Messages

1

Getty Images Letter Forum / Re: Just got my letter - I'm a fighter

« on: August 03, 2011, 03:32:17 PM »

"The strikethrough was a result of your accidentally triggering the markup code within your post. I removed the offending code."

Thank you.

And I was not being facetious at all with my comment.

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Getty Images Letter Forum / Re: $9,000 for 1 image! Photo Attorney Extortion Letter by Carolyn Wright's law firm

« on: August 03, 2011, 02:42:34 AM »

"Let's break that down. The original photographer was very famous. The subject was Miles Davis AND the case never went to court. Frankly, the content that Getty claims to exclusively represent has no where near that value."

I agree that every case is different. Different facts, values, etc...  But I don't know what inference you draw from the fact that it never went to court (I assume you mean to trial). Almost no cases go to trial. One could infer strong pressure to settle with statutory damages and possible recovery of atty fees hanging over your head and, at best, an uncertain defense.

"For those not familiar with that situation:"

Thanks for the detail. I'm only casually aware of it, viewed the image and thought derivative work. We don't need to debate fair use especially because I haven't heard it raised in the context of most of the situations discussed here and because it often involves a one-off and you can't draw any grand conclusion.  There are better sites for that analysis anyway. I do note the thugs that apparently messed up his building. Disgusting. That's supposed to garner popular support ? What's next, maybe fly a plane into his building. Anyway, his lawyers obviously were not pleased with the risk/reward calculation and advised a settlement. It's sort of a common song the "I could have won on fair use but it's too expensive to try." I suppose if Congress wanted to paint bright lines on what is fair use they could but instead they have always punted to the courts.

"Again, ironically, the photographer in the subject of this thread DID affix a copyright notice to the picture and apparently it was removed and used to promote a marathon."

There are advantages to using the notice. I think photos display better without it. And it is about looks when we're talking about photos.

"I doubt he would be awarded $9000.00 for this image. However a verdict might be rendered in his favor and the defendant would be liable for all court costs. I can almost guarantee that this will settle out of court."

It isn't the court costs that will kill you it's the attorney fees. Yes, one would expect it to settle.

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Getty Images Letter Forum / Re: Just got my letter - I'm a fighter

« on: August 03, 2011, 02:15:51 AM »

I've no idea why certain sentences just posted with a strikethrough.

4

Getty Images Letter Forum / Re: Just got my letter - I'm a fighter

« on: August 03, 2011, 02:15:12 AM »

"Either you are intentionally being vague or I just don't get you."

Different audiences, different delivery. Don't construe it as being vague. I assure you Oscar is familiar with the relevant statute. And I was being snarky. As in he wants to recite copyright 101, at least be accurate.

In any event, section 504 of The Copyright Act provides for statutory damages, "except as otherwise provide in this title."  The otherwise provided in this title is contained in section 412 which limits statutory damages to registrations made within certain time limits:

Section 412, in part:

"...no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

There is a grace period of three months in the case of published work.

The definition of "publication" doesn't address online display.

The Copyright Office position to "asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published."

http://www.copyright.gov/fls/fl107.html

Your welcome.

And I'm starting to think it not only not strange that Oscar declines to go into copyright law but understand why.

I'm remarkably starting to come around to Matt's view. Cheer people on, collect any and all arguments (without attempting to correct any misstatements or making any fine distinctions among cases) and direct people to see a lawyer if you have an actual letter you are concerned about.

5

Getty Images Letter Forum / Re: Photographer responded to my email ....

« on: August 02, 2011, 03:55:51 PM »

the rest of the words were : POSSIBLY rely on anything I post. In fact, repeatedly I've said I can't speak to any particular case. Even if I wanted to, which I don't, how can anyone possibly do so without speaking to the person directly and getting all relevant docs so they can review them. I know you can't be on the level. No, nothing I post here should ever be construed as legal advice in case after N posts it's still not perfectly apparent to you.

