ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Oscar Michelen on August 07, 2008, 12:31:24 PM
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This post is not directly related to our issue but should be of interest to readers as it relates to recent intellectual property issues and may provide guidance on the Getty case.
(1) In late July, 2008, a federal court dismissed Tiffany, Inc.'s trademark infringement suit against eBay. Tiffany had sued eBay due to the number of Tiffany "knock-offs" sold on eBay's e-marketplace website. Tiffany had made two claims against eBay: that eBay directly infringed on Tiffany's trademark by promoting the sale of Tiffany products and by advising sellers on how to better market Tiffany products, when all the time these were not Tiffany products and secondly that eBay indirectly infringed on the Tiffany trademark by hosting the sale of Tiffany knockoffs. The court ruled that eBay's use of the Tiffany name and eBay's promotion of the sale of Tiffany items was a "fair use" of the trademark. But it is the court's ruling on the "indirect trademark infringement " claim that is interesting. The court said that since there was nothing about the proposed sale that would telegraph to anyone that the sale was of a knock-off item as opposed to an actual Tiffany item, that eBay could not be responsible for the seller's trademark infringement of Tiffany's name and design. The court noted that in every instance of a Tiffany knock-off sale, as soon as eBay was notified by Tiffany that it was not an actual Tiffany product being sold, eBay took the sale off its website and derogated the seller to a "bad seller's" list The court held this was sufficient conduct on the part of eBay to make it not responsible for indirect infringement. While trademark law is not identical to copyright law, there are parallels in the two areas. eBay's reaction to the notice from Tiffany is similar to many of our client's reaction to notice from Getty. They did not actually download the allegedly copyrighted image and took it down immediately once notified of the alleged infringement. It should certainly give Getty pause as to whether they will be able to get the amount of damages they seek.
(2) In today's NY Times, there is a front page story in the Arts section about DJ Girl Talk ( real name Gregg Gillis, be careful not to download the photo accompanying the article, it is from Getty Images!) who has released an album of "mixes" that are comprised of overlayed samples of songs. He claims it is a "fair use" of the copyrighted song because he uses such a small portion of it to create a new original work. I suspect that if push came to shove a court of law would find that it is not a fair use as anyone working in the intellectual property field know that most labels and producers spend a fair amount of time getting clearances and licenses when their recording artists want to employ or sample even a "beat" from another song. While this position may seem at odds with my position on the Getty issue, it is not - please remember that more often I am on the side of the artist/author trying to protect his/her/its intellectual property, it is just that Getty is over-reaching and over-charging and may not have the correct legal position. But what is interesting about the DJ Girl Talk issue is that the Times speculates that the music industry is cautious about bringing suit against the popular DJ because of bad publicity and the danger of setting a bad precedent. Well, I am sure that Getty is (and should be) concerned about similar issues here. They are already getting bad publicity from this and if a court agrees with my legal position should it get to court, they will have to stop this gravy train of demand letters and settlements. That may explain why no lawsuits have been filed even though they started this in 2005.
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A reader of this site sent me the following via email :
http://recordingindustryvspeople.blogspot.com/2008/08/innocent-infringement-defense-may.html
The text below is taken from the link above - seems to me most of us in the Getty case had no idea we were getting images that "belonged" to Getty and how would we find out? And in many cases the images used were actually thought to be in the public domain or purchased properly. So, would the below "innocent infringement" defense apply to us since we had no way of knowing the images were (perhaps) copyrighted???
Innocent infringement defense may reduce damages to $200 per song file in Maverick v. Harper
In Maverick v. Harper, a San Antonio, Texas, case of which we were unaware until yesterday, the RIAA has been pursuing a college age defendant who admitted to having committed copyright infringement using the Kazaa program when she was 16 years old.
Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.
The RIAA argued that defendant could not qualify for 'innocent infringer' status, since CD's of the songs sold in stores have copyright notices.
The Court disagreed, and denied the RIAA's motion for summary judgment unless the RIAA agrees to accept $200 per infringement:
Plaintiffs request the statutory minimum damages of $750 per work rather than a calculation of actual damages. Defendant contends that due to her age—sixteen years old at the time of the infringement—and technological experience, she did not intentionally violate Plaintiffs’ copyrights and should therefore be considered at most an innocent infringer.
