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Author Topic: Highsmith v Getty, first amended complaint was filed  (Read 3418 times)

Engel Nyst

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Highsmith v Getty, first amended complaint was filed
« on: August 22, 2016, 03:55:09 PM »
As the title says: Carol Highsmith's team amended the complaint and submitted the new one. The text of the amended complaint is here:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2265&context=historical

This is now 60 thoughtful pages. It lists more causes of action (good!), in particular a Lanham Act claim and some state law claims, and, it embeds now things we've been talking about here. I'm impressed. Hell, who said we can't help a right cause as mere individuals sharing/researching/expressing our experience on the internet? We sure can.

For example, the amended complaint contains Nancy Wollf's public statements we discussed, and, it contains the facts we discussed in response to that, like the misleading appearance in the eyes of the innocent user that they "need" a license they don't actually need. The amended complaint similarly includes the claims that images are "Rights Managed" by Getty, and it also uses the little ironic fact that Getty's agreement for the images threatens users with 100% more charges if they don't credit... Getty.

Oh, and also! Matthew and Robert talked in the topic linked above about Nancy's history, and position, but wait. I didn't quite understand that Nancy Wollf is *LCS/Alamy's counsel* in this trial. Did you know that?

It's at the end of the amended complaint, where it says it was sent to counsel of the opposing party.

It's not the same thing with a lawyer working for the trade association of these companies, though of course that means bias too. Being their counsel in trial is more than that. I thought she should have PUBLICLY disclosed such position, when she published a blog.

I don't intend an analysis of the amendments now, just to let you know about its filing.

Engel Nyst

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #1 on: August 22, 2016, 04:31:45 PM »
With this opportunity, I note also that we know now the judge who is handling the case: Rakoff. If you look at his wikipedia page, you might notice that his specialty seems to be corporate fraud, securities fraud, mail fraud, and more than once he took unprecedented steps to find justice and reform corporate governance.(!)

That's very interesting.

(I don't find yet and don't remember any copyright decision by him, though. I'd like to know some of that too.)

stinger

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #2 on: August 22, 2016, 05:24:40 PM »
Keep up the good work, Engel.

Although I am not as active on this board as I was when I was being pursued by Getty, prior to my SOL lapsing, I do read and appreciate everything you post, and look to jump in where my somewhat dated knowledge of the topic can be helpful.

I try not to let the Copyright Trolls efforts raise my blood pressure too much anymore, but your efforts seem to be having the opposite effect.  I now come here for a dose of calming, "it just looks like they might get theirs" mantra that you provide.

Keep up the Great Work!

Engel Nyst

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #3 on: August 22, 2016, 09:08:48 PM »
I'm making a (partial) pass through the amended complaint. I will try to not repeat what was in the first complaint, but instead focus on the additions quickly:

Miscellaneous additions

Quote
9. Furthermore, the conduct of the Defendants constitutes the public, commercial issuance of false and/or misleading statements of fact that have commercially injured Ms. Highsmith’s sterling professional reputation, and have harmed both her and the Foundation.
10. The Defendants’ unlawful conduct has cast Ms. Highsmith and the Foundation in a false light, has misused Ms. Highsmith’s personal name, and tarnished her professional reputation in a commercial manner, all conduct occurring without her prior, written permission.

Interesting, false light. But the complaint doesn't seem to add false light to causes of actions she sues for.

Quote
18. Furthermore, and independently, the Defendants must also account for damages to Ms. Highsmith and the Foundation, to be assessed under the Lanham Act and New York State’s statutes prohibiting false advertising and unfair competition...

These are the additions to causes of action. Lets see some facts backing them:
Quote
a. Getty was demanding up to $575.00 per image for a single user “license” to the Highsmith Photos (see Exhibit B);

I don't have Exhibit B. If anyone has it please post it. If I were to guess what this is, it should be something like a page on Getty site with the price on the right, as they are.

Quote
c. Getty profited from bundling commercial copyright “licenses” to the Highsmith Photos to book publishers, magazines and others, which included false commercial “licenses” to use the Highsmith Photos, with erroneous attribution. See, e.g.:
i. Exhibit C (Introduction, Inside the White House: The History, Secrets and Style of the World’s Most Famous Home, Time Inc., Books, April 22, 2016 falsely attributed to: “Carol M. Highsmith/Buyenlarge/Getty”;
ii. Exhibit D (Streetcar Named Desire, 2016, falsely credited to: “© Carol M. Highsmith/Buyenlarge/Getty Images”);
iii. Exhibit E (DK Eyewitness Travel, Washington DC 2016, falsely
credited to: “Getty Images: Buyenlarge/Carol M. Highsmith”; and
iv. Exhibit F (School in the Great Depression, 2017, falsely credited to: Getty Images: ... Buyenlarge/Carol M. Highsmith,”;

The phrase at c) seems a bit unclear or with redundant words, but the meaning is unmistakable. If it can be proven that book publishers etc were fooled into buying "copyright licenses" to Highsmith photos from Getty, then it would be a dream.

