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ELI Forums => Getty Images Letter Forum => Topic started by: ohyeahtakethat on August 07, 2018, 11:37:19 AM

Title: Pixsy Letter (photographer has history of suing)
Post by: ohyeahtakethat on August 07, 2018, 11:37:19 AM
A few weeks ago my fiance and I received a pixsy letter. They're demanding $500+ on the behalf of a photographer. The image is a protein powder scoop, unremarkable to say the least. We found the image using Google's free use tool, but didn't know there were stipulations involved, so we gave no attribution.

The photographer lives in Europe but HAS sued two companies in the US over copyright infringement this year and last year. We are in the US.

The thing is, our blog site hardly makes any money, we are not an LLC or anything like that. Similar protein powder images are all over the internet and are available for free with no license or attribution.

I have offered to settle for $10.00 as a "fair market value" for the picture but Pixsy isn't budging at all on their ridiculous $500+ license fee (FOR A PICTURE OF A SCOOP OF PROTEIN POWDER). They also can't provide me any history of that photo being purchased for that price.

What do you guys think? Should I just start ignoring these letters at this point and risk actually being sued by someone with a history of suing for copyright?
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 07, 2018, 01:11:05 PM
In the off chance he actually sues and in the off chance he actually wins a judgment....  who cares?  Just don't pay it.  It's very hard to get money from someone who doesn't want to pay anything, even with a judgment.

I wouldn't pay a talentless POS Pixsy "photographer" a single fucking cent.  The people that use Pisxy are unsuccessful pieces of human trash that have no other way to sell their crappy photos of protein powder, and they know it.  Read up in photography channels how they talk about how to extort the maximum money from people and how they can't sell their photos for more than pennies otherwise.  There's one really notorious POS, Tom Schwabel, who has a whole handbook and manifesto online with full instructions on how to carry out this scam.

What I do is expose the POS for who he is, make sure his "customers" (if he has any) are made known that he's a POS.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 08, 2018, 04:55:56 AM
In the off chance he actually sues and in the off chance he actually wins a judgment....  who cares?  Just don't pay it.  It's very hard to get money from someone who doesn't want to pay anything, even with a judgment.

Stellar legal advice there, fella: just ignore a judgement if sued. Way to run the risk of a contempt of court charge - doubly so since copyright claims are tried at Federal level.

I wouldn't pay a talentless POS Pixsy "photographer" a single fucking cent.  The people that use Pisxy are unsuccessful pieces of human trash that have no other way to sell their crappy photos of protein powder, and they know it.

You do know Pixsy is a reverse-search service used by photographers of all kinds, right? You can't "sell" pictures using Pixsy... it's just a tool that you can use to track down unlicensed uses of your work.

Read up in photography channels how they talk about how to extort the maximum money from people and how they can't sell their photos for more than pennies otherwise.

This is the second time in a month that you've made this bold, unsubstantiated claim: I asked you before to give me even one example of a photo website/forum where specific (or even implied) discussions of using copyright claims to 'extort' people are prevalent, and you've failed to do so... so, again, I'm calling BS on this hyperbole.

There's one really notorious POS, Tom Schwabel, who has a whole handbook and manifesto online with full instructions on how to carry out this scam.

You first posted about Schwabel almost four years ago. That's a long time to hold such a bitter, vitriolic grudge against someone who contacted you directly without lawyering up, asked you to stop using their work and pay a very reasonable, low figure settlement for your past use of their work.

That level of anger is a hot stone: the longer and tighter you hold on to it, the more you burn only yourself.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on August 08, 2018, 02:12:13 PM
Can you point me to a copyright infringement case where there was a judgment on a copyright infringement case where there was a "contempt of court charge"? It is my understanding that, at best, various collection efforts are made or perhaps seeking meaningful assets (if any) to collect unpaid judgments.

I don't see how there is any "contempt of court" issue by virtue of a simple unpaid federal judgment. As far as I have ever seen or heard in the context of small-time cases we discuss, unpaid judgments generally just sit unless the plaintiff feels VERY MOTIVATED and wants to incur the expense and aggravation to take collection types of actions. But even then, that is not "contempt of court".

My understand of "contempt of court" appears to be vastly different from what you are inferring. That is the first I have heard anyone mention of this in the context of the small-time cases we discuss here.

In the 10 years I have discussed with Oscar Michelen possible negative consequences of unpaid copyright infringement judgments, he has never breathed a word about "contempt of court".  Other phrases and possible actions were discussed but zippo about "contempt of court".

As a practical matter, I am very skeptical about "contempt of court" as a likely consequence. However, if you know of some actual cases, I am happy to follow-up on my end.

Stellar legal advice there, fella: just ignore a judgement if sued. Way to run the risk of a contempt of court charge - doubly so since copyright claims are tried at Federal level.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on August 08, 2018, 02:36:19 PM
DvG,

As a reminder, ELI and the ELI Forums were born out of anger. It continues to exist as an undertone. The anger of what many of us believe as unreasonable, disproportionate demands over low-value images and how there is this belief that everyone has to pay money for some of these de minimus infringements.

