I haven’t been able to find much detail on Getty’s lobbying efforts to change copyright law. Although, I don’t doubt the existence of such.
My thoughts are that they’d like to focus on two areas; copyright registration and contracts. However, I cannot see how they’d gain much ground in regard to these.
Getty may wish to make “bulk registration” a universally accepted method of registration. The problem as I see it is more fundamental than this. Before registering an image in its name, Getty would have to essentially “own” the image outright, or have exclusive rights transferred to them under an exclusive contract with the artist. The Advernet case has proven that Getty has failed in this aspect. One cannot (legally) register a work if he/she does not own the work. The fact that Getty is always unwilling to provide proof of its allegations against alleged infringers indicates that things haven’t improved. Now, some may argue that the law could be changed in order to make bulk registrations an acceptable method of copyright registration, and this could be made to happen. The sticking point will be that Getty will have to buy exclusive rights from every photographer in order to make legally enforceable registrations in its own name. This would be prohibitively expensive for Getty.
You can be quite sure that we’ll never see a scenario wherein the mutually-exclusive legal status of agent or exclusive agent are “combined” (i.e. the rights that exclusive owners are entitled to now fall upon mere agents) in order to allow arms-length third-party retailers to easily threaten/litigate (for statutory damages) over content that they do not even own. Photographers/photojournalists and artists that do top-notch work would be robbed of very lucrative opportunities that come from exclusivity. Finally, the onslaught of “copyright trolling” has made the ability to verify who actually owns a work to be absolutely paramount. This cannot become some sort of “grey area”.
It’s been stated by a troll on this forum that “all anyone has to do is copyright something (even if you don’t own it), and sue like hell” (I’m paraphrasing here). But, this is very flawed thinking. The real power of copyright registration is that one can make the registration BEFORE the work is published or used in any manner. That’s when registration is most powerful. In this case, registration by the owner pre-exists any prior use by anyone else.
I also doubt that copyright law will be changed to enable exclusive business agreements to be “digitally signed”, which was the downfall of the Getty vs. Advernet case. Given how contentious and widespread claims of infringement are, it would be very foolhardy to weaken the substance and verifiability of these documents. Demanding ten-thousand dollars or more for one image? High stakes indeed. Such documents could be challenged by any artist that claimed that a reasonable person pressing a “submit” button couldn’t imagine that it was a “legal” document that bestowed exclusive rights upon Getty. It’s simply not the right time, nor is it practical to “sign” a legal document by checking a box and clicking “submit”. People understand credit card use in these terms, but they do not expect binding legal contracts to handled in such a manner. I do think that Getty’s method of “digitally” signing its submission forms online was simply a way to make it appear that the contracts were exclusive for purposes of litigation. However, both Getty and the artist were aware that the contract was in no way exclusively binding, and Getty paid the lower fee as an “agent” to the artist. They should have known better than to test it in court, as forms can faxed, signed and then mailed back to Getty easily. It’s not the sixteenth century after all.
S.G.
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