Messages

1171

Getty Images Letter Forum / Re: Masterfile Licensing in the case of MF vs Country Cycling = Scamola?

« on: July 03, 2011, 12:37:42 PM »

Personally, I would have pointed out this irregularity to MF.
It's a flawed document.  They can't prove when the contract was drawn up.
I doubt that they'd have the guts to go to court and test it either.
That's how people avoid court with these companies.

S.G.

1172

Getty Images Letter Forum / Re: Getty / Righthaven

« on: July 03, 2011, 12:29:29 PM »

Yes, it's expensive to fight it out in court.

I guess that 'prevailing' to me would be something like the following (I'm assuming a case wherein the other party doesn't possess the copyright).
I'd find out what the retail price of the content in question is (it would often turn out to be a small fraction of what is being demanded).
I'd offer that.  They'd reject it.  We'd play the waiting game.
If it goes to court, the court would likely find that I only owed the purchase price.
There wouldn't be statutory damages awarded due to the lack of copyright by the plaintiff.
I pay the piddling retail price, and then collect all my legal fees+ because the plaintiff rejected my fair offer and put me through court (this option may not be available in all places).

It could be a similar process for an "innocent infringement" case.
Offer the plaintiff the $200 minimum per infringement (again I'm assuming the plaintiff doesn't own copyright).
They can take it.  Or, reject it and get awarded the same in court.  But, also pay my legal fees, as above.
All this doesn't sound like much, but imagine paying $400 for two images instead of $20,000.

Yeah, it's a "thought experiment" with no guarantees.  But, there are laws, processes and precedents to guide the process.
There's also a huge difference in attorneys.  Those who need legal representation should shop around a bit, or try to get a recommendation.
You don't need to pay an attorney to say "just pay them whatever they ask for".  You could do that yourself if you're so inclined (or ignorant).

As per buddhapi's question:

"say for example I contact a photog and request permission to use an image, he grants me permission I have an email staing such, whilst at the same time this image is also in getty's library.. so I use the images and along comes Getty with their "claim to fame"..yes I have no invoice, but I do have the email.. I'd be willing to bet getty would not stand down and would probably reply with something along the lines of "this is not good enough"..l That was my situation I had the license for an image but no invoice going back 12 years or so.. the answer in regards to the licence.." anybody could create that".."

We may recall that just such a case was tested in Germany in 2008.  Getty lost the case, as the alleged infringer had an agreement with the photographer.
It's odd that Getty didn't check further into the situation before heading to court.

S.G.

1173

Getty Images Letter Forum / Re: Getty / Righthaven

« on: July 02, 2011, 03:57:50 PM »

Everybody's online these days whether in a blog, on twitter, or what-have-you.
Sooner or later, many people will receive some sort of communication to the effect of "you've used my property" and "you owe me 'x' thousands.
Said communication could be from Getty, a colleague next door, Nigeria, or any place else.
It could even be from someone impersonating Getty.

In my opinion, there is nothing more foolish than paying money without first checking out the validity of the claim in question.
Paying on the basis of "they might actually own this" will needlessly fleece a lot of people out of a whole lot of money.

The only reason that an accusing party wouldn't provide proof of its claim is because they have no standing, or they aren't serious enough to bother submitting proof.
Nobody, and I mean nobody wants to go to court for the fun of it.

Oscar spoke of a Getty litigation in this thread.
Of course, Getty had what it needed in this case.  Getty would not have gone to court otherwise.
But, it's foolhardy to assume that Getty has suddenly properly registered every image.
It'll take years to do that, and many artists dont want to give up their copyright.
If Getty (or any other party) says to you "you owe us thousands of dollars", you had better check to make sure.

Oscar, if Getty demanded thousands from you, you'd check the facts.  Admit it.
Just because something isn't tested in court shouldn't mean that one has no defense in that regard.
Let's avoid the pitfall of "you have to prove your innocence" that Getty wants people to fall into.
There's a great onus on the likes of Getty to prove their claims.

Imagine a scenario wherein one asked for proof of Getty's ownership of copyright.
Now, suppose that Getty doesn't send any proof, and it ends up in a court eventually.
The plaintiff could seek their legal fees from Getty, as they could argue that they were brought into litigation needlessly.
Had Getty submitted proof of their claim in a timely manner, litigation could have been avoided.

