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Author Topic: A message from the little guy  (Read 9877 times)

DavidVGoliath

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A message from the little guy
« on: April 12, 2013, 01:41:02 PM »
Here's the deal.

I'm a European based editorial photographer and have been plying my trade for about nine years now, slowly climbing the ranks from a wet-behind-the-ears freelancer, carving out a niche for myself and settling into a niche that I'm comfortable with.

I live in a two bedroom rented apartment with my wife, three children and a dog. Our net income is nowhere quite average, we have modest savings and, all in all, we have a more or less quiet existence.

As a freelancer, I'm quite fortunate that I earn enough from my shooting that I can contribute to my family income in a meaningful manner - although there are the near constant costs of doing business such as insurances, gear maintenance etc., not to mention on-the-job expenses that I sometimes have to wait months to see reimbursement for.

Unfortunately, the subject matter than I cover means that, since 2008, I have seen the amount and frequency of infringements of my photographs climb almost exponentially. Certainly, the technologies to discover unauthorised uses of my shots have become simpler and less costly, so maybe I'm just finding more instances than I used to. Who knows.

The first time I ever enlisted an attorney to take on a copyright infringement case was back in 2010. One of my photos had been used by a major clothing company with annual revenues of well over $150,000,000 per year. They used my photograph as the basis of an online advert that - when clicked - would take viewers to their store where they could purchase apparel.

When I contacted them, they offered me a t-shirt by way of compensation. The actual license fee  that would have been due for the manner they used the shot was a modest four figures (calculated from averaging a few sources for quotes). Upon being told this, they flat-out refused to pay anything more than $50, citing that was the "average" for images on the internet.

At this juncture, our combined family income wasn't great and - to be frank - it was a struggle to make ends meet each month. Some days we'd have next to nothing in the bank the day before pay-day.

This is where the services of contingency fee attorneys are a lifeline. I was able to scrape together the copyright registration fee and navigate the US Copyright Registration process and effected a timely registration (within three months of publishing) of the photograph in question.

Even having the representation of qualified counsel whose specialist area was IP and Copyrights, the clothing company still refused to play ball. Yes, the opening demand was low five figures but, in all honesty, we were talking about a multi-million dollar company that thought they could offer me a t-shirt in return for them creating an advert out of one of my photographs.

Negotiations stalled with their "final" offer of $200 and we knew fine well that we'd need to file a claim with the courts to move forward. It was difficult to scrape together the $350 filing fee and $100 for process service, but we managed it.

Almost the day after filing the complaint with the court, my counsel was contacted by a new attorney representing the defendant and, a couple of weeks later, an out-of-court settlement was reached for low five figures. Yes, a chunk of that went to my attorney but without their help, I'd have gotten nought but a t-shirt (or maybe $50)

Between then and now, I've had my work infringed upon by the likes of Microsoft, Yahoo, Fox, countless "news" websites of all sizes and many others.

I have made a point of almost always attempting a direct dialogue with those whom make use of my work; only one in every five people I contact make any effort to engage with me and take the issue of the infringement seriously.

I've offered settlements for the "lost" license fee (mostly in the range of $75 ~ $150), settlement for a percentage of the license fee where multiple shots have been used... and on about four out of five occasions, I get it all thrown back in my face.

Some have claimed "fair use", some have denied liability, others have flat-out lied as to how and where they sourced my work (I always embed IPTC and EXIF data, and have a particular file naming convention) and, when caught in the lie, they shout "extortion!" and scream that they have no money, no assets and that I will never see a single red cent from them... yet they persist in using the work of others for their own gain as if it were some God-given right.

Others hide behind services like DomainsByProxy - and even all the DMCA takedown notices in the world end up playing out like a perverse game of Whack-A-Mole; I get one image taken down, only for a different one to pop up on the same website some weeks later. They hide behind anonymity and profit from my work - mostly sites set up to scrape RSS feeds and earn a few hundred dollars per month in advertising revenues.

It's tiring. It's frustrating. It leaves me shaking my head that, whilst there are so many people who want to make use of my work, so few of them elect to do so legitimately.

Is it any wonder, then, that I have to turn to the services of contingency fee attorneys so that I might protect my rights, business interests and livelihood? I've seen mention on this site that such attorneys - whom peg their contingency fees as 33% or thereabouts for pre-litigation settlements - are pariahs and extortionists.

Look at it from my perspective; I rarely put a case towards my attorneys where I haven't initiated contact with the person / business whom has used my photograph first. The exceptions to my rule are where the infringer is in the IP business themselves and absolutely should know better - think newspapers, media companies, journalists etc.

About one in five of those contacts results in a direct settlement of the infringement, which is a win for everybody: the 'defendant' has learned about IP laws, I've earned licensing income and not a single lawyer has profited from the exchange.

From the remaining four out of five... maybe two or three of them don't realise that I'm truly serious about protecting my rights until I've gotten an attorney involved. They're notified of my copyright registration certificate number, they're told what the maximum penalties are if it goes to court and it's down to me to decide the opening sum that goes into the demand letter.

Those one or two people then start negotiating and, when a middle ground is reached, a settlement is effected. I always hate going down that road as it results in burnt bridges and sometimes a burning ember of resentment on the part of the defendant... but I content myself that I had exhausted the personal approach prior to this juncture.

