Getty Extortion letter
Litigation

How to Respond to a Getty Extortion Letter

Getty Images has created an entire business around sending letters to suspected copyright infringers and demanding exorbitant payments in return for not being dues.  Getty’s heavy-handed approach has been the topic of angry conversations throughout the blogosphere, claiming they are nothing more than extortion. By praying upon those without legal knowledge, the company scares people into paying exorbitant fees far beyond what is required. Unfortunately, the majority of people don’t know how to respond, so they comply with the demand.

Several weeks ago, I wrote an article suggesting tips for responding to Getty Images should anyone find themselves a recipient of a Getty demand letter. Given some of the questions readers have been asking me about this issue, I thought that a sample response letter would be helpful.

Background for Responding to a Getty Extortion Letter

This response letter is not designed to alleviate anyone’s responsibility if they are infringing on Getty Images copyrights. However, while infringers may be liable for damages, they are not necessarily as high as what Getty is requesting.  A copyright holder has several options for receiving damages from an infringer.  First, an infringer cannot make money from someone else’s copyrighted material unless they are authorized.  So, any profits derived from the infringement must be paid back to the copyright holder.  If you are infringing and that infringement has generated income for you, then consult an attorney before proceeding.  This letter may not be enough.

Infringers are also responsible to pay the copyright holder’s for lost profits due to the infringement, which in this case, could be the licensing fee that the infringer failed to pay. However, the licensing fee amount is not based on what Getty charges for an image, but rather it is based upon the fair market value for that image in the marketplace.  If similar images cost $10, then the damages are $10, even if Getty Images charges $800 for that image.  Of course, you have to prove that the image is only worth $10.  That may be harder to do in court, but our goal in writing a response is to make the Getty Images attorneys work for the money.  Every hour is expensive so if there isn’t enough reward, then the case will be dropped.  Attorneys general get about $300 per hour, and filing a case could cost $400 or more.  So if the attorney has to work for several hours to receive $300 or $400 dollars, then it just won’t be worth it to them.

You will need to calculate the fair market value, which is a simple process in so far as this letter goes.  To calculate the fair market value, just use the average price of comparable images found on stock photos sites. If the image in question is a dog taking a bath, then find 8 or so images of a dog taking a bath; use the average price as the fair market value. You should be able to find comparable images for under $10 at the size used on websites. The response letter offers $20 as a settlement.  That number is derived from the minimum number of credits that can be bought on Getty Images iStock Photo and so is the minimum that must be paid to receive an image.

Unless you are completely sure that there is no copyright infringement, you should remove the image from your website, as well as any versions in your server’s media folders.

Also, if after this letter goes out and Getty actually responds with proof that the image has been registered with the U.S. Copyright Office prior to your infringement, then consider paying their demand because registration would entitle Getty to at least $750 and you would have to pay their legal fees. The demand payment is probably less.

Finally, while the letter below should work for most Getty extortion letters, each case often has unique issues, so if possible, have an attorney look over your letter before sending it.

Getty Images Response Letter

 

[DATE]

Copyright Compliance Team
Getty Images Inc.
605 5th Ave. Suite 400
Seattle, WA 98104

Getty Case Number: [CASE NUMBER]

 

To Whom It May Concern:

Thank you for your letter dated [DATE] notifying [COMPANY NAME] (“SHORT COMPANY NAME”) that the website [WEBSITE NAME] (“Website”) may have used an image represented by Getty Images (“Getty”), without authorization.

If the alleged copyright infringement did take place, be assured that it was entirely innocent and unwilling. However, until this matter is resolved, and as a good-faith gesture, the potentially infringing image has been removed from the Website, and any other location on our server, including any server backups.

As a proposed licensing fee does not determine copyright infringement damage awards while admitting no guilt or wrongdoing, we are willing to offer a reasonable settlement based upon the fair market value. As noted in Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001);

“[C]ourts have construed “actual damages” by examining the fair market value of a license fee that the copyright owner would have obtained for the infringer’s use of the copyrighted material” . . . . “The question is not what the owner would have charged, but rather what is the fair market value.” 

We have found dozens of nearly identical or similar images that could easily replace the image at issue here. In some cases, the photos are available for a fee while others require credits. Below find some of the many functionally identical images from comparable stock photo sites. All prices listed are for sizes equivalent to the image in question, approximately [SIZE IN PIXELS].

  • “[IMAGE NAME]” (available on [STOCK PHOTO SITE] for [Price or Credits]:
http://[LINK TO IMAGE]
  • “[IMAGE NAME]” (available on [STOCK PHOTO SITE] for [Price or Credits]:
http://[LINK TO IMAGE]
  • List at least 8 images

Based upon our analysis of easy-to-find comparable images to the one at issue here, we calculate that a small sized, unremarkable image of a [IMAGE DESCRIPTION], has a fair market value of [FAIR MARKET VALUE]. As such, we are willing to offer Getty Images $20.00, which is equivalent to the minimum 10-credit purchase on Getty’s iStockphoto.com site. We hope our offer will amicably and expeditiously close this matter.

If you choose to reject the above offer, we ask that you provide the following information to establish your rights to the Image and to further support your settlement demand amount.

  • Please provide proof of Getty Images right to manage the Image.
  • Please provide proof of proper copyright registration and the chain of title for the Image.
  • Please provide a clear explanation as to how Getty Images has determined the valuation of this image as being so far above comparable images.
  • Please provide sales data for the Image for each size and use.
  • Please detail your costs incurred related to the pursuit of this case.

We will expect and require the above information before proceeding further. Thank you again for notifying us of this alleged infringement. We respect and appreciate the fair and reasonable application of copyright law. I hope you find this settlement offer adequate to close this matter prior to both parties investing more time and resources.

Sincerely,

 

[NAME]
[COMPANY NAME]
[TITLE]

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.