Unfavorable Court Rulings ?? Getty ??

[Robert Krausankas (BuddhaPi)]

I will say it's comforting that GI will give the whole percentage of the amount, and I also agree thats it's not just offshore people. The problem I have is mainly how they go about it. Last i knew this was the USA where one is innocent until proven guilty, GI seems to think the other way around with the threatening letters, I have myself had issues to deal with as well, but I send a cease and desist first, I have also thought about registering my works so I could have more protections if the CD doesn't do the trick, but it certainly woul;d not be my business model as it appears to be with GI. Just so you know a little about where i'm coming from, GI came at me for an image which I did purchase almost 12 yrs ago. I provided the license to said image, but they also insisted on an invoice..I keep very good records, however I don't have an invoice dating back that far...

So another question for you...whats to stop an artist / photog from working with getty and also selling that image to a smaller image company that is affiliated with getty.. Besides the fact that the getty contract states they can't do this , doesn't mean that it doesn't happen, as you well know there are dishonest people everywhere in just about any business...

so now the image is for sale in two places ( maybe more) who has what rights to do what?? or do they both come after you??..

I also tend to agree it's a double edged sword, there needs to be some way that artist's can better protect their works , whilst at  the same time protecting the users of these images from suits/demands that could potentially put people out of business..

[newzshooter]

To answer your question, of course there is the chance of someone "double dipping". It would be foolish on the photographer's part to do so considering that a company like Getty can afford the best image tracking/recognition software. Chances are, the shooter would get nailed and face a breach of contract suit.
In my own experience, I had a company take an image, place it on their site and basically say "Here, take it, share it, use it." That image appeared on at least 14 other websites, including ones in Asia and eastern Europe. For all intents and purposes, I've lost all control of that image.
I think part of the issue is people have this perception of "innocent until proven guilty", which is a criminal law concept. What we are talking about here is generally a civil matter, which pertains to liability, not guilt or innocence.
Burden of proof is the key, the burden is much lower in civil matters, not the "beyond a reasonable doubt" standard of criminal cases. If there's a copy of the webpage with the infringing content, there's proof. If the image was registered, there's proof of ownership. Now it's up to the infringing party to prove that the infringement was innocent since the law places that burden upon the defendant. If it is a BS argument, a judge or jury will probably see right through it. In this day and age, with all of the information out there about copyright infringement, there really isn't an excuse anymore. I've heard a lot of them, "I got it off of Google and thought it was free", Google has a notice that material may be copyrighted, BTW. My personal favorite, and the one that I've heard the most, "Our intern did it." Yeah, and every high school and college in the country has an internet policy that explains copyright infringement. My second fave is "It's fair use." On a business website? Really?
This is how it goes for me: I find an infringement, I send out a DMCA notice with a cease and desist clause. Then I send out a letter of demand/offer to settle. Usually, there is a bit of negotiating about the amount, which I usually lower a little as a good faith gesture.
If the other party refuses to negotiate, I ramp things up and, if need be, spend the $350 to file a complaint in federal court.
If I have to file suit, the amount goes up sharply. The other party had a chance to settle for a fairly low sum and refused. Now I want statutory damages and what could have been settled for four figures will now probably cost the infringer five figures, plus costs.

[Jerry Witt (mcfilms)]

@Newzshooter -- welcome to ELI. Can you confirm that GI's policy is to equally share any winnings in a court case? Paying the photographer a clean 30% of the court proceeds seems like the fair thing to do. But their demand letters indicate that they incur extra expenses tracking down infringers. I assume this is the extra cost of the PicScout software and their internal administration costs. So I am unclear how they handle this in the very rare cases where there has been a default judgement.

I don't have any stock with GI and what I had with iStock was at a flat rate. So I would not have shared in any court proceedings. I don't know the nature of the GI contact and I wonder if they would be so much more generous with their photographers.

Also, can you share with us some of the cases you have filed and won a five-figure award? I have been scouring the records to find such cases and have not found them.

[Robert Krausankas (BuddhaPi)]

I would think that GI and I-Stocks contractual numbers woulkd be very similiar, as Getty owns them both, and a bunch of others..To bad they didn't Corbis otherwise they may very well have a monopoly, not that it would matter much...

[MikeD]

Newzshooter,

I think you're being foolish if you truly believe that the average Internet user is well versed in copyright laws.  I think for most Americans when they think of copyright violations they think of a musician stealing the hook in a song, such as Vanilla Ice taking Queen's "Under Pressure."  Or a person taking someone else's photo and using it in a poster, such as the Barack Obama Hope poster.  They think it's when someone steals someone else's work and makes money off of it.