And the last person? The remaining 20%?? They fight tooth-and-nail and most often claim that their actions are a "no harm, no foul" situation. They don't seem to consider that maybe, just maybe, in taking my work without licensing it (and using it well outwith the bounds of fair use) they're screwing the little guy.

I'm not Getty Images. I'm not Corbis. Heck, I'm not even a microstock site. I'm a freelance editorial photographer working to provide an income for my family. I do my work because I love taking photographs. I do my work because, in my niche, I'm one of the best in the world... and I've worked hard to get to this point, finding and retaining clients who value my images.

Do you really believe that people that appropriate my photographs are entitled to a free ride? Is it really so reprehensible an idea that, in order to protect the value of my work (not to mention my clients interests) that I might have to resort to the letter of the law... and that my finances mean I have to use a contingency fee legal firm to do so??

Please remember that the provisions of USC 17 exist just as much to protect the little guy like me... that attorneys willing to take on my cases bear all the financial risk because I simply can't afford to.

Robert Krausankas (BuddhaPi)

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Re: A message from the little guy
« Reply #1 on: April 12, 2013, 03:33:20 PM »
Hey! good post and welcome to the forums.. I ( and I think the rest of the community) would totally agree with what you're doing, and yes you certainly deserve to be compensated for your work!.. Most of the cases we see here are are single infringements of mostly mundane "stock" images, that most truly innocently infringe, by grabbing them from google searches or elsewhere.. and most are on personal sites, or site that generate nearly zero dollars.. we're not talking about major corporations like you stated, they should know better to begin with, as they have marketing dept's that should be up to speed, there is simply no excuse for a large company to try to screw the little guy..shame on them!

If Getty and the other stock agencies handled the matter much the way you are none of us would be here in this forum today...Our position is and always has been the "method"  in which these things are handled..

Yes there is the "legal" way, but there is also the "ethical" way..take this scenario for example:

a retired veteran, sets up a small site to collect donated money and cigarettes to distribute to other less fortunate veterans, and he inadvertently uses one of your images on his site..he make NO money from his site, he serves no ads on his site, he's just an old timer trying to help out fellow veterens. Would you open a dialog with him and work something out to satisify both parties?? Judging by your very own post, I'd venture a guess and say you would do just that... Getty images refused to discuss the matter, they only wanted the 1200.00...end of story...this is where we have an issue.

In my case I actually purchased the license for 2 images Getty accused me of swiping, which I even supplied to them..guess what??? they responded with "well anybody could have created this license so pay us".

again thanks for visiting it's nice to see an artist ( i'm also a photographer) come here and be reasonable, as most of them acuse us of being thieves, and having no respect for copyright...nothing is further from the truth..every single user here is a content creator of some sort.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

stinger

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Re: A message from the little guy
« Reply #2 on: April 12, 2013, 03:42:54 PM »
DavidvGoliath, I don't think that most people on this site advocate taking images for free.  What the founders and heavy contributors to this site are against is big companies, like Getty, making a business plan out of using copyright law to scare the bejesus out of little guys.  In today's market, their copyright infringement business model might make more profit than their actual business.

I think most of us would agree to a reasonable payment for unintentional misuse.  If you proceeded to enforce your copyrights in this manner, you would find a lot of support here.

On the other hand, if you were to:
  • take the approach of adding two to three orders of magnitude to what an image otherwise might have cost to license, and
  • only attempt to enforce your copyrights over small firms and individuals and never chase large organizations because you know that you may not have all the rights you claim in your demand letters and will be exposed by large corporations with attorneys who understand the law, and
  • seed the market with copies of your images that look to be "public domain" with no copyright or ownership notices, only to later troll users of those images for exorbitant sums, and
  • incorrectly quote the law and past cases in your extortion letters to attempt to reach a quick settlement, and
  • refuse to prove that you hold the rights you claim in order to enable a settlement.
, you will not be supported here. 

You have chosen a business that has gotten very difficult over the last few years.  Prices on stock photography have come down so low that it is difficult to make money in this business today. 

If you wish to stay in that tough business, and you handle yourself professionally and honorably, you will be supported here.  If you claim the nature of the changes in the marketplace have caused you to act like a troll, you will be exposed for that here.

DavidVGoliath

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Re: A message from the little guy
« Reply #3 on: April 12, 2013, 05:51:27 PM »
Stinger,

Thanks for your response. The five points that you laid out intrigued me, so please allow me to explain how I see the issue.

1. Take the approach of adding two to three orders of magnitude to what an image otherwise might have cost to license.

The problem I often face is that my work is subject to a limited exclusive license at the time it has been infringed upon. Here's an example: I might have a contract with a client to provide them with images from a red-carpet event and, as part of that contract, they are given a 45 day exclusive license to use those images in the US; that covenant means that no matter who comes and asks me for permission to use those pictures (assuming they will be published in North America), I can't do it.

Along comes "Joe Blogger" who appropriates my photograph from my client's site and sticks it on his own website. He's also renamed the file and all my EXIF and IPTC data (embedded in the original on the client's site) have been stripped from the image, and the file winds hosted on his own server.

I notice that he's using a Facebook and Twitter account to link to the story on his site, and his site also solicits advertising and/or is supported by Google adverts or similar.

