Messages

106

Hawaiian Letters & Lawsuits Forum / Re: Hawaiian Artwork, LLC Files Lawsuit!

« on: May 09, 2012, 07:52:54 AM »

My understanding is exactly as you laid it out, SoyentGreen.  In fact, I wonder if an attorney could get in trouble (complaints to bar assn., lawsuits, etc) if it were found that they were threatening victims with things they know aren't allowed by statute.  It seems at least waaaaay over the line of common decency and ethics to me.  I hope that someone finds a way to hold these people accountable one day.

Smitty,

In the US, the image must be registered prior to the alleged infringement in order to collect "statutory damages".

However, if the alleged infringement occurs within 90 days of the first publication date of the image in question, the legal owner may register it and would be able to collect statutory damages in that particular case.

"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."

http://www.benedict.com/Info/Law/Why.aspx

Given your situation, it appears that they could only seek the fair retail price of the image for the time of use, going back to a maximum of three years from the date that you removed the image from your site.

Hardly worth suing over, if you ask me.

S.G.

107

Getty Images Letter Forum / Re: Notification of Case Escalation

« on: May 08, 2012, 02:13:38 PM »

I guess in this instance the issue of "fair use" is moot as I cannot provide the original artist's information, and GI probably will not provide any ownership info. If the GI picture is infringing on someone elses copyright, im sure they will not provide anything. I understand I can ask for ownership information as a delay tactic, But this may not be the best strategy.
What opinions are there about writing a letter stating the website listed on the demand letter is not owned or operated by my brother's company and leave it at that?

personally I really like timtime's approach shown here:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/my-proposed-getty-letter-response-and-settlement-offer/msg6480/#msg6480

I think the letter in the above link has all the elements I would want in the unlikely event I landed in court over one image:  a well thought out offer, no admission of guilt, demand for proof.

Of course, I wouldn't copy that letter, rather I would use it as a guide for a customized response.

just my 2 cents ... keep the change

108

Getty Images Letter Forum / Re: Think this letter will stop their harassment?

« on: May 07, 2012, 12:04:12 PM »

Lettered,

You are so funny with your disclaimers. You have been here long enough to know that no one on the ELI Forums is a lawyer with the exception of Oscar. But that doesn't stop the rest of us from putting a "butt-hurt" (per SG) on the stock photo industry.

No need for your disclaimers anymore!  LOL.

and my standard disclaimer: Im not a lawyer and anything I write here is just my layman's understanding.

LOL . . . you know, I was "sensitized" to that issue when that Getty-Sympathetic poster (whom I won't name) a while back kept hinting that (s)he was a lawyer while throwing around lots of legalese and "opinions", and yet wouldn't answer when asked outright if (s)he was a lawyer.  I'll take your advice and tone the disclaiming down a bit.

109

Getty Images Letter Forum / Re: 2 Clients with Getty Letters

« on: May 07, 2012, 11:53:53 AM »

Congrats on passing the 3 year mark Buddhapi!

. . . and well said Mulligan.  My time was up some time ago and I still pop in from time to time.  It pains me to see some of the folks who arrive here in varying levels of curiosity and panic . . . hopefully those of us who rode out the "storm" are some comfort to them.

110

Getty Images Letter Forum / Re: Think this letter will stop their harassment?

« on: May 03, 2012, 04:30:34 PM »

good point Buddhapi.  agree completely.

111

Getty Images Letter Forum / Re: Think this letter will stop their harassment?

« on: May 03, 2012, 03:42:08 PM »

Maybe one of the lawyers could chime in lol .

thanks for the feedback. Section 5 says you have to have a copyright to seek damages at all it appears. If they are coming at me for actual they will get 0 cuz I made 0 off the image lol.

they can register it just before they sue you for actual damages.  As a matter of fact they would have to do that in order to bring the suit.  They can still do it.  Actual damages would be the fair market value of the license since you didnt profit from it.  They would be barred from recovering their atty fees and statutory damages, though, which I think would be a huge deterrent for them.

