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Messages - photographer

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16

In the Getty case in the UK, the defendant did not show up for court, and the plaintiff won on default:

"I have actually commented on this case on the UK blog on the FSB forum; it appears that the defendant did not contest the case and it was granted on default.
Also, I believe that the issue of "innocent infringement" which in UK means that there are no damages awarded if the infringement was not intentional, was not argued either.
So I don't know how much precedent value the case will have."
-Oscar Michelen


S.G.


Apologies, I missed this out earlier as well. The plaintiff didnt win on default, a deal to settle was done on the day of the case and the judge rubber stamped it. Hence in the official press releases the case was deemed 'settled' not awarded.
Also there is a 6 year statute of limitations for this in the UK, similar in other EU jurisdictions.

17

You mentioned that wilful damages don't need registration.
True, you can collect punitive damages without registration; that would be the fair purchase price of the image (often $39 to $300).
This is usually a low amount and is often not worth litigating over.  But, you cannot collect statutory damages if the image isn't registered.  That's where the real money is.

S.G.


A very important point so I'll make it separately.

No, I meant wilful infringements as in wilfully deleting copyright information contained within the image (Title 17 1202).
17 1203 allows statutory damages 2.5k - 25k without copyright registration for 1202 infringements.

Thats on top of any other damages (either fair purchase price or statutory).

18
photographer said:
Quote
in all the cases I am aware of (I know a lot of other Getty photographers) they have won.

Really? My take is that in the US nearly all the handful of cases that Getty has won have been default judgments. The other "wins" were settlements before a verdict was actually rendered.


I would classify those as a win, they didnt lose and they didnt draw and the infringers ended up paying...

As mentioned above the Getty thing is a different animal. They are no different to the people who sue on behalf of George Lucas and Bruce Springsteen etc. You dont actually think George or Bruce have to sit down and fill in forms themselves do you? They have people to do that for them.
It is exactly the same laws, being done in exactly the same way. Up until now it has been incredibly difficult to find infringments, now its just a few clicks away.

Thats why Getty and Righthaven are different. Getty are my agent, I pay them, they do all the processing, keywording, marketing, selling, invoicing, tax calculations, tax liaison with the IRS, infringments etc etc.
I think you have a basic misunderstanding of the concept, they dont need to own the copyright to chase infringers, that is what I am paying them for. Section 1.4 of the Getty photographers contract authorises them to do exactly what they are doing on my behalf.

As to the registration body for government use, Google have already hinted that they would do it. They have given up their crusade to have all internet content copyright free. As they often cried that it would be impossible for them to set up in business in the UK/EU and having had the orphan works ideas thrown out by the UK govt (which would contravene EU law anyway) they are poacher turned gamekeeper.
After all if you have spent all the time developing a decent image search, then its only a matter of time before they replace the likes of Getty, for a less percentage and with the blessing of governments as its all outsourced to them at no cost for the additional revenue.

Oh and I see masterfile have been bought out today....


19
I dont assign them the right to sue, I cant, I am the only one with a right to sue. Of course I can instruct them to represent me and get the best possible outcome for my images. Dont confuse people being stupid and doing the wrong thing with the ones that do know what they are doing.

If I read this correctly, this means that GI can only send out the demand letters and not file suit on behalf of nay artists.In order to file suit they (GI) would need to be the actual copyright owner, and also have the image registered. From what I understand Getty does not have most of the works in their library registered. Perhaps this is because they can't register images that are already registered by the artist?

Only the copyright holder can file suit anywhere in the world, that is true. However, the Getty photographer agreement is an exclusive one and that also includes extending them the rights in the first instance to pursue all infringements. They are acting as agent. They find the infringements and pursue on our behalf, thats in the contract. Its no different to any recovery service, its the same with my appointed lawyers, I give them the information they need to get on with it and they do.
When it comes to court the copyright holder has to give explicit permission for the lawsuit, which we do before it ever comes to that stage.
Getty is our agent and they are acting for us, just the same as we would ourselves or any lawyer working on a contingency basis. Thats what we essentially pay them for with their cut of the royalties.
Of course Getty also wholly own copyright to a lot of the image in their archive so they can just sue away without anyones permission.

The registration bit is a bit of a red herring too, wilful damages dont need registration, nor does any illegal usage fee etc. Getty can only register the images it owns the copyright to but thats not to say the photographers dont register the images themselves. Its something we have to fill in with each image we upload (except breaking news/editorial which is often registered within the time limit post publication). So yes they are the sole agent, all sales go through them, and they know if the images are registered or not.

So in short, in the majority of cases, what Getty is doing is in accordance with the photographers agreement. They act on our behalf. Thats the job of the agency to pursue infringers. They have a 'duty of care' with our images and our contract.

