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Is "Getty" Getting You Down?

Discussion in 'Legal Issues' started by purplepixi, Sep 19, 2006.

  1. #1
    Now I appologise in advance for the length of this message, but it's going to be a good one.

    I'm looking for anyone who has had dealings with the Getty Images company and the out comes of this. Also I guess this is a little of a warning to others.

    A brief outline of me and problem: Back in April I decided to create a couple of sites (I won't name them for obvious reasons), my sites are purely information, mainly to help other people, one was about cats (as I have one little of bundle of fur keeping me company) and the other was about Aromatherapy and how to use it at home. Neither of these were selling anything, and apart from my Google Adsense on the (where the cat one makes more than the others), I have no other means of income on them.

    So the problem seems to have occured with the Aromatherapy website, while trying to jazz it up a bit I searched on google for copyright free images. And found some or so I thought. As it turns out two of the ones I picked were not copyright free (I found them on a 3rd party website which said they were) and an now being demanded the grand sum of £4000, which is about $6000 I think.

    I wouldn't have minded if I was a company and really did use these illegally, but I'm a unemployed housewife, and I haven't got 2 pennies to rub together and my hubby is a poorly paid manual worker!

    As you can imagine, I suffered severe shock after recieving this, and am off tomorrow to see Citizens Advice about it.

    However in the mean time, my dad was good enough to do a search on the Internet for Getty Images and what they've been up to. It turns out than Mr Paul Getty is the richest man in the world and one of his companies has developed some software to trawl the internet looking for pictures that are theirs and then they are sending out letters demanding money. There are as yet not cases that I can find of anyone ending up in court. It looks as though most people are prepared to pay the money as they are businesses and they would loose money and possibly their business should it go to court.

    Now I am in belief, that what I did was a legitimate mistake, all my websites have been taken off line (just in case of any more problems), but they still want the money regardless of that.

    Being that I have no money to give them, at this current moment in time I am prepared to go to court, even if the fees escalate and I end up owing a lot more, I mat have to declare myself bankrupt. But I would like to find some "case studies" if you will of people that have had any problems, so I can bring it to the attention of people like Tading Standards, the press here in the UK and any governing bodies. As Getty Images are telling people their images are Royalty Free, getting them to create and account and then the people are downloading these images, advertising them as copyright free images or reproducing them by other means, and then the poor people at the end who didn't know they belonged to Getty are having to pay the price, and it's ridiculous! Not only that, there has been no other contact, just a demand for money.

    So If anyone has had any dealings, please let me know, as I will be very interested to find out what has happened to others and how many other people have had these problems.

    One more thing I guess, they say it's the web masters responsibility to find out if the pictures they are using are copyright free - now how do we do that if the website we get them from say they are - is there a way? After all if someone has changed the name of the picture how can we look it up?

    Sorry for the long post, but it's been a little stressful.

    Thanks
     
    purplepixi, Sep 19, 2006 IP
  2. frankcow

    frankcow Well-Known Member

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    #2
    that's awful! (and the reason I only use Istockphoto.com)
     
    frankcow, Sep 19, 2006 IP
  3. lorien1973

    lorien1973 Notable Member

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    #3
    istockphoto is great. I pull images from there all the time. Only problem with it is your credits expire after a year. I lost about 30 credits this year because I didnt use them all :(
     
    lorien1973, Sep 19, 2006 IP
  4. Nonny

    Nonny Notable Member

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    #4
    Wow, that stinks purplepixi. You definitely need to talk to an attorney. Maybe it's enough that you removed the images from your site, if you can deliver that information to Getty in a suitably legal-sounding way.

