Getty Images Extortion Letter

by Ryan M. Healy on October 9, 2012

In July of 2011, I received a letter from Getty Images.

The letter claimed I was in violation of copyright. But the letter was not a typical Cease and Desist. Rather, it demanded the removal of the image from my site, plus a settlement payment of $1,065 to Getty Images.

My first reaction was shock.

  • How had I violated copyright?
  • And why would Getty demand so much money for such a pedestrian image?
  • Why not send a simple Cease and Desist letter like a normal business would?

The Getty “extortion” letter contained a copy of the image in question, as well as the URL where they had found it.

I immediately looked into the issue.

Here’s What Happened…

Basically, I had hired a person to help build a website. He had written a blog post about constipation.

Then, to illustrate the concept, he used a picture he found on another website with a link back to the original source. The picture showed a boy sitting on a toilet, from the bathroom floor up to the boy’s knees.

As a result, Getty Images pulled my information from the “Who Is” database and mailed me their “extortion” letter.

At first, I thought I could just ignore Getty. I thought they might drop the issue if I waited them out.

Such was not the case. Getty is persistent in these matters.

I got the first letter in July 2011. I then got a second letter in September 2011. I received a third letter in June 2012.

The third letter threatened legal action. At that point, I decided to seek out some help.

I had joined Legal Shield in December 2011 because of this issue with Getty. So my first course of action was to contact my designated law firm and have them send a letter to Getty.

They asked me to send details of my situation, which I did.

Unfortunately, they were not ready to “play hardball” with Getty. In fact, they seemed somewhat sympathetic to Getty. They suggested a groveling mea culpa. So they merely reproduced what I’d written on their firm’s letterhead (after switching it from first-person to third-person voice).

I was not impressed.

Getty Counters My Offer to Settle

The letter my law firm sent to Getty included my offer to settle for $157. Why did I use this figure?

Because I looked up the exact image on Getty’s website and found that $157 was the cost to license that image for two years in a web editorial format. (Today, October 2, 2012, that same license can be purchased for $110.)

Never mind that the image had only been on my site for a period of eight months. I figured I’d be generous in my offer to settle just to bring the issue to a close.

But Getty would not accept my offer.

I found this puzzling because of the following statement that was included in their “extortion” letter:

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 artists expect to be fairly compensated for the use of the image(s) in question.

Apparently, Getty Images interprets the phrase “fairly compensated” differently than I do.

If I use an image for eight months, and then offer to pay for a 2-year license, I think that is more than fair compensation. Especially when you consider these two facts:

Fact #1: I can purchase a royalty-free license for a similar image for $8 on iStockphoto, which is also owned by Getty Images.

Fact #2: In my case, I did not knowingly or intentionally violate copyright. It is a case of what’s called “innocent infringement.” Part of 17 USC 504(c)(2) says:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

As I pointed out in the letter that was sent to Getty, I am a customer of iStockphoto. I have licensed images from them, and I would never knowingly violate a copyright.

And in this case — even though I personally did not reproduce the image in question or profit from the image — I offered to settle for an amount that I felt was more than fair based on the price of the specific image that was used, as well as similar images that are available to be licensed right now.

Getty countered, saying they would not accept my offer, but that they would accept a payment of $580 as “full and final settlement” — but only if I sent payment postmarked by July 23, 2012.

I did not send payment.

How the Getty Extortion Machine Works

Getty’s business model is only loosely based on licensing images. It would be more accurate to say their business is based on owning as many images as possible and then trying to collect outrageous “damages” from people who accidentally violate copyright.

Right now, Getty has software that scans the Internet 24/7 looking for images that have been reproduced without a proper license. When the software identifies a potential copyright violator, their standard extortion letter is generated and mailed immediately.

And that’s only the start of their “legal” extortion machine.

They have armies of entry-level employees who handle the back-and-forth correspondence that inevitably happens when an online business owner gets caught in the machine.

Eventually, you may cave and send the settlement amount that Getty has requested.

Or you may hold out and your case will be elevated from a lowly staffer to an attorney who will threaten you with a lawsuit.

Getty’s strategy is fairly clear: Use copyright law to scare people into paying stupid amounts of money for images that, under normal circumstances, cost very little to license.

You see, images on the Internet are ubiquitous. Pair that with relatively low demand and it creates a situation where it’s difficult to charge premium prices.

Getty’s answer?

Use copyright law in a way it was never intended to be used — as a way to force ordinary folks to cough up thousands of dollars for some pixels on a screen.

What Should You Do If You’ve Gotten a Letter from a Copyright Troll?

After doing some research, I found the ELI network. “ELI” is short for Extortion Letter Info.

The site is run by Matthew Chan and Oscar Michelen, both of whom are “dedicated to reporting information and providing commentary on Getty Images (and other stock photo) Settlement Demand Letters.”

When I found the site, I began to read some of the articles and forum posts. I was relieved to discover that I wasn’t alone — and shocked to discover how common these settlement demand letters have become.

After receiving Getty’s response to my offer to settle, I paid $50 to speak with Matthew Chan. It was money well spent. He was able to answer my questions and give me a clear picture of what to expect.

If you’ve gotten an “extortion letter” from Getty or any other copyright troll:

This will provide you with the information you need to make a smart decision.

And it may provide you with the confidence and support you need to stand up to Getty and other copyright trolls.

EDIT: I published a lengthy follow-up to this post here: Attack of the Trollogs! And More Thoughts about Getty Extortion Letters

-Ryan M. Healy

P.S. Getty Images owns iStockphoto. Therefore, I will no longer support iStockphoto. If you feel the way I do, support Fotolia instead.

P.P.S. Have you received an extortion letter? Share your experience in the comments below.

About Ryan M. Healy

is a direct response copywriter. Since 2002, he has worked with scores of clients, including Agora Financial, Lombardi Publishing, and Contrarian Profits. He writes a popular blog about copywriting, advertising, and business growth, has been featured in publications like Feed Front magazine, and has been published on sites like WordStream.com, SmallBizClub.com, and MarketingForSuccess.com.


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{ 228 comments }

Sabrina October 9, 2012 at 2:06 pm

Yup. Been there.

Got the extortion letter. Extortion Letter Info forums were a real help.

In my case the image was part of a website template paid for by an organization for which I was an affiliate. Thankfully that company stood with me and covered the final fee that was negotiated. (We started way above $1,065…)

Your comment, “their business is based on owning as many images as possible and then trying to collect outrageous “damages” from people who accidentally violate copyright” should be taken very seriously.

Ryan M. Healy October 10, 2012 at 8:03 am

Crazy that they can come after you even though you bought the template from another company. At least the company took responsibility — it could have been worse!

John Breese October 9, 2012 at 2:17 pm

Wow.

I’ve always been disgusted by companies who aren’t clever or hard-working enough to make their money legitimately and resort to these tactics to make money.

If anyone at Getty Images / iStockphoto is reading this, you can forget all about getting any of my business.

Maybe we should try digging up photographer’s collectives that offer their members’ work for license without the Mafia tactics.

Ryan M. Healy October 10, 2012 at 7:59 am

John – Thanks for boycotting Getty / iStockphoto. Maybe we can bring the company down by voting with our dollars.

Takiyah Noble October 9, 2012 at 3:09 pm

And another one… Wow.

This is why I just use the Envato marketplace. SMH.

Ellie October 9, 2012 at 4:35 pm

Yep… about 2 years ago. I had a photo that I KNOW I paid for… but didn’t have the receipt. I never use anything that isn’t off a site that’s legit (istockphotos etc) ANYway…. I foolishly paid $1500 to Masterfile in Canada (reduced from their orginal charge of $2790) On top of that, I had proof that I had reduced the smallest photo available to even half that size… related to Dad’s Day… on the site. The dates from June 1 to Aug 18…. the site only had 212 visitors (from Google Analytics). So they were nice enough !!!! to drop the price – to $1500. I paid because I was the developer…. and maintained the site. But that was in 2010. Hopefully, I’m smarter than that now. What a racket indeed! :-(

Ryan M. Healy October 10, 2012 at 7:58 am

That’s a crazy story, Ellie. It brings up the point that there are multiple photo companies using this “extortion” strategy.

Getty, Masterfile, and Corbis are all known to send out settlement demand letters.

Walt Goshert October 9, 2012 at 4:45 pm

No more Getty, IStockPhotos, or Flickr ( with the push of a buttion, photos on Flickr can be licensed to Getty)

This has Chris Dodds corrupt, money-grubbing in the name of protecting intellectual property finger prints all over it…

Did he some way weasel his way onto the board of Getty?

Ryan M. Healy October 10, 2012 at 7:56 am

Walt – I didn’t know that about Flickr. I’ve used just a couple Flickr images… sounds like I should remove those for sure. I could see Getty licensing images from Flickr and then retroactively trying to enforce copyright.

Terry Davis October 12, 2012 at 8:51 am

What specifically did the photographers allow you to do when you asked them for use of their flickr images? All the images on flickr bear copyright, sale info or creative commons licenses or links to Getty. They all include contact information for the photographer as well. So you should have no problem using a flickr image if you took 2 seconds to check the copyright.

And re: your candy bar analogy. If the store owner knew one was missing and saw you eating it outside the store, do you really think that he won’t come after you? Blame your friend, not the store.

Ryan M. Healy October 12, 2012 at 9:29 am

They (2 photos) were creative commons, used with links back to the photographer. I’ve since removed them. I won’t use anything off Flickr anymore due to its connection with Getty.

Matt Vestrand October 10, 2012 at 6:13 am

Couldn’t you avoid this if you get a private registration? Say you use GoDaddy’s private registration. Then use a pseudonym for your account at Go Daddy, and pay with a business credit card. They’d have to jump through a whole bunch of hoops to find you.

Ryan M. Healy October 10, 2012 at 7:54 am

Hey Matt – I thought about that. It could potentially protect you. I haven’t used private registrations simply because GoDaddy charges extra for it.

Jonathan Boettcher October 10, 2012 at 3:24 pm

Private registration doesn’t mean anonymous registration… you’re given a proxy email and physical address, and people can still send things to you which gets forwarded to the actual registration information you provide. So no, that won’t help you much in this case, though it may deter the odd troll here and there.

After reading this, I’d gladly switch from iStockPhoto, except that I have a sweet deal going there for custom stuff with a particular artist that produces audio products for me.. argh.

Rox October 12, 2012 at 11:40 am

Agreed, I was in a similar situation & they will contact the person listed with the registrar. Unless that person listed wants to be responsible for the suit, they turn over the information to the person who designed the site and/or the person who posted the offending images.

Semmick Photo October 12, 2012 at 8:02 am

Why hide from doing something legal? You just confrimed the blogger and yourself have no ethics and are willing to go out of your way to hide your tracks. And you wonder why Getty is going after money you owe them?!?

Ryan M. Healy October 12, 2012 at 9:30 am

You jump to conclusions WAY too quickly, Semmick. I didn’t endorse hiding. All I said was “I thought about that.”

Perry October 10, 2012 at 6:51 pm

Sort of makes me want to start my own microstock agency. There are a bunch out there. I doubt there is a need to be as predatory as they are. If its a blatant stealing for commercial purposes a cease and desist would be appropriate. The fees they seek are out of line though.

Ryan M. Healy October 11, 2012 at 7:09 am

I had the same thought… start a microstock agency that doesn’t use the nasty business tactics. :-)

Alistair Cotton October 11, 2012 at 11:54 am

Ryan, I’m sure that you are a reasonable kind of guy, so lets put the shoe on the other foot and view this from Getty’s point-of-view. I’m a photographer who licenses images through quite a few different agencies and channels, have done so for some time and perhaps can put a different interpretation of the events leading up to your blog post.

Firstly, one should understand the history of stock imaging to get a full understanding of what has happened. Stock imaging has been around a long time. Stock archives pre-date online stock image services by many years. It was initially a physical image duplication business (duplicate slides), then a CD supplied image kind of business (scanned slides) before it became an online image service (scanned slides and later digital images).

In years past, the most popular form of image licensing for stock agencies was the Rights Managed (RM) model. RM is a quite complicated licensing model that is typically more expensive than other forms of image licensing.

Many photographers, particularly “old school” stock photographers see the RM model as being more “fair” to photographers and choose to license their images with this model – even if they could sell the same image at a rate of 10 to 1 on a more “buyer friendly” licensing model such as Royalty Free (RF).

While images purchased under the RF license are not in any way free, they are typically less expensive than RM images. License terms are easier to understand and are seen to be more “buyer friendly”.

Microstock – or the selling of royalty-free images at very low, often unsustainable prices is still a very new business model. As a result, it is neither fair nor correct to assume that all stock images should be put the same price bracket. Just like a Merc costs more than a Kia, so too stock images are priced differently.

Sometimes the price charged for an image proves its value. Sometimes not. But it’s not for the buyer to choose the price. It is the image seller’s prerogative to choose the price and terms of license. It’s the buyers prerogative to agree to the price and the terms or negotiate the terms – or simply walk away. But it is not in their power, obviously, to simply say that one image should be priced the same as the next image because they are the buyer and that’s the way they feel it should be.

Just because an image of a kid on a bog is available on iStock as an RF image for a few dollars does not mean a photographer somewhere else, using a different agency and completely different licensing system should charge the same amount!

The argument that you would rather pay damages for an RF image rather than an RM image is, therefore, flawed. While an RF image would have done the trick just as well does not wash because you used an RM image, apparently unlawfully, and one which was legitimately based on a managed and more expensive licensing model.

While I’m a photographer, not an attorney, I’d suspect that if your matter ever went to court, Getty’s attorney would have this, and other viewpoints about the matter:

1.As the owner of a blog, you have the same rights and responsibilities as a traditional publisher. Those responsibilities include ensuring that your writers do not infringe on the intellectual capital, trademark and copyright of others in terms of (insert whatever section of your copyright act pertains to publishers).

2.Your blog was either set up with a revenue stream or was intended as a cost centre like a marketing or advertising campaign – and should be treated as any other promotional venture (such as advertising).

3.The attorney (note, not me) would allege that your writer wilfully stole a photographer’s property just as surely as walking into a shop and taking something off the shelf and consuming it without paying for it. Since you are the publisher, you are surely viewed as some kind of co-conspirator in this crime.

The argument that the image was simply linked to another website could actually make the crime even worse. In theory your writer may have stolen, stolen property. Even if the image was originally licensed legitimately, that does not give you the right as a publisher to hot-link the file through your website and use it without paying for it.

In nutshell though, your three questions could be quickly summed up by the Getty attorney, and, I suspect many other copyright attorneys like this:

“How had I violated copyright?”
You violated copyright by unlawfully using a professional photographer’s licensed work without payment. Most professional and business people know about copyright law. How could a copywriter argue that they don’t know about copyright law for goodness sakes? Not that ignorance of the law is a real defence anyway. It may a mitigating circumstance with regard to sentencing – but it’s no defence for the crime.

“And why would Getty demand so much money for such a pedestrian image?”
Because it’s an image licensed as a Rights Managed image. It’s quite likely that this image is even registered with the US Copyright Office, since I know that a lot of stock photographers take this precaution. The photographer and agency have suffered a loss (damages) by your actions. Now that you have done the “crime” why do you feel that you should pay the same rate as those seeking to legitimately purchase the image without “stealing” it? It’s also an image of a child – bet you didn’t see that one coming, hey?

Why not send a simple Cease and Desist letter like a normal business would?
Again, to Getty’s point-of-view and most likely the photographer who owns the copyright of the image – you have stolen their property. There are damages and a cease and desist letter does nothing to rectify the unlawful use of copyrighted material nor does it rectify their loss.
It’s possible that you may have received a cease and desist from an RF agency, since significant loss may be more difficult to quantify. In the case of an image sold through a rights managed license potential damages are significantly higher – and easier to prove.
Ryan, since you are a copywriter, lets put your copyrighted works into the same position as the photographer who has given Getty the right to market, promote and license their personal creative works.

What if someone can along a replicated this blog, word for word for their own purposes. How would you feel about that? When seeking damages for this blatant act of plagiarism and copyright theft, would your damages claim be as cost, or significantly more than cost price?

On another matter, have you any appreciation for how long it takes to build the skills necessary to effectively complete in the globally competitive stock photography industry? Do you know what kind of capital equipment investment needs to be made for professional camera, lens, lighting, computer, software before one can even start producing stock images like the toilet image that seems so “pedestrian” to you.

Have you any appreciation for the kind of model release forms that one would need to be signed before such an image will be licensed? Have you any appreciation, or any comprehension as to why the photographer chose an RM license over an RF image of a child sitting naked on a toilet? Have you any appreciation for the kinds of assurances the photographer would need to give to the parents of that child before they agree to sign the model release form?

