Getty getting some of its own medicine

[roywood06]

Patent law dispute
http://www.law360.com/cases/525ee8e9c819cd3c7c000001

Copyright infringement by use and selling of an image
http://dockets.justia.com/docket/arizona/azdce/2:2013cv02098/813125

[Robert Krausankas (BuddhaPi)]

Nice find, I guess a visit to PACER is in order to get the full scoop on this..

[Lettered]

Not saying this is what's going on here, but ...
I always wondered how many (if any) people were selling other people's work on Getty ... and whether Getty took any action whatsoever to make sure their contributor's actually own the work they sell through Getty.  Is the "unknown party" an unnamed Getty contributor?  If so will Getty "take the hit" for Yankee Candle and Bed Bath and Beyond ... or "throw them under the bus"?  Being potentially large clients, I doubt it.  Wonder what they'd do for a smaller client caught up in this?
Maybe this lawsuit will bring some of that kind of thing to light.

[Robert Krausankas (BuddhaPi)]

I'd be willing to bet there are tons of images in getty's collection, that are upload by other than the original artist..I think part of the process is the "contributor" agrees to own the copyright to any images uploaded..but hell people lie and seemingly twist things to their own benefit all the time, just take a look at Seattle Law Firm McCormack Intellectual Property Law.

[Robert Krausankas (BuddhaPi)]

Here is the complaint regarding getty Images, Bed bath, Beyond and Yankee Candle. I would think and hope that BBB and YC in turn sue Getty Images for sucking them into this mess.. I'm sure once again Getty will claim, it was an "accident", an "oversight" and they did not mean any harm...much like Getty letter recipients claim to no avail..Karma at its' best!

http://ia601009.us.archive.org/17/items/gov.uscourts.azd.813125/gov.uscourts.azd.813125.1.0.pdf

[lucia]

I'm breaking up my comment because weird things are happening.

5. Warranty and Limitation of Liability.
5.1   Getty Images warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Getty Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by Getty Images pursuant to Section 4.1, Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Getty Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not, where a property release is provided, infringe on any trademark or other intellectual property right and/or will not, where a model release is provided, violate any right of privacy or right of publicity.
5.2   GETTY IMAGES DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GETTY IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GETTY IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. GETTY IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.

So Getty does warrant that they do, indeed, have a right to license on the part of the copyright holder. The license further reads

Getty Images shall, subject to the terms of Section 5.2 above and Section 6.3 below, defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or as a result of claims by third parties ( “Claims”) relating to any actual or alleged breach by Getty Images of its warranties set forth in Section 5.1(ii)-(iv) above. Getty Images shall have no obligation under this Section 6.1 for any Claims that arise out of or are a result of: (i) Licensee’s modification, overlay or re-focusing of the Licensed Material, where the Claim would not have arisen but for the modification, overlay or re-focusing made by Licensee; (ii) the context in which Licensed Material is used in a Licensee Work; where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee's continued use of Licensed Material following notice from Getty Images, or upon Licensee's knowledge, that Licensed Material is subject to a claim of infringement of another's right. The foregoing states Getty Images' entire indemnification obligation under this Agreement.

I read this to say that if BBB is sued by a claimant claiming the Getty was not authorized to license the image, Getty will pay their costs and will do so even if it turns out that Getty did was authorized.

I think the following says to get Getty to cover the costs, BBB has to inform Getty of the claim. Getty may elect to represent BBB in court:

The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought

[lucia]

From the complaint:

23. Getty applied a watermark to the Work on the Website. The watermark
contained the logo for the Website and read “Thinkstock by Getty Images.”

[Robert Krausankas (BuddhaPi)]

From the complaint:

23. Getty applied a watermark to the Work on the Website. The watermark
contained the logo for the Website and read “Thinkstock by Getty Images.”

THIS could be hugely problematic for getty images imho.

[Greg Troy (KeepFighting)]

Great thread and info, I will have to digest this more over the weekend.  Thanks for sharing!

-------------------------------------------------------------------------------------------
@ Robert

I agree this could be VERY problematic for Getty.  Getty keeps doing stuff like this and they don't seem to learn.  When are they going to realize that their current business model is a sinking ship and it's time to abandon ship.

http://me414.files.wordpress.com/2010/01/rat.jpg

From the complaint:

23. Getty applied a watermark to the Work on the Website. The watermark
contained the logo for the Website and read “Thinkstock by Getty Images.”

THIS could be hugely problematic for getty images imho.