If a company/person has a copyright claim made against them, and the other party has all their papers & evidence in order, I'd say "make the best deal you can and settle with them".
However, if the accusing party has a weak case, you can often fight it off before court even becomes a possibility.
That's just what I did.  I showed them that they were going to lose, and it didn't cost me a cent to do it.

Personally, I'd only consider settling if I was both sued and I was probably not going to prevail in court.
Otherwise, it's just more Nigerian junk mail to me.

S.G.

1174

Getty Images Letter Forum / Re: Bought Template 7 years ago, Now MasterFile is coming for me

« on: June 28, 2011, 11:49:18 PM »

Mastrik,

I don't know if Masterfile has moved forward on this.
However, you shouldn't spend too much on this unless you actually require a professional defense.

You are fortunate that you can at least show that a template was used that contained the infringing images.
You have a "defense" in my opinion.  It could be a lot worse.

On the subject of YouTube, they have been involved in legal battles for some time over copyrights.
However, they are reluctant go after the "end users" because a lot of YouTube content is created by those users.
If end users were to be sued, YouTube itself would be in jeopardy.
However, I suspect that YouTube does attempt to collect information on infringers (especially repeat infringers).
Perhaps, they are covering their bases, just in case.  But this is probably beyond the scope of this forum.

S.G.

1175

Getty Images Letter Forum / Re: Bought Template 7 years ago, Now MasterFile is coming for me

« on: June 25, 2011, 10:51:24 AM »

Good post by "Lettered"!

This would be quite a weak case for Masterfile.
Your situation is a case of "innocent infringement", and they would find it difficult to collect statutory damages of any significance in court.

"Aside from the provisions protecting innocent infringers in cases of erroneous or omitted notice, the 1976 Act’s more significant and more generally applicable form of remedial relief for innocent infringers is the possible reduction of the amount of statutory damages: where an infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200” rather than following the ordinary minimum of $750."

http://www.law.uci.edu/pdf/treese/reese_innocent_infringement.pdf

While they could attempt to collect the "purchase price" of the images(s), this would be miniscule compared to what the statutory damages could be.
Masterfile will still attempt to harrass you and tell you that you have to pay anyway; that's their business model.
But, the chances of such a weak case ever reaching court are tiny.
Keep the screen shot of the Template Monster template.

Good luck!!

S.G.

1176

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 17, 2011, 12:44:07 PM »

Matthew,

I'm looking forward to another video, as are many others to be sure.

I see that it's pretty easy to troll in some Getty toads on here.
We're not like Righthaven at all!!  Honest!!  ...fun times.

I see that Masterfile has its own legal counsel in house.
"Dan Pollack" in the Toronto office.

http://ca.linkedin.com/pub/dan-pollack/8/885/541

He's US educated; he's probably well suited to "serve US customers".

S.G.

1177

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 17, 2011, 12:52:28 AM »

Good post Matthew!!
Thanks again for this site.

"$10,000 including legal fees for most single-image infringers".
But, they'll only get their legal fees and damages if they registered the copyrights to the image.



S.G.

1178

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 16, 2011, 03:09:20 PM »

Oscar?  How does it usually go?
Getty's demanding money from people, but won't send the proof.

I don't think that the expense of the fighting likes of Getty comes into it either.
They're not suing anyone in the states as yet.
So, what's to defend?  What's to fight?

Is the answer just to ignore it?
People are getting wise to this.

S.G.

1179

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 16, 2011, 11:44:31 AM »

What you've provided is a "sample agreement".
It has no legal standing.

However, I don't dispute that Getty may have exclusive agreements with some parties.
No question.

But, from what I've read on this forum, they are unable to produce such proof to those that they accuse of infringement.
In these cases, the whole "We're going sue!!" song and dance is beginning to ring quite hollow.

S.G.

 

1180

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 15, 2011, 09:17:47 PM »

Thanks for your contribution to this discussion.

