ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: bizmomma on May 09, 2013, 11:59:58 PM
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I just want to toss this out there for those of you using photos that you think are public domain. We have found several of our unique images on public domain sites. They are clearly ours and we even have the original film to prove in a court of law. It is nearly impossible to get these images removed from these unscrupulous sites. Be smart and use your own photos. Hire a photographer if you can't take the photos yourself.
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As for hiring a photographer, it's sad to say, but there are also photographers licensing and selling images that they didn't shoot and don't own the rights to.
During these times of digital confusion and fraud it seems the only safe way left is to shoot all your own images... and even then you may get a letter from Getty or a copyright troll or collection agent like Timothy B. McCormack if PicScout IDs your image as being too similar to some generic image in their catalog of millions of images.
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Some great points have been made here... one often doesn't know where these "free" images come from.
At least if the images were purchased, you have some "proof".
However, there are even stories of past "royalty-free" collections sold by Getty Images that have been moved to their "rights managed" system.
So, word on the street is that people that paid in good conscience are being called "infringers", and are being pestered into paying settlements.
S.G.
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Agreed, you can never be complete sure of any image anymore unless you take it yourself. The image Getty sent me a letter over was on a persons website and that person put their name on it with a title making it look as if it was their own image and offered it in a public directory. I have screen captures of 4 pages of Google search results of people who have used this image and accredited it to this person as I did and these are just the people who knew enough that you should give the (supposed) author credit for the image they are letting you use.
I thought I was very careful Now I will only use my own images.
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After all the nonsense I've been through with Getty Images and its collection agent and copyright troll Timothy B. McCormack, I've stopped using images altogether.
With that said, I'm expecting any day now to receive a letter from some lawyer who thinks he's clever with a new speculative invoicing scheme.
The letter will inform me that he represents "Stay Fresh Garments, Inc," which holds the trademark to "I shit my pants" and since I've used that phrase multiple times on ELI, his client now wants $1200 by the end of the month for each time I've used their trademark or else litigation proceedings will commence.
Oscar, please start thinking about a new letter program for this eventuality.
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Mulligan, I think K-Mart is going to be the one to come after you:
http://www.youtube.com/watch?v=I03UmJbK0lA
Personally I think it will be a sad day if the web goes back to some early 90's text-only version because of fear of the trolls. I have to say I am shooting more of my own stuff and I still use images from royalty free sites. I document this meticulously. If I ever heard from an artist (or even a person that claimed to be the artist) I would remove the image and work with them to discover why a site was offering it for free. I also purchase microstock quite a bit, I'm just careful not to buy from Getty Images subsidiary iStockPhoto.
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or any of the other dozen or so companies Getty has snapped up...
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Thanks for that link Jerry, that made my day :)
Mulligan, I think K-Mart is going to be the one to come after you:
http://www.youtube.com/watch?v=I03UmJbK0lA
Personally I think it will be a sad day if the web goes back to some early 90's text-only version because of fear of the trolls. I have to say I am shooting more of my own stuff and I still use images from royalty free sites. I document this meticulously. If I ever heard from an artist (or even a person that claimed to be the artist) I would remove the image and work with them to discover why a site was offering it for free. I also purchase microstock quite a bit, I'm just careful not to buy from Getty Images subsidiary iStockPhoto.
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Good link, Jerry. Still chuckling here over that one.
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As for hiring a photographer, it's sad to say, but there are also photographers licensing and selling images that they didn't shoot and don't own the rights to.
I've seen some exceptionally rare instances of photographers passing off the work of others as their own... in the nine years I've been engaged in professional photography, I've not heard of a single instance of an individual actually attempting to license an image which they did not have the rights to.
That said, I've had one infringer claim that they had licensed one of my photographs from the owners of a site where they found one of my works. When I challenged them to provide evidence to back up this claim, they had none. I also put my attorney on to the site that they referenced. Each separate party settled in short order.
During these times of digital confusion and fraud it seems the only safe way left is to shoot all your own images... and even then you may get a letter from Getty or a copyright troll or collection agent like Timothy B. McCormack if PicScout IDs your image as being too similar to some generic image in their catalog of millions of images.
Services such as PicScout, DigiMarc and others are highly unlikely to mis-identify a shot - though I'll concede it's not impossible for that to happen. I once had to give some forensic level information to my Canadian attorneys on how I could be absolutely sure that a photograph I found on being used online was my own work - I elected to use an example where I shot literally elbow to elbow with a Getty staff photographer whereby we wound up with almost identical frames.
Over the course of a few paragraphs, I was able to detail the subtle differences in perspective and other visual and technical information that would leave no doubts as to which photograph I had created.
This aside, the solution in shooting one's own work for a site is the best one: just register it with the US Copyright Office and ensure that all the EXIF data is in your file and that you add IPTC metadata to it.
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Services such as PicScout, DigiMarc and others are highly unlikely to mis-identify a shot - though I'll concede it's not impossible for that to happen. I once had to give some forensic level information to my Canadian attorneys on how I could be absolutely sure that a photograph I found on being used online was my own work - I elected to use an example where I shot literally elbow to elbow with a Getty staff photographer whereby we wound up with almost identical frames.
Why do you think this? PicScouts browser add on makes some pretty hilarious mistakes.
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DvsG, may I suggest you read this forum more thoroughly before making blanket statements about the precision of PicScout because you'll find examples on ELI where PicScout screwed up and Getty even then had the audacity in some instances to send multiple settlement demand letters even after the recipient had pointed out that the image being contested was not the same as Getty's.