However, when a blogger tosses a picture up on their blog that they found in Google images search, I guarantee you most of those people have no idea what they are doing could land them an extortion letter from someone asking an insane amount of money that they probably do not even have.  I get a laugh when you talk about the terms on Google image search, assuming people read those, come on.  

Yes, what they did was wrong. Asking them to remove the image is fair.  But is fair asking someone to pay thousands of dollars for a mistake?  We are in a recession, unemployment is rampant and these extortionist are causing stress and adding financial hardship to people's life, for a mistake, a mistake.

Answer me this, did you ever burn a CD from a friend, ever, even once?  Ever download a song of Napster?  If you did and you're out there asking people to pay thousands of dollars, you're a hypocrite.  Well... unless you went back and paid four digits for a song that you downloaded on Napster, which I'm sure you did.

[newzshooter]

@ mcfilms: The Getty contracts specifically states it will pay the photographer royalties on any settlements it receives through its claims department.
None of my infringement cases have gone to trial, and one settled in the five figure range. There is one current case, which has been filed, and I have solid evidence that the infringement was willful, and the company at fault has received a offer to settle for six figures. No counter offer has yet been received.

@MikeD: On Google images when you click on an image: "This image may be subject to copyright".  Fair warning right there. If you wind upon my page, right clicking brings up a copyright notice and every page has a copyright notice AND the image's exif information contains a copyright notice (For my more "recent" photos after I switched from PhotoPaint to Photoshop. PP stripped exif info for some reason.)
I'm fully and painfully aware of the state of the economy, I purchased a business in 2009, the economy tanked a few months later and I closed the doors a year after I bought it. Lost my a$$, basically everything but my house, and put seven people, not including myself, out of work. Where my photography was a large part of my business before, it is my only income now. So, yeah, I'm going to be a hellion when it comes to commercial infringers.

To be honest, I have never copied a CD, DVD, used Napster or any other file sharing service. I'm not much of a music or movie guy, I prefer visual works. I have recorded VCR tapes (remember those?) and dvr'd shows/movies. All perfectly legal. I have berated my own mother for copying a photo.

As of today, I've found yet another infringement thanks to a contact who sent me a link. It's a start up, but I really like the idea behind the business. A lawsuit would probably kill them, so I'm probably going to offer to take a small percentage in the company instead of a cash settlement.

[SoylentGreen]

Anyone else here getting the feeling that they're glad that they didn't become a photographer?

S.G.

[Robert Krausankas (BuddhaPi)]

Anyone else here getting the feeling that they're glad that they didn't become a photographer?

S.G.

Actually just the opposite, I no longer have to rely on stock image companies. I also highly dount anyone would want to grab my images, being the hack that I am... : )

[Bekka]

Regardless of both views on this issue, because of the unethical tactics being used against "innocent infringers," I have a very bad opinion of photographers and stock photo companies.  I can understand going after "willfull" infringers, but to charge in excess of $5,000 for a generic photograph is ridiculus, unethical, and borders on piracy itself.  I know that I will never use a web designer that purchases or uses stock photo images again.  I will insist the photos being taken by me or the web designer himself.  I will never ever support those that knowingly hurt others by going after small businesses just because the law has not been updated here in the US like it has in other countries to address this kind of problem.  Furthermore, if the situation had been handled differently without the threats, the large amounts of money being asked for, I would not feel this way.  A "cease and desist" letter without threats should be sufficient.  Even if they asked for a reasonable amount to cover all parties, say around $250 would not have left me feeling this way.  But rest assured, there are many like me, and when the dust settles, I feel these tactics will be the downfall of stock photo houses and the overly aggressive photographers that have branched out on their own to make a living off litigation.

[newzshooter]

@ Bekka: Only one of my photographs that have been infringed on could be construed to be "generic".
I ran a search on the one the design company stole. Getty had nothing similar, neither did iStock nor Corbis. A google search brought up nothing similar either. In fact, almost every one of the images I've had infringed could be called extremely rare, at the least, or even one of a kind. I really don't deal in generic.

@S.G. yeah, I didn't realize a law degree was highly recommended in this profession. Good thing I worked in my step-grandfather's law office while in college. He offered to pay my way through law school. I declined, there are enough attorneys in the family already

[Bekka]

Well, the one they are trying to get $5520.00 is very generic... a woman with a note pad wearing a telephone headset.  Most photos I have seen are generic unless they are nature scenes, such as natural disasters as they are happening, or certain sunsets, etc.  Most objects and people photos fall under the generica category.