The damages provision of the Copyright Act provides that a plaintiff may elect to seek
minimum damages of $750 per work. 17 U.S.C. § 504(c)(1). However, it also provides that “where the infringer . . . was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2). The defendant has the burden to prove the lack of intent necessary for innocent infringement. Id.
As evidence of her “innocent” infringement, Defendant presents a signed affidavit stating that before the lawsuit, she “had no knowledge or understanding of file trading, online distribution networks or copyright infringement.” In addition, Defendant stated that “Kazaa and similar products did not inform me that the materials available through their service were stolen or abused copyrighted material and I had no way of learning this information prior to this lawsuit.” (Id., at 13). Plaintiffs contend that by complying with 17 U.S.C. § 402 and placing notices on each the containers and on the surface of the compact discs of the Recordings, they have provided notice such that Defendant could have learned that the Recordings were copyrighted. This argument is not completely satisfactory. In this case, there were no compact discs with warnings.
The Copyright Act provides that “f a notice of copyright . . . appears on the published phonorecord . . . to which a defendant had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement” unless the infringement was believed to be fair use. 17 U.S.C. § 402(d). Although the Fifth Circuit has not addressed this issue directly, the Seventh Circuit has found that an innocent infringer defense did not apply in a case where the defendant “readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzales, 430 F.3d 888, 892 (7th Cir. 2005). Defendant, relying on Electra Entertainment Group v. McDowell, a case involving a thirteen-year-old girl, argues that her age and knowledge of technology alone should be sufficient to introduce a genuine issue of material fact as to innocent infringement. The McDowell Court held that a genuine issue of material fact was present as to the defendant’s access to the copyright notices. See Electra Entertainment Group Inc. v. McDowell, No. 4:06-CV-115 (CDL), 2007 WL 3286622, at *2 n.2 (M.D. Ga. Nov. 6, 2007).
Although proper notice was provided on the cover of each of the Recordings, a question remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting. Defendant admitted that she owned compact discs. However, both in her affidavit and in her deposition, Defendant claimed that she believed using KaZaA and similar products to be akin to listening to radio over the internet and did not know that the Recordings were being either downloaded or distributed. She further claimed that prior to this lawsuit, she did not have any understanding of copyright infringement.
At the summary judgment stage, all factual disputes must be construed in the light most favorable to the non-moving party—in this case, Defendant. Anderson, 477 U.S. at 255. Defendant has the burden of proving by a preponderance of the evidence that her actions constituted innocent infringement. 17 U.S.C. § 502(c)(2). Plaintiffs have not introduced any evidence to contradict that Defendant did not have an understanding of the nature of file-sharing programs and copyright sophisticated enough to have reason to know that her actions infringed Plaintiffs’ copyrights. Therefore, the Court finds that a fact issue exists as to whether Defendant was an innocent infringer.
MY REPLY:
This is essentially a re-statement of our position relating to Getty Images. That is, that intent does matter particularly with respect to the amount of damages to which Getty may be entitled. This opinion, along with the case I mention above, Tiffany v. eBay, enforces that we have a strong legal position and just need to push back until Getty sees the light of day here. I want to thank the reader for bringing this case to our attention.
Oscar Michelen
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Today the NY Times reported that a judge ruled in favor of J.K. Rowling, popular author of the Harry Potter series, in a copyright/trademark infringement claim she brought against a fan who developed an online encyclopaedia of Potteralia (my word, don't steal it).
The fan had copied whole sections of her book as well as of course, all the names, characters, place names, plot lines, etc. His defense was that it was "a fair use" one of the exemptions of copyright infringement. Ironically, if he had made fun of the series or critically reviewed the books,and had used the exact same quotes in his parody or critique, he would have likely won his fair use defense. But instead his pure and unaltered devotion to the works meant that it was out and out copyright infringement.
The point of this post - despite all of the above, the court awarded Rowling (actually her publishing company) the whopping sum of $6,000. Years of litigation, evidence of direct, intentional infringement and you get $6,000. Of course, it was vitally important for Rowling to fight this fight to establish that this kind of site does harm to her ownership rights and ability to market her ideas so the money was irrelevant.