As for making my own images and then registering each image with the copyright office for $40 a pop or whatever it costs these days, that's something I wouldn't do for any image less valuable than a picture of the Pope having sex with the Queen of England on a unicycle.
If you're a photographer with sole access to shooting celebs like Brad and Angelina on red carpets, as you imply in a message above, you're making major bucks with national and world-wide publications. And if that's the case, why on earth are you spending valuable time scolding and negotiating with mom and pop website owners who have most likely used an image of yours without even thinking about copyright?
I can understand stomping on websites or publications that arrogantly steal images for profit, but I just don't get spending time tracking down and trying to negotiate settlements on the small infringements in a digital age with an internet that hosted more than 40,000,000,000 clear back in 2008. The only way that makes any sense is if the effort from doing that earns more money than the actual work of making images and licensing them.
Continuing that line of thought, I'd still like to know what percentage of your time you spend hounding copyright violators and negotiating settlements. Ditto for what percentage of your income comes from these settlements? You've lamented in several threads and messages about not having as much time as you'd like to create images -- that suggests to me that you're making good money in the settlement demand game and prefer the rewards of winning that game to the rewards of creative work itself.
To save you some typing, please spare me any self-serving remarks about it being a sacred duty of photographers to educate mom and pop copyright illiterates by making them pay money for what are in most instances most likely innocent and de minimis infringements.
DvsG, I hate to be a cynic but a long life has taught me that most everything these days boils down to money for far too many people in this world.
That's certainly the case with Getty Images, and the more you post the more I think that's the case with you, too.
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As for making my own images and then registering each image with the copyright office for $40 a pop or whatever it costs these days, that's something I wouldn't do for any image less valuable than a picture of the Pope having sex with the Queen of England on a unicycle.
You can bulk register your images, once every three months, for published works. Example: you shoot photos for your website and publish them on January 1st. You slowly add more of your own images to your site over the course of the next three months.
If you keep a folder on your desktop titled "Q1 registration" where you've saved copies of all the shots you took and published between January 1st - March 31st, you can then go to the eCo service on March 31st and file an online registration of all these shots for a one-time fee of $35.00.
You simply repeat the process next quarter etc. etc. ad infinium.
If you're a photographer with sole access to shooting celebs like Brad and Angelina on red carpets, as you imply in a message above, you're making major bucks with national and world-wide publications. And if that's the case, why on earth are you spending valuable time scolding and negotiating with mom and pop website owners who have most likely used an image of yours without even thinking about copyright?
Oh, you think editorial photographers are making major bucks? Perhaps some paid staff photographers or a select few elite freelancers are, but the rest of us find it a struggle to make a meaningful income. Although agencies might offer royalty splits of between 20% to 60% in favour of the photographer, actual image license fees have been driven down considerably over the last 20 years in lieu of big clients getting subscription access to any given agencies archives.
Here's an example. Time Warner might have an account with Associated Press whereby they pay a flat fee which will allow them to use up to 25,000 pictures/month across all their outlets - this means print, online, TV - as long as it's editorial. This level of access might cost them $10,000/month, meaning the actual per image license is $0.40.
As a contributing photographer, you might get as little as $0.08 as your share of that image use. Perhaps you'll get $0.26 if you've got a better royalty share contract.
Of course the answer is to cut out the middleman and license your works straight to clients - which is largely what I do; I still contribute to agencies because shooting for them often means I get access to events which I simply wouldn't get otherwise and, once at an event, I can network and make contacts which may yield directly commissioned work down the road.
Also, not every agency client is a subscription client so - on the odd occasion - the royalty incomes can be pretty good. The more you shoot, the more you earn.
I can understand stomping on websites or publications that arrogantly steal images for profit, but I just don't get spending time tracking down and trying to negotiate settlements on the small infringements in a digital age with an internet that hosted more than 40,000,000,000 clear back in 2008. The only way that makes any sense is if the effort from doing that earns more money than the actual work of making images and licensing them.
Here's the point: copyright infringements affect my bottom line. Period. I make every attempt to turn an infringer into a correct licensor of my works so long as doing so doesn't breach my contracts with my clients.
Also, with legislation being proposed in both the EU and US to tackle the issue of "orphan" works, it is absolutely in my business interests to ensure that infringements of my work are found promptly and either replaced with correctly licensed works or deleted.
Continuing that line of thought, I'd still like to know what percentage of your time you spend hounding copyright violators and negotiating settlements. Ditto for what percentage of your income comes from these settlements? You've lamented in several threads and messages about not having as much time as you'd like to create images -- that suggests to me that you're making good money in the settlement demand game and prefer the rewards of winning that game to the rewards of creative work itself.
If I'm not shooting, taking care of administrative tasks, or busy with my domestic and family responsibilities, then you can be sure that my 9-5 hours are spent addressing infringements.
Unlike the alleged practices of Getty, I review infringements on a case-by-case basis and accrue as much information as possible before deciding on a course of action. Except for particularly egregious infringements such as those that are commercial or editorial in nature, I contact the infringers directly and explain why I'm reaching out to them and what my expectations are by way of resolving the matter.
The blatant infringements by commercial entities or those whom are gainfully using my work (e.g. entities whom could license my shots but have chosen not to and/or should be knowledgeable about copyrights) get turned over to my attorneys instead.
As for the settlements? From infringers whom I've contacted directly, it's usually for the fee that the image would have been licensed for had they asked in advance. In the event that the matters get referred for legal actions, the settlements wind up being for considerably more.
