I recently made a post on the forum at extortionletterinfo.com concerning Timothy B. McCormack alluding to ELI being a scam site and making a reference to New York IP Attorney Oscar Michelen being an “ambulance chaser. I’ll proudly admit to the fact that part of the reason for my posting was to get Oscar’s attention, with the hopes that he would respond.. Well respond he did! You can see it in it’s entirety below. A worthy read if i do say so myself!
::NOTE:: Oscar’s Comments appear in BOLD ITALICS
Alright let’s dissect Tim McCormack’s latest onslaught of BS:
“Photo agencies such as Getty Images and Corbis Images (which employs me and provide me with 90% of my income)are known to be persistent copyright enforcers(persistent copyright enforcers is an industry euphemism for “troll”). They rarely grant complete clemency to organizations once they begin pursuit of claims (including charities, veterans’ groups and quilting bees). The following nine tips are offered by attorneys who deal with these types of copyright cases (only on behalf of the mass warehouses they represent); they give advice on what to do once your business receives a Corbis Images copyright or Getty Images demand letter (he should put a disclaimer here: they advice is not objective and honest as the writer does not disclose that he works almost exclusively for these companies).
1. Copyright Infringement is a Serious Matter.
First things first, copyright infringement is a serious matter. Mere use of a picture downloaded from the internet, even from a “free site,” is enough to create liability for a business using the copyrighted work without permission. Copyrighted works that typically get businesses into trouble for copyright infringement include images and text “acquired” from the various websites on the internet. (We agree here and have repeatedly made this statement on our website. That being said, even downright theft of one low res thumb nail image is not really a serious IP infringement matter.)
2. You Shouldn’t Ignore a Letter Notifying you of your Infringement
Ignoring a notification and/or cease and desist letter is a bad idea. Ignoring a copyright demand letter causes the valid copyright holder to expend additional resources to protect their copyright. Expending additional resources causes the valid copyright holder’s monetary damages against your business to increase. Ultimately this will increase the amount your business will have to pay in a copyright infringement law suit. Also, under federal law, a copyright owner can be entitled to $150,000 per willful infringement. (not when you don’t bother to properly register your images you cant and why do you keep saying this even though you know you principal client does not deal in registered images. And $150K is the maximum permitted under law for WILLFUL infringement. Does anyone think a picture of keyboard is worth $150K even if registered and intentionally stolen?)). Willful infringement means that you knew about the copyright infringement and did nothing about it. (AND continued using it after having been notified. But oops he left that out) Simply put, ignoring a letter from a photo agency such as Getty Images is not a good idea (because then Tim would not be able to pay his rent).
3. Copyright Infringement Demand Letters are Normally Pretty Reasonable.
The terms of the photo agencies’ cease and desist letters are normally pretty reasonable.(If making insupportable settlement demands is your measure of being reasonable) For example, Getty Images’ general policy is only to be put back in the position they would have been but for the copyright infringement. This means they are only looking for the licensing fees that should have been paid for the time period the infringing photographs were on your website (provided you thought it was good idea to pay their exorbitant pricing schemes and wanted features you didn’t need, like exclusivity and any additional cost of pursuing the matter (even though they have no legal basis for claiming those costs). Unless litigation is initiated, (which it never is)they are typically not looking to collect statutory damages if they are able to settle with the infringing business. (Tim, you are intentionally misleading people here – you are shameless. Your client has NO RIGHT to seek statutory damages for 99% of the images covered by their demand letters) This alone is a good reason to get the matter settled early.(that, and the fact that Tim has no other business)
4. Litigation will lead to Statutory Damages.
Under federal law, a copyright owner can be entitled to damages between $750 and $30,000 per infringement. (If the image is registered properly which its not) If it is shown that the infringement is willful, (which it rarely is and which is nearly impossible to prove)the law allows as much as $150,000 per infringement (these penalties are reserved for repeat, volume counterfeiters of copyrighted works. Tim knows that but doesn’t like law or facts to get in the way of his points. I guess that’s why he calls himself the copyright cow, because of all the BS he produces.).Each image identified on your website can be considered a separate act of infringement. Recent jury awards have ranged from $675,000 to in excess of $1 million dollars in damages for copyright infringement. Recently, one jury in Western Washington awarded over $1million dollars in damages for the unauthorized use of as few as five photographs. (This is the same case he cited to on his website in January 2010. He never gives specifics of the case, and I have never been able to find it. I am sure there is a story here as to why the jury awarded so much. But Tim is light on details to no surprise.) The general theme here is the matter gets worse the longer an infringer puts off dealing with it. (Unless you wait out the statute of limitation and they fail to file a lawsuit as Tim would tell you is what happens in 99% of the cases he handles that don’t settle if he were honest)
