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Author Topic: Getty letter about image included with commercial web design software  (Read 16091 times)

Aleksandor51

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Hello everyone.  I just found this forum and am glad I did.  Five years ago I designed a website for my consulting firm, (very small business as in me, myself and I), using Net Fusion Objects 8.  I bought this at a discount from Earthlink as their way of thanking me for using Earthlink to host my site.  With the exception of personally taken photos, all graphics and images were part of one of the templates provided by the Net Fusion Objects software.  There was no indication that any of these images were copyrighted.  Now all of a sudden Getty claims a couple of the template photos are their property and want $2500.  Naturally they did not say just when they bought the images, so I would not be surprised if this was done after Net Fusion Objects 8 was released or after my website went live in 2008.  That or the designers of the Net Fusion Objects were either deliberately or inadvertently lax about not including copyrighted material.

So instead of going after Net Fusion Objects, or even Earthlink, Getty apparently thinks my tiny business is an easier target.  I have not contacted them, and am willing to remove the offending images.  However, I do want proof of the date they copyrighted these images.  The name of the photographer is included, but I don't know if he should also be contacted.  I refuse to pay these scumbags a penny for something that is not my fault.  Any advice is appreciated!  Thanks.


Jerry Witt (mcfilms)

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Do you have the original Net Objects discs? Does the package contain a End User Licensing Agreement (EULA). I think this happens frequently, and frankly if you licensed the images with Net Objects, you shouldn't have to take them down. If you do find a license, share that info with GI and make it clear that you will be billing for any additional time to address this matter.

If you don't find the packaging (who keeps software boxes for 5 years besides me), you might contact NetObjects about this situation.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

Lettered

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Good points Jerry.  I would just add that many times the EULA can be found electronically in the program application folders with a link from menu options in the software itself.
That said, the EULA doesn't necessarily contain good news.  Maybe the included photos are for "layout" and design use, or something more or something less ... won't really know till you read it.
I would strongly recommend taking all the site images down till the issue is sorted out.
1) to avoid any appearance of "willfull" infringement in case the images turn out to be registered by Getty.
2) in case there are more Getty images somewhere on your site that they haven't found yet.
3) to start the statute of limitations clock in case it turns out that the images are indeed infringing

stinger

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Good points, Jerry and Lettered.

I totally agree with your emotional response Aleksandor.  However, you must realize, Getty doesn't really want to turn the tap off on this fountain of wealth that they have found.  If so, they would address the causes (like the distributor of the objects you used).  Instead, they like to wallow in the dirty money they can make by playing the law against the little guy.  It is shameful, but that is the world we find ourselves in.

Aleksandor51

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Thank you all for the replies and information. I do have the original disks and will check for the EULA.  Would it be advisable to ask Getty for copyright proof of the images in question? I want to see legal documentation, especially verifiable dates that they owned the images before they were included in my website.  It would not surprise me if their spider bot is designed to find any images they own regardless of the date they were acquired.

DavidVGoliath

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It would not surprise me if their spider bot is designed to find any images they own regardless of the date they were acquired.

If Getty acquired the images after the date that you made use of them (2008?) their claim might still be valid, so long as their acquisition of the library included full assignment of copyrights to Getty... which is a 99.999% certainty (otherwise there'd be no point in the takeover)

From the US Copyright Office's FAQ

"A person or organization that is not an author may be named as claimant only if the copyright ownership of all rights was acquired in writing or by operation of law. Written transfers must be signed by the party transferring the copyright or his authorized agent. In addition, copyright ownership may be transferred by the provisions of a will or by operation of law other than by inheritance, for example, by operations of state community property law"

As an FYI, Getty wouldn't need to show you this documentation prior to the discovery phase of any litigation; though, in my opinion, anyone whom uses a "best practice" when enforcing their copyrights could show their registration certificate or rights assignment paperwork either when issuing their demand and/or at any time it is requested... certainly that's what I do when enforcing my own rights.

Just my €0.02

Robert Krausankas (BuddhaPi)

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anyone whom uses a "best practice" - Getty Images doesn't fall into this category..they only practice "Give us your money"
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Aleksandor51

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Thanks again for more good information.  This may be a long shot but I will see if NetObjects can or will provide anything on what licensing, (if any), they have or had regarding the two images in question.