To date, about 80% of my settlements have been the former and, in a few of those instances, infringers were converted to clients. Even in one of the instances that my attorneys handled for me, a settlement was negotiated whereby the outlet became a client too.
To put in simply: I'll happily work with people to reach a mutually beneficial outcome. I don't bear anyone any ill will when I find they've infringed on my work as they largely aren't aware that they've broken any laws - I make them aware that I'm simply protecting my business interests and hope that the issue can be resolved without it getting messy (i.e. legal)
To save you some typing, please spare me any self-serving remarks about it being a sacred duty of photographers to educate mom and pop copyright illiterates by making them pay money for what are in most instances most likely innocent and de minimis infringements.
Education is a duty, and not just by photographers. There seems to be a very vocal "free ride" movement online and there's also far too much misinformation going around about the legalities of what people can and can't do - an issue which is exacerbated by the ability for people to have a measure of anonymity associated with their actions.
By our very nature, creatives of all type want to share our work with as wide an audience as possible, but we also expect that we can be fairly compensated for our efforts and that people will respect our rights.
Copyright laws exist so that we can enjoy a measure of protection from those whom would otherwise simply appropriate our works, thus allowing us to earn a living and contribute our ideas and visions to society at large.
If you have an issue over the penalties for infringements, that's a whole other debate.
DvsG, I hate to be a cynic but a long life has taught me that most everything these days boils down to money for far too many people in this world.
Everything boils down to money, period. Like most people on this planet, I have financial obligations and I choose to fulfil them by making a career out of what I'm good at: photography. I have numerous other skills that I could draw on for employment, but this is my passion and what I'm best at.
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DvsG...
Reading between the lines in an attempt to find the reality of your position, I think I'm safe in my assumption that you are making a significant part of your income with settlements and that you're spending a significant amount of time negotiating those settlements.
You may well be very good at photography, but it's also quite clear that you're equally competent with settlement demands and negotiations.
Philosophically, I abhor the idea that "Everything boils down to money. Period." From my little spot on this planet, it's this entrenched attitude about the almighty dollar that makes the world a shittier place.
For what it's worth, earning my living as a professional writer on the web the past fifteen years, I've raised a family, met my financial obligations, and have had a good life without having to conclude that "Everything boils down to money. Period." And I've managed to do these things without ever once sending a settlement demand email or registered letter to somebody who put one of my articles, commentaries, novels, white papers, or stories on their website or on a file sharing system without permission.
So what?
Well, I guess it boils down to this: my approach works for me; your approach works for you. And so the world turns.
In closing, I appreciate your responses to my questions and now feel I have a clear understanding of your position. Thank you.
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We all saw how well the bulk registrations worked out in the Advernet case...yeah Getty "won" by default, but were awarded ZERO because of bulk registrations that were deemed invalid..
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You may well be very good at photography, but it's also quite clear that you're equally competent with settlement demands and negotiations.
Believe me, I'd really rather that the latter wasn't the case... but with each passing year, the sheer volume of infringements of my work has grown to the point that the unauthorised uses of my photographs exponentially outstrip the legitimate ones - and that is regrettably an issue which I feel I have to confront head on.
Philosophically, I abhor the idea that "Everything boils down to money. Period." From my little spot on this planet, it's this entrenched attitude about the almighty dollar that makes the world a shittier place.
I actually agree with you - again, it's not how I'd like things to be but, living in Europe in a capitalist democracy, it's one of the realities that is inescapable.
For what it's worth, earning my living as a professional writer on the web the past fifteen years, I've raised a family, met my financial obligations, and have had a good life without having to conclude that "Everything boils down to money. Period." And I've managed to do these things without ever once sending a settlement demand email or registered letter to somebody who put one of my articles, commentaries, novels, white papers, or stories on their website or on a file sharing system without permission.
If that's the case then I congratulate you - though might I ask exactly how much your work has been appropriated in the last fifteen years? Just as a point of curiosity.
In closing, I appreciate your responses to my questions and now feel I have a clear understanding of your position. Thank you.
You're welcome. As I said in a separate thread: because I'm a photographer whom diligently protects my works, I honestly don't expect everyone to agree with my viewpoints and opinions - and I'm here as a contributor to these forums both to share my experiences and learn from those of others.
It's the only way that a middle ground will ever be found when navigating the legal and moral complexities of copyrights in the digital age.
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We all saw how well the bulk registrations worked out in the Advernet case...yeah Getty "won" by default, but were awarded ZERO because of bulk registrations that were deemed invalid..
Robert, if you register your images within the guidelines as set out by the Copyright Office and upload your bulk images properly within the constraints, then there will not be any issues.
My (coarse) understanding of the case you reference is that Getty did not follow the protocols for bulk registrations.
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We all saw how well the bulk registrations worked out in the Advernet case...yeah Getty "won" by default, but were awarded ZERO because of bulk registrations that were deemed invalid..
Robert, if you register your images within the guidelines as set out by the Copyright Office and upload your bulk images properly within the constraints, then there will not be any issues.
My (coarse) understanding of the case you reference is that Getty did not follow the protocols for bulk registrations.
you are correct Getty did not follow the protocols, Getty followed the advice of PACA, who was working with the copyright office, whom suggested the bulk registrations be done in a "certain manner"...turns out the they were ALL wrong... even the US Copyright Office didn't get it correct..so just what protocols are you using?? I'm curious if you're registrations would stand up in a court of law...