You more than most must see an attorney competent to handle your case and your many questions.  Make sure they provide you a stamped, certificate of good standing with the bar because there is no way someone like you will sleep at night merely viewing a diploma. After all, it is possible they failed the bar or perhap they were subsequently disbarred but are still soliciting clients. They fabricated the diploma. Any number of wild scenarios. Think about it. It's a scary world. No one would ever try to assist someone. Someone is always out to get you.

Matt, the "fuck off" isn't a problem in this board. Oscar, this is the type of board you want representing your law firm ?

Please moderate it. Keep it civil. You'll not only lose posters but I'm telling you other people will read the board (posters and not posters) and not come away with a very positive view.

6

Getty Images Letter Forum / Re: Photographer responded to my email ....

« on: August 02, 2011, 03:45:25 PM »

Opps. Hit enter or something. I no way, shape or form did I intend to right F.U.
rest of post to follow

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Getty Images Letter Forum / Re: Photographer responded to my email ....

« on: August 02, 2011, 03:44:43 PM »

"A transfer of copyright ownership can be an exclusive license.  In some cases."

That's an odd way to state it. But, yes.

"An exclusive license doesn't necessarily include a transfer of copyright ownership."

That statement is legally gibberish. I can't go into why. I refer you to another lawyer you trust.

"An exclusive license can be any document that provides "exclusivity" in some area of business."

??

"As you can see from "grafiti"'s post, Getty doesn't own the copyright, although the photographer has an exclusive agreement to only sell through Getty's channels.
Unless you're saying that "grafiti"'s lying, and the photographer is lying."

You can't make any of these "determinations" without examining the relevant documentation. This is the last time (I don't think the point gets stronger with repetition) I'll make that point to you. My understanding is that in almost no case does a photographer ever assign the copyright. Which doesn't answer whether Getty has standing. Am I really engaging in a back and forth discussion of standing with you. I must have my head examined.

Are you really an attorney?

Asked and answered. Coincidentally (or not) went to law school with one of the Profs at NY Law.

Or are you trying to tell the readers here that Getty has copyright standing no matter what?

That is the nth time you have misstated my views. I don't wish to engage in personal attacks but are you for real?

"If you are an attorney, you should be putting some sort of disclaimer in your posts that you're not giving specific legal advice and that a posting to the author in a thread doesn't constitute an attorney-client relationship.  Guess you missed the ethics course at the Correspondence Law School."

I've stated that N times as well. But up is down to you. Left is right. EVERY POST IS FOR DISCUSSION PURPOSES ONLY. NO ONE SHOULD POSSIBLY

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Getty Images Letter Forum / Re: Is is smart to contact the photographer about letters?

« on: August 02, 2011, 03:34:56 PM »

"please respect each other. If you do not agree, just say that you do not agree and explain why, and that's it"

Amen.

Matt, what's up with the forum policies anyway ? I thought personal attacks are to be discouraged.

9

Getty Images Letter Forum / Re: Just got my letter - I'm a fighter

« on: August 02, 2011, 03:26:56 PM »

"None of what you just said proves that everthing that Getty has is copyrighted."

I got it now. If I say you can't know something without seeing the relevant document that means you can know without seeing it. If I say get a lawyer, it means don't. If I say no one should take a settlement demand's assertions at face value because your own lawyer should evaluate them it means take them at face value and don't seek legal advice. And if I say I am a lawyer, it means I'm not.

I decline to play with you further.

Regards.

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Getty Images Letter Forum / Re: Beware of some individual(s) posting a "Attorneys" and "Lawyers" in this forum

« on: August 02, 2011, 03:15:42 PM »

"As far as I can tell,"

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Getty Images Letter Forum / Re: Photographer responded to my email ....

« on: August 02, 2011, 08:31:32 AM »

SG,

"(there was some person making noises about this very issue on the forum)."

Better to refer you to the relevant statutory provisions. You probably won't follow them but I think at this point it's enough from me.

The sections work together, like much of the Copyright Act

Copyright Act  ( http://www.copyright.gov/title17/ )

From Section 101:

A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.


