Can Getty Demand More Than An Image Is Worth?
Yes. If you used an unlicensed image, Getty can ask anything they want -- but this does not mean you have to pay that amount under the law. The maximum anyone, including Getty, asserting copyrights is subject to the law -- not to their discretion.
For example, if you used an image sold for $50 and $1,000 is being demanded, in court, Getty would have to prove there was a legal basis for demanding 2,122 percent more than the image was worth, and 400 percent more than the $200 minimum damages that they may be entitled to under the law.
Damages You Might Owe Under Copyright Laws
A Settlement Demand Letter from Getty Images or other aggressive intellectual property brokers almost always seem to be punitive in nature because of the large amount demanded. If someone has demanded far more for the use of an image than it is actually worth and demands are excessive according to damages allowed under the law to you may do better in court.
If you are found guilty of copyright infringement, civil law allows the copyright owner to seek damages against you for illegally using their property. Under the Copyright Act, damages may be set as low as $200 for innocent infringements and up to $150,000 for willful infringements. In some cases, punitive damages may also be assessed
A judge should take the following into account before deciding damages you owe:
- Did you benefit financially from using the images?
- Did you know you were in violation (i.e. did you the purchase a template with unlicensed images in good faith)?
- Did you immediately remove the images upon receipt of a cease and desist?
- Did you make a reasonable counter settlement offer that was not accepted?
- The actual value of the image.
- State laws that limit or cap damages.
Keep in mind that even if a judge did decide you only owed $200 (the minimum damages) you may also have to pay your own court costs and attorney fees. If Getty will accept $200 you may be better off just paying the minimum -- if they are demanding a lot more and will not budge -- call an intellectual property rights or criminal defense lawyer as soon as possible, many will give you a free legal consultation to assess your case, explain their fees, and offer possible outcomes if you settle or go to court.
Punitive Damages For Copyright Infringement
Punitive damages are different from economic damages (the actual value or cost of expenses or lost income -- tangible losses that can be calculated in dollars.)
In a civil lawsuit damages are sometimes awarded to the "injured" party to send a message to society to deter others from doing the same thing and to punish to wrongdoer (i.e., a company found guilty of harming the environment may be assessed high punitive damages to deter other companies from doing the same thing.)
But here is the thing: punitive damages are not automatic and are rarely awarded in small cases of coypright infringement (using one or two low-value images on your website would probably be considered "small" unless you profited by selling the images in some way to make your own money directly off of them.)
The Copyright Act ("Act") may allow someone to seek punitive damages in copyright lawsuits under certain circumstances, but these damages are usually capped (state laws vary but usually punitive damages are limited to no more than 2-3 times the amount of economic losses), the images (or other property) must have been be licensed, and it must be usually shown that the person guilty of infringement did so knowingly.
If your case were to go to court, Getty might be able to prove their economic loss if you really did not buy a license -- and they had rights to it. Economic loss refers to the money they directly lost when you did not buy a license, or any money you made reselling their items that they did not get. They would likely also be entitled to the minimum general damages under the Act -- about $200 to $20,000."
Getty would probably have a hard time proving a tort, or, "wrongdoing" worthy of getting punitive damages from you unless you took a lot of images, sold them, or used images that were worth a lot of money.
A Settlement Demand Letter Is NOT A Court Order To Pay
Getty sends out Settlement Demand Letters to intimidate you, betting that you will believe them when they threaten to sue (which, they can, and sometimes do sue over small amounts), and that you would rather cough up the settlement demand than risk going to court and having to pay attorney's fees.
Remember, a Settlement Demand Letter is legal notice to "cease and desist" (stop using unlicensed images) and an offer to enter into an agreement with Getty (by paying the amount demanded) the bars Getty from suing you. It is not an order form a court that you have to pay or accept the terms. Settlement demands are almost always negotiable sums that serve as a starting point - not an end figure.
If you are unable or unwilling to pay the amount Getty Images is demanding, it will only get worse if you ignore them (read, What To Do If You Get a Getty Settlement Demand Letter." You may need to hire an attorney.
Disclaimer: The above is not intended to as legal advice nor as a substitute for advice. It is strongly recommended you speak with an attorney as state laws vary and each case is different.