Do you know how difficult it is to even get accepted as a contributor on iStock, a “lowly” RF agency? An experienced photographer I know failed using the best, most expensive camera equipment for stock photographers that was available at the time.

Do you know, then, how much more difficult it is to get your images represented by Getty? So difficult is should be known that some photographers even pay Getty to represent their images!

Ryan, how much do you charge per hour for your work? How well do you value your work? How annoyed would you be if someone stole your work and then used it without paying for it?

How further annoyed would you be if that person who you feel has stolen your work then writes a blog about how they were subjected to an “extortion letter” from an agency you feel was rightfully demanding payment for a stolen image?

Ryan, in the end Getty wanted you to pay $580-00 for an image that, from their perspective and the photographer’s perspective was used illegally . . . stolen by yourself.

As a reasonable person and looking at all the facts from their perspective, do you really still feel hard done by in this matter? Are you really the victim you make yourself out to be in your blog post?

Ryan M. Healy October 11, 2012 at 12:24 pm

Alistair – I appreciate your comment. I’m well aware of the investments required to be a photographer. I’m also aware of the different types of licenses. And, yes, I still feel Getty is a predatory company that seeks to take advantage of people.

You have framed your comment to make me a thief and a “co-conspirator” — which I completely disagree with. If I’m walking through a store with an acquaintance, and he slips a candy bar into my backpack without my knowledge, who is the thief? Me? Or my acquaintance? If you say it is me, then you have a very twisted sense of what constitutes a crime.

You might have missed it in my blog post, but I offered to pay DOUBLE — that’s twice the amount — of what the license would have cost me for the period of time the image was on the site. Double restitution is a biblical principle in cases of theft. I used the image for 8 months and offered to pay a license for 2 years worth. That is more than fair.

And your questions about putting the shoe on the other foot, etc — yes, people have stolen my copy. They’ve ripped me off. They’ve put my ebooks on P2P file sharing sites. Do I care? A little bit, of course. But I would never demand somebody pay me 10x the normal price — even if their theft was intentional.

I have a heart of forgiveness. Some people have a heart of vengeance and revenge.

John Breese October 11, 2012 at 4:09 pm

Alistair,

Honestly, you strike me as a very frustrated individual. I know this because I used to be a frustrated author struggling to get by and that’s why I can totally understand how you feel.

However, by hating on Ryan, you’re hating the player, when you should be hating the game. As Ryan mentioned, he’s had his intellectual property stolen.

And you know what? So have I. Makes your blood boil, doesn’t it?

But here’s the thing…thieves will abound in any economic environment. Ryan Healy isn’t a thief, he’s merely an entrepreneur who hired a contractor that didn’t take proper care in his duties.

Now, because Ryan “technically” violated Getty’s policies, the company has jumped on him in a predatory manner. So predatory in fact, that there’s no doubt they intentionally rig the image market to lead exactly to this.

Know what? Many large phone companies do this too. Why do they do this? Well, it’s no different than fishing…drop enough lines into the waters and you will get bites.

They know just enough people will bite into their BS for this practice to be lucrative.

Alistair, Getty Images does not give a rat’s ass about you, your work or what you’re due. You’re nothing more than a pretense to them.

So here’s my tip to you…

…first, apologize to Ryan.

Second, read his material and apply it to your profession. The old-school direct marketing tactics you’ll learn here will make you a lot more successful in your domain.

If the only way a photographer (or writer) can get paid is by using Mafia tactics…they don’t deserve to live off their craft.

Sammy October 12, 2012 at 8:14 am

Not sure where to start with this reply.
1) I doubt the image was registered with the copyright office
2) If it was registered it seems like clearly innocent infringment to me which makes the $200 statury penalty clause applicable. If it wasnt registered (likely I think) then statutory penalites and atty costs are not applicable which limits recoverable damages to “actual damages”. In the worst case this would be Getty’s high normal license fee, but probably more applicable which would be the market value of the image use (if this is typical Getty stock that would be several dollars (less than $20) easily confirmed by finding similar stock photos from other websites).
3) All this is under the assumption that Getty even has standing to sue which could very well turn out to not even be the case.
4) I think referring to this as a “crime” is wholly inappropriate. There are sections of the statute that set the bar for criminal copyright infringement and this case clearly does not rise to that level.

So in my humble estimation, this person owes Getty somewhere between $20 and $157, assuming Getty can show they have the necessary rights to sue for copyright infringement in this case.

Look, I know these limiting facts aren’t popular with photographers. However, we consumers, don’t like the fact that we can innocently get into these situations with no wrongful intentions. We, as consumers, have to live with a poorly written copyright statute. However, you as photographers, have to live with the things in the law that aren’t always favorable with collecting exhorbitant fees in these cases.

*I’m no lawyer, but I can read, and that’s the way I interpret the situation.

Ryan M. Healy October 12, 2012 at 9:34 am

Sammy – Thank you for your thoughtful reply. Much appreciated. :-)

Chris October 12, 2012 at 10:16 am

So, if I “technically” steal a car and then give it back, I only have to pay the equivalent of what it would have cost me to rent it? Cool.

What if I “technically” break into someone’s house but don’t take anything? Just the cost of the window replacement?

Seriously guys, if you aren’t happy with how much Getty is “fining” you for theft, take it up with the guy who stole the photos and then used them to build your site.

Ryan M. Healy October 12, 2012 at 10:35 am

As I pointed out, I offered to pay double the ordinary cost of the license.

What standard would you use, Chris? You (and others commenting here) seem to think that any fine is justified.

“Charge ‘em 10x, 100x, 1000x the cost — doesn’t matter. It’s all fair because you accidentally infringed on copyright!”

If that’s your thinking, why stop at $1,000. Let’s charge $1 million.

Chris October 12, 2012 at 11:59 am

No need for “Reductio ad absurdum” (it weakens your position anyways)
You think that double the cost if fair. Getty thinks that more is fair. Why not take it to court to see what a judge thinks? Last time I checked, it wasn’t up to the accused to set the sentence. If you really think that you are being unjustly charged then pursue it (good luck with that one).

Or, like I said, pass the fee on to the person who did the job for you.

Sammy October 12, 2012 at 11:10 am

I think you are comparing apples to oranges. More applicable: If you inadvertently buy a radio with a market value of $20 from the pawn shop, and it turns out to be stolen (and you did not know), does that mean you should have to pay heavy statutory fines and penalties? Should the radio owner send you a settlement demand letter for $1000 ? Not in my humble opinion.

Sammy October 12, 2012 at 12:27 pm

Chris,

You are exactly right that it is not up to the accused to set the sentence. However, it is not up to the accuser either.

Ben Fury October 11, 2012 at 1:48 pm

Thanks for the tip on Fotolia. Nice service!

Be well,
Ben

Ryan M. Healy October 11, 2012 at 2:17 pm

You’re welcome, Ben! :-)

Alistair Cotton October 12, 2012 at 12:47 am

Hi again Ryan

Please understand that the comments were written as if they were coming from Getty or their photographer – in an effort to balance the message in the post. There is no impartiality about a blog post dealing with a dispute – just one side of the argument.

By playing Getty’s advocate, I’m merely pointing out how they may feel about the same situation. Again, it is not my perspective and I’m not accusing you of anything – just pointing out that from another point of view, the situation looks very different from your own.

The odd thing is, a number of years back I found myself in exactly the same kind of situation. A freelance journalist I had employed for a project plagiarised whole sections of a published article. I recgonised instantly my responsibility as a publisher – that the law would see me equally liable in this matter – and sought legal advice.

Far from being sympathetic to my plight, the attorney explained that someone else’s property had been stolen – sure as if something had been stolen from a shop. He explained further that as the publisher I would, and should also he held accountable for the actions of my contractor. At the time, I didn’t like his tone, nor insinuations of theft – but the argument he constructed has remained in my mind ever since.

That’s why from the photographer or Getty’s perspective, your actions could be seen as something akin to theft and also why from their perspective as the “publisher” you are also responsible and accountable in this matter.

@ John – since you feel it necessary to play the man and not the ball I’ll similarly respond with a subjective opinion I’ve gathered of yourself based on your comments above.

John, you come across as if you were a thoroughly dim-witted individual completely lacking in the intellectual capacity to formulate two opposing opinions concurrently.

I’ve no doubt this is not the case, since this level of thinking is probably present is lower order simians and intelligent squirrels – neither of which appear to have evolved the ability to type.

So on your request John, Ryan, please accept my apology as follows:

I’m sorry for developing a theoretical opinion based on how Getty Images and/or their photographer may feel about the unlawful use of their copyrighted materials. I’m sorry for pointing out why they may feel that this kind of action is tantamount to theft.

Should the consideration for the opinions of others prove too traumatic to contemplate, feel free to ignore the opposing argument I’ve constructed and to concentrate on the validity of your argument instead.

Ryan M. Healy October 12, 2012 at 5:16 am

Alistair – Thanks for clarifying your intent. I do see Getty’s side of the argument, but I still strongly disagree with the “damages” they claim they should be owed. That’s the part I view as extortion.

Cynthia October 12, 2012 at 6:22 pm

Hi Ryan, I am a stock photographer and blogger. I am also a claims adjuster and have worked with a few intellectual property cases. As you have learned, lack of knowledge doesn’t serve as much of a defense. I think you have been rather harsh in your evaluation of Getty Images. It’s standard practice in the legal realm for attorney’s to “demand” in settlement multiple times what they expect to receive for any kind of civil wrong. I agree with the comment about holding your contractor responsible to indemnify your expenses.

Damages in these cases need to be higher than the actual cost of buying the rights. Otherwise unethical people could deliberately misappropriate copywriter work without assuming any risk. We need a deterrent to prevent this. Surely as a copywrite specialist you are aware of some of these issues. Unfortunately in this society the fine that is “fair” is whatever is negotiated between the parties and attorneys involved. Sometimes it is too much. Sometimes it is not enough.

In response to the poster that doubted the image was registered with the Copywrite Ofiice, Copyright accrues to the creator of the work even if it is not registered.

John Breese October 12, 2012 at 4:06 am

No problem Alistair.

Don’t forget to thank Ryan for allowing you to come onto his blog to insult him while simultaneously using his site to as a springboard yo promote your business while also piggybacking off his page rank juice to create a PR 3 backlink.

Alistair Cotton October 12, 2012 at 5:02 am

John, why would I want PR 3 backlinks from a site unrelated to my industry when I can get PR 7 backlinks from photo related partners any time I like?

No John, again, my intention was simply to balance the blog by pointing out that Getty and their photographer would not see the sitation the same way as Ryan described it in his post above.

If a blog were a newspaper, the post above would have been written by an impartial journalist. That journalist would interveiw Ryan and Getty and the photographer and put all their viewpoints forward in some kind of news article.

But this is not a newspaper, it’s a blog and and two important components were missing when discussing the matter – comment from Getty images and comment from their photographer.

Why do you find an attempt to provide an opposing viewpoint insulting? It seems to me that with a blog, the only way to balance the view of an impartial author is to provide the opposing viewpoint in the comment section. That’s what the comment section is for, yes? Or is it just to agree with everything the author writes, like some kind of mindless fan club?

Sandra Bell Kirchman October 16, 2012 at 12:52 pm

Alistair, you are missing one huge point that is totally relevant but that no one, not even Ryan in his role as host of this blog, has mentioned. This is not a newspaper or a journal, as you have stated. It is a blog. And what is a blog? It is the property and creation of the person who owns it. Period.

Ryan owns this blog. It is his to do with as he pleases. He is not required by an law, statute or policy of the blog site provider (in this case, Wordpress) to provide an opposing and balancing viewpoint. Nor is it incumbent for him to allow anyone else to do so. It speaks volumes of his humanity that he has allowed you to speak on behalf of Getty on HIS blog, that HE has created, that HE pays the fees for.

If Ryan were to object, in my opinion, unless you deleted your lengthy dissertations immediately, you would then be stealing from him–bandwidth and goodwill of his readers to name two items.

I wonder at your nerve to keep insisting that you are merely providing a balance in this issue, when you repeatedly and at length assert the rights of Getty and how these copyright infringements make Ryan a thief and how his offers of recompense make no difference to the wounding of Getty.

All I can say is that Ryan has a whole lot more patience and courtesy with you than I would have under the same circumstances.

Alistair Cotton October 16, 2012 at 11:14 pm

Sandra, perhaps on reflection you may come to determine that the “one huge point” you raise has not been mentioned because it’s pre-established knowledge – even in the minds of those that dribble and slur.

Objowl October 12, 2012 at 4:09 am

“Why not send a simple Cease and Desist letter like a normal business would?” because bloggers think they can use copyrighted images for free until the Cease and Desist arrives, how long do you think the copyright owners are going to be used and abused like this?
Objowl

Ryan M. Healy October 12, 2012 at 5:38 am

Objowl – To be clear, I’m not condoning the behavior of bloggers who routinely use copyrighted images without license. I may be wrong, but I think that is probably the exception and not the rule.

I have almost never used images on this blog for two reasons:

1. I didn’t want to pay to license them as it would be too expensive (I’ve got about 545 posts on this blog alone).

2. It takes too much time to find, license, and post an image on every blog post, especially when you publish as often as I do.

Now, based on the actions of Getty Images, Corbis, and others, I am unlikely to EVER license an image from them or even their competitors for fear of them trying to come after me.

(Note: They go after people who’ve properly licensed images, too. These customers have followed the law, and they’re STILL getting harassed, forced to provide proof of license, etc.)

I’m thinking I’ll just upgrade my camera and build a library of my own photos. Way easier – and no legal headaches either.

Objowl October 12, 2012 at 8:15 am

You asked the question Ryan rhetorical though it may be, but I have to spend time sending Cease and Desist requests often several times while my image is being used free of charge until they get the idea that I am not going away until they act on the request. And I have to do this time and time again because it has become custom and practice, your question only gives credence to this attitude. Picture your articles on my website and another and then another and so on, then ask yourself the question again, does a Cease and Desist request still do it for you?
You might understand that is not good enough and if more of our agents would act like Getty then it might stamp the practice out once and for all.
Objowl.

Ryan M. Healy October 12, 2012 at 9:10 am

My articles have been copied more than you know, Objowl. And my paid ebook has been put on file sharing networks. So I know firsthand what it feels like to have your work copied and stolen.

But I don’t worry about it. I focus on selling to honest people who understand the value I bring and are willing to buy from me.

I do not focus on legal threats or retaliation. It’s a losing game. Just ask the record companies who’ve been fighting piracy… that didn’t go over too well for them.

Objowl October 12, 2012 at 9:22 am

I guess Getty haven’t realized it’s a losing game yet. I just find it refreshing that an agent is willing to give some protection to their contributors and their images, been giving them stick for long enough for not doing so, got to give them some credit when they do.
Objowl

Ryan M. Healy October 12, 2012 at 9:42 am

Well, Getty was sold in 2008 to Hellman & Friedman for $2.8 billion. It was just sold again in August 2012 to Carlyle Group for $3.3 billion.

http://pdnpulse.com/2012/08/getty-images-sold-to-carlyle-group-for-3-3-billion.html

Apparently, photographers are not too happy with Getty for reducing royalty payments and changing the terms on photos already submitted to Getty.

Objowl October 12, 2012 at 10:41 am

Yes, when the revolution comes you can put the greedy b******ds and there ilk up against the wall first and I will give you an hand, the agencies take more than is reasonable and usually do little to protect our work from thieves. No doubt they will be masters of their own downfall if they carry on the way they do. None of that changes the fact that a simple Cease and Desist request is going to stop anyone from stealing images, but an hefty a settlement payment might.
Objowl

Semmick Photo October 12, 2012 at 4:26 am

Alistair, you could not be more right.

As for the situation, its not extortion, its taking back what is rightfully ours. Piracy and theft of images has gone too far, and almost everyone that is being copped out has their whining story of why they are different from the other thieves. No matter what the excuse, every one needs to understand that piracy of any form cannot go unpunished. Photographers have been exploited long enough, and the ignorance card is no longer accepted.

Ryan M. Healy October 12, 2012 at 5:31 am

Semmick Photo – Here is what extortion means (quoting from Wikipedia):

“The term extortion is often used metaphorically to refer to usury or to price-gouging, though neither is legally considered extortion. It is also often used loosely to refer to everyday situations where one person feels indebted against their will, to another, in order to receive an essential service or avoid legal consequences.”

I believe the amounts of money demanded by Getty fit this definition of extortion. As I mentioned in my article — which it appears you did not read:

1. I did not steal the image and had no knowledge it had been used. The only thing I did was register a new domain.

2. I offered to pay a reasonable sum for the image — twice the amount I would have paid if my contractor had properly licensed the image up front. Getty refused my offer.

