The Dangers of Downloading Internet Images- Getty Images Demand Letters

Dangers of Downloading Getty Images

 

Since at least 2008, Getty Images has sent thousands of letters demanding payment for copyright infringement to people downloading images from the Internet.  The demands range from $600 to $2,000 per image and in many instances, as much as $6,000 per image.

None of these images were “watermarked” or otherwise labeled as copyright protected.  A percentage of these images were not even owned by Getty Images.

Google has built its business through, among other marketing ploys, providing free stuff: Gmail, Google Maps, Google Earth, Google Docs, Google Drive (storage), YouTube, Picasa (image editing), and Google Images. Since 2010, Google has acquired at least 146 companies, many of which Google uses to provide free content in order to drive ad revenue for its Internet search business, Android software, and other ventures.

It is my opinion that Getty Images, utilizing Google Images, knowingly allows the public to believe that an image is in the public domain, and when a user, thinking there is no charge to use the image and downloads it, demands payment for claimed copyright infringement.  The amount demanded is many times the actual cost if the image had been properly licensed from Getty.

In my opinion, Getty’s business model is based on demanding excessively high payment from small websites, and settling for whatever can be obtained.  Historically, Getty does not institute legal action against non-payers and takes whatever is obtained through a collection agency or in some locations, attorneys seeking collection of the copyright infringement claim.

It appears that Getty finds the names and addresses by using search methods that locate the image on a website. At this time, it is not known if Getty is searching imbedded code or actual image-recognition.

There are dozens of websites dedicated to the problem of Getty Images Demand Letters.  Overwhelmingly, the discussion is on whether not the accidental use is, in fact, copyright infringement (my position: it is), and only minimal comments on the fraud aspect of the issue.  Thus, the resulting opinion is that Getty’s actions are “legalized extortion”, and since Getty does not resort to legal action to enforce the claims, which are predominantly against small businesses, Getty collects millions of dollars as the users find it simpler to settle (or ignore and hope Getty “goes away”) rather than incur the time and expense of a legal proceeding (thus, the very definition of a “nuisance claim”).

Whether or not Getty’s actions were technically legal in 2008, thousands of demand letters later, Getty cannot reasonably believe that people are knowingly violating copyright laws, and Getty has been constructively (if not actually) on notice that their practices are deceptive.  The attorneys and collection agencies employed by Getty (especially the attorneys) also have reason to know that Getty’s actions are intentionally deceptive,

As Getty’s senior vice president of business development Craig Peters told The Verge: “Look, if you want to get a Getty image today, you can find it without a watermark very simply … The way you do that is you go to one of our customer sites and you right-click. Or you go to Google Image search or Bing Image Search and you get it there. And that’s what’s happening… Our content was everywhere already.”

http://www.thewire.com/culture/2014/03/getty-images-gives-makes-photos-available-free/358868/

http://www.theverge.com/2014/3/5/5475202/getty-images-made-its-pictures-free-to-use

In 2011, Eric Schmidt, Google’s Chairman all but stated that Google was a monopoly:

http://www.businessinsider.com/is-google-a-monopoly-were-in-that-area-admits-schmidt-2011-9

This is a lethal combination: The Google monopoly coupled with the world’s largest controller of digital images.

OTHER ISSUES

Getty easily, and in fact does watermark its images.

When you search “group therapy images” the Getty image does NOT appear.

A search for generic images (“people sitting in chairs in a circle”; “group therapy images”) did not produce a SINGLE watermarked image.  Only when running the Getty identifier: “Mixed group of men and women seated on chairs, with a female practitioner, in a group therapy session” was I able to produce the image with a Getty watermark. Yet, the images produced were one and the same.

Random image searches on Google Images produces  virtually NO watermarked images, yet a forced-search for watermarked images will produce such images.  It seems that Google is “stacking the deck” to produce search results that confuse the consumer into believing the images are public domain.

Applicable Law

GBL § 349

GBL § 350

GBL § 601

Common-Law Fraud

Unjust Enrichment

Conspiracy To Defraud

Class Action Fairness Act (CAFA)

Failure To Defend Copyright

Fair Credit Collection Practices Act

GBL § 349

(a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful…

(h) … any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing plaintiff

GBL § 350. False Advertising

GBL § 601. Prohibited practices

No … creditor … or his agent shall:

…

  1. Claim, or attempt or threaten to enforce a right with knowledge or reason to know that the right does not exist…

GBL § 602. Violations and penalties.

