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Author Topic: Class action suit filed against “Getty Images Master Delegate” in Israel.  (Read 9443 times)

scraggy

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Class action suit filed against “Getty Images Master Delegate” in Israel.

I have important news for ELI members. Today, I personally filed a 12 million dollar class action lawsuit in an Israeli court against “Marot Image”, Getty Image’s representative here in Israel, a “ Getty Images Master Delegate”. The court docket is number 23022-06-12.

Some of you may remember me from a while back here on ELI. My name is Ian Cohen, and I live in Israel. I was sued by Getty’s representative in Israel (Marot Image) in September 2011. They withdraw the case when I proved that they had no legal standing. I wrote my story on the Internet, and was contacted by around 100 other victims in the ensuing months. I collected all the evidence, and directly helped around 75 people in their struggle against Marot. I found a young outraged socially conscious lawyer ( Shahar Zamler ) to help these people for symbolic sums, thus giving people an economic alternative to simply paying up. There are several ongoing court cases, but we reached the conclusion that we had enough evidence to file a class action lawsuit against Marot for the illegal extortion of millions of dollars from unsuspecting victims who believed Marot’s central claim that they owned the right to sue for copyright infringement, when in fact, under Israeli law, they do not own such a right at all.

The payments were extracted under false pretenses, Whilst Getty has around a dozen official Getty Offices (that are listed on their licensing contracts), Marot Image is no such office. They are a completely separate entity listed as a company in Israel. As such, whilst they may suffer from delusions of grandeur, they are not in fact Getty Images, and they do have Getty’s rights. They are Getty’s sales representatives in Israel at best and no more than that. They probably do not own the exclusive license to even a single image in Getty’s image collection, and Getty cannot transfer the right to sue as a stand-alone right. Quite simply, with the explicit backing of Getty Images, Marot Images has been carrying out an extensive economic fraud in Israel for at least the last 4 years.

We claim in our lawsuit that Marot Image has fraudulently presented itself as the owner of the right to sue in cases of copyright infringement, and has illegally extorted vast sums of money from thousands of small businesses in Israel. Almost all these "businesses" were one man operations at best, operating out of home. Almost all were vulnerable targets. For example, there was a non proportionate number working in alternative medicine!

We have dedicated an entire section to Getty Images direct knowledge, involvement, and support (see below), and we have asked the court to add Getty Images as a defendant at a later stage (as allowed by the Israel class action law – clause 18B, 2010 ordinances). Whilst Getty may own an exclusive license, and therefore the right to sue here in Israel, they chose to run their “extortion scheme” by using a local company, whom they supported in every way possible. We claim that the proxy ( Marot Image ) had no right to sue , but deceived letter recipients into believing that they faced legal action if they did not pay up, and indeed filed dozens of lawsuits in Israeli courts.

The Israeli copyright act of 2007 is very similar to the American law. Here is a link to an unofficial English translation of the act - http://www.tau.ac.il/law/members/birnhack/IsraeliCopyrightAct2007.pdf

Clause 54 a states who may file a claim for copyright infringement:

54(a) A claim for the infringement of copyright may be
commenced by the owner of the copyright, and if an exclusive
license has been granted in respect of it as defined in section 37(d) –
such claim may also be commenced by the exclusive licensee.

In other words, only the owner of the copyright (the photographer himself with respect to most Getty Images) or the owner of the exclusive license (which, in theory would be Getty Images, although the Advernet verdict would certainly mean that this could not be taken for granted) could claim to own the right to sue, and indeed go ahead and sue.

Despite the above, Getty’s Israeli representative MAROT IMAGE (not an official Getty branch, but a totally independent local company) has claimed in thousands of “demand letters”, and in actual lawsuits, that it owns the right to sue. People believed this claim, and paid up to avoid the impending lawsuit and expected financial losses and high emotional price. Typically, Marot Images sold a retroactive license for the image used. They used all the scare tactics available to them, including intimidating phone calls, e-mails, draft lawsuits (with Getty as a plaintiff, although Getty was not added to the real lawsuits) and other forms of deception and pressure.

