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Author Topic: 17 USC 401 et al  (Read 8424 times)

Rob Tillitz

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17 USC 401 et al
« on: April 27, 2012, 12:38:34 AM »
Dear Getty Images:

In response to your letter dated 22/SEP/2011 (that I received yesterday late), I have taken down the image that you claim is yours. I discussed the image with my webmaster at GeeksAlley of Benton, Texas, and am informed that the image was obtained from a "free images" site on the internet. There was no mention of copyright or indication whatsoever (e.g., no watermark, circled c, etc.) that this was a copyright protected image, or that it belonged to you. Further, neither I or my webmaster have been able to find the image on your site, which makes me think that this could very well be either a mistake, or a scam. In either case you have no standing to claim damages, nor would you have standing if the image is or was yours as it was not clearly marked, or was it marked at all, for that matter, that it belongs to you or is copyrighted.

Chapter Four of Title 17 United States Code, Section 401, et al, states:

Section 401. Notice of copyright: Visually perceptible copies

(a) General Provisions.— Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

(b) Form of Notice.— If a notice appears on the copies, it shall consist of the following three elements:

(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and

(2) the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and

(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

(c) Position of Notice.— The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.

(d) Evidentiary Weight of Notice.— If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2)

Your company did not comply with USC 17 Section 401(b)(1-3), therefore has no standing to make this claim. If you do in fact hold a copyright to the image in question, it was taken down within hours of your properly notifying me that it is yours and there was, therefore, no damage to you non-compliance committed by me. I am an artist myself and respect the intellectual property laws, am aware that they are a constitutional guarantee, and therefore appreciate the business and service you provide for artists. However, if you're going to offer this service to artists, please do it properly and make sure that images you post on the internet are properly protected---you failed to do that in this case. You did not affix notice to the copy in such a manner as to give reasonable notice of the copyright. See clause (c) above. It also appears you let it escape to the public domain.

Robert Krausankas (BuddhaPi)

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Re: 17 USC 401 et al
« Reply #1 on: April 27, 2012, 06:57:52 AM »
Can you link to where you found this, I think it might be a bit outdated, copyright has changed, and it is no longer required to have a visual watermark or the circled(C) . I am sure their reply to you will be quoting copyright law as it stands at present.
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.
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Lettered

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Re: 17 USC 401 et al
« Reply #2 on: April 27, 2012, 08:20:03 AM »
I think the statute is current.  Notice that it says "MAY be affixed".  There is no longer any requirement to do do.  This was a change that came with the Berne Convention Implementation Act of 1988.  Marking is important in that if the notice is in place when the infringment occured then the user cannot legitimately use an "innocent infringer" defense.  The absence of a marking does not, however, invalidate a claim for copyright infringement, nor does it cause the item to "escape to the public domain". 

Even though this particular "defense" loses traction in Getty's favor, I dont find it particularly troubling as there are many other sound defenses to use.

That's how I understand it, anyway.

http://www.copyright.gov/title17/92chap4.html#4-2

"The Berne Convention Implementation Act of 1988 amended section 401 as follows: 1) in subsection (a), by changing the heading to “General Provisions” and by inserting “may be placed on” in lieu of “shall be placed on all”; 2) in subsection (b), by inserting “If a notice appears on the copies, it” in lieu of “The notice appearing on the copies”; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857."
« Last Edit: April 27, 2012, 08:27:36 AM by Lettered »

Robert Krausankas (BuddhaPi)

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Re: 17 USC 401 et al
« Reply #3 on: April 27, 2012, 09:56:38 AM »
Thanx for the follow up post Lettered! This is what happens when I attempt to read legal jargon before having any coffee in my system!
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..

Lettered

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Re: 17 USC 401 et al
« Reply #4 on: April 27, 2012, 11:34:04 AM »
No problem Buddhapi.  I think just about everyone reads it the wrong way at first (or while low on caffeine) :) .  It's a big problem with copyright, I think.  We (laypeople) read the statutes and end up thinking we are protected by things like:
1) absence of copyright markings
2) failure of plaintiff to issue a takedown notice
While the above two points are covered in statutes, they rarely (or never) apply to the "Getty" cases we see here.  So the letter victim focuses on weak defenses that ultimately evaporate and they miss solid defense strategies and associated issues like:
1) exclusivity
2) validity of photographer's contract (or if it's even current)
3) implied license
4) innocent infringer
5) bulk registrations
6) hyperlinking
7) amount of damages (fair license value)
8 ) statutory damages and legal fees not allowed for plaintiff if image not registered when infringment began
9 ) etc

Rob Tillitz

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Re: 17 USC 401 et al
« Reply #5 on: April 27, 2012, 12:02:16 PM »
The long and the short of it is I did not hear from Getty for five months after writing this letter, but did hear from Tim McCormick Law Office in Seattle a few days ago. I made this same argument to him basically copying and pasting the same letter and his office responded:

Dear Mr. Tillitz,

Thank you for your email.  The pending copyright infringement claim is for the prior unauthorized use of image 10041871 only.  As detailed in Getty Images’ prior letters, removal of the imagery alone does not resolve the matter.  Getty Images is entitled to seek compensation for the prior use.