    Unfortunately, the people at fault are not Getty Images, since they never gave anyone the rights to distribute the images, and definitely never state the images are in the public domain. In fact they explicitly say the images are not for redistribution. (pp I know you looked at this, but I'm posting the information for others looking at this thread)
    The problem is the middleman who illicitly distributed the images to you. You might have recourse in suing the site where you downloaded the image.
    As far as I know, the only way to be absolutely safe is to create your own images, use images that are clearly in the public domain (such as those on many US government sites - see here for more), use commercial "clip art" CDs, or go through known legitimate royalty-free sites like Getty Images or istockphoto.

    Good luck!
     
    Nonny, Sep 19, 2006 IP
  5. purplepixi

    purplepixi Peon

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    #5
    Thanks for the reply's every one. I've been to seek advice today, and have come up with some very interesting information.

    Anything that is copyrighted is subject to a fair use clause, where by it is deemed acceptible to use it if it is for non-profit, educational or research use. Which is great as mine was non-profit and I suppose educational if you're studying aromatherapy.

    Secondly in the letter they have written they make reference to the 1988 Copyright and patents proection act. Which is strange because this act actually says that any photos taken after 1988, the copyright belongs to the photographer and not the company (or agent), therefore if there are any issues it should be coming from the photographer.

    Also, everyone I have spoke to are very unsure as to whether it is a scam or not. As it's cleverly written. But surely if someone has an issue with you using their images they would approach you first, then if you continued they would start leagal action. Not just demand money.

    The problem is, that according to their letter, just taking the images off is not enough, I still have to pay the money. And just because I didn't know where the pictures orginated from does not excuse me from using them.

    So is this a ploy to get money by scaring people in to court action? Who knows. But after today it is making me more and more angery that the big fish seem to think they can prey on the little ones. So I'm going for court action, which should be interesting as I've got no cash to start with.

    But I'll keep you all informed of the process as it goes on. Should make interesting reading for anyone who is interested in these sorts of things.

    Thanks again
     
    purplepixi, Sep 20, 2006 IP
  6. Nonny

    Nonny Notable Member

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    #6
    Getty seems very much like the RIAA in the way they are going after people. Not very nice! (WaPo article about Getty going after people)

    A good site on Fair Use is http://fairuse.stanford.edu/
    Note that it's not enough that the use was non-commercial and educational - those are but two factors in the several that are used to determine whether it was "fair use" or not. (see here and here for discussion) If you used just a portion of the image rather than the whole image and were commenting on the image, rather than just using it for decoration, your case would be stronger. Also realize that Getty might argue that your site IS commercial, because it's generating income for you via advertising. I don't know if that is a valid argument or not, but you (or your attorney) should try to find out if there is any case law on the issue.

    Note also that Getty may very well own the copyrights to the photos if they were created as "work for hire" or the rights were signed over to them by the photographers. They may also be contacting you on behalf of the copyright holder. In a court case they would have to demonstrate they indeed have standing to sue, but it would be a good idea to do as much research as you can so that you have all the facts yourself. I would start by finding the image on the Getty Images web site and see what it says about who holds the copyright.

    I would google around (sorry, use the Google Search Engine ;)) to find others in your same predicament and see what they have to say. For example: http://www.nicedoggie.net/2005/index.php/?p=1341

    Remember, knowledge is power, and forewarned is forearmed - collect every bit of information that you can. Oh, and good luck!
     
    Nonny, Sep 20, 2006 IP
  7. dealsonweb

    dealsonweb Peon

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    #7
    I know getty issued seize and desist notice to lot of blogger. but they demanded money from you. How did you use these images?
     
    dealsonweb, Sep 21, 2006 IP
  8. andy105

    andy105 Peon

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    #8
    You need to be especially wary if you are buying and selling websites and content too. I would imagine that most of these cases are settled out of court and for a fraction of that figure. Keep us posted.
     
    andy105, Sep 21, 2006 IP
  9. slinky

    slinky Banned

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    #9
    Sorry to hear about what happened. Most of the time these cases never go to court, especially if there is no money to get from you. It simply doesn't pay. You don't want to go to court since you'll lose.