Remember that the website owner in the Rowling case did not want to take the site down. But for Getty, its all about the money as almost everyone contacted by them immediately stops using the images and therefore stops any alleged infringement. This monetary award should give Getty pause (no legal fees were awarded according to the report) and make them realize that the damages they seek are insupportable in a court of law.
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Just wanted to share some language from another court case I came across while doing some legal research on another copyright claim. The court had decided the defendants were innocent infringers and stated:
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, District Judge, Central District of California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
Sound applicable to the Getty cases?
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In an effort to keep you guys updated on trends in copyright law, I wanted to tell you about Faulkner v. National Geographic a case decided herein NY last month that completely supports our position on Getty. I'd be glad to summarize it for you. Photographers sued National Geographic for using their unregistered images without permission. They had given permission for some form of media but not for use in CDROMs etc. They sought all kinds of punitive damages and asked for "multipliers" based on the use and re-use of the image in the future since the CD ROMS were distributed in the marketplace.
While the court did not rule on what would have been fair compensation (it left that for a later trial) it ruled that (1) it has long been the law that statutory damages are not available as the images were not registered; (2) plaintiffs could only get actual damages (3) evidence of willfulness is therefore irrelevant and (4) while it didn't give an amount, the decision makes clear that the court believed $1,320 per image was likely the best plaintiffs would get. Its important to note the court talked about that number because (for whatever reason) Nat'l Geographic did not contest plaintiff's evidence that this was a reasonable license fee. Here are some snippets from Judge Lewis Kaplan's decision:
Plaintiff may not pursue statutory damages here because he did not register his claims to copyright in the photographs in question before the start of the alleged infringement. See, e.g., Mannion v. Coors Brewing Co., 530 F.Supp.2d 543, 554 (S.D.N.Y.2008); 17 U.S.C. § 412. His claim therefore is limited to “actual damages” under 17 U.S.C. § 504(a).
The Second Circuit (THE NY APPELLATE FEDERAL COURT) has made abundantly clear that “[p]unitive damages are not available in statutory copyright infringement actions.” Accordingly, the plaintiff's punitive damages claim is stricken.
As I have concluded above, the Copyright Act limits recovery in this case to “actual damages” and does not permit recovery of punitive damages. Whatever the industry may do or believe as a matter of voluntary and consensual practice does not trump Congress' limitation of damages for infringement in this case to actual damages.
I feel compelled to make one additional point. What plaintiff is entitled to here is actual damages, one measure of which is a reasonable license fee that would have been arrived at between a willing licensor and a willing licensee. Plaintiff Psihoyos here claims infringement of copyright in five images. Were Mr. Dauman's (THE PLAINTIFFS EXPERT) theory of damages accepted, he would be entitled to damages of more than $900,000. And that is just a drop in the bucket. Mr. Dauman's theory, applied to plaintiff Ward, who claimed infringement with respect to 532 images and whose case has been dismissed on other grounds, would have yielded damages to Mr. Ward of more than $96 million.
Indeed, he (THE EXPERT) conceded at his deposition that “had they sought permission ahead of time the cost per picture was $1,350.”
Some sense of rationality must prevail in the law. Certainly if photographers doing this sort of work commanded such compensation in the real world, one would have expected Mr. Dauman to have said so. But there is nothing in this record to suggest that figures such as these are at all reasonable.
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So it would seem that the getty tactic is "Scare High, Settle Lower" may have flaws in its original "business plan".
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Dave,
It is not quite flawed enough in that they are victimizing too many people out of the victims's sheer ignorance. But I do like the mantra you came up with that summarizes Getty's extortionistic tactics.
Matthew
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I found your site while doing research on this topic. I wanted to thank you for helping those of us who have been contacted by Getty for incredibly unreasonable. Your generosity gives some of us hope in a world where money seems to be the bottom line above all else.
I have some questions about my own case but want to read through your site in depth first before posting as I can tell there is great info here. These case stories are very helpful.
Thanks you again for your kindness and integrity in helping to right a wrong.
