Copyright issue with website photo

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myssflame

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Hi,
I was wondering if someone can provide any advice, as my company is receiving threatening letters about a photo that was on my website.

Here are the pertinent facts:

1. The website is owned by my corporation, and is a very new business - only about a little over a year old.

2. I received business coaching to build the site, and was referred by my business coach to a website where I could find photos for my site.

3. The website offering the photos said they were free to use for any purpose as long as I was not creating a commercial product featuring the photos (derivative work) to sell (which I'm not - my site is on health products, and all photos are purely decorative).

4. A couple of months later, I received a letter from some image licensing company (I will call them Company X), stating that a photo on my site was in violation of copyright law. (Note that the letter was addressed to my website address, NOT my corporate name - there is no business entity created in my website name.)

5. I immediately removed the image in question from my website.

Several months later, I received another letter, saying that I owed Company X something ridiculous like $1,200 for using their picture, even if it wasn't on my website anymore. (Or I could pay them $1,200 for a license to use the picture.)

I just received another letter titled "Notification of Case Escalation" and saying it my "last chance" to pay the settlement.

Okay, so my question is, what should I do here?

First of all, they are not actually threatening to sue my corporation, but a business name that does not even exist. Secondly, I removed the photo immediately upon notification of the violation and never received any compensation from (or during) its use. Thirdly, I try to be pretty cognizant of copyright law, and I did believe in good faith that it was okay to use the photo - shouldn't the person who was offering the image for download and "free usage rights" on the photo download website be the one who is penalized?

And lastly, I absolutely don't have the money for this (my business is very new, and I have made a total of just over $100 so far), don't want to use the photo that badly anyway, and my corporation has no holdings.

Should I reply and tell Company X this? Do you think it is just a scare tactic? Surely they won't take my corporation to court if there is nothing they can possibly gain - since my corporation owns a total of $0.00 - right? Then again, I don't have the money for legal fees either.

Any valid advice would be much appreciated!
Thanks!
Rose.
 
The Vagaries of Copy Right Licensing!

"Notice of case escalation?" Who is escalating?

But I must admit, it is a pretty creative piece of haughty legal jargoning, but it has no tooth and I stop short of labeling the letters shakedowns.

You of course did the right thing by immediately removing the photograph and did even better by not taking the bait and answering the letters in some way, and before any response from you should even become necessary, it would not hurt to visit the website from which you took the photo and do a little bit of sleuthing. I am curious to know if the picture you took off that website is still there on general (free) offer, or better yet, if the website is still around in the same shape as you had visited it before.

Then, as you have so rightly posed the question, try to find out what this image licensing company is all about and if they are the licensing entity, why isn't the actual owner of the copyright license contacting you.

By the way, is the licensing company who is sending you these threats situated within the state of Ohio or is a foreign (out of state) corporation?

In any event and whether within or without, the $1200.00 demanded is nothing to go to war for; it does not make commercial sense at all and no amount of tweaking the facts to suit their purpose will be supported by a feasibility study. Because the cost of litigating a copy right case will run into tens of thousands of dollars which is an enormous amount of legal expenses for any size law firm. That apart, the authors of the letters also have a good idea about the chances of success in bringing such a case which is almost non-existent because the case is neither here and nor there.

So, yes, I would have to agree with your contention that the letters are indeed scare-cum shake-the-tree-and-see-what-falls-out tactics. Because to bring a Federal Diversity lawsuit where plaintiff and defendants are residents of different states (which I think this licensing company to be as well), the amount in controversy should be at least $75,000 or it is a no go and these guys are short in the qualifying department by over $72,000.

And when all is said and done, don't forget the main reason why you formed the business as a corporation in the first place. In case you do not, it is because your liabilities start and stop with the corporation's assets itself be it $1 or $1,000.000 while your person and personal assets and whatnot are shielded and are not subject to any attachment or judgment.

Do the sleuthing and continue to maintain radio silence until it is absolutely necessary to reveal yourself, which won't be necessary at all.

fredrikklw
 
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Rose:

(1) Copyright law is still unsettling. The onus is on you to make sure your rights are clear or else some rather prohibitive penalties can ensue that have no bearing on the actual value of what it is the right holder claim you stole. Innocent use doesn't make a difference. Big corporations are behind keeping the law this way, the EFF (Electronic Frontier Foundation) is on the other side fighting these kinds of battles. But that's not the answer you're seeking. :)

(2) Yes, you are right that the site that may have been wrong about rights should be liable to you. But the way it works is that if you were wrong, you will may get sued. If you were sued, you'd have to sue this other site to be reimbursed for your liability. It is possible that they can be added to the lawsuit as a co-defendant but there is no lawsuit so let's not discuss this.