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[quote author=Robert Krausankas (BuddhaPi) link=topic=3707.msg15640#msg15640
so just what protocols are you using?? I'm curious if you're registrations would stand up in a court of law...[/quote]
http://www.copyright.gov/eco/help/#eCO_1.5 with reference to http://www.copyright.gov/circs/circ01.pdf
I create .zip files of low-resolution copies of my originals, not exceeding 500px on one side. As I have a 5mbps upload pipe, this allows me to utilize the full 170mb file limit per .zip file.
The eCo upload process allows to to have multiple .zip file attachments per registration, so I simply upload as many .zip files as are necessary to comprise the body of work that I'm registering
Given the sheer volume of work that I create, I don't file quarterly registrations but instead register each body of work that pertains to a specific event e.g. the body of work might be "Photographs from Edinburgh International Film Festival 2013, June 19 - 30"
This makes the number of images I file per registration smaller, and also makes it far easier for me to keep track of my registration certificates.
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Good Deal, I think where Getty went wrong, is they gave no way of identifying any of the images in the collection, and I think the same applies to their "stone collection" which is a huge collection, but no way to tell what is what..
I hope you don't think I was being an asshat, I certainly can be at times..but I want you to know it's refreshing to get an artist on board that is not wearing blinders, and is open to discussion, as opposed to simply calling us thieves. Getty is their own worst enemy, but they are to dumb to even see it...because of the blinders and the money signs at the end of the tunnel..
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I hope you don't think I was being an asshat, I certainly can be at times..but I want you to know it's refreshing to get an artist on board that is not wearing blinders, and is open to discussion, as opposed to simply calling us thieves. Getty is their own worst enemy, but they are to dumb to even see it...because of the blinders and the money signs at the end of the tunnel..
No offence taken and no, I didn't think you were an asshat; I know that we'll have slightly different perspectives on some issues but, honestly, I'm here because I'd like to put forth the viewpoint of an "average" photographer whom is trying to find a middle ground... so all discourse - even those with a bit of friction - are welcomed as opposed to being confrontationally entrenched with immutable beliefs.
We need copyrights, we need laws to protect copyrights, but we also really need some means to address how the internet has impacted creatives without us resorting to the 'nuclear option' of lawsuits laden with multiple zeroes ahead of the decimal point.
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. . . We need copyrights, we need laws to protect copyrights, but we also really need some means to address how the internet has impacted creatives without us resorting to the 'nuclear option' of lawsuits laden with multiple zeroes ahead of the decimal point.
I agree with that.
It's not right that some people are blatantly ripping images off (that someone put a lot of time and resources into) and using them, sometimes making money from it.
It's also not right, in my opinion, to bulk upload to the copyright office a picture of every single animal, vegetable, and inanimate object you can think of, then send a crawler out to find the inevitable group of unknowing innocent infringers, and threaten them with a $30,000 per infringement lawsuit if they don't mail a check for $1500 or so. Not to mention that the group of innocent infringers can be multiplied exponentially by doing something to make sure overseas website designers (who don't give two sh__s about copyright law or who theyre getting into trouble) have access to the images to use in their work.
We need a fair copyright law that makes sense.
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It's also not right, in my opinion, to bulk upload to the copyright office a picture of every single animal, vegetable, and inanimate object you can think of, then send a crawler out to find the inevitable group of unknowing innocent infringers, and threaten them with a $30,000 per infringement lawsuit if they don't mail a check for $1500 or so.
I'd really hope that there aren't any creatives out there exploiting the system by knowingly seeding their works just so they can issue legal demands or court proceedings from infringements; that's fraud on the same level as people whom fake accidents, injuries or illness so they can instruct an ambulance-chasing attorney to collect for them.
It would be a severe abuse of the system and - in my opinion - would need to be treated as a criminal matter.
Not to mention that the group of innocent infringers can be multiplied exponentially by doing something to make sure overseas website designers (who don't give two sh__s about copyright law or who they're getting into trouble) have access to the images to use in their work.
I agree that copyrights abuses outside the US/Canada and EU are an absolute nightmare to deal with - especially "wallpaper" or "free image download" sites, which are major sources of unwitting infringements by those whom are unaware of copyrights.
The solution would be that Berne Convention signatories would at least be required to have legislation similar to the DMCA on their books - but, given how slowly domestic laws are enacted, can you imagine the issues in getting a global agreement proposed, let alone ratified?
We need a fair copyright law that makes sense.
Absolutely; there needs to be a "small claims" process which would allow recovery of "lost" license fees without the need for attorneys to be involved but - more importantly - there needs to be a concerted effort to educate people on copyrights and why they're important to creators.
Robust, consistent education on copyrights would mean fewer infringers, less lawsuits/demands and possibly more licensing of works... and that's got to be better than the situation we're in right now. I'd go so far as to say that copyrights need to be taught as early as the 1st grade.
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It's also not right, in my opinion, to bulk upload to the copyright office a picture of every single animal, vegetable, and inanimate object you can think of, then send a crawler out to find the inevitable group of unknowing innocent infringers, and threaten them with a $30,000 per infringement lawsuit if they don't mail a check for $1500 or so.
I'd really hope that there aren't any creatives out there exploiting the system by knowingly seeding their works just so they can issue legal demands or court proceedings from infringements; that's fraud on the same level as people whom fake accidents, injuries or illness so they can instruct an ambulance-chasing attorney to collect for them. . . .
