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Author Topic: Copyright Infringement Lawsuit Statistics in Stock Photo Industry  (Read 5620 times)

Matthew Chan

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Over the years, there has been speculation over how many copyright infringement lawsuits are actually being filed by stock photo companies. And out of those lawsuits that were filed, what were the outcomes?  I have taken the position that in recent years the PROPORTION of lawsuits filed vs. extortion letters is very low, less than 1%. I have also said that the "success" rates for the stock photo industry is very low. What I define as "success" is from the stock photo industry perspective.

They not only have to win a lawsuit but they have to get a judgment that exceeded their legal fees & expenses and actually collect on those "winning cases".  Getting a default judgment is relatively easy if defendants don't show up. However, actually collecting on those default judgments are an entirely different animal.  In many cases, default judgments are simply "paper wins", not actual monetary wins. The stock photo company is often left with a big legal bill with very little financial reward to show for that "paper win". It is my belief that Masterfile was left with a crushing legal bill with relatively little financial rewards after 2010 which accounted for the sudden drop of their filing lawsuits. It appears that both Getty Images and Corbis did not enjoy much financial success either through their early attempts in filing copyright infringement lawsuits. This is consistent with prior attempts by RIAA, Righthaven, and Prenda. Each of these parties either stopped because of losses from the lawsuit strategy or were entirely put out of business.

People CHOOSING to settle is not counted as a legal victory but would likely be counted as a financial victory for the stock photo company. However, even then, each of the stock photo companies would have incurred a fair amount of legal expenses (such as court costs, filing fees, and attorney fees) along the way.

Vincent K. Tylor, a private photographer from Hawaii, is currently on a tear on the lawsuit front. From what I can tell, there hasn't been a single lawsuit that has "gone all the way". He has successfully scared people into settling. It remains to be seen how long he can keep up his current record.  Prior to VKT, Masterfile had the most aggressive lawsuit record from 2009-2011.

I am happy to say that with some exceptions, legal "success" by the stock photo industry has been very low. Sure, there have been occasional lawsuits filed and many were settled along the way.  But proportionally speaking, in the last 5 years, less than 1% of all extortion letters ever became a lawsuit. The reason for this low percentage has to do with the large numbers of extortion letters being issued each year. I conservatively estimate the number of extortion letters issued by the stock photo industry/photographers to be around 10,000 per year. To hit a 1% lawsuit filing ratio, 100 copyright infringement lawsuits would have to be filed per year by the entire stock photo industry. And while ELI doesn't track every single company that issues extortion letters, we follow the largest and major players reported to ELI.

In my investigation using dockets.justia.com, I physically tracked and counted copyright infringement lawsuits filed for six companies in the last five years. However, I did not take the time to track the outcome of each of these lawsuits.  In the case of Masterfile, it would be a very time-consuming project for the years 2009-2011 to manually analyze 64 lawsuit outcomes.  A cursory review shows that many of them settled out of court.

Here are my results with some commentary for unusual deviations.

Getty Images

2014 - 6 so far (5 were boilerplate & settled)
2013 - 2 (1 was for the infamous Virtual Clinics who defaulted.)
2012 - None
2011 - None
2010 - None
2009 - 1 (Advernet, Getty lost even though Advernet stop defending the case!)
2008 - 5

Masterfile
2014 - 1 so far
2013 - None
2012 - 5
2011 - 10
2010 - 39
2009 - 15
2008 - 2
2007 - 1

Corbis
2014 - 1 so far
2013 - None
2012 - None
2011 - None
2010 - 1
2009 - 8
2008 - 0
2007 - 8

Hawaiian Art Network
2014 - None so far
2013 - 1
2012 - 1
2011 - 3 (Filed with Vincent Tylor. 1 was Aloha Plastic Surgery that counter-sued them into a settlement)
2010 - None
2009 - None

Vincent K. Tylor (VKT)
2014 - 13 so far (Vermont Woods twice because their lawyer dropped the earlier one)
2013 - 14
2012 - None
2011 - 3 (Filed via Hawaiian Art Network)
2010 - None
2009 - None

Realtor Jennifer Sherrouse/Atlanta Photgraphy
2013 - 1 so far (still being litigated)
2012 - None
2011 - 1 (settled)
2010 - None