In many cases (including my own), Marot Images claimed to own the outright copyright! This was clearly absurd as even in Getty’s own contributor agreement, the photographer retains his copyright.

In other cases, Marot Images claimed ownership of the “exclusive license”.

Clause 37 of the law, states that the copyright holder can grant an exclusive or non-exclusive license, and that the transfer of an exclusive license has to be in writing.


37(a) Copyright may be assigned by contract or by operation of
law and the owner of a copyright may grant an exclusive license or
non-exclusive license with respect to the copyright.
(b) Assignment of the copyright or the grant of a license, as
stated in sub-section (a), may refer to the copyright in whole or in
part, and it can be limited to a certain territory, period of time, or to
specific acts with respect to the work.
(c) A contract for the assignment of copyright or the grant of an
exclusive license therein shall require a written document.
(d) In this section, "exclusive license" – means a license granting
its holder the exclusive right to do any acts as set forth in Section 11
specified by the license, and restricts the owner of the copyright
from doing those acts or from permitting others to perform those
acts.

In other words, only a direct agreement in which the photographer grants Marot Images an exclusive license would prove that Marot had the right to sue. No such document has ever been produced, but various other documents (provided by Getty Images) and other actions (initiated by Getty Images) have been used to create the false impression that Marot does indeed own an exclusive license. Marot typically claimed that Getty Images transferred its own exclusive license and/or the right to sue to Marot Images.

Marot also claims that they have received the right to sue (alone) from Getty Images.  They use a document signed by a Marek Wystepek, previously manager of Getty Ireland, and now “Director, Getty Images International” based in the Cayman Islands, to prove to Israelis that they have received this right. We claim that the stand-alone right to sue is not transferable under the new Israeli copyright law (2007). The law backs us up, as do important verdicts in the USA.

In 2011 alone, no less than seven law firms representing Marot Image sent hundreds, if not thousands of settlement demand letters threatening immediate legal action unless amounts of around $3000 were paid to Marot. The letters were worded in such a way that many recipients believed that they had received the letter directly from Getty Images. The letters are strikingly similar to those received in the USA, and include a copy of the infringement (courtesy of Picscout I guess), a mention of the maximum statutory damages that may be awarded by a court (around $12,500), and a tight deadline to pay up! We estimate that many people paid a compromise amount of around $1,300 per image. Those who chose not to pay were harassed by additional letters, draft lawsuits, phone calls, and ultimately real lawsuits were filed. We estimate that people paid up at various stages of the fraud. For economic reasons alone ( not to mention psychological reasons ), it always made more sense to pay Marot than to fight them in court!

Ultimately, people paid Marot because they faced an expensive legal threat, and untold mental anguish.

We claim that Marot never owned the right to sue under any circumstances, and their actions and claims constituted a sophisticated economic and legal fraud that caused unsuspecting small business and individuals, ignorant in the law, and under financial and emotional pressures, to part with millions of dollars.

What was Getty’s role in the fraud?

1.   Getty provided the details of the infringement to Marot Images.

2.   Getty provided Marot with the “ Getty Images contributor agreement” for each photographer.

3.   Getty provided the “Marek Wystepek” letter, which appointed Marot as their sole representative in Israel, and supposedly gave Marot the right to sue (and other far reaching powers concerning imprisonment, and the winding up of corporations following bankruptcy !)  , but only “in its own name”. According to clause 54B of the copyright law, all parties with the right to sue would in any case have to join an action to sue, so Getty’s agreement in fact contradicts the Israeli law. Furthermore, the law in Israel does not allow the stand alone transfer of the right to sue (similar to the Righthaven, and Sony v Silvers judgments in the USA).

