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Author Topic: how would you interpret this???  (Read 6553 times)

Robert Krausankas (BuddhaPi)

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how would you interpret this???
« on: November 22, 2011, 06:59:22 AM »

Below is a link to the 2011 “GETTY IMAGES CONTRIBUTOR AGREEMENT”

http://photonetcast.com/wp-content/uploads/2011-contributor-agreement-v.4.0-d-sample-english.pdf

Clause 1.11 states

“You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”).”

I am not a lawyer, but this seems like both Getty and its “distributors” would receive the photographer’s legal permission to file lawsuits in cases of copyright infringement.

In other words, if my understanding is correct, a “distributor”, whilst not the owner of the exclusive license (that would remain Getty Images) would still be allowed to pursue legal action.

Would this not be in contradiction to the recent Righthaven decisions that only allows copyright owners or owners of an exclusive license to take legal action in cases of copyright infringement?

I have not had a chance to read thru the entire file, so I may have more questions as I make my way thru it..
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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scraggy

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Re: how would you interpret this???
« Reply #1 on: November 23, 2011, 04:05:08 PM »
This is a very important question. It concerns Getty’s ability to receive an exclusive license from a photographer, yet delegate or transfer the right to sue for copyright infringement to a third party, that seemingly does not own the exclusive license, yet acts as a distributor of the image in question.

This would seem to be particularly relevant in cases where Getty allows a company outside of the USA to sue for copyright infringement in their own country.

If, as in the Righthaven judgments, the transfer of the right to sue as a stand alone right , is not legal, then would Getty’s own contract with photographers not contradict the American law?

I would very much like to read a lawyer’s opinion of this seeming contradiction.
« Last Edit: November 26, 2011, 01:30:45 PM by scraggy »

SoylentGreen

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Re: how would you interpret this???
« Reply #2 on: November 23, 2011, 05:58:51 PM »
I think that this clause greatly weakens the agreement from a legal standpoint.

If other (unnamed!) parties have an interest in the "exclusive agreement", then one could make a strong argument that it's not "exclusive" at all.
That could kill Getty's chances of enforcing such an agreement to prove standing.

From the aspect of a "Getty distributor", US law makes it quite clear that those having copyright standing transferred to them must sign the agreement in writing.
That could circumvent the efforts some other company "the distributor" from proving that they have standing.

We all know that in many cases, the extortion letter victim need only show that it's not worth it for a company like Getty to "roll the dice" in order to avoid a lawsuit.
Those who get an extortion letter from Getty should just keep saying to themselves: "When Getty plays, Dipshits pay".

My thoughts on Righthaven?
Righthaven is/was a different kettle of fish in that their start-up money was available to be expended on lawsuits from day one.
I'm sure that this "strategy" was intended to show that they'd sue even if they couldn't win, and therefore people would realize that it was cheaper to pay than go through a lawsuit.
Indeed, they didn't have to worry about negative PR, because they had no "customers" to lose.
But, they never really expected anyone to fight back.  Boy, were they wrong.
Other companies like Getty can't afford to play it that dirty like Righthaven did.

S.G.




scraggy

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Re: how would you interpret this???
« Reply #3 on: November 24, 2011, 06:06:41 AM »
Fascinating point raised by SG that Getty's own agreement with photographers may possibly weaken their own ability to enforce parts of that agreement ( i.e copyright infringement ), by diluting their claim to exclusivity.

The photographer signs a clause that allows "distributors" ( whose identity is unknown to the photographers, and I presume Getty can appoint at a later date ) "the exclusive right to make, control, settle and defend any claims related to infringement of copyright"

In theory, could it be that scores of Getty distributors ( are they called Master delegates by Getty?)  located around the world could each claim that they have received an exclusive right to sue from the photographer ( via Getty )? Each exclusive right could concern a different region or country.

Would the copyright owner ( the photographer in most cases) not have to sign an agreement with each distributor in order to transfer any exclusive rights at all? Or could Getty sub license based on the above contract?

Clause 1.1 of the same above contract states:

Getty Images may sublicense or authorize any third
party distributors (“Distributors”), any customer who licenses Accepted Content from Getty Images or a Distributor (“Clients”) and their customers to
exercise the rights described in this Section 1.

Does this mean that Getty can sub license its exclusive license and create additional valid exclusive licenses ( that don't overlap with its own license )?

For example, could they appoint a different company in every country to own an exclusive sub license?

If so, then they wouldn't simply be transferring the "right to sue" alone!
« Last Edit: November 26, 2011, 01:26:48 PM by scraggy »

SoylentGreen

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Re: how would you interpret this???
« Reply #4 on: November 28, 2011, 12:11:09 PM »
Yes, there'd have to be a written agreement between the actual copyright holder and anyone else that the content is being licensed to.
The parties would have to be actually named.  Getty couldn't "sub-license" to others, as Getty's not the actual copyright holder.

I don't think that Getty's worried about their agreement being bullet-proof for court purposes in the majority of situations.
They haven't sued many people.  Their business model is based on people paying up without a fight.

I also get the impression that Getty may have "seeded" some sample agreements around.
Both for legitimate informational purposes, and also to assert that they only have solid exclusive agreements with their artists.
However, I'm sure that the stipulations in their actual signed agreements vary.

S.G.



lucia

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Re: how would you interpret this???
« Reply #5 on: November 30, 2011, 02:56:16 PM »
I'm finding something related to the exclusivity agreement a bit confusing.

