Photo Databases Duplicates?

[spartan91]

I was researching some images I had, to determine whether they were managed by any of the following companies, Masterfile, Corbis, Superstock and Getty Images.

What I notice while looking, was some of the images managed by Getty were also found in the other companies databases. Can anyone speak to this?

How is this possible if the companies are claiming to represent they exclusively manage the images in question? Are they infringing on each other's images? Which company has the right to go after the infringer?

I'll attempt another image search and find an actual example, if it makes a difference in defending against settlement demands.

[Oscar Michelen]

I would like to see examples.  An entity that has been assigned the rights cannot normally enforce the rights unless the actual author has given them ALL the rights (meaning the exclusive rights) in the assignment

[spartan91]

Here is one sample of Corbis and GettyImages having the same image in their database.  I did check Masterfile and Superstock while writing this response. Perhaps if there is an advantage knowing this we should not disclose it.  

my descriptive search phrase: woman holding clock

Corbis image ID is 42-22936177
Corbis category; Creative  
Corbis description? Cultura

GettyImages ID is #89975042
GettyImages category: Creative
GettyImages description? Cultura

SuperStock ID is 1773R-18671
SuperStock description; woman holding big clock.

Checked Masterfile 2716 images with woman holding clock, they did not have the picture in question.

My initial search technique with Corbis and GettyImages was to open two browser screens at the respective sites and scroll down until I found an example of both sites having the same image.  I strongly believe there are more samples of duplicate images. I hope this helps in defending against settlement demands, or perhaps in a law suit.

[spartan91]

Attempted additional examples in locating duplicate images. My search consisted of "big clocks", and during my search efforts my thinking turned to my rational for looking for these examples. Even though there are duplicates images those images may not be the ones the agencies are going after. My suggestion is, when you receive Settlement letter from any of the image agencies , that you search the image in question on each agency's databases to determine if any of them are licensing the same image.

Whether it helps is still in question.

[Oscar Michelen]

It would certainly be helpful if you could show other resources for the material then it would be difficult for the companies to allege that you or your web developer must have gotten them from the company's website.

[spartan91]

Oscar are you referring to web search engines like Google, Bing, or other Websites other than Getty, Corbis, Masterfile, and Superstock? I thought it did not matter where you got the images, even if came from someone's personal or business website.

Let say we search Google for "big Clock" images and we download an image from that search. Since Google has the image listed, but is not linked or download from the reference agencies listed above is it ok to use it, since Google is also using the image in their database without permission or does Google fall under fair use in listing the images under a search function?

Can we use orphan images (images we don't know where they came from, and has no metadata to identify the original source of the image and listed thru Google, Bing or other search engines, other then the agencies above.  

I would assume you would sa,y if you don't know where the images came from, or if you don't have a license to use them, then create you own using your own camera or design software.

A request, if I can be so bold. Would it help folks, if you had a link to the Copyright Acts Getty is referring to, or did I miss those links somewhere on this site.

[SoylentGreen]

Hi Spartan91,

I can't speak for Oscar, but I can offer some help.

Google's use of online images in its "Image Search" falls under "fair use" technically.  That is because Google doesn't serve up the images to you directly; it simply links to the location of the actual images.  There are those who challenge this thinking, because Google must temporarily store or "cache" the images on its systems at least temporarily in order to provide you with such a search function that includes those little thumbnail pictures (but this is beyond the scope of this post). However, that doesn't give anyone the right to use an image just because Google lists it in a search.  In fact, it doesn't matter where an image came from... a web site, a Google search, or even scanned from a book... if you use it without license, you might be held liable, or at the very least, harassed for a long time (you'd think that you've stolen a Ferrari, for God's sake).  Furthermore, if a person or organization uses an image without license and then someone else gets it from them, that wouldn't offer the latter any indemnity.  There's also no provision in most places that state that an image must be protected by watermarks, copyright warnings or metadata in order for it to be protected by copyright.  Of course, for an entity to sue you and actually receive payment, it should have properly registered the images for copyright beforehand.  Unfortunately, it's often difficult to determine what's formally copyrighted and what isn't on the web.  Technically, everything that anyone creates is copyright "the author", but it's difficult to get damages in court with that, unless somebody used an unauthorized picture of your likeness in an advertisement or something... you could sue and get damages in that case I'm sure.

I'm not a big fan of the stock image/art companies. However the above would be considered standard in many circles these days. To play it completely safe, you should make images yourself (if you are so talented), pay someone to do it for you, or buy images from a company that you feel offers good value and conducts itself in the most ethical manner.

In the case of separate companies selling identical images, I would guess that it would come down to which one has actually applied for and received copyright on the particular image.  That would be the company that would "own" the image and could best protect its use legally.  The other companies would be dead in the water in such a case.  It's also my opinion that if none of the companies have formally copyrighted the image in question, then none of the companies would be a a strong legal position to protect it.  

S.