With some of the stuff I've seen, I'm not convinced that this isn't going on. What is just as bad, IMO, is essentially turning a blind eye to it because it is helping increase infringement revenue. Honestly, if this weren't the case, wouldn't they be doing at least simple things to slow down the proliferation of their images on these "free" sights? Things like watermarking their images.
At the very least, shouldn't an innocent infringer (overseas website designer victim) with an invoice be given a second chance?
Should a simple picture of an everyday object (a baseball for example) be copyrightable? I don't believe it should.
Shouldn't demands/awards for actual damages be substantiated by a sales history of the actual image and/or similar image sales? and NOT on some inflated dreamed up retail "list price" that no reasonable person would pay?
If it is unique/creative/important enough to copyright, doesn't it deserve it's own single copyright registration? Is "bulk uploading" of hundreds or thousands of unremarkable images for copyright not just another cog in the infringement demand machine/scheme?
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With some of the stuff I've seen, I'm not convinced that this isn't going on. What is just as bad, IMO, is essentially turning a blind eye to it because it is helping increase infringement revenue. Honestly, if this weren't the case, wouldn't they be doing at least simple things to slow down the proliferation of their images on these "free" sights? Things like watermarking their images.
Here's the problem: when a client licenses and downloads an image legitimately, that photograph won't have a visible watermark on it. It might have a unique filename and embedded IPTC and EXIF metadata with information about whom the rightsholder is and further still, it might also use a digital watermark such as DigiMarc to allow uses of that photograph to be tracked and traced.
The file can be renamed, the IPTC and EXIF data can be stripped out - which just leaves the digital watermark (if it is present).. and all that serves as is an electronic 'fingerprint' which allows the uses of the photograph to be found and then checked to see if they are legitimate.
Another issue is that login details for image libraries are routinely traded online so that the blatant, don't-give-a-shit infringers can access high-resolution images for their own sites; they buy or trade these passwords and the second that one becomes deactivated, you can bet that a half dozen more spring up.
A good many of these people live in countries whom don't have strong IP laws on their books and, worse still, they use tech such as VPNs or IP masking to make it nigh-on impossible to track them down, let alone shut them down.
At the very least, shouldn't an innocent infringer (overseas website designer victim) with an invoice be given a second chance?
I'm not sure I follow you here - please elaborate so I can get an understanding of your point.
Should a simple picture of an everyday object (a baseball for example) be copyrightable? I don't believe it should.
We're going to disagree here because there are an infinite number of ways in which you could photograph that baseball to make it look unique or different. There's the background, lighting, framing, depth of field and a myriad of other elements to the creative composition of a photograph that means your shot of a baseball could stand head and shoulders above all the other shots out there -
As a fixed expression of an idea, any photograph can be copyrighted. The question of how unique such a photograph is might determine its value in the mind of the end user... but that still does not give anyone the right to just appropriate it.
Think on it this way: you want a burger. You can get a $0.99 one at McDonalds, or a $19.99 gourmet burger at an upscale restaurant. Essentially, both products are the same - so you have to make a value judgement on your needs versus your ability to pay. Is the gourmet burger worth $20? Is it worth twenty times the McDonald's burger? Probably not... but you can choose what to eat, the same way you can choose to not eat either of them.
Shouldn't demands/awards for actual damages be substantiated by a sales history of the actual image and/or similar image sales? and NOT on some inflated dreamed up retail "list price" that no reasonable person would pay?
No to the first part, though I somewhat agree to the second part - because providing such information during legal process can back up a claim quite a bit. Here's a very recent example of how that worked in court
http://www.bailii.org/ew/cases/EWPCC/2013/26.html
If it is unique/creative/important enough to copyright, doesn't it deserve it's own single copyright registration? Is "bulk uploading" of hundreds or thousands of unremarkable images for copyright not just another cog in the infringement demand machine/scheme?
Again, I'm going to disagree here. On a work week, I shoot thousands of images and sometimes hundreds get sent out to clients during that week. I bulk register because a) it's permitted and b) it's the right balance of cost vs. effectiveness for both artists and the copyright office.
If it were mandated that every single work be registered individually, then only major content creators could afford to register their copyright works - and this would leave small businesses and the self-employed ripe for exploitation.
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With some of the stuff I've seen, I'm not convinced that this isn't going on. What is just as bad, IMO, is essentially turning a blind eye to it because it is helping increase infringement revenue. Honestly, if this weren't the case, wouldn't they be doing at least simple things to slow down the proliferation of their images on these "free" sights? Things like watermarking their images.
Here's the problem: when a client licenses and downloads an image legitimately, that photograph won't have a visible watermark on it. It might have a unique filename and embedded IPTC and EXIF metadata with information about whom the rightsholder is and further still, it might also use a digital watermark such as DigiMarc to allow uses of that photograph to be tracked and traced.
The file can be renamed, the IPTC and EXIF data can be stripped out - which just leaves the digital watermark (if it is present).. and all that serves as is an electronic 'fingerprint' which allows the uses of the photograph to be found and then checked to see if they are legitimate.
Another issue is that login details for image libraries are routinely traded online so that the blatant, don't-give-a-shit infringers can access high-resolution images for their own sites; they buy or trade these passwords and the second that one becomes deactivated, you can bet that a half dozen more spring up.
A good many of these people live in countries whom don't have strong IP laws on their books and, worse still, they use tech such as VPNs or IP masking to make it nigh-on impossible to track them down, let alone shut them down.
At the very least, shouldn't an innocent infringer (overseas website designer victim) with an invoice be given a second chance?
