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Author Topic: damages  (Read 21424 times)

Lettered

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damages
« on: November 17, 2008, 01:02:35 AM »
Hi all.  Im trying to figure out what happens if one of these goes to court.  For most of us I think innocent infringment would be easy enough to prove.  Also, I'm guessing that for most of us the copyright wasnt registered.  That leaves actual damages, the way I understand it, as the maximum Getty would be able to get.

I did some searching and found a case talked about here:
http://www.photosource.com/channel/psn/2004/10_27.txt
where it appears to me that the court rejected the notion of multipliers and penalties added to actual damages.  The following quotes from the article got my attention:

 " "in litigated cases, infringement does not make a copyright more valuable.""

Im trying to figure out how much I might have injured or damaged the market value of Getty's copyright.  I never would have paid anywhere near the 4 figures they are asking for the little photo (nor would I have stolen it, btw).  I simply would have instructed our [third party] web page developer to find something for $5 or less or to just not use any photos at all.  So how could Getty have been "damaged" by my innocent infringement?  I say the damage related to lost license fees is closer to $5 ... would a judge agree?

Also, isnt Getty saying they are also trying to recover costs of finding the infringement?  I wouldnt think that could be considered a damage caused by the infringement, as this cost would have been incurred whether or not they had found the infringement.

So, the way  I see it, from my layman's point of view, the most I feel I would owe Getty would be a few bucks for the time it took the intern to write me the letter to ask me to take the photo down and whatever a similar photo ($5?) would have cost at places where people like me would shop for photos.

any thoughts??  what would a judge be likely to award Getty for the innocent infringement of a single photo?

Lettered

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Re: damages
« Reply #1 on: November 17, 2008, 09:44:06 AM »
I've been researching how far media bullies go with these sorts of things and have found cases where KIDS (under 14) are being sued.  One interesting thing I came across was this article:

http://cyberlaw.stanford.edu/node/5524

that talks about a warning clip supposedly aired before children's programming. creepy behavior if you ask me. The striking thing about the clip to me is the singing of "Happy Birthday" as part of it .... I have to wonder if this "get tough on copyright" group is violating the copyright of the song "Happy Birthday" ... lol

http://www.snopes.com/music/songs/birthday.asp

gettyvictim120

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Re: damages
« Reply #2 on: November 17, 2008, 06:17:35 PM »
The Happy Birthday song is a matter of debate.

http://en.wikipedia.org/wiki/Happy_birthday_song

Oscar Michelen

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Re: damages
« Reply #3 on: November 17, 2008, 10:42:04 PM »
To answer your original question I highly doubt Getty would go to court over one image but if they did there are a number of legal defenses available that would drastically reduce what they were entitled to. First is innocent infringement; second is that since the image was not registered they only get actual damages which is market rate not Getty rate; finally the court does not get involved in minimal (de minimus) infringement Bottom line is Don't pay

davep42

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Re: damages
« Reply #4 on: November 18, 2008, 07:31:01 AM »
Thanks Oscar.  This attempt by gotti (my new reference for getty) seems like a twist on the collection attempts I once got for a "listing in an internet yellow pages" that I never asked for.

Matthew Chan

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Getty behaves like the Mob
« Reply #5 on: November 18, 2008, 12:50:43 PM »
Yes, I absolutely agree.  Those tactics were outlawed because they were so pervasive back then.  It was considered unethical.  They would first provide the service (even if you did not want it), then send you the bill.

While not the same situation, Getty is going down a sticky road that will come back to bite them.  Essentially, they prey on people's legal ignorance, give no recourse for people to take corrective measures, and extort money from people's ignorance.  It is very similar to paying the mob for protection.  They create the threat and then you have to pay to remove that same threat.  

Matthew
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

sistem

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Re: damages
« Reply #6 on: November 24, 2008, 07:22:03 AM »
I am trying to understand the legal side:
If one person put online the piece of music in mp3, then let people download it, it will cause the dammage - the people won't by the CD, and yet will be able to listen it.
When we talk about photos, imagine the company that sells those stolen Getty images - that company X would earn money, and Getty will also loose customers that will by rather from X than from Getty.
In those cases, the damages are clear and obvious.

But, in the case of images that are used to illustrate a web page that is not e-commerce, that doesn't sell information, the image that doesn't help the site owner to earn money - what is the actual damage?

Another question: what are the proofs of using those images? The shapshot can not be one. I don't want to pretend that those images were never on my customer's site, but it is not the same thing if they are there for few monhts and for years. Is there any difference from the legal position?