In such an instance, I'd have a fairly good claim for both a copyright violation and a DMCA violation; the minimum combined damages are $3,250 if proven ($750 for registered image / $2,500 for DMCA)

The question becomes: how long is a piece of string? I can't license the photograph to him, and I personally view his actions as being particularly egregious... so what is a reasonable demand? 1/3 of the minimum that the courts might award?? What if the number of images used by "Joe Blogger" runs into double-digits?? (believe me, that's happened)

2. Only attempt to enforce your copyrights over small firms and individuals and never chase large organizations because you know that you may not have all the rights you claim in your demand letters and will be exposed by large corporations with attorneys who understand the law.

I don't discriminate on company size: in fact, I'm more inclined to pursue firms whom have staff that should be conversant about IP and copyrights - doubly so if they have a legal team. I never start down that path without being absolutely confident in my claims.

3. Seed the market with copies of your images that look to be "public domain" with no copyright or ownership notices, only to later troll users of those images for exorbitant sums.

Doing this would serve me no purpose whatsoever. Consider, though, that it also somewhat runs into the issue of a photograph becoming "orphaned" by the actions of a primary infringer. If entity "A" strips out my EXIF and IPTC data, renames my file and uses it on their site, then entity "B" comes along, copies my photograph from "A'"'s site, crops it, renames it again... you can see how messy this can become.

To my mind, this is why the statutory minimum for a DMCA violation is pegged higher than a copyright infringement... those whom strip copyright information from a file really do create a very large headache for creatives when it comes to protecting our works.

4. Incorrectly quote the law and past cases in your extortion letters to attempt to reach a quick settlement.

I never quote past cases in my own communications as I'm not a lawyer, but I do make people aware of what the potential penalties are. Most people are (quite rightly) unaware of what an infringement claim could wind up costing them. If I'm to offer people an opportunity to settle without referring the matter to an attorney, they need to be informed as to what sticking their heads in the sand might lead to.

5. Refuse to prove that you hold the rights you claim in order to enable a settlement.

This is something I'll never have a problem with: all my work is timely registered with the US Copyright Office and, as such, I can provide the registration certificate numbers which can be cross-checked against the Library of Congress database.

Also, consider this: there are countless websites out there whom profit massively from large scale copyright infringement of photographs. I've ran into sites that have never legitimately licensed a single photograph - ever - yet they're enjoying four, five, six or even seven figure incomes from advertising revenue, usually run by one or two people.

A lot of these sites claim that their revenues only meet or barely exceed their operating costs; as you might imagine, their costs are WAY lower than might otherwise be the case because, instead of correctly licensing photographic works, they simply lift them from other websites and use them for their own purposes.

I was raised in the pre-internet era where if you wanted something that you couldn't afford, you either a) had to do without, or b) steal it and run the risk of being caught and slapped down by the law.

The issue with infringements on the internet is that, up until mid 2011, the risk of being caught infringing on someone's work was quite low... only Getty, Corbis et al. could afford to use technologies like DigiMarc to track and trace uses - otherwise, you had to pretty much have the infringement hit you in the face before you noticed it.

Now? I kid you not... I can shoot an event for a client on a Friday and, come Saturday, I'm probably tracking three dozen websites that have just lifted my work - all thanks to Google. It's somewhat ironic that the very tool that most of these site admins use to pinch my photographs is the same one I can use to track them down.

DavidVGoliath

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Re: A message from the little guy
« Reply #4 on: April 13, 2013, 05:57:14 AM »
Robert,

Thanks for taking the time to respond and welcome me to the forum; it's appreciated.

A few comments in your post stood out to me and I'd like to lend my perspective to them.

Most of the cases we see here are are single infringements of mostly mundane "stock" images, that most truly innocently infringe, by grabbing them from google searches or elsewhere.. and most are on personal sites, or site that generate nearly zero dollars..

Whilst in principle I agree that general ignorance of copyright laws might lead to an instance where someone whom infringes didn't think that what they were doing caused any harm, actual "innocence" might be more vague.

Taking a Google image search as the example: Google's latest revamp of how their image search function works is a boon. Now, when you click on a result, the image becomes centred in a box and the text "images may be subject to copyright" appears in that box.

Frustratingly, the text is small, grey and thus has the potential to be overlooked. I'd far prefer that it be in larger type, possibly in bold and maybe be a hyperlink to page on Google that would give a brief outline of exactly what 'subject to copyright' means. Just my $0.02  :)

Anyway the upshot here is that when someone says they simply grabbed one of my shots from a Google search, their claim of innocence goes down a notch in validity in my mind.

a retired veteran, sets up a small site to collect donated money and cigarettes to distribute to other less fortunate veterans, and he inadvertently uses one of your images on his site..he make NO money from his site, he serves no ads on his site, he's just an old timer trying to help out fellow veterens. Would you open a dialog with him and work something out to satisify both parties?? Judging by your very own post, I'd venture a guess and say you would do just that... Getty images refused to discuss the matter, they only wanted the 1200.00...end of story...this is where we have an issue.

Yes, I'd attempt to open that dialogue with an email that would lay out my position (as described in my initial post); the critical factor in deciding how I continue that dialogue comes in that first response from the infringer.

As I said: most people are blissfully unaware of copyright legislation as their day-to-day lives don't involve intellectual properties or such matters; the first they might become aware that there is an issue is when they're on the wrong end of either a personal or legal demand from a content creator.

Conversely, the content creators whom protect their rights are very conversant in the overall tone of copyright law and, because they are emotionally invested in their work, infringements (for them) are quite often like a red rag to the proverbial bull.