As has been said many times, most major media companies don't even engage in those types of tactics and trying to extract money from the little guy but they are certainly very firm in their take-down demands.

And there is a certain truth that many small-time photographers are using these demand letters as a way to monetize their inherently low-value work. This is not meant to be insulting. It is a simple fact that since the advent of digital photography there is a glut of imagery. Even with higher-value paparazzi photos, I have read many articles in the age of cell phones, paparazzi photos don't have the value as they once did 30 years ago. There are endless examples of why MOST imagery have declining value nowadays. Of course, I speak in general terms.  But so much of what we see, I consider "low-value" images.

And if I "asked" you nicely to pay me $1,000 because you have posted opposing opinions from what many of us believe, would you pay?  Or if you broke some ELI policy or rule and I "asked" for money, would you pay?  Of course not. You would either laugh, get pissed, or do both but not pay.  "Asking" for money "nicely" has little to do with it. "Asking" for money without a lawyer has little to do with it. In many cases, many people believe that a takedown demand is more appropriate as a first-response.

While we don't wear our anger on our sleeves, there is a reason why Oscar, I, and many long-timers do what we do on ELI. There is a reason why there are many loyal ELI readers and followers. There is a great deal of "anger" of how the demand letter racket works and we do a small part to counter that through informal education.

There will probably never be consensus on the issue.  DvG, you are the minority opinion here and I think you know that. You are paddling upstream here. Certainly, you are free to post as you have been because your posts are generally thought-provoking and informed. But you slant pro-artist just as our posts are pro-layman.

Bottom line, anger will continue to exist as long as people are demanding money from others in situations where people feel they should not have to. This is true here as well as anywhere else where money is involved.

You first posted about Schwabel almost four years ago. That's a long time to hold such a bitter, vitriolic grudge against someone who contacted you directly without lawyering up, asked you to stop using their work and pay a very reasonable, low figure settlement for your past use of their work.

That level of anger is a hot stone: the longer and tighter you hold on to it, the more you burn only yourself.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 08, 2018, 06:01:14 PM
Can you point me to a copyright infringement case where there was a judgment on a copyright infringement case where there was a "contempt of court charge"? It is my understanding that, at best, various collection efforts are made or perhaps seeking meaningful assets (if any) to collect unpaid judgments.

I don't know of any copyright cases where a civil contempt of court action has been lodged as a response to non-payment of a court order; with that said, there are two caveats to my statement: firstly, I am not a lawyer and, secondly, petitioning for a charge of civil contempt would certainly be an option in these types of cases... an extreme one to be sure, but one that exists nonetheless (see https://litigation.findlaw.com/going-to-court/civil-contempt-of-court.html for some information)
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Ethan Seven on August 08, 2018, 08:09:02 PM
Unfairly Targeted may have enough evidence to survive a motion to dismiss if he filed a claim based on infliction of emotional distress against Tom Schwabel.   Schwabel may have damaged him for life.  He is clearly now not able to think rationally or coherently about copyright.

Having anger is one thing.  Having lingering anger that drives one to make irrational and unfounded assertions, especially is the context of giving someone legal advice is quite another.   

In my reading of this board’s older posts, particularly some of the older posts by Mr. Michelin, the mindset was the demands being made are outrageous, but if you used the image, make an appropriate offer to compensate for the use and, maybe, part of the costs incurred.   That is a very rational and just mindset that balances regards for the copyright holder with awareness that some infringers are less sophisticated, or less able to pay or less culpable than others, and therefore, should not be subject to outrageous demands or pay inflated amounts.  There was, and for the most part remains a nice balance of  respect for people’s intellectual property rights and desire not to see people get exploited in a rigged game. 

That is a massive contrast from the mindset reflected in posts by Unfairly Targeted.  His posts insult any copyright holder who wants to enforce their rights.  He assumes every photo has no value (despite the obvious fact that it does because someone used it).   He always advocates ignoring requests for any compensation.   He almost always advocates harassing or making anyone’s life miserable if they try to protect their copyright.    I won’t even mention the constant gross misstatements of law.

If Tom Schwabel reads these boards and is the bastard that UT says he is, then Shwabel is probably laughing his ass off at the rants by Unfairly Targeted, knowing that he knocked him off his nut for several years.

I think DvG’s advice about letting the anger go is sage in this instance. 

As far as a contempt order arising from a judgment, DvG is also correct.   That is just one of many bad things that can result from a judgment.   Once there is a judgment, there can be a debtors exam.  Guess what you get if you don’t show up for one of those.   The correct answer starts with “C” and it also comes with a special coupon for free ride in the back of a police car, called a warrant. 

I am sure user “A Lawyer” can point to more examples that further illustrate the ignorance and irresponsibleness that comes with the statement “who cares?.  It’s very hard to get money from someone who doesn’t want to pay anything, even with a judgment.”   I pity anyone who relies on such a statement.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 09, 2018, 11:45:03 AM
What i find interesting is that Unfairly Targeteds first post regarding Schwabel, was 4 yrs ago ( as mentioned by DvG, i did not verify this on my own)...the SOL is 3 yrs...so in essence it's over and done with...