    What does the letter say? Most of the time if the person says they were unaware, bought them from a third party without knowledge, they'll drop the suit. It's a waste of time. The goal is to just put the fear into people and protect their work. If you tell them what happened and state you'll obviously remove the images from your site now that you know, you probably won't have a problem. The press from prosecuting would also be unpalatable.

    Tell us a bit more and don't worry. Enjoy your family and keep up your good work.
     
    slinky, Sep 21, 2006 IP
  10. purplepixi

    purplepixi Peon

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    #10
    Hi again everyone,

    Ok quick update. I've sought advice about all this, and have also contact Trading Standards here in the UK.

    Trading Standards tell me they cannot inforce this, and have logged the complaint should there be any more.

    Now I've also done some research, and the act they quote I was infringing was The copyright, deisgn and patents act 1988. However, section 97, states:

    Provisions as to damages in infringement action.

    97.—(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

    Which is funny because the FAQ'S on their letter states:

    We didn't know there imahes were represented by Getty Images and had to be licensed: Unfortunately, despite the fact that your company may not have known, does not excuse your company's unauthorized use, nor does it relieve you of the obligation to pay the invoice to settle Getty Images claim of copyright infringement.

    So meanwhile, I'm still waiting for them to call me back, it's been well over the 2 business days they said. And I've been in contact with someone else who was running a local non-profit website, and had the same issue. He said that Getty were offering him a 75% discount on the image he used, but eventually dropped it, and the problem ceased.

    As for how I used the images, they were just put next to some text about using different types of aromatherapy oils for stress relief.

    And at this current point in time, the saga continues. However, I think they are going about this the wrong way, it is just shock tatics and is very upsetting. I'd hate to think what would happen should someone of a weak heart or nervous disposition got one of these letters.

    So I'm standing my ground on this one.
     
    purplepixi, Sep 22, 2006 IP
  11. purplepixi

    purplepixi Peon

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    #11
    Oh and when I get a bit more spare time, I'll copy out the letter so you can all have a read.

    Best wishes :)
     
    purplepixi, Sep 22, 2006 IP
  12. ideas_man

    ideas_man Active Member

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    #12
    Most of the Getty images I have seen on the web have been watermarked.If yours weren't, then how could you possibly know?

    I think this is just scare mongering.In a case of copyright infringement its customary to send a DMCA (Digtal Millenium Copyright Act) take-down request and allow the webmaster to right some unintentional wrongs.Going straight to demands is the classic shock tactic of someone looking to make a quick buck.Letters from lawyers can be alarming (the first couple of times you get them :p) but just remember, a lawyer is just a person that is well trained in making their argument seem completely justified and their proposed resolution seem like the only way out.

    I am assuming that somewhere in all this Getty provided proof that they were indeed the holder to the rights for these images?
     
    ideas_man, Sep 23, 2006 IP
  13. slinky

    slinky Banned

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    #13
    Where are you located -- in Europe? In the US the copyright law can be found here:

    http://www.copyright.gov/title17/92chap5.html

    and I would pay attention to section 504. Specifically it states that Getty can seek actual damages or statutory which would probably be $750.

    If it was me - and I'm not telling you what to do - I would probably tell them I've removed the item which they claim was infringing and which I bought elsewhere. There are no substantial damages whatsoever, even if a court found that there was infringement, which you continue to deny. Unless you hear otherwise from them within 14 days, you'll consider this matter settled in full. If they insist on making a federal case out of an innocent act with no significant damages, then you're fully willing to defend yourself as well as inform members of the press what such a well known organization like Getty Images is doing to legally extort money from honest people. I'm not providing legal advice, just discussing this issue amongst friends.
     
    slinky, Sep 25, 2006 IP
  14. marketjunction

    marketjunction Well-Known Member

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    #14
    I'm probably going to come off as mean here, but I take copyright seriously. Please correct me if I misstate anything.

