Getty / Righthaven

[Robert Krausankas (BuddhaPi)]

Can the recent development with Righthaven ( being tossed ) have any effect on What Getty is pulling??
Does Getty own the "exclusive Rights" of these images, I was under the impression they only manage most images on behalf of the photog/artist, whom I would think still owns the exclusive rights??..something else that just popped into my head..

say for example I contact a photog and request permission to use an image, he grants me permission I have an email staing such, whilst at the same time this image is also in getty's library.. so I use the images and along comes Getty with their "claim to fame"..yes I have no invoice, but I do have the email.. I'd be willing to bet getty would not stand down and would probably reply with something along the lines of "this is not good enough"..l That was my situation I had the license for an image but no invoice going back 12 years or so.. the answer in regards to the licence.." anybody could create that"..

[Oscar Michelen]

Here is the "catch-22" with this buddhapi.  Getty has no legal obligation at the letter stage to establish their right to make the claim.  Of course, you would think that someone making a claim would be prepared to establish their rights to the claim, but you can't force them to. I think if it ever gets to court it would look terribly if a letter recipient had written to Getty that they would be willing to pay something if Getty would prove its right to the claim and Getty said "Sorry we're not doing that" Getty would be hard pressed to explain that behavior. But I have always acted  on the belief that they are likely to have their ducks in order. In one litigation in Federal court that I have seen,Getty did produce the artists agreement and it did transfer to Getty the right to bring the claim among other rights. Now there may be argument that just transferring those rights alone is insufficient, but that has not been tested in court yet.     

[Helpi]

"In one litigation in Federal court that I have seen,Getty did produce the artists agreement and it did transfer to Getty the right to bring the claim among other rights."

It may have purported to transfer the right to bring the claim "among other rights" but that doesn't work. You're using the same logic as Righthaven -- suggesting the right to sue is some separate right that may be transferred. As the Righthaven Judge said. No go.

If Getty had the right to sue it was because they got a section 106 right (in whole or subdivided) and as a consequence was entitled to sue per 501(d).

But you know this. Why are you speaking like Righthaven is the question ?

"Now there may be argument that just transferring those rights alone is insufficient, but that has not been tested in court yet."

What are you referring to as "those rights alone " ? If you mean the right to sue, again, this is not a right that can be transferred. 501(d) says who has standing. And it seems clear although Righthaven just tested it and lost.  If you mean by "those rights alone" instead some subset of the totality of 106 rights, it also seems clear from 501(d) the exclusive licensee has standing:

"The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411 [registration], to institute an action for any infringement of that particular right committed while he or she is the owner of it. "

If I own a photo. I can license to Mr. X exclusive worldwide usage of my 106 rights on Monday and to Mr. Y on Tuesday. Mr. X would have standing against any infringers on Monday and Mr. Y against any infringers on Tuesday. What's the issue ?

What are you saying "hasn't been tested in court yet" ?

[SoylentGreen]

Everybody's online these days whether in a blog, on twitter, or what-have-you.
Sooner or later, many people will receive some sort of communication to the effect of "you've used my property" and "you owe me 'x' thousands.
Said communication could be from Getty, a colleague next door, Nigeria, or any place else.
It could even be from someone impersonating Getty.

In my opinion, there is nothing more foolish than paying money without first checking out the validity of the claim in question.
Paying on the basis of "they might actually own this" will needlessly fleece a lot of people out of a whole lot of money.

The only reason that an accusing party wouldn't provide proof of its claim is because they have no standing, or they aren't serious enough to bother submitting proof.
Nobody, and I mean nobody wants to go to court for the fun of it.

Oscar spoke of a Getty litigation in this thread.
Of course, Getty had what it needed in this case.  Getty would not have gone to court otherwise.
But, it's foolhardy to assume that Getty has suddenly properly registered every image.
It'll take years to do that, and many artists dont want to give up their copyright.
If Getty (or any other party) says to you "you owe us thousands of dollars", you had better check to make sure.

Oscar, if Getty demanded thousands from you, you'd check the facts.  Admit it.
Just because something isn't tested in court shouldn't mean that one has no defense in that regard.
Let's avoid the pitfall of "you have to prove your innocence" that Getty wants people to fall into.
There's a great onus on the likes of Getty to prove their claims.

Imagine a scenario wherein one asked for proof of Getty's ownership of copyright.
Now, suppose that Getty doesn't send any proof, and it ends up in a court eventually.
The plaintiff could seek their legal fees from Getty, as they could argue that they were brought into litigation needlessly.
Had Getty submitted proof of their claim in a timely manner, litigation could have been avoided.

If a company/person has a copyright claim made against them, and the other party has all their papers & evidence in order, I'd say "make the best deal you can and settle with them".
However, if the accusing party has a weak case, you can often fight it off before court even becomes a possibility.
That's just what I did.  I showed them that they were going to lose, and it didn't cost me a cent to do it.

Personally, I'd only consider settling if I was both sued and I was probably not going to prevail in court.
Otherwise, it's just more Nigerian junk mail to me.

S.G.

[Helpi]

"Personally, I'd only consider settling if I was both sued and I was probably not going to prevail in court."

You would have to figure out what "prevailing" meant.

Seems that if some of these types of cases are litigated to any extent the only people "prevailing" will be the lawyers.

[SoylentGreen]

Yes, it's expensive to fight it out in court.

I guess that 'prevailing' to me would be something like the following (I'm assuming a case wherein the other party doesn't possess the copyright).
I'd find out what the retail price of the content in question is (it would often turn out to be a small fraction of what is being demanded).
I'd offer that.  They'd reject it.  We'd play the waiting game.
If it goes to court, the court would likely find that I only owed the purchase price.
There wouldn't be statutory damages awarded due to the lack of copyright by the plaintiff.
I pay the piddling retail price, and then collect all my legal fees+ because the plaintiff rejected my fair offer and put me through court (this option may not be available in all places).

It could be a similar process for an "innocent infringement" case.
Offer the plaintiff the $200 minimum per infringement (again I'm assuming the plaintiff doesn't own copyright).
They can take it.  Or, reject it and get awarded the same in court.  But, also pay my legal fees, as above.
All this doesn't sound like much, but imagine paying $400 for two images instead of $20,000.

Yeah, it's a "thought experiment" with no guarantees.  But, there are laws, processes and precedents to guide the process.
There's also a huge difference in attorneys.  Those who need legal representation should shop around a bit, or try to get a recommendation.
You don't need to pay an attorney to say "just pay them whatever they ask for".  You could do that yourself if you're so inclined (or ignorant).

As per buddhapi's question:

"say for example I contact a photog and request permission to use an image, he grants me permission I have an email staing such, whilst at the same time this image is also in getty's library.. so I use the images and along comes Getty with their "claim to fame"..yes I have no invoice, but I do have the email.. I'd be willing to bet getty would not stand down and would probably reply with something along the lines of "this is not good enough"..l That was my situation I had the license for an image but no invoice going back 12 years or so.. the answer in regards to the licence.." anybody could create that".."

We may recall that just such a case was tested in Germany in 2008.  Getty lost the case, as the alleged infringer had an agreement with the photographer.
It's odd that Getty didn't check further into the situation before heading to court.

S.G.

[Oscar Michelen]

The decisions in the Righthaven cases seem to suggest that just transferring the right to sue may not be enough to give that person the right to collect damages.  That it is an insufficient transfer of rights to allow the suit to  proceed. There may be other technical errors in the documentation. The problem as I keep rep[eating is that to test it all out may require expenditure of money beyond what it would take to settle. So as helpi points out the lawyers win.