Nancy
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Much has been made about the recent decisions awarding large statutory damages in the most recent RIAA (song download) cases. The case to have gotten the most attention is RIAA v. Tenenbaum in which a jury awarded $22,000 per downloaded song. I think two critical differences distinguish the Getty issue from Tenenbaum. First, Mr. Tenenbaum had the illegally downloaded songs on a Peer-To_peer website. That meant that he would open his computer up and allow anyone else in the world to also download the songs he had on his server. So he also distributed the images in addition to possessing them. Second, the jury found it was a willful infringement -which makes sense. Who doesn't know that recorded and published music is subject to copyright? In the Getty issue the vast majority of alleged infringers had no reason to believe they were using copyrighted images.
I think these two points make Tenenbaum inapplicable to Getty cases. We should all keep an eye on the case anyway to see if the jury award in Tenebaum will be upheld.
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What can be done if I want Iterasi to remove a page that they archived without my permission.
According to their copyright legal it states that they will remove if it is sent to their copyright agent.. which seems odd since they are the ones infringing to begin with.
See under copyright on page link below
http://www.iterasi.net/terms_of_service/
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Goober:
I would start by following the instructions on their terms of use page and emailing them at [email protected] with your complaint. Keep us posted
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Hi Oscar:
I've been trying to reach you for a week via your sbmlegal.com e-mail but haven't heard back from you - the e-mail I sent you messages probably went over to your spam folder or something.
Could you perhaps un-mark my email address as spam, kelvin [at] zension [dot] com and drop me a reply those messages I left you? Thanks!
Or if you are reachable via another email account, do let me know, and I will forward the previous messages there too!
Regards,
Kelvin
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Oscar has been in Belize for several days since last week. Plus he gets tons of emails. Are you an existing client or new client? When did you send the email to him?
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Ah, I'm probably new. One of my customers just got the dreaded letter and we're hoping Oscar could help us write a letter back to Getty. I sent him the letter on the 25th I think - and thought it went into the spam mail folder as, well, loads of emails do.
Any idea when he will be back?
By the way, Matthew, you should know that someone / quite a few people flagged emails from your (this) domain as spam and it's blacklisted with Google Mail accounts (including Google Apps, etc). I unflagged it, but any mails from this website still somehow goes into there.
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Dear Kelvin:
Checked my spam and junk mail folders and found no emails from your address As I stated in my private message to you try my home email [email protected] Look forward to working with you on this issue.
Oscar
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The only emails that get sent out are the auto-notification emails regarding the discussion forum and the occasional one when people subscribe to our email database. Thanks for letting me know.
kelvin Wrote:
-------------------------------------------------------
>
> By the way, Matthew, you should know that someone
> / quite a few people flagged emails from your
> (this) domain as spam and it's blacklisted with
> Google Mail accounts (including Google Apps, etc).
> I unflagged it, but any mails from this website
> still somehow goes into there.
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Seasons Greetings.
Is the person in charge of updating this thread OK ?
Maverick v. Harper was overturned by the appellate court ten months ago. And the Supreme Court subsequently declined to hear the case.
ABA case summary (http://new.abanet.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=108):
"In an opinion by Judge Clement, the U.S. Court of Appeals for the Fifth Circuit found in favor of the record companies, both by affirming Harper’s guilt and by adjusting her penalty from $200 to $750 for each of the 37 audio files in question. Harper’s liability to the companies therefore totaled $27,750. The Fifth Circuit explained that it did not matter whether Harper knew her conduct was illegal. As long as the record companies provided notice that unauthorized reproduction was a copyright infringement, the subjective state of mind of the defendant does not matter. The Fifth Circuit found that warning labels on the compact discs from which Harper’s files were originally downloaded satisfied this notice requirement. Whether Harper ever saw these compact discs was irrelevant."
Alito dissent (he wanted to hear the case): http://tinyurl.com/34hxvvp
Record companies (who won) and the infringer (who lost) arguments to the Surpreme Court to not hear and to hear the case, respectively (sorry, you may have to google if these URLs don't post properly.).
http://www.scribd.com/doc/32060955/Harper-Petition-for-certiorari
http://www.scribd.com/doc/39440193/Plaintiffs-Opposition-to-petition-for-certiorari-in-Maverick-Recordings-v-Whitney-Harper
Oscar, not only is Maverick not helpful any longer it suggests the following question:
Whether 401(d) precludes the innocent infringer defense when a stock image company places copyright notices on the copies it publishes at its freely accessible web site even if the copies infringed by the defendant had no copyright notice on them.