I will be adding to and updating this list as I discover new information and discover other companies and photographers that actively engage in sending extortion letters and filing lawsuits. If anyone has notable companies and photographers we should start tracking, please respond to this thread.
« Last Edit: August 06, 2014, 06:39:09 AM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Greg Troy (KeepFighting)

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Re: Copyright Infringement Lawsuit Statistics in Stock Photo Industry
« Reply #1 on: August 06, 2014, 01:04:19 PM »
Matthew,

It is also interesting that as ELI and others spread the word about the business models of these companies how more and more people are refusing to just roll over and are fighting back.  I have not tracked the other companies you mentioned but here are the numbers for Getty Images and McCormack IP Law's Attorney General complaints.

Getty Images

2005 - 1
2006 - 4
2007 - 4
2008 - 4
2009 - 5
2010 - 4
2011 - 13
2012 - 54
2013 - 74

McCormack IP Law
(Not sure when he started working with Getty but I would guess about 6-7 years)

2008 - 0
2009 - 0
2010 - 0
2011 - 0
2012 - 11
2013 - 21

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

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Re: Copyright Infringement Lawsuit Statistics in Stock Photo Industry
« Reply #2 on: August 07, 2014, 10:26:07 AM »
Thank you for all the statistics and other info it is all extremely helpful. What are the common denominators of the Plaintiffs that Getty (and or the others but particularly interested in Getty) has selectively chosen to sue for single images in the past year? Why were they in particular chosen out of the many thousands in your opinions to sue?

Matthew Chan

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Re: Copyright Infringement Lawsuit Statistics in Stock Photo Industry
« Reply #3 on: August 07, 2014, 12:00:34 PM »
This has already been covered in another thread.

For the five Jan. 2014 cases , the common denominators were they were all small corporations with a registered agent that could easily be found and served. It saves on process service costs. They were also small corporations that were perceived as likely to settle, not simply let it go into default.  They were perceived as likely not to put up a fight.

And they could financially "afford it" without too much stress unlike many smaller parties such as single-owner businesses/entrepreneurs/proprietors/parties. Getty Images, through Scott "Towels" Wilsdon's legal genius (billing out at $465/hour), wanted to send a symbolic message to less discriminating minds that they will file boilerplate lawsuits against single-image infringements.

And there was the oddball Virtual Clinics case from 2013 and carrying over into 2014 which ELI can't possibly defend or support because of the scale and egregiousness of their infringements.  They are a unique case all unto themselves.

There isn't really much of a true pattern to analyze when you only have 5 cases out of thousands of extortion letters. The sample is too small.

Getty Images is going to have to crank out another 90 lawsuits or so to hit the 1% mark.  However, if they "only" cranked out 10 more "cheap" lawsuits for 2014, it will be "big news" to report.

The filing fee cost to file a federal civil/copyright infringement lawsuit is $400 for each case.  $350 plus a $50 additional admin fee for civil cases.

http://www.uscourts.gov/FormsAndFees/Fees/USCourtOfFederalClaimsFeeSchedule.aspx

It doesn't include attorney fees Getty has to pay Scotty Wilsdon and/or his paralegals nor does it include attorney fees for the local attorney sponsoring Scotty pro hac vice. There might even be an application fee for any attorney admitted into a given state/district pro hac vice.

All of this doesn't include the time spent by the internal Getty lawyers and staff members that work on the case.

The details and nuances go on and on for the legally curious.
« Last Edit: August 08, 2014, 12:31:49 PM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

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Re: Copyright Infringement Lawsuit Statistics in Stock Photo Industry
« Reply #4 on: August 08, 2014, 10:00:54 AM »
Thanks Matthew. Good points. I guess the scary thing resulting from the Virtual Clinics case is the potential for a very very high statutory potentially almost automatic damages amount so that will pressure the small corporation or llc  they are targeting to settle up to some usurious amount - more obviously than the pic was worth, and will now include attorneys fees on all sides and court costs. The problem is that by law many are not "innocent" but simply ignorant in using the pic. Maybe they got it from what they thought was a free site, didn't have a watermark on it etc. If they used it on a commercial website -  and are incorporated - even if they pulled it down after getting the letter - I think Getty will be more likely to go after them.