Consider for example, this image at getty is here:
http://www.gettyimages.com/detail/photo/northern-cardinals-on-holly-berries-branch-high-res-stock-photography/EB2511-001


Simultaneously, the virtually indistinguishable image is here:
http://gbi.photoshelter.com/image?&_bqG=6&_bqH=eJwrNstzTnJM8nIzLizyzkjyCvXKqPQ2Mqnwjgy0MjQ1tDI0MABhIOkZ7xLsbJucWJSSmZeYU6zmGR8a7BoU7.liGwqSLwpIdckOyw429jdQAyuNd_RzsS1Ri3d0DrEtTk0sSs4AAPhfIPY-&GI_ID=


Presumably, when uploading to Getty and PhotoShelter, the copyright owner entered into agreements with Getty and PhotoShelter, and did so in some temporal order. (Moreover, the wording of the current agreements suggest contractual agreements seem to evolve over time.)   

The current agreement at PhotoShelter  states

Quote
Posting. As a Content Provider, you will be entitled to upload, post, distribute or disseminate (collectively, "post") Content (the "Posted Content") on the Site, subject to your Storage Allocation. You hereby grant and agree to grant PhotoShelter a non-exclusive, royalty-free, fully paid up, sublicensable, worldwide right and license to use, reproduce, modify, display, perform, distribute, and create derivative works of the Posted Content solely in connection with Photoshelter's operation, marketing and promotion of the Site. You hereby represent and warrant that you have all rights necessary to grant the Site the rights set forth above. ....

(See http://www.photoshelter.com/support/terms)

Meanwhile, the Getty PDF linked above states

Quote
1.1 License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to Getty Images. These rights may be exercised via any analog or digital means of communication now known or hereafter devised including without limitation via print, websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films. Getty Images may sublicense or authorize any third party distributors .


It seems to me that the two images I linked are identical. INAL, but it is difficult for me to understand how Getty could have an <i>exclusive</I> agreement to "copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of"

the image while PhotoShelter simultaneously has

"a non-exclusive, royalty-free, fully paid up, sublicensable, worldwide right and license to use, reproduce, modify, display, perform, distribute, and create derivative works of the Posted Content".

What happens to Getty if they file a suit and it later turns out that someone had obtained the image through the photographer's PhotoShelter store?  For that matter, is the mere fact that photographer granted a non-exclusive license to PhotoShelter be a problem for Getty should Getty sue?  Could Getty sue the photographer or PhotoShelter for displaying, distributing etc? 

INAL, but this is very confusing to me.

scraggy

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Re: how would you interpret this???
« Reply #6 on: November 30, 2011, 04:03:59 PM »
In my opinion, not every photo in all the Getty collections is subject to an exclusive license. In the case of the photo you have listed above, it could well be that Getty only has a non-exclusive license, (and therefore no right to sue for copyright violation).

Another theoretical option would be a photographer who has not abided by the contractual obligations to Getty. Such a photographer would be in breach of contract.

If Getty sued over copyright violation of the above image, I guess the above situation would pose a problem. Whilst Getty would have a written contract giving them an exclusive license, the license is clearly NOT exclusive at all. I am not a lawyer, but it seems likely that Getty could not sue in this case. Only the photographer, as the copyright holder could take legal action.

All the above is a laymen’s opinion.  I am NOT a lawyer.

Robert Krausankas (BuddhaPi)

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Re: how would you interpret this???
« Reply #7 on: November 30, 2011, 04:42:44 PM »
I concur with Scraggy, looks like the artist may be double dipping...
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

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lucia

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Re: how would you interpret this???
« Reply #8 on: November 30, 2011, 05:28:53 PM »
Quote
I am not a lawyer, but it seems likely that Getty could not sue in this case. Only the photographer, as the copyright holder could take legal action.
That's interesting.  It motivated me to google. I see this:

http://www.iniplaw.org/2011/01/seventh-circuit-affirms-dismis.html

Quote
Although the license agreement used the phrase "exclusive licenses," the trial court concluded that the specific words in the license granted only a non-exclusive license. Thus, the trial court determined that HyperQuest did not have standing to bring the lawsuit and dismissed the case. The district court also ordered HyperQuest to pay N'Site and Unitrin's attorney's fees of $134,958.42 for defending the copyright infringement suit. The plaintiff appealed, but the Court of Appeals, decided that the Copyright Act limits who can sue for infringement of a copyright to "the legal or beneficial owner of an exclusive right under a copyright" and affirmed the district court's dismissal. The Court of Appeals also affirmed the award of attorney's fees to N'Site and Unitrin.

Practice Tips: When making a license agreement for the use copyrighted material, attorneys should carefully review whether the terms of the agreement reflect the parties' intentions. Even if an agreement uses the phrase "exclusive license," the terms of the agreement must reflect actually exclusivity for the licensee to bring a copyright infringement suit.

In the case of the Cardinals, the copyright owner seems to be selling licenses to use the images through a non-Getty shop.  So, at least with respect to those, they are behaving as if the exclusive license does not exist.  That said, I guess we don't know whether Getty gave permission for sales in this other venue ... or what.
« Last Edit: November 30, 2011, 05:34:41 PM by lucia »

lucia

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Re: how would you interpret this???
« Reply #9 on: November 30, 2011, 06:01:01 PM »
The photographer in who snapped the cardinals image appears to have died in 2008.
http://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GRid=29579576

I have no idea who this would affect things other than that the copyright ownership must have passed to heirs.

Robert Krausankas (BuddhaPi)

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Re: how would you interpret this???
« Reply #10 on: November 30, 2011, 08:51:10 PM »
The copyright protects the artwork from the time of its inception until 70 years after the death of the artist. Upon the artist's death, her legal heirs and relatives own the copyright to the piece of art. In the case of a joint work, they copyright lasts 70 years after the last artist dies, according to the United States Copyright Office website

Read more: Artwork Copyright Law | eHow.com http://www.ehow.com/about_6303576_artwork-copyright-law.html#ixzz1fFAShNl7
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..

 

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