And then, here we go:
Quote
d. The Defendants also unlawfully demanded and received revenue to “settle” false and/or fraudulent demand letters, related to use of the Highsmith Photos, containing spurious legal claims they could never have lawfully asserted.

I admit, I believe misleading people like this really matters, and I want the right thing to happen here. But it's strangely not easy to figure out how to go about it, in part because within copyright there isn't much for the public to use in order to curb abuses. (as I lamented recently)

Now Highsmith team placed the extortion letters under Lanham Act claims and NY state laws on false advertising/unfair competition. OK... if it works. Lets see why they think it should.

Oh, but first, we get Zuma: :)
Quote
20.
Even more shockingly, and to demonstrate why treble damages are warranted, as part of the wider fraud perpetrated on the public, and on thousands of people and organizations, Getty currently purports to “license” tens of thousands of other images, in which it apparently owns no legal rights, in exchange for money that it knows that it is clearly not entitled to collect.

21. For example, after the original Complaint was filed in this case, on August 1, 2016, third party Zuma Press, Inc., also independently sued Getty in this Court.

I think that's fair: Zuma cited Highsmith case when they filed,  Highsmith team doesn't lose the opportunity to hat tip Zuma. The thing is, these cases may prove to the judge just how we're not talking about random occurrences here, or about some commercial dispute without impact elsewhere. We're talking about a pattern of behavior, first and foremost, and if in some way the judge will start to see that, I believe it will help.

Zuma and Highsmith can stand up against Getty; but how many of the extorted public would have 30k to try to? That's the question I hope the judge will ask himself.

Quote
26. The law firm of Cuomo LLC has represented over 3,000 individuals and organizations, including Church groups, non-profit organizations, and veterans’ groups, who received baseless threat letters from the Defendants.
27. On many occasions, when Cuomo LLC wrote to the Defendants, requesting proof that the Defendants were authorized to act on behalf of the copyright owner(s), the Defendants never responded.

Yes! That's Oscar's firm. 3000 representations of individuals and small groups, wow that's fairly amazing. This is what I meant above: the pattern. I hope these details work to make the judge see the pattern.

I'm tempted to remind that this judge, Rakoff, seems particularly attentive to fraud/racketeering kind of behaviors.

Quote
28. Getty has also recently advanced a legal theory, through its public statements on this case, that claims that Getty was never actually “licensing” any of these images, at all, but rather simply it was making “public domain” images available (for thousands of dollars), as a convenience.
29. Nancy Wolff, counsel for Defendants Alamy and LCS, recently published a blog post advocating and endorsing Getty’s practice of “licensing” public domain materials for profit.

Lets see a quick answer on this:
Quote
31. Nowhere on Getty’s website did Getty ever reveal to those who were paying thousands of dollars in “license” fees that Getty owned no legal rights whatsoever to the images it was purportedly “licensing.”
32. Further, nowhere in the Defendants’ website advertisements or demand letters did the Defendants ever reveal that the Defendants possessed no legal rights whatsoever to threaten anyone for use – or, in the words used in Defendants’ threat letters, “infringement” – of these images.

Right. I said I try to keep it short, and it looks like no chance, I was reading it along again, as I was writing. I have to jump some part of the text, though. It's seriously all worth reading, it's understandable, makes sense, and it talks about things we know too well.

A quick note about this:
Quote
Defendant Getty Images is a $3.3 Billion Company Whose Primary Business is Buying and Selling Copyright Licenses for Photographs, Videos, Music, and Other Media.
Right. Its primary business is buying and selling copyright licenses, this is a statement of fact. When an entity whose primary business everyone knows is this, it can't come with a straight face and say "we call it license but we didn't mean copyright license, even though we didn't tell anyone it isn't".
Somehow I doubt any user could have possibly thought they're buying a driver's license.

This is really about how misleading/confusing the text is, to the user of their site. I can tell from the experiments I made, that it's entirely convincing that:
- I'm supposed to buy a license grounded in IP rights (it says that!), and
- without that license I am allegedly NOT allowed to use the work on my website.

This is important. If we can make it clearer why it is so, I believe we should.
« Last Edit: August 22, 2016, 09:15:08 PM by Engel Nyst »

Engel Nyst

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #4 on: August 22, 2016, 09:44:48 PM »
Although I am not as active on this board as I was when I was being pursued by Getty, prior to my SOL lapsing, I do read and appreciate everything you post, and look to jump in where my somewhat dated knowledge of the topic can be helpful.

I try not to let the Copyright Trolls efforts raise my blood pressure too much anymore, but your efforts seem to be having the opposite effect.  I now come here for a dose of calming, "it just looks like they might get theirs" mantra that you provide.