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"We should all keep an eye on the case anyway to see if the jury award in Tenebaum [sic] will be upheld."
Old news as well.
3x statutory min ($750) = $2250 per infringed work is the maximum award constitutionally allowed given the facts (non-commercial file sharing), according to the Judge. The jury awarded $22,500 per.
(Keep in mind the case involved non-commercial infringement.)
“Weighing all of these considerations,” the judge wrote, “I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive. This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis’ characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply “unprecedented and oppressive.” Capitol Records Inc. v. Thomas, 579 F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot withstand scrutiny under the Due Process Clause.”
“For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.”
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Hi Helpi,
Thanks for the update on Maverick.
More of my uneducated laymen's thoughts:
Of course, the dates of Oscar's posts you're refering to are very old and, I believe, posted before the decisions you cite. However, regarding Maverick, there is still good news, I think in spite of the appeal. The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement. This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think. And remember that the images must have been registered before infringent before statutory damages can be awarded at all.
Personally, I think these companies want us to obsess and worry over the fine points of the law to the point of painting a grim picture in our own minds till we give in and just pay whatever they ask. I, for one, won't do that. For sure, I think that we all need to have a look at the specifics of our own cases and get good qualified legal advice specific to our own cases from a lawyer.
Helpi Wrote:
-------------------------------------------------------
> Seasons Greetings.
>
> Is the person in charge of updating this thread OK
> ?
>
> Maverick v. Harper was overturned by the appellate
> court ten months ago. And the Supreme Court
> subsequently declined to hear the case.
>
> ABA case summary
> (http://new.abanet.org/SCFJI/Lists/New%20Case%20Su
> mmaries/DispForm.aspx?ID=108):
>
> "In an opinion by Judge Clement, the U.S. Court of
> Appeals for the Fifth Circuit found in favor of
> the record companies, both by affirming Harper’s
> guilt and by adjusting her penalty from $200 to
> $750 for each of the 37 audio files in question.
> Harper’s liability to the companies therefore
> totaled $27,750. The Fifth Circuit explained that
> it did not matter whether Harper knew her conduct
> was illegal. As long as the record companies
> provided notice that unauthorized reproduction was
> a copyright infringement, the subjective state of
> mind of the defendant does not matter. The Fifth
> Circuit found that warning labels on the compact
> discs from which Harper’s files were originally
> downloaded satisfied this notice requirement.
> Whether Harper ever saw these compact discs was
> irrelevant."
>
> Alito dissent (he wanted to hear the case):
> http://tinyurl.com/34hxvvp
>
> Record companies (who won) and the infringer (who
> lost) arguments to the Surpreme Court to not hear
> and to hear the case, respectively (sorry, you may
> have to google if these URLs don't post
> properly.).
>
> http://www.scribd.com/doc/32060955/Harper-Petition
> -for-certiorari
>
> http://www.scribd.com/doc/39440193/Plaintiffs-Oppo
> sition-to-petition-for-certiorari-in-Maverick-Reco
> rdings-v-Whitney-Harper
>
> Oscar, not only is Maverick not helpful any longer
> it suggests the following question:
>
> Whether 401(d) precludes the innocent infringer
> defense when a stock image company places
> copyright notices on the copies it publishes at
> its freely accessible web site even if the copies
> infringed by the defendant had no copyright notice
> on them.
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Helpi,
Thanks for the update on Tenenbaum. Even though the case might not be applicable to Getty cases, it was still good to see that some common sense prevailed.
Helpi Wrote:
-------------------------------------------------------
> "We should all keep an eye on the case anyway to
> see if the jury award in Tenebaum will be
> upheld."
>
> Old news as well.
>
> 3x statutory min ($750) = $2250 per infringed work
> is the maximum award constitutionally allowed
> given the facts (non-commercial file sharing),
> according to the Judge. The jury awarded $22,500
> per.
>
> (Keep in mind the case involved non-commercial
> infringement.)
