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Getty images unauthorised use letter

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These people have been tracking threads on this for about six years now. (I know because I got a letter myself about four or five years ago.)

I have read posts where identifiable people have more or less said, "I am paying nothing, give it your best shot. Come and get me!" and they never once did.

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I had a demand and fought it off with a few letters and no legal fees! The first thing to say is that it isn't a scam, a scurrilous bit of profiteering yes but not a scam. To make matters worse the copyright lawyers will tell you it is an infringement, Getty has a cast-iron case in law and the best and only sensible course is to cough up (with a hefty bill for that bit of wisdom). Well here's what happened to me.

I received the letter in Jan 2010, supposedly posted a month earlier in 2009, containing the usual nonsense and a bill for £1200 discounted to £900 if I paid up within a month - remember the letter arrived a month after it was dated.

In one respect it was a fair cop, there was a single lo-res image on a secondary page that my web-guy had found on a photo-sharing site. Like most of you, I couldn't believe that Getty could charge such a grossly disproportionate figure in supposed "damages" (to you and I that is loss of earnings). At first I claimed innocent infringement but this was rejected. I then did some reading and found another useful section of the Copyright, Designs and Patents Act 1988; the salient bit being Section 98 1C:

"the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement"

There were two important aspects of Getty's claim:

1. they were incorrectly claiming my website had a high res banner
2. they gave an unspecified period of publication.

I wrote to Getty pointing out the image in use a web res image and offered £70 in settlement - twice the license fee for a three month period of publication. Interestingly they wrote back and stated that until I "admitted the full period of publication" the initial demand stood.

On three separate occasions I asked Getty for full disclosure of their claims, to say when they became aware of the alleged infringement and proof of the image resolution that they were claiming - available in the HTML of a page rather than the screen shot that they had presented as evidence. I finally got a letter back, no mention of the image resolution, admitting that they "became aware" of the potential infringement in July 2009 but "believed" the image to be in use for much longer?

I wrote back pointing out that if they were aware of a potential infringement in July 2009 but had waited until December 2009 to notify us then they had acted in such a way as to deliberately inflate any subsequent claim for damages. We withdrew our settlement offer and said we would rely on section 98-1C in settling the claim at Court but would be asking the Court to consider Getty's action in inflating an already grossly disproportionate claim for damages.

It has been nine months since we last heard from them?

Now, I am no lawyer and I do not offer this as legal advice but if you are caught up in this ask two questions of Getty - what is the resolution of the image in question and when did they become aware of the potential infringement. Use both facts to offer a fair & reasonable settlement of twice the license fee that would have been due. Fortunately the UK courts are not sympathetic to this sort of extortion.

Good Luck
 
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It has a few free images but its sole purpose is to get you to buy the premium images and it is owned by Getty!
 
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The courts found against this practice recently with the ACS law case, it is looking more and more like this HAS now been noticed, and its days are numbered.

That of course doesn't mean carte blanche for image use, but it certainly means a completely different MO for the rights holders.

They also found in an earlier case that only the rights holder can persue this, and not another body. This prevents getty etc from acting at arms length.
 
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They also found in an earlier case that only the rights holder can persue this, and not another body.
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I understand that they are still using other bodies? Do you have any references for this?

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be very wary of Sxc.hu as each image is NOT always free!

If you look at the 'license' each image is different from what I remember, some do not allow any form of commercial use or resale. Fair enough but it really isn't clear at all, especially as you just have to sign up, click on an image and a high res version downloads for you without a mere mention of any licensing situation at all.

There aren't many free or cheap stock photo websites left. By cheap i mean 20p an image for medium size/web quality stuff. It's all around £7 an image upwards for the items i've looked at, which makes it prohibitive to micro businesses or mini sites that just want to add a few colourful images. Not to mention that very few make it clear what the licensing actually means.
 
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Getty have certainly sued in at least one case in the UK - see here.

Whilst it will certainly cost Getty more to sue then they are asking in this case, their whole business is based on copyright licensing and they cannot afford to let anybody go who might threaten their business if it became known.

My suggestion in this case would be to purchase the image in question and then write to Getty advising them of this and that as a licence has been paid for that it is hoped that that concludes the matter.
 
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My suggestion in this case would be to purchase the image in question and then write to Getty advising them of this and that as a licence has been paid for that it is hoped that that concludes the matter.
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I will concede that you may be more expert in this than me but I would suggest that this may not be the best advice. The case you quote was a couple of years ago. Can you let us know of any others? (If not I can point you to thousands of cases where no action has been taken?) ;)

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The fact that Getty may not, for whatever reason, have taken action in some other cases does not prevent them suing in this case, nor amount to consent or an estoppel.