Section 401 of the Copyright Act does not require placement of a watermark or other notice on the image.  This is evident as the language of that section uses the word “may”:

401(a) General Provisions.— Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived

Although not required, Getty Images does watermark its images as visible on their website (copy attached). You may view it yourself at www.gettyimages.com and entering the image number (10041871) in the search box at the top left corner of the screen.  Please be sure the box that says “Creative stock images” is checked, including the box that says “Rights-managed.” Accordingly, your defense of lack of knowledge fails.

Getty Images is currently willing to accept $1,628.00 in settlement if payment in full is received by May 11, 2012. This offer is made without prejudice to Getty Images’ legal rights and remedies, all of which are expressly reserved.

Thank you for your continued attention to this matter.

Sincerely,

Lauren Kingston

Attorney at Law

McCormack Intellectual Property Law

Business Law PS

 
Mailing Address
617 Lee Street
Seattle, WA 9810
Tel: 206-381-8888
Fax: 206-381-1988
Internet Address
www.McCormackLegal.com <www.McCormackLegal.com>
E: attorney@McCormackLegal.com
][/b

Thus, your mention of the change to the word "may" above is apparently relevant. I would have wrote this letter differently had I read this forum first (only discovered it yesterday and until then thought I was the only one that had received such a letter).

However, buddhapi, I ask this to your post of solid defenses numbers 1-9....aren't these all admissions of guilt? My two defenses are likely, as you say, weak and will evaporate. Nevertheless, even though I have no legal training---am very lay---I still have nevertheless learned in my many lay fights that one should never admit guilt, and neither of my arguments admit guilt....I blame it on them.

Robert Krausankas (BuddhaPi)

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Re: 17 USC 401 et al
« Reply #6 on: April 27, 2012, 12:19:16 PM »
There are ways of addressing lettered points #1-9 in such a way as to not imply guilt, and this was addressed ion another thread, which I will see if i can find and reference it..In the meantime I see that Timothy McCormack now has a minion helping him do his dirty little deeds..further proof that the demand letter business is alive..
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..

Robert Krausankas (BuddhaPi)

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Lauren Kingston joins the ranks of Copyright Troll
« Reply #7 on: April 27, 2012, 12:30:53 PM »
"Ms. Kingston is an intellectual property attorney with a special interest in international and domestic copyright law and enforcement as well as entertainment law issues. Before working at McCormack Intellectual Property PS, Ms. Kingston worked for Getty Images, the world’s largest provider of stock image photography. Ms. Kingston has advised various clients on the protection and pursuit of their intellectual property rights. In addition to her legal experience, she also has practical experience creating intellectual property in the television industry. "

Admitted: 11/20/2007...another from the entertainment industry..
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..

Peeved

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Re: 17 USC 401 et al
« Reply #8 on: April 27, 2012, 03:34:26 PM »
There are ways of addressing lettered points #1-9 in such a way as to not imply guilt, and this was addressed ion another thread, which I will see if i can find and reference it..In the meantime I see that Timothy McCormack now has a minion helping him do his dirty little deeds..further proof that the demand letter business is alive..

I think this might be the thread you were trying to remember Budd. Matt gave some examples in this thread:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/got-the-letter-a-question-and-my-plan/msg6072/#msg6072

Rob Tillitz

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Re: 17 USC 401 et al
« Reply #9 on: April 27, 2012, 04:07:20 PM »
Thanks to everyone for your advice and patience with me as I just go on-board last night and have by no means read all the threads and statements. I've mostly paid attention to the overviews that Matt has written.

I have, by the way, called my insurance carrier and asked them if they cover this sort of thing and my agent right off said this sounds like a shakedown. She asked me to send my correspondence thus far and said she would turn it over to the legal department however felt like I'm probably not covered as I'm a bar and they insure for fire, flood, and fights mainly.

Rob Tillitz

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Re: 17 USC 401 et al
« Reply #10 on: April 27, 2012, 04:13:01 PM »
And as far as where did I get the statue (Title 17 U.S.C. Section 401, et al), I just asked Google and I think this is where I got it (at page 159):  http://www.copyright.gov/title17/circ92.pdf

Robert Krausankas (BuddhaPi)

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Re: 17 USC 401 et al
« Reply #11 on: April 27, 2012, 06:20:47 PM »
The thread that Peeved referenced is indeed what I was thinking about...Peeved is my hero and she rocks!
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..

Peeved

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Re: 17 USC 401 et al
« Reply #12 on: April 27, 2012, 07:22:38 PM »
Awww..thanks Budd!
 :-*

You all rock and also thanks to Lettered for staying with us even after the statute for him ran out. Especially appreciate the reminder regarding what should remain the main focus............

Solid defense strategies and associated issues like:
1) exclusivity
2) validity of photographer's contract (or if it's even current)
3) implied license
4) innocent infringer
5) bulk registrations
6) hyperlinking
7) amount of damages (fair license value)
8 ) statutory damages and legal fees not allowed for plaintiff if image not registered when infringment began
9 ) etc

A great weekend to all!
 8)
« Last Edit: April 27, 2012, 10:57:16 PM by Peeved »

 

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