[Jerry Witt (mcfilms)]

@ Bekka: If your situation is that a third party (web  designer) produced your site and represented to you that all images were licensed or in the public domain, I would suggest that it would be highly unlikely that a stock footage company would successfully pursue a five figure judgement. I have seen threads on this board where GI is demanding over $1000 for a small shot of a handshake or hundreds of dollars for a shot of someone in front of a house. But you are saying they are asking $5520.00 for a very generic of  a woman with a note pad wearing a telephone headset. Equivalent images can be found for prices ranging from $49 down to free.

If I understand your case correctly, and it comes to it, I would be happy to kick in for a legal defense. Meanwhile, you should contact the developer and inquire what he is willing to do. Also, find out what the "going rate" is for these images. I don't subscribe to the "ignore ignore ignore" philosophy some have proposed. I think it is better to either present a compelling argument why they got the wrong person or to make a firm offer to settle for a low fixed amount. You can also push back on them by requesting proof that the image has been registered with the copyright office and proof that they represent the image. They will deny this and say they will only present it in court, which I believe weakens their hand.

I seriously believe a judge would laugh this sort of demand out of court. All it would take is for you to show a dozen examples of similar stock photos with price tags in the $49 to FREE range.

@ newzshooter: It sounds like your situation is VASTLY different from most of what Getty is going after. The stuff they are threatening people over is, by and large, as generic as you can get. A one-of-a-kind or very unique photo can and should command a higher price. And it sounds to me that you have taken multiple precautions to indicate an image belongs to you. You would have a very strong case for a decent settlement. But this is not the same situation most recipients of the Demand Letter are in.

[Bekka]

Sadly, I have not been able to get in touch with the young man that did our site.  The site was done many years ago, and since then we took over maintenance on the site, but had no idea that the images placed there were not legal to use. This very generic photo is "rights managed."  MF did send the registration documentation.  It is one of 33,000 images registered at one time in a compilation according the the number assigned in their catalogue.  It is my understanding from one of our employees that the web designer used foto search to buy his images from, however this image is not on that site now.  I don't think any web designer would pay the price of a rights manged photo as opposed to a royalty free, since he/she is going to pass the image along with the work.  I hate to suggest this, but I wonder sometimes if these companies that are relying so heavily on litigation for their income, aren't putting these images out on "free to use" sites as bait?  If you google search the same image that MF claims is worth $5520.00, it is on 43 other sites at the present, mostly in foreign countries.  These look to be small businesses, so I doubt very much they paid for licenses on rights managed images given the cost and time restrictions.  So, the question is .... how did they come across that image?

[SoylentGreen]

Anyone else here getting the feeling that they're glad that they didn't become a photographer?

S.G.

Actually just the opposite, I no longer have to rely on stock image companies. I also highly dount anyone would want to grab my images, being the hack that I am... : )

You made a great point, buddhapi.  You're right.

My point is that if I was a photographer, I wouldn't have an interest in sending out demand letters to anons on the web.
Certainly, we all must make a living, however the aspect having a "creative" pursuit, but then having to strong-arm people to make a living off of it would be quite a turn-off for me.
Even if you've been infringed upon, you still have to threaten many people, you may become paranoid when a strange car parks in front of your house, you have to pay thousands up-front for a lawyer just to take your case, and you may never even collect a single cent.
Those are just my personal feelings.

Much of this is a symptom of an industry changing.  The high-end "boutique" stock image industry is dying out in favor of cheaper non-rights managed content.
The "boutique" companies are fighting back with the attitude of "you wouldn't buy our expensive shite, so we're taking your money anyway".
That's been working for a while.  But it can't last forever.  Just look at the photos that teenagers take with cheap point-and-shoot cameras.
Let's face it; not every image infringed upon is an original "Ansel Adams" original, no matter how threatening the letters are and how high the demand is.

There will always be a good market for news-worthy photos.  But even that's shrinking.
Many news-worthy photos are taken by anons with cell-phones.

S.G.

[Robert Krausankas (BuddhaPi)]

  If you google search the same image that MF claims is worth $5520.00, it is on 43 other sites at the present, mostly in foreign countries.  These look to be small businesses, so I doubt very much they paid for licenses on rights managed images given the cost and time restrictions.  So, the question is .... how did they come across that image?

even these foreign companies are getting letters, theres is some interesting math here.. I think the number they come up depends on how long the image was used for...so your's is 5520, let just say for giggles that the over 43 site used the image half a long as you did...2500.00 x 43 = $$107500.00 nice potential  payday for one single image, if they all pony up the cash..these companies are making tons of money, all the while closing small business down...and we thought the oil companies were a bunch of douche-bags!

There is another thread somewhere, raising the question of whether some of these images appear on other "free" site and whatnot, and this would not surprise me in the least