I suspect also that at least a number of cases which you can point to were quietly settled subsequently following action by Pinsent Masons on Getty's behalf.

Two wrongs don't make a right ....... nor fifty.
 
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Esk247 said:
be very wary of Sxc.hu as each image is NOT always free!

If you look at the 'license' each image is different from what I remember, some do not allow any form of commercial use or resale. Fair enough but it really isn't clear at all, especially as you just have to sign up, click on an image and a high res version downloads for you without a mere mention of any licensing situation at all.

There aren't many free or cheap stock photo websites left. By cheap i mean 20p an image for medium size/web quality stuff. It's all around £7 an image upwards for the items i've looked at, which makes it prohibitive to micro businesses or mini sites that just want to add a few colourful images. Not to mention that very few make it clear what the licensing actually means.
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Esk, the standard licence at sxc.hu does allow for commercial use for websites and print, it's just reselling they're a little iffy about :)

I use sxc.hu all the time and never find myself in a position where the only option is to buy a premium image. The free images are just fine. :)

From sxc.hu's standard licence, which you can find here http://www.sxc.hu/help/7_2 :

You may use the Image

  • In digital format on websites, multimedia presentations, broadcast film and video, cell phones.
  • In printed promotional materials, magazines, newspapers, books, brochures, flyers, CD/DVD covers, etc.
  • Along with your corporate identity on business cards, letterhead, etc.
  • To decorate your home, your office or any public place.
You may not use the Image

  • For pornographic, unlawful or other immoral purposes, for spreading hate or discrimination, or to defame or victimise other people, sociteties, cultures.
  • To endorse products and services if it depicts a person.
  • In a way that can give a bad name to SXC or the person(s) depicted on the Image.
  • As part of a trademark, service mark or logo.
  • SELLING AND REDISTRIBUTION OF THE IMAGE (INDIVIDUALLY OR ALONG WITH OTHER IMAGES) IS STRICTLY FORBIDDEN! DO NOT SHARE THE IMAGE WITH OTHERS!
Always ask permission from the photographer if you want to use the Image

  • In website templates that You intend to sell or distribute.
  • For creating printed reproductions that You intend to sell.
  • On "print on demand" items such as t-shirts, postcards, mouse pads, mugs (e.g. on sites like Cafepress), or on any similar mass produced item that would contain the Image in a dominant way.
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You missed the bit about the restrictions placed on every image by the photographer. Some ask for prior permission, nearly all specify a credit, some say non-commercial.
 
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The fact that Getty may not, for whatever reason, have taken action in some other cases does not prevent them suing in this case, nor amount to consent or an estoppel.
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Yes, we are all well aware of this but we are also aware of the facts, which are that they do not sue. They only threaten the reason being that they are **** scared to test it in front of a judge in case this happens again.

.
 
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debbidoo said:
Esk, the standard licence at sxc.hu does allow for commercial use for websites and print, it's just reselling they're a little iffy about :)

I use sxc.hu all the time and never find myself in a position where the only option is to buy a premium image. The free images are just fine. :)

From sxc.hu's standard licence, which you can find here http://www.sxc.hu/help/7_2 :
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yes but be a little careful:

Standard restrictions apply and Topsoft must be notified when using the photo for any public work. for this image http://www.sxc.hu/photo/1171871

not every image on Sxc has a Standard license. They've put a few banana skins in for everyone.
 
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bdw said:
Yes, we are all well aware of this but we are also aware of the facts, which are that they do not sue. They only threaten the reason being that they are **** scared to test it in front of a judge in case this happens again.

.
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That is your theory but is not logical. I have heard from photographers who have got payouts, after Getty gathered from the photographers affidavits to use in court. The reason that we don't hear of court action is that as soon as the infringers take proper legal advice they know they will lose.

There is also the use of NDAs in settlement agreements since this case was publicised. http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty . From personal experience I know that NDAs are commonplace when making settlements.
 
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bdw said:
Yes, we are all well aware of this but we are also aware of the facts, which are that they do not sue. They only threaten the reason being that they are **** scared to test it in front of a judge in case this happens again..
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The ACS Law/MediaCAT case has nothing to do with Getty - the facts and evidence are completely different.

And I suspect there are very few cases where Getty actually need to sue, or, if they do, that action does not need to be pursued very far at all before people give in.

Getty can pick and choose what cases and which people to take to court, it's up to them.