201(d)(2), in part

"...The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title."

Section 501(b), in part:

"(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411 [Registration], to institute an action for any infringement of that particular right committed while he or she is the owner of it."

Ergo, if Getty has an exclusive license (and the photog didn't hold back the right to sue) Getty would have standing to sue to the extent of the license.

And I hear you that they pressure you (like anyone making a settlement demand) that they have a really strong case. But please stop making noises like I've ever suggested anyone take claims in a settlement demand letter at face value instead of running it by their lawyer.  This is about the fourth time I've asked you to please stop misstating my views. 

I'm going to retire from the standing issue at this point. It's been beaten to death.

12

Getty Images Letter Forum / Re: Is is smart to contact the photographer about letters?

« on: August 02, 2011, 08:13:03 AM »

SG,

It wasn't addressed to you.

Please stop attributing remarks to me I never said.

""If you feel that Getty has exclusive rights in every single instance, that's your opinion."
"in order to advise readers of the forum to pay Getty without questioning anything."

13

Getty Images Letter Forum / Re: Just got my letter - I'm a fighter

« on: August 02, 2011, 06:46:41 AM »

Oscar: "Helpi - you only get atty's fees if the work was registered prior to infringement:"

Me: "Actually that is only the rule for unpublished work, you have a 3 month grace period from first publication for published work."

And I pretend he doesn't know basic copyright law when of course I know he does.

Will that improve the quality of the discussion if we each talk down to each other ?

14

Getty Images Letter Forum / Re: $9,000 for 1 image! Photo Attorney Extortion Letter by Carolyn Wright's law firm

« on: August 02, 2011, 06:32:00 AM »

"a photographer-lawyer copyright troll seeking NINE THOUSAND DOLLARS for a single image."

I won't repeat my earlier points about this. Usually settlements are not made public. Recently Jay Maisel (who's a famous photographer) settled for $32,500 for use of one image. Google it.

"they would be proactive about watermarking images, providing proof of registration and presenting a reasonable settlement offer."

No obligation to watermark. It makes the images ugly and it hasn't been legally required for copyright protection in the US since the US went along with the rest of the world when it signed the Berne Convention. (There are still good reasons to put a copyright notice on your work but its a choice to be made by the copyright owner not the infringer). They are under no obligation to lay out their case in a settlement letter (if they don't provide proof of registration after they file suit you can have the claim dismissed. They can refile when and if they register.) Reasonable settlement offers are in the mind of the beholder.

Good morning.

15

Getty Images Letter Forum / Re: Is is smart to contact the photographer about letters?

« on: August 01, 2011, 10:45:16 AM »

"just trying to clarify here. i understand assigning the exclusive right to license, but the exclusive right to enforce? does that mean that the photog assign his copyright to Getty? if so, tnat would mean Getty owns the copyright the images? or are you saying that Getty will try and proceed with enforcement, but at the point of filing suite, it would be actually be the photog filing suite against you?"

(1)  "copyright" is not a single right.  It is a collection rights. And the rights may be carved up and subdivided as to time and place. For example, you can transfer the right to display on the web for 1 year. You would retain the remainder of the right to public display as well as the rest of the exclusive rights of a copyright owner.

(2) You can't assign the right to sue by itself. By statute, the right to sue attaches solely to a copyright owner. 

(3) An assignment of one or more of the exclusive rights of a copyright owner is a transfer of copyright ownership.

(4) An exclusive license is also a transfer of copyright ownership. This may be tripping you up.

(5) It follows from (4) that an exclusive licensee has the right to sue to the extent of the exclusive license. Following the example, the exclusive licensee would have the right to sue you if you displayed the image on the web during the relevant one year period of their license. If you infringed any other right they would not have the right to sue you.

(6) So, Getty if it has an exclusive license (and no other agreement carving out the right to sue from the license or control litigation) would be the one that could sue you. Not the photographer. 

(7) Note the use of the word exclusive. A non-exclusive licensee does not have the right to sue.