We can argue all day about how much “damages” a person should pay. But if it’s 10x or 15x the ordinary cost of the image, I think that is WAY out of line. That is extortion.

Semmick Photo October 12, 2012 at 7:15 am

I did read your whole article, and as explained earlier, RM pricing is a lot higher then RF images. Getty came back to you with an offer of 500 dollar which is exactly what the use of the image would cost for a period of 1 year. Still you felt it was extorsion. If you would go over to Alamy and buy an image for your blog, 1/4 page, 1 year, you pay 450 dollar. And in general my comment about theft still holds true. Our images are stolen left right and centre, and everytime they get caught, the excuse is they didnt know. So we start to get a bit immune for that excuse. I am sure you can understand that.

Ryan M. Healy October 12, 2012 at 7:38 am

Your pricing is incorrect. The image in question licenses for $110 for a 2-year period. $580 is still 5 times that amount, and 10 times the cost for the amount of time I used the image.

Chris October 12, 2012 at 10:19 am

see my comment above. You can’t steal a car, bring it back and expect to only pay the cost of a rental.

Ryan M. Healy October 12, 2012 at 10:31 am

Understood. That’s why I offered to pay double the cost of the license.

Robert October 13, 2012 at 7:51 am

Ryan,

Most agencies (aside from Getty, obviously) and independent photographers (e.g. those not represented by an agency) would charge around 4 times the cost of an original license. I’m a photographer with two agencies (one of them is Alamy, the other one is NOT Getty) and personally feel that Getty is being a bit too harsh. However that doesn’t mean that they are not right in pursuing claims in order to protect their photographer’s intellectual property rights (note that Getty doesn’t own the images). I think they are, it’s just their tactics I somewhat object to as it can scare potential customers away.

ruxpriencdiam October 12, 2012 at 4:56 am

I also am a Photog and you being a so called copyright writer should and do know better and all you are trying to do is CYA plain and simple, you are acting like a little baby saying please mommy I didn’t mean to do it I wont do it again dont hurt me! BS.

And when you stated that It is a case of what’s called “innocent infringement.” Part of 17 USC 504(c)(2) says:

You forgot to quote the rest of the article so I will quote the end for you!

Further the court is more likely to find that the infringement was willful, supporting the maximum in infringement damages. “Evidence that the infringed works bore prominent copyright notices supports . . . a finding of willfulness.” Castle Rock Entm’t v. Carol Publ’g Group, Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997)

And be ready I have a good feeling you are going to get slammed by all kinds of Photogs and Illustrators and you deserve what you are going to get from them all.

You are no more then a common thief trying to save your ass like all thieves do!

And you are trying to find ways to justify it which you wont and cant.

Ryan M. Healy October 12, 2012 at 5:22 am

I’m not trying to cover my ass. I’m trying to alert people to what I believe is an abuse of copyright law.

Your comment is written as if I had intent. How could I have any kind of intent if I did not know that the image was used?

I point to my illustration above:

If I’m walking through a store with an acquaintance, and he slips a candy bar into my backpack without my knowledge, who is the thief? Me? Or my acquaintance? If you say it is me, then you have a very twisted sense of what constitutes a crime.

You don’t have to believe what I’ve written, but it’s 100% true. I had zero knowledge the image had been used until I received Getty’s letter. The only thing I did was register a new domain. After that, the guy I hired did everything else.

Also, maybe you missed it… but I AM a customer of iStockPhoto. When I use an image, I make sure I have properly licensed it. So I’m not sure why you’re being so aggressive toward me.

If you really stand behind your comment here, why not use your real name? Is this what you would say to me face to face?

ruxpriencdiam October 12, 2012 at 5:31 am

Possession is nine tenths of the law and you dont know this? Have you just fell of the turnip truck or what?

And if you help in the commission of a felony you are as well as the others committing it guilty as are they!

And the same holds true in the commission of murder even if you unknowingly assist in the murder of someone and dont pull the trigger yourself you are guilty of murder as well.

You might want to brush up on the law some.

Ryan M. Healy October 12, 2012 at 5:46 am

Wow, it’s clear you and I will never see eye to eye on this issue. You are clearly not reading my comments — or not understanding the issue.

ruxpriencdiam October 12, 2012 at 5:59 am

N o we will never see eye to eye.

And to brush up on your copyright law you may want to read this!

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

Semmick Photo October 12, 2012 at 7:20 am

But when the letter came in you chose to ignore it 3 times. So when you get caught with a candy bar you didnt steal, you would refuse to explain yourself as well, and only when being asked the 4th time and threatened with jail time you would answer the store police?

Ryan M. Healy October 12, 2012 at 7:32 am

Incorrect. I did not ignore the letter three times. I removed the image immediately and had a law firm reply to the third demand for payment.

Semmick Photo October 12, 2012 at 8:05 am

‘At first, I thought I could just ignore Getty. I thought they might drop the issue if I waited them out.

Such was not the case. Getty is persistent in these matters.

I got the first letter in July 2011. I then got a second letter in September 2011. I received a third letter in June 2012.

The third letter threatened legal action. At that point, I decided to seek out some help.’

You are right you ignored it 2 times not 3… *smh*

Ryan M. Healy October 12, 2012 at 9:12 am

Semmick – You are incorrect again. I responded to the first letter by removing the image. I ignored the demand for money because the amount was so ludicrous.

Klara October 12, 2012 at 5:23 am

So you ignored letters from Getty for a few months and thought they would forget about you… just ridiculous, very unprofessional behavior.

And good luck starting your own microstock agency. I hope you will make sure that none of the images you are going to offer there are stolen from professional microstock sites. Contributors work very hard to get their work approved there.

Ryan M. Healy October 12, 2012 at 5:43 am

Klara – Please, try to be respectful in your comments. I don’t appreciate the insinuation that I would start a microstock agency using stolen images.

Semmick Photo October 12, 2012 at 7:22 am

Do you have any idea how much time and effort goes into building a photo library? Its not just taking snapshots and sticking them on a website.

Ryan M. Healy October 12, 2012 at 7:34 am

The time/effort would cost far less than dealing with Getty or any other agency acting as they are. It’s a simple cost/benefit analysis.

Denton Rumsey October 12, 2012 at 7:54 am

Smoke and mirrors, dude. Its a completely uneducated, ignorant, and erroneous cost/benefit analysis. If you can call it a real analysis. Only real photographers know the truth… its just a kneejerk post. You obviously have no idea what it takes to build a quality photo library and if you use the photos legally then you pay a fraction of what it takes to build one.

Semmick Photo October 12, 2012 at 8:07 am

Obviously you have absolutely no clue, and thats why you also think why you should get photos cheap.

Ryan M. Healy October 12, 2012 at 9:14 am

Semmick – I don’t *think* I can get photos cheap. I know I can. They are available on all major stock photo sites.

Denton Rumsey October 12, 2012 at 9:23 am

uhm… didn’t you just cancel out what you said above? In regards to producing your own photos you said that “The time/effort would cost far less than dealing with Getty or any other agency acting as they are. It’s a simple cost/benefit analysis.” That is like three posts up, dude. Now you’re saying the opposite?

Ryan M. Healy October 12, 2012 at 9:48 am

Denton – I’m confused. Semmick said I think I should be able to get photos cheap. I said I can. Not sure what you’re getting at.

P.S. All your comments will now be moderated. Same with Semmick’s.

Denton Rumsey October 12, 2012 at 9:53 am

Sure, you really want to curb the dissent, its your playground. Not a surprise here. Anyway, to paraphrase you, given that you did this big cost/benefit analysis you decided that there are no “cheap” photos online and that you can produce your own at far less trouble and cost. Now you say there “cheap” photos available everywhere. Just a major change in tone as I see it. Kinda contradictory. Anyway, I highly recommend that you do go do your own photos. Let us know when you have them out there.

Ryan M. Healy October 12, 2012 at 10:12 am

If I wanted to curb dissent, I wouldn’t have allowed your comments in the first place. What I want to curb are insults and leading questions that assume things that aren’t true.

For example, you claim I did a “big cost/benefit analysis.” What I said was, “It’s a simple cost/benefit analysis.” It is relatively easy for me to snap some photos, upload them to my computer, and then use them on blog posts as needed. I then do not have to worry about accidentally infringing on a copyright.

The cost of licensing images today involves the hazard of accidentally violating a copyright — and then dealing with the consequences. Why take the risk if this is how the photo business is now going to work?

Semmick then implied I have some sort of entitlement attitude. He said I think I should get images for cheap. I responded by saying I *know* that I can get them cheap. Most royalty-free images can be purchased for less than $10. That’s cheap to me.

Semmick Photo October 12, 2012 at 11:45 pm

Ryan, you are correct, you can get photos for cheap. You can get RF images for a dollar and stick them on your blog. I forgot one important part in my comment. I meant you say RM images dont come cheap. RM is a different pricing and licencing model and RM images are a lot more expensive then RF images. Then again this also depends on where the RF image is bought. You can buy an RF image for a dollar and get a RF image on another site for 300 dollar. So the price is also depending on the agency selling the photo. Anyhoo, Getty is an agency with a high pricing structure therefore what they ask as compensation of unlawful use of image is significantly higher as well. The price would also include the costs for their legal team.

Semmick Photo October 12, 2012 at 11:47 pm

Edit: Not I meant YOU say but I meant TO say. Dang its early

Ellie October 12, 2012 at 5:26 am

Just reading some of the responses from the ‘artist’s side’…. I surely hope the photographer received the $1500 for the 1/2 size photo (of the smallest photo available – about a 1″ x 2″) I used on a ‘local’ website that 212 visitors saw in less than 2 months.

Like Ryan, I, too appreciate the value of all artists from writers to photographers and everything inbetween. Yes, I still believe it’s a bit of a scam. A small local website – like I had created – is shocked to think they had done anything wrong. And the whole thing about using a stolen – stolen photo… well, this is all just getting crazy.

I don’t think anyone here is trying to steal anyone’s work. I know I surely wasn’t. But I was stunned to pay $7.00+ per visitor for that 1×2 inch stock photo I used. And they originally wanted $2790 – which would have been a value of over $13 per ‘peek.’ Just sayin’ – :-(

All because I couldn’t find the original receipt… I don’t pull stuff off any site and use anything that I didn’t get from what I think is reputable. But since I’m a one-person biz helping other small businesses, I made an immediate phone call and thus the above outcome. That’s surely easy money for the legal system – a frightening letter, a phone call, work out a ‘deal’ – which by the way was more than I ever made working on the website!!!! – send a check. Wonder how much the artist got!

Semmick Photo October 12, 2012 at 7:27 am

Its not the amount of visitors Ella, its the use of the photo you pay for. And what you describe can cost up to 225 dollar, not 1500, thats a bit much, I agree. For your use you can choose from 20 million RF images, and all you have to pay is a fiver or a tenner.

ansel adams October 12, 2012 at 5:42 am

The most offensive aspect of this story is that Getty wants money for damage but they don’t own rights on a lot their images, it’s the photographer who should be paid for damages and he will never see any cents.

Ryan M. Healy October 12, 2012 at 5:48 am

Good point. The money goes to Getty, not the photographer.

Semmick Photo October 12, 2012 at 7:18 am

The photographer is compensated as per normal commission rates !!

Cynthia October 12, 2012 at 7:40 pm

Hmmmm, interesting issue, though. Does the agency “own” the rights to the recovery or does the photographer? Maybe the artist should be compensated at higher than the normal commission rate. What if the photo,is non-exclusive, ie sold by more than one agency?

Ryan M. Healy October 12, 2012 at 5:52 am

P.S. For all those people who think I’m overreacting, simply search “Getty Images Extortion Letter” and you’ll find many stories from people who feel like Getty is acting unethically.

Also note that ELI Network is run by two people, one of whom is a lawyer who has offered to help victims for less than he might normally make. Why would he do that? Food for thought.

Cynthia October 12, 2012 at 7:43 pm

Possibly the same reason lawyers are going after work protecting IP rights. There’s a surplus of legal talent looking for work. Sorry, couldn’tnresistnthat one.

Matt October 12, 2012 at 6:02 am

I’m confused. I’m a photographer who licenses work on both RF and RM.
Ryan – let me just confirm…..

You registered a new domain and hired someone to do whatever work on it for you?
Did you supply that person/company instructions/guidelnes/brief on what was required?
In those instructions did you specify whether they could use images? Did you specify the type of images they were allowed to use?
Did you not check the site before it went live?
Did you not confirm that use of the content – images or otherwise – was legal?
Or did you assume everything was okay because you employed a reputable person/company?

I do understand your point of view after receiving the letters from the agency, but I do not understand how you can claim total ignorance of the breach. It is/was your domain and you are responsible for the content. I do not think “extortion” is the right word to use.

I also feel that the fees the agency requested covers their damages, not just the license fee that should have been paid. Without the breach of copyright on your domain the agency would not have had to spend time and money in trying to recover the unpaid fees – that is where the damages comes in, consequential costs related to the original breach.

Assuming you are innocent on this I do feel for you, however, as the registered owner of the domain the responsibility does stop with you. I would suggest that you progress your own legal action against the person/company that you instructed to build the domain content and include your related damages costs in the claim. I think then you may find that the agency aren’t actually being that unreasonable.

Please let me know your thoughts as I am genuinely interested in this, and not just from a photographers point of view, I find the whole copyright legal mess intriguing.

Regards

Matt

Ryan M. Healy October 13, 2012 at 8:03 am

Matt – Let me answer your questions by explaining the background of the story more in-depth.

I hired a person to help me create a couple websites. This person is not primarily a web designer — he’s a copywriter like me. He writes stuff for a living.

But he also has knowledge of how to put up a Wordpress site.

First, we started with an idea that I had. We built it out, and it has done reasonably well.

Then, he had an idea that he wanted to pursue. I trust him, so I let him run with it. The domain was his idea. The information was his idea. Everything was his. The only thing I did was “finance” the project so he could get it going.

I later let him “buy” the site by giving me a certain number of hours of work. So we have a contract stating this.

I did not have a contract for the initial site build. And other than reading and editing the copy (which was usually delivered in a Word doc), I didn’t spend much (any) time reviewing the site itself.

Checking copyright on the handful of images on the site didn’t even cross my mind. Plus, I was really focused on client work.

Anyhow, people keep suggesting that I demand payment from the guy I hired (and still work with today). But I’m not going to do that. Two reasons:

1. I feel Getty’s demands are unreasonable.

2. The guy I hired cannot afford to pay the settlement demand. What’s more, he’s already dealing with serious problems that most of us will never have to deal with.

I would share specifics, but don’t want to reveal his identity publicly. Suffice to say, his family has severe health problems. And I would never dump this on him because it would be a shitty, low-life thing to do.

Now, let me talk about damages for a second…

I’m fairly confident Getty has invested no more than about $10 or $15 so far. Here’s why:

1. Getty detects copyright infringement automatically via imaging software. No man hours are expended here, and the cost of the software is amortized over all images sold.

2. I received three form letters that were auto-generated. Maybe $1 to print and a $1 to mail – $6 total.

3. I received a fourth letter with a counter offer. This was sent by an entry-level employee, not a lawyer like so many assume. This maybe cost 10 minutes time, plus paper and postage – another $4?

Getty’s approach is a shotgun approach. So they pursue thousands of people simultaneously at the cost of maybe $10 per case (prior to it reaching an attorney, of course).

So what should damages be for an image that has been improperly used?

Everybody’s opinion will be different. You can’t say the photographer or Getty was physically harmed. It would be hard to argue emotional distress or anything like that. You could argue loss of income.

But rather than try to use human logic to determine “damages,” I prefer to use the biblical standard of double restitution. Ordinary thieves pay double what they stole.

In my case (in which I had no knowledge the image was used), I feel that is quite fair, and that’s why I offered to pay what I did.

Many people who’ve commented here and on the Shutterstock forum don’t believe my story and continue to say that I’m trying to cover my ass and that I’m a liar and a hypocrite. That’s their prerogative, I suppose. But what I’ve written is true.

Don October 13, 2012 at 11:30 pm

“I’m fairly confident Getty has invested no more than about $10 or $15 so far. Here’s why:”

Getty paid $20 milion dollars to purchase Picscout, the software company they use to find infringements. Chasing infringements is tiresome and costly, but a job that has to be done to protect future licensing.

I hope you didn’t pay your mate Oscar over at “Getty Extortion Letter Info” $195 for an entry-level employee to churn out a $4 letter.

http://www.picscout.com/press-releases/getty-images-acquires-picscout.html

Rob Hainer October 12, 2012 at 6:08 am

I understand the threats from Getty are frustrating and the amount they want is way too much, but as a long time publisher you know perfectly well you can’t just grab a photo off another website as the person you hired did. It doesn’t matter if you give credit or link it back. It’s still a violation. You know this or you wouldn’t have previously licensed images from iStock and now Fotolia. It’s unclear to me how you “unknowingly” violated copyright here, unless you’re saying you’re not responsible for the mistake made by the person you hired because you didn’t know where he got the image. Maybe he should pay the fine.