All I can do is advise on the law as I see it - I certainly can't advise on the basis of "Well I think a load of people have got away with this before, so you should too".
 
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That is your theory but is not logical.
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That single instance has been referred to in dozens of forums. It is very popular. all the photographers know about it and spread the word about it because it is the only one.

I think it is you who is being illogical here. I have been very close to this process now since December 2006 (when I received a claim). I have researched it and it is not a UK thing, it is happening all over the world but mostly in developed countries where Getty's legal representatives think they have a chance of success with their speculative invoices.

It is likely that the number of claims made by Getty and the other imaging companies who adopt this practice is now in the hundreds of thousands, perhaps even more than a million. All we have as evidence of their success is one or two isolated settlements and AFAIK it has never be properly tested in court.

You mention logic and non disclosures agreements. I must say that my logic suggests that if I were Getty then every time I was successful in extracting significant funds from "offenders" I would be shouting it from the rooftops. It would make much more sense to do so because the news would spread like wildfire and it would scare many others into paying.

If you are suggesting that it is the "offenders" who are insisting on NDAs then I can't see anything that Getty have to gain from agreeing to them. If as they say they have the law behind them then they have nothing to hide.
 
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And I suspect there are very few cases where Getty actually need to sue, or, if they do, that action does not need to be pursued very far at all before people give in.
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There are probably hundreds of people in this forum alone who have been affected and not a single report of any one giving in that I can recall.
 
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atmosbob said:
That is your theory but is not logical. I have heard from photographers who have got payouts, after Getty gathered from the photographers affidavits to use in court. The reason that we don't hear of court action is that as soon as the infringers take proper legal advice they know they will lose.

There is also the use of NDAs in settlement agreements since this case was publicised. http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty . From personal experience I know that NDAs are commonplace when making settlements.
Click to expand...

....... and I think that anybody who is prepared to bet they will get away with it, on the basis that they "know for a fact" that others have, should read this very very carefully indeed.
 
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Your point being?

(Forget your link for a minute and answer this. Why are so many people getting away with this and none being taken to court?)
 
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bdw said:
(Forget your link for a minute and answer this. Why are so many people getting away with this and none being taken to court?)
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I too have been following this for some time. Perhaps you could answer why so few of those who post on forums that they have had the Getty letter are never heard from again? You would think, from their original bluster and outrage, that they would be back to say they had 'got away with it'. Very few do.

I am saying that the evidence from photographers is that many are being taken to court but are sensibly settling before the costs mount too much.
 
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I am saying that the evidence from photographers is that many are being taken to court
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What evidence? I have seen no evidence of this - hearsay yes but no evidence.

Listen, this is probably the single most publicised worldwide copyright cases ever. Do you honestly believe that any significant amount of people could be quietly settling their invoices without it becoming widely known?

http://www.extortionletterinfo.com/talkpoints.htm
Read the yellow column on the left. This is what happened when it was tested in court in the USA. I strongly suspect that UK judges would be even more lenient.
 
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I was once in the opposite position working in-house for a major brand and was told that I would not succeed and, indeed, a number of people were going to “hire a silk” to take me on.

This was based largely on the fact that the company had done little for some time and had very much let the grass grow under its feet.

I also encountered a lot of bluff and bluster and threats to write to newspapers and MP’s ……….. and The Times devoted a whole page to my activities.

Yet at the end of the day most people eventually caved in and, of those that did not, virtually all the rest did as soon as legal proceedings were started.

The only difference was that I did not demand sums of money, since I was simply trying to protect my company’s brand rather than a copyright licensing revenue stream.

And that I think is the point here, the argument being raised by people is really mostly about money, not about the legal rights and wrongs.

Of course too, people who have ultimately caved in do not want to talk about it, they have been hurt and do not want to relive that or risk damage to their reputation – it is not Getty asking for NDA’s.

The worst thing you can do in any situation is to proceed on the basis of what has happened to other people or what popular myth happens to tell you …. or what a U.S. website tells you has happened in an unrelated case judged under U.S. law.

You have to make the best decision you can for your business, based on the best advice you can get from the right people – people with relevant experience qualified to judge.

The rest is up to you.
 
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VeryMark said:
And that I think is the point here, the argument being raised by people is really mostly about money, not about the legal rights and wrongs.
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I think that's exactly it. Most reasonable people would be quite happy to make a reasonable settlement once they realise that they have (albeit inadvertently) infringed copyright.

One wonders if Getty would actually collect more cash if they scaled back the extortion.