5. You’re Liable Even if you Didn’t Know you Infringed a Copyright.
Copyright law prohibits both accidental and willful copyright infringement. (Look boys and girls an accurate and honest statement of law!) As stated by one federal court recently, “there is no need to prove anything about a defendant’s mental state; [copyright infringement] is a strict liability tort.” A strict liability tort is a legal wrong that does not require a “mental intent.” In other words, a copyright owner does not need to prove a defendant intentionally infringed the copyright in order for the defendant to be liable because it is a “strict liability” tort. If you copy a picture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted. Further if you hire someone, such as an employee, an independent contractor, or a web designer, you are also liable for using the pictures that third party posed to your website even if you were unaware of what they did. (He’s on a roll! He must have learned all this from his constant surfing of ELI)
Thus, the business displaying the copyrighted work without permission on their website is liable as the end user of that image. In short, the old adage, “ignorance of the law is never an excuse” applies to copyright law because even if you did not know, you might still be liable for copyright infringement. Most legitimate business want to do the right the thing and get these claims settled.(Now if we could only get Getty to act like a legitimate business and make a fair settlement offer) If the same thing happened to them, they would feel the same way.
6. Don’t Believe Everything You Read on the Internet (especially this crock of garbage)
There are some sites on the internet that spread false information about these types of claims (Like mccormacklegal.com and blog.seattlepi.com/timothymccormack to name two). Any nut with a computer can type something on a blog (and you’re proving that point right now). As any librarian would tell you, “buyer beware.” (What?) This is especially true of information acquired from the internet. Once scam site even notes that Getty Images never sues companies. (Hey Matt and company, I think he may be talking about us!)This claim is absolutely false(Prove it!). It is a matter of public record that Getty and Corbis do sue companies. In fact, they sue large companies and small companies and they pursue large and small claims. (With about the frequency of a blue moon, the Perseid meteor shower, Halley’s Comet and an objective political news report on Fox.) Any site that says differently is suspect (and any site that says this without listing dockets as proof should be highly suspect. .
Example of Getty Images case seeking statutory damages for one image (Why not just cite us one or two of the many times this has happened Copyright Cow?).
Beyond the public record, let’s look at the economics. Say a company has a copyright infringement claim of between $2,000 and $20,000. I know that is quite a range but the economics work out the same! The cost of defense, retaining a defense lawyer, dealing with jurisdiction and preparing an answer will cost in the range of $7,500 to $20,000 (Not true if the claim is for a digital image or two. I even know one particular NY lawyer who will do it for $195!). It will be more in some cases! After that (the first month) you have 18 more months to go! (Only the most serious copyright infringement cases will ever last that long. A federal judge will certainly not let a suit over a few digital images -if one were ever filed- go on that long) The total cost could be ten to one hundred times that.(If that’s so, Getty would be paying those fees as well and since the images are not registered, they would not get their legal fees back) When the attorneys’ fees are applied, (which will never happen unless the images are properly registered which TO DATE they have never been)the business being sued is out of business(so then good luck collecting any judgment from them genius. You would have had your client spend tens of thousands of dollars – or using your calculations as much as $200,000 – to get an uncollectable judgment. I suggest you stick to trolling if that’s the kind of legal advice you usually give). Why would the image companies pursue me? You are not the only one. Sometimes an image company might even be required by contract to pursue the infringements. Don’t take a change on getting embroiled in litigation. (Even though the chance of litigation is less than 1%) The only winners will be the attorneys (on both sides). Keep that in might when getting advice from the internet. (YES please do) What incentive does a blog have in telling you that you won’t get sued? One cynical answer is that they want you to get sued so they or associated “ambulance chasers” can earn fees on your misfortune.(Right. Because if that happened no one would ever post that on our site. How is it that in all the years ELI has operated, no one has ever come on to complain that this was our ruse. Calling me an ambulance chaser Tim is reprehensible. Especially coming from someone who won’t even admit he is a shill for these companies and attempts to pass this off as a legitimate, objective article. We back up what we say on ELI. We name names. We cite cases. We put up documents. We admit when we make mistakes and we allow public commentary. How come your article doesn’t seem to allow comments? Why not share some documents that back up the claims you make? Why not address some of these issues on this site? Why not NAME me – be a man not a cow. If you believe in what you say call me out on it. Name me and call me an ambulance chasing hack with no business who needs to scare or deceive people in order to develop a practice. Oh wait, that’s what I call you, my bad)
Getty Lawsuit Document
7. Photo Agencies such as Getty Images are Well Represented.(Tim, have you seen what ELI has found out about some these lawyers?)
