RIAA case...held to cost of single license fee

[whythis]

Interesting case where a $1.3M suit was reduced to the single license fee of $4K...

Link

[Jerry Witt (mcfilms)]

Good find!

That is why I think it is important for letter recipients to find out the actual cost of similar images from the micro stock companies. If you offer the $10 or $5 these images cost, it will be refused. But you could always argue that you offered to pay fair market value for the images. If the stock agency tries to claim that the images were actually "worth" $875 (or whatever arbitrary price they are claiming these days) you could require them to show proof that this image is actually selling for that price. I don't think that's happening.

[Oscar Michelen]

This case actually says a lot of good things for Getty victims. Not only does  it say that actual damages are limited to a single license fee, it also talks about how that license fee is determined by the fair market value. So,  in a Getty case, while Getty could introduce its standard license fee, the defendants could introduce what a reasonable price for the image they used would be in the market place.

[lucia]

.. while Getty could introduce its standard license fee, the defendants could introduce what a reasonable price for the image they used would be in the market place.

This is of practical importance.   

In the case of the image infraction they allege on my part, http://www.photoshelter.com/ offers a license to display the identical image on the web at much lower rates than does Getty Images. (Of course, the fact that photoshelter.com-- a Getty Image competitor-- offer licenses at all also raises the question about whether Getty Image really has an enforceable exclusive license with regard to the image.  In my second response to them, I requested they provide me information on copyright and also information about any contract showing they have been granted an exclusive license.  I'm pretty sure Getty is on tenuous footing with respect to the Getty letter they sent to me, but at this point, I'm curious to see if they even have standing to sue! )

[Peeved]

.. while Getty could introduce its standard license fee, the defendants could introduce what a reasonable price for the image they used would be in the market place.

This is of practical importance.   

In the case of the image infraction they allege on my part, http://www.photoshelter.com/ offers a license to display the identical image on the web at much lower rates than does Getty Images. (Of course, the fact that photoshelter.com-- a Getty Image competitor-- offer licenses at all also raises the question about whether Getty Image really has an enforceable exclusive license with regard to the image.  In my second response to them, I requested they provide me information on copyright and also information about any contract showing they have been granted an exclusive license.  I'm pretty sure Getty is on tenuous footing with respect to the Getty letter they sent to me, but at this point, I'm curious to see if they even have standing to sue! )

Pretty sure you will find the same response to that question Lucia:

"The author of a work has the right to transfer his exclusive rights to another party. 17 U.S.C. §101. Those exclusive rights
include the ability to license the material, grant permission for its, use and the ability to make and defend claims. 17 U.S.C.
§106, 106A. The authors of these images are the photographers. Getty Images contractually represents the photographers
who created these images. This representation includes the privilege to license their intellectual property and the
obligation to protect it from unauthorized use. Due to confidentiality concerns, we cannot provide you with copies of our
contributor contracts, nor are we required to provide them prior to formal discovery requests."

My opinion is to tell them that if they cannot or WILL NOT provide this information, that you are pretty much DONE!

[Jerry Witt (mcfilms)]

Well, that's a way to get them off your back...
GETTY: "Due to confidentiality concerns, we cannot provide you with copies of our contributor contracts, nor are we required to provide them prior to formal discovery requests."
YOU: "Okay, and my policy is not to simply give away money. I guess we are done here."

You'd still have to wait out the three year period, in which they could file suit. But that should stop the letters on any collection attempts.

[lucia]

Yes and here we are mcfilms. Let the games begin! Three years..YIPPEE!

Out of curiosity, when does the clock for the three years start? From the time the alleged infraction was initiated (e.g. when an image was first placed on a web site), or from the time Getty Images or the author discovered the alleged infraction?  Or is this one of those things that is hit and miss in different jurisdictiona?

btw..YES we are still receiving letters and are quite certain that the next set will be "escalation" and then either claims or a letter from McCormick or both. This is why this site is so important and has helped us tremendously with regard to knowing what to expect.

Oh... I anticipate another letter. I'm still curious to read how they respond.   

[lucia]

YOU: "Okay, and my policy is not to simply give away money. I guess we are done here."

More to the point: If Getty Images does not have standing to sue, and only the copyright owner has standing, that means Getty's promise not to sue become valueless.    Getty's 'promise' would not bind the owner in this circumstance.  That means that hypothetically, one might pay Getty $875 and still get sued-- by the owner of the copyright!

That's hardly a good deal. 

[Jerry Witt (mcfilms)]

Good point.

[Peeved]

YOU: "Okay, and my policy is not to simply give away money. I guess we are done here."

More to the point: If Getty Images does not have standing to sue, and only the copyright owner has standing, that means Getty's promise not to sue become valueless.    Getty's 'promise' would not bind the owner in this circumstance.  That means that hypothetically, one might pay Getty $875 and still get sued-- by the owner of the copyright!

That's hardly a good deal.