112

Getty Images Letter Forum / Re: Think this letter will stop their harassment?

« on: May 03, 2012, 03:35:52 PM »

Andrew,

Not sure what your point, but I think you are saying that you cannot find the image in questions registered with the copyright office.  Not being registered before infringement (or withing 3 mos of first publication) only means that they can recover only actual damages (and not attorney fees and costs, and not statutory damages).  I think actual damages would be set to the fair market value of the license for the infringement period falling withing the statute of limitations (3 years max).  They would have to register the image before they took you to court, but they can do that and sue you for actual damages.

Would they actually incur the legal expenses to sue for actual damages over one or two images?  I really doubt it.  Every infringement they take to court runs some risk of them losing and setting an undesireable (for them) precedent that will haunt them for awhile.

I like the idea of looking around the internet for prices of similar images, then offering them something based on that finding.  There is a sample letter someone here wrote recently that did that.  That is assuming you cant afford Oscar's very reasonable fee to write the letter(s) for you.

and my standard disclaimer: Im not a lawyer and anything I write here is just my layman's understanding.

113

Getty Images Letter Forum / Re: My proposed Getty letter response and settlement offer

« on: May 01, 2012, 12:34:35 PM »

I'm no lawyer, but I really like that letter!  One very minor point is a typo I noticed:

"If you chose" should read "If you choose".

114

Getty Images Letter Forum / Re: Very Interesting Article on Statute of Limitations and Discovery Rule

« on: May 01, 2012, 12:27:33 PM »

thats probably better answered by a lawyer.  My layman's understanding is that they can collect damages for the infringing activity that falls within the 3 year statute of limitation period.  This is the reason it is important, I think, to get the infringing material taken down as soon as possible.  Have a look at Stone v Williams and Roley v New World Pictures in the link you provided.  If I read those correctly, the plaintiff was not able to recover damages for infringing activity falling outside the 3 year period going back from the date the suit was filed.

I also take this to mean that as soon as you take the image down, your risk exposure begins to decrease linearly with time over the next 3 years.  So if Getty waited around 2.9 years and then filed suite there would be very little infringing activity to consider to calculate damages.  If the image was registered before infringement began, this might be a moot point, in that Getty could simply ask for statutory damages.  However, in cases of innocent infringement, the judge is allowed to reduce statutory damages to as low as $200, I believe.

This is just my layman's take on the issues.

115

Getty Images Letter Forum / Re: Very Interesting Article on Statute of Limitations and Discovery Rule

« on: May 01, 2012, 06:42:04 AM »

A good article mainly about whether discovery or injury rule applies to copyright.  The beauty of receiving the letter is that it is pretty much proof that discovery occurred on or before the date of the letter, and I think this date is a safe bet for calculating the statute of limitations . . . assuming you immediately take down the image (that way the same date applies no matter if you use discovery or injury rule). If they discover it a long time after you take it down, then I am not sure how the statute of limitations applies.  I think the courts can go both ways on that one . . .

That's my layman's understanding anyway.

116

Getty Images Letter Forum / Re: Welcome To The Club? (edit: statute of limitations?)

« on: May 01, 2012, 06:37:13 AM »

. . .

hmmm also back to the SOL, the damages can really only accrue while the image is in use, once its removed they cannot claim damages. Those damages can really only accrue from the time that they discovered it correct? So if they discovered it AFTER it was taken down, then they really have no claim?

Not the way I understand it.  In the worst case (using the discovery rule) they have three years from when they discovered (or reasonably could/should have discovered) it.  In the best case (using injury rule) they have three years from when you took it down.  The interesting thing about discovery rule in these cases is when is the date that Getty could/should have known?  Is it the day the site went public with the image?  Or is it the day picscout found it since picscout is always looking?  I cannot answer that one.
That's my layman's understanding anyway.