Something else I noticed is that the images were changed, (and possibly significantly to my untrained eye), in the template provided by NetObjects Fusion as compared to what Getty has on their website.  Please forgive me if this is a really naive question considering this whole matter is about copyrights, but is it permissible here to upload the template and Getty versions so others can judge for themselves? 

DavidVGoliath

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You could link to the page on Getty's systems where their image is located, and perhaps offer a link to a site where your version of the photograph is located - as long as it's a third party site. To my mind, that would be permissible. Just my €0.02.

Robert Krausankas (BuddhaPi)

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Yes provide links to them, as we don't allow the upload of images into the forum any longer. If you are concerned about the legal aspect, you can PM me with the links and I will gladly post them on my blog and comment / link back to them here..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Couch_Potato

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If Getty acquired the image after it had been on your site it would be almost impossible for them to prove their claim. They'd have to prove you acquired the image 'illegally' in the first place. While theoretically it could be proved it would be a costly exercise. Something we know Getty does not like pursuing usually.

Not being able to provide them with a licence for an image they have not always held the rights to distribute would not be proof that you infringed so I think it is entirely relevant of finding out when the image was acquired.

Of course, they could have always held the rights to this image, but then they should quite easily be able to confirm that...you'd think!

Aleksandor51

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Robert, I'll send you the links in a PM.  Since I removed the offending graphic from my website, the only way you could see it is if I include the .gif file.  I went over everything from my installation of Net Fusion Objects and I could not find the file in question. Granted it has been close to 5 years since I did anything with the graphics for this site, so I am not sure if this file was part of a download I got from Net Fusion Objects as a promotion when I purchased the software or not. My website was created on a computer i no longer own, and it is possible that I did not transfer all the graphics files to my present computer.  However, I will still contact customer support and see if this is a file actually owned by Net Fusion.

The EULA does clearly state that purchasers of the Net Fusion license have full rights to use any images included with the program.  I'll keep looking since these images are scattered throughout the software and may even be hiding in other files on my computer.

Also, the image I used is a collage of four images.  Getty is claiming ownership of only two.  The two they are claiming were significantly altered, (i.e., gray scale instead of full color, faded edges to blend in with the other images in the collage instead of being sharply defined as in the original, and much lower resolution).

DavidVGoliath

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Also, the image I used is a collage of four images.  Getty is claiming ownership of only two.  The two they are claiming were significantly altered, (i.e., gray scale instead of full color, faded edges to blend in with the other images in the collage instead of being sharply defined as in the original, and much lower resolution).

As a technical point: the fact that the images were altered has no bearing on their claim - alterations could be classed as derivative works.

17 USC § 106, which describes the exclusive rights in copyrighted works, mentions that a copyright holder has the right "to prepare derivative works based upon the copyrighted work"

I'll concede that there is the potential for a 'fair use' argument that the amount of alteration that you made to the original work resulted in a transformative work but, from your own admission that you merely substituted greyscale for colour and blended the edges of the photographs, I'd be of the opinion that such minimal alterations do not qualify as sufficiently transformative.

Just my €0.02

Aleksandor51

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I'll concede that there is the potential for a 'fair use' argument that the amount of alteration that you made to the original work resulted in a transformative work but, from your own admission that you merely substituted greyscale for colour and blended the edges of the photographs, I'd be of the opinion that such minimal alterations do not qualify as sufficiently transformative.

I should have clarified I was NOT the one who made the alterations.  The changes were already in the image I used in my website.  This would be clear if the images in question could be displayed here, so bear with me if my explanations need clarification.  So a question now is who did use the originals as part of the transformed image and did that person have permission?  And then who is the owner of the transformed image?     

DavidVGoliath

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So a question now is who did use the originals as part of the transformed image and did that person have permission?  And then who is the owner of the transformed image?

The answer comes in five parts.

1.) Whomever made the alterations to the original is the entity that created the derivative work, though they would need to get permission of the copyright owner to effect such a creation for any reason other than private, personal use.

2.) Such permission would need to be granted explicitly in writing - especially if the intent of entity that made the derivative work was to re-distribute the derivative, whether for profit or otherwise.

3.) In all instances, the author of the original work would hold the copyright in both the original and any authorised derivative.

4.) Any derivative work that is distributed without the knowledge or consent of the author of the original work would constitute an infringement of copyright.

5.) Both the creator of the derivative, and any end users of the derivative, would be liable for infringements per the 'strict liability' nature of copyright infringement under US law.

 

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