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Timothy B. McCormack McCormack 617 Lee Street Seattle, WA 98109 Dear Mr. McCormack:
We are in receipt of your January 3, 2013 FORM letter wherein you failed to acknowledge the March 8 or May 11, 2012 settlement demand letters from Getty, or the response we sent on April 24, 2012. Neither your letter nor the May 11, 2012 settlement demand from Getty bothered to acknowledge any of the facts set forth in our April 24, 2012 response; the Getty letter only stating that the matter had not been resolved and that we had “one last chance to resolve this claim through payment” and your letter stating that the only way we had to amicably resolve the issue was through payment. Allow me to state here and now: we have no intention of paying you anything until such time as we receive verification that: 1) TraderView published the image (either negligently, knowingly or willfully), 2) The image was filed with the US Copyright Office and that the copyright is for the individual image or group of images, 3) The photographer of the graphic in question was, in fact, Gary Hush, as Getty claims in its letters, 4) A copy of the signed contract, assignment or other documentation between Getty Images and the artist transferring copyright (apparently Gary Hush) and giving you exclusive rights to the image as you have stated in your letter and in the Getty letters, 5) Sales history and records of this image and prices received for the image. NOTE: Please do not use “confidentiality” as a convenient excuse to not provide us with proof of some of these requests. We would certainly honor any confidential agreements you have and would agree to do so in writing. As I’m sure you are aware, it is Getty Images that must prove to a court of competent jurisdiction that Trader View infringed on their copyright, not the other way around. And further, Getty may not attempt to extort money from us using illegal collection methods in violation of the Fair Debt Collection Practices Act, The Federal Trade Commission Act, State Debt Collection Laws, and/or ethical rules of the Bar Associations in the states in which you are licensed. Your use of artificial deadlines to panic and frighten individuals and companies into paying before they’ve had a chance to research and realize what is going on, your implied threat of an eminent lawsuit, refusing to provide any justification or proof of your claim or how you reached the outrageous number you are demanding, are all actions which meet the legal definition of extortion. In our April 24, 2012 response, we attempted, in good faith, to explain to Getty some facts to try to resolve the situation amicably. We now add a few other issues together with those prior facts to present a fuller picture.
Our company hired a 3rd party web developer to develop a website for us. That company used a “comp” image on one of the pages of the website so that we could look at it and approve and accept, or not. We did not accept the image and within a very short time, had it removed completely. As you know, “comp” images are often used by website developers so they don’t have to go to the expense of paying for images that they do not end up actually using. There must be some method to be able to show the client what the site/page will look like before investing considerable money in an image that might never be used. This has become known in the industry as “comp” or “For Placement Only” purposes. The image in question was NEVER used on any final website that our company ever placed, published or provided to anyone, anytime, anywhere on the Internet. Please do not forget: it was Getty’s CEO, Jonathan Klein, who said in an interview with Tech Crunch, that he encourages people to take, use and modify Getty images freely up and to the point where it is used for business purposes. Since we did not “use the image in business” but only on a placeholder page (not accessible to the public), on a site that was not yet in “use” but for comp purposes, and immediately removed the image before the site was ever up and running, this then would definitely qualify as meeting Mr. Klein’s own definition of free use PRIOR to business usage.
2. Our web page that had the graphic at issue on it, was an internal page within the website, however, it was NOT accessible to the public. There was no method for the public to access this page. There were NO links from other pages and therefore, the ONLY way this page could be accessed at all would have been to know the exact web address for the shot, which was not published or given to the public at any time. As mentioned previously, it was only set up for comp purposes alone. As I am sure you are aware, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. However, this graphic of the dollar bills was never reproduced, distributed, performed, publicly displayed or made into a derivative work. The ONLY time the image in question was ever viewable was on the comp page which was NOT accessible to the public at all. 3. We have still not been provided with any evidence that Getty Images was, in fact, the copyright owner, creator or rights holder of this particular image. It is surprising that the image Getty provided in their “settlement demand” letter was so grainy – in fact, it was nearly impossible to recognize it at all. In addition, the “screen shot” Getty provided is just as bad. We were not able to access the exact image through the use of Getty’s alleged “catalogue image number” provided to us by Getty themselves. Searching Getty’s site for this catalogue number produced nothing. Further, a Copyright Office search for the name, Gary Hush, who Getty claims is the photographer of the image, also produced nothing connecting Mr. Hush’ name to an image of money and/or dollar bills. At this point, we have no idea whether Getty, or iStock photos, or Corbis, or some other company owned or had rights to this dollar bill image, or if it was even in the public domain. You certainly would not start making child support payments for a child that the mother had no proof was even yours just because she demanded it? 4. The Getty Demand Letters cite sections of the Copyright Act that have nothing to do with the facts of this situation. Merely citing Title 17 doesn’t put us in notice of which sections of the Copyright
Act that you allege we violated. Sending out a “form” letter of this nature is very unprofessional and impersonal. Unfortunately, Getty failed to respond to our April 24th letter or even to acknowledge it and the comments we made therein in any way, proving they had no intention of resolving the matter amicably. Instead, they merely sent out another form letter. At this point, it should be abundantly clear that TraderView has no intention of making any “settlement” payment to Getty since we did NOT infringe on any alleged Getty copyright or violate any of Getty’s rights in an unverified image. However, TraderView does intend to notify the Washington, Illinois and Florida Attorney General’s offices, The Washington State Better Business Bureau, the Washington State Bar and any other state bars where you are licensed to practice, if any, as well as any other individual or organization that fights against the use of threatening letters such as yours, in an attempt to extort money from a company that has not violated any of Getty’s rights in any way. Sincerely, Theodore B. Andros
cc: Joseph Herbert, Esq. Penelope Andros, JD
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