I'm not sure I follow you here - please elaborate so I can get an understanding of your point.
Should a simple picture of an everyday object (a baseball for example) be copyrightable? I don't believe it should.
We're going to disagree here because there are an infinite number of ways in which you could photograph that baseball to make it look unique or different. There's the background, lighting, framing, depth of field and a myriad of other elements to the creative composition of a photograph that means your shot of a baseball could stand head and shoulders above all the other shots out there -
As a fixed expression of an idea, any photograph can be copyrighted. The question of how unique such a photograph is might determine its value in the mind of the end user... but that still does not give anyone the right to just appropriate it.
Think on it this way: you want a burger. You can get a $0.99 one at McDonalds, or a $19.99 gourmet burger at an upscale restaurant. Essentially, both products are the same - so you have to make a value judgement on your needs versus your ability to pay. Is the gourmet burger worth $20? Is it worth twenty times the McDonald's burger? Probably not... but you can choose what to eat, the same way you can choose to not eat either of them.
Shouldn't demands/awards for actual damages be substantiated by a sales history of the actual image and/or similar image sales? and NOT on some inflated dreamed up retail "list price" that no reasonable person would pay?
No to the first part, though I somewhat agree to the second part - because providing such information during legal process can back up a claim quite a bit. Here's a very recent example of how that worked in court
http://www.bailii.org/ew/cases/EWPCC/2013/26.html
If it is unique/creative/important enough to copyright, doesn't it deserve it's own single copyright registration? Is "bulk uploading" of hundreds or thousands of unremarkable images for copyright not just another cog in the infringement demand machine/scheme?
Again, I'm going to disagree here. On a work week, I shoot thousands of images and sometimes hundreds get sent out to clients during that week. I bulk register because a) it's permitted and b) it's the right balance of cost vs. effectiveness for both artists and the copyright office.
If it were mandated that every single work be registered individually, then only major content creators could afford to register their copyright works - and this would leave small businesses and the self-employed ripe for exploitation.
On the first point:
Its not my fault that photographers live in a bad neighborhood (the internet). An analogy: If I buy a used part and it turns out to be stolen (unbeknownst to me), I return it. I'm not fined and harassed for "statutory" or "actual" damages as far as I understand it. I'm not a criminal. My "punishment" and "lesson learned" is that I lost the part I bought. I'm more careful and knowledgeable next time.
On the second point:
An example: I hire an overseas firm to design a website for me. He uses infringing images, but tells me they're his own, or he has the rights to them, or whatever. Maybe he doesn't even say anything if I'm not knowledgeable enough to ask. I get a demand letter from true copyright holder. I explain the situation and take down the image. The copyright holder asks for proof and I show him the invoice from the overseas firm. I get warned (not fined) and we part ... maybe even with me as a new customer. I know that isn't the current copyright law, but that's how I think it should work.
Third point:
I'm talking about unremarkable shots. I know you still disagree, but I'm not entirely convinced that a court would disagree with my position in many cases.
On your burger example: should I be fined $30,000 because the hamburger I bought from a street vendor in India looks too much like a big mac?
Fourth Point:
Statutory damages for registered image infringements are the current law. I understand that, I just don't agree with it in the case of innocent infringement. Thankfully, at least the court is allowed to lower statutory damages to $200 per innocent infringement, but I still disagree with it.
For unregistered images, it's my understanding that my opinion is in line with the courts to award "actual damages" which is fair market value.
Fifth Point:
I really want photographers to be successful by providing a product that people want to buy. I really do. I'm really happy for them when that happens. I just don't like to see some poor unknowing chap harassed for tens of thousands of dollars because he unknowingly used an unremarkable picture of a bowling ball in some silly blog post that 10 people read (a made-up example).
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Its not my fault that photographers live in a bad neighborhood (the internet). An analogy: If I buy a used part and it turns out to be stolen (unbeknownst to me), I return it. I'm not fined and harassed for "statutory" or "actual" damages as far as I understand it. I'm not a criminal. My "punishment" and "lesson learned" is that I lost the part I bought. I'm more careful and knowledgeable next time.
Except that it's not just photographer's that inhabit the internet neighbourhood - we all do; just like a real-life community, there are laws in place to govern and limit what actions we can take so that the overall best interests of everyone are served.
As a sidenote on the analogy you used: much would hinge on the price you paid for the used part, and whether you had any proof of payment, to avoid the potential of facing criminal charges for being in receipt of stolen property. For some states, the burden of proving criminal intent for such charges is quite low or even non-existent.
An example: I hire an overseas firm to design a website for me. He uses infringing images, but tells me they're his own, or he has the rights to them, or whatever. Maybe he doesn't even say anything if I'm not knowledgeable enough to ask. I get a demand letter from true copyright holder. I explain the situation and take down the image. The copyright holder asks for proof and I show him the invoice from the overseas firm. I get warned (not fined) and we part ... maybe even with me as a new customer. I know that isn't the current copyright law, but that's how I think it should work.
It can work that way and, legally, if you have all your ducks in a row and can unequivocally prove what is termed innocent infringement, then a rightsholder should know that pursuit of a claim against you is really in no-one's best interests.
If a rightsholder still pursues you after you've produced evidence that you absolutely, genuinely had no idea that you would be committing an infringement based on accepting the work of a third party... well, I personally don't agree with their stance, even though the letter of the law might permit them to do so.
Besides, the rightsholder has to know that under US law, their claim might get struck down to as little as $200 even if they prevail. Far better to educate the infringer and work with them than roll the dice through the courts.