Ryan M. Healy October 13, 2012 at 8:08 am

Rob – I just left a lengthy comment above yours in response to Matt. It may clarify the issue.

11,000 Stock Photos October 12, 2012 at 6:17 am

Ryan
You know you are not innocent.
If you are a “Writer” then you know about copyright law
How do You feel about Plagerizing?
If someone were to “Borrow” one of your “blogs” and put their name on it and made money from it how would You feel?

Ryan M. Healy October 12, 2012 at 9:54 am

Already answered those questions in other comments. My blog posts and ebooks and sales letters have all been stolen before. I’ve never threatened anybody.

Denton Rumsey October 12, 2012 at 6:21 am

I love how your last resort is to point out the multitude of people posting on the net who are upset at getting these letters. So now you are saying its ok because, apparently, everyone is doing it? How many posts on the net are there from photographers finding their own work being stolen? I’ll bet the number is exponentially bigger than the number complaining about getting threats of this sort. There are millions of photogs who have invested painful amounts of time, energy, and money into building their businesses.

Even though it doesn’t represent this case exactly, here’s a little illustration of the frustration:
http://www.xtranormal.com/watch/13158251/shooting-for-free

Yes, this type of “hard to prosecute” crime is rampant and the big agencies are just the leverage that is needed by the individual photographer to stamp this sort of theft out. It will never be resolved as a serious issue while the only penalty is a slap on the wrist with a cease and desist letter. Own up to your mistakes, make things right, go on with your life.

Ryan M. Healy October 12, 2012 at 9:57 am

That’s not a last resort, Denton. It is an observation. Many people feel the way I do about Getty’s settlement demand letters. The people who feel the settlement amounts demanded are fair are, by and large, photographers.

11,000 stock photos October 12, 2012 at 6:36 am
Sabrina October 12, 2012 at 8:37 am

Let’s create a hypothetical situation in which someone mistakenly/misguidedly places a Getty image into the public domain.

He/she places it into a lesser-known stock photo agency or photo-sharing site, permitting royalty-free usage.

Should Getty go after the person/company who placed the file in the public domain or everyone who uses the file under the mistaken (but understandable) impression that the file is available for royalty free usage?

If Getty goes after everyone who uses that file, demanding 5x and 10x compensation, is that extortion or should that be considered reasonable?

Could it be that companies like these are simply exploiting a copyright loophole that allows them to then exploit a chain of innocent parties beyond the extent the law intended?

And I can’t help but wonder when I read yet another story about files obtained (apparently) legally yet claimed by these companies… who exactly “mistakenly” places these images in royalty-free stock sites? (No – not everyone accused has swiped the image in question off someone else’s site). Could someone(s) be mischievously seeding collections with these files?

Denton Rumsey October 12, 2012 at 8:48 am

This has been established throughout the blog as neither a case of mistakenly using a copyrighted photo or using a file that is wrongly represented and sold under false pretexts. Either way, your hypothesis of someone “mistakenly” stealing an image to resell on a different stock site just doesn’t seem to hold much water based on its own merits.

Ryan M. Healy October 12, 2012 at 9:18 am

Great questions, Sabrina.

Getty recently purchased the site SXC.hu, which offers royalty-free images for free.

I’ve used SXC in the past, and I’m now very concerned that Getty owns it. I’m afraid they may try to establish copyright on all those images and then retroactively pursue anybody who has used them or continues to use them.

Denton Rumsey October 12, 2012 at 9:21 am

So it is all about free images then. Good luck with that.

Ryan M. Healy October 12, 2012 at 9:25 am

Uh, no. I’ve paid for images from iStockPhoto multiple times. Depends on how the image will be used.

Denton Rumsey October 12, 2012 at 9:30 am

So you do pay for some if you feel its worth it then?

Ryan M. Healy October 12, 2012 at 9:50 am

If all I need is a small thumbnail, I will try to find one that is free to use, in the public domain, etc. If I need a better picture, I’ll pay for it. Pretty simple.

Denton Rumsey October 12, 2012 at 9:56 am

Except in this case.

harry October 12, 2012 at 11:18 am

there ARE NO free ones. Maybe a pic of the first man on the moon perhaps. But how do you even know?

Rox October 12, 2012 at 12:39 pm

http://www.bing.com/search?q=free+stock+images&go=&qs=n&form=QBRE&pq=free+stock+images&sc=0-0&sp=-1&sk=
Um, yeah. There’s only a bazillion free stock photography sites out there. Good luck! LOL
Shutterstock’s tagline? Over 20 million stock photos, illustrations, vectors, and videos
Won’t be able to find any there either!

Cynthia October 12, 2012 at 8:00 pm

Sabrina, if I understand your post correctly, you seem to.be equating royalty free with free to use. Royalty free is an unfortunate term. Royalty fees are recurring fees based on sales or usage. For example, an author typically receives rpyalties based on the number of books sold. RF licenses sell limited rights to use a photo without recurring fees.

I sell RF photos through a couple sites. You can’t mistakenly submit them. You have to complete various forms and verify that you are the creator of the work.

There’s so much confusion out there, it is common for people to not understand the applicable law. There are also people who intentionally violate Copywrite and they make my blood boil. I don!t think that’s what happened here. Hopefully this blog will help to clarify what the legal.issues are as our antiquated IP law stumbles into the 21st century.

John Lenaghan October 12, 2012 at 9:16 am

LOL, it looks like you’ve stirred up a hornets’ nest Ryan. You must have been linked to from a photography forum or something ;-)

I can see it from both perspectives. I understand how you must feel but I can also see it from the point of view of the photographers who have commented (albeit without the same vitriol as a couple of them!)

You said this in one of your responses:

“If I’m walking through a store with an acquaintance, and he slips a candy bar into my backpack without my knowledge, who is the thief? Me? Or my acquaintance? If you say it is me, then you have a very twisted sense of what constitutes a crime.”

I think that’s a little different because you aren’t connected to the theft in any way. This is more like you hired a contractor to go and buy you a candy bar, and he wound up buying it from someone who had stolen it. Whether you stole it or not, you still wound up in possession of stolen property (meaning in the hypothetical candy bar scenario – I don’t think for a minute that you’re a thief).

Your offer seems reasonable to me, but I suspect that Getty is not only out to get as much money as they can from these cases, they’re also wanting to put a scare into anyone who might consider using their images without proper licensing.

I’m pretty careful about the images I use, so I’ve hopefully never used one that wasn’t licensed properly. But this is certainly a sticky area where you have to be super careful that you don’t unintentionally make a mistake.

It’s one of the reasons I avoid buying templates or anything else that has images in it from places like the Warrior Forum. There’s just too many unknown factors to be sure everything is licensed properly.

Ryan M. Healy October 12, 2012 at 9:22 am

Thanks for your comment, John. Yes – you guessed correctly. Somebody shared my post in the Shutterstock forum. Now a whole bunch of pissed off “photogs” are coming here to air their grievances against humanity.

I think Getty’s approach is completely wrong. It will ultimately scare people off from doing business with them at all.

I will never license an image from them again. Same is true of anybody who’s gotten a settlement demand letter. It instantly terminates the customer relationship.

Basically, Getty is pursuing short-term profits without regard for what will happen to their customer base over the long term.

John Lenaghan October 12, 2012 at 9:36 am

I suspect they don’t really care about us “small fish” that much. They deal with some pretty big accounts who I’m sure are paying FAR more than the amounts they’re asking from you.

You’re going to stop buying your images from them, and in your case they might wind up in the red over time but a lot of people probably wouldn’t have bought more than a handful of images through iStockphoto anyway.

Getting $1500+ once probably puts more money in their pockets than they would have made over the life of many of those customers.

Ryan M. Healy October 12, 2012 at 9:53 am

That’s probably true. At the same time, the negative publicity generated by people like me may hasten Getty’s demise.

Denton Rumsey October 12, 2012 at 9:38 am

How can you “never license an image from them again” if you never licensed an image with them in the first place?

Ryan M. Healy October 12, 2012 at 9:52 am

Denton – You are asking stupid questions because I’ve already clearly stated in the original article and in the comments that I HAVE LICENSED MULTIPLE IMAGES FROM iSTOCKPHOTO.

Congratulations – You are now on a blacklist. All future comments will go to moderation first.

John Lenaghan October 12, 2012 at 9:57 am

Ryan said he has licensed images through iStockphoto, which is owned by Getty.

Some of the comments being left here seem a bit disingenuous. It seems to me that Ryan made it clear that he normally pays for a license to the images he uses. This particular case happened because a contractor used an image he shouldn’t have.

Whether or not Ryan is ultimately responsible for that is one thing. Calling him out as some sort of chronic image thief who wants everything for free is another.

Ryan M. Healy October 12, 2012 at 10:04 am

Thank you, John. Good to know there are some sane people reading and participating in this thread. I was beginning to feel like I was surrounded by crazies. :-)

Harry October 12, 2012 at 10:48 am

So people are “crazies” now because they give divergent points of view that do not support your side of being responsible when people use the images of other photographers for commercial gain?

Rox October 12, 2012 at 12:30 pm

Ryan I’m sorry you have all these psycho crazy comments about you being a jerk. I have known you as a friend for almost 20 years & know without a shadow of a doubt that you would never knowingly, willingly steal ANYTHING! You’re a great guy & you are getting the shaft from an unfortunate situation. I am a web designer & found myself in a similar situation. Yes, technically I may have done something wrong that I did not KNOW was wrong in regards to copyright (I truly believed it was public domain that allowed for fair use) that the people who hired me ASKED me to do & now I’ve refrained from doing any new web work for over 6 months. It was a nightmare & I certainly “learned my lesson” although the lesson I really learned was if you accidentally piss off the wrong person it’s expensive, it has nothing to do with right or wrong or the law. I am also a graphic designer & photographer & have TENS of THOUSANDS of images I have created over the last decade using illustration software & photography equipment. I created them because I enjoy doing it & I hoped to one day make some money. The “cost basis” for me doing those things has nothing to do with legal damages & it has nothing to do with the value of that image. You don’t price art on the value of the materials it’s created with, you price art on the value of it’s artistry & other intangible personal opinions. Do yourself a favor, turn off the comments. This is YOUR site, contrary to popular belief not everybody has the right to post crap on your site if you don’t want them to! Good luck. :)

harry October 12, 2012 at 1:08 pm

This is honest debate. Ryan’s allowing divergent views is why this country is so great. You might not agree with everything written, but to delete all comments except for his point of view would be an even larger problem for him , in my opinion.

Photographers have to have some protection.

Established copyright laws do offer a measure of protection.

When people use the photos of other people for their own purposes, and do not compensate the actual rights owner, then that is not fair to the originator of the content.

Nobody should disagree with that statement.

And then when it does happen lawyers have to get involved and consequences are usually experienced.

Ryan M. Healy October 12, 2012 at 2:07 pm

Rox – Thanks for vouching for me. I really appreciate it. :-)

Since sharing my story, I’ve learned there are quite a few people who’ve somehow or other become the recipient of a settlement demand letter. It’s common already, and it’s getting worse.

I considered shutting off comments, but my bigger purpose here is to alert people to the risks of using ANY form of licensed image that comes from Getty, Corbis, or Masterfile.

They are casting a wide net, which includes (in some cases) their own customers who’ve legitimately licensed images — but who are being issued a settlement demand anyway.

In other words, by merely doing business with iStockphoto or Getty (or the others), you are putting a target on your back. Even if you properly license the image to begin with, you may be asked to show proof of license a few years down the road.

So I want people to know how this “game” works so they can opt out of it before they accidentally get sucked into it.

Jim October 12, 2012 at 9:55 am

Sounds like Getty wants to have a monopoly on EVERY image on the internet. Yeah, like that photo’s value is $1065. Okkkkkaaaaay Getty. Sounds like a good opportunity to start a competing photo service that satisfies all of Getty’s innocent victims.

Can’t stand bully companies who hide behind lawyers and legal threats.

harry October 12, 2012 at 11:15 am

then don’t use their images for free and expect them to say okay, no problem.

Cynthia October 12, 2012 at 8:14 pm

Gotta agree with Harry on this one.

Walt Goshert October 12, 2012 at 10:41 am

Yes, The Carlyle Group.

And…

The same Chris Dodd who Carlyle Group backed to push through the joke of financial reform.

The same Chris Dodd in the middle of pushing SOPA, an insulting attempt at fairly enforcing online piracy. How easy it is to fail to connect the dots on this old school business with political ties strong arm crap.

http://peureport.blogspot.com/2010/08/carlyle-group-funds-luxury-trips-for.html

Getty… just more crony capitalism destroying how the free market works.

Regardless of whether Ryan was right or wrong in this particular case,
this whole approach sure smells like an extortion tax small businesses are strong-armed into paying to the large and connected corporations and their lawyer henchmen.

Professional Photographers? Is this truly the best way to protect your work?

Looking for a RF photo of a pawn, please.

Ryan M. Healy October 12, 2012 at 1:43 pm

I was not aware of the Chris Dodd/Carlyle Group connection. Makes me like Getty even less.

Harry October 12, 2012 at 10:56 am

If you get caught by the police with a candy bar in your pocket, then you are the one that has explaining to do. You may know 1000 percent you did not take it but your friend put it there. So you are not a thief in that case in God’s eyes. But in man’s eyes you would not get off that easy.

However, photos are not free. If anybody is foolish enough to think they can find “free photos” for their website or business, then they are going to get in hot water eventually.

Take them pics yourself or buy them from photographer directly. But to just think it’s free is a bad idea.

John Lenaghan October 12, 2012 at 11:26 am

Where in all this does Ryan say he’s looking for free photos?

It’s starting to look like a few of the commenters here have an axe to grind. We get it – people use your photos without paying for them and you don’t like it.

Ryan is offering to pay for a two-year license for an image he used for 8 months. Getty may not be willing to settle for that, and that’s their prerogative.

But every time you criticize him for wanting free images, you’re making it look less like you’re discussing the topic at hand and more like you’re mad at the world for using your images without paying for them.

harry October 12, 2012 at 11:40 am

Try reading his words.

Ryan M. Healy October 12, 2012 at 9:50 am
If all I need is a small thumbnail, I will try to find one that is *free* to use, in the public domain, etc. If I need a better picture, I’ll pay for it. Pretty simple.

(emphasis mine)

He said he looks for free photos for smaller use. His words not mine.

But I was also talking about it in general.

If people THINK they have found a free image online, they will often find out that is not true. And this is what happens.

Gettey is not breaking any laws. John is breaking copyright laws.

John Lenaghan October 12, 2012 at 11:59 am

I am?!? I assume that’s a crossed wire, LOL.

I agree completely that too many people think they can just grab images from anywhere online and use them wherever they want. I’m not a professional photographer, but I imagine Google Images is one of the worst things that ever happened to them.

And it’s not just images, it’s pretty much any content that’s on the internet.

There are free-to-use images, however. Many images are licensed under Creative Commons, and can be used freely as long as you follow the licensing (attribution, etc.) There are also images that are in the public domain and images that are distributed royalty-free, such as the aforementioned SXC.hu.

As someone who isn’t a professional photographer, am I missing something? Are there in fact limitations to those types of photos that mean I can’t use them, even though many places state clearly that I can (such as SXC.hu)?

harry October 12, 2012 at 12:10 pm

whoops sorry. Ryan broke the law not you John. :o

My point is people often THINK they get free images because they are found on Google images. But often they are not free at all.

And most people just take them anyway without even looking to see.

But Ryan did say he looks for freebies and that is often what leads to not being free and then lawyer letters… :(

I actually think Ryan is probably a good guy. This blog and other comments shows he wants to be balanced.

Seems like his web designer could be sued for providing illegal images.

And that’s what has to happen sometimes. He is the end user and the buck always stops with the end user, I guess.

Ryan M. Healy October 12, 2012 at 1:48 pm

Harry – When I look for a free image to use, I certainly do NOT go to Google or Bing. As I mentioned before, I go to SXC.hu. That is a site that offers free images.

When I say I look for free images, that does NOT mean I go try to find a way to get a paid image for free.

Sometimes I’ve not been able to find an appropriate image, in which case I’ve licensed one from iStockPhoto. A few of the images that rotate next to the ads between blog posts are ones I’ve licensed.

Harry October 12, 2012 at 7:33 pm

Thanks for clarifying. Unfortunately, many people looking for free images go to Google images. And then the s__ hits the fan.

ruxpriencdiam October 12, 2012 at 11:07 am

I doubt that anyone here other than the photogs know and understand what RF means!