I for one have always respected the copyrights of others, and have no issue with photographers enforcing those rights, my issue is the amounts demanded, and the way in which attempt to enforce their rights.. andf this does not apply to all of the letters we have seen. We have seen some letters that request a reasonable amount and even Getty themselves have drastically lowered the settlement amounts.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on August 09, 2018, 02:18:11 PM
Thanks for elaborating.  Your link fits perfectly my layman understanding of "contempt of court" which is generally used for being disrespectful to the judge, staff, etc. plus some additional nuances. It gives examples of failure to pay child support which is something against deadbeat parents or not turning over records in a proceeding.

However, my general layman's opinion, is that simply not paying a judgment falls outside of that. I think initiating action to take over assets such as levying someone's bank account is actually more direct and relevant than trying to hold someone in contempt of court for not paying.

You may be correct that it could hypothetically happen but so is someone getting into a fender-bender every time someone drives their car. I see the civil contempt of court as a very, very low likelihood.

I don't know of any copyright cases where a civil contempt of court action has been lodged as a response to non-payment of a court order; with that said, there are two caveats to my statement: firstly, I am not a lawyer and, secondly, petitioning for a charge of civil contempt would certainly be an option in these types of cases... an extreme one to be sure, but one that exists nonetheless (see https://litigation.findlaw.com/going-to-court/civil-contempt-of-court.html for some information)
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on August 09, 2018, 02:49:40 PM
As always, you provide a well-written thoughtful response. My comments inline about UT (Unfairly Targeted).

Having anger is one thing.  Having lingering anger that drives one to make irrational and unfounded assertions, especially is the context of giving someone legal advice is quite another.

I don't think there is a widespread danger that people believe UT is a lawyer, paralegal, or other recognized authority on the subject. He is an angry victim stating his personal opinion. I hardly consider it "legal advice" in the traditional sense. However disagreeable it might be, he is entitled to his opinion.


That is a massive contrast from the mindset reflected in posts by Unfairly Targeted.  His posts insult any copyright holder who wants to enforce their rights.  He assumes every photo has no value (despite the obvious fact that it does because someone used it).   He always advocates ignoring requests for any compensation.   He almost always advocates harassing or making anyone’s life miserable if they try to protect their copyright.    I won’t even mention the constant gross misstatements of law.

UT espouses a more extreme point of view. However, I do sympathize with some broader points he tries to bluntly make. That is NOT an endorsement of a literal interpretation of what he writes but I think I "get" him. I take a lot of UT's responses as hyperbolic rhetoric than a literal interpretation. I also feel some of his "factual" statements are likely incorrect (such as those related to how many Schwabel Google entries there truly are. I interpret his rhetoric to means there are a LOT of them in Google.

As far as a contempt order arising from a judgment, DvG is also correct.   That is just one of many bad things that can result from a judgment.   Once there is a judgment, there can be a debtors exam.  Guess what you get if you don’t show up for one of those.   The correct answer starts with “C” and it also comes with a special coupon for free ride in the back of a police car, called a warrant. 

I give benefit of the doubt that this possibility exists. And maybe one day, we will see a copyright infringement case in which that happens where someone elects to plead/file "contempt of court" because of an unpaid judgment. However, I still think it is likely analogous to finding albinos in wildlife. They exist but very rarely.  We have just never heard of seen such a thing in the 10 years we been dealing with small-time cases (as compared to major media copyright infringement cases). 
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Xiaozz on August 11, 2018, 12:35:11 AM
SAME CASE HERE! I’m in the US. I got email from Pixsy, they asked me 400 for a pic I put on my website longtime ago, a very not clear pic I searched from google( absolutely I searched free image....). My website is shut down long time ago btw. In the email, He didn’t even introduce his full name all he wants is money or else he will let his attorney to keep up with me. My first reaction was “this is a scam”. Then I replied him that he can’t charge me for a pic that I never even used plus my website is shutdown I never used the pics. He literally just copied the info on their website about copyright infringement. Then I realize this is a blackmail. :) I asked him for the copyright info(Meanwhile I did reaserch of the copyright, no data shows in the US.  I get really pissed that there are some people make money by fooling innocents, it’s not ethical at all. Never mention he replied my email at 4:30am. What type of office open at 4:30? Then I told him I’m not gonna make any payment for a pic I never used and I won’t use at, also followed email to a friend who’s a lawyer, the guy prom Pixsy said to my friend that “Could you please explain to your client that copyright is a strict liability offense. That use of any imagery found online almost always and with very few exceptions must be licensed prior to use.
And that, since our client, the copyright owner of the image, did not receive a request for permission to use the image in question, your client has infringed the owner’s copyright and a license fee is therefore due.”