    I. You illegally used images that didn't belong to you. It is your responsibility to know if the image is usable or not. How do you know? If you can't figure it out, don't use it. That's fairly simple.

    II. Fair Use on any picture in question will only apply if your context supports the use of that picture. Let's say you have an article about cats. Well, you can't just go use a picture that's not licensed to you--even if it's a picture of a cat. That's not fair use.

    III. Your site is commercial in nature. You admit that AdSense was on your site. That's a money-making facilitator. You are potentially profiting from the usage of Getty's pictures.

    IV. The fact that Getty is rich and you are not is not relevant to this case. Just because you have no money doesn't mean the law doesn't apply to you.

    My advice would be to stop using images that don't belong to you. If you are on a tight budget, purchase royalty-free type pictures or see if the government has any or don't use any.

    istockphoto.com (as mentioned) is a good source. $1 a picture basically. Make sure you read the license.

    While I don't approve of over zealous actions on the part of some companies, we need to be honest here and look at how all of this started. Remove their pictures and consider it a lesson learned.

    *Not legal advice. I'm not an attorney. Just chatting on a message board. Use information at your own risk.*
     
    marketjunction, Sep 27, 2006 IP
  15. darin12

    darin12 Peon

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    #15
    I too received the same letter from Getty Images demanding 6k. I did not steal the images. I did not make the site. I can understand they want payment for images if they are being used. I had no knowledge they were copy protected and had no intent or malice to steal the images. When notified, I took them off immediately. I called to Getty. They want their money. They did not send a cease and desist order first. Does anyone have a resolution to this as it effects many people?

    Thanks
     
    darin12, Sep 28, 2006 IP
  16. marketjunction

    marketjunction Well-Known Member

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    #16
    I. They are not required to warn you first. They can invoice you and take you to court.

    II. It doesn't matter that you didn't make the site. What matters is that you are the owner of the site. It's on you now. It was your responsibility to ensure that everything used was legit.

    III. Their letter gives you proof that the images were used without permission. You now have a case against whomever sold you the site/pictures/etc.

    IV. While taking off their images is a good gesture, it doesn't remove the damages already done. You are still liable for those.

    Remember, ignorance of the law is no excuse. Telling a judge that you didn't know the images were under copyright not only shows your ignorance, it also proves you are too lazy to do the necessary research. I'm not saying you are lazy, so don't get mad at me. I'm just pointing out how it will look in court.

    I think everyone should look at Getty's actions and use it as a wake up call. Don't use any images unless you have a license. If you buy websites, get contracts stating all the details. While these contracts won't exempt you from damages from the injured party, it will give you possible legal actions to help offset a judgement against you.
     
    marketjunction, Sep 28, 2006 IP
  17. darrens

    darrens Peon

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    #17
    I had a letter about 3 months ago from getty asking for over £6000.
    I took legal advice which cost ££££'s and finally found out that no matter what advice i took i would still have to pay.

    This all came about becasue our old ex webmaster took them off Getty and used them.

    Getty are very clever and will have a history of you using these images on the site/s.

    Any advice you take is a waste ... i think you are better off saying sorry to getty and making them a offer, explain you didn't make any money from the sites.

    I ended up paying £3300 (should have been £6000) because i made an offer.

    Getty are too big to go up against !!!!!!
     
    darrens, Sep 28, 2006 IP
  18. slinky

    slinky Banned

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    #18
    The bottom line is that if it isn't worth their time, Getty will drop it. I don't know what the basis for damages is but, as I said, if you can show them that your use was relatively insignificant, you were duped by another partyl and your site makes no money and you have no money, you'll have a better chance of resolving this to your satisfaction.

    marketjunction may not be a lawyer but he knows what he's talking about. Regardless of the law, it almost always comes down to money. If it's not worth it to purse then the case is not pursued. As they say, you can't squeeze blood from a stone. If low income 66 year old Granny Mae in Nowhere, MI uses 4 images innocently on her personal blog that has no advertising, chances are Getty will drop the threat. It isn't because they don't technically have a case. They do. But the chance of recovery and negative factors (e.g. pursuit of innocent granny who made no money and didn't care to) outweigh the benefits.

