[hummas]

Hello,

I have received two notifications from GettyImages that I'm using a copyrighted image on my site. Come to find out - this image is an image sourced on Linkshare by a retailer. Like any other banner, I'm simply posting a banner on my site for this retailer. My website does not host or own the image. I received no cease and desist letter, just threatening collection letters. From my research I have done out on the internet most people ignore it.

Has anyone dealt with GettyImages before? I refuse to pay the $875 they demand. Any words of wisdom would be appreciated. Anybody from Linkshare?

Thanks

[andbeyond]

I have worked as a consultant for a business that got these from a previous designers work. I recommended ignoring them and that is what we did.

The letters were actually written and invoiced in a matter that made the laws unenforceable. At least that is how we saw it. The images had been online for years and really they never noticed or cared.

It is a scam and shows how little they care about people or the internet in general.

There are some good sources for info, here is one:

The Getty Images Settlement Demand Letter: Reporting on the Extortion Letter Scheme

[hummas]

Thanks for the quick reply!

So in your clients case, what was the end result? Did the letters stop, did they send it to a collections agency? In their latest letter they state "This is your last opportunity to resolve this matter with Getty Images directly." So, I assume there will be a next step in this scam.

Thanks for your help.

[Chuck Hamrick]

I recommend calling the number on the letter. If it goes to an offshore call center then I wouldn't worry.

[teezone]

I wouldn't ignore the letter...

Copyright violation of photos is a huge problem for agencies like Getty.. and although it wasn't your fault, an unlicensed photo was (inadvertently) displayed on your site.

I would respond to the letter that the banner was remotely hosted, and has been removed. It's true they can't enforce the letter, so I wouldn't worry about payment. It isn't a scam, it's fear tactics.

Unrelated to your banner issue - photo agencies can have a site shut down at the hosting level (I've seen it happen!). There are some website owners who assume because they can right-click on a photo to download it, they can upload that same photo to their site. My biggest monthly cost is photo licensing, so I'm not thrilled when other sites try to use them for free.

Personally I wouldn't ignore it, I would simply write back that the banner wasn't yours, and it has been removed.

[gamweb61]

Wikipedia is a great place to find free images. That will keep you safe from legal problems.

[hummas]

Thanks for all the replies.

I have sent an email like TeeZone suggested. Explaining that the responsible party is the retailer who posted the image on Linkshare, not my website. We'll see what happens.

[JoyUnltd]

Originally Posted by gamweb61

Wikipedia is a great place to find free images. That will keep you safe from legal problems.

This is about a banner provided by a merchant, NOT someone who personally grabbed an image from Getty.

There's all sorts of advice out there, but lawyers are creating Catch 22 situations all over. There's simply no way to check the legality of banners created by merchants...they know this & that these are 3rd party users.

I support copyright issues, but this type of legal action is called, "flinging the p**p & seeing where it sticks." It's a sad chapter in legal ethics.

[andbeyond]

I just wanted to chime back in. I said it was a scam and I meant that the way they are trying to get money and the amounts they are trying to get are just insane.

Usually the person that gets the letter had little to nothing to do with the offense (if any) and these can seriously hinder the small companies that they target.

They dont target bigger companies as their lawyers would laugh at them. They carefully screen companies and go after ones that are likely to pay.

There are laws about how long they have to notice and complain and they ignore that.

There are laws about GST Tax in AU and UK and they ignore that. They send letters around the world basically extorting people. I am purposefully not doing business with any Getty companies until they stop this behavior and apologize to the internet community.

Most likely forever.

[bobby131313]

There are laws about how long they have to notice and complain and they ignore that.

Not buying that one bit. If I'm breaking the law I'm breaking the law, doesn't matter how long I've been doing it.

[Rhia7]

Originally Posted by bobby131313

Not buying that one bit. If I'm breaking the law I'm breaking the law, doesn't matter how long I've been doing it.

Maybe he's thinking of Statute of Limitations
Statute of limitations - Wikipedia, the free encyclopedia

[bobby131313]

Maybe, but as long as your using a stolen image, the crime is still happening.

[JoyUnltd]

Originally Posted by bobby131313

Maybe, but as long as your using a stolen image, the crime is still happening.

So how do you propose contacting dozens of merchants that you, as an aff, advertise, demand the names of their banner designers, then contacting those folks & demand to see their purchase orders & usage contracts for the stock images? Surely you jest.

[teezone]

A banner that was distributed by the merchant, and hosted by the merchant, is the responsibility of the merchant. In this case, I can't imagine anyone would suggest affiliates undertake due diligence with all banners. But if we have been informed the banner isn't licensed to use the photo, we should remove it immediately.

