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  October 4, 2013
What is a Picture Worth?...

 

 

"You can pay me now...or you WILL pay me later"

~ Old Transmission Shop Slogan

"Hmmm...I wonder what this is...", I thought to myself...

It was Monday morning and for the past week I had been traveling in the New York area so the pile of mail on my desk was unusually large.

As I sorted through the mail, I found a letter addressed to the "OptiFuse Legal Department" from someone named Getty Images..

Whenever I see this type of letter, I immediately think of three things (two of which are bad)...

 1)   Some law firm is trying to solicit my business.

 2)   One of my customers is having a legal issue (such as a bankruptcy... and they owe us money).

 3)   I’m being sued for something I did or didn’t do.

Well of course it was number 3...

It seems as though I had mistakenly used a copyrighted picture in one of my blogs and now a company that I have never heard of wants to extort a pound of flesh.

My initial reaction was go into denial mode... "I didn’t see any registered mark on that photo... I just downloaded it from Google... I didn’t do anything wrong."

I then re-read the extortion letter very carefully to see if I could find any "loop-holes" or "wriggle room" in which to negotiate the sum...

The letter was very explicit...

They represented the photographer who took this photo. I used this photo without paying for it (they of course aren’t on my blog mailing list... but I do archive all my blogs on the OptiFuse website and that’s where the photo in question resided). Therefore I must immediately remove the image and pay them liquidated damages of $1000.

Getty Images was kind enough to send me a lot of additional information in order to scare me into paying up quickly such as "frequently asked questions" and examples of court cases where select copyright infringers were ordered by the courts to pay millions of dollars in restitution to the legal copyright holders.

In the FAQ section, it explains that the company is solely responsible for any copyright infringement even if it had hired outside people and/or firms to create the content. The content creator bears no responsibility only the website owner.

In addition, if you had actually purchased / licensed the photos from another source... it is quite possible that the person or company never actually owned the rights in the first place... so in essence... you were buying stolen property and needed to pay Getty Images punitive damages.

I also thought (erroneously) that a company owning the rights to an image needed to send the infringer a "cease and desist" letter before taking legal action, however FAQ section pointed out that OptiFuse wasn’t a patent infringement... but a copyright infringement and the "cease and desist" rules don’t apply.

Lastly, I discovered that ANYTHING that you publish ANYWHERE is automatically copyrighted by that individual who created that original material.

For example... you own the copyrights on all those Facebook photos that you publish (therefore you can potentially sue for damages, anyone you catch reposting your photos without your permission).

A person is not required to register any of their content with the U.S. Patent and Trademark office in order for their work to be copyrighted.

I was angry at myself for not knowing the rules of the game.

When I am in over my head, it’s time to bring in the hired thugs... attorneys...

I called my friend Brian, who I have known now for 25 years. Brian and I worked for the same company at one time (when he was still a sales engineer).  Now Brian is  a patent and intellectual properties attorney in the Bay Area.

Brian gave me a lot of legal information about what I had done and confirmed most of what I found in the extortion letter from Getty Images.

On Brian’s counsel, I had our web person immediately take down the image (as well as all other potentially non-licensed photos)...

The following day, I was ready to send my payment into the extortionists when I decided to do a little more homework.

What I discovered was a website dedicated to fighting Getty Images (and others like them).

The website was appropriately called www.extortionletterinfo.com

It was full of valuable information specifically regarding Getty Images (as well as some solicitations to purchase their legal defense services).

According to the website, Getty Images has engaged a company called Pic Scout who sends out Internet bots to scour sites looking for unlicensed images. Once they find a potential victim, they turn the matter over to the Getty Images attorneys, who then begin the threatening letter campaign.

It is estimated that Getty Images has now sent some 150,000 letters to companies and individuals in the U.S., Canada, Australia, and the U.K. requesting anywhere from $800 to $10,000 for unauthorized use of their managed images... (doing the math shows that if they average $1,000 per letter... they have pocketed a cool $150M since 2006 when this "enforcement" campaign started.)

I also learned that Getty Images will only harass the victims for so long before they turn over the account to a collection agency by the name of NCS (usually in about 60 days).

NCS will continue the harassment and threats... telling you that if your matter goes to trial, you will be liable for statutory damages that could total millions of dollars in punitive damages and court and attorney’s fees.

What they don’t tell you is that only copyrighted work that have actually been filed with the Federal Trademark office (less than 1% of all work current represented with Getty Images are registered) are eligible for statutory damages and even then courts typically order payments of substantially less than that of what Getty Images is demanding.

Also, the collection agencies will tell you that they are trying to collect a debt... but they are not... they are trying to make a negotiated settlement... the infringer owes the company nothing until a judgment is rendered by some court.  It is a debt only if you had purchased goods and service and never paid for them.

The burden of proof is on them to first prove that you had infringed on their copyright before a court... only then they can collect a judgment.

Finally they will use the tactic of telling you that they will ruin your individual credit rating if you don’t pay them, even though you work for a corporate entity (a favorite tactic of debt collection agencies)... however, once again, they are not collecting a true debt... they are looking for a "settlement".  You have never purchased anything from them... so there is no debt.

If you happen to one day become a victim of Getty Images (especially be on the lookout for purchasing "pre-made" templates from what is seemingly legitimate sources when you or someone else designs your website)... there are only three things you can do:

1)   Pay them the extortion money and be done with it.

2)   Don’t do anything and hope that you don’t end up in court (according to the ELI website... Getty Images hasn’t actually sued anyone as of yet) an deal with the harassing letters and phone calls.

3)   Fight them - although it might cost more to hire an attorney than to just pay the money.

In order to prevent this from happening to you, if you use images on your website or in your blog, only purchase your images from highly legitimate sources such as istockphotos, Shutterstock, or Thinkstock. Purchasing images might only end up costing a few dollars per image.

Legitimately purchasing your images does two things...

1)   It prevents lawsuits.

2)   It helps to supports the artists who painstakingly created the images in the first place.

I do want to go on record that I definitely and positively do not support digital piracy (stealing media and using it for profit), however I also don’t support the scare tactics being used by Getty Images to extort exorbitant sums from unsuspecting victims.

In the end, I will pay Getty Images their pound of flesh as it is simply not worth any more of my time...

In addition, I have now subscribed to an image service so this will never happen again.

However it’s important to me that you know about this scheme and are able to protect yourself so you don’t fall victim to their spider web. 

Thank you very much for your support of OptiFuse, where we believe that an ounce of prevention is worth a pound of cure.



Jim Kalb
President

Email - jimk@optifuse.com
Website - www.optifuse.com

Blog - www.optifuse.blogspot.com
Twitter - @OptiFuse


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