Keep up the Great Work!

Thank you so much. I'm not sure your kind words are deserved, but I'm sure we can end copyright trolling and bullying. Though it's sometimes hard in US system, or well, it takes long and it's expensive, to straighten the law.

(I'm extremely interested in the Carol Highsmith case, and I'd *hate* it for it to fail - or get settled -, because it has real chances to bring light in the area. It can bring awareness of and relief for large scale extortion, for important photographs for American people, and even world.
The problem with it is the instrument of gift, but maybe, if it comes to that and Carol sticks with it, we can see an even better case for public domain works. It wouldn't be equitable in any way I see, to accept that if Carol put her work in the public domain for real, then these corporations can just slap a fake copyright on it, lie to their users about it, and pursue them for "infringements" of a right they never had, while everyone - author and judge - would just watch. I cannot believe there's nothing we can do, even then or specially then. Public domain is called that way because it literally belongs to everyone, so it concerns everyone.)

Just musing over that. Anyway we're not there yet, and maybe we won't be: Team Highsmith has a good theory on the rights Carol kept and which she gave away. It makes sense, and I wait to see what arguments exactly will be played out.
« Last Edit: August 22, 2016, 10:01:17 PM by Engel Nyst »

stinger

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #5 on: August 23, 2016, 04:37:13 PM »
Be that as it may, the Highsmith and Zuma cases are really getting me excited about a possible change for the better.  I know it is early, and both cases might be settled, but I sure hope these guys stick to their guns.  How can we show them how many small people this actually affects?

Matthew Chan

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #6 on: August 23, 2016, 10:34:53 PM »
Wow, I am so far behind here.  A few comments, one of the reasons why ELI is hated so much by copyright extortionists is that the community is primarily made up of very inquisitive, non-lawyers who are not bound by lawyer protocol.  We can get into different threads of discussion regarding personalities and research and disclose information that many could not.

Certainly, we discuss legalities here but, for example, I can tell you behavior characteristics of many of the players because they reveal themselves in non-public platforms which get forwarded to us. We know how they deal with victims when they think no on is looking.

There have been some really egregious stuff over the years that was forwarded to us and we publish. So, whenever these folks send out a letter or email, they never know who will find ELI and submit that information to us. The egregious stuff has been reigned in over the years once people realized that when they threaten or extort someone, that material could end up here or somewhere else on the Internet. So, I have noticed much more careful wording and even steep discounting in the settlement figures.

Throughout the ELI Forums, we have done some expose' work on the lawyers themselves. There have been a number of lawyers who really have no business calling out someone else.  One California lawyer who presents a Hawaiian photographer comes to mind. I found all kinds of improper organization stuff on them.  Another mohawk-cut female lawyer also from California was just a legal clerk for a couple years but she became a lawyer and we know she is a newbie.

We have an ex-Getty Images lawyer that is now in the (legal) marijuana-growing business. Another one allegedly "retired" this year. An inhouse Getty lawyer contacted me to remove his name since he moved on. Another ex-Getty employee asked one of her contacts within Getty and contacted Oscar for me to expunge her name from this website.

There are just so many personal and anecdotal stories of all these characters we know about amongst the core team. And so Nancy Wolff is just another name from the past we have discussed. Knowing these things and getting the scoop is very important to just "doing the law".

And it appears there are some smart lawyers that are paying attention to some the ELI "gossip". Except that we don't just "gossip". We actually find nuggets or direct evidence to support what we say. That is why no one has ever said we engage in defamation.  We don't make stuff up.  And if we speculate and guess, we say we do. We don't present guesswork and speculation as facts.

We get all kinds of information from different people and different sources and we share it amongst one another. We have team members that are strong in different areas.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Engel Nyst

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #7 on: August 26, 2016, 04:20:19 PM »
A quick note on Rakoff. These are his copyright cases, at a cursory search in scholar (and only SD NY):

scholar search

Engel Nyst

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Re: Highsmith v Getty, first amended complaint was filed
« Reply #8 on: August 26, 2016, 04:51:53 PM »
Be that as it may, the Highsmith and Zuma cases are really getting me excited about a possible change for the better.  I know it is early, and both cases might be settled, but I sure hope these guys stick to their guns.  How can we show them how many small people this actually affects?

I keep thinking about this. The information is here, in the archives, but it's not the optimal shape for information to be conveyed in order to clarify the patterns (as I kept saying above). It's not the same thing.

Maybe a limited collection of posts and displayed differently - I'm not sure about that. Or maybe a carefully chosen collection of blogs and analyses on the basis of the facts happening over years, as documented here and elsewhere.
I don't know. If I imagine what the cases need... the kind of analysis based on data, requires a lot of digging and careful writing... maybe. (And as Matthew reminded, what we see publicly is only a part.)

Not sure, I'm still thinking about it.

 

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