    Now if you're telling me you're Granny Mae, you may have something to work with. Most of my clients (when I was doing this) never told me the whole story, either intentionally or uninentionally because they didn't think something was important. Figure out where you are - how many images were used, for how long, whether anyone looking at your web site could tell that you were not a money-making prosition (or maybe that isn't quite the case), etc. Then craft your own letter informing them of the facts and be careful what you write - anything you use can be used against you in court. Put in a notice that says the letter is for settlement purposes only and not to be used as evidence at any trial or case of any kind. I won't go into it but settlement offers in many jurisdictions are semi-privileged communications and done so for societal purposes to push people toward settlement of their matters without involving the courts.
     
    slinky, Sep 30, 2006 IP
  19. SortedGeezer

    SortedGeezer Peon

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    #19
    I received letters from Getty Images so I researched the legal side of this in some depth including obtaining professional legal advice. Getty Images fails on a number of points, particularly with regard to the letters it sends to UK recipients.

    • Getty are issuing invoices headed with a US address, posted in London, with no VAT number but charging UK VAT. It is illegal to charge UK VAT without a UK VAT number on the invoice. HM Revenue and Customs takes a very dim view of this kind of malpractice.
    • Getty claim it makes no difference that you didn't know the image was copyright, but they also cite the UK's Copyright, Design and Patents Act 1988. Section 97 of the very act they are quoting negates Getty's claim. See http://www.opsi.gov.uk/ACTS/acts1988/Ukpga_19880048_en_7.htm#mdiv97
    • If it ever went to court, most of these claims (under £5000) would be dealt with in the Small Claims track of the County Court, and Getty would therefore be unable to recover its legal costs. It would be cheap for the defendant but expensive for Getty.
    • Getty would have to prove in court that they have actually suffered the damages that they are claiming. This would be very hard for them to do unless for example you had been selling the image on your site and Getty had lost sales of the image as a result. Less significantly, Getty would also have to prove that they own the copyright on the image.
    • Getty's invoices state that you have used the image over a specific period (e.g. 6 months). If Getty objected to your unlicensed use of their image, then they should have sent you a "cease and desist" notice when they (or Picscout) first discovered your use of the image at the beginning of that period, rather than intentionally letting you continue to use the image for months in an attempt to make you accrue a large (disputed) invoice in their favour. This point alone demonstrates that Getty's objective is revenue generation rather than copyright protection. Furthermore, deliberately letting you continue to use the image for many months could be construed as consent, albeit consent for the sole purpose of pecuniary advantage.
    On receipt of these letters, many people are tempted to contact Getty for the peace of mind of a quick resolution, but this is the worst thing you can do and it will certainly not get you peace of mind. The most effective course of action is to ignore all correspondence from Getty. As soon as you make contact with them, that's when they become even more intimidating as they then know you're taking them seriously. Getty's whole approach is based on intimidation and bending the truth of the law, in the knowledge that many people will cough up without a fight. If you ignore their letters, they may eventually send round debt collectors (probably Moreton Smith). However, as they would have no court order, they would have no power to enforce payment or to remove goods. If you refuse to pay and tell them the invoice is disputed, there's nothing the debt collectors can do. They will have no option but to go away and eventually forget about you.

    Don't be intimidated by Getty - just ignore them!
     
    SortedGeezer, Oct 1, 2006 IP
  20. SKULL

    SKULL Prominent Member

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    #20
    Well first of no person or company can demand money , thay have to give a warning first to tell you to take down the images, script ect then if you dont thay will give anther letter saying you will be taken to court or pay a fee for it to not go to court.
     
    SKULL, Oct 1, 2006 IP