.

Takiyah Noble October 12, 2012 at 11:22 am

Ryan,
John Lenaghan hit the nail right on the head when he wrote, “This is more like you hired a contractor to go and buy you a candy bar, and he wound up buying it from someone who had stolen it. Whether you stole it or not, you still wound up in possession of stolen property..”

The most important part being: You still wound up in possession of stolen property.

Your Getty Image story reminds me of a time when a neighbor was a victim of license plate theft. The thieves had obviously stolen two sets of license plates. Her plates and someone else’s plates. They took someone else’s stolen plates and attached them to her vehicle (and Heaven only knows what they did with hers).

Anyway, when she was pulled over for driving her car with stolen license plates on it and confronted by the police officer, he wasn’t too understanding of her story that she simply didn’t know she was in possession of stolen plates. She admitted that she never looks at her license plates because she just jumps in her car and goes about her day and if asked to recite her license plate number on the spot, she would fail that test miserably.

She figured that since SHE was a law-abiding citizen who didn’t associate herself with others who weren’t law abiding citizens, there would be no reason to ever worry that she would be associated with any crimes… directly or indirectly.

As we talked about it, I asked, “Would it have looked any better if you had noticed the stolen license plates on your vehicle, walked into a police station and said, ‘Um… officer, I just noticed that my license plates were stolen and these license plates ended up on my vehicle instead.’” I’ll spare the other readers of the cynicism in our conclusion.

It is typical that the average person who obeys the law doesn’t think about how to protect themselves from unwillingly becoming a victim of those who don’t obey the law.

I think what people forget is that theft can have more than one victim. And those victims are every unsuspecting person who is unknowingly a part of the theft. My neighbor didn’t make it a habit to wake up everyday and check her vehicle to make sure her plates weren’t stolen. The police officer told her she should have. You didn’t check your blog to make sure your images weren’t stolen. Both of you were guilty of not protecting yourselves from thieves, and a result, both ended up with stolen property in your possession and suffering consequences for it. But to call either one of you the actual thief is just plain silly.

The dialogue between you and the photographers seems to be centered around whether or not you should take accountability for theft. But, really, it’s a matter of you taking accountability for not protecting yourself from theft…. for which you already took accountability.

Your post speaks to this accountability or you wouldn’t have offered to pay anything. Your payment offer more or less said, “I am accountable for not appropriately protecting myself from a thief and consequently I ended up being in possession of stolen property; therefore, I will deal with the consequences of being in possession of stolen property.”

You are not a thief. You were ONE victim of a thief (the photographer being another); unfortunately, not proactively protecting yourself from thieves has consequences too.

On another note, do your contracts not have an indemnification clause?

AnonPhotog October 13, 2012 at 7:30 am

+1 on the indemnification clause.

As publisher Ryan should have gotten assurances from his contractor that he/she did in fact own the rights to use all of the material developed for Ryan. In this case, Ryan would then go after his contractor for lying to him and recover the money.

Regarding the size of the settlement, Ryan initially offered to pay 1x the actually licensing cost and then offered 2x. Getty initially wanted 6x but settled for a little more than 3x. In cases like this, there may be a wide range of what is an acceptable payment for infringing uses. 3x is not unreasonable in my mind.

Ryan M. Healy October 13, 2012 at 8:15 am

If I hire web design in the future, I will use an indemnification clause for sure.

Your numbers are a little off, I think. Cost of 2-year license was $110 in October for a web editorial format. Therefore, 8 months use would be about $37.

I offered to pay $157, which is 4x the cost for the amount of time I used the image. Getty wants $580, which is nearly 16x the cost.

Back in July, it was $157 for a 2-year license (they’re using dynamic pricing, it seems). Based on that price, my use of the image for 8 months would have cost $52.

That means Getty’s original demand was 20x original cost, and their counter offer was still 11x original cost.

Takiyah Noble October 12, 2012 at 11:26 am

Question for the photographers:
How do you determine the value for your images? Is there an industry protocol?

harry October 12, 2012 at 11:44 am

You can find instant Getty quotes online under rights managed and then you type in the type of usage, how long etc. There is also photo quote pro used by many photographers for stock quotes. The rates change often and are updated when they do.

Takiyah Noble October 12, 2012 at 11:27 am

Well, I guess I had two questions… LOL!

Matt October 12, 2012 at 11:56 am

Wasn’t it me, a photographer, that first said about it being the contractor at fault…..?

We’re not all ogres you know!

Ryan M. Healy October 12, 2012 at 2:09 pm

Yes, Matt, you were the first. :-)

Kaboom October 12, 2012 at 12:16 pm

Interesting comments from selected folks – Let me reframe the issue.

Let’s say you’re visiting a respected retailer and select and purchase a small sticker of some sort. Just for fun, let’s say is one of those yellow “Have a Nice Day” smiley faces from days past.

You attach the sticker to the bumper on your car, your computer, your briefcase, forehead or whatever.

Poof, you get one of these copyright infringement letters demanding thousands of dollars and pay-up or else. I believe anybody using a little common sense realizes that you would be an innocent infringer.

What have you done illegal? How much time and effort does one put into verifying the copyright authenticity of this sticker? How much time, money and effort should one expend in resolution?

I’m positive that there are real and intentional copy right infringers in the world, however an innocent infringer is – well innocent. Copyrights for the original works owner should be protected, however so should the innocent.

I am familiar with this organization and it is my observation that Getty Images organization in the cases I’m familiar with appears to be more about the money than protecting copyrights.

If Getty Images business model was about selling images, they would price their product accordingly. Moreover, there would be a real effort to minimize availability on non-copyright identified images on the web.

Many if not most of their images are not competitively priced by any measurement I’m aware of. In some cases, I could hire an army of photographers and get a large pile of unique images for less expense. Or, hire a professional and get precisely what I want. Moreover, there are multitudes of resources offering free and royalty free images at no cost.

Getty Images business model is about extracting revenue from copyright infringement innocent and guilty alike and without such, their business would collapse.

harry October 12, 2012 at 1:00 pm

Nonsense. Getty images is all about stock photos. THAT is what they do. (You must have been caught “borrowing” images too.:) You see Getty’s name all over the news and world. Photo by Getty image.

Photographers that sign up with Getty want to be sure that Getty is not allowing the public to just grab and use their pics anytime they wish. I’m glad they protect photographers rights.

If you are caught stealing then you should pay more than if you asked beforehand.

If you want to call Getty collectors extortionists, then many infringers can rightly be called thieves.

Kaboom October 12, 2012 at 2:51 pm

harry Nonsense right back at you! Judge, jury and executioner I see.

Maybe you should change your username to “Dirty Harry”.

I stole nothing, nada, not even close. I received a single image from a respectable software supplier.

The reframed story is exactly as stated in my case, nothing disrespectful to the original copyright owner, malicious, dishonest, yada, yada.

Copyright owners and their works should be protected (I repeat protected) and innocent infringers should also be protected if proven innocent

Intentional copyright infringers should pay – I repeat PAY their fair share.

As far as “Photo by Getty image.” I have never seen, until now. I did Google “Photo by Getty image”; yes it does appear that they actually sell images – mostly to Yahoo. See – I get facts…

However, I suspect yahoo gets a better deal than listed on their website. If not, Yahoo should just go ahead and shut their doors.

As far as Getty collectors being “extortionist” – I see nothing to discredit that perspective.

Cynthia October 12, 2012 at 6:46 pm

Getty Images is frequently credited in print media. Myes, their images can be high priced, but they work with the best. The average blogger would have no reason to pay the higher cost for these images as the typical image size and resolution they post would not show a difference in quality over cheaper images. This is a vast over generalization. Point being, they do indeed sell images.

Ryan M. Healy October 13, 2012 at 7:27 am

I would be interested to see how much of their revenue comes from the licensing of images vs. how much comes from collecting settlement demands.

Unfortunately, the company is private, so it would be hard to get those numbers. But if the company ever went public…

Harry October 12, 2012 at 8:08 pm

Kaboom October 12, 2012 at 2:51 pm
Quote: “harry Nonsense right back at you! Judge, jury and executioner I see. Maybe you should change your username to “Dirty Harry”.”

My reply:
Okay, Dirty Harry it is. As you can guess, it’s not the first time I’ve heard that. :)

Quote: “I stole nothing, nada, not even close. I received a single image from a respectable software supplier.”

My reply:
Okay sure. So were you contacted by Getty images? Somehow I bet you were.

Quote: “The reframed story is exactly as stated in my case, nothing disrespectful to the original copyright owner, malicious, dishonest, yada, yada.”

My reply:
If photos you did not take with your own camera were on your website, then you need someone to explain whose image it is. And if you don’t do just that, as the website owner (responsible for all content uploaded), then chances are you will here from someone, at some point, if those images belong to another person.

Quote “Copyright owners and their works should be protected (I repeat protected) and innocent infringers should also be protected if proven innocent”

My reply: Sorry, but the fact is that it’s not quite so “innocent” just because you DON”T KNOW if an image belongs to someone else. YOU (the website owner) has an OBLIGATION to make sure to find out the source of each image on your commercial site. Not doing that does not classify you as “innocent” by any means. It puts you into the negligent and or careless/reckless category. And attorney letters come along to correct your carelessness. Just telling you how it is.

Quote “Intentional copyright infringers should pay – I repeat PAY their fair share.”

My reply: And how is $500 (Getty’s offer) not fair? And who are YOU to decide what’s fair anyway? After all, you were the ones reckless and careless to begin with.

The truth is that once attorneys have to get involved, it will always be costlier than if no attorneys get involved which is what would happen if you come in through the front door to begin with.

And when photographers try collecting without attorneys, people laugh and say get lost punk. When attorneys send letters it get’s their attention. And (speaking of dirty Harry) when you laugh at attorneys and say get lost to attorneys, most attorneys say, “Go ahead, make my day.” and then you get more letters, higher amounts and even sued. It’s all called common sense 101.

Quote “As far as “Photo by Getty image.” I have never seen, until now. I did Google “Photo by Getty image”; yes it does appear that they actually sell images – mostly to Yahoo. See – I get facts…”

My Reply: Then you are blind or don’t even live in USA. So many news and sports stories all over country say Getty Images on the pics. EVERYWHERE!!! They are the largest in US if not in the world. You obviously don’t know anything about Getty. I have no time to teach you this stuff either.

Last quote “As far as Getty collectors being “extortionist” – I see nothing to discredit that perspective.”

My reply: Of course you say that. It sounds like you got in trouble with Getty. You were caught!

And I see nothing that proves that people using other photographers photos on their own websites, for free, are not thieves or at the minimum careless and reckless in doing so and deserve getting the dreaded letter from whoever the images rightfully belong to.

The law is on the side of Getty and the photographers. And neither this blog or any other site will change that. Letters will keep going out to infringers. And the infringers will claim it’s not fair and list all kinds of excuses.

Just simply do not take images that are not yours.

Kaboom October 13, 2012 at 5:56 am

Harry, your comments defy logic, common sense, fair play, and demonstrate the incredibly narrow and close mined view that all are guilty.

Your quote “The law is on the side of Getty and the photographers”

My best guess is that you are a Getty shill.

Tom October 13, 2012 at 10:06 am

Could not agree with you more Harry. Also, to add, Getty is the BEST stock agency on the planet, and has the best collection of images anywhere. As a photographer when someone steal my image I charge them triple the original fee and it is stated on my website. I am sick and tired of people stealing my images.

harry October 13, 2012 at 12:13 pm

Thank you Tom. Kaboom just does not want to open his/her eyes to the truth here.

No, Kaboom, I am not a Getty shill nor have anything to do with Getty.

Simply don’t take the photos of other people for your own uses. And make sure you license photos from reputable sources. And if they have given you a stolen image, then make sure to follow up with them directly to recover whatever damages you had to pay.

Kaboom October 13, 2012 at 1:54 pm

“Simply don’t take the photos of other people for your own uses.”

Agreed .. Copyright infringment is wrong.

Let’s move on to something more practical.

I just did an image search within the software package I purchased and is licensed to ME that contained the problematic image.

I found 1,134 images total…

To not get caught in the innocent infringer trap ever again – how does one verify copyright authenticity of all of these images?

How about the 2,045,326 images on my computers hard drive?

Harry October 13, 2012 at 3:56 pm

Then take them yourself (problem solved).

Or license from a well known and established local photographer (problem again solved).

Or License them from a well known national/international photographer and maintain good records (problem solved three times now).

Or find a reputable stock agency and license from them as well as keep all records. (problem solved a fourth time).

What’s so difficult about ANY of those ideas?

Ryan M. Healy October 13, 2012 at 4:02 pm

Harry – It seems you’re missing the point here, too.

“Kaboom” bought a software program that apparently includes 1,134 images that he is supposed to be licensed to use. He would probably never license that many images individually.

And since he’s already purchased the software (which was supposed to give him a license to all the images), how does he verify copyright on all 1,134 images? That is the question.

Harry October 13, 2012 at 4:48 pm

If the software company is reputable, then you can have confidence that there is nothing to worry about for the listed usage. Microsoft, Photoshop are just two examples. However, most programs, that I am familiar with, will not allow you to have absolute rights to use those images commercially to sell or promote ‘business services’. They are often meant for personal use; screen-savers, birthday parties etc.

Now, if that software is from some third party type of discounted source, or out of this country origination, then you are taking your chances. Any my guess is that’s probably what happened to you both. You rolled the dice … and lost.

Why not simply tell us who you bought your images from here and now? Since they screwed you both over, surely you have no reason to protect them now and in fact should want to tell us (and everybody reading) who it was that sold you Getty images, in their software packages, to warn others now since you both say that is why you are all here and why you are even allowing us to participate.

mark higgins October 13, 2012 at 12:07 am

“extortion”??? It was a letter of demand. You were caught ,you knew you were wrong. You should have t pay their legal fees. You took a chance and failed It is like not putting money in a parking meter. You probably won’t get caught but if you do it costs a lot more in the fine than the parking meter would have cost. WHo do you thinks pays for the compliance section?? Rightly it should be those that are caught not the photographer.

Ryan M. Healy October 13, 2012 at 7:25 am

Mark – Your comment sounds just like many others that have been posted here. Here is what extortion means (quoting from Wikipedia):

“The term extortion is often used metaphorically to refer to usury or to price-gouging, though neither is legally considered extortion. It is also often used loosely to refer to everyday situations where one person feels indebted against their will, to another, in order to receive an essential service or avoid legal consequences.”

I believe the amounts of money demanded by Getty fit this definition of extortion. Some people agree with my view, others don’t.

Cynthia October 13, 2012 at 6:54 am

Kaboom, the law IS on the side of Getty and the photographers. You can agree or disagree with the law. You can feel that the damages claimed are excessive. But copywrite law is quite clear that the photographer has a right to recover in the case of copywrite violation and Getty is acting as the agent of the photographer in this case. That doesn’t mean that Ryan (or any other violator) has no right to dispute the damages. But legally Getty has the advantage if they have proven the violation. Calling someone a Getty shill for pointing that out doesn’t change the facts.

Kaboom October 13, 2012 at 9:56 am

Good post Cynthia,

My viewpoints at this point are very new. I am without a doubt an innocent infringer; I have piles of proof to demonstrate as such. I have only recently become aware of minimum damages that can be assigned to innocent infringers.

I will be pressing the software supply company whom I got the original file from for copyright proof.

“But legally Getty has the advantage if they have proven the violation.” Yes, I can see that if they do indeed own the copyright, however this new knowledge does not blunt my outrage as to the accusations. I will do what is right and hopefully fair in the eyes of the original author and obey the law as written and interpreted.

I have always lived, played and worked within the rules and I can’t speak for others but I do feel entrapped.

“Calling someone a Getty shill for pointing that out doesn’t change the facts.”

Of what? Understanding one’s viewpoint, motive, working knowledge is important in understanding arguments and points.

Eventually, there will be other innocent infringers reading this blog.

Ryan M. Healy October 13, 2012 at 10:11 am

“Eventually, there will be other innocent infringers reading this blog.”

That’s my hope.

Furthermore, I hope I can dissuade people from ever doing business with:

Getty Images
iStockphoto
Corbis
Masterfile
Jupiter Images
Superstock

And any other company using these settlement demand tactics.

Cynthia October 13, 2012 at 4:23 pm

Kaboom, Agreed, there are many people that inadvertently run afoul of Copywrite laws. I once hired a web designer, checked references, verified with him I would own Copywrite, etc. reading this blog scared me a bit. I value IP and would never intentionally violate copywrite law. But what if the people that built my site were lesss ethical? I posted a link to a link to this discussion on my personal page to encourage people to go local with this sort of project so they know exactly who is doing what on their site.