54(b) A claimant filing a claim as stated in sub-section (a), shall join as a party any person entitled to commence a claim according to the provisions of that sub-section, however the court may, at the claimant's request, exempt from the aforesaid duty to join a party.


4.   Marot insinuated that the Marek Wystepek letter constituted the transfer of the exclusive license from Getty to Marot. The law (clause 37A) contradicts this claim (as only the copyright holder can transfer an exclusive license), and closer inspection of the document shows that Getty certainly did not transfer any exclusive license rights to Marot. Marot is at best an “exclusive representative” in Israel, and certainly not the owner of the “exclusive license”!

5.   A second letter with similar content was provided by a Jonathan Lockwood, (Vice president Corporate Counsel, Getty Images).

6.   The Getty legal team in London  (Irene Paricaud from Corporate Counsel, Getty Images) also wrote e-mails to letter recipients in Israel in order to persuade them to pay up!

7.   Getty Images adds a very peculiar question to its web site when purchasing a “rights managed” image for use on the Internet (for Web corporate and promotional sites). It asks, “ In which territories will the image appear? ” Clearly, any image displayed on the Internet will appear in Cyberspace, on the Internet, and therefore, be seen in all territories simultaneously. Yet, Israel (along with a large number of other very significant countries, such as China, Russia, Greece, South Africa, the Czech Republic, etc) is missing from the list. The site then says – “Missing territory? Please call for a quotation”, and clicking on the link leads to “Image Bank Israel”/ Marot Image ( or the local representative in your country ) In this way, anyone whose image is to  be displayed in Israel (aren’t all Internet images?) is forced to call Marot Image in Israel to pay for their Internet license.

8.   The lawyers representing Marot Images in Israel use the fact that Israel is missing from this list of countries in which an Internet image may appear, to claim that Getty has indeed given Marot an exclusive license that covers the territory of Israel. They claim that Israelis can only buy licenses (for display on the Internet in Israel!)  directly from Marot, and not from Getty.

9.   This is, of course, totally absurd. It would mean, for example, that all image licenses bought from Getty would in fact be violating the copyright of Marot Images, and also that of Getty representatives in all the missing countries. It would also mean that the Internet was divided into territories, in which images may or not appear. In theory, a site owner would have to buy dozens of licenses if he wanted his image to appear everywhere on the net!

10.   Marek Wystepek gave direct instructions to Marot Image who to sue, and when to withdraw cases. (The chairman of Marot Images was careless enough to forward some of the e-mails he received from Marek!)

11.   We offer evidence that in several cases (most particularly concerning the Dorling Kindersly and National Geographic collections, that even Getty Images itself did not have an exclusive license, but it still allowed Marot Images to initiate actual court proceedings.

12.   Getty contributed to the spread of its images by easily allowing the free download of images without a watermark from its website.



Other various economic and  psychological elements contributed to the deception. Marot Image pretended to be Getty. They used the Getty logo as a signature on their e-mails, their phone recordings thanked people for calling Getty Images and they used the domain getty.co.il.

The 7 law offices that represented Marot applied constant pressure on the letter recipients, repeating absurd threats such as claiming that the letter recipient will have to pay the full travel costs of the photographer’s visit to Israel! Draft lawsuits were sent to those that did not immediately pay up. The draft sometimes included Getty as a plaintiff, even though Getty had only given Marot permission to sue “in its own name” (Marot). Getty has not been a plaintiff in the real lawsuits that have been filed since the new copyright law came into being in 2007 .The lawyers threatened immediate legal action unless the victim paid up. Eventually, most caved in under the pressure, and were forced to purchase a retroactive license for the image used.

Different to Getty’s reported actions in the USA, Marot Image has sued with amazing frequency! All the more stunning, as they did not own the right to sue! The economic model worked in most cases. Quite simply, it made no economic sense to fight them in court when the cost of defending oneself was around 5 times the cost of settling. Even if one wins in court, judges never award real costs. Fighting them was a no win situation.