(3) From my experience, it sounds like this company is a copyright collection agency but I need to hear more about what is written. If it's just a collection agency, their goal is to send you nasty, threatening letters to scare you into paying them immediately a larger sum of money than they might be entitled. Did they even send you a valid takedown notice? If they didn't, I'd further question their legitimacy.

If you were to send them a reply, it should be that you have no further comment and that you do not owe them anything. Any usage of materials on the site is properly licensed and any allegation they have made is contested. As clip art licensing doesn't cost anywhere near $1,200, this demand is absurd and it will be treated accordingly. They can contact my attorney if they have a problem. If they are yet another collection agency then chances are you'll never hear from them again.
 
Thanks Fredrikklw for your comprehensive reply!

I truly appreciate it a lot.

In response to a couple of your questions, they claim to be the copyright owner (their "who is" section of their letter says they "represent and license the use of digital content to companies"), and their office address is in Seattle (WA). The most recent letter states they have "twice notified" me of "our pending copyright infringement claim", and threatens that if "payment in full" is not received by a certain date, they "reserve the right to increase the settlement amount and/or escalate the matter to our outside representatives for further pursuit."

I am requested to "provide valid license purchased prior to use" (which of course I don't have as the free photo site I got it from said it was free to use) "or remit the requested settlement amount."

I appreciate your reply, and will do as you suggested and do some more digging.

Thanks so much!
Rose.
 
Thanks to thelawprofessor!

I appreciate your response. I suppose they did send what you linked to as a "takedown notice" - I looked at the page you linked to, and all those items were listed in the first letter I received. However, it also included a bill - there was no previous notice before trying to collect money from me - e.g. it wasn't a "cease and desist" -- it was already a request for money.

Yes, I do understand that "innocence doesn't count", and I thought I had properly understood the usage rights of the photo before I used it, though apparently that was not the case!

Thanks again for your responses - you have been very helpful, unlike on several other forums where I had tried to get an answer previously.

Have a great evening!
Rose.
 
Rose -

1) What is the name of the company making the demand? They sound less ridiculous than the way they were made to seem at first. Not that you have to worry.

2) Can you provide us with a bit more of the text?

3) Do you remember the name of the site form which you obtained the photo? Always good to keep track of these things.

There are some companies that are vigilant and go to absurd lengths with regard to copyright infringement. You may not have heard of Righthaven. Others that have a reputation (not in the Righthaven category) include companies such as Getty Images.
 
Yes, actually the letter is from Getty Images....

Photo was obtained either on Photobucket or Flickr (can't remember, and silly me - did not write it down, which now I know I should have... The same photo as I recall was actually posted on there by several users), and I did read the usage rights before using each photo. The business coach I had at the time had suggested these two websites as good places to get photos for my site.

It was not a large or high resolution photo, and was not used as a part of anything for sale - just a small decorative picture on one of my website's pages.

Most recent letter states, in part:

"...neither removal of the imagery alone nor reliance on a third-party resolves this matter. Getty Images must receive compensation (in the amount of $1,225) for the prior unauthorized use. Absent and appropriate license purchased prior to use and in order to avoid progressing this matter, the settlement amount must be paid immediately....

If payment in full is not received, Getty Images reserves the right to increase the settlement amount and/or escalate the matter to our outside representatives for further pursuit."

Obviously I do have a corporation as protection, but wasn't sure if I should actually respond to the letter, and in what manner.

Thanks so much for your helpful feedback!
Rose.
 
Well now the entire story changes - you are now receiving a demand notice from the actual copyright holder, not yet another collector trying to see how much they can extract from you.

Copyright law presents a significant problem to may. Thanks to big business, if you unintentionally used the property of another, you could be liable for statutory damages. In short - what happens if you hired a third party contractor who used images without licensing them properly and which you could have licensed for $5? Should you now be paying $1,225 or more? In many instances the fine for shoplifting is far less than the liability for unintentional copyright infringement, which I find incredibly ironic. But you didn't come here to hear preaching.

As a result of your case, I did a little searching. I will be contacting a New York Law School professor who is handling the case of a client who allegedly may have relied upon the images provided by a third party that may have been unlicensed. You are in a similar situation. I will contact them and report more back to you later.
 
Hi lawprofessor,

did you hear anything back about this Getty Images craziness? I am in the same situation, Getty is demanding payment from my client for an image that used to be on a royalty free site but has now been deleted.