>
> “Weighing all of these considerations,” the
> judge wrote, “I conclude that the jury’s award
> of $675,000 in statutory damages for Tenenbaum’s
> infringement of thirty copyrighted works is
> unconstitutionally excessive. This award is far
> greater than necessary to serve the government’s
> legitimate interests in compensating copyright
> owners and deterring infringement. In fact, it
> bears no meaningful relationship to these
> objectives. To borrow Chief Judge Michael J.
> Davis’ characterization of a smaller statutory
> damages award in an analogous file-sharing case,
> the award here is simply “unprecedented and
> oppressive.” Capitol Records Inc. v. Thomas, 579
> F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot
> withstand scrutiny under the Due Process
> Clause.”
>
> “For the reasons I discuss below, I reduce the
> jury’s award to $2,250 per infringed work, three
> times the statutory minimum, for a total award of
> $67,500. Significantly, this amount is more than I
> might have awarded in my independent judgment. But
> the task of determining the appropriate damages
> award in this case fell to the jury, not the
> Court. I have merely reduced the award to the
> greatest amount that the Constitution will permit
> given the facts of this case.”
-
Helpi:
Thank you for updating those two cases, I did not get the opportunity and my two older posts stayed on. I think copyright notice on the images might certainly help the image companies combat an innocent infringement defense but I do not think you can compare cases involving music as even the below average layman has to know that songs are copyrighted and are not free to use whenever one sees fit. That is not the case with a thumbnail image that appears on a template sight with no copyright notice. Also, the image companies catalogs are very hard to view completely so it is not easy to check a photo for copyright information. So 401(d) I think can be argued against in the digital image arena. Remember that most of the infringers did not remove the image from Getty's site. They got it from some other source
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Lettered, most people probably ignore it unless and until Getty files a lawsuit, right ? And from my reading around here they don't seem to sue much.
I don't think people should be cutting checks to anyone without understanding where they stand. I also recognize the reality that lawyers cost money. And that any real defense of a copyright action (I don't mean a lawyer for a nominal amount sending a letter or two to try to end the matter) will quickly eat up any settlement "savings". The Getty cost-benefit dilemma goes both ways. In addition, for Getty it's just business. When it's you it's personal which is another reason, ideally, you want to dump it on a lawyer.
On Maverick :
"The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement. "
The statutory minimum was the amount the plaintiff requested. So plaintiff got exactly what plaintiff wanted (and with the favorable precedent, more):
Plaintiff asked the Judge to enter an award at min statutory damages of $750 per infringement based on the argument that there were no triable facts regarding the infringement (the liability question) and the plaintiffs only wanted the statutory minimum so there was nothing for a Jury to consider as far as damages (the damages question).
The defendant/infringer argued there was a question for the Jury of whether she was an "innocent infringer" so the court can't award $750 because if the Jury found her to be an "innocent infringer" they had the option of awarding as little as $200/per. This is where it went sour for the defendant.
The plaintiff said, fine, just award $200 per but if defendant appeals the issue of liability then I retain the right to talk about whether she can in fact argue "innocent infringement." So at that point defendant could have paid $200/per and be done. Defendant/Infringer did in fact appeal and raised a number of issues including challenging liabiility on a number of the infringed musical works. The court rejected the liability arguments. The plaintiffs then raised the issue of whether she could present an "innocent infringer" defense to the Jury. The appeals court overturned the trial court on this issue finding that as a matter of law she could not raise the issue. So they upped the award to $750.
So plaintiffs got what they asked for as well as favorable precedent interpreting section 402(d) of the copyright act (which precludes the "innocent infringer" defense from being raised). Not a "technicality" as you call it. That would be more akin to a one-off ruling; neither here nor there as far as future cases. Believe me the next music download case to argue "innocent infringer" and the other side will argue that the "innocent infringer" defense is precluded because the CDs have a copyright notice and the downloader had "access" to the CDs.
If there is any positive for music infringers I would say it is that infringer in this case did not contest that she had "access" to the physical CDs which contained the copyright notice.
The positive in the photo realm ? It's a digital music case. The "published" copies of the work to which you have to have access and that need to contain the copyright notice are on physical CDs. Arguably you can track down the applicable authorized copy -- the CD. How do you track down the authorized copy of the photo ?