On the general subject of the Getty letter, since photos are (by far) my biggest expense, I have zero tolerance for website owners & bloggers who download photos from another site and add them to their own. And it IS theft.. news images, celebrity photos .. these are costs of being in the editorial business. You can't get them for free from someone else who paid for them.

I've spoken to the legal department at my photo agency, and copyright violation is a huge problem that costs them in revenue. It devalues the work of the photographer, and the industry as a whole ... and yes, they patrol the internet to protect their own property. One editorial news photo can cost $50 for a 3 month license.

Website templates are usually a problem - you buy a template, but that doesn't mean you have purchased the rights to photos that came-with. The first thing I do for every template used, is source, then pay for, photos I want to keep.. template developers tend to use stock photography, which costs $5-$10 each.

If any site inadvertently uses an unlicensed photo, they should simply remove it.. as bobby131313 said, if the photo is still on the site, the theft continues to occur.

[andbeyond]

Well in one country they have 3 years to notice and complain about the action or it becomes unenforceable. In the case I was involved in they had missed that window.

Also they could not name the law or even country which the law was from. This was in Australia and they could not name the exact law or whether they were operating under USA or AU law.

The domain was a .com.au and ONLY operated in Australia.

I think several of you are pretending to be lawyers with a large amount of morality thrown in. I am not but know a bit about law. This is one of the least clear parts of most counties laws. Trying to enforce these in multiple countries and on the internet is fraught with legal clouds. Getty ignores them and harms small businesses.

Some usage of pictures, images, and video might be considered under "Fair Use" and could be used especially in commentary or satire.

Just because an image is on a site, does not mean a law has been violated. Not licensed properly is not a clear case of fraud.

It could be fraud but should be proven.

Not that I am saying I improperly use pictures because I dont. I license them, take them myself, or use free image sites.

In unrelated news Getty buys Free Pic Sites and limits how they operate:

Getty Images Ruins SXC.hu | Erin Blaskie | Digital Vanguard, Speaker & Content Producer

[teezone]

I think several of you are pretending to be lawyers and are not really lawyers. I am not either but know a bit about law. This is one of the least clear parts of law.

I don't think anyone is pretending to be a lawyer here, but some of us are experienced business/website owners. I have filed DMCA violations with hosts, and worked with a photo agency to shut down a repeat offender, both to protect my own content.

"Fair Use" is definitely an interesting topic, and this is great read: Stanford Copyright & Fair Use - Measuring Fair Use: The Four Factors

Much of this is subjective - there is no definitive answer.. I agree that the "legality" of the letters may not be enforceable, but a host will shut down a site if there are numerous complaints. As an affiliate marketer, protecting the site is a top priority.

I just noticed your comment "with a large amount of morality thrown in".. if you were spending thousands of dollars on photos yourself, I wonder how you would feel about another site stealing them?

[JoyUnltd]

Originally Posted by teezone

A banner that was distributed by the merchant, and hosted by the merchant, is the responsibility of the merchant. In this case, I can't imagine anyone would suggest affiliates undertake due diligence with all banners. But if we have been informed the banner isn't licensed to use the photo, we should remove it immediately.

Wrong, teezone. According to Getty, removing the banner does not remove a web site owner's liability. As far as they're concerned, you're using the image so you are breaking the law, knowingly or not doesn't matter.

Please read in entirety:
The Getty Images Settlement Demand Letter - My Case and Story So Far by Matthew Chan
EXCESS COPYRIGHT: Watching Getty Images Watching Canadians

2 extracts from the last link's comments:

I contacted my attorney who has pointed out a couple of things.

1. Getty never sent a "cease and desist" letter before their settlement demand. He maintains that is normal business practice and would, in fact, be a consideration if a case goes to trial.

2.) He noticed that Getty does not water mark all images. It is quite easy for someone to download non-water-marked, low-res images, repackage and sell on a CD as happened in my case. At what point does Getty bear the responsibility of protecting its own copyrights as well as the rights of unsuspecting purchasers of web templates, CDs, etc.

and

I just saw the legal agreement from a company "StockLayouts" - they are owned by Getty I think and they use images from Getty to sell brochure templates. Here is an extract from Para 2 of their agreement :

2. Limited Rights. Your rights to use Product(s) are limited in the following manner, in addition to any other restrictions provided in this Agreement or by law:

• Product(s) are licensed with no rights protection on a non-exclusive basis. StockLayouts gives no rights or warranties with regard to the use of names, trademarks, registered or copyrighted designs, elements or works of art depicted or contained in any image in any Product, and you must satisfy yourself that all the necessary rights or consents, as may be required for your use of Product(s), are obtained.