I too deleted the image off of my clients site and looked over all other images, all is well now, but my client has now received the notification of case escalation letter and i think its rediculous. I never received a cease and desist and I know for sure that when i got the image it was royalty free. This is absurd.

Any advice would be great.

George

thelawprofessor said:
Well now the entire story changes - you are now receiving a demand notice from the actual copyright holder, not yet another collector trying to see how much they can extract from you.

Copyright law presents a significant problem to may. Thanks to big business, if you unintentionally used the property of another, you could be liable for statutory damages. In short - what happens if you hired a third party contractor who used images without licensing them properly and which you could have licensed for $5? Should you now be paying $1,225 or more? In many instances the fine for shoplifting is far less than the liability for unintentional copyright infringement, which I find incredibly ironic. But you didn't come here to hear preaching.

As a result of your case, I did a little searching. I will be contacting a New York Law School professor who is handling the case of a client who allegedly may have relied upon the images provided by a third party that may have been unlicensed. You are in a similar situation. I will contact them and report more back to you later.
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georgeca said:
did you hear anything back about this Getty Images craziness? I am in the same situation, Getty is demanding payment from my client for an image that used to be on a royalty free site but has now been deleted.

I too deleted the image off of my clients site and looked over all other images, all is well now, but my client has now received the notification of case escalation letter and i think its rediculous. I never received a cease and desist and I know for sure that when i got the image it was royalty free. This is absurd.
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I had a client who had one image that Getty claimed was owned by them - it wasn't even appearing in any page off the navigation of the website but crawled and found via some spider. The client never contacted Getty, deleted it and never heard from Getty again.
 
Nice. So far I have not responded to Getty at all but it seems like they want to be persistent about this image. Although I am thinking the burden of proof would be put on them. Can they really take me to court with just a photo of a photo? Photoshop is a huge factor in that situation.

A friend of mine recommended the following, I would like your expertise on this law professor:

do a "notice of Conditional acceptance"
I don't think that they can proove anything other than a screenshot for the site which you say is fabricated. You ask for proof by that of an original. They cannot proove it. You also state that you have no contract with them, nor do you wish to bind into contract.


That was a suggestion, any thoughts?

Thank you for your response earlier.

George
 
Ignore them.

They'll pursue nothing.

This is just another scam.




georgeca said:
Nice. So far I have not responded to Getty at all but it seems like they want to be persistent about this image. Although I am thinking the burden of proof would be put on them. Can they really take me to court with just a photo of a photo? Photoshop is a huge factor in that situation.

A friend of mine recommended the following, I would like your expertise on this law professor:

do a "notice of Conditional acceptance"
I don't think that they can proove anything other than a screenshot for the site which you say is fabricated. You ask for proof by that of an original. They cannot proove it. You also state that you have no contract with them, nor do you wish to bind into contract.


That was a suggestion, any thoughts?

Thank you for your response earlier.

George
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Thank you all for your input with this. It sucks that they do stuff like this to people, then folks will take down the images and then contact Getty back saying they took the image down. They just admitted to having the image up in the first place. So sad Getty images does this to people.

Thanks again.
 
I have the same situation as mysslflame and have received my second notice from Getty which notes that "Failure to make payment immediately will result in escalation to our Legal department...."

Question to mysslflame - what happened with your situation?

Question to thelawprofessor - were you able to find out anything further via the law professor you mentioned in one of your post replies to mysslflame?

Any advice and assistance would be appreciated.

FYI - my situation was purchasing a PLR premade website, and the creator of the package is accepting no responsibility other than to blame the designer who created the package for him to resell (who remains MIA).
 
Regarding Getty Images it's a double edged sword. If they don't use the stick and make everyone afraid, this problem is rampant without a doubt. They are creating a stir, educating people about rights of images that naturally don't bear visible ownership tags. That fact creates some strange loophole in their minds that if you find it somewhere and there is no accreditation, it's in the "public domain."

On the other hand, it's not right to demand ridiculous fees that, IMHO, do not bear appropriate relation to real costs. Do they negotiate down so that numbers may be in the realm of reasonableness - they may. Do they agree that, as in cases I've mentioned, where a third party has no idea that an image has been left somewhere by accident like a surgeon forgetting a stolen tool in the patient's body? Perhaps they do. Are they potentially taking advantage of the unwary? They might be. It's difficult to find the proper medium when our government unfortunately prioritizes crafting law that is out of touch with reality. They would be better served not bothering to spend hundreds of millions of dollars trying to prove that an athlete such as Barry Bonds, Roger Clemens and Lance Armstrong, were steroid users during private corporate sponsored sporting events. But such is the way the world is.

smalldog - Once you mention the words "PLR" I immediately think of sites and offers you'd see on digitalpoint, warriorforums, wickedfire and the like. The sites are not bad in themselves and there is a great deal of quality information one can find. But they are rife with "offers" from foreign countries where piracy is rampant and the government has far greater priorities to deal with than policing international copyright. In such an instance, if you've purchased from any of those places you can expect that your "private label rights" or "resale rights" or "master resale rights" to be nothing but nonsense designed to sell products at higher prices which they didn't have the rights to sell in the first place. In those circumstances you should be wary of any product, script or graphics that come from sources you don't truly know.