And the last question: when the company observe the infringement, do they have, at first time, the obligation to send a requests to "cease and desist", or do they have the right to demand damages immediately?
My problem with the accepting the idea of my infringement is that there were no copyright mark, neither wattermark, visible in photo-editing programs.

Thanks in advance for answering.

Oscar Michelen

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Re: damages
« Reply #7 on: November 25, 2008, 10:39:54 AM »
Dear sistem: I will answer your questions in order:

(1) What's the actual damage?:  

The damage Getty claims is that the user should have purchased the license for the image. The owner of a "work" has the right to be compenstaed for his/her intellectual property. They took the time to create the image so why should someone be allowed to use it for free? We agree with this legal position; we have no problem with this position.  What we disagree with is the amount of damage Getty claims to be entitled to and that Getty cannot prove that this same image was not available on some other site for free download. Getty claims theri "actual damage" is the cost of a two year license fee,which the Getty sites computes at about $1,200.00.  There are three problems with this position. First, Getty cannot prove that these images were all used for two years. Second, it is not Getty's inflated pricing schemem that controls; case law shows that it is "fair market value" that controls and the copyright holders price is only one factor to consider when affixing fair market value. So the FMV for one image is significantly lower than $1,200. Third, Getty is presently being sued by some top-level photographers who are claiming that Getty has allowed their images to be licensed for as low as $2.00! So how can they claim these inflated fees?

(2) What is the proof of use of those images?

Getty is indeed relying on the snapshot of the web page and is suing archives.org (the Wayback Machine) to get old screenshots of the sites.The longer the infringement went on, the more it would cost to acquire a similar license for the image. But as you see in my answer to your first question I don't believe they can establish a two year use for most of the images.

(3) Do they have the right to demand damages immediately?

Yes, there is no requirement that an infringer be first given a "Cease and Desist" letter prior to claiming damages. Even if they did first send out a cease and desist letter, they could still seek damages for past infringement.Copyright Law is very much geared to protecting intellectual property.  That's why you don't even need to register copyrights (or trademarks) in order to have rights in your work.  But the law also limits the damages you can receive if you have not registered them and the law also looks at the intent or lack of intent in assessing damages.

sistem

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Re: damages
« Reply #8 on: November 25, 2008, 10:50:13 AM »
Oscar, thanks a lot for answering my questions.

I think that it is clear that all of us respect the work of others, and we do agree that that work has to be payed. Also, it is clear that the act of creating a work, gives the copyright to the author.
But actually, we didn't know that images found on different 'free images stocks' were not free.
That is why I wish to understand what would be the FMV for those images that I put on my customer's site. I decided to talk to a lawyer and to send a kind of settlement proposal, but with a FMV price, which shoult be one year licence for each photo. Do you think that is is fair enough?
Of cours, images are not on the site anymore and I blocked the access to the Wayback machine.
By the way, do Wayback machine really provides the requested snapshots?

Oscar Michelen

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Re: damages
« Reply #9 on: November 25, 2008, 05:16:01 PM »
I think that is more than fair since you may have no obligation to pay anything.  As to the Wayback Machine, yes absolutely, I have seen it done.

rublev

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Re: damages
« Reply #10 on: November 25, 2008, 09:53:50 PM »
Yep, Wayback Machine is scary ;-)
It gives you your website almost every month from when it first appeared. I can see now when images in question appeared on one website i'm helping.

Lettered

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Re: damages
« Reply #11 on: November 27, 2008, 07:28:09 AM »
This might be of interest to those pondering what actual damages should be.  It is apparently Getty making the argument of why web use images are only worth $49.

http://www.abouttheimage.com/2858/getty_answers_critics_of_the_49_web_use_product/author3/

Oscar Michelen

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Re: damages
« Reply #12 on: November 27, 2008, 12:15:05 PM »
Can't find what you are referring to lettered.
Oscar

Lettered

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Re: damages
« Reply #13 on: November 27, 2008, 01:19:20 PM »
There was a link in my post to a letter Getty supposedly wrote in response to photographers complaining about the $49 web use license fee.  No new information, really, just Getty saying in so many words that the market wont support anything higher than $49 ... which conflicts, of course with the $1300 demand.  Might be a handy reference when trying to establish fair market value of the alleged infringing use ... if thats even needed ...

search the linked to page for the text appropriate price point.

Oscar Michelen

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Re: damages
« Reply #14 on: November 27, 2008, 01:24:50 PM »
This is very helpful

 

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