Consider that, in mid 2008, I spent $4,000 in travel, accommodation and general expenses in a six week period to cover three events for one of my clients. The client in question usually settled my invoices in 90 days from date of billing so I was appreciably "in the hole" financially for that period.

You can imagine how I might feel when I discover just days after providing my photographs to my client for use on their website, they're popping up on tens of other sites - unattributed, unlicensed; it's enough to make your blood boil... so it's very difficult to not fire off a hot-blooded, emotionally charged message.

Of course a shot fired in anger cannot be recalled and almost always leads to very entrenched positions on both sides. I no longer view the actual infringements of my work in an emotional light though, believe me, some of the responses I get when reaching out to people have made me want to pull my hair out in frustration. I think I may have a permanently flattened forehead courtesy of my desk ;)

In my case I actually purchased the license for 2 images Getty accused me of swiping, which I even supplied to them..guess what??? they responded with "well anybody could have created this license so pay us".

That's disturbing at best. Obviously there's a lot more to your situation than your summary, so I'm going to take the time to look for your post about your plight.

again thanks for visiting it's nice to see an artist ( i'm also a photographer) come here and be reasonable, as most of them acuse us of being thieves, and having no respect for copyright...nothing is further from the truth..every single user here is a content creator of some sort.

Like I said: it's a very emotive issue for artists and content creators - especially those whose work is repeatedly infringed upon. Personally, I'm all for creating a dialogue and exploring options other than litigation that offer a fair and balanced outcome for all parties. Maybe one day, eh?

Greg Troy (KeepFighting)

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Re: A message from the little guy
« Reply #5 on: April 13, 2013, 09:19:16 AM »
Welcome to the forums DavidvGoliath,

First off thank you for coming on to the forms and sharing your experiences and point of view and I would like to start off by saying I firmly believe that an artist should be compensated for their work and you have every right to collect when your work has been infringed upon.

Having said that let me tell you my experiences and you can see the frustration that exists for the nonwillful infringer. I was well aware that images have copyrights and you could not just taken image from a Google search and stick it on your website or in your blog. I run a small remodeling business in all of the images on my site with the exception of two where my own and of my own work.

I have a blog on my site offering free advice to homeowners on things they can do themselves to maintain their homes to avoid having to pay someone like me to come out to repair them. One blog post was tips on how to make your home more energy efficient in the summer to keep your air-conditioning costs down and I put a humorous picture of a Beagle dog standing in front of an oscillating fan cooling himself. This image was found on a website belonging to someone we will call John Doe. John Doe had several "galleries" with pictures in them, the picture in question was located in a gallery titled "public" . Not only was the image in a public gallery but every image in this gallery had John Doe's name on it with a title leading the person to believe this was his image which he had placed in a public gallery for people to use.

My first indication that this was not John Doe's image was when I received a settlement demand letter from Getty in a style that look like a lawsuit was being prepared against me, telling me I am guilty of copyright infringement and that I must pay $875 within 14 days or this would be escalated. I replied to Getty including screenshots of where and how the image was obtained stating everything appears that the image belongs to John Doe, I had remove the image immediately and I was willing to negotiate with Getty if they had exclusive rights as they claimed but please send me proof of your claim.

Getty said they will not send me any of the information requested and to go to their website and view the image and that is all the proof I need. They also said in their letter they would only provide proof of claim during discovery or in other words when they sue me. In an effort to settle the matter amicably I even had a local IP attorney send Getty a letter letting them know we were willing to negotiate but we just needed the information I had requested and if Getty was not sending it due to confidentiality agreements we would both be willing to sign a confidentiality agreement of our own barring us from disclosing any information sent other than with Getty for the purposes of settlement. Getty reply to this letter saying they would not send the information because it takes extra time and cost extra money to send us the proof and once again telling us they would only provide proof when they sue us.

This is the issue that many of us have with businesses like Getty images using settlement demand letters as a business model rather than truly protecting the rights of artists such as yourself. As business people we both know if you present an invoice to someone and they reasonably ask show me how you arrived at this figure in that I owe you this much we would never tell that person I will only show it to you when I sue you now pay me.

I see by your statements that you do not do this and you gladly provide information requested and try to settle the matter amicably. From what I have read if the image in question had been your image I'm sure we would have reached an agreement easily very quickly.

I am personally not aware of any of the regular participants here on this forum who think they should be able to take images and just use them for free. It is the fact that Getty treats nonwillful infringers so poorly and refuses to listen to anything they say yet continue to demand immediate payment or escalation.

I can also show you where Getty has sent out these letters over public domain images and one case settlement demand letters were sent to a Dan Evans over a picture of Henry David Thoreau taken in 1856. Once Mr. Evans pointed out this image was in public domain and he knew copyright law Getty immediately back down and dismissed the claim. Another case of this and an attorney general complaint was for a picture of an F-16 fighter jet taken from a number fighter jet. Since the picture was taken by a government employee and released it was public domain, again Getty immediately back down and dismissed the claim but how many people have fallen victim to this that do not know copyright law and paid Getty their average settlement demand claim of $1000 per image?

In conclusion I want to thank you again for coming here and sharing your story and I sincerely hope you will stick around and continue to participate. I want to reiterate again I firmly believe that artists intellectual property rights should be protected and they do deserve to be compensated for their work.