"This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think. "
Not an issue in the Maverick case.
"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."
True. Also not an issue in Maverick.
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Oscar wrote: "...as even the below average layman has to know that songs are copyrighted and are not free to use whenever one sees fit. That is not the case with a thumbnail image that appears on a template sight with no copyright notice. "
But the issue wasn't what she knew. It's whether she could even raise the "innocent infringer" defense at all. That was the fight. Pay $200/per or pay $750/per.
As for pointing at the template site with the thumbnails and no copyright notice, you're looking at the wrong copies (according to Maverick). As plaintiff's argued : "The statute’s plain language focuses on access to the “published” work, not on whether the copy of the work a defendant used to conduct her infringing activities bears the notice...The statute, however, expressly defines a “published” work as one that is “published in .....by authority of the copyright owner.” The CDs are the relevant copies. The CDs have copyright notice.
So let's say I'm a photographer and I'm willing to put a copyright notice on my online work (making it ugly) because I want to preclude any innocent infringer arguments. Someone copies my photos w/o permission and photoshops my copyright notice out and then offers it to others. I find the photo online (more realistically, someone more sophisticated finds it for me). I sue the "downstream" infringer. Infringer, of course, says innocent infringement. I point to the only authorized copies (the "published" copies) on my site as having the applicable copyright notice.
I think it safe to say you will tell me I lose. Why?
Because the infringed copies don't have notice (Maverick argues against that) ?
Or because infringer didn't "have access" to the "published" copies ?
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"And remember that the images must have been registered before infringent before statutory damages can be awarded at all."
Lettered, I forgot to add to this comment.
It gets stated so many times on this board people may think what you said is the rule. It's not complete. The actual rule is prior to infringement for unpublished work. For published work you get a three month grace period. So someone can infringe you before you register but so long as you register within three months of your first publication you can get fees and statutory damages. A lot of businesses would be unable to benefit from these remedies (and practically protect their work) without the grace period.
For example, there is currently a fairly well reported ongoing dispute where AFP and Getty, among others, are defendants in a photo infringement suit. AFP lifted photographers photos off TwitPic. The photographer didn't register until weeks later. Photographer satisfies the three month rule as far as seeking statutory damages and fees. The case is not going well for AFP/Getty on the underlying infringement issue either.
Getty so aggressively fighting for copyright owners as plaintiff is putting forth some pretty silly arguments when the shoe is on the other foot.
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" Lettered, most people probably ignore it unless
and until Getty files a lawsuit, right ? "
I'm not sure. If you're talking about completely ignoring, I would probably disagree. If you're talking about just not responding and not seeking legal advice from a lawyer, I'm not sure what percentage of letter recipients would fall into that category.
" . . . Not an issue in the Maverick case. . . "
" . . . True. Also not an issue in Maverick. . ."
Then wouldn't you agree that the issues you raised from Maverick probably aren't applicable to most Getty letter cases? As I understand it, most Getty stock images are neither registered nor have copyright markings.
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" Lettered, I forgot to add to this comment.
It gets stated so many times on this board people
may think what you said is the rule. It's not
complete. The actual rule is prior to infringement
for unpublished work. For published work you get a
three month grace period. So someone can infringe
you before you register but so long as you
register within three months of your first
publication you can get fees and statutory
damages. A lot of businesses would be unable to
benefit from these remedies (and practically
protect their work) without the grace period."
Point taken. So if someone recieves a Getty letter regarding an image published (published by Getty ... not the infringer) less than three months ago, Getty might still be able to get it registered in time. I have to believe that this would be an exceedingly rare case, though.
" Getty so aggressively fighting for copyright
owners as plaintiff is putting forth some pretty
silly arguments when the shoe is on the other
foot. "
Wouldn't it be funny if Getty actually ended up setting a precedent that went against them in their letter campaign? lol
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It was speculation on my part as to the typical response.
"...wouldn't you agree that the issues you raised from Maverick probably aren't applicable to most Getty letter cases?"
