what they have done placed into Creative Commons under a false name and terms. Image search tools like Tin Eye find them and the uses and guess what happens after that. In that case you might actually be an innocent infringer but, but you will still get the dreaded letter and have to deal with the issue.

      • Amir,
        Kevin is right in that copyright infringement is strict liability, intent is not required and removing the infringing image does not alleviate you of the infringement. And, Getty does have the right to sue you as per their Terms of Service with the photographer. However, I don’t believe Getty’s approach is a good one. The company is not looking at each case as a lawyer would if I client came to them with an infringement. Getty uses a form letter approach based on results from their PicScout searches (they bought PicScout in 2011); the company threatens but rarely sues. The only cases I am aware of that a suit was filed, either involved a large number of images or the images were registered with the Copyright Office, so statutory damages were available. Those cases did not begin with the form letter, from what I have heard. I cannot confirm that, though. What I do know is that Getty rarely follows through with a suit, mostly due to the costs involved in a suit vs. the low damage award they would receive.

        I am not saying I condone the infringements, but I believe Getty should be taking a different approach, perhaps a six strikes policy like the RIAA and MPAA are using.

        While Getty usually doesn’t sue, they do on occasion. In a case, here in Florida, Getty sued a web company which had used 13 images multiple times on the websites they sold to clients. Two of the images had copyright registrations prior to the infringement so statutory damages were available. Getty approached the case as a real litigation, not a scare tactic, and sued over the two registered images, (they did not sue for the other 11). Surprisingly, the defendants lawyer quit, after which, the infringers refused to respond to court requests. And, the infringers continued to use the images despite warnings that they were infringing. The infringers never appeared at the summary judgment hearing, and ended up paying Getty the maximum statutory penalty of $300,000 for the two images.

  • Steve –

    I have thought/pondered long and hard over your last post.

    I understand your issue with Getty’s heavy handed approach and though I don’t totally agree with it surprisingly it seems that it has always been Getty’s approach. As I said earlier more people are doing it and more people are getting caught. Most if not all of the people I have seen screaming about Getty are ALL self admitted infringers, (not saying you are one of them), and my blessed grandmother once told me “misery loves company”, in the Getty argument I believe it to be true.

    This quote though bothers me, – “they are infringing, mostly due to misinterpretation of copyright law perpetuated by the Internet.” – there are so many sites out there warning, advising not to, and just plain saying if you don’t know don’t do it, that I can not believe that is the argument. I don’t care if you run a blog, (there are many sites that explain how and what to avoid), or run an internet business, (the previous holds true), understanding what you can and cannot due under the law is paramount and I believe most are just trying to get away with the old adage “I won’t get caught”, and when they do they just claim “I didn’t know”.

    I asked a question and I will ask it again – “Are you advocating that the copyright laws change so that “innocent infringement” is excused?” That is the heart of the matter.

    Yes RIAA changed and bowed to the pressure of the masses thinking that they would be able to pick up lost revenue elsewhere, it has not happened, (in fact it is just the opposite), they are having to come up with new and more creative ways to make ends meet. (take a look at the spate of lawsuits filed regarding copyright infringement band to band, it has jumped astronomically), and I predict that it is only a matter of time before there will be major changes within the record industry just so it can stay afloat.

    You do not/have not mentioned companies like BWP media whom I would say is much more aggressive than Getty, or Masterfile whose practice is identical to Getty’s, so the statement ” I don’t like their extortion approach” I have a hard time squaring with what is actually going on out there.

    Here is something else to ponder, Congress is probably going to accept the LOC Librarian’s recommendation for a copyright version of small claims, in fact they are finalizing the details now. If you think things are bad now wait until that occurs, granted you need not hire an attorney but all the same rules will apply and the letter of the law is what will matter. That will make it much easier for Getty to take everyone of the people who sit and wait for the clock to run out into court and get what they are asking for. Most if not all of Getty’s attempts to settle after the first letter and including the amount in the first letter are well below what will be the threshold of the copyright small claims court. It is what the masses cried out for and now they will be hoisted on their own petard. In fact it will probably help out the RIAA as well, and you just might see that start back up again.