[stinger]

I am not familiar with Gettys photog interface.  Do they do any do diligence to verify that an uploaded photo belongs to the person that uploaded it?  Or do they simply rely on something in their click through agreement to protect them?

Could the fact that they don't have proper controls in place to protect their customers from potential suits, be a source of BIG TIME legal exposure to them?

[Lettered]

I interpreted it a bit differently, but I could be wrong.  The indemnification is "subject to the terms of Section 5.2" which says "GETTY IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT".

Which seems to me to say in other words "we promise it's OK, but we won't reimburse you for any damages if it's not"

I can't imagine even Getty stooping that low, but it does appear to me that they have the contractual right to reimburse license fees and nothing else.

Again, I could be interpreting it wrong, and maybe even the law wouldn't allow such a thing even if it did exist in the contract ...

Either way, itll be interesting to see how Getty plays it out ...

I'm breaking up my comment because weird things are happening.

5. Warranty and Limitation of Liability.
5.1   Getty Images warrants that: (i) the Licensed Material will be free from defects in material and workmanship for thirty (30) days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); (ii) it has all necessary rights and authority to enter into and perform this Agreement; (iii) Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Getty Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not infringe on any copyrights or moral rights of any person or entity; and (iv) if a release is provided by Getty Images pursuant to Section 4.1, Licensee's use of the Licensed Material in accordance with this Agreement and in the form delivered by Getty Images (i.e., excluding any modifications, overlays or re-focusing by Licensee) will not, where a property release is provided, infringe on any trademark or other intellectual property right and/or will not, where a model release is provided, violate any right of privacy or right of publicity.
5.2   GETTY IMAGES DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GETTY IMAGES SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GETTY IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. GETTY IMAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.

So Getty does warrant that they do, indeed, have a right to license on the part of the copyright holder. The license further reads

Getty Images shall, subject to the terms of Section 5.2 above and  Section 6.3 below, defend, indemnify and hold harmless Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorney fees), arising out of or as a result of claims by third parties ( “Claims”) relating to any actual or alleged breach by Getty Images of its warranties set forth in Section 5.1(ii)-(iv) above. Getty Images shall have no obligation under this Section 6.1 for any Claims that arise out of or are a result of: (i) Licensee’s modification, overlay or re-focusing of the Licensed Material, where the Claim would not have arisen but for the modification, overlay or re-focusing made by Licensee; (ii) the context in which Licensed Material is used in a Licensee Work; where the Claim would not have arisen but for such context; (iii) Licensee’s failure to comply with the terms of this Agreement; or (iv) Licensee's continued use of Licensed Material following notice from Getty Images, or upon Licensee's knowledge, that Licensed Material is subject to a claim of infringement of another's right. The foregoing states Getty Images' entire indemnification obligation under this Agreement.

I read this to say that if BBB is sued by a claimant claiming the Getty was not authorized to license the image, Getty will pay their costs and will do so even if it turns out that Getty did was authorized.

I think the following says to get Getty to cover the costs, BBB has to inform Getty of the claim. Getty may elect to represent BBB in court:

The party seeking indemnification pursuant to this Section 6 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. Indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought

[stinger]

I agree with you Lettered that Getty does not want their liability to be anything more than what you paid. 

However, if you combine that with the following facts:

• they market themselves as digital image experts
• they don't really do enough to verify that they have the right to license the images they license.  They write an unsigned contract with customers limiting their liability to money's paid.  They write an unsigned contract with contributors saying the contributors are responsible for owning the rights the contract transfers to Getty.

Wouldn't someone expect an expert to have a little more responsibility than that?

[Greg Troy (KeepFighting)]

Getty can try all they claim innocence and use legalese to try and cover their butts all they want but it seems they are getting sued at least once a year for licensing images they don't have rights to.

Remember too that Getty is the one that offers an "Insurance Policy" for the images that you license from them, that should tell you something right there.

Also as Getty will tell you when you try to explain to them where an image came from,  it does not matter where or how you got an image, infringement is a statutory offense so you are on the hook. So the same applies to them!

[Lettered]

I would certainly hope so ...

I agree with you Lettered that Getty does not want their liability to be anything more than what you paid. 

However, if you combine that with the following facts:

• they market themselves as digital image experts
• they don't really do enough to verify that they have the right to license the images they license.  They write an unsigned contract with customers limiting their liability to money's paid.  They write an unsigned contract with contributors saying the contributors are responsible for owning the rights the contract transfers to Getty.

Wouldn't someone expect an expert to have a little more responsibility than that?

[Greg Troy (KeepFighting)]

Nice to see you back again Lettered!