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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
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Experience:  Licensed Texas General Practice Attorney
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i received a letter from Getty Images that I used an image

Customer Question

i received a letter from Getty Images that I used an image on my blog that i need to pay $750. I immediately took the image down - and I received another letter stating Im still liable. Is this for real?
Submitted: 11 months ago.
Category: Intellectual Property Law
Expert:  Robert McEwen, Esq. replied 11 months ago.

RobertMcEwenEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RobertMcEwenEsq :

I am sorry to hear about your situation but this is most likely "real" and they are correct--if this is indeed their image, and you posed it on your site, you as the user are liable. You need to know that under the U.S. Copyright Act (17 U.S.C. 504), Getty can obtain damages of $750 per copyright for a willful violation, and $200 for an unknowing violation -- or, actual damages, plus attorney's fees and costs of suit -- at the election of the plaintiff/owner. So, you could offer them a settlement, send them a letter, saying that you don't admit to any infringement, whatsoever, and further you have had no sales through this website, nor any significant assets. You have yet to make a profit on this business anyway, and any litigation against you would absolutely wipe you out and force bankruptcy. But to close this matter you are offering $10 or $20, for them to completely and totally drop any and all claims against you. Include the check with the letter, and in the letter state that if they want to accept this offer, to cash the check. Expressly state that it is a counter offer to their settlement offer sent on MM/DD/YYYY, and the terms will remain the same...
This is actually indicative of a changing strategy in IP law... That is, a move away from C&D (cease and desist) letters towards settlement letters. The reason is because C&D letters are not "income producing". But as a practical matter, enforcement of IP rights boils down to money... That is, a letter (C&D or settlement) is MUCH cheaper to send than to actually file a lawsuit, serve the person, have hearings, discovery, trial, etc... A simple copyright lawsuit that is contested could easily cost $10,000. And as a practical matter, if there's no loss to the IP holder and no gain to the infringer, these cases almost NEVER go to that stage. The costs and time involved are prohibitive, and unless you are sitting on a mountain of money to pay their attorneys fees and damages, the likelihood that they'll actually collect a judgment is slim.
But even if they don't take your counteroffer (which means they retain the right to sue), that doesn't mean that they will actually sue. Again, it's all about money, and they're going to focus on the lawsuits that will bring them the most money for the least trouble. That means they're going to go after the big infringers, that have assets, rather than the small ones. ...that might declare bankruptcy at the end, meaning they get nothing, and spend much more than they'd ever recoup). In the end, this is a business, and they're not going to focus on the things that bring in pennies when they want thousands of dollars...
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

RobertMcEwenEsq :

Did you have any other questions before you rate this answer?

Customer:

thank you so much!! i am going to send them a letter with a check and see what happens - thank you so much for responding!

Robert McEwen, Esq., Lawyer
Satisfied Customers: 11213
Experience: Licensed Texas General Practice Attorney
Robert McEwen, Esq. and other Intellectual Property Law Specialists are ready to help you
Customer: replied 9 months ago.

hiya!!


so, they returned the letter and check...said they will not accept my offer and that if i do not pay in the next week or so my account will go to a third party.


At this point should I pay the $200 for an "unknowing violation" or let it go to a third party and offer $20 or something? I dont want this to ruin my credit - I have really good credit.


Thanks for your help (again) :)
Nicki


 

Expert:  Robert McEwen, Esq. replied 9 months ago.
It's hard to say that this would even affect your credit, since it was not a "debt" to begin with. If they reported it to your credit report, and it was not an agreed debt (in writing) or a judgment against you, that would not be on your credit report. Now that being said, they could still try to sue, and get a judgment against you (which could go on your credit) so that's something to consider. But if you were not to pay AND if they were not to sue (again, remember litigation is expensive) then it should not have any impact on your credit.
Customer: replied 9 months ago.

sweet. thank you.


 


So - would your advice to be to just let it be?


 


On a side note, I no longer even have the website/business anymore. I wasn't generating any revenue from it, so I took it down.


 


I appreciate your help!


Nicki


 

Expert:  Robert McEwen, Esq. replied 9 months ago.
Understood. I'm not advising you one way or the other. Rather, I'm giving the most likely scenario so that you can make an educated decision. Personally I would wait until it is with the collection agency, and make the EXACT SAME offer to them. You might find that they could take such an offer.
Customer: replied 9 months ago.

great - thankyou!


Have a really good day.


Nicki


 

Expert:  Robert McEwen, Esq. replied 9 months ago.
You're welcome, and again, good luck to you!

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