I believe this is exactly the point with regard to the "Advernet" case and a point brought up in Oscar and Matt's latest video:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/new-eli-video-update-for-christmas-eve-2011/

Getty will tell you that "The author of a work has the right to transfer his exclusive rights to another party" but they DON'T tell you whether or not that has actually BEEN DONE hence the main reason they will not disclose "contractual information". As I understand the info in the video, the fact that the "rights to the work" were NOT transferred to Getty in the Advernet case, Getty does NOT have the right to SUE, ONLY THE ACTUAL COPYRIGHT HOLDER. Again, that copyright holder must have those images REGISTERED in order to sue for "statutory damages".

Out of curiosity, when does the clock for the three years start? From the time the alleged infraction was initiated (e.g. when an image was first placed on a web site), or from the time Getty Images or the author discovered the alleged infraction?  Or is this one of those things that is hit and miss in different jurisdictiona?

It is my understanding and someone please correct me if I am wrong, that the clock starts upon actual "discovery" of the alleged infringement. The PROBLEM is that is tough to determine or PROVE since Getty will NOT disclose any DATES and recipients of these letters must ball park it by the date of the first demand letter.

[lucia]

It is my understanding and someone please correct me if I am wrong, that the clock starts upon actual "discovery" of the alleged infringement. The PROBLEM is that is tough to determine or PROVE since Getty will NOT disclose any DATES and recipients of these letters must ball park it by the date of the first demand letter.

I suspect the date of discovery is very shortly before the first demand letter. The demand letter appears to be a form letter. It seems to me very little human effort was involved. So, I'd guess they get something from picscout, assign someone the clerical task of trying to discover an address and send out a letter rather quickly. 

At least from an outsiders point of view, Getty Images does not seem to assign anyone to the task of checking whether the registrations, contracts, dates and relevant evidence to present a disinterested third party are all in order as would be required if they ever went to court. In the Advernet case, it even seemed no one from Getty visited the wayback machine until a week or so before the trial.   If I'm right, there is no point in Getty allowing much time to pass between the date when they get a report from picscout and when they mail a letter. If they don't do much in that time, why wait?

[Robert Krausankas (BuddhaPi)]

Great conversation going in this thread. Something else to consider in the advernet case, is the fact that Getty couldn't even show a contract signed by both parties, this just tells me they are somewhat sloppy in general, so I would also believe they would be sloppy in registrations as well as other areas. the letter senders are all college aged interns with no law background and they are "trained" to follow the script. I'm sure Gi is aware that x nuumber of recipients will just roll over and pay the demand with out asking any questions.

[Peeved]

At least from an outsiders point of view, Getty Images does not seem to assign anyone to the task of checking whether the registrations, contracts, dates and relevant evidence to present a disinterested third party are all in order as would be required if they ever went to court. In the Advernet case, it even seemed no one from Getty visited the wayback machine until a week or so before the trial.   If I'm right, there is no point in Getty allowing much time to pass between the date when they get a report from picscout and when they mail a letter. If they don't do much in that time, why wait?

In our case, I believe there was a 4 month time frame from discovery to demand letter. We had two MAJOR page view counts which we believe but cannot of course prove, were due to Picscout. We believe the second hit was the alleged "discovery" and we received the demand letter four months later. Before sending a demand letter, they first check their records to see if there was a license purchased through them regarding the alleged infringement. Once they discover that no license was purchased through them, they send out the demand letters. So one would have to assume that since they are dealing with THOUSANDS of potential alleged infringers, there is going to be a time frame from the point of "discover" to "researching purchased licenses", to the sending of the demand letters.

As for the remaining time, it is my opinion that there are other things that need be determined. This would include, "What kind of business are we dealing with here?". "Is this a Mom and Pop type place where we can scare them into paying up right away?"
 

[Oscar Michelen]

To be safe, I have been advising people to use the date of the first letter they received from Getty as the start date for the SOL (short for statute of limitation or when Getty will be s**t out of luck in trying to collect on its claim). While it is obvious that they have discovered the infringement at some point prior to the issuance of the letter, the letter date is the date by which even they cannot dispute the clock began to run. As far as the issue of whether Getty would be able to even release you from any future claims if they don't have standing, the answer is they would not be able to do so. What happens in IP lawsuits is that the settlement agreement includes representations that the plaintiff has the exclusive right and then the plaintiff also agrees to indemnify and hold the defendant harmless should someone else come along and sue the defendant after he has settled with the plaintiff. This is standard language and Getty will likely agree to it should you decide to settle with them.. If they don't agree,  don't settle.     

[Peeved]

What happens in IP lawsuits is that the settlement agreement includes representations that the plaintiff has the exclusive right and then the plaintiff also agrees to indemnify and hold the defendant harmless should someone else come along and sue the defendant after he has settled with the plaintiff. This is standard language and Getty will likely agree to it should you decide to settle with them.. If they don't agree,  don't settle.   

This is where there seems to be an issue. How can the plaintiff (Getty) "agree to indemnify and hold the defendant harmless should someone else come along and sue the defendant after he has settled with the plaintiff" if the plaintiff (Getty) does NOT have EXCLUSIVE RIGHTS in the first place?

This is the million dollar question. DOES GETTY HAVE THE EXCLUSIVE RIGHTS TO SUE? Only their CONTRACTS with the "author of the work" which they REFUSE to divulge, will tell! Judging by the "Advernet" case it appears to be UNLIKELY!