Possible reasons for class action suit against Getty in the USA

[scraggy]

As those of you who have read my story know, I have received copies of around 100 settlement demand letters sent here in Israel by Marot Images ( Getty’s representative here ) .

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/class-action-suit-filed-against-getty-images-master-delegate-in-israel/

Approximately, 5% of the images involved the "Dorling Kindersley" or "National Geographic" collections.

Getty’s website gives full copyright credit to these two collections (see links below) , but the two collections continue to sell the same rights managed licenses themselves.

This would seem to suggest that Getty only owns a NON EXCLUSIVE license. Marot Images is therefore sending settlement demand letters for images to which even Getty does not own the exclusive license (and neither therefore right to sue).

I wonder if the situation is similar in the USA.

How many people in the USA have paid Getty a settlement for images from these two collections? Oscar may have a statistical sample of letters on which to base an estimate? If it is a statistically significant number, is this a possible class action suit? Are there other collections similar in nature to these two?

Here in Israel, a letter recipient signed an agreement to pay Marot Image around $1000 for using this image - Title:  Jewish Honey Cake with some slices removed

http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&assetType=image&p=75375175

Credit is given to "Dorling Kindersley"  (DK books).

But the same image is still sold by DK books (at a much lower cost – which is also interesting!) at this link:

http://www.dkimages.com/discover/DKIMAGES/Discover/Home/Food-and-Drink/Desserts-and-Confections/Cakes/Jewish-Honey-Cake/Jewish-Honey-Cake-1.html

If these two companies both sell the same image rights, then neither has an exclusive license.

I actually wrote to DK books about the image, and received this reply

DK Images owns the image and copyright but the image is distributed as well as through us, via Getty Images.
 
Either DK Images or Getty can sell this image. Exclusive and non-exclusive licenses are available for this image.
 
DK Images does not currently have an exclusive license with any third party on this image.
 
Hope this is clear
 
thanks
 
Paul Turner.

 

Dorling Kindersley is part of the Penguin Group.

The Penguin group belongs to Pearson plc  and  is considered the largest education company and the largest book publisher in the world.

By the way, Marot Image sued the woman above for violating their copyright. I attended the first court hearing. The judge got it all right! The defense lawyer didn’t have to say a word! The judge knew that there was no way for Marot Images to own the exclusive license! The case will continue on October 10.


Regarding National Geographic, I was personally sued by Marot Image in a Tel Aviv court for using this image:

http://www.gettyimages.com/detail/photo/church-of-the-holy-sepulchre-old-city-high-res-stock-photography/57504480

But the exact same image is still sold by National Geographic - Picture Id:976105

http://www.nationalgeographicstock.com/comp/IR10/114/976105.jpg

In my case, I spoke to the photographer, who insisted that he had never given an exclusive license to anyone!

The case against me was dropped.

If you use this link - http://www.nationalgeographicstock.com, you can price the image on NG - Picture Id:976105

My main question: Is Getty also sending demand letters in the USA for the two collections mentioned above? If so, wouldn’t this be outright fraud?

[Moe Hacken]

Yes it would, Ian, you're absolutely right. I like your suggestion to vet the data we do have to see if it involves any of the images they don't have a right to enforce.

The class action would probably have the most solid foundation if the plaintiffs were the folks who already settled and paid on these fraudulent claims. The catch-22 of the situation is that these people have already proved to be timid by settling with Getty and probably signed non-disclosure agreements. This would make them hesitant to come forth and go on the offensive against Getty.

The second group that could bring the class action are the folks who have not settled but are being harassed and pressured by Getty Images and their "compliance team." This demographic is more promising because they've proved they're willing to come forth and fight  back. These folks are not afraid of the bullying and posturing and would likely participate eagerly.

Then the next question is the legal strategy. What would Getty be sued for specifically? I went to art school, so I'll leave that to those with more experience in legal matters.

[Robert Krausankas (BuddhaPi)]

Most of the cases involving Getty in the states largely are for images in the Tony Stone Collection. I think I may have seen a reference to Getty / penguin in PACER at one time, I'll have to recheck that. Chances are good as Moe stated that those that have settled signed an agreement, and probably don't want to hear about this anymore..But very soon I hope to have a nice list of names and address, compliments of the WA. AG..What I'm going to do with this info is yet to be seen..

[stinger]

Moe, I am not a lawyer, but my fear is that the only problem with relying on the second group you mentioned is that, since they paid nothing, their damages are harder to prove.