Double the normal fee, for instance, would still be a punishment, but one that many would happily accept.
 
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KM-Tiger said:
I think that's exactly it. Most reasonable people would be quite happy to make a reasonable settlement once they realise that they have (albeit inadvertently) infringed copyright.

One wonders if Getty would actually collect more cash if they scaled back the extortion.

Double the normal fee, for instance, would still be a punishment, but one that many would happily accept.
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I have just priced a web use on Getty for one small picture, a few english language countries, advertising use for 3 years. It came to £980. Double that is £1960.

Where is the extortion if that is the price on their website?
 
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Going slightly off-topic, but do Getty tend to only go after people using Rights Managed rather than Royalty Free images?
 
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UKSBD said:
Going slightly off-topic, but do Getty tend to only go after people using Rights Managed rather than Royalty Free images?
Click to expand...

Both. I heard from a photographer who had 3 instances of Getty going after RF images successfully.
 
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bdw said:
What evidence? I have seen no evidence of this - hearsay yes but no evidence.

Listen, this is probably the single most publicised worldwide copyright cases ever. Do you honestly believe that any significant amount of people could be quietly settling their invoices without it becoming widely known?

http://www.extortionletterinfo.com/talkpoints.htm
Read the yellow column on the left. This is what happened when it was tested in court in the USA. I strongly suspect that UK judges would be even more lenient.
Click to expand...

If people I know tell me they have been asked for legal affidavits for use in Getty legal actions I believe them. I have not been asked because I am not a Getty photographer.

You will have to ask Getty whether significant numbers are settling with them. Picscout have issued information which suggests that many are settling.

Anything written on the US website you quote should be taken with a pinch of salt and a full understanding of the differences in US and UK copyright law.
 
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Were they using large size, hi resolutions?
It would seem strange Getty going after people for Royaly Frees at £10 - £100 a time when an equivellant Rights Managed is in the £thousands.
 
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pjof451 said:
I had a demand and fought it off with a few letters and no legal fees! The first thing to say is that it isn't a scam, a scurrilous bit of profiteering yes but not a scam. To make matters worse the copyright lawyers will tell you it is an infringement, Getty has a cast-iron case in law and the best and only sensible course is to cough up (with a hefty bill for that bit of wisdom). Well here's what happened to me.

I received the letter in Jan 2010, supposedly posted a month earlier in 2009, containing the usual nonsense and a bill for £1200 discounted to £900 if I paid up within a month - remember the letter arrived a month after it was dated.

In one respect it was a fair cop, there was a single lo-res image on a secondary page that my web-guy had found on a photo-sharing site. Like most of you, I couldn't believe that Getty could charge such a grossly disproportionate figure in supposed "damages" (to you and I that is loss of earnings). At first I claimed innocent infringement but this was rejected. I then did some reading and found another useful section of the Copyright, Designs and Patents Act 1988; the salient bit being Section 98 1C:

"the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement"

There were two important aspects of Getty's claim:

1. they were incorrectly claiming my website had a high res banner
2. they gave an unspecified period of publication.

I wrote to Getty pointing out the image in use a web res image and offered £70 in settlement - twice the license fee for a three month period of publication. Interestingly they wrote back and stated that until I "admitted the full period of publication" the initial demand stood.

On three separate occasions I asked Getty for full disclosure of their claims, to say when they became aware of the alleged infringement and proof of the image resolution that they were claiming - available in the HTML of a page rather than the screen shot that they had presented as evidence. I finally got a letter back, no mention of the image resolution, admitting that they "became aware" of the potential infringement in July 2009 but "believed" the image to be in use for much longer?

I wrote back pointing out that if they were aware of a potential infringement in July 2009 but had waited until December 2009 to notify us then they had acted in such a way as to deliberately inflate any subsequent claim for damages. We withdrew our settlement offer and said we would rely on section 98-1C in settling the claim at Court but would be asking the Court to consider Getty's action in inflating an already grossly disproportionate claim for damages.

It has been nine months since we last heard from them?

Now, I am no lawyer and I do not offer this as legal advice but if you are caught up in this ask two questions of Getty - what is the resolution of the image in question and when did they become aware of the potential infringement. Use both facts to offer a fair & reasonable settlement of twice the license fee that would have been due. Fortunately the UK courts are not sympathetic to this sort of extortion.

Good Luck
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Just an FYI -- the fact that you haven't heard back from them in months is not a sign that you are in the clear. In fact, the usual adage when it comes to legal stuff is that it's when the lawyers STOP talking to you that it's time to get worried, as they may be preparing to file a case.