I wouldn't want my attorney spending my money on novel 401(d) issues unless and until Getty tries to preclude my innocent infringer defense, assuming I was putting one out there. >:D<
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Helpi Wrote:
-------------------------------------------------------
> It was speculation on my part as to the typical
> response.
>
> "...wouldn't you agree that the issues you raised
> from Maverick probably aren't applicable to most
> Getty letter cases?"
>
> I wouldn't want my attorney spending my money on
> novel 401(d) issues unless and until Getty tries
> to preclude my innocent infringer defense,
> assuming I was putting one out there. >:D<
And, of course, if the image wasn't registered before infringment began (or within 3 months of when the image was originally published by the owner (as you pointed out)), an innocent infringer defence wouldn't even be necessary, right?
By the way, are you a lawyer/paralegal/etc ?
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Yes, probably rare.
"(published by Getty ... not the infringer)"
Yes, by Getty. Incidentally, you can't have publication by an infringer. Publication has its own meaning under the copyright act. And it requires authorization of the copyright owner.
"Wouldn't it be funny if Getty actually ended up setting a precedent that went against them in their letter campaign?"
Very different case I think. AFP/Getty actually sued the photographer for making noise about copyright infringement. He sent a C&D letter and they responded by suing him for, among other things "antagonistic assertion of rights". Which probably would go over big on this forum but made me laugh when I read it. In turn photographer counterclaimed for copyright infringement. They put forth the defense that they have a license to use the photographers photos because of the language in the Twitter and/or TwitPic TOS. Their argument is ridiculous.
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I agree
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Oscar, how about your view on 401(d) as it relates to infringement of online photos ?
Specifically, whether the copyright owner that places a proper copyright notice on her authorized online copies can use 401(d) to preclude the innocent infringer "defense" against online infringers that use an (unauthorized) copy of the photo containing no copyright notice (because the initial infringer removed the notice).
Background for not-Oscar:
You used to have to put a copyright notice on your work to protect it once you "published" it. The US was at odds with most of the rest of the world in this regard. Back in 1989 the US law changed and a copyright notice was no longer required to protect any of the rights of copyright ownership. Obviously Congress did not get the word out to most readers of this board :-) Getty appears to be taking up the challenge.
However, Congress still saw some benefit to the copyright notice and offered a carrot to anyone placing a copyright notice. If you put a copyright notice on the work in the proper place and in the proper form that would preclude anyone from raising the innocent infringer "defense" to mitigate actual or statutory damages.
Now before you say, hey the photo I used had no copyright notice. The Texas case mentioned above involving digital music said that you don't ask whether the infringing copy had a copyright notice. You ask whether the "published" copies had notice. And published copies require authorization by the copyright owner. And if such published copies had notice then you ask whether the infringer had "access" to the published copies. And, if they did, no "innocent infringer" defense may be raised. Here, the court found the infringer had access to the physical CDs which were the "published" copies and which contained the proper copyright notice. So infringer couldn't raise the defense.
So with photographs if you follow the logic of the Texas court you don't ask whether the copy you infringed with had notice. You ask whether the copies "published" by the photographer or it's exclusive licensee (Getty) had copyright notice. And then you ask whether you had "access" to such copies.
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I must be missing something on the homepage.I can' find how to hire Oscar to send a letter
to Getty.
HELP!
Cherie
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It's on the front page:
"You can contact Oscar at his email address: xxx. Or you can call to make an appointment for a free consultation: 516-741-3222."
I have no affiliation with Oscar or this site. And please don't take my posting contact information as any sort of recommendation.
Good luck to you.
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Thank You but I've already sent 2 emails. On this site it says there is
instructions on the homepage. Can't find it.
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Dear cherie:
You can email me at xxx or call my office at 516 741 3222
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What a crock. I am glad I found this web site. May be the next person to contact Oscar! Received the same extortion letter. I did find the offending image and removed. I actually found this image which Getty claims owenership and copyright in the public domain without any reference to copyright. It is an honest mistake - I removed it and notified Getty Legal of such by e-mail. I even replaced it with a new Getty Image with rights properly purchased. They charge $10 for these royalty free images. A far cry from the damages they claim with inflated "settlement demand."
We'll see if the second and third extortion letters show up
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Good luck Vic, keep us posted!