Topics

1

Getty Images Letter Forum / The Internet is a Public Place, is it not?

« on: April 17, 2011, 01:09:56 PM »

Type in the phrase, "the internet is a public place" into google and you get many hits, people saying, the internet is a public place, don't put up anything you don't want people to see, etc...

Google "The Photographer’s Right" and open the PDF file detailing photographers rights.

It makes the statement that photographers in the United States are allowed to take photographs [aka images] anywhere in a public place, with certain restrictions such as military bases, dressing rooms, bathrooms, etc..

If the internet is indeed, a "public place", then when people upload their own images of themselves, or content, does it not become part of the "public place"?    If I create a costume  and walk down the street, as a manner of individual expression, or work of art, can someone take a photo of me?  Have they violated my "copyright"?

I would argue that this topic requires some discussion and debate...  Is the internet a public place, and is such, when you put things into the public place, in a manner that leaves them unprotected (i.e. right click and save, screen shot, etc.), have you surrendered your right to privacy, copyright, etc..

In my mind, there is a difference between contracting with a photographer to take images for your advertising and then refusing to pay the photographer and using those photos in your advertising...  AND, copying an image you see on the internet, that is in public view, for your own use and distribution, providing you aren't "selling that image" or claiming authorship of the original image as your creation.

This hasn't been thought out, but one consequence of these Getty suits may be the loss of our rights in public spaces to take photos/images of what we see.  If I paint my house certain colors to make it pretty, as I have, do I then have a copyright to all images taken of my house?  I do consider it my creation.

Thoughts and dialogue welcome, so that we might progress along this line of thinking...

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Getty Images Letter Forum / copyright litigation strategic opportunities

« on: April 17, 2011, 12:12:04 PM »

Do a google search on the phrase "copyright litigation strategic opportunities" and click on the PDF document or quick view of the sunstein law document.

Page 25 seems particularly suited to these situations, but the entire document is interesting.

has anyone tried seeking a declaratory judgment as soon as they got the demand notice and/or threat of suit?

see See PHC, Inc. v. Pioneer Healthcare, Inc., 75 F.3d 75, 77, 79 (1st Cir. 1996) referenced

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Getty Images Letter Forum / Future Getty Tactic?

« on: April 16, 2011, 11:41:13 PM »

OpenMind Solutions, Inc., is trying to file a class action lawsuit against 2,925 supposed copyright  infringers who downloaded copyrighted adult content off the internet.  Electronic Frontier Foundation is fighting it.

I wonder if Getty is planning something like this, which is why they haven't filed many lawsuits yet, maybe they are planning on filing ONE...

4

Getty Images Letter Forum / Righthaven Cases...

« on: April 16, 2011, 11:28:18 PM »

Wow, it's not just Getty... Righthaven finds copied news articles, purchases the copyright, and then sends extortion letters and files lawsuits...  Electcronic Frontier Foundation attorneys are taking them on...  Has anyone hear spoken to EFF or been following this story?

There's some intersting articles online in the las vegas sun from august 2010, including legal arguments like this one:

Jason Wiley of the Henderson law firm Woods Erickson Whitaker & Maurice LLP argues that the 9th U.S. Circuit Court of Appeals has found "passive" websites don't create sufficient contacts with particular states to warrant jurisdiction by those states.

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Getty Images Letter Forum / Maverick v. Harper and et... RIAA cases? Apply here?

« on: April 16, 2011, 04:43:50 PM »

Such as Electra Entertainment Group v. McDowell?

Innocent infringement.

In Maverick v. Harper, a San Antonio, Texas, a teenager admitted to copyright infringement using the Kazaa song sharing program.

Although admitting copyright infringement, she asserted an innocent infringement defense under 17 USC 504(c)(2), which could reduce the statutory damages to $200 per infringement.

The RIAA argued that defendant could not qualify for 'innocent infringer' status, since CD's of the songs sold in stores have copyright notices.

The Court disagreed, and denied the RIAA's motion for summary judgment unless the RIAA agrees to accept $200 per infringement, because she was using the file sharing program and didn't understand the images were copyrighted.

Are you using cases like these to help?

