What to Do if You Get a Threatening Letter from Getty Images?
Getty images is a media giant. From exclusive celebrity photos to stock images, they have established themselves as the name in licensing photos for the Internet. But that’s not the only part of their business model. If you happen to accidentally, or purposefully, use one of their images without paying for it – beware. You’ll get more than a standard cease and desist letter. You’ll receive what some call the “Getty Extortion Letter.” It’s a cease and desist that includes a hefty “settlement” you must pay to avoid further legal action.
How It Works
Getty Images’ software crawls the Internet 24 hours a day, 7 days a week looking for websites that have used their images and not paid. They locate the website owner via a WhoIs lookup. They automatically send out an official legal correspondence with what they decide you owe for using the photo. But it’s what some have called copyright bullying or legal extortion.
Most copyright holders will begin with a simple cease and desist order. They tell you you’ve violated their copyright. You, in no uncertain terms, need to take down the image, song or video. You do and the problem is solved. But what makes Getty different is that they want their money. This settlement in the letter includes fees for use of the photo that they’ve decided. But if you’ve unwittingly used a photo for a long time this could be a hefty sum. The prices can also be inflated in the letter to turn a further profit. This doesn’t mean you are bound in servitude to Getty images. But, that could explain how people become paparazzi.
If you happen to get one of these letters, here’s a quick list to arm yourself against being a victim of, what some might call, a Getty Images cash grab. Disclaimer: What follows are tips for handling your Getty Demand Letter. This should not be perceived as legal advice. Legal advice requires money, which, if you’re reading this you might not have a ton of. Here’s hoping these tips can help you save some.
A letter from a law firm can seem intimidating if you’ve never received one. The wording and sticker shock of the “settlement” are scare tactics to convince you to write a check rather than explore your options. Also, these Getty Letter letters are auto-generated and sent out. You may not even be in the wrong. So step one is definitely *breathe*.
Remove the Image
As with any cease and desist request, be sure to remove the content immediately. This will put you in a good position with any further discussions with Getty Images. Also, it will keep you from incurring any more fees. It also wouldn’t hurt to double check your website for any other potentially problematic images.
Review Fair Use Rules
Fair use does not entitle unlimited use. But if you have a small not-for-profit website writing movie reviews or an educational blog you may have coverage even if you do violate copyright. Because only some types of content are considered fair use. Section 107 of the Copyright Act states:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
This is how many YouTube videos use copyrighted film and video clips. This article is helpful in getting the lay of the land of fair use:
Research Other Photos
The assumption is that you will pay the settlement to avoid hiring a lawyer. So utilize the one resource you do have, your time. An important factor is the photo distribution giant is only legally entitled to the fair market value of their photo. They are not entitled to damages, penalties, legal fees or any additional costs. Look for similar photos on multiple stock photo sites, even Getty properties to build your case. This will give you an understanding of what you really owe. After all, if you used a licensed photo you’ll likely have to pay something. Compare the rates of similar photos to ensure Getty is not trying to take advantage. This will also help in making a counter-offer.
The Getty game only works if they make more money than it costs to actually involve a lawyer. Lawyers bill hundreds for an hour of their time. Lawyers, like Kelly Keller, advise including a few questions in your follow-up response. If they’ve served you a legal statement that requires payment you are entitled to a response.
Here is some information to consider requesting in your follow up response:
- Proof that Getty is authorized to manage the image in question.
- Proof of proper copyright registration and the chain of title for the image.
- An explanation of their calculations for determining the current sales price and the accompanying demand
- Sales data for the image
Reply In Writing
Once things get litigious make sure every further interaction is in writing. It goes without saying be courteous and professional. You’ll want to draft a letter where you apologize and explain the mistake. Be clear if it was an intern or designer’s mistake or that you did not know. You’ll want to assure them you’ve taken the photo down. Also, include your counter-offer based on the fair market value of the photo. You’ll want to pepper in the legal questions to ensure they know you are aware of your rights. Also, as someone receiving a legal action, you are entitled to proof that you’ve violated the law. Avoid calling any phone numbers or hotlines because whatever you talk about or are advised is not on record. At least not for you.
You’ll likely get the subsequent follow-up form letters. After all, there is a system at play that auto-generates these letters. But you may want to hold out for a formally drafted response which may accept your counter offer. Or you may find you are not liable for any fees at all. Educating yourself is your best option.
The irony of it all is Getty Images was sued for $1 billion dollars by a photographer. Carol Highsmith received one of these letters with a settlement fee for posting a photo she took on her own website. The clincher, the photo was public domain as Highsmith donated all of her photography to the Library of Congress. She sued for damages to her reputation for charging for donated photos. The lawsuit sadly did not end in Getty changing their processes. Instead, it was settled out of court.
Trust that the law is on your side. If there was wrongdoing or negligence on your part pay what you owe, but not a penny more. And take the experience as a lesson on responsibly reposting photos.
Legal Disclaimer: While there are quotes from lawyers in this article, they should not be interpreted as legal advice. While you may be able to avoid hiring a lawyer, if official legal proceedings are filed you will want to consult with a lawyer
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