ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: scraggy on September 26, 2011, 05:48:13 PM
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I live in Israel ( hence the Hebrew above ), and I have been sued (not just threatened, but actually sued), for $27,000 for having one image on a website.
But it is not Getty that has sued me, but a local company (MAROT IMAGE) that claims to be Getty’s exclusive representative in Israel.
iancohen@013.net אם מישהו רוצה לשאול שאלות, הם יכולים לכתוב לי ( If anyone has any questions, they can write to me)
Marot Image has included in the lawsuit a letter signed by a Marek Wystepek of Getty Images that supposedly gives Marot the right to “take any legal actions” IN THEIR OWN NAME!
I wonder if the recent Righthaven judgment that the "right to sue," is not a transferable right under copyright law” would apply to Getty’s supposed transfer of such a right to an Israeli company.
In my case, the single image in question is registered to the photographer himself in the United States copyright library, yet Marot Image claims that the “ copyright and all other rights” belong to them, which is clearly not the case!
If the transfer of the "right to sue" alone is illegal under American law, then maybe Marot has no rights at all.
Same issue would perhaps apply to any country in which Getty has a “local franchise”!
Can anyone add any light to the above?
Thanks
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Not familiar with the laws in Israel, but one would think that if the photo is registered with the US Copyright Office under the photographers name, they would have no standing, nor would Getty Images have any standing, simply put they don't own the image in question....period
Given the amount they are after, I would find yourself a local IP attorney with good credentials and retain him/her.
In regards to Marot I came across these after a quick search ( they are fairly old so they've been in cahoots with GI for a while)
http://lma-law.com/news/StatutoryDamagesforEveryCo.php
http://lma-law.com/news/JurisdictioninOnlineInfrin.php
and best of all this:
http://lma-law.com/news/CopyrightLicenseDoesNotAut.php
maybe some others will throw in the share of thoughts on this issue, best of luck and please keep us posted!
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Good discussion here, and great links provided by Buddhapi.
Yes, the case in question would depend on your local laws.
But, it would be unwise to assume that the laws of the US have an exact counterpart in another country.
However, I do think that a situation wherein the original copyright owner has transferred all rights to Getty, but Getty then drafts an agreement with Marot giving them the right to litigate would be a "sketchy" situation indeed.
Perhaps, the lawsuit that you speak of is intended to simply force you to settle out of court?
I'd agree with Buddhapi that a consultation IP lawyer would be a good investment.
In any case, most companies will settle for a small fraction of their demand price in the end.
S.G.
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As I understand it the image in question is registered under the photographers name, which would mean that either the rights have not been transferred to Getty, or they were transferred but someone ( GI or the photog) never updated the registration with copyright.gov. I would think a judge would look at what is on file and go from there..
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I thought that the registration stayed in the original photog/artists name.
But, the "exclusive contract" would "transfer" the legal rights specified in the contract upon the third party (i.e Getty).
So, the registration wouldn't be changed with the Copyright Office.
I could be wrong; if so, then I've learned something.
Can anyone clarify this?
S.G.
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Let me clarify. There are two issues here. One concerns copyright ownership in my personal case. I spoke to the photographer personally, who told me that he had NEVER given an exclusive license to anyone, and certainly never assigned his rights! At most, he says that he had given National Geographic a non-exclusive license. Moreover, he published a book, with the image in my case appearing within the book, which he registered in the United States Copyright Library, including “ all text and photographs”! The photographer, therefore, remains the only person on earth with the right to sue anyone! Marot Image claim that THEY THEMSELVES own the copyright, without offering any explanation as to why that may be the case.
The laws are practically identical in both countries. Here, an exclusive license holder could sue, but they would have to add the copyright holder to the lawsuit. Here is a link to the Israeli copyright law of 2007 – in English - http://www.tau.ac.il/law/members/birnhack/IsraeliCopyrightAct2007.pdf
Of particular relevance is clause 54.
The second issue concerns the people in Israel who have settled out of court with Marot Image, whose only link to an alleged infringement ( in my case ) is that they claim to be a Getty franchise, with a power of attorney to sue received from Getty. I am certainly not a lawyer, but even assuming Getty held an exclusive license, including a clause allowing them to sue, then Getty could sue themselves, but they would still have to add the photographer ( the copyright owner ) to the suit ( as they have done in the UK ) . But here in Israel, they have supposedly ( in my case ) transferred this right to sue, as a stand alone right, to MAROT IMAGE. To the best of my knowledge, the transfer of this right has not yet been tested in Israeli courts, but opinion here is that we would follow the American rulings ( see Righthaven )that the right to sue is not one of the exclusive rights in clause 11 of the Israeli law, and therefore cannot be transferred alone.