Ultimately the size of the banner and how long it was there isn't going to protect you. It might reduce damages slightly, but your main cost if it goes to trial will be the enormous Getty legal bill that you will be responsible for. We're talking tens of thousands of pounds on top of any actual judgement for the use of the image(s).

I tend to agree that it seems like Getty is not filing in most instances, though. It's probably not worth their time and money in most instances. I wouldn't be surprised if they decided to make examples of a few people, though.
 
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Esk247 said:
be very wary of Sxc.hu as each image is NOT always free!

If you look at the 'license' each image is different from what I remember, some do not allow any form of commercial use or resale. Fair enough but it really isn't clear at all, especially as you just have to sign up, click on an image and a high res version downloads for you without a mere mention of any licensing situation at all.

There aren't many free or cheap stock photo websites left. By cheap i mean 20p an image for medium size/web quality stuff. It's all around £7 an image upwards for the items i've looked at, which makes it prohibitive to micro businesses or mini sites that just want to add a few colourful images. Not to mention that very few make it clear what the licensing actually means.
Click to expand...

My advice for businesses who can't afford pocket change for their company's public-facing imagery: buy a camera, shoot some yourself. Or just skip all advertising whatsoever. Seriously, if seven pounds is hitting the pocketbook too hard, then maybe you don't need a website at all.
 
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debbidoo said:
Esk, the standard licence at sxc.hu does allow for commercial use for websites and print, it's just reselling they're a little iffy about :)

I use sxc.hu all the time and never find myself in a position where the only option is to buy a premium image. The free images are just fine. :)

From sxc.hu's standard licence, which you can find here :
Click to expand...

Have you read their idemnification clauses?

Indemnification

You agree to indemnify, defend, and hold harmless SXC and its officers, employees, shareholders, directors and suppliers against all claims, liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to a breach of this Agreement, the use of this site and the use or the inability of use of any Image, your failure to abide by any restriction regarding the use of an Image, or any claim by a third party related to the use of an Image.

Warranty and Liability

THE WEBSITE AND THE IMAGES ARE PROVIDED "AS IS". WE OFFER NO WARRANTY, EXPLICIT OR IMPLIED, REGARDING ANY IMAGES, THE WEBSITE, THE ACCURACY OF ANY INFORMATION, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SXC DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR THE IMAGES WILL MEET YOUR REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.

SXC SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE WEBSITE OR THE IMAGES.
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In other words, if the image you get from sxc.hu turns out to be an infringing image (since anyone can upload there, there is nothing preventing people from uploading other peoples' imagery) and someone comes knocking with a lawsuit in hand, sxc.hu cannot be held responsible.

Personally, I would only buy stock from companies that warrant they they own the rights to the images they peddle and that are willing to indemnify you against any copyright infringment claims. Ironically, Getty Images does just this.
 
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bdw said:
What evidence? I have seen no evidence of this - hearsay yes but no evidence.

Listen, this is probably the single most publicised worldwide copyright cases ever. Do you honestly believe that any significant amount of people could be quietly settling their invoices without it becoming widely known?
Click to expand...

Yes. Standard with such agreements are non-disclosure clauses. When you agree to settle, you can't discuss the settlement. You can't even discuss that it exists in most cases.
 
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Yes, I saw that one too and I see it as highly significant. I think we will see an end to this soon and I very much doubt that it will include mass prosecution.

In fact, the usual adage when it comes to legal stuff is that it's when the lawyers STOP talking to you that it's time to get worried, as they may be preparing to file a case.
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They stopped talking to me more than four years ago. It must be quite a case they are preparing. ;)

Most of the photographers and Getty seem to be certain that they have a solid case and that they would win damages along with reparation or whatever. Bearing this in mind give me one good reason why they have not carried through with their threats? Why would they not cash in and make the many millions that is no doubt "outstanding".

I have asked this question many times over the years and never once has it been answered satisfactorily. I think I know why.

.
 
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OldWelshGuy said:
I think people should read this and take heart.

OK this is about file sharing but it is also the case that the judge has come down hard against this whole speculative invoicing thing when guilt is not proven.

He is currently considering making ACS law pay the entire costs of £90,000
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Hey, if case law you don't understand makes you feel better, by all means rely on it, but do knowing that you could be exposing yourself and your company to massive liabilities.

If Getty sends you a letter demanding money for copyright infrigement, the prudent thing to do is NOT to scour the intermawebs for news stories that placate your fears, nor is it to seek advice from your internet peers. The only prudent thing to do is to consult a solicitor.
 
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