20
'photographer': thanks for the interesting comments about the web design issue; it's quite a competitive business.
I also have the impression that many businesses outsource web design to other countries to save money.
And with all the cheap schemes it will come back to bite them on the ass. The problem is the beancounters never take this into consideration

You stated that, "Its currently being discussed in the EU to put it on the statute and white papers on amendments to Berne have suggested making it either a global or country agency issue. In other words the good old government will recover damages through fines and will remunerate creators accordingly."  I'm not aware of this, but, I'm interested in looking into it.  However, I'm not sure how this could be successfully implemented.  I can't see how the "state" would or could take on civil litigation issues for individuals or businesses.  If it's a 'fine' that one cannot fight, then it would be "against the constitution" as US folks might say.  Is there a source for the information?
Have a look at the hargreaves response in the UK and the equivalent upcoming debates in the EU on copyright. Interesting thing is that Google have been told to go swing by the UK govt. Its no coincidence that Google image search which was recently launched is so well developed. They are touting for the international business this might bring. So as far as Im aware it wouldnt be a problem in the US. Its not the photography industry that is leading this, we are playing catchup. I had lunch last month with a music IP expert from LA and if you had infringed music IP rights then they really grab you by the balls. Its mainly music and video driving all the changes, photography seems to be an afterthought. The big studios/google have a lot of influence so I dare say, like a lot going against the constitution is probably just a question of how much.
Essentially the idea is that you have one big overseeing body that has the power to 'license' copyright information which initially will be reactive but then it will be proactive... hmm retroactively licensing IP contact - a fine by any other word. Of course the govt gets a cut for managing the thing which it will outsource as it doesnt have the capability to host and search worldwide...


You also mentioned that, "Just a bit of background info, my Getty contracts state that as copyright holder I authorize them to act on my behalf. When it comes to court I just sign an affidavit that I am the copyright owner (which is then verified) and I have instructed them to act on my behalf (just as you would any other lawyer). I have spoken to Gettys legal department many times and trust me, I would hate to be on the receiving end."  I believe that there may be some serious legal problems with this method.  This method of assigning the right to sue, but not the actual copyright has gotten Righthaven in a lot of hot water:
I dont assign them the right to sue, I cant, I am the only one with a right to sue. Of course I can instruct them to represent me and get the best possible outcome for my images. Dont confuse people being stupid and doing the wrong thing with the ones that do know what they are doing.


Getty has had some success outside of the US, but I do believe that it's been a bit spotty.  They haven't won every time.
As above, there are certain cases where the information has been incorrect or presented in an incorrect manner, in all the cases I am aware of (I know a lot of other Getty photographers) they have won.


The big win in the UK was earth-shaking. The defendant didn't show up for court as I understand it and received what might be considered the worst possible outcome.
Getty lost quite a famous case in Germany. They sued an alleged infringer who has his own contract with the photographer, and Getty lost in court.
As far as Im aware they did show up and it wasnt really the worst possible outcome, it was just the demand that Getty had asked for plus interest but with massive legal fees.

"In Germany, Getty images lost a court case to an individual after the person has proved that he gotten exclusive rights from the photographer."
Again selective quoting, the individual bought a retroactive license from the photographer. All legal and above board but the Getty contact allows them to recover costs of the proceedings from the photographer, bit stupid really. No mention is made of what happened to the photographer, the account etc.

As you can see, I'm more familiar with US/Canadian issues.  Perhaps you can shed even more light on UK concerns in future posts?
Just some of my thoughts and some stuff that I found on the web along the way.  Thanks for your contributions here.

S.G.
No problem, I dont mind sharing with people who have a rational interest in the subject rather than just trolling (I do and always have copyrighted all my photos btw). Im familiar with the issues globally as I have to be, I work globally and each jurisdiction is different. The meeting with the music professionals in the US and Canada was a real eye opener. Their approach to infringement makes the Getty approach seem reasonable!

As I said above, I have no love for Getty or any agency but at the same time if someone does rip me off I will go after them. I will say though that the vast vast majority of people I contact about infringements are well mannered, apologetic people who its easy to come to an arrangement with. Its the ones who get abusive or try to enforce their 'rights' without seeing the irony that I just hand over to lawyers. They will all pay in the end as I do dot the i's and cross the t's.

21
I guess that I feel for 'newzshooter' and 'photographer' a lot more that I feel for the big stock image companies.  It would appear to me that they're more like 'victims'.
I also sense that their situations are somewhat different than those of the large companies, but I appreciate the perspectives that they have expressed here.

