Retired Forums > UK Getty Images Letter Forum
Can we just 'bottom line' this ?
DavidVGoliath:
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---There are lots of situations in which it could be legitimately believed that a photo was not subject to a copyright claim (part of a collection buy-out, creative commons, public domain, etc).
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... and the onus is on the defendant to prove their belief the photograph was not subject to copyright, and that such belief was reasonable - and for the Judge to agree with such evidence.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---As I mentioned, I will speak with an IP lawyer to clarify these points for me. I maintain that I find it unreasonable in principle that a scenario of unintentional and trivial use (which is rectified imediately upon notification) would be treated in such a draconian manner. It falls outside of the spirit of the law and into the realm of abuse.
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Consulting with a solicitor or lawyer who has specialist knowledge of copyrights is perhaps the single best step that you could take.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---Having said that, I am about to make available a bunch of my own photos for licensing and I am thrilled at the prospect of so much easy money knowing I can extract such sums for even the most obscure and inconsequential use, regardless of any malice of intent or even awareness, personal gain or provable loss on my part. 'Seems like a wonderful business model.
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Oh, please; do you really think that creators such as artists, musicians, film-makers, writers etc. work at their craft in the hope of someday discovering someone had breached their rights, just so that they can take legal action against them?
If someone offers their work for licensing, it is because they hope to earn an honest income from it. If it's good enough for you to use, then it's also reasonable to expect that you should compensate the rights holder for such use.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---In the Daybrook/ Sheldon case, do we know if they appealed? Did Daybrook just pay up?
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Daybrook did not appeal. They reached an out-of-court agreement with Sheldon on the question of costs and fees, so that they did not have to return to Judge Birss to have him make a ruling on that issue, and when combined with the damages awarded by the Judge, the total sum was in the low five figures. I do not recall the specific amount, but it was somewhere between £15,000 and £20,000.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---I maintain that it's a VERY different matter when the photo in question is so specific, ie a celebrity etc because in such a situation you probably won't have thousands of substantially the same thing available free, it's not like a generic pic of a cactus or something.
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The specificity of the image is why Judge Birss allowed for Sheldon to apply a 20% mark-up above his standard fee, as this accounted for the exclusivity and scarcity of this particular image. The ruling makes repeated mention that the sole consideration under law is what the content creator could have reasonably licensed the image for.
Also, I would advise anyone against arguing that many other images are available for lower or zero cost, as a judge may take a dim view of someone who knew that other options existed.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---Also, in that case it could be argued both that their use resulted in financial gain and / or was 'flagrant' thus section 97 not being applicable.
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Flagrancy, or willfulness, is a secondary consideration under section 97.
--- Quote from: SherylM on August 22, 2014, 06:23:03 PM ---Another big difference about that case is that they used the photo and that point is not in question. With many of the people on here that have received the Getty letter, it is simply picscout finding an image on their server, no proof they ever used it, or for how long, if anyone actually saw it etc.
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... and images do not magically appear on a web server without someone putting them there, whether manually or via an automated process. As we're talking about UK law, there is no equivalent of the DMCA to exempt you from liability for third parties placing content on your server; furthermore, if the content was provided to you by someone subject you your direction (such as a web designer) then unless you have a contract where they agree to indemnify you against such actions, again, you are liable for the result of their actions - and would have to take steps against them to recover any losses.
Additionally, UK copyright law, insofar as establishing whether an infringement occurred, does not concern itself with the extent to which you "profited" from the use of the image - though that may form part of a damages claim if a plaintiff chooses - so questions as to how many people "saw" the image are irrelevant; all a defendant need prove is that you obtained the image without license or permission.
Robert Krausankas (BuddhaPi):
if the image was on a server, obviously it was "copied", and if that image is not in a password protected directory/folder, it's basically publicly facing and is an open target for many bots/ spiders /scrapers /snoopers / fuskers ect..including picscout.
SherylM:
Thanks again DavidVGoliath. I will now close this thread (if I can) as I can see now the answer to my original question 'can we bottom line this' is a resounding no. It's also clear this forum is pretty dead because my post is the first activity in two months.
Regarding your dismissive comment about my (slightly spun in jest) mention of releasing my own stock photos. Of course as artists we all create art ultimately to have it appreciated for its merit and for the joy of creating. But after seeing so much of my music mercilessly ripped off, to the point of making almost no money from it, I find it empowering to see another artistic field I am interested in apparently incredibly, even unfairly, biased in my favour (granted, to an abusive degree with the likes of Getty). So Getty has, in a fashion, empowered me to pursue my photography.
Also, I have to mention, you DO realise this is 'extortionletterinfo.com' ? Shouldn't you be posting on 'youareallguiltyandshouldpaygettynow.com' :)
Robert Krausankas (BuddhaPi):
This forum is largely dead, simply because we don't get may UK users here to post, now where did anyone say you were "guilty", you wanted an easy answer, and there is none.each case is different with different avenues to fight.
SherylM:
--- Quote from: Robert Krausankas (BuddhaPi) on August 23, 2014, 08:57:37 AM ---where did anyone say you were "guilty", you wanted an easy answer, and there is none.each case is different with different avenues to fight.
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Did you not notice the smiley face. :)
Regarding an image being detected on a server. Yes it's true that images do not 'magically appear' but in any other area of law 'theft' has to be demonstrated. For example if someone signs for a package which is a product obtained using a stolen credit card, you cannot simply go arrest the person that signed for it, nor can you go after the person that owns the house it went to. (I know this for a fact as it happened to my store in California, we knew exactly where our stolen item went but the police couldn't do anything).
Similarly, you have the right to keep people off your property and you can rightly claim that anyone that goes on your property is trespassing. But you cannot put bear traps and land mines all around your land because there are situations where trespassing my be innocent.
So gentlemen, we are talking about a usage of the copyright law wherein someone is found 'guilty' by the most obscure of means and requiring almost no proof and then penalised disproportionately. I find that unreasonable and unacceptable.
(and just for sake of argument, it IS very possible for someone to put an image on someone else's server, unlikely yes but entirely possible, there are various ways to gain entry depending on what software they're running and then you can stuff a whole library of images on someone else's server)
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