Here’s something more interesting. I contact the photographer asked him about if the person from Pixsy is real, he replied me said that “Pixsy is the law firm represent me,bla bla bla,  they charge less than I thought, normally I charge 1000-2000 a photo.....”
Lollllllll

Anyway, I wonder how you guys handled them, I honestly don’t think they can do anything expect bluffing and blackmailing.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 13, 2018, 01:41:33 PM
So, why do I say photos are worth very little?  Check this out:
http://www.microstockposts.com/istock-contributors-furious-over-new-royalty-of-2-cents/

So if a piece of shit like Schwabel sells photos on Getty (he does), then he's accepted that he'll be paid TWO CENTS per license.  If you get a letter from this royal piece of trash or any other Pixsy trash and you feel you must reply, offer two cents, but tell him that your hourly rate to verify his claim is at least minimum wage.  Since you will spend more than a minute or two reading his crappy email, then he now owes you for your time, which exceeded two cents.

Write ripoffreports and bad reviews of these fucktards and move on with your life.  They don't deserve the time of day.

As to the anger, maybe if your reputation is dragged through the toilet for a few years, your criminal record is dragged up and sent to all of your clients, sponsors, friends, employers, and customers, you're audited constantly because someone keeps tipping the IRS off that you're taking your extortion money under the table, then maybe you will think twice about writing an email over a stupid fucking image on the internet.  One that's no different than a million other images on the internet that are free.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 14, 2018, 09:25:39 AM
So, why do I say photos are worth very little?  Check this out:
http://www.microstockposts.com/istock-contributors-furious-over-new-royalty-of-2-cents/

You're quoting someone saying they're quitting iStock because of low royalty rates. Not exactly helping your case.

So if a piece of shit like Schwabel sells photos on Getty (he does), then he's accepted that he'll be paid TWO CENTS per license.

Nope. The percentage of revenue paid to iStock contributors is between 10 - 20%. Now I'm not going to argue that $0.02 is anything other than an abysmally low cut for anyone to get for their work, especially since that means it would have been an image licensed for $0.20 or $0.40. Those sort of revenue splits happen when iStock gets a monthly payment from one of their subscription clients; the ones who pay several hundred or thousand dollars per month to iStock and get to use a fixed number of images during that period. In other situations, an iStock contributor might make significantly more money depending on the license e.g. if it's a one-time purchase for a wide swathe of rights.

Conversely, there are other photographers who self-manage, employ agents, or work with boutique agencies who charge very high fees for licenses. This is particularly true in the cutthroat world of celebrity and entertainment images, where a good exclusive shot (or series) can command five, six or even seven-figure fees.

If you get a letter from this royal piece of trash or any other Pixsy trash and you feel you must reply, offer two cents, but tell him that your hourly rate to verify his claim is at least minimum wage.  Since you will spend more than a minute or two reading his crappy email, then he now owes you for your time, which exceeded two cents.

I said in a previous post: Pixsy is just a tool that can be used to verify if an image is being used under license or not. I personally use Pixsy on occasion to see what's out there but have never used their claims handling process.

My own photographs are routinely licensed for three and four-figure sums, and I can (and have) proven this during legal proceedings - so I guarantee you that myself, and many of my peers, absolutely have our ducks in a row when we initiate infringement claims, and if someone tried to counter with an $0.02 offer, I'd likely move to file at court fairly rapidly.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 14, 2018, 11:53:53 AM
not to mention the vast difference in pricing between "royalty free" and "rights managed" images..
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 14, 2018, 02:29:53 PM
Uh, Schwabel still has images with Getty.  So that sack of shit has agreed to two cents per image.

As to images selling for hundreds, thousands, millions of dollars...  please show me some examples.  I'm curious how these are so different and better than what's free.

As to someone using a Pixsy troll's image and saying it must have value because someone used it...  maybe someone thought the image was the correct one for the price... free... not knowing that it had been seeded by Schwabel to trap them into an extortion scheme.  I certainly wouldn't pay for that shit.  It's like beer.  I'll drink a Bud Light if it's free.  But if I have to pay I'll find something better than piss water.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Ethan Seven on August 15, 2018, 03:03:10 AM
Your argument is flawed, again.  Getty owns istock, but Istock is not Getty.    istock is a discount line of royalty free images.  Getty focuses on rights managed images that cost much more.  So, Schwabel is probably getting paid much more than you think.

Go on to Getty’s site and you will see images that get licensed  for hundreds and thousands of dollars.  There are higher end agencies that sell images for even more money. 
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 15, 2018, 06:56:47 AM
Your argument is flawed, again. Getty owns iStock, but Istock is not Getty. iStock is a discount line of royalty free images.  Getty focuses on rights managed images that cost much more.  So, Schwabel is probably getting paid much more than you think.

I just popped on to iStock moments ago; a search for "Tom Schwabel" or "Thomas Schwabel" returned no images. Conversely, he has 168 images listed on Getty.

So: Schwabel will most likely be receiving a royalty rate of 35% which means that, outside of volume licensing clients (who tend to license news/sports shots) he'll be earning semi-decent royalties from his works there.