Thank you all for your input.
Scraggy
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If the photographer himself told you that the rights haven't been transferred to Getty or Marot, then nothing's going to come of this.
They're just "trolling" you, to try to make you settle foolishly. Your story shows how important it is to check into every aspect of these claims.
You can either play the waiting game, or just tell them that you've busted them and the scam's over.
They'll probably go away unless they're incredibly stupid.
This is one of the worst things that I've heard in a while.
Companies that do these sorts of things get into quite a bit of trouble sooner or later.
I wonder if Israel has the legal equivalent of America's "barratry"
http://www.vegasinc.com/news/2011/jun/13/tea-party-group-sues-righthaven-denver-post-over-c/
Kindly keep us abreast of any future happenings.
S.G.
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It is no longer a waiting game - I have 14 more days to file a letter of defense.
I already sent them all the evidence to explain their error!
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Are you saying that it will cost you $108,000 US dollars to fight this?
Also, nobody asks for advice, and then just says, "I'll pay them" when they have clear evidence of innocence.
Man, you must be trolling. I'm done.
S.G.
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I believe SG may be correct in the fact that the copyright stays with the creator, however as stated below there must be a transfer signed by the artist.
Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.
A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.
Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the
parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties. For information on recordation of transfers and other documents related to copyright, see Circular 12, Recordation ofTransfers and Other Documents.
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The photographer of the image in my lawsuit took photographs over a 20 year period, then wrote a 275 page book, and went to the bother of registering his copyrights in the American Copyright Library. Let's face it - he would not wake up one morning, and transfer ALL his rights to an unknown company in Israel.
I am not a lawyer, but it seems to me that the most they ( Marot ) could claim is that they received the RIGHT TO SUE from Getty, that has AN EXCLUSIVE LICENSE AND RIGHT TO SUE from the photographer ( which he denies). Plus, the Righthaven decision may make such a transfer illegal in any case.
In my case, Marot's main claim is that they own the copyright.
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i am reading with interest your posts and wish you the best of luck...I am a Canadian lawyer currently visiting here and would like to know the current status of your dispute. More importantly, I am interested in the israeli law firm on retainer for Marot that is sending c and d letters based on what may be less than solid basis.
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I am happy to report that Marot Images (Getty’s representative in Israel) has dropped their lawsuit against me.
Quite simply, it was absurd of them to claim that they owned the copyright! In almost all cases, the photographer retains his copyright, even in Getty’s standard contract with photographers.
In my opinion ( and I am not a lawyer) , the absolute most that Marot Image could have claimed is that they represent Getty, which has an exclusive licensing agreement (which they didn't according to the photographer himself!) with the photographer.
Even under these circumstances, both Getty and the photographer should have been added as plaintiffs, and they were not. The photographer wasn’t even mentioned, and Getty only allows Marot Image to sue “in its own name” (according to the agreement between them).
I am not a lawyer, and my opinion should certainly be checked with a lawyer, but it would seem to me that even if Getty had an exclusive license, whilst they could theoretically sue someone in Israel, it may be that Marot Image has no such right, as the right to sue may not be a transferable stand alone right in copyright law (see Righthaven in the USA). Clause 54 of the Israeli copyright act states clearly who has the right to sue over a copyright infringement.
So, to conclude, here are some key words in Hebrew תביעה משפטית מראות אימג גטי
so that my comments will be found by Israelis.
If anyone in Israel receives a warning letter, take a deep breath, and show the above to your lawyer. Or look up the real copyright owner on the Internet (the Getty site often lists the name of the original photographer), and ask Marot Image why they believe they own the copyright ( if they claim this as they did in my case ) and not the photographer himself.
Best of luck to everyone!
My name is Ian Cohen, from Jerusalem - איאן כהן
מידע נוסף על מראות אימג וגטי אימג ניתן למצוא כאן
http://www.israel-tourist-information.com/marot.htm
More information in Hebrew can be found using the above link
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Thx scraggy for posting your experience and the triumphant result. Hope it wasn't too much of an unpleasant or costly ordeal for you to get to where you are now.
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Scraggy,
This is insightful information you have provided from Israel. We appreciate you sharing.
This is the power of the online mindshare at work where the collective members learn from one another.
Also, thanks for being one of the few willing to "come out" and revealing your true identity.
Matthew
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Very interesting series of posts and I am sorry that I was not on during this excellent discussion - An Israeli company could not rely on a US copyright as registration if they wanted to complain about Israeli infringement. Glad it worked out in your favor.