I’m a photog and side with Getty to some extent. But I do understand that with so much available for free on the web people can make mistakes. I am glad that some agencies will protect their artists. I think it would be better if there were more proactive and educational prevention before the fact occurs.

Ryan, While I don’t agree with your position that Getty committed extortion I have to thank you for allowing this debate on your blog.

Rick October 13, 2012 at 8:14 am

It seems to me this all can be boiled down to one simple point. Stock agencies like Getty feel they need to charge a penalty otherwise people will just use a simple “use now, pay later (if caught)” stock buying method.

I don’t like Getty but don’t you feel it makes sense to ask more for the above reason?

Ryan M. Healy October 13, 2012 at 8:22 am

Rick – I have never argued that I shouldn’t pay a penalty — only that I shouldn’t have to pay the exorbitant settlement that Getty is demanding.

Here is the analysis I just posted above:

Cost of 2-year license was $110 in October for a web editorial format. Therefore, 8 months use would be about $37.

I offered to pay $157, which is 4x the cost for the amount of time I used the image. Getty wants $580, which is nearly 16x the cost.

Back in July, it was $157 for a 2-year license (they’re using dynamic pricing, it seems). Based on that price, my use of the image for 8 months would have cost $52.

That means Getty’s original demand was 20x original cost, and their counter offer was still 11x original cost.

If I paid double restitution based on July’s price, that would be $104. If they had asked for this much, I would have paid it immediately.

If I paid quadruple restitution based on July’s price (another person said most photographers charge 4x the price for infringement), then that would come to $208.

In my mind, I would have paid up to $250 to make the problem go away — and what I think is fair is more like $100.

But Getty has asked for FAR more than that.

Semmick Photo October 13, 2012 at 8:46 am

Ryan, you cant purchase an editorial licence for an image for commercial use. Getty is charging you pricing for commercial use of the image, not editorial. You cant have an editorial image or editorial use on a commercial website. I checked the pricing earlier at another agency would charge 450 dollar for the use of the image. Getty isnt far off.

I just checked Getty and an editorial image for a website for 2 years is 70 euro. A similar image however for commercial use would cost 610 euro. There is a lot of difference in licences and they all come with different prices.

Ryan M. Healy October 13, 2012 at 9:21 am

Editorial and commercial use is an extremely gray area (at least, from my perspective).

Nearly every website on the entire Internet is commercial in the sense that it seeks to make at least some money to defray the costs of domain registration, hosting, etc. If a website offers advertising space, but publishes editorial content to build readership, is it a commercial website?

If a blogger ads Google Adsense ads to his site, is it now a commercial website?

At exactly what point does a website become commercial?

And what if a website offers a product for sale on one of its pages, but uses a picture on another page that does not directly offer the product?

I see a LOT of gray area here.

Furthermore, in order to license a Rights-Managed image from Getty, you have to select which countries will see the photo. How could a website owner possibly know this? I’ve checked stats on this blog, and I’ve had visitors from 150+ countries in a single year.

In my view, RM images are a terrible idea for the end user because there are far too many “what ifs” that could come back to haunt you.

I can imagine it now… your site is targeted to Americans, but then somebody from Belarus stumbles on your site. Getty shows up. “We’re sorry, you only licensed this image to be seen by American people. But somebody from Belarus saw the image on your site. Now you owe us $1,000.”

Semmick Photo October 13, 2012 at 9:47 am

No, they ask for your TARGET audience. Your target audience is the USA, so thats what your purchase. Otherwise every website on the internet needs to tick all countries in the world when buying a licence. Its not all as evil as you make it out to be.

Rick October 13, 2012 at 8:39 am

OK I understand, but I don’t think you can use the pro-rated argument and should rather base it on a typical usage time (I have no idea what that is but 2-years sounds typical).
Otherwise someone who only had the image online for a couple weeks could base their price penalty on 1/50 of the two-year lease.

Rick October 13, 2012 at 8:57 am

Sorry the above comment should have been sent as a reply to Ryan’s, and not a new post.

Ryan M. Healy October 13, 2012 at 9:09 am

Actually, 2 years is the maximum length of time offered.

In my view, a time-based license is ridiculous, especially for online use. Some of my sites have been online since 2004. Imagine if I had to keep renewing licenses every two years… totally impractical.

Semmick Photo October 13, 2012 at 9:43 am

Photos can be licensed for 25 years. Editorial photos are maxed at 2 years, commercial photos are not.

Rick October 13, 2012 at 10:04 am

Impractical in some sense but not if you are a photographer and value your images and want to license them in a Rights-Managed way. For those of us, any unauthorized use devalues the image.

Oscar Michelen October 13, 2012 at 9:34 am

As the legal adviser to a website devoted to helping folks who have received these extortionate demand letters and an attorney who represents many individuals and entities who are owners of copyrighted material, I want to say that no one including Ryan is condoning copyright infringement. But when someone unknowingly uses a copyrighted digital image, a company requesting $1,000 for this use is being extortionate because they are asking for far more than they will receive in a court of law and far more than what the image is worth. Getty does not register its images with the copyright office, therefore they are not entitled to legal fees, yet their demand letters threaten that they will seek legal fees. The letters sent by them and their cohorts also state that statutory penalties can go up to $150,000 per infringement but that only applies to registered works as well so that creates a false impression of the amount of possible damages also. If Getty were to have played fair and made a reasonable settlement demand, no one would have complained. But scaring Mom and Pop businesses into forking over a thousand dollars with baseless and insupportable claims over an image worth $20 at best is simply wrong.

Semmick Photo October 13, 2012 at 9:50 am

Even as a legal adviser you still seem to have the same misunderstanding about the difference in pricing and licences as Ryan. Some photos can go for 2500 dollar. Some images cost you 1 dollar. It all depends on the licence and the agency selling the photo.

Ryan M. Healy October 13, 2012 at 10:04 am

Thank you, Oscar, for commenting here. I appreciate it.

Semmick – Oscar is a smart guy, and he doesn’t misunderstand the issue. He knows more about it than just about anybody else, including all the people commenting here.

Some images are more expensive than others. I understand that. Oscar understands that.

What we also understand is that Getty is demanding unfair amounts of money in these infringement cases.

Semmick Photo October 13, 2012 at 11:02 am

The comment he made about an image not being worth more than 20 dollars made me believe otherwise. And if the general thought is that our photos are not worth the paper they are printed on, then so be it. But that doesnt mean that you can take a photo and not pay what the asking price including damages add up to.

You cant rent a car priced at 100 euros a day, and then tell the guy at the desk that you will only pay 30 euros day, ‘coz thats what its worth at best’.

Don October 13, 2012 at 7:45 pm

Clearly he does not know “more than all the people commenting here”. Requesting $1000 for an image license is not extortion, nor is it more than the image is worth. Getty regularly licence RM images into 4 figures. I’ve had RM stock sales of 5 figures for 12 months non-exclusive use. Just because microstock exists doesn’t mean that’s what you pay for everything. This is a legal “expert”? So ignorant it’s appalling.

I know of stock images that have sold exclusively for $60,000. Some numpty plastering it on his blog, with consequent tumblr posts from there, sending it viral, could have blown that sale. Stealing images is not a trivial matter. You’re taking food from someone’s table.

This isn’t about “Legalized extortion” but “Legalized theft”.

We’re “all commenting” because we suffer financial loss from actions such as yours. You realise he’s commenting because he makes money out of this too:
http://www.extortionletterinfo.com/oscar-michelens-getty-images-defense-letter-program/

John Lenaghan October 13, 2012 at 8:04 pm

That Tumblr comment makes me curious…

What if it isn’t some “numpty” plastering it on his blog, but Yahoo or another major media site paying for the license and using it on their site?

What happens if it gets posted to Tumblr or Pinterest and goes viral? That seems like it would result in the same problem – a loss of value – but the original user was properly licensed.

Would Getty et al go after all those people sharing it, Tumblr & Pinterest or nobody at all?

It seems to me that the risk is the same whether the original user was properly licensed or not. I realize that the photographer would have been paid if it was licensed correctly, but wouldn’t the loss of value still occur?

Don October 13, 2012 at 10:00 pm

Pinterest make it very clear in their small print for users, such as:

“Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy.”

Same I expect for tumblr. In fact the small print is very clear and makes it impossible to hide behind any defence of ignorance. When you “pin” you enter an agreement that it’s your content, that you are legally entitled to pin, and also grant rights for Pinterest to redistribute the work world wide and royalty free. Ignore at your peril.

It’s all part of a wider issue about how to monetise web content. We read newspapers online for “free”, and content gets redistributed, but ultimately if you want the best content then its value has to work its way back to the producer somehow.

This interview explains Getty’s position:
http://techcrunch.com/2012/03/22/for-pinterest-revenue-will-turn-copyright-questions-into-problems/

John Lenaghan October 13, 2012 at 11:46 pm

Pinterest – and other such sites – may have these kinds of terms in their terms of service but how many of their users actually read them? I suspect a majority of Pinterest users never read the terms fully.

So if someone shares a Getty image on Pinterest, would Getty go after Pinterest for the same kind of settlement fee that they’re asking from Ryan and other such cases?

Or would they simply request it be removed from the site?

Because that situation is not so different from Ryan’s. If one of their users posts something to the website, it’s somewhat out of Pinterest’s control. They aren’t “stealing” that image any more than Ryan did in this case. A third party is the one who used the image without the proper licensing.

I realize the relationship between Pinterest and their users is different than the one between Ryan and a contractor working for him (paid or not) but ultimately neither Pinterest nor Ryan is “personally” responsible for the mistake.

It would be interesting to know if Getty would treat that situation any differently than they would a smaller opponent.

I don’t think it’s so much part of the wider issue of how to monetize web content as it is the issue of how some traditional monetization methods are becoming outmoded in the digital age.

Before these images were digitized and easily copied Getty could police how they were used. But whether they like it or not, the world is changing and they are going to have to come up with new ways to protect their IP.

That’s not to say that copyright infringement is okay. But they’re going to be fighting a losing battle if they keep trying to put the genie back in the bottle instead of coming up with ways to evolve with technology.

Harry October 14, 2012 at 12:35 am

This is what Oscar writes on that link you posted:

Quote: “Were I Getty’s counsel, I would have recommended a Cease and Desist Letter and then brought a claim only if the party persisted in the use, unless I had proof of an intentional infringement.”

End of quote.

And if Oscar was my attorney, and had the infringer been using my image or images for a bonafide commercial website, and as my paid attorney had Oscar simply asked for removal with NO COMPENSATION TO ME, the originator of the images or images, I would have FIRED Oscar immediately.

Because that is simply not reasonable in my honest opinion.

You cannot use the images of other people, for your own commercial gain, without some compensation to the originator of the content you are using/borrowing/stealing.

Oscar’s position sounds great for a myspace using teenager maybe. But not commercially it doesn’t. That , in fact, is one poor policy that just makes no sense.

That forum seems like is full of back slapping and high-fiving infringers who’ve been caught stealing and need consoling from each other.

What’s humorous is that more infringers are being tracked down, caught and sent out letters today now more than ever before.

And how ironic that Oscar gets paid now from people (infringers) going over there.

Not sure how he can represent a Florida infringer for example (or New York, Ca, Wa. etc) when he’s in another state altogether. Do people signing up and paying him money realize they should find (and would eventually need) in-state counsel where the infringement occurred?

Anyway, I certainly appreciate the interchange of comments here. Been interesting.

Harry October 14, 2012 at 12:57 am

I know of a single Getty image, in 2012, that sold for $29,000. These are friends of mine. They sold the lifetime rights of their image to a film production company. Rights managed means you can control who, what and how it gets used. And it absolutely still generates big bucks for quality imagery on a consistent basis.

Equipment and traveling is definitely costly. This is how MANY pro photographers earn a living. Sure, some RF images can be bought for .99 cents. But you get what you pay for since anyone can use it for anything and they do just that. One look at the quality of Royalty Free when compared to Rights Managed, overall, shows that usually the differences can often be dramatic.

I agree with Don and have already stated that if what photographers and Getty is doing can be called extortion by some here, then those who take the images can be rightly called thieves.

The HUGE difference, however, is that what Getty and the photographers are doing by collecting is legal. What those that take the images are doing is not.

Tom October 13, 2012 at 10:15 am

Most Photographers register their image before they send the images to Getty and they send the registration info to Getty. So your point is not right here.

Oscar Michelen October 13, 2012 at 11:04 am

@Semmick: Just last week I settled a copyright infringement claim over an image of Neil Young singing at a concert for just under $700. I have been involved in a claim over another unique image that should settle for around $1,500. I represent a photographer who has hundreds of pictures from the 60s and 70s of Jimi Hendrix, The Stones, Janis Joplin, etc. Some are worth in the tens of thousands of dollars if we were to make them limited edition. But a picture of a keyboard or light bulb is worth $5. I get the difference believe me.
@Tom – that is just wrong. I have represented over 850 businesses and individuals in these Getty claims and not one of them involved a registered image. If the image was registered to the photographer he/she would have to then assign that registration over to Getty for Getty to be able to pursue their infringement.

Don October 13, 2012 at 5:03 pm

Could you clarify where you got the notion that you have to register images with the copyright office to seek legal fees. I think that’s not the case.

Your assertion that an image is worth $20 also shows a lack of knowledge of the stock industry. You’re playing to your audience but are out of touch with what’s happening today. Mom amd Pop, yeah yeah, Getty represent Mom and Pop stock photography teams too, do you think they shouldn’t be compensated for their work? Do you get any remuneration for working with “Getty Extortion Letter”?

Oscar Michelen October 13, 2012 at 11:14 am

@Semmick – the fact is that stock photos are cheap -that is provable by a simple search of the sites that sell them. If I walk to the car rental counter and the guy says it cost $100 euro a day, I walk away to go to the $30 euro a day guy. These folks never agreed to pay Getty’s prices and the law says in that instance a court can consider the fair market value of the work in determining damages. Also Getty’s prices often include exclusivity which most folks don’t want and would not pay for. Finally, I have seen letters from folks where Getty has consistently turned down offers from some folks of $200 plus for stock images of a keyboard or light bulb. You want to bet Getty never told their photogs about that offer before deciding to reject it and demand more only to have the letter recipient then withdraw it after he learns more about the issue? Infringement is wrong but using these tactics is wrong also.

Don October 13, 2012 at 5:18 pm

They didn’t walk away though did they? They had a full slap up meal at a 3 star michelin restaurant and now, claiming they never agreed to “extortionate” fees, are offering a dollar because they can get a big mac for that.

True, the web has made it easy to plagiarise and steal IP, but when you get caught it’s time to start paying (not start whining) and accept you’ve learned the lesson the hard way.

This statement on the ELI website is a gem:
“we believe what they are doing is technically legal”
Yes, the law is on the side of Getty, the photographer, and the copyright holder.

harry October 13, 2012 at 11:59 am

Oscar,

As the “legal advisor” that you claim to be, then you would know quite well that your services are not FREE, and in fact they can be quite EXPENSIVE. Especially to someone like Ryan who’s refusing to pay a mere $500 settlement offer from Getty. In fact, as I have already stated above, anytime attorneys have to get involved the costs go UP. Surely you must know this. Everybody knows lawyers getting involved in any dispute changes the dynamics, especially financially.

So then why do lawyers have to get involved in recovering lost revenue from copyright infringement? The answer is quite simple.

If individual photographers who’ve found their images being used on another person’s website contact that person directly, to work out a license for the unauthorized image, without your or my attorney’s involvement at that point, then 95 percent of those people who’ve infringed will laugh it off and tell you ‘get lost’. Most won’t even reply at all. That’s just how it is.

So for any infringement claim and contact letter to be taken seriously, you simply must get qualified copyright legal representatives involved in the process. This is how it is based on years of experience. The attorney’s contact letter now has real ‘teeth’ with penalties and hard deadlines often laid out. And it will, and should, almost always garner a very quick response. And absolutely a far greater potential for recovery verses if the photographer simply went at it alone.

There is simply no way around this from what I have seen. Because attorneys have to be involved in the process for any possible restitution on their infringed upon and copyright protected image, the numbers go up from the hundreds per image infringed upon, often into the thousands.

I seriously doubt that if you were representing me on a case now, that you would ask the infringers for a smaller amount (say the $500 that Ryan has already turned down from Getty) while charging me $1200 or so for three hours of your services. As you can see, I would lose $700 net total, to recover $500 from the infringer. So I would never go that route again and would feel helpless as my images get stolen again and again. And that is just not right.

So the numbers are higher than what most people would expect to pay because it’s the only format that works, by getting lawyers involved.