Here are links backing up statements I have made above:

Correspondence between Getty and myself

http://www.scribd.com/collections/3777294/Correspondence-with-Getty


Thread whereGetty Images try to claim rights to 1856 Henry David Thoreau picture:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/don't-pay-getty-thank-you-eli/


Attorney general complaint over Getty claiming rights to public domain image of an F-16:

http://www.scribd.com/doc/104557917/Getty-Images-Attorney-General-Complaint-19

Complaints I filed against Getty images with various agencies, Getty's responses in my replies to those responses

http://www.scribd.com/collections/3777301/Complaint-letters-filed-against-Getty-Images
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

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Re: A message from the little guy
« Reply #6 on: April 13, 2013, 10:33:17 AM »
DavidVGoliath, I appreciate your insights and your view points.  I hope that you can understand that what frustrates me and others on this sight is the totality of what goes on with copyright trolls.

I have no problem with your protecting your copyright in a businesslike manner.  But there are too many stories on this sight, like those that Gregg and Robert have outlined for your benefit that are the reason this sight exists.  It is not the majority of photographers like yourself.  It is a few greedy firms and individuals that take advantage of copyright law and our legal system in ways that make the Nigerian oil minister scam look tame.

These are sometimes large firms, like Getty, with connections in the publishing industry and PR departments who try to discredit what this web site does.  Take a good, honest look at the stories on this site over time and you will begin to understand what it is that we are fighting for.

And I hope you stick around to provide your view point.  Unlike negotiators who take an extreem stance in order to compromise back to something better than they originally expected to get, I believe that most of the contributors to this site want change that is fair to all sides.  We don't get enough of your view point here, so please stay and become an active contributor.  You can certainly help draw clear distinctions between honest copyright protection and the troll like behavior of the few.

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Re: A message from the little guy
« Reply #7 on: April 13, 2013, 12:38:58 PM »
Greg, thanks for your welcome - it's a appreciated.

The details of your experience were quite interesting; a few things stood out to me in reading your synopsis, which I'd like to offer some comment on.

I have a blog on my site offering free advice to homeowners on things they can do themselves to maintain their homes to avoid having to pay someone like me to come out to repair them. One blog post was tips on how to make your home more energy efficient in the summer to keep your air-conditioning costs down and I put a humorous picture of a Beagle dog standing in front of an oscillating fan cooling himself. This image was found on a website belonging to someone we will call John Doe. John Doe had several "galleries" with pictures in them, the picture in question was located in a gallery titled "public" . Not only was the image in a public gallery but every image in this gallery had John Doe's name on it with a title leading the person to believe this was his image which he had placed in a public gallery for people to use.

Firstly, let me qualify what I am about to say by stating that I don't doubt your claims or position at all; I'm merely laying out my perspective on what you said happened to you and offering up my opinion.

I've ran into similar issues to yours quite a bit in the last two years: there appears to be a very common misconception that because a photograph can be accessed by anyone i.e. freely / publicly available (especially online), it must be in the public domain.

The facts are quite contrary: an image on a website might have been authored by the person whom runs or operates the site, or they might have obtained permission or license to use the image from the author or their representative, or it may indeed be a public domain image.

In any instance, the correct etiquette (so as to not fall foul of a legal demand) would be to contact the site owner and request permission - in writing - to use the photographs from their site; their response should either be to grant permission or inform you as to where they sourced the photograph from.

In the case of being given permission, you'll have a valid defence against wilful infringement if it ever occurs that they were not the author or rightsholder of the image in question (i.e. they lied to you); retaining a copy of the message will also serve to demonstrate innocent infringement i.e. you had a good faith belief that you were acting within the letter of the law.

In the case of being informed as to the source of the image, you'll have to go through the same steps again. Yes, it's time-consuming and your efforts might be for naught in the end... but lack of such due diligence could land you in hot water under current legislation.

The short version: it's better to get permission in advance than seek forgiveness at a later date. (I'll loop back to this with a example later on)

My first indication that this was not John Doe's image was when I received a settlement demand letter from Getty in a style that look like a lawsuit was being prepared against me, telling me I am guilty of copyright infringement and that I must pay $875 within 14 days or this would be escalated. I replied to Getty including screenshots of where and how the image was obtained stating everything appears that the image belongs to John Doe, I had remove the image immediately and I was willing to negotiate with Getty if they had exclusive rights as they claimed but please send me proof of your claim.

For a moment, let's assume that John Doe had correctly obtained and licensed the photographs in his "public" folder from an agency or image library. In appropriating the photograph from the folder from John Doe's site, you'd have committed a what is commonly referred to as a secondary or downstream infringement. It's a bit like making a copy of a copy - except, in the digital age, there is almost no way to tell which is the original just by looking at them, since the material might not degrade in any way through the copying mechanism (there are some technical exceptions here, but that would stray from the point)

The other possibility is that John Doe himself might not have legitimately acquired permission or license to use the photograph in question himself and, in discovering Doe's use of their photograph, it was just a few short steps for agency/library to find the one that you had used.

Getty said they will not send me any of the information requested and to go to their website and view the image and that is all the proof I need. They also said in their letter they would only provide proof of claim during discovery or in other words when they sue me. In an effort to settle the matter amicably I even had a local IP attorney send Getty a letter letting them know we were willing to negotiate but we just needed the information I had requested and if Getty was not sending it due to confidentiality agreements we would both be willing to sign a confidentiality agreement of our own barring us from disclosing any information sent other than with Getty for the purposes of settlement. Getty reply to this letter saying they would not send the information because it takes extra time and cost extra money to send us the proof and once again telling us they would only provide proof when they sue us.