"The second group that could bring the class action are the folks who have not settled but are being harassed and pressured by Getty Images and their "compliance team."

[Moe Hacken]

You're right, stinger. That's why it's important to define what it is that Getty would be sued for. It may be that the strategy is to sue for fraud, attempted fraud, wire fraud, maybe even extortion. I don't know enough about the law to even dream of suggesting the best strategy. It's important to assess the risk involved; overreaching could result in a counterproductive outcome.

[SoylentGreen]

Was it not the case that "Marot Images" were collecting settlements/filing lawsuits under the guise of "Getty Images"?
Even though Marot has no formal corporate connection to Getty?
If this was the case, it's difficult to make valid comparisons in regard to the actions of Marot and Getty.

It's kind of like comparing apples to oranges.

S.G.

[scraggy]

I didn't make any comparisons.
I just shared some statistical information - that approx 5% of the images for which Marot Images sent letters were from two specific collections - National Geographic and DK books.

My questions:

1. Is my analysis correct that Getty does not own the exclusive licenses for images in these two collections? ( see above for analysis )

2. If Getty USA sends a similar percentage of letters for these two collections in the USA, that would make a rather large group of letter recipients/ people who have paid up for images to which Getty owned no right to sue at all. If this were the case, would you not have some grounds for a class action suit for these two collections only?

In Israel, we indeed claim that Marot has no rights to sue at all, because it is Getty ( if at all )  who owns the exclusive license, and not Marot!

Regarding our lawsuit, I am the plaintiff, yet I did not pay.
This does raise a problem.
But those who paid signed secrecy clauses.

For now therefore, I am the plaintiff.
The class action law here allows the judge to add or switch plaintiffs if the suit meets all other criterion.
We explained this in our lawsuit, and only time will tell.

[SoylentGreen]

I didn't mean to imply that comparisons were made.
However, if we are to say "Marot did this", and then ask "does Getty also do this?", then we have to make comparisons.   

From your evidence, I think that it's safe to say that Getty has no exclusive agreements with DK or National Geographic, either.
I think that National Geographic holds onto its content for as long as the law allows.
It's been proven in court that Getty doesn't have exclusive agreements with most of its contributors.
I would imagine that Getty chose to take Advernet to court because Getty felt that they had the strongest legal standing against them.
That is, they went ahead with their strongest case.  They lost. We can assume that any of their other potential cases were weaker than Getty vs Advernet at that time.

I'm no lawyer.  But, logically, a case against Marot makes sense because they had absolutely no legal standing to take people to court.
Because innocent people had to defend themselves, they were damaged economically.

However, Getty does have agreements with its contributors, even if they aren't exclusive agreements.
Therefore, it's more difficult to prove that their extortion letter campaign is completely baseless, or that its efforts in court are completely without merit.
Now, they don't have enough legal standing to prevail in their cases against alleged infringers.
BUT, they may have enough legal standing that their pursuit of settlements (even through lawsuits) are not a breach of law, or unjust.
They probably have just enough standing that it's legal for them to have a court hear their arguments.
If a class action were filed against Getty, it's possible that they could pay some of their artists to join in the legal fight.
This could give them instant legal standing in regard to the images that those artists created.
It wouldn't be so clear-cut.  Things could get very complicated.

I would think that those that paid settlements and signed confidentiality agreements would have difficulty finding other legal recourse at this point.
Those that maintained their innocence, didn't settle and were damaged economically by Getty's actions would be in the best position to file suit.

S.G.


 

[stinger]

@Scraggy:  Can't the courts cut through the secrecy clauses?  Or does this mean, if the judge decides to switch the plaintiffs, then he is going to cut through the secrecy clauses?

[SoylentGreen]

I don't think that the court system "switches" plaintiffs and defendants.
Separate lawsuit(s) would have to be filed.

Part of the court process is that each side must prove their case.  Especially the plaintiff.
Logically, the plaintiff will lose if the "secrets" aren't divulged.

As a matter of process, people must "come clean" by proving their case, otherwise they'll lose.
Copyright is all based on written contracts, not so much verbal testimony.
So, everything is revealed rather quickly.  If one reads the Getty vs Advernet case, all of this is very apparent.

S.G.

[scraggy]

I would think that those that paid settlements and signed confidentiality agreements would have difficulty finding other legal recourse at this point.
Those that maintained their innocence, didn't settle and were damaged economically by Getty's actions would be in the best position to file suit.

