Possible loophole in Getty and Masterfile Copyright Registrations?

[SoylentGreen]

Possible loophole in Getty and Masterfile Copyright Registrations?

Much has been made about “exclusive agreements”, and I think that several Righthaven cases show that not all “exclusive agreements” are made equal.

But, aside from that, I think that we can all agree that many images are copyrighted by the artist, but also in a bulk form by the stock image company (Getty or Masterfile).
The stock image company will have an agreement of some sort with the artist (exclusive or otherwise).
But, I wonder if a situation wherein two different parties (the stock image company, and the artist) have both copyrighted the same image independently could enable a defendant to contest that the stock image company (or either party) has standing to sue.
While we could say that an exclusive agreement assigns rights to the stock image company, this may not negate the fact that two separate entities have formally applied a copyright registration to the same image.

Now, some could contest that both the artist and stock image company could agree in principle that the stock image company has standing to file suit.
However, that still wouldn’t prevent the defendant from contesting copyright standing.  
While the artist and the stock image company may come to an agreement and clear up the discrepancy before a potential court foray, but an actual litigation would only be concerned with the agreements that were in force at the time of the alleged  infringement.
In addition, there is no provision in the laws that deal with with “exclusive agreements” that would easily clear up a disputed copyright standing between two separate parties, that I know of.

S.G.

[Robert Krausankas (BuddhaPi)]

Thanx for yet another well thought out post!

Greedy
Extorntionists
Theiving
Tenacious
Yahoos

[photographer]

Possible loophole in Getty and Masterfile Copyright Registrations?

But, aside from that, I think that we can all agree that many images are copyrighted by the artist, but also in a bulk form by the stock image company (Getty or Masterfile).

Where I think righthaven fell down is that when the agencies bulk register copyrights, they are registering the copyright to their compilations, not the individual images (they cant unless they own the images). So what they are doing is registering the CD, distribution file, whatever. It is their right.

The analogy is a compilation CD such as have I got music 34 or whatever. They can register the copyright for their choice of songs and how they put it together (including artwork) but they cant register the copyright of the individual songs as it is not theirs.

My understanding of some of the failed arguments is that they were trying to prove that the copyright for the complilation was infringed, not the individual images, which of course is up to the photographer (or their agent) to chase.

The individual photographer will always have the right to chase the infringements, unless of course the agency fully owns the copyright which is a different matter entirely. As Ive mentioned before I have getty contracts which allow me to work for hire which give Getty the copyright.

If Getty ever tried to register the copyright of my images they would get very short shrift indeed.

As Ive mentioned before registering the copyright doesnt prove copyright ownership, it just proves it was registered in the US (no other country requires registration). Berne requires that the artist can prove ownership, which was holding the negative or owning the RAW file/unaltered jpeg. This is the only proof of copyright and one that is required in court. Registration is only a US thing and a bit of a red herring as it doesnt prove copyright, just proves the image has been registered.

Any demand should show a verified version of the original (in my demands I send this along with the letter/email). This will prove copyright ownership. In Gettys case I supply them with the same information to say I own the copyright and they can act on my behalf.

Again registration is only a US thing and in reality proves nothing. I could go on and register thousands of images that arent my own and noone would be any the wiser (electronic registration only requires thumbnail images, not the real thing so I could just scour flickr and do it). Its not until I have to show the original RAW or finalised jpeg file (which Getty will have as part of their storage anyway) that I can prove copyright.

In all cases you should be looking for proof of copyright, not proof of registration. As I said I supply this with the initial contact there is no case for argument.

[Oscar Michelen]

You make a good distinction between having the copyright and having registered the images. There are alot of posts and discussions on the site about "compilation" registration and the ability to enforce as a registered copyright an individual image that was registered as part of a compilation. But two entities cannot register copyright for the same image. In cases where the photographer has registered images before joining up with a digital image agency, the agency would normally require an assignment of the copyright registration.   

[SoylentGreen]

I think that some aspects of the copyright laws of the UK and the US/Canada are being mashed together here.
Forum participant 'photographer' touched on it, but I think that it needs to be clarified.