6

Getty Images Letter Forum / Lisa Willmer letter

« on: April 16, 2011, 04:03:28 PM »

I notice in the Lisa Willmer letter that she refers to reviewing the "circumstances of this particular case", and that once the offender discloses the full extent of use, it tends to me more than they assumed (which is 2-5 years).

Well, what if the website in question only obtained a domain name about a year ago, at which point the web designer began to add content, so it can be shown that usage is only about 1 year, and thus actual charges had the photo been licensed would have been less than $200, the minimum award for actual damages that is likely to be imposed for an unintentional infringement.

Would advising Getty Images of these specific "dated" particulars be to the person's advantage to discourage future harassment or suit?

It seems they assume the worst, double the charges for Pic-Scout, etc., and then demand maximum damages.  If they knew their assumption was baseless, are they less likely to be unreasonable?

Has anyone explained their usage was for less than 1 year, and has it been helpful.

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Getty Images Letter Forum / Has anyone tried sending a check with a release form?

« on: April 15, 2011, 11:34:39 PM »

Something simple, like a letter saying that as have seen no evidence of a proper copyright register for this image, we admit no liability, or wrongdoing in this matter, but we have removed the image in question from our website, immediately upon receipt of your letter, and have, as a show of good faith, enclosed a check in the amount of $100 as full and final payment to resolve your demand peacefully and to ensure a speedy resolution to this matter.

By cashing this check Getty Images, Inc. agrees to release ________ from all claims resulting from any unintended copyright infringement that may have occurred through the use of the image, and agrees to the sum of $100 as full and final payment.

And then write on the check "full and final payment, release from claim" on the check.

Has anyone tried that?  I just wonder what they'd do if they actually had a check in hand, would they return it, tear it up, it would seem foolish on their part to refuse a reasonable settlement when they had it in hand, and could close the case that day, rather than continue to badger and try to negotiate. I would think they would be tempted to cash it.

Thoughts?

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Getty Images Letter Forum / Digital Millenium Copyright Act Agent - Protections?

« on: April 15, 2011, 05:00:23 PM »

Digital Millennium Copyright Act (DMCA) Agent

The DMCA states that “a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”

Does a website owner qualify as a "service provider" if a web designer uploads content that later turns out be claimed by Getty as infringement?

Is it necessary to register a DMCA Agent to be protected by the DMCA, it appears to be?

Can registering an agent after receiving a demand letter, and removing the content in question, help with this process?

excerpt of law:

(1) In general. -  A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

(A)  

(i)  does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii)  in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii)  upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B)  Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C)  upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

(2) Designated agent. - The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A)  the name, address, phone number, and electronic mail address of the agent.

(B)  other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

(3) Elements of notification. -

(A)  To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i)  A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii)  Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii)  Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv)  Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v)  A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi)  A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(B)  

(i)  Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

(ii)  In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

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Getty Images Letter Forum / Watermark Issues

« on: April 15, 2011, 04:41:43 PM »

I have noticed while reviewing Getty's site that it states on photos

"Want an image with no watermark? Please sign in or register."

The image with the watermark is easily downloaded by right-clicking the page.

This suggests Getty makes the image available with the watermark, and presume the public will download this image.

However, it offers the option of an image without a watermark by registering with Getty and purchasing a license to use a watermark-free image.

That's like Sony Music offering low quality sample downloads of popular music on it's website, with a simple right click, and they having an icon that reads, "Want a high quality full-length version of this song?  Please sign in or register."

It suggests that Getty doesn't value it's product very much, at least with the watermark.

Has anyone pursued this line of thinking with regard to their exorbitant claims for unintended use of images now in the Getty catalog?

10

Getty Images Letter Forum / Fair Use Issues

« on: April 15, 2011, 04:34:28 PM »

To what extent does Fair Use apply to Getty Images, speaking hypothetically...

In my friend's case (he really is a friend, it's not me, but this pisses me off), his web designer used an image thought to be public domain, not copyrighted or watermarked, for educational purposes on a section of his website maintained for public education purposes.