  1. Except as otherwise provided by law, any person who shall violate the terms of this article shall be guilty of a misdemeanor, and each such violation shall be deemed a separate offense.
  2. The attorney general or the district attorney of any county may bring an action in the name of the people of the state to restrain or prevent any violation of this article or any continuance of any such violation.

Deceptive conduct that does not rise to level of actionable fraud may also form basis of claim under New York’s Deceptive Practices Act, which protects consumers from conduct that might not be fraudulent as matter of law, and relaxes heightened standards required for fraud claim. M & T Mortg. Corp. v. White, 2010, 736 F.Supp.2d 538.

A deceptive practice need not reach the level of common-law fraud to be actionable under New York deceptive or unfair practices statute. Diaz v. Paragon Motors of Woodside, Inc., 2006, 424 F.Supp.2d 519.

New York statutes making unlawful “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” applies to virtually “all economic activity,” and may be invoked regardless of whether the allegedly deceptive activity is covered by other laws. New York v. Feldman, 2002, 210 F.Supp.2d 294.

Scope of the deceptive business practices statute is intentionally broad, applying to virtually all economic activity. Blue Cross and Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 2004, 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140, answer to certified question conformed to 393 F.3d 312.

Provision of General Business Law which makes unlawful deceptive acts and practices governs consumer-oriented conduct and, on its face, applies to virtually all economic activity. Small v. Lorillard Tobacco Co., Inc., 1999, 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892.

Applicability of consumer protection statute which prohibits deceptive acts or practices is not limited to sales of goods. Scalp & Blade, Inc. v. Advest, Inc. (4 Dept. 2001) 281 A.D.2d 882, 722 N.Y.S.2d 639.

Links

Getty Images Using Backlinks and Traffic as New Revenue Model

Getty Images Releases a Free Option and Creates a Strategic Option

ExtortionLetterInfo: Fight Getty Images Settlement Demand Letters » Reporting on Getty Images Settlement Demand Letters

Image Copyright Infringement And Getty Images Scam Letter

Are Getty Images suing you? How to avoid getting sued by Getty

Getty Image Settlement Demand Letter: Scam or For Real?

$8k in Image Copyright Infringement Penalties: Bloggers, Beware!

The “Getty Images Extortion Scheme” | Random musings from a heavily caffeinated computer business owner

Consumer Complaints for Getty Images Inc – Alaska, Oregon and Western Washington BBB

Getty Images Demand Letter

Getty’s Free Images: Can Your Business Use Them? – Free Enterprise

ExtortionLetterInfo: Reporting on Getty Images Settlement Demand Letters | Facebook

WARNING: Getty Images tracking unpaid image use on wesbites – PistonHeads

Warn ALL of your users About Getty Images Professional Webmaster Business Issues forum at WebmasterWorld

I Received a Getty Images Settlement Demand Letter » Matthew S. Chan: Web Presence Strategist, Publisher, Author, Real Estate Investor

Received the Getty Images demand letter threatening a lawsuit?

Cease and desist letter received from Getty Images for possible copyright infringement – Avvo.com

Getty Images – Wikipedia, the free encyclopedia

15 U.S. Code Chapter 41, Subchapter V – DEBT COLLECTION PRACTICES | LII / Legal Information Institute

Computer Fraud and Abuse Act – Wikipedia, the free encyclopedia

Fair Debt Collection Practices Act | Federal Trade Commission

U.S. Safe Web Act | Federal Trade Commission

15 U.S. Code § 77q – Fraudulent interstate transactions | LII / Legal Information Institute

Getty Gets The Internet « The Dish

U.S. Copyright Office – Copyright Law: Chapter 5

Getty Images Extortion Attempts

Kreindler & Kreindler LLP Files Class Action Against Getty Images on Behalf of Professional Photographers |

FAQ about DMCA Safe Harbor — Chilling Effects Clearinghouse

Google Images – Wikipedia, the free encyclopedia

Contact the Stern Law Offices

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