Matthew Chan

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Re: Copyright Infringement Lawsuit Statistics in Stock Photo Industry
« Reply #5 on: August 09, 2014, 03:20:10 PM »
I know our copyright extortionist adversaries will be happy to hear me say this.... I even say it within my ELI Support Calls.

If our information, reporting, and insights are insufficient to ease the pain and suffering of the extortion letter victim, to the extent they actually lose sleep, creates abnormal levels of stress, and it detrimentally affects their health, I honestly believe they need to just go pay up then.  Health is more important than money.  Money is replaceable, time and health are not.  3-years worth of detrimentally hurting your physical and mental well-being is not worth it.

And for some people, their emotions trumps their reasoning/intellect/ability to suppress stress/etc.

However, the problem with just giving in is what happens if, in life, there are repeats of these types of stress-inducing incidents.  Do those people really want to succumb to perceived powerful interests all business lives? I say NO!

As I have said many times, I take a much broader view of conflict.  Even if I am going up against tough odds AND it causes me stress, if I feel the principle is sound, it matters not.  I fight on and upwards. It is just the way I am built but I also realize many people are not that way.

Ultimately, it is a very personal decision.  All the reasoning, logic, and rationale in the world can take stress reduction so far. It is only money. I absolutely believe that Getty will never recuperate even a small portion of money from Virtual Clinics.  It will be yet another paper win for Getty but they paid a heavy financial price in pursuing the case.  I understand why Getty did it but it set them back nearly half-million dollars to prove a point.

The Virtual Clinics case is all about saving face since Getty Images and their ilk, through ELI, are so heavily mocked, hated, and disrespected.

Ironically enough, with Getty Images pursuing Virtual Clinics so hard and Virtual Clinics dodging it and "fighting it" by being so inaccessible and unwilling to cooperate, it caused a big financial hit to Getty Images.  In many ways, Virtual Clinics has done everyone else a big favor.  I learned a lot of lessons reading the judges rulings.

I have no love for Getty Images, nor do I condone the egregiousness of what Virtual Clinics did, but VC did serve a greater good for all ELI readers and the fact it was a financial blow to Getty Images gladdens my heart. We can condemn Virtual Clinics and their egregiousness but I received a ton of insights and knowledge from that case that works to OUR favor.

And the fact that Getty Images has decided to pursue a largely uncollectible case with another legal motion revealed even information and insights.

When I have time, I need to write and share the very helpful and informative lessons I learned from the Virtual Clinics.  In many ways, the rest of us have to thank VC because they set a whole new standard of egregiousness that required Getty Images to spend a ton of time and legal fees.  But most importantly, generated several pages of public documents with all kinds of revealing information answering questions I previously didn't have the answers for!

Oh, I want to remind everyone the fact that I have been pumping out new ELI insights and commentary is directly attributable to Timmy B. McCormack who would not leave me the fuck alone forcing me out in Jan. 2014 even though I was in a self-imposed silent, non-participatory exile for an indefinite period of time. Everyone give Timmy a round of applause for restoring ELI to its whole again. And we thank his female partner-in-crime and fellow copyright extortionist for giving ELI the visibility, press, and huge public platform to speak out and reinforce the value of free speech and the First Amendment. Win or lose, the important things is ELI has publicly accessibility to valuable contacts in a way it never did before.  That bell cannot be unrung.  Not only that, the lessons ELI has learned collectively will ultimately be published and disseminated for other ELI readers to learn.

Finally, when I get around to it, I will share with everyone how Getty Images spent half-million dollars to legally pursue Virtual Clinics helps all ELI readers. There are going to be a few more groans and upset stomachs in the world when I get done writing it.

Stay tuned...

Thanks Matthew. Good points. I guess the scary thing resulting from the Virtual Clinics case is the potential for a very very high statutory potentially almost automatic damages amount so that will pressure the small corporation or llc  they are targeting to settle up to some usurious amount - more obviously than the pic was worth, and will now include attorneys fees on all sides and court costs. The problem is that by law many are not "innocent" but simply ignorant in using the pic. Maybe they got it from what they thought was a free site, didn't have a watermark on it etc. If they used it on a commercial website -  and are incorporated - even if they pulled it down after getting the letter - I think Getty will be more likely to go after them.
« Last Edit: August 09, 2014, 03:23:25 PM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

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