Yep, this plain part sucks - no argument from me. My experience of certain lawyers is that they operate on an eleventh hour basis i.e. they only prepare and provide information when it is absolutely necessary for them to do so; if they aren't required to provide a copyright registration certificate number until suit is filed, you can be dead certain that some of them will wait right up till that point to do so.

In an ideal world, they'd have all their ducks in a row before they act - and some law firms absolutely require this before they'll even take on a case for you. For others, there are real-world time constraints on obtaining certain information and whilst it would be morally and ethically preferable for them to provide proof of copyrights when requested... yeah, they can drag their heels.

I'll also loop back to this later with some extra information.

I can also show you where Getty has sent out these letters over public domain images and one case settlement demand letters were sent to a Dan Evans over a picture of Henry David Thoreau taken in 1856. Once Mr. Evans pointed out this image was in public domain and he knew copyright law Getty immediately back down and dismissed the claim.

This is very troubling; I'm going to read over the link that you provided about this, thank you.

Another case of this and an attorney general complaint was for a picture of an F-16 fighter jet taken from a number fighter jet. Since the picture was taken by a government employee and released it was public domain, again Getty immediately back down and dismissed the claim

One quick comment: not all pictures taken by US government employees are public domain; even here, there are certain exceptions as outlined at the following

http://en.wikipedia.org/wiki/Copyright_status_of_work_by_the_U.S._government

As an EU citizen, the US Government could theoretically sue me for copyright infringement if I were to make use of one of their "noncopyright" works.  ;)

...but how many people have fallen victim to this that do not know copyright law and paid Getty their average settlement demand claim of $1000 per image?

There's no way of knowing, but what I take away from your comment is this: the issue of copyrights and what you can / should / shouldn't and can't do online needs to be addressed at a very fundamental level, via non-inflammatory discourse and cool, measured reasoning so that nobody falls foul of the law or abuses it.

The latter is very tricky because human nature makes us throw up walls when we feel we've been wronged and, all too quickly, it can become more about emotion than reason. This applies equally to those on the receiving end of a demand as much as those issuing them.

To close off, I wanted to loop back to two issues that I mentioned.

1) I had an incident about a year ago where I discovered a small 'news' website (Site A) using one of my pictures; I reached out to them in the usual manner and was pretty shocked by their reply.

They had actually found my photograph on a different website ("Site B") and requested use of it from them; they actually wound up paying "Site B"  for a license to use my shot - even though "Site B" was not the rightsholder, nor had "Site B" legitimately licensed the photograph from me.

As "Site A" had a particularly strong basis from which to claim innocent infringement, I knew fine well there was no point in brow-beating over a photograph which they really, honestly thought they'd legitimately obtained a license to use. Their claim was amply backed up by documentation that clearly showed "Site B" had not only infringed my rights, but has also engaged in fraud.

It should go without saying that I pretty much went nuclear on "Site B" for their actions and turned them over to my attorney without notice;  wouldn't you know it, they made all sorts of claims of "fair use", that they'd done no wrong etc. in about as belligerent a manner as you could imagine.

Yes, the situation eventually was resolved but believe me, it got very ugly first.

2) I also wanted to loop back to the issue whereby an entity issuing a demand does not provide proof of copyrights when requested. Let's look at how most large photo agencies actually get their photographs in the first place.

a) Staff Photographers

As the name implies, these are salaried staff whom are employed directly by the agencies they work for; because they are employees, the individual photographers do not own the copyrights to the work they create for their employer - the agency does.

b) Contributing Photographers

These are effectively "freelancers" whom take on assignments for agencies and, in return, receive a portion of the image licensing revenue as 'royalty payments'. The agencies do not own the copyrights to these photographs - the photographer does.

c) Stringer Photographers

Think of stringers as being temporary employees of the agency; contributing photographers can sometimes be asked to provide content to an agency as a stringer: they'll receive a fixed payment from the agency in return for furnishing them with the images from the assignment. The benefit to the stringer is that they don't have to wait on royalties to trickle in; the benefit to the agency is that they will then own the copyrights to the photographs which have been supplied.

Now here's where it gets really messy: if the photographer in question ordinarily resides outside the United States, the photographer and/or agency does not have to file a copyright registration application with the US Copyrights Office. Local copyright laws and the Berne Convention afford all the protections they required.

In fact (as I understand it) a non-US photographer / agency could bring a copyright action in the US courts for statutory damages without the need to file a timely registration; they'd still need to file a registration in order to pursue statutory damages, but they wouldn't have needed to file that registration within the otherwise mandatory "three months of publication" period.

I'll freely admit that no attorney that I've spoken to so far has been completely clear on this point as there doesn't appear to be any case precedents - yet. From a personal standpoint, I register my own works with the US Copyrights Office within the "timely" period anyways, chiefly because my key clients are in the US and this the majority of the infringements of my work also occur in the US.

So: as if the waters weren't muddy enough - a demand letter from Getty (or similar) might originate from one of their non-US offices, and the photographer in question could have been staff, a stringer  or a contributing photographer.

As much as it's unlikely to be the latter (as it normally would be the contributing photographer's responsibility to pursue the infringement),

In any case, the party would need to use a US based firm to bring an action in the courts, so they're also likely to use the same US firm to issue the demand. I can easily conceive of a situation where Getty's EMEA office relays an infringement to their Seattle office for action.. and thus there might not be any registration certificate in existence at the time of the demand being issued.

