LawPulse

Getty Images is famous for sending fear-inducing copyright-infringement notices to individuals and small businesses. Here's what to do if your client gets one.

Most of us have an online presence of some sort. For many clients, that means a website for their business, a personal blog that gets moderate-to-heavy traffic, or some other curated online existence. And some people and businesses take shortcuts when designing their online spaces, copying and reusing images they find on the Internet. Enter the copyright infringement demand letter.

Many copyright holders aggressively defend their intellectual property. One major player in the copyright enforcement arena is Getty Images. Both the Art Law Journal (http://artlawjournal.com/respond-getty-images-demand-letter/) and Techdirt (https://www.techdirt.com/articles/20140820/18020328272/getty-threatens-wrong-ip-law-firm-its-copyright-trolling-efforts.shtml) have written about Getty's aggressive approach to copyright protection.

According to Professor Doris Estelle Long, director of the Intellectual Property and the Information Technology & Privacy Law Centers at the John Marshall Law School, while Getty has a legitimate interest in protecting the images it licenses, it could take less of a "blunderbuss approach" to how it handles copyright issues. She suggests that Getty and other copyright holders be more "directed in [their] approach" to policing their interests.

Specifically, she notes that copyright holders should only demand a reasonable amount of compensation for the use of the infringing image. Many copyright holders use bots to scour the internet for infringing images. Long advises that copyright holders should audit these bot search results before sending demand letters. Otherwise, the copyright owner risks becoming "the big, ugly ogre" even if it truly is an aggrieved party in some cases. The perception that most of its claims are simple harassment undercuts the copyright holder's legitimate demands.

Respond by being nice…or irritating

For attorneys whose clients have received a letter from Getty Images or a similar company, Long offers several tips. First, assuming the letter specifically identifies the infringing content, Long says the client should determine whether it really is on its website. The programs that copyright holders use to search for infringing content don't always produce accurate results.

She then advises looking into whether the image was licensed or is actually infringing. Taking down an image without investigating the claim is "how these guys win," she says. She also faults the party asserting its copyright. "There's a lot of [copyright] infringement that needs to be stopped. However, running a bot and sending letters without investigating" tends to make the copyright holder a "bad guy" from a public relations perspective.

If it turns out the client actually is using an image owned by Getty or another copyright holder, Long advises removing it and responding to the demand letter. However, she cautions against admitting that the image infringes. "Admitting to liability can result in a second demand letter with a higher demand," she says.

As a third practice point, Long advises that clients conduct the equivalent of a "comparative market analysis" when faced with a demand letter. Getty, in particular, has been accused of requesting grossly inflated values for its images. She suggests finding similar images at stock photo websites and providing an average of those price points to propose a new fair market value for the image.

According to Long, the risk is that "the copyright holder will take you up on the offer." She also notes that while the likelihood of Getty or another holder filing a lawsuit against a specific alleged infringer is low, Getty has sued to show that it "has some teeth."

Also, if you are sending a response letter on behalf of your client, Long advises that you spell-check your work and sound reasonable in your response. In this day and age, "anything you write ends up on the Internet," she notes. One way to defeat copyright trolls is to take the higher ground and "be the good guy."

Failing that, Long advises being the "irritating person" who inspires trolling law firms to give up. As the Art Law Journal's article notes, many copyright firms are paid for turning files around quickly. Long advises that the client request validation of the entity's ownership of the image, including chain-of-title details. Demanding more information tends to deter the firms that pursue copyright claims.

Many clients who follow tips like these end up paying nothing for the alleged infringement or only a fraction of the amount demanded by copyright trolls. Either outcome is a win, Long says.