    This one quote you pulled from IP Wiki Law – “Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.” – I find interesting based on copyright law, “consciously and intentionally copies”, – this one statement gets right to the heart of the definition of “willful” or the meaning as used by the courts since there is no actual definition of willful but this is the accepted one used most frequently by the court – ” Infringement of a copyright under such circumstances that the infringer knew, or should have known, the copyright was being infringed is considered willful infringement” is what the courts look at when weighing whether or not to accept the “innocent infringer” defense. In all the cases that I have been a part of when that is shown to have occurred, (plaintiff meeting his/her burden), the court will and has not accepted the “innocent infringer” defense. If you read the Wiki statement in plain English one part negates the other.

    The court has always had the flexibility to lower an award or raise it based on it’s belief or interpretation of the facts that is why filing a copyright case is always, always the last resort, and every attorney worth his/her salt always asks for the maximum, if they don’t they are leaving money on the table and NOT advocating to the best of their ability on their clients behalf. It is also always meant to get the persons attention and as a starting point for negotiations. But are you saying that an entity that rightfully owns a copyright for an image be it a corporation or individual is not entitled to get paid for their work when someone else uses it if they use heavy handed tactics? If so why have copyright laws?

    Isn’t it true that you are not required to send a take down notice? Isn’t it also true that you can be filed on without notice? BWP uses this tactic to the tune of over 100 cases filed in less than two years ALL without notice. So whom really has the heavy hand here?

    In all letters I have ever seen or participated in there is always that line and of course another line about what it will take to settle the case. Heavy handed or not that is the way ALL civil lawsuit letters start out not just Getty copyright infringement letters.

    It is always easier to send a letter demanding payment and negotiate, (in a negotiated settlement neither party gets what it wants), than to immediately go to court isn’t it? And there are no “Marquess of Queensbury” rules to start the party.

    I continue to enjoy the discussion.

  • Steve –

    What is an “innocent infringer”?

    Google “image for a blog”, one of the first things you get is how to avoid the issues you are pointing out. In this day and age where you can get the decision of court cases on line there is no excuse for taking an image without permission. Now, if you go to a third party issue I might and would probably by the explanation but again when you look it up there are as many sites telling you what and how to avoid as issues as there are sites trying to sell you images.

    A 150-300pxl 72 ppi image is considered a medium size image in the stock industry, try using any of the calculators on any of the sites or fotoquote, when a website is optimized for a screen, (at this time between 980-1080 pxls), you can see that it is between 1/4 and 1/3 of a screen. Most of the images that I have seen taken and misused or in court cases are not some “low res” over worked jpeg, they are top quality images that have a lot of impact. You use Fashion and Wedding as two of your higher paid examples, they just happen to be within the tops of who are being infringed, you forgot to mention Sports who is right at the top, or the Paparazzi crowd, most of which work for “media outlets”, (I use the term loosely), who is also right at the top. The two that I mentioned are also highly compensated for their images. Your remarks about the drone are interesting, at this time the FAA is still promulgating rules for the commercial use of drones. Getting a high res still of a GoPro3 is, well I will let a quote from Gizmodo speak, “It is ultimately nothing but a vacuous gimmick.”, or ” But even hyping the whole 4K thing is a transparent attempt to produce a WOW-factor in a market that is getting quite competitive (thanks to Sony and Contour). That translates to a higher price tag for a feature that offers little actual benefit.”

    The flight time and what and how you can photograph are severely limited, (by the way I do aerial photography, the kind from helos and fixed wing), now I will admit the small drones give people a new way to get into aerial and in a cheap way and the images will have commercial value but they will not be cheap. I am aware of a person who shot a couple of incidents, got about twenty seconds of footage on each before being chased out and sold it at a very high price, so your analogy of the value is way off, if it is the only thing out there and everyone wants it, it will cost a lot.