I do have a question for UnfairlyTargeted, though: did Schwabel file suit against you or not? If he filed, and won,
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 15, 2018, 09:18:17 PM
No, Schwabel hasn't sued me because his case is full of shit.  I would have relished the idea of him suing me just to see how much of his time and money he'd waste.  It's very hard to squeeze money out of someone even with a judgment.  Assets can be hidden and sheltered offshore.  Credit destruction isn't an issue for some people if they never use it.  It's just a big waste of time on his end.  What's better is how I would have brought in a tough litigator friend of mine to grill him on the stand over his manifesto and manual on extortion.  It would have messed up all of his luxurious excessive travel plans for months with court dates and depositions.  And the evidence I have on his seeding and collusion with law firms as part of his racket would have been very damaging and embarrassing.  Then when he lost his case, I would press criminal charges for extortion.  Given his background including prison time for identity theft, it would end very badly for him. You know, as a felon, it's very hard to escape your past and get a clean start.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Ethan Seven on August 17, 2018, 02:08:04 AM
I have to hand it to you Unfairly Targeted, your steadfast commitment to delusion and anger is something special. 
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 20, 2018, 04:00:03 PM
Still waiting for someone to show me a pic that's worth hundreds or thousands and is somehow better than something available free or on istock for some cents
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 20, 2018, 04:45:33 PM
UT must eat from the dollar menu daily, cause why would anyone pay 8 bucks for a burger?!...
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 20, 2018, 06:51:47 PM
Still waiting for someone to show me a pic that's worth hundreds or thousands and is somehow better than something available free or on istock for some cents

https://petapixel.com/2017/12/21/20-expensive-photos-sold-auction-2017
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: UnfairlyTargeted on August 20, 2018, 07:34:21 PM
I meant pic on the internet that's been sold for that much.  Not some antique photo.

btw, dollar menu is tasty.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 21, 2018, 11:14:14 AM
I meant pic on the internet that's been sold for that much.  Not some antique photo

You're asking something to be proven that would likely be private information between the seller and buyer - you know, client confidentiality?

Getty, iStock and most all other agencies which have public-facing sales portals are almost always about volume licensing; they have clients who have a large demand for new images every day or week, and they pay a prearranged fee to these agencies in return for a fixed number of images per day/week/month.

The high-end licenses usually happen between buyers and photographers directly, or via the photographer's agents.  Here's a good example of how having an agent - even temporarily - can yield a four-figure fee for just three images.

https://wonderfulmachine.com/member-blog/pricing-negotiating-stock-licensing

On a personal note only, I routinely license my works for high-three to mid-four-figure sums. My largest single invoice was for two photographs that were used by a secondary ticketing company, and that was just under €8,950 at the time (about $10,300). Granted, this was a long-term nonexclusive license for use across all eight of their European websites, so that played a part in the fee being so high. I don't have an agent (yet) so I handle all licensing queries myself, but I can see a point not far off in the future where it may be beneficial to have an agent representing me.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 21, 2018, 11:19:31 AM
https://www.gettyimages.com/detail/photo/japenese-garden-portland-royalty-free-image/115867856

https://www.istockphoto.com/photo/japanese-maple-tree-fall-color-portland-japanese-garden-gm934439418-255837031

same tree, different photographer, different angle, different settings, different pricing, differrent quality..

Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 21, 2018, 12:11:53 PM
same tree, different photographer, different angle, different settings, different pricing, different quality...

You're not kidding. I got a bit of a headache looking at the iStock shot, being that the framing/composition felt very cramped an overly busy. It also (on my screen) looked like the iStock preview image was very low quality compared to the Getty RM image preview.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 21, 2018, 01:56:56 PM
hence, "you get what you pay for" persoinally i don't have an issue with a photographer charging x amount, it's their work, their prices...heck I'm a business owner and have my own prices, if one doesn't want to pay what i charge there are other options out there.. What gets me is when a stock agency like getty tries to collect 1k on an image that is RF on their site for 5 bucks..or even worse ( and wev're seen this) when a getty RF image suddenly gets shifted over to RM when  a letter gets sent..I've always had an issue in which these companies elect handle the situatioin..
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: kingkendall on August 22, 2018, 11:37:30 AM
I think this is the biggest reason why a lawsuit for single image has not gone all the way through a jury tirial and verdict or extremely rare.  Asking for thousands of dollars for a photo with a market value of $10 would be thrown out as a colossal waste of tome.  But, it's not about that.  It's about the copyright troll scary ignorant people to cough up the cash right away and that's where they make 99% of their money.   
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Robert Krausankas (BuddhaPi) on August 22, 2018, 01:27:00 PM
I think this is the biggest reason why a lawsuit for single image has not gone all the way through a jury tirial and verdict or extremely rare.  Asking for thousands of dollars for a photo with a market value of $10 would be thrown out as a colossal waste of tome.  But, it's not about that.  It's about the copyright troll scary ignorant people to cough up the cash right away and that's where they make 99% of their money.

exactly correct....hell even with schwabels tree image, it would not be a winning proposition for him to file suit over hius image he sells for 499.00 on Getty images, unless he can surely prove damages...it would cost him that just to file the papers..without a lawyer..