For them do to so would not be in breach of any laws as the Berne Convention cites that formal registration of copyright is not required to enjoy its protections.

Like I said: this makes the waters very muddy and not one attorney has been able to offer me a definitive answer on the points above.

DavidVGoliath

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Re: A message from the little guy
« Reply #8 on: April 13, 2013, 02:09:24 PM »
Greg,

I've done a quick bit of research regarding the following

Quote from: Greg Troy (KeepFighting)
Attorney general complaint over Getty claiming rights to public domain image of an F-16:

http://www.scribd.com/doc/104557917/Getty-Images-Attorney-General-Complaint-19

As the document on scribd.com does not contain any reference to exactly what image Mr. Conachen received a demand over, I performed a very quick web search to see what photographs Getty had in their collections that showed pilots in F16 Fighters.

My search yielded both the following blog post

http://blog.gettyimages.com/2012/02/24/photographer-flies-with-f-16s-usaf-to-create-powerful-imagery-with-video/#.UWmbwLWG3Tp

.... and also the related set of photographs on Getty's site.

http://www.gettyimages.co.uk/search/2/image?family=creative&license=rm&phrase=+107881659+or+107881657+or+107881655+or+107881654+or+107881653+or+107881647+or+83165336+or+107881646+or+107881643+or+107881639+or+107881638+or+107741389+or+106002641+or+106002640+or+106002637&isource=usa_ittakesmore_airforce#1

You'll note that the photographer, Tyler Stableford, is not a US government employee and appears to be a freelance editorial and stock photographer. It is highly likely that it took considerable time, effort and expense on his part to get the required access to fly with the USAF and capture the photographs he did.

Whilst the specifics of the copyright ownership of these photographs is not clear, it would be safe to say that his photographs are not US Government Works and therefore also not public domain.

If Mr. Conachen's complaints to the Atty. G were related to any of the photographs that Tyler shot, then it was very much in error.

Like I said: I'm working blind here with the only information to go on being that Tyler's photographs were shot some time in 2011, and Mr. Conachen's complaint was filed in January of 2012.

Greg Troy (KeepFighting)

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Re: A message from the little guy
« Reply #9 on: April 13, 2013, 07:55:22 PM »
DavidVGoliath

Quote
Greg, thanks for your welcome - it's a appreciated.

You are very welcome.

Quote
I've ran into similar issues to yours quite a bit in the last two years: there appears to be a very common misconception that because a photograph can be accessed by anyone i.e. freely / publicly available (especially online), it must be in the public domain.

The facts are quite contrary: an image on a website might have been authored by the person whom runs or operates the site, or they might have obtained permission or license to use the image from the author or their representative, or it may indeed be a public domain image.

In any instance, the correct etiquette (so as to not fall foul of a legal demand) would be to contact the site owner and request permission - in writing - to use the photographs from their site; their response should either be to grant permission or inform you as to where they sourced the photograph from.

In the case of being given permission, you'll have a valid defence against wilful infringement if it ever occurs that they were not the author or rightsholder of the image in question (i.e. they lied to you); retaining a copy of the message will also serve to demonstrate innocent infringement i.e. you had a good faith belief that you were acting within the letter of the law.

I can't argue with any of that and if I knew then what I know now it would never have happened but unfortunately most people are not aware of the ins and outs of copyright law or any copyright law.  I now only use my own images as I trust nothing else.

Quote
Yep, this plain part sucks - no argument from me. My experience of certain lawyers is that they operate on an eleventh hour basis i.e. they only prepare and provide information when it is absolutely necessary for them to do so; if they aren't required to provide a copyright registration certificate number until suit is filed, you can be dead certain that some of them will wait right up till that point to do so.

In an ideal world, they'd have all their ducks in a row before they act - and some law firms absolutely require this before they'll even take on a case for you. For others, there are real-world time constraints on obtaining certain information and whilst it would be morally and ethically preferable for them to provide proof of copyrights when requested... yeah, they can drag their heels.

If the image is not registered they need to say that, but again they are presenting me with an invoice and refusing to show me they have the exclusive rights or any rights they claim especially when it has been shown in court Getty may not have the rights they claim.  Again, if Getty would have conducted their negotiations as you say you conduct yours we would have reached an agreement very quickly. Telling someone you will pay me this amount based on my word you owe it to me or I will sue you, I will give you nothing to show the validity of my claim and if you don't pay me now I will stick it to you in court for much much more is not the way to reach out to someone.


Quote
There's no way of knowing, but what I take away from your comment is this: the issue of copyrights and what you can / should / shouldn't and can't do online needs to be addressed at a very fundamental level, via non-inflammatory discourse and cool, measured reasoning so that nobody falls foul of the law or abuses it.

You are correct and I am enjoying having this discussion with you.  I agree that these issues need to be addressed and I also feel the law needs to be updated to reflect the modern internet.

Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

--Greg Troy

Mulligan

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Re: A message from the little guy
« Reply #10 on: April 16, 2013, 10:38:31 AM »
DVG, as a professional writer whose copyrighted work is being used without permission on literally hundreds (if not thousands) of websites, I have two questions for you:

1) What percentage of your working time each day do you spend tracking down copyright offenders?

2) What percentage of your overall income materializes from these contacts?

Reading what you've posted so far gives me the impression that I should be following your model and spending a good part of my time each day contacting offenders and then negotiating fair settlements.