    I understand that you can get away with lower quality @72 ppi that does not mean that we are shooting lower quality and to suggest so does a disservice to all pros. Your point regarding that “everyone with a camera”, is a point that is discussed on every photography board out there and yes you have many, many folks who really do not know which end is up when it comes to a light meter or getting their camera off of P and using manual.
    But ” The skill required for taking high quality photos”, your quote, is still a skill learned and not from the camera, the gear does not make the photographer it is what he can do with it. I can hand my D3 to any yahoo on the street and he/she may or may not get a shot, (most likely not), but I will get it almost every time and I’ll get it right. As to the fallacy that it is every Tom, Dick and Harry with a camera that is the genesis of this issue that is a red herring, Getty and all stock houses have been doing this, (protecting their rights), as long as they have been in business and as long as the copyright laws have been in existence. The difference is now there is an internet, more people taking/stealing images without permission and more people getting caught and complaining. The reality is you would not walk into someone’s photography shop take an image off the wall, walk out with it and use it would you? So why the excuse for the internet?

    Where these cases have made it into court, if the image has been properly registered and that includes GETTY the courts are not treating the images as if they have no value or that they have a diminished value because of the industry, they look at each case on it’s own merit. Traffic to a site does not count, how much money did they make isn’t the biggest issue it is how much did they save versus what kind of damage did they do to the photographer.

    We can discuss all day until the cows come home what kind of gear makes a photographer or who is a photographer but what it really comes down to and what I want to get on the record here from you is – Are you advocating that the copyright laws change and that “innocent infringement” is excused? If you are that will be final death nail in ALL Intellectual Property Rights because from that point on everyone becomes an “innocent infringer” . The courts do not see it that way, most people that I know in the business do not see it that way and the few that do are not really in the business, even most of the IP defense lawyers I know do not want to see that but it seems to me that is the argument that you are making.

    What or who will define “innocent infringement”?
    When will it no longer be “innocent”?
    Why would it be “innocent” in one aspect of the law and not in another?
    Why is it “innocent” if a person does it and not a company?
    How long do you think that the creators will create if they know they cannot protect what they create from “innocent infringement”?

    Why do you have such a bug about Getty? Other companies and individuals are doing the same thing.

    One thing that you fail to address that the courts always point out, the time to negotiate is before you take the image not after, and this idea of – “Maybe the model needs to change, altogether. Rather than a yearly licensing one size fits all model, maybe a percentage of sales fee, (like a royalty?), like with music licensing, would work better. Or a “pay per view,” so if the image is being used on the homepage slider, then each time a person views the photo, there is a charge. That way, sites with more traffic pay more than those with low traffic, or pages with lower traffic within a site, (how would you police this with GOOGLE analytics?). Just a thought”, is already out there, there is no law that says how you have to sell your image and I do not want the courts making one. You can write a license for use any way you see fit, (weekly monthly quarterly, all rights no rights and so on), to accommodate YOUR business model but if mine does not fit YOUR model why should I be required to sell to YOUR standards, do you want me dictating how you should be compensated? I doubt it. That is the exact argument that the infringer makes, “you should charge what I think is acceptable”, not what the real costs are. (Please do not take this the wrong way but have you or are you writing licenses?)

    The plan you posted is great for the consumer but lousy for the producer, costs to take or produce the image are rising, not falling as you previously stated, insurance has gone up, gear is not cheaper it is more expensive, studio rent has increased, gas and so on, your model does not take any of that into question. There is no one size fits all panacea, what a business wants to do that is legal but in the long run may ruin that business is up to that business and you me or the other guy are not going to change it. People who want to take and claim afterward that they didn’t know has always been wrong and the only way to educate them is to make examples out of them. If what Getty is doing was so egregious they would have been shut down, there have been multiple investigations on what they are doing the underlying fact is the people who take without permission have broken the law.

    I am not going to change your mind on this nor will I even make an impact, and none of what you have said or placed on the table changes mine I have been in the IP industry for twenty years and watched the industry change and I have heard just about every excuse out there, it still does not change the fact that Congress has strengthened not loosened copyright law with the advent of the computer.

