Getty Images is one of the largest purveyor of stock photos in the world and aggressively protects their copyrights. With the Internet being an ocean of visual imagery ripe for the picking, many stolen images are from one of the Getty Stock Photography sites. It’s so easy to copy photos from the web that we often forget that each one is someone’s copyrighted material. Add to that the prevalence of social media icons actually asking you to copy posts with just a click. Plus, the multitude of people who mistakenly believe that copying photos for their website is “fair use,” as long as they aren’t making money makes it easy to see why infringement proliferates across the Internet. Although these acts are infringements, most don’t rise to the level required to initiate lawsuits. Legal action is generally reserved for those who have damaged the copyright holder or have received a benefit that should rightly belong to the image owner. The majority though can be rectified with little more than a letter asking for removal of the infringing work.
However, Getty Images leads a new breed of copyright trolls who target these infringers, sending extortion letters designed to scare them into paying hundreds of dollars or risk a more expensive lawsuit. The infringing images are arbitrarily priced at levels high enough to claim significant damages, while similar images in their catalog sell for a fraction of that price. Because people don’t realize that most Federal Districts only require infringers to pay based upon the fair market value, not the asking price, companies like Getty can make a windfall with these demand letters. Also, understand that it is unlikely that you will actually be sued. Litigation is time consuming and expensive. Even filing a case can cost several hundred dollars, so a $1000 lawsuit may actually be a money loser for the firm.
Strategies and Tactics in a Getty Extortion Letter
First, and foremost, before responding, make sure the image is removed. Your use of the image may be an infringement, so it is best to begin by correcting the problem. Also, your response should be cordial; write in a business-appropriate manner. There is no need to be mean or indignant. The people handling this are merely staff for a firm. The firm’s profit is based on volume, with little incentive to draw out an action or litigate. Give them a reason to end the action, and they will move on to the next person. Irritating the staff will just provide a reason for them to make your life miserable.
Start your letter with an apology, explaining that any use of the image was inadvertent and innocent; once you were made aware of this presumed infringement, the image was removed pending the outcome of these discussions. Now, you can begin crafting a story that, first, will show Getty that even assuming an infringement, their damage request is too high. And second, that Getty needs to provide certain information before you will consider payments. The more time the law firm has to spend on this case, the less money they make. You need to make moving forward not worth it for them. Generally, the courts have decided that in infringement action like this, the infringer is only responsible for damages based on the Fair Market Value (FMV) of the image, not the asking price. So you need to show them what a reasonable FMV is for this particular image.
“The question is not what the owner would have charged, but rather what is the fair market value.” Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001).
To find the FMV, search for similar images on stock sites like Think Stock, Deposit Photos, iStock Photo or Dreamtime. These sites are membership-based, where either a monthly fee allows unlimited downloads or you buy a block of credits which can be used toward image purchases. Most images at web resolutions should only be a few dollars. Make sure you include some Getty-owned sites in the mix. Find 10-15 images that are substantially similar to the infringing one. Averaging their prices will provide a reasonable FMV. This is not a legal standard but it will be enough for your letter.
Next, make a list of the images, with their prices and links, so they can see for themselves that the infringing image is unremarkable and easily replaced. An example of a list item might be:
iStockphoto: “Puppy ready for a bath” (available on iStockphoto for 2 credits or $4.00):
At this point, you can counter with an offer based on the FMV. Assuming they don’t accept your offer, ask Getty for information showing they have the right to take this action. The firm you will be dealing with is likely making their money on volume of cases, with slim margins, so any case that takes too long is a loss for them. By making the case more difficult, they will be more likely to walk away. Here are some examples of information you might want to request:
- Proof that Getty has the right to manage the image in question.
- Proof of proper copyright registration and the chain of title for the image.
- Explain their calculations for determining the current sales price
- Provide sales data for the image
Hopefully, the case will end with this rebuttal but you may receive another letter or two. Respond with your offer again and remind them that you requested information that they have not provided. If you keep receiving letters, you may want to have an attorney write a response, which will hold more weight. Of course, if your actions were egregious, or the demand is for a significant sum, you should hire an attorney. But for your garden-variety Getty extortion letter, these tactics should prove useful.
For more information on Getty letters and a sample response, take a look at our article: How to Respond to a Getty Images Demand Letter
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.