[Lettered]

Hi SoylentGreen,

Just to clarify, to my understanding:
It is true that an image must be formally registered before a lawsuit can be brought.  However, it is permissible to register the images after the infringment is found, and then sue for all infringement throughout the statute of limitation period (usually the latest 3 years of infringment I think).  So if they find their image on your site, the can easily register the image and sue you.  The only difference is that if the image wasnt registered before the infringement, then they cant recover attorney fees nor can they recover statutory damages.  They can only recover actual damages (probably just the normal licensing fee associated with the image in question).

This is why Masterfile's position is stronger than Getty's.  Masterfile registers beforehand far more than Getty does.

Hopefully Oscar will straighten me out if Im wrong.

[Oscar Michelen]

Couldn't have said it better myself Lettered, except to add that in order to sue in Federal court they MUST register the image before filing the lawsuit. We also argue that "actual damages" should be fair market/replacement value not their inflated pricing scheme.

[SoylentGreen]

Hi Oscar,

This is just to clarify.

The court is normally most concerned as to whether an image is registered as "copyrighted" or not at the time of "infraction".  Is this correct?  For example, if Getty notifies a person of an "infraction" for using an unregistered image today on Aug 27, 2010, it wouldn't help their case at all to register the image as copyrighted the next day on Aug 28, 2010.  In this example, they cannot prove that they owned the image on the date of the alleged "infraction".  Registering an image shouldn't give them any "retroactive" ownership rights in terms of litigation.

I guess that a person or organization can file a lawsuit for any reason at any time (even if they have a weak case, or will even surely lose)?  For example, Getty could sue over the unauthorized use of an unregistered image.  They'd probably lose the case, however.

Very sorry to mince words in the above.  However, it's such an important issue; thanks for your patience.

Masterfile has been registering bulk catalogs of images, so their position appear to be stronger than Getty's in my opinion.  They've copyrighted some books such as "The Best of Master xx", etc; I still think that copyrighting in bulk is weak when seeking thousands in damages.  Getty has been encouraging the original artists to register the images themselves.  Picture a situation wherein the original artist registered an image, but not Getty.  Getty would have no right to sue and collect damages on behalf of someone else's work.  

Yes, Copyright Trolls such as Masterfile and Getty seek insanely large settlements.  Masterfile is second only to Imageline/Riddick.  It'll knock your socks off.  I'd like to see the courts ensure that the settlements are within the normal purchase price.  The music industry also seeks huge settlements, using the argument that the "downloader/uploader" has distributed the files widely to other "pirates", thereby causing economic losses.  But, I cannot see the same damages occurring for stock image companies.

To me, it's just a big money-grab before new foreign companies produce content of similar quality as Materfile/ Getty, but at vastly lower prices.

S.

[Oscar Michelen]

Hey SG:

In order to get statutory damages and legal fees the image must have been registered at the time of the alleged infringement (or infraction, as you called it)  so registering it the day after Getty finds out or issues the letter would not allow Getty to get legal fees and statutory penalties.  Filing for registration of the work PRIOR to filing the lawsuit is mandatory in Federal court so Getty would file the registration sometime before filing the lawsuit and be only entitled to receive its "actual damages."

I have reported on a few cases that have looked at the compilation issue and have ruled in favor of our position.

[spartan91]

Thank you all for responding to my initial questions. The idea of not displaying, (copying and manipulating the images found),  Google or other search engine searchable images with no one listed to ask permission to use is like finding a $20.00 bill on the ground with no one in site to ask who it belongs too.   I guess, for images we can ask the image police (Getty, Corbis, ......) if we can believe their answer.  

I finely got a link to the actual Copyright Law of the United States; When reading the actual definitions listed in the document I came across  the following

"An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author."

If you take the anonymous work definition literally, can you argue that Google, Bing and other search engines listing images after a search,  is a search of a work on the copies of which no natural person is identified as author....therefore if the images displayed (a work on the copies) after a search does not have a natural person as an identifiable author isn't it considered an anonymous work and can be viewed as displayable by anyone (Copyright yes, but know one to go too to ask permission to use the work, until the identity of one or more of the authors is revealed. )

My point is how can we use the copyright definitions in the defense for the situations listed in this forum, even if the initial intent of the definition was not for the current situations?

[spartan91]

One other point, when buying songs or searching for songs and downloading them, the artist is usually listed. Why don't image author's do the same?

[Oscar Michelen]

Dear Spartan:

Good question, with no easy answer. It used to be the law many years ago that the copyright notice had to be located on or near the copyrighted work. You could not get damages otherwise.  That was undone by regulations many years ago and no requirement now exists for copyright notice to be affixed or near the work.  When a search engine produces images from an image search result, it usually has a disclaimer saying  the images may be subject to copyright.   What the "anonymous" definition means is that if a list of songs on a record album does not identify an author for a particular song, it is presumed that the song was anonymously written.  That does not mean that the artist's version of that song would be free from copyright however.  Here, I think the law is clearly in favor of the copyright holder in that no notice is required and the burden is on the user to make sure they have a copyright free image.

[meatshield]

When you talk about date of infringement is that the date you put the photo up on a website? It seems that may also be the date Getty or MF discovers the infraction, i'm confused on that.  If it was the date you posted it or used the photo how would the statute play into that?