    • We can disagree on this. After all, if there weren’t disagreements about the law, there would never be any lawsuits. I still stand by my articles and maybe your comments changed some minds. I hope they do. It’s why I have comments.

      As for my beef with Getty, I don’t like their extortion approach. It is much like the RIAA infringement letters, before the public backlash made them stop the practice. They switched to a three strikes system, although I think they now follow the six strikes system along with the major internet service providers, but don’t quote me on that.

      As for innocent infringers, I pulled this from the IT Law Wiki Not that all infringers fit the profile but I am generally surprised at the amount of people who do not know they are infringing, mostly due to misinterpretation of copyright law perpetuated by the Internet. An uninformed public is sometimes the price we pay for Freedom of Speech. Worth it though.

      Generally, a claim of innocent infringement is not a defense against a finding of infringement. An innocent infringer is liable for the infringement, but a court may reduce — or, in some instances, remit altogether — the amount of damages.

      There are at least three scenarios in which “innocent intent” may be applied to infringing content:

      The defendant’s work is copied from the plaintiffs’, but was done subconsciously and in good faith, having forgotten that the plaintiffs’ work was the source.
      Defendant’s work is based upon an infringing work furnished by a third party.
      Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.

      The result of demonstrating innocent intent is that a court has the flexibility to reduce statutory damages below the minimum of $750 to as low as $200. Yet, even when infringement is proven, the court may exercise its discretion in awarding damages.

  • Steve –

    While you point to “low res” not having the value of a high resolution fine art print in reality “low res” i.e. 72 ppi is becoming the resolution of choice. Many manufactures are only advertising on the web and a “low res” 72 ppi image is all that is needed.

    Many if not most of the “small” infringers are start up companies or on line only businesses that are cutting as many corners as possible to get as much money from a website as they can. Not that I fault them but when they are stealing images to do it then we have a problem. Quite a few of these sites are nothing more than a startup to try and sell the domain name. They grab a couple of highly rated/ranked images increase traffic to the site and sell it on Flippa, so the low res images are the image of choice.

    Within the photography community it is being noted the rise in requests for low res images at a lower price for the same type of use that a printed image commands a much higher price for.

    The digital revolution is here and we can no longer go around saying that a “low res” image should or does not command the same price for a high res image when the “low res” is generating more revenue for the user than the high res. The change in how the public gets it news, ads and any other visual media almost entirely via the web these days so why is the value of an image not allowed to keep up?

    Get back to you soon.

    • When I am talking low res I am talking actually low res. 150 -300px. That is too small to be even used on a websites main page. And while I agree with you that too many people are cutting corners and stealing images, that doesn’t mean that the value should artificially increase.

      As you say, the digital revolution is here, and unfortunately, more people calling themselves photographers. The skill required for taking high quality photos has become available to the masses. Commoditization has reduced prices for stock photos. Take enough pictures and you are bound to get a good one. On the other hand, Photographers hired to do a shoot, like Fashion photographers and wedding photographers, are more difficult and still command high prices, although less than they used to. So just because a photographer used to make $600 doesn’t necessarily mean that he or she can now make $600 for a digital version. Also, you can get away with much less quality on the low res. Photos that look great small may be blurry or have artifacts in higher resolutions; low res images are not necessarily top quality items. Not to mention, the costs of photography have come down dramatically along with the time necessary to produce a photo, so prices should come down to reflect the lower costs. As an example, people used to pay a lot of money for aerial photography; it was difficult and required the photographer to rent a helicopter. Now an amateur can buy a drone for a few hundred dollars and use a Go Pro3. Does that mean an aerial photograph should still cost the same? Yet, a photographer like Antoine Rose will get $8-10,000 for limited edition prints because his work cannot be taken with a drone. It requires a skilled photographer with a very high resolution camera, hanging out of a helicopter, and quite a bit of printing skill to produce a beautiful 4ft x 6ft print on aluminum.