Lord knows, negotiating settlements would be a lot easier than creating new copy.
 

crazycatlady

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Re: A message from the little guy
« Reply #11 on: April 16, 2013, 11:54:49 AM »
You too, Mulligan? I'm also a professional writer and photographer. Last week alone I spent hours chasing down the web host info for a DMCA. A scraper site grabbed an article of mine along with four photos to which I own the copyrights. This is starting to get to be a weekly activity, and my time could be better spent. 
« Last Edit: April 16, 2013, 02:06:38 PM by crazycatlady »

lucia

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Re: A message from the little guy
« Reply #12 on: April 18, 2013, 02:24:56 PM »
Reading what you've posted so far gives me the impression that I should be following your model and spending a good part of my time each day contacting offenders and then negotiating fair settlements.
Oddly, I get the opposite impression.  My impression is that DavidVGolliath probably takes fairly time sensitive photos either in the 'celebrity' or 'fashion' areas. In these areas, publishers and advertisers often do want fresh copies and they want exclusivity. Even bloggers who swipe the photos often want very specific photos-- not just "knobby knees of man on ladder".   Taking good, clear commercially desirable photos in these instances is a skill-- and it's not replaced by Getty's  batch of Flickr contributors who upload their images -- which as attractive as they sometimes are -- are quite often fungible commodities.

It's actually quite interesting to see many of the difference between the DavidVGolliath situation and Getty. For example:

DavidVGolliath says he routinely registered each photo.  Getty asks for large sums for photos whose value is sufficiently dubious that almost none in the entire collection are properly registered. (For example: in the case of the letter they sent me, it seems the image was not registered properly and possibly not at all.)

DavidVGolliath does sue and even for 1 photo and evidently gets settlements in those cases; it sounds like his rate of suing and getting settlements vs. approaching people is fairly high. Getty rarely sues and rarely for individual photos. 

DavidVGolliath is dealing with his own photos. So there is no question he has a right to press the claim. Getty has been sufficiently sloppy in dealing with paper work or overseeing contractual obligations that it's not clear they even have a legal right to press a claim. (For example: in the case of the letter they sent me, the copyright owner who was the heir to the photographer was offering the image as a free download for personal use on her own site. Getty doesn't monitor for these uses. )

DavidVGolliath says he makes sure he has a claim. If so, that's different from Getty. In the case of the letter Getty sent me, my use does not violate US copyright law as ruled by the 9th circuit court in Amazon v. Perfect 10.  So there would be no claim even if the copyright owner had registered the image and even if Getty had a valid exclusive l icence.

And on top of that: it was a tiny, tiny thumbnail of a photograph of a cardinal on a branch hotlinked into a comment deep down on a web page. (Someone in the UK wanted to know what a cardinal looked like-- so I posted an image link). The photo was charming-- as are hundreds of other lovely images of cardinals sitting on branches that appear all over the place. But the commercial value of this image to the photographer's heir was indisputably small. This fact likely contributed to her decision to offer it as a free download at her own site. Yet Getty was asking $800.

So the fact is: It is entirely possible for some photographers to deserve large amounts of money for the some photos and at the same time Getty's behavior to represent extortionate demands for payment.  Often, you can tell the difference when you see the examples of photos and hear the background.

stinger

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Re: A message from the little guy
« Reply #13 on: April 18, 2013, 02:31:15 PM »
Well put, Lucia.

DavidVGoliath

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Re: A message from the little guy
« Reply #14 on: April 18, 2013, 05:24:59 PM »
Quote from: Mulligan
DVG, as a professional writer whose copyrighted work is being used without permission on literally hundreds (if not thousands) of websites, I have two questions for you:

1) What percentage of your working time each day do you spend tracking down copyright offenders?

I look out for infringements as a matter of routine in order to protect both the value of my images and also any exclusivity that I have afforded my client.

Widespread infringements dilute the value of my imagery and have the potential to reduce the fees that I can charge clients when supplying images to them and/or shooting on assignment for them.

Whilst copyright law is different from trademark law (i.e. I don't have to actively enforce my copyrights to enjoy their protection) it's a matter of good business sense to ensure that - as much as is humanly possible - only legitimate licensees use my work.

Quote from: Mulligan
2) What percentage of your overall income materializes from these contacts?

Not as much as you might think - certainly the effort involved in tracking infringements, contacting those responsible and attempting to open a dialogue with them is far more time-consuming than it would have been for them to correctly license the photograph(s) from me in the first place... assuming, of course, I haven't granted limited time/territorial exclusivity to a client, making them unavailable for licensing no matter the fee offered  ;)

Quote from: Mulligan
Reading what you've posted so far gives me the impression that I should be following your model and spending a good part of my time each day contacting offenders and then negotiating fair settlements.

If you value the time and effort it takes to create your work then yes: you should actively protect your self-interests.

Quote from: Mulligan
Lord knows, negotiating settlements would be a lot easier than creating new copy.

Nothing could be further from the truth than this statement: I'd far prefer to be out shooting and have my work either legitimately licensed by those whom wish to make use of it, of for them to not use it at all.

Policing the use of my images is a tiring and sometimes nearly soul-destroying endeavour; it's unbelievably frustrating to again and again encounter instances where people are quite happy to use my photographs when it doesn't cost them a dime but, the second I expect to be compensated for said use, I'm the villain?

 

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