Catalyst Complaint Cover Page

318838

Complaint
Number 318838 Date 6/5/2008 Status Assignee Actual Savings Amount Disputed Estimated Savings Closed Pieper, Rosemarie $0.00 $0.00 $0.00

Location Seattle - Consumer Protection Division NAICS 541920-Photographic Services

Complainant
Name David John Kelly 1013 Ford Rd. Minnetonka, MN 55305 Phone Day (952) 544-6356 Phone Evening Email (612) 735-3797 dave@kelly-law.com

Respondent(s)
Name Getty Images 2101 4th Ave Ste 500 Seattle, WA 98121 Contact Phone (206) 695-3400 Toll Free Email licensecompliance@ gettyimages.com

Referral(s)
Name Contact Phone Contact Phone Email

Practice(s)
Code 026 Practice Advertising

Activities
Date Added 6/17/2008 6/17/2008 6/17/2008 6/17/2008 Activity Type Form Letter to Complainant Form Letter to Complainant Form Letter to Complainant Form Letter to Complainant Activity C500_Information (used with R500 & most other Respondent letters) To: C500_Information (used with R500 & most other Respondent letters) To: C500_Information (used with R500 & most other Respondent letters) To: C500_Information (used with R500 & most other Respondent letters) To:

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Catalyst Report
Complaint Description
Description I have received a letter dated May 29, 2008 from Getty Images demanding that I pay $1,000 for use of an image of the U.S. Flag on my web site at http://www.mn-bankruptcy.com/exemptions.html. The image is something I found at a site purporting to offer "free clip art" which was not subject to copyright. There's nothing especially original about the image. It's the Flag of the United State of America. That's public domain as much as anything can be. It's not possible for there to be a copyright in that image. See 17.U.S.C. Sec. 105. I have found various references to the activities of this company around the internet, indicating that they have not been taking people to court; but rather send invoices for a while and then refer them to a collection agency. The victims don't get to defend themselves, but do get to have their credit damaged. I have replaced the image on my web page with another image, and have written Getty a letter denying liability. However, I am reading that they are very tenacious and that I should not expect them to quit easily. I am a solo practitioner lawyer, doing mostly bankruptcy work. My web site might look good, but I am nearly as poor as my clients and barely ahead of having to file bankruptcy myself. The letter I received has the flavor of a shake-down or scam of some sort, but I am without the resources to vigorously fight these folks on my own. They are apparently running a factory sending out these demand letters. I have no way of knowing if some of their claims may have some validity, but I submit that their claim against me for use of a photo of the U.S. Flag cannot be anything but frivolous. I would appreciate anything you can do to help me.

RK-00861 PRR-2012-00283

SandraH

7/21/2008

-----Original Message----From: John Grant [mailto:John.Grant@gettyimages.com] Sent: Thursday, July 10, 2008 6:20 PM To: ATG MI Seattle CRC Subject: RE: 318838 : A notice from the Washington State Attorney General's Office CRM:00511109 Dear Ms. Pieper: Chloe from the Getty Images license compliance department has forwarded this matter to me so that I may respond to the complaint in your file # 318838. By way of introduction, Getty Images is the largest supplier of licensed photography in the world. We provide still and moving images from National Geographic, the International Olympic Committee, the National Hockey League, Major League Baseball, the National Basketball Association, and photographers around the world to our business customers. More than 4,000 images per day are licensed on our website, www.gettyimages.com. Customers such as graphic designers, advertising agencies and publishers license our imagery for a variety of purposes, including but not limited to print advertising, billboards, newspaper and magazine articles, brochures and websites. Our license information is clearly available from each page of our website, and customers are not permitted to use imagery without agreeing to a license. Notwithstanding the license requirement, like other digital media companies, Getty Images does fall victim to individuals pirating its intellectual property. To combat this, Getty Images uses both employees and digital image recognition software to locate companies that have used Getty Images' imagery without paying a license fee, much akin to pirating music. One such company that was recently identified as having used unlicensed imagery from our collection is the Law Office of David J. Kelly on its website, http://www.mn-bankruptcy.com. Regarding Mr. Kelly's specific complaints and legal arguments, I offer the following: (1) While the American flag itself is a government work and not subject to copyright protections, photographs of the flag are independent creative works and are protectable under copyright law. Mr. Kelly confuses the protectability of the flag itself with the protectability of works of art that incorporate the flag; such works of art are undeniably subject to copyright protections. See FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340 (1991), holding that only a minimal amount of creativity is necessary for copyright
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protection. The photograph in question, available here: http://www.gettyimages.com/Search/Detail.aspx?axd=DetailPaging.Search|1& axs=0|973340-001|0&id=973340-001, shows a high degree of creativity. The photographer made specific artistic decisions regarding the lighting, posing of the subject matter (the flag), the exposure, and other artistic elements. This is far more than the "slavish copying" found to exist by the court in Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). (2) Lack of intent to infringe or lack of knowledge if infringement is not a defense to copyright infringement. Copyright infringement is a strict liability offense; no mental state is necessary. The copyright statute clearly places the legal burden on a user of creative content to ensure that he has proper permissions to use such content, not on a copyright holder to police use of his works. Failure to obtain necessary permissions results in liability for infringement, even if permissions were mistakenly obtained from an improper party. 17 U.S.C. 106 lists the exclusive rights of a copyright holder, including (among others) the rights to copy, distribute, and display the work. 17 U.S.C. 501 defines an infringer as anyone who violates any of the exclusive rights of the copyright holder without permission. While Mr. Kelly may have separate legal claims against any party that provided him with a fraudulent claim of title to the photograph, the facts as he describes them-even if true-provide no legal defense to infringement. And while Getty Images may also have claims against the claimed third party for unauthorized distribution, copyright liability is joint and several. Mr. Kelly, as someone who admittedly copied the photograph to his website and displayed it thereon, is by statutory definition an infringer. (3) Getty Images is entitled to damages for the infringing use. Mr. Kelly claims that this matter should be resolved by his removal of the infringing photograph from his website. Copyright law does not support his position, however. Under 17 U.S.C. 504, a copyright holder is entitled to recover both (1) his actual damages suffered as a result of the infringement and (2) the profits of the infringer due to the infringement. In this instance, we are only seeking our actual damages, namely the $1,000 fee to which we would have been entitled had this photograph been properly licensed from us prior to its use on Mr. Kelly's website. In short, while we appreciate that Mr. Kelly may be in a difficult situation, Getty Images has acted appropriately and in good faith in
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pursuing the unauthorized use of our intellectual property. We are certainly willing to consider any reasonable counteroffer Mr. Kelly may propose to resolve this matter. We cannot, however, allow any infringer to escape liability entirely; to do so would do a serious disservice to our photographers, our shareholders, and our legitimate paying customers. If you require any additional information about this matter, please do not hesitate to contact me. Best regards, John E. Grant Corporate Counsel Getty Images, Inc. 601 N. 34th St. Seattle, WA 98103 (206) 925-6111 john.grant@gettyimages.com

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