The US and Canada (among others) recognize the "Berne Convention".
However, one must formally register their works in the US and Canada to be eligible for statutory damages in the event of an infringement in those countries.
This is not true of some of the other Berne member countries.  I think that's where the confusion comes in.

http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

When Oscar says "having copyright", I think of the UK.
When he writes "having registered the images", I think of US/Canada.

As 'photographer' mentioned, "In all cases you should be looking for proof of copyright, not proof of registration.".  That's a UK concept.
In the US/Canada, the registration is the most important thing and without it, a litigant doesn't have much to go on.
Furthermore, the Muensch case clearly shows not only how important registration is, but how it must be done properly.
Muensch/Corbis would not have fared better in court had they brought in their original photos, instead of their registration.

Under the law, (proper) registration in the US and Canada proves copyright.
The statement "Again registration is only a US thing and in reality proves nothing", is factually incorrect and there are thousands of court cases to prove it.
Unless the statement implies "A US registration means nothing in the UK", which would be correct.

It hardly ever comes down to what entity holds the originals, negatives, or anything else in the US and Canada.
It's true that anyone could technically register something as 'copyrighted', even if it's not 'theirs'.
But, that's why people are urged to register their works promptly; once a work is 'out there' it becomes difficult to control if it hasn't been registered prior.
Register your works promptly; problem solved.

A note of interest to Canadian readers is that a copy of the material being registered is not required when applying for copyright.
In fact, the Canadian office will send your materials back to you if you submit them with your application.

I want to close by stating what a poor job the stock image industry has done in protecting its content.
Especially given the zeal with which they chase infringements.  It's rather baffling.
The same holds true for many photographers.

S.G.

[photographer]

As 'photographer' mentioned, "In all cases you should be looking for proof of copyright, not proof of registration.".  That's a UK concept.
In the US/Canada, the registration is the most important thing and without it, a litigant doesn't have much to go on.

Nope. Its a Berne concept, copyright resides with the original artist. The US added the proviso for the registration to protect its interests.
Correct that even those of us outside the US have to register our works with the US copyright office if we want to go for statutory damages in the US.
However despite saying many court cases dont need to prove registration, you do need to prove you own copyright. As you yourself have mentioned multiple times only the original copyright holder can sue in court, (or their agent) but at some point along the line you will be asked to show the original image.

After all if it was that easy just license some non-US images, register them in the US and then sue like mad. This is the issue with some of the failed cases, someone with a registration document for copyright they dont own. Just because they registered the image, doesnt mean to say they had the right to.

Under the law, (proper) registration in the US and Canada proves copyright.

No it proves you registered the copyright. I think where your misunderstanding comes in is in the use of the word (proper). By proper registration you mean that the original copyright owner has registered the image. How do you know its a (proper) registration, by showing proof of copyright of course. That defeats your own points as how does the judge decide what is a proper registration and what is not? By seeing the originals and proving copyright.

Register your works promptly; problem solved.

Within 3 months of publication for unpublished or anytime for published material.

I want to close by stating what a poor job the stock image industry has done in protecting its content.
Especially given the zeal with which they chase infringements.  It's rather baffling.
The same holds true for many photographers.

Id be interested in the thinking behind this. After all every image has its ownership information embedded as soon as you press the shutter. All stock agencies will embed the required information in the image they license. They are required to under Berne. If this information is stripped out it is covered by separate damages in excess of the copyright infringment in many jurisdictions and claims for this do not require registration in the US. This is why a lot of cases are taken on on contingency by US lawyers without registration. Its covered by separate rules in addition to the copyright infringment damages and something no-one here has really touched on. Without registration its a min of 2.5k damages under US law.

Where the issue has been in the past is that previously it was only possible to find images with that ownership information attached. The infringers knew this so stripped it out. Then tools came along that could recognise the content of the image, then the infringers simply flipped the image, put it in black and white or cropped it heavily. In the last 2-3 years the software has matured to a stage it can recognise all of this and even fractions of images or images based on the original images. Ive even used it to find one of my images used in a corporate video.
The beta google images search incorporates all this and has been a revelation in the last month or two to many of us, just to see how much our images have been ripped off.
In the last month Ive had emails from at least 4 lawfirms who now work on a contingency basis and one agent who will proactively police this (not picscout) and Im sure more will follow. After all if they only go after stripped out images in the US, theres 2.5k min right there. 40% of that is worth filing the court costs alone.