Getty used to send letters threatening lawsuits, if they got no reply, they would have off the case to their "lawyer" Timothy McCormack, would then send letters threatening a lawsuit and upping the demand amount..layer #2 of the fear factor...how many times did Timothy McCormack appear on court on behalf of getty images?? ZERO....hell he may have only been in court one time in his career when he made the mistake of going up against Matthew Chan in the Georgia Supreme Court, where he made himself and his client look like fools..as a side note our old buddy Timmy now grows pot for a living.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on August 23, 2018, 05:26:14 AM
I think this is the biggest reason why a lawsuit for single image has not gone all the way through a jury tirial and verdict or extremely rare.  Asking for thousands of dollars for a photo with a market value of $10 would be thrown out as a colossal waste of tome.

I think the reason that you haven't seen single-image lawsuits go all the way to a jury trial is that defendants will want to minimise their risk of being slapped with a hefty judgement against them. In the event that a plaintiff can prove wilful infringement, damages can be as high as $150,000, and that's before any provable DMCA violations are factored for.

If a case against an infringer is fairly airtight and there's a good chance to argue/prove that DMCA was violated (e.g. a watermark/copyright notice being cropped out of a published use - which also proves wilfulness) then you're looking at combined damages of at least $3,250... plus the prospect of paying part or all of the plaintiff's legal fees, as well as your own legal fees to defend the suit. That could quickly become a five-figure sum that you're on the hook for. Conversely, settling the matter at the pretrial stage is less costly to all parties.

So, that image that may have cost you just $10 to license, but you took it anyway? A court may not look favourably on that action and, if the plaintiff has their ducks in a row regarding timely registration, they might well render a verdict that is as much punitive in nature as compensatory, because judgements tend to also factor for deterring others from engaging in similar acts.

Put it this way: if the sole penalty for stealing something valued at $10 was that you would be made to pay the $10, then there are a great many people who would happily roll the dice in the hopes of never being caught.

Also, here's a thing to consider: the damages ranges for infringements per 17 USC 504 were written into law back in 1946 and statutory damages back then were of ranged between $250 - $10,000. If those numbers had kept pace with inflation, the 2018 damages range would be $3,230 to $129,330. Wilful infringements had a damages range of $10,000 to $50,000 ($129.330 to $646,170, adjusted) and even "innocent" infringement was pegged at $100 ($1,293, adjusted)

The current figures for damages in 17 USC 504 were laid down in 1999 so it's fair to say that we may see them being revised in the near future so as to factor for inflation and other variables. Let's see how that would pan out using numbers adjusted to 2018.

"Innocent" infringement minimum damages of $200 would become $300
Statutory damages range of $750 - 30,000 would become $1,135 to $45,300
Willful damages cap of $150,000 would become $226,900

Prior to the 1999 adjustments, the damages scale was last modified in 1988... so I'd say it's likely going to be revised again any day now, and wouldn't be surprised if revisions are announced and put into effect before 2020. I can easily see the statutory damages range becoming $1,500 to $50,000 and willful infringement becoming capped at $250,000.

I'd also bet that the 'innocent' infringement minimum will move closer to $500 than the inflation-adjusted $300. Before Napster burst onto the scene in June of 1999, discussions about copyright and infringement were really not part of the public consciousness, so the ability to argue innocence in an alleged infringing act was (in my opinion) much higher than it is today, and laws are always written with deterrence in mind.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Ethan Seven on August 23, 2018, 01:13:01 PM
There are lots of reasons that these court cases never go through a complete trial.   

First, the outcomes are predictable.  This predictability comes from the fact that 99% of photo infringement cases are straight forward.   Typically, the only real question is the award amount.    This predicabiliy greatly increases the chance for settlement as there is very little reason for one party to think the outcome will be wildly different than the other party.   As long as one party is not drastically over reaching, they settle. 

Second and equally important is the fact that almost all copyright cases involving photos can be resolved with a good motion for summary judgment.   It is very rare that there are issues of fact that need to be determined at trial by a judge or jury in a photo copyright case.

Third, many judges require that the parties go to court sponsored mediation before trial.  The mediators, who are either retired judges or experienced litigators, are very good at getting parties to settle the claims.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on September 08, 2018, 04:49:34 PM
As a side note to set the record straight, It wasn't "Matthew Chan" who won it by himself.  It was really "Matthew Chan's" team who did it. The team consisted of bloggers, reporters, friends, readers, donors, lawyers, and legal allies who came together for the cause of protecting the First Amendment and Section 230 in Georgia.