But higher amounts also sends another message, which is that by paying more many of these people will never do it again, but will also pass the word around to others they may know in that same industry. What some call extortion is simply the fact that there is no other way than higher amounts because of attorneys needed to get involved in the recovery process.

And the fact of the matter is that no opposition, whining or complaints about ‘extortion’, because of the higher amounts due to attorneys having to be involved in this process, are going to stop what is happening. The law is on the side of the photographer. Period. ONLY when people stop taking and using photos that are not rightfully theirs, will this issue cease to be the problem that we see today.

Ryan M. Healy October 13, 2012 at 12:05 pm

“But higher amounts also sends another message, which is that by paying more many of these people will never do it again, but will also pass the word around to others they may know in that same industry.”

That’s for sure. I’m telling as many people as I can:

Do NOT do business with Getty or iStockphoto EVER. Period.

Furthermore, think twice before you consider licensing an image from ANY stock photo service.

Better to take your own photos or work directly with a photographer to avoid any potential legal hassles or penalties down the road.

Semmick Photo October 13, 2012 at 12:24 pm

Ryan, if you need a photo of a Dutch floodplain, you simply cannot get out and shoot it. You would have to turn to a stock site, or know a photographer in the Netherlands to shoot it for you. I can tell you, that would probably cost you as much as Getty is asking from you. A photo of a kid on a toilet might seem simple, and it might be, but you will be surprised to find out what it takes to get it technically right and of such quality so that it can be sold as stock.

I recently took photos for a customer who wanted to get exclusive images instead of turning to stock. I had to go out an about in Dublin and to other places to get the photos they wanted. That doesnt come cheap.

Photographers have loads of expenses and put in a lot of effort and spend a lot of time getting the images people are looking for. If you were to ask me now to get an exclusive photo licensed for a year, I would ask you 300 euros. Thats the going rate.

Sabrina October 13, 2012 at 3:22 pm

“Better to take your own photos or work directly with a photographer to avoid any potential legal hassles or penalties down the road.”

And be careful working with photographers unless you know them well. Document the terms of use with legal help in order to protect a Getty-like challenge down the road.

My experience with this stuff scared me stiff. (And for anyone who’s ready to parrot “you did something illegal” – I was provided an image as part of a website template provided by a reputable telecom corporation who had outsourced the template design. Rather than the sharks deal with the company and their lawyers – who were willing to accept responsibility BTW – the rep told me that they essentially didn’t care who purchased what, they were coming after me because I owned the domain. They preferred to assault a solo professional rather than a corp with legal firepower. THAT confirmed my suspicions of misdealings and a revenue model based on intimidation.)

Now, in my work, RF or public domain images are relegated to offline documents. Images I use online come from my own digital camera or another source I trust. I was a frequent purchaser of RF photos from iStockPhotos prior to that incident. Not any more.

My clients – I tell them to use photos from their own environment. Get a photographer in if necessary for a photo shoot (unfortunately for professional photogs/fortunately for pocketbooks nowadays even a decent amateur photog will often do for web-quality pics).

Considering the possibilities, it’s much safer than stock.

Kaboom October 13, 2012 at 4:03 pm

Nice Sabrina!

I’m fast coming to the conclusion that all images should be treated with suspicion and should be avoided.

Consider if one purchases a $10 image from one of these stock image houses. Also, let’s say that 10,000 others purchase the same image. Fast forward ten years and the particular image stops selling at the stock house. So, the stock house investigates who has copyrights and who doesn’t.

Sure, there will be plenty of copyright infringers and they should pay up what’s fair.

But, let’s concentrate on the folks who DID purchase the image rights and have lost the receipt, bill, email or whatever proof they needed. Poof, they get one of these extortion letters and are dragged into to paying up.

So, for sport let’s say 5,000 legitimate image buyers get caught in the innocent infringer trap and pay an average of $800 each plus legal fees.

$800 x 5,000 = $4,000,000 this is just to the stock houses and the lawyers get who knows how much.

Ah, the gift that keeps giving.

The copyright law as it stands is flawed for the innocent.

Don October 13, 2012 at 4:25 pm

Kaboom – total codswallop. So you’re never going shopping again in case you lose a receipt and get accused of stealing? It just doesn’t work like that. Legitimate license buyers are not chased for infringement. Stock photography is a billion dollar industry producing outstanding imagery available for license. Millions of images are licensed each week. Millions of happy image buyers across the globe. Sadly, many millions more are taken deliberately ignorance is a weak excuse and invalid in court – when it comes to freetards vs workers don’t say you haven’t been warned.

Semmick Photo October 13, 2012 at 5:24 pm

That is one absurd assumption Kaboom. If you purchased an image you wont be asked to pay again. Thats just simply not true.

Harry October 14, 2012 at 1:08 am

Kaboom,

Not sure why it has to be a secret about who stuck you with bad images.

And unless you have been gone after by Getty or someone similar, I can’t see what you are even doing here spending so much time against Getty and or stock.

Harry October 13, 2012 at 5:33 pm

I’m sorry Kaboom, but your throw everything you can think of along with the kitchen sink at the stock world approach and see what sticks (so far nothing) is getting hard to read now.

Look, you got caught with a Getty pic. So stop pointing the finger at the entire stock world as being against the you and out to trick the whole world, and instead just learn from your mistake.

If you get a speeding ticket from Washington DC police officer, you don’t tell everyone you know to stay out of Washington DC. Or that all cops are bad. Especially if you really were speeding.

Why not tell us who you bought your bad image from? I have a strong feeling we’d all say something along the lines of, well that explains that.

Kaboom October 13, 2012 at 6:35 pm

OK, one last time for the folks that have not read the entire comment thread.

I bought software, licensed to me from a reputable software supplier. The software was supplied (came with) with a bunch of images.

An other organization is now claiming copyright infringement to one the images.

I do not steal, borrow, or any other action that violates copyright.

I have not got a copyright status response from the original software supplier.

Any questions?

I will, in due time post ALL the dirty details when appropriate.

Kaboom October 14, 2012 at 4:54 am

“Harry October 14, 2012 at 1:08 am
Kaboom,

Not sure why it has to be a secret about who stuck you with bad images.

And unless you have been gone after by Getty or someone similar, I can’t see what you are even doing here spending so much time against Getty and or stock.”

Harry,

Post your contact information on this blog and I’ll get it right over to you..

Business Phone:
Business Email:
Title:

Harry October 14, 2012 at 11:37 am

Kaboom, why would you want to send me anything? I thought your point of being here is to WARN OTHERS about what can happen to you. I can assure you, I know how it works.

Your name is obviously not Kaboom. Many others probably bought the same software and hence would have received the same letters.

So, why not tell us why you can’t/won’t share the “dirty details” here and NOW for the public to be protected from these evil people?

Harry October 14, 2012 at 12:22 pm

In fact, if you post the details here and now Kaboom, you might just help people who’ve also purchased the same software to simply delete all images from their websites and avoid the same letter you claim to have received.

Isn’t that what you and Ryan claim to want to do anyway?

Of course, I am also well aware that posting exactly who it was that you purchased your software from just might show us all that it was not exactly from that “reputable source” as claimed.

Which is probably why you are coming up with excuses not to post anything at all.

harry October 13, 2012 at 12:20 pm

Sure Ryan, tell them to avoid doing business with Getty. Okay, I get it.

But isn’t the more important message here to tell people not to take and use any photos from the internet for their own personal or business usage?

ONLY use photos that have been properly licensed from the photographer directly, or a very reputable agency representing that photographer.

THAT is the message that everybody wins with.

Sabrina October 13, 2012 at 3:33 pm

“ONLY use photos that have been properly licensed from the photographer directly, or a very reputable agency representing that photographer.

THAT is the message that everybody wins with.”

ONLY? Are you sure there aren’t any other options that don’t include swiping pics? Or purchasing them from a photographer or an agency representing that photographer?

I guess that is the path Getty and some professional photogs would like to scare us down…

Which reminds me of something I heard recently locally – some professional photographers are apparently including in their event (e.g. wedding) contracts that other photography is not allowed if the photographer is a professional. i.e. definition of professional? Someone with a digital camera using more than one lens.

Smacks of something…

Harry October 13, 2012 at 3:49 pm

If you don’t take the photos yourself, or license them directly from the photographer, or, from a reputable agency representing the photographer, then what else is there aside from STEALING?

Go ahead and tell us Sabrina.

And I can see why some professional wedding photographers might request no other professionals work at the same event. Who took what, as well as copyright concerns can always become an issue.

I mean, let’s be reasonable here.

Ryan M. Healy October 13, 2012 at 3:58 pm

You missed the point, Harry. Sabrina was implying you could take the photos yourself. Your statement seemed to omit this option.

Furthermore, Sabrina was taking issue with the definition of a “professional” photographer — which was defined as somebody using a camera with more than one lens.

Translation: If you hired this particular wedding photographer, then a family member could not bring a digital SLR to the wedding to take personal photos. Only “point and shoots” would be allowed.

I would personally never hire a wedding photographer with restrictions like that.

Sabrina October 13, 2012 at 4:11 pm

Thanks Ryan. :) It’s a lesson to remember (1) my audience and (2) that not everyone reads between the lines.

Harry October 13, 2012 at 4:56 pm

But I’ve stated that (take pics yourself) too many times to count now on this thread alone. But I guess if we’re playing some kind of “gotcha” game here then I guess I have to give Sabrina a half point. :)

Wedding photographers are an unusual bunch, imo. But I can also see why. I mean, there is no more demanding and high pressure photography work than that. Demanding people all over who all often want different things on the most important day of their life. But most pros that I know never have high demand requests like you are talking about. I’m sure it’s happened, but by far that would be the exception rather than the rule.

Don October 13, 2012 at 4:02 pm

You could take your own; use the daily freebie from microstock libraries; use images available under the Creative Commons license; use images in the public domain. Of course there’s a good chance you can’t find anything to suit, or anything as good as you might find on Getty. Funny that. You realise you need a good image to attract web visitors. You need to use an image for which payment is expected. No one is scaring you, they’re informing you that right click and copy is the web habit, but it’s wrong. Whining doesn’t win you the argument, and you won’t win in court either. Have the “Getty Extortion Letter” team actually had a court victory? Haven’t heard of one, and they’ve been going for years. However, photographers are sucessfully chasing infringers because the law is on the side of the copyright holder (and for good reason). You take, you pay. Try reading up:

http://www.photoattorney.com/

https://www.imagerights.com/

Alan Allard October 13, 2012 at 1:41 pm

Ryan, your offer to Getty seemed very reasonable to me. Evidently that’s not what they are looking for.

Don October 13, 2012 at 2:27 pm

It’s all been said but you seem deaf to the reality. Getty want $500, you offer $150. It’s the same ballpark, in no way “extortion”. A considerable penalty is required to discourage infringers and to go some way to meet the cost of persuing them.

Why did you use a photo? Because it adds value. If you don’t recompense those making images then they will stop making them. Image theft is rampant on the web, estimates go as high as 80%. Can you imagine running a business where 4/5 of revenue was lost to theft?

If the mistake is not yours, then take it up with the person you hired. That you make excuses not to persue them is your choice, but a professional web designer will have indemnity insurance that would cover this – just like the indemnity insurance paid for by photographers, it’s one of the costs of doing business. If they were amateurs paid mates rates, then you’ve just learned the lesson of hiring non-professionals, just like when you get a plumber on the cheap.

“Do NOT do business with Getty or iStockphoto EVER.”? If you’re at all worried about image use Getty and iStock offer license buyers a high degree of indemnity with every image. If anything the logical response would be to advise those concerned about image use to go there first. Especially as the technology to identify infringers continues to improve. As always, ignorance is not a defence.

Have you read this? Another blogger caught out by unlicensed image use:

http://www.blogher.com/bloggers-beware-you-can-get-sued-using-photos-your-blog-my-story

Michelle October 16, 2012 at 4:50 pm

Don said: ““Do NOT do business with Getty or iStockphoto EVER.”? If you’re at all worried about image use Getty and iStock offer license buyers a high degree of indemnity with every image. If anything the logical response would be to advise those concerned about image use to go there first. ”

I would argue that in fact, the exact opposite is true, and here’s why. I have purchased stock photos from iStock in the past, for use in various places on the web. This was back when they only used a credit system. I have a receipt from iStock for the payment I made to purchase the credits. HOWEVER. The only “proof of purchase” I have for the images themselves that I used the credits on, exists on iStock’s servers in my account record. They did NOT send me any email or other confirmation for those purchases. So let’s say, 10 years down the line, they come after me for infringement for one of those photos. And let’s just say, hypothetically, that either I or they have closed the account on which I purchased those photos. How am I supposed to prove that I paid for them? How does the stock agency holding all the cards, as it were, provide me ANY protection whatsoever?

That is why I will not be purchasing any more stock. I’m also swearing off the use of other people’s images altogether. And to whoever said getting your images licensed by Getty is difficult? Puh-leaze! I did it with a few clicks on my Flickr account, and I’m the most amateur of amateurs. Of course, after reading this comment thread, I don’t think I’ll be keeping that in place. The last thing I want is Getty pursuing some poor schmuck for thousands of dollars, of which I will never see a penny.

FWIW, I didn’t want to wade into this fray, but thus far I hadn’t seen anyone mention the way the stock agency truly holds all the cards. Not the photographers. Certainly not those who legally paid for their images. So from now on I’m making a resolution to take a photo a day to begin replacing the images I bought, and make sure my butt is covered. Of course, with the expensive lawyers they undoubtedly have on retainer, they could probably just as easily claim that my crappy photos are also their IP, and get away with it. *sigh*

Oh, and the “professional photographer at a wedding” thing? I ran into that back int 2005 – and I wasn’t even using an SLR! It was at a friend’s wedding with just a point and shoot that had an especially protrusive lens (it had an optical zoom) and I was told I could not take any photos with it. In my opinion that not only cheats me out of my mementoes, but also the friend whose wedding it was (and who was paying said photographer) as I would have sent her copies of all of my photos as well.

Ryan M. Healy October 17, 2012 at 7:47 am

Hey Michelle – Thanks for your comment. Great observations. I agree that the agency holds all the cards — especially if the customer is forced to dig up an email receipt from 5+ years ago.

Also, that’s crazy that you were told you couldn’t take pictures at the wedding. I’d never heard of such a thing until now.

mark higgins October 13, 2012 at 4:19 pm

You say there is a problem with lost receipts??? The agency has records. Steal ,get caught and you pay the penalty. Steal from a store ? Giving them the price of the goods you stole does not redeem you. You pay a penalty.

Professional photographer?? Copyright?? Anyone who makes money out of it could claim to be professional. Copyright? No need to register it.

Don October 13, 2012 at 5:33 pm

Ryan, re your Fact#1 you do realise the image used without a licence is an RM one from Stone, one of Getty’s premium collections, that your use of it in this way can damage future sales, and that comparing it to the $8 one from iStock lacking in any subtlety is laughable? There’s a reason that image appealed.

You took a car rental without paying, only you drove a ferrari not a ford, and now you’re all upset that you’re going to have to pay the going rate plus a penalty? Yes it would have been cheaper to do the legitimate thing from the start.

uu2 October 13, 2012 at 8:13 pm

To draw a parallel to your story, what is the consequences if let’s say… I purchase a PC for my business from the corner store contractor, but because I trusted him/ her, I did not check that he/ she had loaded pirated software and I got caught out by U.S. law enforcement agencies later.

Could I just offer to pay for the cost of a legal copy at street price because if a legal copy cost $29.00 a copy, store price would still be $29.00 per copy and that’s exactly what I should pay like the $2.39 apple a pound argument and nothing else?

Not on the fact that I deprived the software company from finding another customer who “might” have bought that software to make a website or document. Does it work like that in your city?

Ryan M. Healy October 14, 2012 at 8:07 am

I would hope that you could simply delete the pirated software and buy a normal license at the current price.

But let’s say you “got caught” by law enforcement. You should not be held liable because you did not pirate the software.

Also, I disagree with the idea that this scenario somehow deprives the software company from finding other customers.

Software (like an image) has almost zero cost to reproduce (some hosting and bandwidth), and therefore has a virtually unlimited market. One person’s accidental theft does not deprive any other customer from buying the same software or image.

Rick October 14, 2012 at 8:14 am

Ryan,
You’re right, it doesn’t deprive them of the right to buy the same image, only the desire to buy it…especially if they see it in a related use by a competitor.

uu2 October 14, 2012 at 8:50 am

Dear Ryan

I used the word IF but I guess the irony is lost with the PC and the apples as I doubt that you even remember what was written in your ELI thread. However, I would not blame you as I believed that you have been under tremendous pressure during these few exciting days.

Anyway, good luck to you and I hope there will be an amicable solution that Matthew can provide for you.

Bye bye.