117

Getty Images Letter Forum / Re: 17 USC 401 et al

« on: April 27, 2012, 11:34:04 AM »

No problem Buddhapi.  I think just about everyone reads it the wrong way at first (or while low on caffeine) .  It's a big problem with copyright, I think.  We (laypeople) read the statutes and end up thinking we are protected by things like:
1) absence of copyright markings
2) failure of plaintiff to issue a takedown notice
While the above two points are covered in statutes, they rarely (or never) apply to the "Getty" cases we see here.  So the letter victim focuses on weak defenses that ultimately evaporate and they miss solid defense strategies and associated issues like:
1) exclusivity
2) validity of photographer's contract (or if it's even current)
3) implied license
4) innocent infringer
5) bulk registrations
6) hyperlinking
7) amount of damages (fair license value)
8 ) statutory damages and legal fees not allowed for plaintiff if image not registered when infringment began
9 ) etc

118

Getty Images Letter Forum / Re: 17 USC 401 et al

« on: April 27, 2012, 08:20:03 AM »

I think the statute is current.  Notice that it says "MAY be affixed".  There is no longer any requirement to do do.  This was a change that came with the Berne Convention Implementation Act of 1988.  Marking is important in that if the notice is in place when the infringment occured then the user cannot legitimately use an "innocent infringer" defense.  The absence of a marking does not, however, invalidate a claim for copyright infringement, nor does it cause the item to "escape to the public domain". 

Even though this particular "defense" loses traction in Getty's favor, I dont find it particularly troubling as there are many other sound defenses to use.

That's how I understand it, anyway.

http://www.copyright.gov/title17/92chap4.html#4-2

"The Berne Convention Implementation Act of 1988 amended section 401 as follows: 1) in subsection (a), by changing the heading to “General Provisions” and by inserting “may be placed on” in lieu of “shall be placed on all”; 2) in subsection (b), by inserting “If a notice appears on the copies, it” in lieu of “The notice appearing on the copies”; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857."

119

Getty Images Letter Forum / SOL and damages (some comfort for those riding out the storm?)

« on: April 26, 2012, 09:15:41 AM »

Seems to be several here "riding out the storm".  This might be some comfort to those waiting out the statute of limitations (SOL) to see what Getty will do . . . assuming my interpretations are correct.  Assume a image is taken down in response to a demand letter on Jan 1, 2012 : this starts the 3 year SOL clock running, for both timely filing of a lawsuit, AND for actual damages calculation.  Let's say that suit is filed on Dec 31, 2014 (1 day shy of SOL).  That leaves 1 day of infringement for calculation of actual damages.  This is because only 1 day of infringement falls within the 3 year SOL period.  So if I'm correct,  after the first year, you've already reduced risk exposure by 33%, and it keeps going down from there.
I think this discussion is only applicable to images unregistered at the commencement of infringement (otherwise plaintiff is entitled to ask for statutory damages).
I think that the length of infringment is important because stock photography images are licensed for a time period of usage (less time requires less license fees) . . . and actual damages would likely be calculated based on reasonable license fees.
Would be interested to know if I've interpreted that correctly . . . comments welcome.

120

Getty Images Letter Forum / Re: My Response Letter

« on: April 19, 2012, 04:18:08 PM »

I'm not a lawyer.  I think the part about asking them to prove how long you had the image up wouldn't look so good for you.  I'm not for admitting guilt, but such a statement just kind of smacks of shirking responsibility (just my impression).  After all I suppose you know how long you had it up.   Maybe it would be better to ask them for a detailed breakdown on how they arrived at thier number along with sales and license fees history for the image(s) in question.
Actually, the better solution, I think, is just to pay Oscar to write the letter.
Best of luck to you.

Edit:  The above may have come out wrong.  What I was trying to say was that I think it looks better on you if you go to court (unlikely in my humble layman opinion) if you appeared to be trying to ascertain a reasonable settlement amount, or even offering up a reasonable amount (in line with actual damages assuming unregistered images), without admitting guilt of course.  just my 2 cents .