      Technology often has a detrimental effect on an industry and the stock photo world is no different. Photographers are being hurt but Getty has record profits and consumers have gained greater choices at lower prices. So an innocent infringer that doesn’t really understand copyright laws, (especially given the vast amount of people who think as long as they don’t use a photo to make money, then they can use it), can’t fathom why Getty is threatening to sue them unless they pay $600 for an unremarkable photo that could have been replaced with so many other choices. Maybe the model needs to change, altogether. Rather than a yearly licensing one size fits all model, maybe a percentage of sales fee, like with music licensing, would work better. Or a “pay per view,” so if the image is being used on the homepage slider, then each time a person views the photo, there is a charge. That way, sites with more traffic pay more than those with low traffic, or pages with lower traffic within a site. Just a thought.

  • Steve –

    It is interesting that you would chose a case that has nothing to do with an image for your blog about image infringement, the case you reference specifically has to do with, – “Davis is the creator and designer of nonfunctional jewelry worn over the eyes in the manner of eyeglasses. ”

    Now there are many, many cases that have to do with images and with the actual pricing of an image and it’s value, one big one comes to mind Morel v. Getty/AFP, but there are many others.

    Leaving that aside for a moment most courts will accept a photographers licensing history or if his image is licensed in a timely manner what the photographer provides the court as the value of the image, this is not required until you go to court, as an attorney and a photographer you know that. You as a attorney know that, and it is disingenuous for you to provide a false/incomplete narrative to someone who actually might be in real trouble.

    I will ask you this question, have you ever argued in front of a court that what someone else charges for their product is what your client should have to pay? I have had to counter that argument more than once and I have won every single time. No judge when faced with the facts of your actual costs and licensing history as well as how you charge will accept the other sides argument of, “he should have charged an average of what everyone else charges”.

    There is only FMV, (fair market value), if it is truly a “stock image”, anything else is unique, try and take the shot of an elk in a river at 5:45 am in the fog at sunrise, how many of them do you think exist? I did the search for you, Google says 15,300,000 but in reality when you do the image search itself only 9 are actually of an Elk at sunrise in the fog on a river. A keyboard, is a keyboard, is a keyboard until you ad a background and other factors that make an image unique and it is those unique images that seem to be the target of everybody that thinks everything on the internet is free.

    Here is a tip for you and the folks here –

    “Proof of proper copyright registration and the chain of title for the image.” – On this I agree with you but be very careful, it is not required until discovery, (you are an attorney explain it to the folks), you could get so far down the rabbit hole you will be caught in a trap of your own making because of the half as@# d advice you get on the internet.

    “Explain their calculations for determining the current sales price”. – Not required for two reasons, each use is calculated upon the use of the image and the time factors, costs, commercial/non-commercial etc. (again you’re and attorney explain it), no two uses are alike and each requires it’s own license, the second is the if the image is registered timely the photographer/artist can elect to go for statutory or actual damages depending on what he/she thinks is best. Again, you are an attorney explain it. Simply, actual is the actual value of lost licenses and value of the image, statutory asks the court to grant a number you ask for. (within reason).

    “Provide sales data for the image”. – Again, not required see above.

    You have fallen into the trap of providing information as if Getty, (you use IStock to counter Getty but are you aware that IStock is a subsidiary of Getty?) is the only company out there with this issue and sending letters. Many small photography companies are going after infringers with more vengeance than Getty and they and their attorneys not only tear your Getty argument up but are not willing to back down as easily as Getty because for them the lost revenue is greater as a percentage.

    You close your post with this -“Hopefully, the case will end with this rebuttal but you may receive another letter or two. Respond with your offer again and remind them that you requested information that they have not provided.(they are not required to until discovery, might be nice but it is not the LAW), If you keep receiving letters, you may want to have an attorney write a response, (this is the best advice you give), which will hold more weight. Of course, if your actions were egregious, (how is taking something that belongs to some one else and using it for your own personal gain not egregious?), or the demand is for a significant sum, (what is significant? $1,000.00 $2,000.00…….), you should hire an attorney. But for your garden-variety Getty extortion letter, (what is garden variety? and are all letters that fall into that mode to be treated the same?), these tactics should prove useful.”