I'm talking about unremarkable shots. I know you still disagree, but I'm not entirely convinced that a court would disagree with my position in many cases.
Even an 'unremarkable' shot has value - whether or not it might be unique. If Getty has a shot of a baseball against a white backdrop for $49, then 123RF has a similar image for $4.99, and Fotolia has a similar image again for $0.99... then why would anyone appropriate the Getty shot?
The answer would be that the infringer either didn't know about copyrights, didn't care about copyrights or (worse case scenario) did know but simply did not want to pay even $0.99 for a picture to use on their website.
I'm not sure how the courts would view all of the above but, in general, matters of appropriation of property seem to lean towards the "you have the choice to not do it" when it comes to the crunch.
On your burger example: should I be fined $30,000 because the hamburger I bought from a street vendor in India looks too much like a big mac?
I get what you're saying here, but this is an apples-to-oranges comparison when it comes to IP laws. Or maybe it's a Whopper to Big Mac comparison.
Statutory damages for registered image infringements are the current law. I understand that, I just don't agree with it in the case of innocent infringement.
I really have a problem with the term innocent infringement, as there can be varying degrees of actual innocence. The truly innocent are usually ignorant of copyright law and are thus unwitting in their actions.
Thankfully, at least the court is allowed to lower statutory damages to $200 per innocent infringement, but I still disagree with it.
I can sympathise with you finding it disagreeable, I really do.
For unregistered images, it's my understanding that my opinion is in line with the courts to award "actual damages" which is fair market value.
Almost correct: you'd need to remove fair, because the value is largely determined by what the photographer might have otherwise licensed the image for. Consider that Annie Leibovitz could command a far higher rate for her works than an emerging commercial photographer might - and this would be factored for in almost any suit for a work that wasn't timely registered (you still need to file a registration before you can initiate a lawsuit)
I really want photographers to be successful by providing a product that people want to buy. I really do. I'm really happy for them when that happens. I just don't like to see some poor unknowing chap harassed for tens of thousands of dollars because he unknowingly used an unremarkable picture of a bowling ball in some silly blog post that 10 people read (a made-up example).
Photographers also want the same thing and would be a very happy bunch if infringements didn't occur. We're not really a litigious bunch (honestly!) and would far prefer to create and share our work without the risk of it being appropriated, exploited or otherwise abused.
On this point: I've had to deal with more infringements by large businesses, corporations and media outlets than I have private individuals (hence my screen name here). Copyright protects me against their predations... which is perhaps the original intent behind the levels of statutory damages.
This is why I support both a small claims process and widespread education so that Joe Average doesn't fall foul of these laws.
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An example: I hire an overseas firm to design a website for me. He uses infringing images, but tells me they're his own, or he has the rights to them, or whatever. Maybe he doesn't even say anything if I'm not knowledgeable enough to ask. I get a demand letter from true copyright holder. I explain the situation and take down the image. The copyright holder asks for proof and I show him the invoice from the overseas firm. I get warned (not fined) and we part ... maybe even with me as a new customer. I know that isn't the current copyright law, but that's how I think it should work.
It can work that way and, legally, if you have all your ducks in a row and can unequivocally prove what is termed innocent infringement, then a rightsholder should know that pursuit of a claim against you is really in no-one's best interests.
If a rightsholder still pursues you after you've produced evidence that you absolutely, genuinely had no idea that you would be committing an infringement based on accepting the work of a third party... well, I personally don't agree with their stance, even though the letter of the law might permit them to do so.
Besides, the rightsholder has to know that under US law, their claim might get struck down to as little as $200 even if they prevail. Far better to educate the infringer and work with them than roll the dice through the courts.
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And here we have our common ground. If companies like Getty and Masterfile shared this view, I really don't think this website would exist. I wouldn't be posting here almost for certain, as I never would have had a reason to research the issue.
Instead, I'm taking my own photos and will likely never use nor buy a stock image again.
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We're going to disagree here because there are an infinite number of ways in which you could photograph that baseball to make it look unique or different. There's the background, lighting, framing, depth of field and a myriad of other elements to the creative composition of a photograph that means your shot of a baseball could stand head and shoulders above all the other shots out there -
. . .
I can politely disagree with you here. I think the current law agrees with your point of view in most cases and I wouldn't break the law. That doesn't mean I agree with the law. Most of our laws make common sense and are easy to not "accidentally" violate. Not so with copyright law. The idea that a simple unremarkable picture of a common item like a baseball is important enough to protect with life crushing fines of tens of thousands of dollars is just absurd.
But to each his own. Its really not hard at all to avoid running afoul of the copyright law now that I know that intent and having a paid receipt obtained in good faith is meaningless regarding guilt. If I need a picture of a baseball, I'll snap it myself.
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I too also very glad you are here and find it very refreshing and enjoy reading and participating in the discussions with you. I hope you will continue to stick around for him, participate and share your viewpoints.
I also believe there needs to be changes to update the copyright law for the modern Internet age making it fair for the artists but protecting innocent and unknowing infringers from shakedown scams like Getty images. This is not to say I do not feel that an innocent infringer should not have to pay for the infringement but I truly feel what Getty, MasterFail and others like them are doing are wrong. I liken it to if you are speeding without realizing it then yes you should receive a ticket but Getty images would be the old southern town speed trap where you get pulled over and a $70 ticket (just making a number up and not complying and innocently infringed image is only worth $70 ) cost you $700 or they threatened to lock you up until you pay them.
