ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: a_dezwart on April 21, 2013, 01:28:33 AM
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I too got the letter from Getty Images. A few months ago I made my own website via Weebly (super easy dyi web-based system) and used my images instead of their template but being completely naive I googled the web to find a nice image to pretty up the site. There was no watermark or copyright symbol but I now know that this does not matter.
After initial panic attack and (unfortunately) calling Getty, I went to the web and found the forum. I have been reading the forum at length and am amazed and grateful to see the genuine support from both the founders and the members. I am trying to assess my situation and the worst case scenario. I would like to find out whether the image in question was in fact registered or if Getty Images had the exclusive rights with the photographer for that image. I went to the photographer's website and he mentions on his website that he supplies his images worldwide though Getty Images. Would anybody be able to advise how I could search the registry or do a brief search for me? What else I could do to gain a bit of confidence about the situation. Oscar mentions in his informative summary that Getty registers only 1% of their images. I'm hoping the image in question is no in that 1%.
Image details: 101097387 (RM) Stepping stones across sand and shallow water, close-up
Collection: stone
Photographer: Shaun Egan
Many many thanks.
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you can search here : http://www.copyright.gov/records/
The "Stone" collection I believe is registered as a compilation consiting of many, many images.. you might want to read into the getty v. advernet case, which the judge ruled the registrations invalid, and even though he found the defendant guilty of the infringement, he awarded exactly zero dollars because of Getty's sloppy reigistration.
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I'm in the same position as yourself. I spiced up my website with one small image. I actually removed it a month before I got the letter. I shut the whole website down a year ago. In any case, I went to the Getty website search engine, and put in a description of the image. I'm not going to write a description of the image here, but it was something like "cat in tree". Then I had to do some hunting. I found it after about ten minutes in their catalog. My question is, does the fact that it appears in their catalog imply they have a legitimate and proper copywrite registration?? Still looking for the answer to that question.
p.s. I have so far ignored their letters, for over a year now. They sent it to their collection agency. Don't know where this is going.
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you can search here : http://www.copyright.gov/records/
The "Stone" collection I believe is registered as a compilation consiting of many, many images.. you might want to read into the getty v. advernet case, which the judge ruled the registrations invalid, and even though he found the defendant guilty of the infringement, he awarded exactly zero dollars because of Getty's sloppy reigistration.
Thank you for this info. After studying the getty v. advernet case I see that it is possible that Getty may have in fact cleaned up their sloppy registration since the ruling, which would not work in my favor. However, am I correct in thinking that if Getty still holds this collection as a compilation and Gettys claim to me is regarding only a single image, then they are out of luck?
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@gimby: Just because an image appears on Getty's site,does not mean they have exclusive license to it, nor does it mean it is registered or registered properly..It only shows that the image is on their site.
@a_dezwart: The stone collection consists of hundreds if not thousands of images, the changes of the image in question being registered since the advernet ruling are pretty slim IMHO, and I still think them filing suit over 1 images is going to be very slim, as it is a very risky and expensive proposition.
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As of 8 am this morning there are 93,027 images in the stone collection. I agree with Robert that the odds of Getty going after you for one images are very low. It is my opinion that Getty filed the recent one image lawsuit to make a statement that they will do it and to be able to include this on future demand letters.
@gimby: Just because an image appears on Getty's site,does not mean they have exclusive license to it, nor does it mean it is registered or registered properly..It only shows that the image is on their site.
@a_dezwart: The stone collection consists of hundreds if not thousands of images, the changes of the image in question being registered since the advernet ruling are pretty slim IMHO, and I still think them filing suit over 1 images is going to be very slim, as it is a very risky and expensive proposition.
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Great replies, much appreciated. This gives me some breathing space. Another thing that came to mind is that I live in Canada. Looking though the forum I noticed that Matt has been pretty careful giving advice on Canada. Looks like the letter I received is from Seattle but they ask for money to be remitted to Bank of America Getty Images Canada Inc. which makes me think they made the Canadian branch of Getty Images.
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This image?
http://www.gettyimages.com/detail/photo/stepping-stones-across-sand-and-shallow-high-res-stock-photography/10197387
I'll search for the photographer's name and so on.
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We know Getty has tended to try to compile batch registrations. Their earlier method didn't hold up. Whether they have found a new method that is valid, we can't guess. However, I think one of the elements ought to be that the photographer should be listed by name in the registration. Searching at the US copyright office, I found exactly one instance of Shaun Egan:
http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?SC=Author&SA=Egan%2C%20Shaun&PID=9J8gCLW88fGTH-XtL7_Z3fv0e0TS&BROWSE=1&HC=1&SID=10
That's a calendar and the copyright owner is not the photographers. It's the Universe Publishing who hired them to create photos used in the calendar.
Bear in mind the search tool only goes back to 1978. I'm also not sure whether every name listed on a bulk registration would be 'findable' in a US copyright office search.
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This image?
http://www.gettyimages.com/detail/photo/stepping-stones-across-sand-and-shallow-high-res-stock-photography/10197387
I'll search for the photographer's name and so on.
Yes this is it!
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So what is the conclusion? The photo in question shows up in the Getty catalog, and the photographers name is Shaun Egan. Shawn Egan has exactly one piece of work registered with the copyright office, and it is part of a calendar with other photographers. We don't know exactly what pictures are in this calendar. The picture in question could be in this calendar, but how does one know? Where does that leave the copywrite status of the picture in question? Little confused.
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gimby
There is rarely any 'conclusion'. The best one can do is have data that suggests what the maximum loss might be IF getty did sue (which they likely won't for 1 image).