    Courts have held that if you offer nothing more than a nominal sum (your example) that the infringer may be liable for the legal costs of the other side. –

    See Masterfile Corporation v. Country Cycling & Hiking Tours By Brooks, Inc. Case #: 1:2006cv06363, at *9 (S.D.N.Y., Jan. 31, 2008)(holding that “[i]t was reasonable for Masterfile to bring this suit once Brooks declined to settle for anything greater than a nominal sum. Accordingly, even though Brooks itself may not have infringed Masterfile’s copyrights willfully, Masterfile is entitled to recover its reasonable attorneys’ fees and costs”).

    • You have written a lot of interesting things here and some I agree with some I don’t. I will respond in detail at another time, but let me at east start with your comment on the fair market value. Proving fair market value may be difficult, and some images are certainly worth the money. Maybe an Elk at Sunrise is, depending upon its unique character, how many you might find and what they are charging. But I have had to handle several Getty letters and I have not come across remarkable images. In one case, Getty was asking several hundred dollars for a thumbnail image. In my experience, and from what I have seen on the web in discussions about this issue, the images are way overpriced. Asking $800 or more for a small unremarkable image used on a blog post is not the fair market value. I can’t see very many low resolution images being worth that price. I know some amazing photographers charging $20,000 for a limited Edition framed print and I guarantee they would not charge $800 for a low resolution web image. My images also cost quite a bit in the gallery and wouldn’t expect that kind of money for a low resolution image. Put the image on product packaging that generates significant revenue, that is a different story. But those cases don’t receive form letters.

      That is not to say that the infringer shouldn’t pay, but they should pay a reasonable amount. If the fair market value is higher, then fine. There are certainly situations where the offense is egregious or the damages are large enough that they will and should. The case here in Florida where Getty was awarded $300,000, comes to mind. But even in that case, Getty only went after the two images out of eleven that had been registered. If the demand is large, then of course, get an attorney. Or should Getty continue to harass, at some point counsel is required. But it is highly unlikely, (not 100% of course), that Getty will spend the time to go after an innocent infringer for an overpriced $700 or $800 image when it will cost them $400 just to file.

      • I am a Realtor in Florida who used a website company known as Z-57. That website was cancelled by me a year ago. As a Realtor, any marketing I do must include the name of my brokerage. So, my website has MY name and my brokerages name on the heading. Z-57 provides daily links to external websites i.e. home-buyer tips, decorating tips and the like. This was part of my subscription package. The automation of ‘fresh information’ was part of the appeal.

        I received an email and a letter from LCS on behalf of Trunk Archive for unauthorized use of imagery with a picture of a screen shot from the admin page of my former website. This screenshot was clearly attached to ‘some home decorating’ website that I have no idea of . I have never posted or uploaded anything to this website other than my own MLS listings. Everything else, including any images was provided by and posted by Z-57.

        My brokerage is receiving letters as well demanding $825.00 for the same image. The website was paid for by me. The brokerage had nothing to do with my subscription to this website service. How can I possibly be responsible for images, articles and links posted automatically by this website provider? Can my broker be liable for any images shown on this website?

        • Copyright Infringement is a no-fault law, so it doesn’t matter how the image got there, if it is actually n your site, then you have committed infringement and whoever is hosting the account is liable. However, if the image is being served from somewhere else, meaning that it is not actually on your site, but only linked, then you may not have copied or distributed the image, but without seeing your file system and the coding of the site, I wouldn’t be able to tell you. In any case, even if you did infringe, that doesn’t necessarily mean that you owe them the price they claim. our other article on Getty will have more information. Check it out here http://artlawjournal.com/respond-getty-images-demand-letter/

    • This is the kind of internet comment that makes people think lawyers are pompous jerks. Do people in real life let you talk like this to them?

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