I don't know about the claim that Getty owns them, but StockLayouts advertises that they use Getty, Corbis, istock & fotolia images:
StockLayouts® - Royalty-free Stock Photos & Photography Resources

Isn't StockLayouts breaking copyright laws by selling templates that use images without proper licensing fees? How many folks actually realize to click the tiny "License" link at the bottom of the page and further click the Subscription License link?

It is well-known that frivolous lawsuits are generally settled out-of-court and small business owners do not have the funds to defend themselves. Getty and other stock image companies are targeting small business owners for one reason: an easy fee. Unfortunately, in the long run, these suits may actually hurt copyright laws.
Frivolous Lawsuits: A Serious Threat to Nation's Small Businesses

Please note, this thread is about website owners who use merchant banners being held liable, NOT about using third-party web templates, NOT about illegally grabbing images to use on a site or attempting to deprive a photographer of their rightful usage fees.

As affs, it isn't feasible to "source" merchant banner images & license them ourselves.

[teezone]

Wrong, teezone.

I was sharing an opinion, not telling you what the Getty letter said. I know the letter indicates removal of an uncopyrighted image does not remove the liability (and in reality, it doesn't).

But this is also a discussion about would be legally enforceable. It's my view that a merchant hosting a banner and distributed by the merchant would be the merchant's responsibility. There should to be a reasonableness factor here - and you can't tell me I'm wrong, when it's my opinion based on my own experience.

This isn't a discussion about third-party templates, but that's where Getty usually starts. It would be remiss to not bring it up in a discussion with website owners.

How many folks actually realize to click the tiny "License" link

Ummm, lots of people do.. it's the terms of use, which should be read/reviewed. It's why I brought it up as a (related) topic.

[JoyUnltd]

teezone, I can only imagine the headaches you and your agency have protecting your work. I'm not saying that this is a negligible issue at all. I totally agree with you that there should be a reasonableness factor here, but after reading about how they are going after the small fry end users—not the design firms or agencies that created the banners or templates—says otherwise, IMHO.

"Legally enforceable" means the defendent would have to hire a lawyer & take it to court. Most small business owners settle...they can't afford to hire a lawyer & fight the claim. Getty demanded $875 from the OP for using merchant banners, which weren't even hosted on their site. Hiring a specialist copyright lawyer would cost much more. What would you do? This situation is certainly something I never anticipated as an affiliate.

As a former designer, I once worked with a firm who had a full-time, image licensing expert on staff. Every piece was gone over with a fine-tooth comb as to image position, prominence on page, number of times used in the piece, # of pieces printed, distribution internally, nationally or internationally, if an ad, which publication, size of ad, etc. If designers even used a tiny portion of an image as a decorative element, it was noted & paid for. The final printed piece was required to be sent to the stock image firm. I'm very well aware about how photographers and illustrators rights must be respected & protected.

Mom and pop merchants generally don't have legally savvy staff, may even be 1 or 2 people, just looking for a cheap banner designer they found on the internet. Or they work with a design firm who outsources to offshore talent who don't comply with U.S. copyright laws. They truly have no idea, even though they remain legally responsible (knowingly or not). The larger merchants should know better, but may turn their heads.

My concern as an affiliate, is that according to the OP, it seems a merchant's affiliates are also responsible for displaying a banner using an unlicensed image. This is quite the conundrum.

[Dynamoo]

It's a sticky situations, but let's start with the basics:

Is the image actually from Getty Images? These things are often picked up by automated crawlers, so first of all we need to check that it IS what Getty says it is.

If it IS from Getty Images then they basically have every right to demand that you pay for it. It is of no consequence if you sourced the image from another party. I too have filed DMCA complaints against affiliates who have republished my work after it has been stolen by a merchant. If you want to try removing the image and pointing the finger at the merchant, then it is up to you.. it might be worth a try, it might not.

Assuming that a merchant supplied the image, then YOU have a problem with the merchant. Take them to whatever your local equivalent of a small claims court is to recover the money, because you received the image in good faith.

Let's be blunt - a merchant that rips off stock photos is NOT the sort of merchant you want to have a long-term financial relationship with. Make the bastards pay.

[JoyUnltd]

Originally Posted by Dynamoo

Assuming that a merchant supplied the image, then YOU have a problem with the merchant. Take them to whatever your local equivalent of a small claims court is to recover the money, because you received the image in good faith.

Let's be blunt - a merchant that rips off stock photos is NOT the sort of merchant you want to have a long-term financial relationship with. Make the bastards pay.

I'm not a lawyer, but unless the merchant lives in the same state as you, you cannot take the case to your local small claims court, you have to file a small claims suit in their jurisdiction, to the best of my knowledge. Winning a suit doesn't mean you'll automatically collect either.