No offence taken and no, I didn't think you were an asshat; I know that we'll have slightly different perspectives on some issues but, honestly, I'm here because I'd like to put forth the viewpoint of an "average" photographer whom is trying to find a middle ground... so all discourse - even those with a bit of friction - are welcomed as opposed to being confrontationally entrenched with immutable beliefs.
We need copyrights, we need laws to protect copyrights, but we also really need some means to address how the internet has impacted creatives without us resorting to the 'nuclear option' of lawsuits laden with multiple zeroes ahead of the decimal point.
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DavidVGoliath,
On this:
I'd really hope that there aren't any creatives out there exploiting the system by knowingly seeding their works just so they can issue legal demands or court proceedings from infringements; that's fraud on the same level as people whom fake accidents, injuries or illness so they can instruct an ambulance-chasing attorney to collect for them.
I think the overall numbers are very samll.
But there is a photographer whose behavior and listings suggest he is either intentionally or unintentionally seeding. His photos are lovely in the way that many who visit Hawaii with a decent camera in hand could take lovely photos. He has sent out many letters.
The path does involve wall paper sites, but also involves the photographer uploading very high resolution images for downloads as wallpapers. (There is discussion all over the place. Some here: http://www.extortionletterinfo.com/forum/getty-images-letter-forum/what-is-glen-carner%27s-official-position-on-vincent-k-tylor/msg7487/#msg7487 .) The very high resolutions images are displayed in places where it is either free or very cheap and easy to download a wallpaper image. These quickly end up on free wallpaper sites, where people who think they are free download and then display publicly rather than just using as wallpapers on their ocmputers. I'm under the impression the behavior has been going on for years, and many people have been sued. Meanwhile, the free/cheap high resolution images continue to appear at sites that are traceable to the photographer.
Of course once can't be sure the photographer really, truly understands what is happening here. But one might think a person who is vigilant about suing would figure out that making high resolution images available at a very cheap site will provide the first step to the path of infringement.
This issue has been discussed. It does appear the legal representative who used to work with this photographer no longer does so
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/vincent-k-tylor-no-longer-associated-with-copyright-services-international/
I can't guess the extent to which conversation here lead to the change in legal representation.
It would be a severe abuse of the system and - in my opinion - would need to be treated as a criminal matter.
I'm not sure how a letter recipient could get the authorities to treat it as such.
I also don't know if this particular photographer ever won a case on court. I know he has sued. I think some suits have settled. What does that mean? I don't know.
Lettered
simple unremarkable picture of a common item like a baseball is important enough to protect with life crushing fines of tens of thousands of dollars
I think you need to distinguish between merely "common item" and "common snap-shot of common items". After all: Andy Warhol's pictures of soupcans are pictures of soup can's. Some paints of fruit are lovely. Some advertising photos are, when you come right down to it, just common items. To a large extent, the US requirement that statutory damages only apply to material the creator or owner bothered to register, paying a relatively small fee, and doing so in a way that makes it possible to trace that specific creation to the creator and owner ought to take care of the issue.
In my view, the fact that Getty has been fairly sloppy about bulk registration and even-- we suspect-- the licensing paper work- is to quite a large extent the evidence that those images were not considered to have great commercially valuable individually. (BTW: I think bulk registration can be ok provided it is done properly. It reads like DavidVGoliath does that. Getty seems to have done things like: no mention who the creators are, not provide individual photos and so on.
There is a big difference here. It's huge proper bulk registration shows the creator values that work sufficiently to bother to file. Few 'flickr' type photographers who take even very nice photos of the shrubs in their back yard or pairs of tennis shoes lined up by the door, or photos of their sweaters, upload to flickr, and then auto-licence to Getty are going to bother to register because they know the photos are not distinctive. They may welcome the potential for a few bucks should someone want to use the thing. But for most those photographers, the filing fees would exceed the probably anticipated licensing feeds.
Of course, difficulties could arise if an amateur photographer happens to be positioned in a location where he can-- by luck-- take a photo of historic interest. e.g. You're in the apartment above the street from the Tsarnaev brothers/police shoot out. You're brave enough to stand by the window and take a photo. You upload. But-- really- to cover this sort of situation - you have something like 6 months to register and still get statuory penalties, and you ought to do so.
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Lettered
simple unremarkable picture of a common item like a baseball is important enough to protect with life crushing fines of tens of thousands of dollars
. . .
Few 'flickr' type photographers who take even very nice photos of the shrubs in their back yard or pairs of tennis shoes lined up by the door, or photos of their sweaters, upload to flickr, and then auto-licence to Getty are going to bother to register because they know the photos are not distinctive. They may welcome the potential for a few bucks should someone want to use the thing. But for most those photographers, the filing fees would exceed the probably anticipated licensing feeds.
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This is was pretty much what I was thinking of when referring to "simple unremarkable picture of a common item "
I'm still against bulk registrations. I see too much use (abuse?) as a key component in generating infringement income.
I'm all for protecting the value of artistic creations. I just don't agree with creating an environment that allows people to make gobs of money off silly photos that are for the most part unsellable for more than a few bucks, and in the process causing so much anguish among folks who unknowingly run afoul of the copyright law.
Someone accidentally infringes on Joe Bloe's tennis shoe shot ... mail him the $3 he MIGHT have made with one sale. Catch someone knowingly and blatantly reselling Andy Warhol's soupcan shots ... throw the book at him, and send a message that it wont be tolerated.. I agree with all that.