Copyright + Licensing Agreement with other company

[annalise]

I have just located another company overseas that sells the same image in question in my demand letter.  They have their company name watermarked over the image and the file description lists the original copyright owner (Getty) followed by a slash and their name.  Doing a google search for this company shows that they have a licensing agreement with them dating back 5 years ago.

My question is - how does this work with copyright claims?  If Getty is claiming exclusive copyright to the photo (letter states ...image represented exclusively by our company)   then how does that work with another company they have an arrangement with to sell the photo under the copyright of that company. 

Seems like there is a conflict of copyright.

[Robert Krausankas (BuddhaPi)]

Sorry to answer your question with questions!

Is the company overseas a "division of" or owned by Getty?

Getty owns plenty of smaller stock photo sites/companies

Have you compared prices for the same images from both companies?

I would "think" there may be a conflict if it is a totally separate entity. You could easily tell Getty you purchased or obtained the image elsewhere, and it would be upon them to prove otherwise..remember innocent until proven guilty.

Perhaps you could share a link to this overseas image?

[annalise]

The company is listed as an agent. But if this company puts their watermark copyright all over images - who exactly owns the copyright to the image then?

If an agent acts for another company, wouldn't they assert the rights of the company they work for- being getty and only displaying getty copyright?

[scraggy]

I would like to add a real example of the same image being sold on two respectable websites.

I was actually sued by Getty’s so-called representative in Israel – Marot Image. They sued me for infringing their copyright of this image as it appears on Getty’s website.

http://www.gettyimages.com/detail/photo/church-of-the-holy-sepulchre-old-city-high-res-stock-photography/57504480

The image copyright belongs to a Martin Gray, and the image is part of the “National Geographic” collection.

The exact same image still appears here, on the National Geographic site - http://www.nationalgeographicstock.com/comp/IR10/114/976105.jpg

The fact that NG continues to sell the image would suggest that NG has given Getty a non-exclusive license to sell their image collection, and therefore, even Getty does not have the right to sue.

I haven’t seen the agreement between NG and Getty, but in my specific case, the photographer himself informed me that no stock company, including NG, had an exclusive license!

The full story of what happened to me is in Hebrew, but Google translate will do the trick. Details can be found here – http://www.israel-tourist-information.com/marot.htm

Getty’s local “representative” withdrew their lawsuit against me. I would say that if the collection from which any image came, continues to sell the same image, then Getty would likely only have a non-exclusive license, and therefore no right to sue for copyright infringement.

[annalise]

So, in your situation, in order for Getty to sue, they need to have exclusive rights. How did the whole thing get dropped?  Did they send you a letter or did they just stop calling you?

There could be some sort of agency law at issue here - but just common sense tells me (for example) if I agree to sell Nike shoes as an agent at my new shoe store- annasshoes, I can't grab the nike shoes and plaster them with annashoes logos and then claim that I own the copyright.   

The action of the agent leads one to believe that they are the copyright holder (with all watermarks and copyright notices bearing its name) and not the principle, Getty.

And if these photo companies claim "Exclusive rights" -- what does that really mean if all of their agents are peddling the same image with agents that also claim copyright ownership.

[scraggy]

If I am not mistaken, in all cases, one can sue for copyright infringement if one owns either the copyright or the exclusive license. Assuming all the paperwork is correct (which it may not be – see Getty vs Advernet), then in most Getty cases on these forums, the photographer owns the copyright, and Getty owns an exclusive license. The license is exclusive because only Getty (and not even the photographer himself) can sell the image worldwide on the Internet.

Agents wouldn’t own the copyright, or the exclusive license, and wouldn’t have the right to sue. Adding their watermark to the image creates total confusion. A good example is http://www.visualphotos.com , that sell images from many stock photo companies, http://www.visualphotos.com/collections , including Masterfile and Corbis. This site adds its own watermark beneath each photo, but clearly, they don’t own either the copyright or the exclusive license, and they don’t sue or threaten anyone as far as I am aware. The image catalog numbers also match the numbers on the stock agencies website, but they strangely don’t give credit to the stock agency by each image!

I don’t know anything about company law, but perhaps Getty Ireland for example would be considered a bone fide long arm of Getty USA, and therefore different to an agent/affiliate. The lawsuit against me was dropped.

[Jerry Witt (mcfilms)]

There could be some sort of agency law at issue here - but just common sense tells me (for example) if I agree to sell Nike shoes as an agent at my new shoe store- annasshoes,

Okay, but for the love of God, if you DO open a shoe store, don't call it "annasshoes." I totally put the spaces in the wrong places.

[annalise]

What's wrong with the name "annasshoes"? It's a perfectly good name. LOL. And I have the perfect idea for a logo. It's a swoosh symbol with the letter A through it.    And then I'll copyright/register it  and demand payment from anyone who has a logo that is anywhere similar to mine.  Sounds like a money-making business plan.....

[Oscar Michelen]

Not if the swoosh looks too much like Nike's! lol

[annalise]

Regarding:  Agents wouldn’t own the copyright, or the exclusive license, and wouldn’t have the right to sue. Adding their watermark to the image creates total confusion.

Wouldn't the existence of agents who sell the exact photograph with their individual watermark and copyright plastered - throw doubt into the ring about whether Getty actually owns the exclusive rights to copyright of the photo.

If it came down to a lawsuit- defense is that it was too confusing to determine who owned that actual copyright (despite some compilation paper somewhere) since the photo was available so many other places with other copyrights and watermarks clearly marked.

[Oscar Michelen]

It might be better to argue that Getty was not doing enough to protect its copyright in the images by allowing this and therefore cannot come into court claiming they were seriously infringed. 

[annalise]

So, if they file a lawsuit against me, do I file response to the lawsuit, a motion to dismiss or can these both be one in the same.  With affirmative defenses of lack of subject matter jurisdiction (??is this the lacks valid copyright registration so can't be filing suit in this court) and Failure to mitigate damages for authorizing other agents who offer up the image freely for download.

[lucia]

It might be better to argue that Getty was not doing enough to protect its copyright in the images by allowing this and therefore cannot come into court claiming they were seriously infringed. 

Oscar consistently demonstrates why if I do get sued, I'm hiring an attorney.