You can certainly choose not to take down the content immediately and bear the loss as a learning mistake. It's possible that Getty Images may never bother you again if you're not using their content and, for the most part, the problem is solved.
 
Thank you for your speedy reply.

I did, indeed, remove the image from the website cited after receiving the first letter on Nov 10, 2011. However, the second letter dated Jan 13, 2012 resent the original letter along with a cover letter. The original letter states:

Please note that ceasing use of the image(s) does not absolve your company of its responsibility to pay for the image(s) already used without a license. Getty Images' Copyright Compliance Team is willing to discuss the circumstances surrounding this matter; however, absent appropriate licenses, Getty Images and its artist expect to be fairly compensated for the use of the image(s) in question.

You are correct as to where the website was purchased; and, I have been in touch with the seller of the product who believes Getty's demands are not legitimate and is not willing to take care of this fee on my behalf ($1175.00). While I will never fall prey to another situation like this again, I am in a similar position to the other person who posted and simply do not have the funds to pay this settlement fee.

Some people say to ignore this, others say to contact Getty and negotiate. I did contact them after receiving the first letter explaining the circumstance and telling them I removed the image, which as another person who posted here now reflects as an admission of guilt.

Any further advice as to action or non action on my part?

I hate to wait until I receive a civil suit letter or what ever 'escalation to our Legal department' means, but I simply cannot pay their fees.
 
smalldog said:
However, the second letter dated Jan 13, 2012 resent the original letter along with a cover letter. The original letter states:

Please note that ceasing use of the image(s) does not absolve your company of its responsibility to pay for the image(s) already used without a license. Getty Images' Copyright Compliance Team is willing to discuss the circumstances surrounding this matter; however, absent appropriate licenses, Getty Images and its artist expect to be fairly compensated for the use of the image(s) in question.
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By the letter of the law, they are correct. Copyright infringement is essentially strict liability - doesn't matter whether you knew, doesn't matter if you've remedied the problem.

You are correct as to where the website was purchased; and, I have been in touch with the seller of the product who believes Getty's demands are not legitimate and is not willing to take care of this fee on my behalf ($1175.00). While I will never fall prey to another situation like this again, I am in a similar position to the other person who posted and simply do not have the funds to pay this settlement fee.
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Not surprised that I'm right. As you can see, it happens all too often. Why doesn't the seller of the product believe Getty Images' demands are legitimate? Did he or she use an image that belongs to Getty Images or are they merely complaining as to the size of the usage fee?

Some people say to ignore this, others say to contact Getty and negotiate. I did contact them after receiving the first letter explaining the circumstance and telling them I removed the image, which as another person who posted here now reflects as an admission of guilt.
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Nobody can tell you what to do as nobody can tell you what will happen. The other person who posted here is correct - if you tell Getty Images that you removed the image you are admitting to copyright infringement. You are "pleading guilty with an explanation" which means you'll be convicted and hoping the court will do the right thing with regard to damages. If you do the latter, you're throwing yourself to the mercy of the court - which you may not believe is always reasonable.

Any further advice as to action or non action on my part? I hate to wait until I receive a civil suit letter or what ever 'escalation to our Legal department' means, but I simply cannot pay their fees.
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I cannot tell you what to do and your situation is made more difficult by your calling them up and admitting, possibly in a recorded conversation, that you had the content online. In my personal opinion, the matter now comes down to enforcement. You've told them that you had no idea that there was an image that may not have belonged to you online. You've removed it. Will Getty Images spend what is likely more than the amount of the lawsuit to sue you in court? Will they sell this case to a lawyer who will take this to small claims court and demand legal fees to prosecute you for what was clearly unintentional infringement and one you probably could not have reasonably avoided? I cannot tell you. I can say that it's not a case I'd want to bring to small claims court and insist to a judge that the consumer be punished for legal fees on top of a $1,175 fee for using a rather unremarkable picture of a squirrel climbing up a tree.
 
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