As the West's industrial gears are slowly grinding to a halt and many of us are trying to find our way in a new economy, we're seeing more and more of these kind of money-making schemes.
I do think that this court finding is an important decision that reinforces what amounts to common sense: you cannot sue for IP damages if you do not own copyright to the content in question.  We're in agreement here.

I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell.  In such cases they're simply an "agent"  not an "excusive licensee".
That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it).
Victims here are saying that Getty won't provide them with the copyright registration information to prove that they (Getty) own sole rights to such content and can successfully litigate over such issues.
It smells fishy to me.  So, Getty may well be in the same boat as Righthaven in many instances; it has no legal standing to sue over images that it simply doesn't own the copyright to.
If Getty actually owns copyright to their content, they certainly should be able to prove it to their extortion letter victims.

Again, this decision is a game-changer for a company (Righthaven) that was conceived as a copyright troll from day one.
Their business model is as dead as the dodo.

S.G.

1181

Getty Images Letter Forum / Re: Getty's lawyer called our attorney! 30 days to pay or they will file suit

« on: June 15, 2011, 08:46:24 PM »

They've been bothering you since 2009.  That's a long time.
Intuition tells me that if they could have sued you and got some worthwhile money, they would have done that a long time ago.
The long periods between their discussions with you tells me that your 'case' isn't a high priority for some reason.
It could be that this 'case' is simply flagged in their system every once in a while as a reminder for them to send another letter to you.  Just like everyone else.
Also, their experience has likely shown them that the longer the time that they threaten someone, the higher the payout.  So they're playing the waiting game, too.
I'm not sure which country/state that you are in, but their opportunity to take any serious action will expire eventually.
One would think that in a situation like this they'd forward some proof.  It's probable that it simply doesn't exist.
Or, perhaps, Getty's campaign consists only of letters and threats, with no real intent to sue anyone at the moment.
Hence, they can't be bothered trying to prove their case to their victims.  That could change if a 'big stakes' case arises.
In some places (Canada), if you make an offer to settle and it's rejected, your adversary could be liable for your court costs and then some if the court awards a similar amount as to what you originally offered.

S.G.

1182

Righthaven Lawsuits Forum / Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 15, 2011, 01:55:07 PM »

Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

Article from TechDirt

http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml

"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."

Hope that Getty is taking note.

S.G.

1183

Getty Images Letter Forum / Re: Strange third letter from Getty, community input requested.

« on: June 15, 2011, 01:09:33 PM »

You have no legal or moral obligation to respond.
In any case, a response would simply be seen as the beginning of a 'negotiation'.
If they owned the image(s), they would surely send the proof to you in order to get the money.
This is just Getty scamming again.

S.G.

1184

Getty Images Letter Forum / Re: Corbis and their copyright on old public domain images?

« on: June 14, 2011, 02:15:40 PM »

To use such images in this way, you'd have to be absolutely sure of what you are doing.
Keep in mind that what you can do with such images is governed by the laws of your own country.
So the findings of Shaw Family Archives v. Marilyn Monroe LLC in New York may not apply to you, for example.
In fact, although Marilyn's image, likeness and persona are all in the public domain, the copyrights on such property are likely owned by somebody.
Add to this that it's difficult to determine who owns something like this; even the US copyright office doesn't guarantee that something isn't copyrighted just because it's not listed with them.
This is the sort of thing that has landed people into serious trouble with legal fights so long and expensive that it hardly seems to matter whether you have a legal right to use it or not.
I'd be very careful.

S.G.

1185

Getty Images Letter Forum / Re: When is the same image not the same image

« on: June 09, 2011, 04:47:42 PM »

I think that this is an excellent question.
The case of Diodato vs Spade might interest you.

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20050927_0001342.SNY.htm/qx

Although the photographs were similar, the concept was considered generic enough that Diodato last the case.
Furthermore, the defendant Spade could show several other examples of such a photo being used for commercial purposes.

"Rather, both photos illustrate the freedom photographers have under the copyright laws to independently create their own conception and expression of a particular subject matter."

Of course, that doesn't mean that one party cannot take another to court over something like this.
It's just hard to win when the subject matter is so generic.

Here's another interesting discussion about a photographer who sued Getty Images.

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00137

S.G.