What a difference a week makes! When I put up my first post on this topic, I had already resigned myself to losing a big pile of money just to get this nasty monkey off my back. I felt like a criminal. An unwitting criminal, to be sure, but I did feel oddly guilty. After all, innocent people don’t get threatened with lawsuits, do they?
Turns out they do, and I am NOT a criminal. Not by a long shot. I got myself educated, and I want to share what I’ve learned.
HOW I GOT EDUCATED
A dear friend of mine, who knows a thing or twelve about copyright law, chats with me online on a fairly regular basis. We started one of our quick catch up sessions and I told him of my woes with the renowned photo archive.
“I’d call a copyright attorney and ask for a free consult; this is bullshit…quite frankly, I wonder if it’s a scam.”
Then he sent me a link: http://www.extortionletterinfo.com/
I went to the site and started reading. I signed up. I trawled the forums. Oh my God, they do this to lots and lots of people! I posted my tale of woe on the forum, entitling my post “Another Victim.” Here is a typical response (which got A LOT of amens):
“I read your article and you are a fool if you pay this for several reasons.
1. Getty may not even own this image! Have they shown you proof?
2. IF they own the image it may not be properly registered, thus lowering any amount they would be able to collect IF it went to court.
3. It sounds as if you may have used this image to create a “parody” of sorts. If this is true you may be covered by “Fair Use”.
4. By rolling over and paying just re-enforces Getty to continue on trolling and targeting innocent infringers such as yourself.
5. Have you researched the image in question? Is it available from other sources?
6. Just because Getty pulls a random amount out of thin air, does not mean the images is worth what they are stating.
I could go on and on here…do you still want to pay?”
Besides the forums and videos on the ELI web site, registered visitors may also access real people who can help for a fee. For a mere $50, I had the option of speaking to Matthew Chan for 30 minutes on the phone. If I didn’t feel confident about handling the mess myself after the call, I could then hire an attorney to make it go away for another $195 (and there would be no pressure on me to do so). And frankly, I’d rather spend money on hiring honest guys who defend people like me against cretins like Getty. They are sincerely trying to help people overcome these kinds of hideous shake-down tactics and blatant abuse of copyright law. It’s important to support the work they do.
SHOCK AND DUH
Let me say a couple of things to complete this picture: 1) I have a really good memory and 2) I don’t scare easily. So in the spirit of full disclosure I hereby confess that I FORGOT that I’d received an actual letter from Getty by mail; so terrorized had I been by their approach, I actually blocked it out. Upon receipt of the letter, I put it on the side. I researched where the image was on my web site (as I mentioned previously, it was old and buried), deleted it and any references to it and then emailed License Compliance with my story, hoping they would take mercy on this poor honest slob. They did not. I looked in vain for their original email and could not locate it because the original correspondence was, in fact, a letter. Stress causes memory loss. You should know this in case it happens to you.
THE CHOICE I MADE
Once I got over the initial shock and started reading, I realized I was not alone. But I was in the midst of preparing for the M3 competition and didn’t have the time to sort through everything on the ELI site. So I made my $50 contribution and asked for the phone consultation with Matthew Chan. After a few email volleys, we set a date and general time of day. Matt called and he gave me the keys to the kingdom.
WHAT I LEARNED
I had been stressing about their “July 30, 2012” deadline, which Matt assured me was artificial and bogus.
My biggest fear was that if I chose not to pay them, Getty would drag me into a courtroom in Washington State (where Getty is headquartered). Matt reassured me that they would have to sue me in Federal Court in New Jersey (where I live and work), and filing for such a suit would cost them $350 (excluding counsel, travel and other expenses).
He also said that more than likely, no one actually read my email reply to their letter. What I got was a form letter email response.
Graphic artists have a right to display their work in online portfolios. This is “Fair Use,” as described above. I didn’t use the image to advertise my company or brand; I only used it to illustrate my skills in the context of my body of work.
And here’s the clincher: not one of these cases has EVER been successfully prosecuted. In the case of someone like me, using ONE image, with no proof of ownership on their part, the likelihood that they would go all the way in pursuit of such a pitiful, unlikely outcome in their favor is slim to none.
They will most likely continue to harass me, BUT if I answered with a certified letter, proffering an apology and offering a fair settlement based on what other photo archives would charge for a similar image, I would be showing good faith. I found two nearly identical images on iStock Photo and ShutterStock which would have cost me $9.95 and $19, respectively. I mean, we’re talking about an image of the WHITE HOUSE. If I searched my own archives, I’m pretty sure I could find a high resolution shot of my own to use. But that’s irrelevant, because I DON’T NEED THAT IMAGE. It was the basis of a project I did for a client TWELVE YEARS AGO.
Matt asked me if I felt better. I did. I do have cojones, and armed with the information he gave me, I knew I could write a good letter and deal with the subsequent abuse. I also told him I would cc him and the attorney on my letter. Having had a number of run-ins with them already, Getty would know that I was now educated, armed and ready for the next round of indignities. (Matt enjoyed the idea of me cc’ing them and thought it was one worth publicizing to other victims).
And in the event that the heat becomes unbearable, I can always hire the attorney.
Meanwhile, I wrote my letter, offered them a $50 settlement (hey, that’s more than TWICE what ShutterStock would charge me) and sent it certified mail, return receipt requested. Now I wait for the next move in this dance macabre.
Today, I got another email from License Compliance containing only the content of their previous email, agreeing to knock down the settlement sum to $980 if I paid by July 30 (today is August 7). I guess they didn’t get the letter yet; either that, or they haven’t connected the dots. And this underscores what Matt said; the deadline date is artificial and it appears they still hope I’ll just pony up the cash if they keep sending me reminder emails.
I also started a petition against this heinous practice of Getty’s. If you want to add your voice, please go here and sign it: http://www.change.org/petitions/getty-images-stop-shaking-down-small-businesses-for-alleged-copyright-infringement
So folks, that’s where I stand right now. The ball is in their court (every pun is intended) and I wait to see what they’ll try next. I don’t know how well I’ll be able to cope with this on my own as this story unfolds, but I’m very glad I didn’t just cough up a pile of money to make this go away. Sometimes you’ve got to do the difficult thing to make a necessary change. And with educated friends in my corner, I won’t give up without a fight.