Well, group A suffered the clearest and most easily measured loss. Marot ( and probably Getty too ) know exactly who paid and how much.
Group B - paid Marot nothing. Therefore, their financial damage is much harder to measure.

As I say, I am the symbolic plaintiff, and have requested to represent groups A and B.

Can't the courts cut through the secrecy clauses?  Or does this mean, if the judge decides to switch the plaintiffs, then he is going to cut through the secrecy clauses?

Yes, we certainly hope so. If the judge rules that all agreements can be nullified because they were based on a mis-representation of the facts ( that Marot had the right to sue, when in fact they didn't ), then the judge can allow the addition of a second plaintiff, or even allow me to continue representing groups A and B. After all, my role is purely symbolic.

Regarding the NG and DK collections, if Getty knew that they had no exclusive license, yet they nonetheless threatened people with court action, then all agreements would be based on a fraudulent claim. This would be similar to the case with Marot.

Retroactive involvement of the photographers wouldn't help. Their agreements are with DK and NG, not with Getty. They couldn't give a retroactive exclusive license to anyone.

[Mulligan]

If I were King of the World, I would immediately revoke every confidentiality agreement ever made in every lawsuit ever filed and would open everything up 100% to the public. This would put a lot of lawyers and corporations out of business, and My World would then be a better place where people could live happily with much less fear of the quick buck artists and those who manipulate the system to take advantage of others.

[SoylentGreen]

We're clearly not lawyers here, and it shows.  lol.

I should clarify a couple of points, however:

The first is that a person or other entity can sue over practically anything.  One needn't even have a "winning case".
The second is that one can sue even if there is no exclusive agreement between the artist and the retailer.
Thirdly "Getty" may in fact "register" content in its name, and come back for another go in cases such as MF vs Chaga for example.
A quote from Oscar: "MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement."
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/masterfile's-copyright-registration-method-held-invalid-by-california-court/
Do not think for a second that Getty couldn't generate enough legal standing to fend off most class-action lawsuits based on "standing to sue" alone.
Marot can't register squat, because they had no license agreements with the artists in question at all.
The fourth point is that "Getty" does have license agreements between itself and its artists.  My understanding is that Marot is quite a different situation.

There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially, and can prove it because you've "won", you've probably already had your attorney fees and expenses awarded to you.
You've been made "whole".  How can one come back for another "go" at it?
The people that haven't been sued haven't been "damaged", and have no case against Getty.

I dislike Getty more than some of the regulars on here, and I'd like to see them stop what they are doing, or at least demand resonable settlements.
However, my personal opinion is that we need to separate the concepts of "standing to sue", and "a losing case".
There's a difference.

S.G.

[Greg Troy (KeepFighting)]

SG that is very well put and very good points, thank you.

[scraggy]

The fourth point is that "Getty" does have license agreements between itself and its artists.  My understanding is that Marot is quite a different situation.

If Getty indeed has an "worldwide exclusive" license , then it would be logically and legally impossible for other companies to share the same license.

See Getty's contributor agreement - http://contributors.gettyimages.com/img/articles/downloads/2011%20contributor%20agreement%20v.4.0%20%28d%29%20sample-english.pdf

All Content submitted to Getty Images is on a Content exclusive basis. This means that Content submitted to Getty Images and any other content that is substantially the same (a “Similar”) may not be licensed to any third party

Furthermore, Marot has never even claimed that they have contracts of any kind with the photographers ( as the law here would demand in order for Marot to own an exclusive license).

If Getty owns the worldwide exclusive license, then Marot does not!

Marot claims that Getty somehow ( the law here doesn't allow it ) transferred exclusive rights to Marot, because Marot is a "distributor". I have not seen any document to this effect, and I also assume that Getty wouldn't endanger its own worldwide license and standing to sue in order to save Marot. Territorial exclusivity regarding the display of images on the Internet is also not possible.

There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially

Here in Israel, my lawyer is not paid up front. If we win, the court awards him costs. In theory, costs can be awarded against me if we lose, but if a judge sees a good faith attempt to correct a public wrong, costs may not be awarded, and even if they are, they are likely to be symbolic.

Statistically, the chances of our case being accepted as a class action suit are not high. But it was my destiny to file this suit. Almost 100 people contacted me regarding the letters they had received from Marot. The psychological, economic and family pressures they were under were immense. Even charitable organizations for handicapped children have paid Marot Image! Someone had to try and stop this!

Ian