Getty used to send letters threatening lawsuits, if they got no reply, they would have off the case to their "lawyer" Timothy McCormack, would then send letters threatening a lawsuit and upping the demand amount..layer #2 of the fear factor...how many times did Timothy McCormack appear on court on behalf of getty images?? ZERO....hell he may have only been in court one time in his career when he made the mistake of going up against Matthew Chan in the Georgia Supreme Court, where he made himself and his client look like fools..as a side note our old buddy Timmy now grows pot for a living.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on September 08, 2018, 05:32:15 PM
My answer is pretty basic.  It is just easier and more practical for both parties to settle than for either side have a protracted battle. It is the rare bird who will battle it out of principle.

Back in 2008 with my squabble with Getty Images, I seriously considered settling because they offered $500 to settle. But I was pretty pissed about the situation and the circumstances surrounding it because I felt totally blindsided by ignorant actions taken by an overseas graphic artist who got me in hot water.

I kept doing research and the more I dug into Google, the more pissed I got and what I fell into which is why I started the ELI website, which in turn, attracted more information and insights.

I thought to myself, fine, I might lose but I was not just going to hand over the money. I would muddle my way through the federal court system and fight tooth and nail the best I could. I figured I would just stumble my way through the federal court system and probably lose but I would learn a shitload from the entire experience. I viewed it as "tuition" for a front row seat at a "live seminar experience".  Without having to pay legal fees, I figured I had a lot more room to maneuver and wasn't as constrained.

I was emboldened when I found how much opposing lawyers HATED dealing with pro se defendants. As a backup measure, I won't go into specifics but let's say I was going to exercise my lawful First Amendment rights in a very big way because ELI has already been launched and I had a growing platform.

I figured if I was going to lose, I wouldn't go down without inflicting some scorched earth along the way. This is one of these situations where I tell people NOT to follow what I did. I was (and probably still am to a degree) a bit irrational.  (Do as I say, don't do as I did which was fraught with unknown risk.)  I was never quite sure why Getty stopped pursuing me after only 3 or 4 go-arounds. My case was surprisingly not escalated to anyone.

The point being is that one never really knows for sure why certain cases go forward to lawsuit and others don't go anywhere. But I have a good idea who are more likely targets than others and who are more likely to receive lawsuits than others. But my opinions are grounded in life experience/insight and personal/professional observations than any empirical evidence.

I tend to believe in executing a STRONG strategy to encourage a highly-motivated settlement. The downside to that is that MOST people don't have the knowledge or have the internal fortitude to do so.


There are lots of reasons that these court cases never go through a complete trial.   

First, the outcomes are predictable.  This predictability comes from the fact that 99% of photo infringement cases are straight forward.   Typically, the only real question is the award amount.    This predicabiliy greatly increases the chance for settlement as there is very little reason for one party to think the outcome will be wildly different than the other party.   As long as one party is not drastically over reaching, they settle. 

Second and equally important is the fact that almost all copyright cases involving photos can be resolved with a good motion for summary judgment.   It is very rare that there are issues of fact that need to be determined at trial by a judge or jury in a photo copyright case.

Third, many judges require that the parties go to court sponsored mediation before trial.  The mediators, who are either retired judges or experienced litigators, are very good at getting parties to settle the claims.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on September 08, 2018, 05:50:58 PM
I can't speak broadly but Oscar and I have expressed our opinions on the matter of single-image lawsuits. It doesn't happen because it is generally not worthwhile. From the Getty Images perspective, they had probably hundreds of cases at any given time. They couldn't easily file lawsuits on EVERYONE.

We believe Masterfile tried the same thing 5-6 years ago with an onslaught of lawsuits but they abruptly stopped. They didn't stop to suddenly become good Samaritans. I think they stopped because the risk/reward/return ratios were ultimately not good.

I think a lot of the cases Masterfile pursued were not collectible or that the legal fees incurred were too great for the time, money, and energy expended.

There were also a couple of setback cases where the court didn't overly favor plaintiffs over "clear cut" infringements.

And please point me to small time cases involving small parties that come anywhere close to $150K. And even then, how many small time cases would actually pay the full 6-figure amount?

I can say as a fact there are MANY people who cannot pay any 6-figure judgment even if they wanted to. People, even under legal threats, cannot even pay student loans they clearly used, benefited, and owe for far less. Same with medical debt. There are a lot of worthless paper in the world. That is why much of it are bought and sold at pennies on the dollar.

Copyright judgments rank pretty low in the big scheme of potential debt and judgments. I say they can stand in line for a long time or take a reasonable settlement.

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.


I think the reason that you haven't seen single-image lawsuits go all the way to a jury trial is that defendants will want to minimise their risk of being slapped with a hefty judgement against them. In the event that a plaintiff can prove wilful infringement, damages can be as high as $150,000, and that's before any provable DMCA violations are factored for.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: aot on September 27, 2018, 04:16:16 PM
Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)

In the off chance he actually sues and in the off chance he actually wins a judgment....  who cares?  Just don't pay it.  It's very hard to get money from someone who doesn't want to pay anything, even with a judgment.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on September 27, 2018, 05:51:01 PM
Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)

Enemies? Ha!  ;D

You've only posted twice here, so I can't speak to your opinions on creators/artists who pro-actively guard against the unlicensed uses of their work, but I'll say this: copyrights, as a property right, gives everyone the ability to decide the what/when/how/where their works are used.