A photo agency’s life blood is their copyright protected images. One of the largest photo agencies in the world is Getty Images. Getty Images is an efficient organization when it comes to extracting damages from companies found to be infringing their copyrights. The bottom line is, their experts and lawyers know copyright law inside and out because that is all that they do day in and day out (When not deceiving the public, misstating the law and failing to disclose who they work for). Generally speaking, these representatives are easy to work with and professional; it is better to work with them as opposed to against them. (Unless you feel you are being extorted for something you didn’t do or didn’t know was wrong. Or you receive a letter from these nice, congenial professionals that threaten you with arrest -even though its a civil claim-; threaten you with debt collection and harm to your credit report – even though its a claim and not a debt and therefore not reportable and not able to be placed into collection; demand statutory penalties -even though there is no legal basis for doing so; and demand excessive and exorbitant fees that they know no judge has ever or will ever award; then won’t negotiate in good faith and repeatedly call and harass you to death. Real sweethearts.)
8. A Moral Decision
Copyright infringement is prohibited by law. But more importantly, copyright infringement is morally wrong(So is what you are doing). Photographers earn their livelihood through licensing photographs. If you do not pay for the use of their photographs, you are stealing their product. (Agreed if you just add the word “intentionally.” Stealing means to intentionally, not mistakenly take property.)
It would be similar as if someone walked into your store, grabbed a product off the shelf, and walked out with it without paying. (And then wrote you that you could go to jail for 10 years and had to pay back 50 times what the product was worth. Oh and one other fact to add to the example. Instead of you grabbing the product and running out of the store, you asked someone to please buy you the product and they steal it, charge you for it and then give it to you.) A just and moral society can’t operate peacefully on such behavior.
9. If you Can’t get it Resolved, Consider …
If you do find yourself facing a copyright infringement claim, all is not lost. In some cases, a standard business liability insurance policy (“slip and fall” policies) will cover copyright infringement claims made against a business. (This is flat out wrong. A slip and fall policy never covers this type of claim. You have to have advertising liability or IP liability in your policy. Even if you have it, your deductible is usually higher than the damages. But Timmy wants you to do this because insurance companies will not litigate a $1,200 claim. They’ll pay you that just to make you go away.) This special coverage, which is included in many business policies is often called “advertising insurance.” (Oh, here he gets it right, so why call it slip and fall insurance?”) Ask your insurance agent if you have such coverage. Finally, if you are uncertain of what steps to take, contact a knowledgeable attorney. (Like Oscar Michelen over at ELI)
Let’s face it, checking to ensure your business has copyrights to all the images on your website might not be on the top of your to do list. If your organization is in this position and a Copyright Infringement demand letter hasn’t arrived yet, there’s still time to get your cards in order! Once a demand letter hits your mailbox, however, the game changes.
In short, do not use copyrighted content without permission. A good general rule of thumb is, “if you did not take the picture, you need to pay a license fee to use the photograph.” (Gee, we have only been saying that on this site for years now)
This is common sense. Just like you would not take candy from a store without paying for it, you should use original content on your website or license content from third party vendors like Getty Images, Corbis Images or other similar provider of stock image photography. (Tim, this entire article was meant to get folks to buy into your trolling business and pay when they receive one of your demand letters. You know you have not sued over this claim and are instead making money hand over fist by scaring people into thinking they might be liable for $150K when the value of the claim is much closer to $150. I know some folks here have had some fun at your expense and I have not been a fan of that treatment you received as I always try to take the high road and as our positions are legally sound and we have behaved morally fair on our site sine its inception. But lowering yourself to lie about us and our site and call me an ambulance chaser is really inexcusable. You have to ask yourself why you need to stoop to this if you have the factual support and documentary proof to support your claims. All I know is this – since Matt and I started ELI, we have sought to provide a way for people to deal with people like you. We have always provided both sides of the story, put our names and faces out there, and have stood the test of time. If any of what you wrote were true, it would be posted all over the internet. Google your name and Google my name and see what comes up. Who would an objective person say is the ambulance chaser? Here endeth the lesson.)