Whilst Marot is the local company that directly violated the law, they could not have accomplished such a feat without Getty as an active accomplice. For now, for practical and economic reasons, we did not add Getty as a defendant. Their role is however central to the fraud, and they can easily be added as a defendant at a later date, as can the many lawyers that represented Marot Image. In my humble opinion, they simply had to know what was going on!

We want to disseminate this information across the web. It way well be that Getty is acting in a similar way in other countries.

I apologize for having written such a long post. I have tried to summarize a 30-page lawsuit!

My name is Ian Cohen. My e-mail is iancohen@013.net. I give permission to any news organizations to publish this story. Please send me a link if you choose to write a story. I will be glad to speak to any reporters from around the globe. Just send me e-mail. I am available on Skype.


Thanks to ELI for supporting me, even when you didn’t know I was here! I follow every post! I like to think of myself as the Israeli Matthew Chan!

I sincerely hope there will be repercussions the world over. Getty overstepped the line here, by running a scam by remote control, but their proxy did not operate according to the law. They simply did not have the right to sue!

I will keep ELI updated.

Ian Cohen
« Last Edit: June 29, 2012, 02:07:34 PM by scraggy »

Robert Krausankas (BuddhaPi)

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Damn IAN! Gonna take me a bit to read thru this, but you go!
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Greg Troy (KeepFighting)

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Yes!!!!! Thank you Ian!!!!  This is great news, please keep us all posted on the status of the case.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

SoylentGreen

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Wow!!  This is big news!!
One can really see how this parallels Getty's extortion letter program on this continent also.

S.G.


Robert Krausankas (BuddhaPi)

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"The Matthew Chan of Israel"!!  Do keep us posted, it's about time someone other than Oscar stepped up to do the right thing. Kudos to you and your lawyer!
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Jerry Witt (mcfilms)

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Ian, you are my hero of the day. Thanks for doing all the leg work, building a great case, and sharing it with all of us.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

Peeved

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Holy Moly Ian WTG!

Best of luck!

Peeved

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I can't believe these jerks actually filed suits!..

"Those who chose not to pay were harassed by additional letters, draft lawsuits, phone calls, and ultimately real lawsuits were filed. We estimate that people paid up at various stages of the fraud. For economic reasons alone ( not to mention psychological reasons ), it always made more sense to pay Marot than to fight them in court!"

I also love the documentation of Getty's "contributions" to the fraud!

YOU GO IAN!
 8)

scraggy

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I believe that they had to file a certain number of lawsuits in order to create and strengthen the public impression that they owned the right to sue. The threat had to be real. I think they got carried away with their success, and exaggerated in the number of lawsuits they filed. But it’s paradoxical that Getty (who may own the exclusive license) rarely sues, and Marot Image (who has no right to sue at all) sues with such regularity. It’s almost as if the more they sued, the stronger their belief in their fictitious legal standing became!
Ian

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Ian, all I can say is "Thank you" for the thousands and thousands of victims around the world who have been taken in by Getty Images and their outside counsel copyright trolls like Timothy B. McCormack of Seattle, WA.

Reading your post made my day, and I've printed it out as bedside reading for this evening before heading off to sleep. Sweet dreams will be thus guaranteed. Well done, well done!

April Brown (AuctionApril)

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IAN - ANOTHER HERO TO MANY!! My respect man.

Moe Hacken

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Way to fight fire with fire, Ian. I'm sure it took a whole lot of time and careful planning on your part to put together this plan of counterattack. My hat's off to you for the dedication and precision with which you assembled the parts for the class action.

It will be interesting to hear which party was paying PicScout for Marot's trolling services on behalf of Getty, or if Marot was using another source for the "evidence" used in their extortion letters and lawsuits, and how they split the spoils they extracted from their victims. The sordid details are going to be brought to light for everyone to see.

