What if the image is being sold on other sites

[Nazar]

Hi everyone. I am relieved that some help is available on these forums which gives me strength that I am not fighting this alone. Thanks everyone for sharing and contributing.

In my case, the single image in question is also available on two other sites for sale. I mentioned this to getty in my response and asked them to show proof of exclusive use. Their reply is posted below:

Quote""Copyright exists the moment a photograph is created and Copyright Registration is not a requirement of copyright ownership.  Getty Images has contracts with its contributing photographers who are the copyright holders. The contributor agreement contains representations and warranties that the contributor is the sole copyright owner. Consequently, Getty Images does not require contributors to provide Getty Images with certificates of registration and leaves the option of copyright registration to the individual photographer.  Due to confidentiality concerns, Getty Images would not provide copies of our contributor contracts at this stage of a claim. 
 
With respect to the unauthorized use of our represented imagery, the burden of proof lies with your company to show licensed use of the images in question.   Copyright exists in an image the moment the work is created, copyright law protects one's intellectual property regardless of registration.  You must obtain the permission of the copyright holder or his designated agent prior to use.  Copyright infringement can occur willfully or accidentally, but copyright law prohibits both.  Although the unauthorized use may have been unintentional, the law may still find the end user liable.
 
Copyright is infringed by anyone who violates the exclusive rights of the copyright holder, such as displaying an image without the copyright holder's permission.  Getty Images is currently only requesting actual damages in settlement of this matter.  Therefore, copyright registrations are irrelevant at this stage""Unquote

I would appreciate your comments and suggestions how to respond.
Thanks -- Nazar

 

[Greg Troy (KeepFighting)]

Welcome to the forums Nazar.  If I was in the situation you have described I would tell them that I will only negotiate if they provide proof of claim and show they have exclusive rights you. 

The burden of proof id on Getty to show you have infringed and that you have not licensed the image from one of the other sites.

There is a lot of good information in the the forums, keep reading and educating yourself and you will see Getty's tactics and then you can decide what response is best for your situation.

Please keep us posted on what you decide to do.

[Robert Krausankas (BuddhaPi)]

The trolls at Getty images living a different society, where one has to prove innocence. Hell even these so called "contracts" have been brought into question, as not being signed by both parties..

[stinger]

They make it all sound very legal, buy Getty is really arguing around the point.  They are telling you what they think will coerce you to pay.

No one should ever have to pay anything without a "proof of claim".  Getty is talking around this issue.  They are trying to get you to incriminate yourself.  Don't be deceived because they try to sound like lawyers.  All cases are lost by one side.  Me thinks they are on the losing side of this one.

[lucia]

With respect to the unauthorized use of our represented imagery, the burden of proof lies with your company to show licensed use of the images in question.   Copyright exists in an image the moment the work is created, copyright law protects one's intellectual property regardless of registration.  You must obtain the permission of the copyright holder or his designated agent prior to use.  Copyright infringement can occur willfully or accidentally, but copyright law prohibits both.  Although the unauthorized use may have been unintentional, the law may still find the end user liable.
 

The difficulty for Getty is they can't sue on behalf of the photographer if they are not an exclusive agent. The photographer may.   

Because the photos are sold elsewhere, the fact is that Getty can't know who has licensed based on their records. You could have a license from one of the other groups.  And even you you don't, you have reason to believe they are not the exclusive agent and so there is no reason to deal with them. You could deal with the photographer.

I'm not quite sure how to word this best, but tell them that you have reason to believe they are not the exclusive agent.  Other licensing venues exist.  As such, the have no reason to suspect any infringement because they should be perfectly aware their records about licensing are incomplete. Maybe you could say you prefer to limit your dealings with whoever does have a right to enforce the copyright, which in this case appears to be the photographer.  Then tell them that if they can show proof of exclusive agency, you will negotiate with them.

 Of course, it's possible the photographer could step forward. If you have violated copyright, the copyright holder does have a right to sue on his own. Or, they may provide proof  they are exclusive agent.  It's just that Getty can't sue unless they are the exclusive agent-- and if the images are being sold elsewhere and they have not been enforcing what they believe is their right as exclusive agent, a court may decree the aren't the exclusive agent.   

[Oscar Michelen]

Nazar - just take the one image down. It does not matter that it was for sale or even free use elsewhere if Getty owns the rights to it. It is highly unlikely you will be sued over a single image so read the forums and get educated on the topics.