Herb October 13, 2012 at 9:01 pm

Hi Ryan,

Great blog post. Generating a lot of comments. :)

As a publisher, you might have a little more responsibility to ensure no copyright infringement.

As the owner of the images, they came after you with both guns a-blazing. Shoot for the stars, but bagging the moon is ok for them. Difficult to determine what a fair settlement might be… the sort of thing courts and arbitration establish.

For anyone who reads your blog, I’m sure will be giving thought to examine the content on their site. Which is a good thing!

I hope this does not affect any existing or potential Customers.

Cheers

Rytr October 14, 2012 at 8:16 am

§ 504. Remedies for infringement: Damages and profits

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

Oscar Michelen October 14, 2012 at 8:39 am

Don: You make many valid points about the worth of a digital image and the need for enforcement of infringement but fail to realize what I am talking about by referring to Getty’s tactics as extortionate. Making legal demands in a letter that you are not entitled to (statutory costs and legal fees for example) and calling folks “thieves” when they hired a third party web developer to create a site for them or when they even have a receipt from their developer for the purchase of the image is simply not fair. Getty’s heavy-handed tactics and those of their enforcers are well documented on the ELI site. As for the site – you ask “Have they ever had a victory?” and then say you could not find evidence of one. Well, we founded the site over four years ago. The site now receives about 11,000 unique visitors a month the vast majority of whom (99.9%) do not pay me to write them a letter. Why? Because the point of the site was never to make money but to educate the public about this issue. The site was the first one to take this issue head on , provide solutions and offer advice FOR FREE. We have helped people from all over the world learn about digital imagery and the rights of photographers and how to properly place images on one’s website. Of the 850 folks who have decide to use the letter program, none has ever been sued and Getty has stopped communicating with them. You can insult me all you like by calling my $195 letter a $4 letter, but take a look at my credentials and just like there are stock photos worth $6,000 and stock photos worth $6.00, a letter from me to Getty is lengthy and thorough and worth every bit of $195. I am personally responsible for the content of each and every letter and am proud that it has allowed many folks to rest easier after receiving Getty’s communications. If all of that isn’t enough to have you declare the ELI site an unqualified success, then look at the recent case I handled in California Masterfile v. Chaga International where I obtained an important decision from the Federal Court in California regarding the proper method of registering digital images. I would probably be able to show more examples of court victories except that Getty does not go to court over these cases, so them leaving my clients alone is going to have to do for a “win.” I encourage you to spend some time visiting the site before attacking it.

Don October 14, 2012 at 10:22 am

Oscar, it wasn’t me being insulting about $4 letters, it was Ryan: I note that you find it offensive. So your letters have earned you $160,000 protecting people who have taken mages without buying a licence. $40,000 a year for your sideline. That’s more than the average photographer who’s losing money to your clients.

Masterfile vs Chaga? Let me summarise: your client used images without paying and you worked the technicalities of copyright registration to get them off the hook. Such wrangling is lawyers delight ($$$$$). The photographers lost out, the thieves and the lawyers made a killing. I’m sure you’re proud of your work.

Copyright registration is a side issue, one for litigious americans. Photographers aren’t really interested in the $150,000 US maximum, rather just getting paid an honest $ for their work, without involving the legal weasles. I wouldn’t go down the copyright route, it’s about use which is unlicensed (ie unpaid for). It’s an unpaid debt. Where I come from the small claims court takes a case for $100, for claims up to $7500. If you can demonstrate use you will win. I have. No lawyers. The trouble is the infringer needs to have a presence in your country.

From your post above you seem to be implying that nobody buying your letter has paid money to Getty: “Getty….. leaving my clients alone…. is a win”. Yes, I would call that an unqualified success, for those that want to use services without payment and deprive those that work hard to make a living. If correct, you’ve taken the cash that should have gone to the photographer.

Ryan M. Healy October 14, 2012 at 2:11 pm

Oscar does not defend people who intentionally violate copyright. I don’t think that’s too hard to understand. You continue to imply that Oscar (and victims like me) are out to steal from photographers. We’re not. As mentioned before, I’ve paid to license multiple images from iStockphoto.

Oscar defends people who’ve accidentally violated copyright and have been caught in Getty’s unforgiving dragnet. I assume the people he defends are like me: they are happy to pay a reasonable amount to settle, but refuse to pay the exorbitant amounts Getty is asking for.

Harry October 14, 2012 at 11:20 am

Oscar,

You completely avoided my last comment above (addressed to you directly) about exactly WHY prices are higher when photographers have to go after copyright infringers. Which is because of having to use AND PAY FOR attorneys like you. Otherwise collection efforts are usually a futile waste of time for photographers on their own.

But now, directly above, when defining extortion from your point of view HERE, you completely OMIT the higher amounts in your argument, but state that it’s simply because of Getty’s “tactics” that you are ‘righteously’ involved now. How interesting. But as you also know, Getty does not even ask that much to begin with. So their “tactics” of just how they are tracking down infringers and sending demand letters (for apparently semi-reasonable amounts), is the huge problem for you here, compelling you to get involved at some extortion named website in a very humanitarian, discounted way. :)

But we also NOW KNOW, that at the extortion named website, you have sold 850 of your letters (at $195 a pop) adding up to a total of $165,750 dollars for you and the owner. Not a bad business model if I say so myself Oscar. Hey, can I get a piece of that too? :)

Additionally, since you know and have stated here that copyright infringement is wrong in principle, then all you can do is find loopholes or complaints about the process itself or criticize JUST HOW they go about collecting. Amazing.

And what is exactly just so pathetic (to you) about how Getty collects from copyright infringers, who are benefitting from the works or other photographers for their own commercial gain? Because they mention statutory damages and legal fees are possible in their letters. Man, it just keeps getting better.

And by the way if the the images are copyrighted, both claims are indeed very possible if they decide to file against the infringer.

So at least now we all know why you are involved. That letter has netted you some big bucks already. $167,750 worth!

I’m sure you let your $195 paying clients know that because most are in a different state altogether than you, that if the case is filed on, they would have to hire A NEW attorney in the state where the infringement occurred, right? You do tell them that I assume.

Just because of your post here bragging about your great 1000 percent batting average, I sure do hope that Getty takes note (since I’m sure they know who you are) and decides to pursue your clients with a renewed ‘enthusiasm’ now, to ruin your little “perfect record” boastful claim.

And Oscar, please comment on my post directed to you specifically yesterday, about why demand letters are higher due to attorneys like yourself needing to get involved in the recovery process. Yesterday I mentioned you probably charged $400 per hour in my analogy about how I would lose a total of $700 just to collect $500 from an infringer for three hours of work from you. But after checking out Don’s link it turns out to be $450 an hour. So, it is in fact $1350 that I would now lose knowing your true hourly charges. How about that! I bet people reading now know why my attorney would have to charge more than the infringers are expecting to pay. Either charge more (for $450 an hour help like you Oscar), or I could keep losing money for each settlement case closed on, or just give up collecting anything at all and just let people steal them as much as they want. I wonder which one will work the best? hmmmm

So in conclusion, if infringers are TAKING photos online from photographers at will (and they are) to help sell their business services and goods; and if good and generous hearted attorneys like you charge $450 an hour to get involved in recovering what is ours to begin with; then please do some basic math (you know the kind I just did above showing you made over $165,750 so far on your 850 letters deal) and then make sure you write about that math (proving exactly WHY demand letters are higher when nice attorneys like you get involved) on your eli website.

That should be fun. Look forward to your detailed reply.

Oscar Michelen October 14, 2012 at 2:11 pm

Harry: Demand letters are usually not sent initially by Getty’s lawyers but by Getty itself – through a mechanized process that costs them next to nothing. So “attorney’s costs” are not the reasons for the high demand – looking to scare folks into paying more than the image is worth is the reason. But let me say that I have proposed on my blog, a system for registering photographs by individual photographers in groups that would allow those photographers to obtain copyright protection without having to register each individual photograph separately. As someone who represents photographers as well, it is difficult to enforce infringement for small thumbnail images with low value. You can;t go to small claims because all copyright claims must be brought in Federal court and small claims or even full State courts do not have any jurisdiction over copyright. So if that’s been done by anyone successfully, their adversary was ignorant of some basic law. But digital imagery is worth protecting and on my site we tell people all the time how to legally acquire imagery for their websites. We constantly tell them that even if their web developer got them their images the end user is also responsible and can be held liable. We have promoted proper use of digital images just as much as we have decried Getty’s methodology. With respect to your and Don’s issue that I have earned $160K in defending against Getty claims over 4 years – both of you have decided to ignore the hundreds if not thousands of hours over the 4 years of free advice, videos, free letters to non-profits, veteran groups, knitting bees, etc, blog posts, commentary, review of issues for folks, which when put into the calculation means I would have probably made more per hour managing a McDonalds over the same time period. “Stealing” implies intent but the vast majority of my clients employed and paid third parties to set up their sites and were not web or copyright law savvy. They made a mistake – they were willing to pay a fair amount for that mistake. Before signing on as a client of mine I have advised every single letter recipient I have represented to offer $200 to Getty for the image before paying me my letter fee. Believe me Getty paid $20 Million for PicScout because it is a huge moneymaker for them and they don’t need to address my clients because the folks I represent are less than 1% of the folks receiving letters. They are sending out countless letters per week.
On the issue of Masterfile v. Chaga do some research. My client had settled a claim over these same images for a substantial amount of money. Why? Because I recommended they settle as the images appeared to be registered with the Copyright Office and their developer used MF’s registered images improperly. MF later claimed they found the same images on deadlinked pages from the site. We argued that any claims over these images were settled and no additional new use was made of them. MF disagreed and filed suit. Copyright law and registration is very exact and must be followed to the letter. They didn’t do that I moved to dismiss and it was granted. But even if this “technical” argument did not win the day (and all law is technical so I don’t know why “technical” arguments have less value than non-technical ones”) we had many other substantive defenses to MF’s claims. But you asked me for a win and I gave you one. There are many others from all over the country. Copyright law is national so I don’t need to know each individual states law and I can therefore write on behalf of clients everywhere (just like when Getty’s uses lawyers they are based in Seattle but write letters all across the country). But if a case goes to litigation, I have the client retain local counsel who moves my admission into that State. I have done so in California, Georgia and Texas. So please don;t worry about my ethics and my clients. I am more open and above board than any other lawyer I know – look I volunteered how many letters I have written and here I am still having to defend myself against representing small business owners against a giant company on some blog I have no connection to, on a Sunday afternoon with the Yankees and Giants on TV. So that’s it. I have made my last comment on this issue. If you want to continue the discussion, come on over to the ELI forum and post there. We welcome all opinions and have frank and open dialogue on this topic all the time.

Ryan M. Healy October 14, 2012 at 2:33 pm

Comments now closed. New blog post on this issue coming tomorrow.

Ryan M. Healy October 16, 2012 at 12:05 pm

Comments now open again — at least temporarily. I expect new visitors and want them to be able to share their stories and opinions.

Cynthia October 16, 2012 at 6:43 pm

I’m just trying to unsubscribe from these comments :-) I see Ryan is encouraging people to be careful not to get on the wrong side of copyright law-good enough for me.

Ryan M. Healy October 17, 2012 at 7:48 am

Cynthia – You can unsubscribe from comments by clicking the link that’s at the bottom of the comment emails you’ve received. Please let me know if you have any problems with it.

Cynthia October 17, 2012 at 7:18 pm

Thanks Ryan, I did that and was directed to the comment screen. Since I couldn’t save anything without entering a comment, I entered the comment above and believe that I selected the don’t subscribe option. I am still getting notificiations. And of course, I just can’t stay away when they land in my mail box.

Wendy, not everyone supporting Getty is calling Ryan outrageous names, etc. I agree with you, impersonation SHOULD be taken seriously. But so should copyright law. Would you tell Walmart just to accept shoplifting is part of the retail business and they shouldn’t pursue shoplifters?

Ryan, it is not just photogs that pursue infringement violations. I have seen a well known comedian chase down a small business owner because a trademarked slogan appeared in products advertised by a third party on their website. I think that is somewhat similar to what happened to you here. The music industry also heavily pursued users of Napster et al. I can’t think of any bloggers that have done that, I admit.

The answer is not to tell any creative to forget about improper use of their written creation or image. The answer is to develop law that is up to date with the realities of the digital age and then enforce it appropriately.

Cynthia October 17, 2012 at 7:38 pm

Edit-I found the correct link and all should be good.

Wendy October 16, 2012 at 9:38 pm

I have been reading all of these comments and to my dismay find it very crazy that anyone would think this was such a huge crime and to throw out such strong accusations. Are you that bold when it comes to the cruelty of animals and children, or when people are kept in bondage and slavery or ripped of everything they own without due cause, etc. etc? I hope you place as much passion on issues dealing with cruel and vicious actions to humanity. Everyone knows that if you put anything on the internet it is pretty much free game. It’s part of having the privilege of doing business on the internet. You want to stop your pictures from being copyrighted, then stop putting them on the internet. Market your pictures like it was done prior to the internet and then you won’t have to be concerned about so many people using them. I think its more of a crime for people to impersonate you and to put up a website using your personal name and trying to be you obtaining clients under false pretenses. Now that’s a crime, and you know what? They don’t do much of anything when it comes to that. In fact, I know of some situations where the legal system did nothing about it. So why doesn’t the legal system give as much weight to someone impersonating you? Anyway, why not sign all of your pictures and then that would be free advertising for you when ever they are posted. Change your way of thinking and consider it a compliment and be appreciative that people find your pictures beautiful and spectacular enough to use on their sites and blogs. Photographers are not the only ones that have problems, Authors also have problems, Creators of large signature systems have problems, and they have put many hours, money and hard work in developing these programs and writings. Anything posted on the internet has problems with copyrighting. It is the nature of the internet. So why all the big stir, if you are having that many problems with people using your pictures and have not paid for them, then you have to make a choice, either use the internet and understand that there will be problems or not use the internet. You know you can choose so if you don’t like it then remove yourself from the problem of the internet game and market your pictures using another venue. It is your choice. Just saying.

Ryan M. Healy October 17, 2012 at 7:50 am

Wendy – I’m glad you pointed out that authors have big problems, too. The difference is that authors don’t use “infringement monetization” to make money. They just write more and focus on finding more customers.

Cynthia October 17, 2012 at 7:26 pm

“Everyone knows that if you put anything on the internet it is pretty much free game. It’s part of having the privilege of doing business on the internet.”

A stock site exists to sell photos. That is where a photographer makes his income. Most bloggers monetize through advertising, etc. so can afford to feel complimented if their content is used with a link back to build traffic to their site. The photographer is not allowed by the terms of the sites to upload a link or signature within a photo. This would limit the commercial value of the photo and make it much harder to sell. In today’s world, building a stock photo business without using the internet is not a workable business model.

I have no interest whatsoever in making a personal attack on Ryan. I do think this is an important issue, though, and I do not agree that Getty is any more extortionist in their demand letters than agents representing creative people in other mediums.

Mark October 18, 2012 at 5:52 am

Great post Ryan!

And an amazing amount of though provoking responses to go with it! While I did not read all the responses, I thought it was interesting that no one brought up the subject of patents (at least not in the comments I did read). As a patent holder I have experienced first hand what it’s like to have a patent infringed upon, stepped on, challenged and the incredible costs associated with pursuing / defending my rights as the patent holder. The unfortunate truth in the patent world is that the one with the deepest pockets has a distinct advantage. And by the way, if you do go to court and even if you win (again regarding a patent), there is no guarantee that the settlement will even come close to covering the legal costs incurred. So in the end even if you win you still may lose financially.

This all came as a surprise to me when it began to unfold because I, like most other people unfamiliar with the patent world, assumed that as the patent owner I would always have the advantage. Such is not the case. Our legal system (and I hate to say this) is built more with the benefit of the lawyers in mind then with truly serving justice. And there are those who will take advantage of this position for their gain.

I do see both sides of this issue (regarding copyrights). It’s unfortunate that people think it’s ok to grab anything that’s on the internet because they think it’s “free”. It’s also unfortunate that companies like Getty make this a major part of their revenue stream.

Hopefully your blog has educated folks to the dangers of using photos and / or other content off of the web without checking on copyrights, and maybe will give companies like Getty ideas as to how they can protect their rights without alienating folks by extorting excessive damages from offenders.

Ryan M. Healy October 18, 2012 at 7:17 am

Hey Mark – Thanks for sharing your thoughts on this issue.

I think one person mentioned “patent trolling,” but nobody has talked about patents as you have.

Your assessment of patents — and the costs of patent infringement — seems accurate to me.

I read a book earlier this year about patenting and licensing product ideas. It’s a great book, and I wrote about it here:

http://www.ryanhealy.com/book-review-one-simple-idea/

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