For example, if ELI used a picture of a courtroom obtained from the public domain to illustrate what the suit process would look like were Getty to take someone to court.   Does this satisfy Copyright Clause 107, in that:

         1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

EDUCATIONAL HERE

         2. The nature of the copyrighted work

AS YET TO BE DETERMINED, BUT CLAIMED COPYRIGHT AS PART OF A COMPILATION BY GETTY, THOUGH THE COPYRIGHT IS NOT READILY IDENTIFIED, AND THE IMAGE IS GENERIC AS SIMILAR AND/OR NEARLY IDENTICAL IMAGES APPEAR ON GETTY'S SITE AS ROYALTY FREE AND MORE STILL ARE IN THE PUBLIC DOMAIN.  

THIS RAISES THE QUESTION, TO WHAT EXTENT ARE GENERIC IMAGES, OBVIOUSLY DERIVED FROM SIMILAR IMAGES IN CONCEPT, WHILE NOT EXACT DUPLICATIONS, ENFORCEABLE AS COPYRIGHT?

         3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

A SINGLE IMAGE TAKEN FROM PUBLIC DOMAIN BUT CLAIMED TO BE PART OF A COMPILATION REGISTERED BY GETTY

         4. The effect of the use upon the potential market for, or value of, the copyrighted work

THE USE OF THE IMAGE HAD ZERO IMAGE ON THE POTENTIAL MARKET VALUE OF THE COPYRIGHTED WORK, AND THE IMAGE WOULD NEVER HAVE BEEN PURCHASED AS THE WEB DESIGNER SOUGHT OUT ONLY FREE USE PUBLIC DOMAIN IMAGES

THOUGHTS??

11

Getty Images Letter Forum / Unfavorable Court Rulings ?? Getty ??

« on: April 15, 2011, 04:20:23 PM »

A friend of mine recently received a $600 demand letter from Getty for use of an image in the Stone Collection.

#1  Does anyone know if the Stone Collection registered individual authors as required per the Muench ruling?  I have seen where Getty Images has registered a couple Tony Stone collections, but have no way of knowing if the photo my friend used is registered.  His web designer obtained the image from what he believed was the public domain.

# 2  Does anyone know of any unfavorable court rulings, etc., in the US for people using one or two Getty images?

# 3  Has the Michelson letter approach proved any more successful than simply removing the image and ignoring the demand letter?   I ask this to see if any one strategy is more effective at resolving these issues reasonably.

# 4  Is there a statute of limitations after Getty alleges infringement in a demand letter and before they must file suit; in other words, if they haven't sued within 3 years of a demand letter, are they barred from suing?

The only case I have found regarding one image resulting in a judgment against the private party was in the UK, see below:

Getty Images wins £2,000 settlement over unauthorised web use of photo

OUT-LAW News, 10/09/2009

A removals firm has been ordered to pay nearly £2,000 to photographic agency Getty Images for using a copyright-protected photograph on its website. The company had removed the picture when notified by Getty Images but had not paid a requested fee.

JA Coles, of Manchester and London, used a photograph entitled 'Mother with daughter (6-8) looking at each other and smiling' on its website. Getty Images had a contract to market the picture on behalf of its owner, Canadian photographer Larry Williams.

Getty said in its court submission that it had used image tracking technology to detect the unauthorised use of the picture in late 2007. Getty said that it wrote to the company seeking payment for the use of the photograph. The photograph was removed from the site but JA Coles did not reply to Getty Images' letter or pay the fee requested in int.

Getty Images sued in the High Court for copyright infringement. That case has now been settled and JA Coles has admitted that it infringed copyright by using the image and has agreed to pay damages.

The company has agreed to pay £1,953.31 in damages and interest over the use of the picture, plus Getty Images' legal costs.

As well as the commercial rate for the use of the picture, Getty Images had originally claimed compensation for the cost of detecting the infringement; 'insidious damages' it said were caused because such use of its images undermines its ability to be paid in full for all its images and exploit the rights it has; and additional damages once it had more information on the full circumstance of the case.

There is no mention in the short court order issued by the High Court of additional or insidious damages.

Courts will usually award as damages the normal commercial fee that would have been paid by a company to license the image in the first place in such cases and award additional damages only where a company can show that the breach of copyright was flagrant.

Pinsent Masons, the law firm acted for Getty Images in the case.

OUT-LAW News, 17/03/2009