With respect to the calendar: One way to know if this picture is on the calendar, is to obtain the calendar. You could write the calendar author/maker. They were listed on the copyright. Also: If the images is on the calendar, the author of the calendar seems to own the copyright because the photo was work for hire. That means any contract granting a license needs to be between the calendar maker and getty, not the photographer.
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Lucia, so glad someone can understand these things so well. But in this hypothetical situation if the calendar had the image and if getty had a nice strong license with calendar maker (which they probably don't) then this would be an argument for getty, wouldn't it? Or am I getting totally confused here?
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Copyright exists from the moment the photograph is taken whether the image is registered or not. If the image is not registered or registered properly then all that can be sought is actual damages which is not worth going to court in most cases as it will cost more that Getty would get in most cases. If the image is registered properly and Getty has an exclusive contract done properly Getty can then pursue statutory damages, the up to 150,000 they like to scare people with. Getty does not in most cases have this done. They do have 3 months from the time an infringement is discovered to register the images properly if they intend to sue and still be able to claim statutory damages.
Getty has learned from their Advernet fiasco as with their two recent lawsuits on images that were not registered properly they are registered them now but only asking actual damages on those images and statutory damages on the ones that were registered at the time of the infringement.
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Lucia, so glad someone can understand these things so well. But in this hypothetical situation if the calendar had the image and if getty had a nice strong license with calendar maker (which they probably don't) then this would be an argument for getty, wouldn't it? Or am I getting totally confused here?
Yes. If that images is one whose copyright owner is the calendar maker, the calendar maker is the one who licensed to Getty, and the license is valid and Getty sued you, I think Getty would have a valid claim. The only way to resolve uncertainty about that is to find out if that image is on the calendar, if it is, find out if the license is with Getty.
This is why most people negotiate these things with some level of uncertainty. That's no different from most of life where you need to act based on information you have.
You might be able to gauge whether it's likely the photographer is the one with the license by searching for images by him at Getty. If there are tons, he's probably the one who uploaded and filled out the online license granting Getty permission to list. (This online license may not hold up in court for several reasons. But once again we can't be sure. But we do know the copyright owner needs to fill it out). Of course, there would be no guarantee based on incomplete knowledge. But less incomplete knowledge can be useful.
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Hhmmm...I looked at Egan's other images. Looking at the images, it occurred to me he's not American. I don't quite know what happens with Copyright claims if they were registered elsewhere for example Ireland. Here's Egan's website:
http://shaunegan.com/ He appears to be in Ireland.
This photographer does do commercial work.
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Hmm... on the other thread, you said you are in Canada. You need to take all American legal interpretations with a grain of salt. They only apply if the jurisdiction for the suit is the US. If it's Canada, Canadian law applies.
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Hhmmm...I looked at Egan's other images. Looking at the images, it occurred to me he's not American. I don't quite know what happens with Copyright claims if they were registered elsewhere for example Ireland. Here's Egan's website:
http://shaunegan.com/ He appears to be in Ireland.
This photographer does do commercial work.
Yes, I think it is likely that Egan would file the online license for this image with Getty, since he states on his website that he is distributing the images though Getty Images. Egan being from Ireland should not make any difference if he filed, what he thinks, a legal license with Getty in the U.S.?
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Yes, I think it is likely that Egan would file the online license for this image with Getty, since he states on his website that he is distributing the images though Getty Images. Egan being from Ireland should not make any difference if he filed, what he thinks, a legal license with Getty in the U.S.?
I would assume Egan thinks he's doing whatever he needs to do to sell in the US. But he may be following Getty's advice (which could be mistaken) or he may merely think the extra he can make in the US doesn't merit his registering copyrights himself in the US. (Getty seems to have led some photographers to believe this-- and then have lost cases in court owing to courts interpreting US copyright law differently than Getty.)
But there are two different issues:
(a) registration of the copyright. Registration would be filed with a government agency: e.g. US copyright office, Irish copyright office and so on.
(b) licensing the right to use the copyrighted content. Licensing would be a contract between the copyright holder (often the photographer) and the user or reseller (which could be Getty.)
The two are separate actions. The copyright holder could have granted a perfectly valid license to Getty in the US. But the registration might be flawed or nonexistent.
The total damages Getty or the photographer could recover in a suit is affected by whether the image was registered prior to any unauthorized copying. In US law, a copyright holder can get actual damages if the image was not registered prior to unauthorized copying but they can get statutory damages if the images was registered. The latter can be much higher and often drive the very scary numbers in the letters Getty sends out. We have pretty good evidence the photographer does not register his photo's in the use-- but he may register them in Ireland. I just don't know how such registrations are treated in US courts. (I don't know because I'm inexpert!)
Whether Getty has standing to sell licenses and pursue unlicensed copying for the copyright holder depends on whether the license(i.e. contract between the copyright holder and Getty) is valid. I'm sure the photographer has gone through some motions filling out forms and paperworks with the intention of creating a license with Getty. However, it's not clear that judge would interpret these licenses as valid in court. The reason is that-- at least in the past-- Getty seems to have set things up in ways that don't ensure the paper work is sufficiently clear, properly signed and so on. So, some of Getty's cases might be thrown out on the grounds that Getty doesn't have standing to sue because the license doesn't really hold water. If Getty's license is flawed, then Getty couldn't sue you on behalf of the photographer-- but the photographer could sue you ( if he wished to bother.)
Getty has in the past had difficulties both with respect to flawed licenses and with respect to flawed copyright registrations. To prevail in a suit, they need to fix both. They may have done so. We don't know.