Getty will also have to explain their deceptive terms of use and their lack of diligence in protecting their clients' intellectual property. I've noticed many micro stock photography companies are making an earnest effort to put very obvious watermarks on their comp images. Some of them, ironically, are even owned by Getty!

Here's an example from iStockphoto:

http://i.istockimg.com/file_thumbview_approve/16127471/2/stock-photo-16127471-manele-bay-hawaii.jpg

Here's a comp image from Getty:

http://www.gettyimages.com/detail/photo/bird-of-paradise-flower-kauai-hawaii-usa-royalty-free-image/139264605

Notice the disingenuous attempt to protect the image with a huge watermark on the right side. On the top left the comp image reads "Want an image with no watermark? Please sign in or register." The registration form is a joke. Anyone can lie to them on it and get a perfectly unprotected image. In a busy workflow situation, it would be easy to forget that the image is not licensed, or even where it came from and end up infringing innocently. I'm not defending people who would intentionally infringe, but Getty is virtually inviting the infringement by offering an unprotected version. That's how you get images on free wallpaper sites.

How come their micro stock company can do a better job of protecting their photographers' work? iStockphoto doesn't offer any options for comp images without watermarks. If you want to comp without a watermark, you have to pay, plain and simple.

Getty even offers unwatermarked comp images for rights-managed images! You would think an intellectual property they value so highly should be guarded much more jealously than a $10 iStockphoto image, but no. It's not different.

After reading the part about having to license an image for a country or region, I got curious and went on their little pricing form to see what it was like. It was ridiculous. It was far more complex than the form proposed by the Useplus people and it seems intended to confuse and deceive people into buying licenses that would later prove "inadequate" to Getty's "compliance team."

Look at this quote I got by filling out the form for a rights-managed image:

Image: 137409069   

License Details
Use   Web - Corporate and promotional site
Size   Medium resolution - Up to 300 x 250 pixels
Placement   Home page
Start date   Jun 13, 2012
End date   Jun 13, 2013
Territory   United States
Industry   Travel / Tourism
Exclusivity   No Exclusivity
           Contact us for exclusivity

Image:     Collection:                   Title:
137409069     Photographer's Choice   Rainbow Kauai

Price:   $ 475.00 USD
 

So it's $475 to use in the United States for 1 year (and you better not forget to take it down after exactly one year!), for a little 300x250 pixel image. I guess you have to make sure you block every IP outside the U.S. to "comply" with this ridiculous license.

Thanks for taking them to task and forcing them to explain themselves to the world. I'm rooting for you and your team all the way.


I'd rather die on my feet than live on my knees

Matthew Chan

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Ian submitted this very interesting document for posting in the ELI Document Library. Thanks, Ian.

Everyone can start salivating and start reading this little authorization agreement by Getty Images.

http://www.scribd.com/doc/97024522/Mar-ot-Image-Limited-Authorization-Letter-from-Getty-Images-Israel
« Last Edit: June 17, 2012, 06:21:46 PM by Matthew Chan »
http://Defiantly.net is Here! Matthew Chan Unleashed! Under the First Amendment, I have the right to share opinions using rhetorical hyperbole, colloquialisms, symbolism, snark, sarcasm, epithets, & combative language. Under Section 230 of CDA, I am only responsible for posts I write, not others.

doggycase

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Oh my goodness! This is unbelievable, but believe it. After days of getting frustrated, this has really made my day. I hope this will finally put to an end to their stupid extortion tactics..or maybe shut them down (all Getty offices worldwide).

Way to go Ian! Thanks!!! Keep us updated man. xD

Bekka

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Yea Ian!  This was a most pleasant read today.  Please keep us posted and I hope you guys prevail.  No matter in what country these extortionists tactics are used, it should be nipped in the bud.  I don't begrudge anyone making a living, but these people remind me of parasites, they feed off of others fear.  Time to get out the "troll powder!"

 

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