If I want to make use of your property, then you can rightly set whatever conditions you please prior to my using it. If I make use of your property without your consent, then I (rightly) should expect consequences for my actions.

FYI, my choice of screen name is derived from the fact that the majority of entities who have taken the liberty of using my work without paying are large companies (think: annual revenues of seven figures or more), often with budgets for using editorial/commercial images.

Copyright laws have protected me from their unscrupulous and sometimes predatory behaviours; the law can be a great leveler in situations where a much smaller fighter takes on a far larger opponent, allowing them to "punch above their weight"

I believe in the fair application of law, where justified, to aid in righting wrongs, and I think that most people on ELI would echo that sentiment, even if we differ on the details.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on September 27, 2018, 07:49:46 PM
DvG is fine. I don't consider him an enemy.  We certainly disagree on a few things but I think he has done an admirable job on ELI integrating himself here with his perspectives. It ain't easy being a photographer on the ELI forums!  :)

Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: aot on September 30, 2018, 11:30:03 AM
Matthew,
We are preparing for a potential court case by Pixsy/Mr. Marco Verch (photographer) and we don't have money to hire a lawyer. Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

We are not paying a penny as we firmly believe our use was innocent and it may also fall under 'fair use' in an informational tweet. Our account has made 11,400 tweets, mostly with our own photos and as well as public domain and copyleft content. And, now there is this one image where someone wants us to now pay $750 for retro-licensing for prior unauthorized use! We said, sorry for the oversight (our mistake), and deleted the tweet.

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: DavidVGoliath on September 30, 2018, 01:47:34 PM
Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

The short version? Yes.

The longer version, with pertinent information, is here: uscfc.uscourts.gov/pro-se-information
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Ethan Seven on September 30, 2018, 10:35:24 PM
What makes you think a German company with no real presence in the US is going to sue you???    They are not a law firm. 

Yes, you can represent yourself, but it is usually a bad idea if you want to mount a substantive defense.   Federal Court is not the People’s Court, missed deadlines and missteps can lead to request for sanctions.  It is not impossible, but if the otherwise knows what they are doing and you do not, it can get ugly for you.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: A Lawyer on October 01, 2018, 01:59:31 PM

Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on November 03, 2018, 03:59:26 PM
Yes, people can represent themselves if they don't have a lawyer. But people who represent themselves "pro se" in court have to be VERY mindful that is going to very difficult to outlawyer the other side. It is also fraught with risks. Your chances of losing are very high if one tries to simply and purely "argue the law". There are pro se benefits in that opposing counsel and even the judge will be frustrated because they will have to be extra careful with you and give you extra benefit of the doubt to be fair and not be accused of taking unfair advantage. They absolutely hate dealing with pro se defendants because there are so many pitfalls. There is the appearance that it is not a fair fight. That is why opposing lawyers often PREFER you lawyer up so they don't get accused of improprieties which is a larger headaches than the case they are working. Those potential accusations can cause lots of administrative headaches. 

There is a also a degree of tenacity, toughness, and attitude one has to have to do so. That is not something everyone has. A few people I know (including myself) have been successful in representing themselves but it ain't because we became super-lawyers overnight. It is the toughness to push forward and fight for your position even when you are out of your element. Positive outcomes often occur when the opposing side sees uncertainty, unintended consequences, or when they realize that their efforts are not "worth the grief".


Matthew,
We are preparing for a potential court case by Pixsy/Mr. Marco Verch (photographer) and we don't have money to hire a lawyer. Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on November 03, 2018, 04:03:39 PM
I would like to add that an "organization" whose only assets are their desk, computer, printer, and a corporate checking account, don't generally have much to fear from a default judgment. Unless someone really has an axe to grind, it is hard to see any lawyer expending the energy and resources to try to extract funds from such a small-time scenario.

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?
Title: Re: Pixsy Letter (photographer has history of suing)
Post by: Matthew Chan on November 03, 2018, 04:10:39 PM
I agree on all points.  However, the thing I would add to this is that in that a few pro se cases I have communicated with, it appeared to have help secure a favorable settlement than if they just rolled over.  I would like to point out that this is only anecdotal and what was relayed to me. Pro se or not, most of these types of cases, the plaintiffs want a settlement. They don't want to expend the resources to "go all the way." The willingness to be pro se shows a certain amount of grit. There is also the leverage and dynamic of one side expending $400/hour and the pro se person not expending any resources beyond their time and energy.

But I definitely agree people have to ready to assume the many risks of going "pro se". But I have to root for the underdog and also say there are some "unconventional opportunities" that can open up if one plays to them.

What makes you think a German company with no real presence in the US is going to sue you???    They are not a law firm. 

Yes, you can represent yourself, but it is usually a bad idea if you want to mount a substantive defense.   Federal Court is not the People’s Court, missed deadlines and missteps can lead to request for sanctions.  It is not impossible, but if the otherwise knows what they are doing and you do not, it can get ugly for you.