Also the music and video industries are pushing the legislation to such an extent that most EU governments are introducing fast track copyright to the small claims courts at low cost. Anything under 5k GBP is just 85GBP to file and doesnt require a lawyer.

[SoylentGreen]

Thanks for your comments.
I'll reserve my comments to a few of the issues, otherwise these posts become quite difficult to follow.

A formal proof of copyright registration is sufficient over here (US/Canada).
The originals rarely come into the picture.

The Berne Convention doesn't come up very often in these types of copyright disputes.

I think that your argument implies that artists/photogs needn't register their images to prove copyright in the US/Canada.
It's true that a work is "copyright" of the "artist" at the moment of creation. But, that concept is useless to protect an image or for litigation purposes here.
So, it's basically useless.  You can't do anything with it.  You won't be awarded much (if anything) by just having the "originals".

I also believe that there are those who wish to misinform people in order to scare them into paying when they don't have to.
Some photographers wish to disseminate the mistaken idea that they can successfully litigate over non-registered images in the US/Canada.
There's a multitude of evidence to the contrary, and people rarely fall for the scam these days.
Mind you, you could go to court to try to get money for non-registered images, but you'll lose and get fleeced.

I'm not really too concerned with UK issues, personally.  It's not that I don't care, it's just too time consuming to keep abreast of everything.

S.G.

[photographer]

I think that your argument implies that artists/photogs needn't register their images to prove copyright in the US/Canada.

umm, again, no.

My argument is that registration doesnt necessarily imply copyright. Far be it for me to help anyone here out but it would stop the chancers who can register images but not actually own them. A lot of the failed cases quoted here have hinged on the registration not being valid - ie the registration exists but that doesnt include copyright.
Checking to see that someone has copyright is a fundamental in every case worldwide regardless of jurisdiction or registration.
As you yourself have mentioned numerous times only the copyright holder or their agent can sue, regardless of whether an image is registered or not. Registration just adds an extra dimensions to the amount in the US.

As for getting nothing for unregistered images, I guess nothing is a relative term. It costs 350 to lodge proceedings and if it involves stripping of ownership data you are talking a min of slightly over 3k for the whole thing. So thats probably a clear 1.5k which is hardly trivial and being fleeced.

Why you should keep abreast of the EU/UK and elsewhere in the world is that where the music/video industry push the changes through elsewhere they can be rolled out in the US. The music industry has pushed for years for fast track low cost EU copyright courts (along the lines of the small claims court in the UK).
The UK has agreed to this and is implementing it. That means for cases less than 5k GBP it costs 80 GBP to lodge a case, no lawyer required, and will be reviewed by a judge in a short space of time. That is a massive step forward against copyright infringment.
In Germany in certain circumstances copyright infringment is a criminal not civil issue.

The music and movie industry are lobbying for the same in the US. It might explain why a lot of the cases are being held off.

This isnt scaremongering at all, just google it.

[SoylentGreen]

In the US/Canada, a proper registration does imply copyright.
Yes, one could argue in a court that the copyright registrant has registered the content fraudulently.  However, that's difficult to prove in most cases.
If one is taken to court, and the defence is "the plaintiff registered fraudulently", then you have to prove why that's the case.
It's pretty rare to have this come up.

An improper registration in the states is one such as in the Muench case.
One could fight a suit on those grounds.

Anyone can sue anybody else for anything.  Of course that doesn't necessarily mean that the litigant has a case that could win, or even one that the court would hear.
Some use lawsuits to harass others into paying.  But they back off before a court date if they know that they can't win.

The problem with litigating over unregistered images is that the litigant would only get the retail purchase price of the image in the event of a court win.
The kind of images that we're concerned with on this forum usually only cost between 10 and 300 dollars at most retail.
So, a lawsuit over such amounts over unregistered images (or improperly registered images) is really pointless given what it costs to litigate.

