Getty's position on providing proof

[Clark]

It is somewhat ironic that Getty refuses to provide proof that they are the exclusive agent for a copyright holder. Since copyright infringement is strict liability, if it turned out that Getty was not the exclusive agent for an image, the enduser could still be liable for other claims, whether or not they paid Getty.  Getty themselves would never accept it as an excuse that you already paid someone else for an image.

Considering that at least some of Getty's catalog is not exclusive (images can be found on other vendor websites), it seems pretty unreasonable that Getty refuses to provide proof that they are the exclusive agent.  Has this ever been brought up with them?  Has there ever been a case where Getty was required to produce this proof?

[infringer]

If they went to court they would need to show the copyright registration.  If the image in question is not registered, they will register it before filing suit.  However, my understanding (IANAL) is if the image is registered after you are alleged to have used it, this may dramatically affect the amount of damages they are awarded.  In essence, Getty is keeping you in the dark about whether they have registered the work(s) or not.  They want you to assume that they have it registered so they can get a higher settlement out of you.  But as we know, a lot of their images are not registered.

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Sorry, I read this again and realized you were asking about exclusive agent not copyright registration.  Either way, I think the same principal applies.  Getty wants you to assume that their agreement with the photographer is solid, even if it may vary on a case-by-case basis.  I view it as a bargaining chip, if they refuse to show you proof that they have exclusive ownership then you offer less unless they pony up.  Either way, if you go to sign a settlement with them you need it to be clear that they own the exclusive rights to the photograph and have the authority to give you a full release.

[neijek]

Btw, and not to steal your post, but in this kind of law suit (what is the actual term? civil suit?) who has the burden of proof? meaning they would be the one having the show that we intentionally infringes and from when to when?

Also if they come to court with an image, that they just register, and i show them that this image AS of the date of registration is NOT on my site, does that not negate the whole issue?

[Oscar Michelen]

OK, having handled a suit where Getty sued an allegedly willfull infringer, I can describe what goes on. Getty has the burden of proving two things: That at the time of the infringement, the infringer did not have license to use the image(s) in question and that at the time the image of the infringement Getty (or whoever is suing)  had the copyright or the exclusive right to its use. Most often, what Getty has is the right to use and enforce the image.  The photographers keep the actual copyright itself but assign exclusive use and enforcement to Getty by contract.

Prior to filing a federal copyright suit you MUST register the copyright you are enforcing if you have not done so previously. If the image was not registered at the time of USE then all Getty can get is its actual damages; if it is registered at the time of USE then they can get statutory penalties and legal fees.  All this is described endlessly in detail  on the site and in the videos so I wont go in further detail here.

If a lawsuit were filed Getty would have to show proof of registration and that proof of exclusive right to use and enforce the image. They have contracts with every photographer that grants them these rights and if demanded in a lawsuit they will have to provide them.

[infringer]

Oscar, what about the question of who has to prove that the infringement was willful or innocent?  What kind of evidence do courts usually look for?

[Helpi]

Copyright Act Section 504(c)(2):

"In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

It's a question for the jury to consider.  "the court" = jury. At least when the plaintiff requests a jury trial.

Also the court can't find innocent infringement if a copyright notice IN THE CORRECT form and position was on the  published copy of the work to which the infringer had access.

[Oscar Michelen]

Again Helpi is on the money! Willfulness or intent is proven by the circumstances like watermark that had to be removed from the image or as Helpi states a clear copyright notice. Otherwise Getty may try to prove willfulness by showing the experience of the infringer.