I'm not talking about the big merchants who work with top ad agencies who should know better. Or make the mistake of working with agencies who outsource to offshore firms. Yes, their marketing/advertising departments should know these issues and verify them.

To be blunt: Mom & pop merchants have nary a clue about copyright issues...they don't even know of their existence to even ask such a question. They surf online looking for a cheap banner deal or they might use a designer friend of a relative who is just starting a home graphic design business but has never actually worked in the field otherwise. Essentially, the blind leading the blind.

I'm not excusing them, but they're hardly b*stards—just completely ignorant, which nonetheless can wreak major havoc.

Most affiliates do NOT make a living yet from this biz. Maybe you do. I do not. I certainly understand your and teezone's distress about copyright issues. I've had my site content copied more than I can count, but do not have the time, money or energy to pursue any of it. Not my reality.

I'm not saying you, teezone or the stock image firms shouldn't pursue this, but what is the solution for this particular situation? How can affs protect themselves? Take down all banners then write a letter to dozens of merchants? What do you recommend?

I'm a strong believer in an ounce of prevention is worth a ton of cure.

P.S. As this is not a LS issue, thread probably should be moved.
P.P.S.: The Stock Photo Industry Massive Copyright Campaign. What Getty doesn't do: a "cease & desist" letter, normally the first step in any copyright violation.

[Dynamoo]

Originally Posted by JoyUnltd

I'm not a lawyer, but unless the merchant lives in the same state as you, you cannot take the case to your local small claims court, you have to file a small claims suit in their jurisdiction, to the best of my knowledge. Winning a suit doesn't mean you'll automatically collect either.

Well, their local small claims court then I actually meant "local" as in local country, I was being a bit eurocentric, sorry.

To be blunt: Mom & pop merchants have nary a clue about copyright issues...they don't even know of their existence to even ask such a question. They surf online looking for a cheap banner deal or they might use a designer friend of a relative who is just starting a home graphic design business but has never actually worked in the field otherwise. Essentially, the blind leading the blind.

I'm not excusing them, but they're hardly b*stards—just completely ignorant, which nonetheless can wreak major havoc.

Correct, but the problem is that if you (as an affiliate) are facing a legal bill for an image that you used in good faith (from a merchant), then the affiliate has the right to seek compensation from the merchant for any loss. However, the affiliate is still liable in the first instance as they are the publisher. If the Mom & Pop store doesn't know how to stay legal, then perhaps it needs to employ someone who does.

I'm not saying you, teezone or the stock image firms shouldn't pursue this, but what is the solution for this particular situation? How can affs protect themselves? Take down all banners then write a letter to dozens of merchants? What do you recommend?

There are good merchants and bad merchants, what you're really asking is how do you differentiate between them. I guess you can add respecting copyright to what makes a "good" merchant along with paying up on time and providing a decent service to customers. Merchants that get their affiliates into legal trouble should be named and shamed IMO.

P.S. As this is not a LS issue, thread probably should be moved.
P.P.S.: The Stock Photo Industry Massive Copyright Campaign. What Getty doesn't do: a "cease & desist" letter, normally the first step in any copyright violation.

Indeed, I'll try to sort that out right now.

[JoyUnltd]

Originally Posted by Dynamoo

If the Mom & Pop store doesn't know how to stay legal, then perhaps it needs to employ someone who does.

There are good merchants and bad merchants, what you're really asking is how do you differentiate between them. I guess you can add respecting copyright to what makes a "good" merchant along with paying up on time and providing a decent service to customers. Merchants that get their affiliates into legal trouble should be named and shamed IMO.

By the time an affiliate gets hit with such a letter, it's too late...this isn' a solution.

I hope the OP will name the offending merchant & spare other affs.

A suggestion is to use banners that display only the merchant's products (which most already do in the hard goods vertical). My guess is that the service vertical is the dicey one, where you see images of office & IT employees, etc.

[Attorney Jaffe]

Originally Posted by hummas

Hello,

I have received two notifications from GettyImages that I'm using a copyrighted image on my site. Come to find out - this image is an image sourced on Linkshare by a retailer. Like any other banner, I'm simply posting a banner on my site for this retailer. My website does not host or own the image. I received no cease and desist letter, just threatening collection letters. From my research I have done out on the internet most people ignore it.

Has anyone dealt with GettyImages before? I refuse to pay the $875 they demand. Any words of wisdom would be appreciated. Anybody from Linkshare?

Thanks

I just went to the linkshare site and read their intellectual property section. I suggest you send a copy of the letter to them. They say they might look into it. I think if you contact them after sending the letter you will get some help from them.

[Trust]

I probably would ignore it myself and let the merchant know. But would like to know which merchant, just in case I might have them.