I think that comparing the music and movie industries to infringements of images on the Internet is like comparing apples to oranges.
But, if you have something to add in this regard that's valid I'm sure that nobody will object.
There's lobbying going on in the states right now including the desire to make music piracy a felony for example.
But it's just speculative at this point and doesn't mean much.  Unless it's "law" we'd be wasting our breath debating it.

Again, I don't know much about UK laws, and it's out of my sphere of interest.
But, I'm sure that we can both agree that different countries/regions have different laws and what is true in one region is not necessarily true in another.
Personally, my interest is in the US/Canada and infringements over images.
If you add more about UK laws, I'm sure that it will enrich the forum and help others.

S.G.

[photographer]

I think that comparing the music and movie industries to infringements of images on the Internet is like comparing apples to oranges.

Not really, its the same laws.
As Ive said before its perfectly easy to register an image in the US that isnt yours. Particularly with a bulk submission and only supplying thumbnails. If it was proof of copyright Id just download everything I can from flickr, register it and go on a suing spree. It doesnt work like that.
You cant have it both ways though, you cant in other threads go on about copyright owners only being able to sue and then on the other hand saying registration is enough to sue.

There's lobbying going on in the states right now including the desire to make music piracy a felony for example.

Indeed. And as it is in relationship to copyright laws it would also make movie, art and photography infringment a felony. Movie studios are lobbying for the same thing.

But, I'm sure that we can both agree that different countries/regions have different laws and what is true in one region is not necessarily true in another.

Which is why (as a taxpayer on 3 continents) I have to be familiar with laws in all of them that I do business with. As mentioned before certain infringment in germany is a criminal offence and so the lobbyists in the US say 'if it works in Germany, why cant it work here'.
Infringments in certain far east countries are dealt with in a more draconian fashion.

One of the issues you touch on and we are all agreed on is that in no matter what the country and no matter what the registration status the costs awarded are generally the market value and that isnt decided by you saying they are in the 10-300 price bracket. If an image is from Tony Stone say and has never been licensed for less than 2k then 2k min is the market value. Most countries will add a multiplication factor of between 3-10x depending on many factors.
Thats not to say of course that all the images are worth that which is why its a case by case basis and you cant say they are all worth 10-300 just as I cant (and wouldnt) they are all worth in excess of 5k etc. Its all meaningless unless all the facts are known and presented.

Regardless of that as Oscar has pointed out the advice is to not ignore the letters and to negotiate. But then again any attorney will tell you to do that.
In my experience (which is a lot) I always try to settle as they say in certain parts of the world, walk softly and carry a big stick.
That big stick in the US is registration of the images and why since day one with Getty (and Ive been with them 8 years) they have always advised registration of images in the US regardless of the country of origin.

[SoylentGreen]

There's plenty of forums wherein music and movie copyrights are discussed.
It's been discussed and argued over and over.  It's been beaten to death.  I prefer not to discuss these issues here.
But there's nothing to stop you from doing so; but it may not be of interest to most readers who come to the forum about images, however.
I don't know what else to tell you.

I get your point about registering other people's images.
This may become a problem in the future if it hasn't already.
But, that doesn't change the fact that court cases in the US in Canada really hinge on copyright registrations.

I only said that improper registration offers a loophole for alleged infringers and the Muensch case bears this out.
A proper registration (not in bulk and lists the actual author) is more difficult to fight.
But, I'll say it again; a person or other entity can sue for anything at any time for any reason.

The multiplication factor that you speak of would only be available through statutory damages in the US/Canada.
Statutory damages can only be sought for registered images.

I also think that we're getting off topic in terms of what this forum is intended for and the pricing issue.
The vast majority of alleged infringements that GI/MF and Corbis pursue are at the lower end of the scale.
We could pick any image that we want and say, "look at how expensive that is."
But, we're not really dealing with those sorts of images.

As I mentioned before, I'm really only interested in US/Canada infringement issues.
I'm not challenging anything that you mentioned about countries other than US/Canada.
I don't know much about those laws at this point.

S.G.