Indeed. In many of the cases of people I contact, they too are 'victims'. They have been hung out to dry by their web supplier or web company but as they are the publisher they are ultimately responsible. It is up to them to sue their web supplier or the web suppliers insurer. Of course this is also bittersweet for me as an ex-girlfriend of mine spent years training to be a web designer back in the days of hard coded sites only to be put out of business by those doing things on the cheap. Ask any legitimate web design company about the pressures on them by being undercut by those who lift sites and photos off google. Previously this has been almost impossible to detect but with the new google image search its instant.
In the past I have had to rely on picscout and tineye but now Getty has bought picscout expect it to be coming from everywhere.

Copyright infringement is not "theft".  If you phone the police about a "stolen" image, they won't come; it's not part of any criminal statute.  
For now  :)
Its currently being discussed in the EU to put it on the statute and white papers on amendments to Berne have suggested making it either a global or country agency issue. In other words the good old government will recover damages through fines and will remunerate creators accordingly.

Furthermore, if you get your stereo stolen, you lose the use of it, and you lose the value of the item.  If an image is infringed upon, you don't lose the image, or the use of it.  You may have lost the income that you would have had if the infringer had purchased it.  But, that assumes that the infringer would have purchased it, which is speculative.
Thats quite a simplistic view of it, as I gave in my examples above there are many other issues involved which can add to the damages. For instance I am negotiating for exclusive use of an image but first the purchaser wants to make sure that all the ripped off versions on the web have been removed. I dare say if that fee was in jeopardy the infringer would soon know about it. It also depends a lot on whether the stolen image was stolen wilfully, in other words if the person knew it was someone elses IP and removed all of those details. This can be difficuly on those who have stolen a stolen image if you know what I mean. Its hard to disprove the wilful aspect as the details have gone.


'photographer', you spoke of issuing proceedings, which I take to mean "court proceedings".  My opinion is that the moral 'high ground' is sending a simple cease and desist letter.  It works the vast majority of the time.  
Indeed, Id never go after a blogger for 9k, thats just ridiculous. However as I mentioned above there are cases where this has lead to loss of revenue beyond the basic image licence fee and thats when I really press the issue.

Threatening a lawsuit or going through with a lawsuit in order to generate monies is a method of using infringements as a revenue stream.  There's nothing wrong with that so long as you own the images, have done the paperwork, and are asking a fair price.  But, less people will feel sorry for your plight and others like you in such a case.
There are two issues there, one is the ambulance chasing, downright bad news and the other is that it will tar people with the same brush who have legitimate complaints. Similar to those infringers who dont know any better as opposed to those doing it for commercial gain. Theres a whole range of issues and as you say photographers feel less sorry for those infringers who are as much a victim as we are. Indeed this site has been invaluable for some of my colleagues for providing them with contact details for lawyers who will take their case on. It works both ways.

I don't think that the vast majority of infringers are crooks or evil.  The culture of the Internet up until very recently has been a free-for-all.  It's the fault of infringers for sure, but it's even more the fault of artists/photographers who didn't consider protecting and policing their content until they realized that they could make money from legal threats.  So, now we're left with quite a mess.  Prior to this, most people had only heard of IP disputes over major brands or patents.
Whilst I agree not all infringers are crooks or evil, I disagree that its somehow our fault. I have always made sure my images are marked with my ownership, indeed all images carry the camera serial number and owner so its embedded the minute we press the shutter. I also dont accept that that most people assume things are free, they must belong to someone somewhere (Ive been using the web since 91 and was always told to be careful of copyright issues, even before the net was invented).
Funnily enough I didnt realise I could make money from legal threats until I came across this site. I thought I would just have to go to court and so I just filed without even entering negotiations. Now I feel there is an opportunity to enter into negotiations before

Large stock image companies are doing a huge disservice to photographers/artists like you.
Tell me about it, I have no love of Getty, Ive been badly treated by them for years, Getty is only out to protect one thing, Getty. This is what this is all about. If they dont stamp down on infringers and stamp down hard then they will lose their business too.
Just a bit of background info, my Getty contracts state that as copyright holder I authorize them to act on my behalf. When it comes to court I just sign an affidavit that I am the copyright owner (which is then verified) and I have instructed them to act on my behalf (just as you would any other lawyer). I have spoken to Gettys legal department many times and trust me, I would hate to be on the receiving end.

They wish to systematically weaken the copyright protections rather than strengthen them.  They wish to make the system of bulk registrations acceptable as proof of copyright.
Actually blame the USA for that. They did not implement Berne completely and hung on to the legacy which requires registration, everywhere else in the world that isnt involved so it is a lot of hoops to go through in the US courts.

However, the concept of bulk registrations actually weakens the concept of copyright protection for everyone.
I dont understand? As far as I was aware only the copyright holder can register an image. In a lot of cases the likes of Getty and Masterfile do have in house teams producing the images and so own the copyright. They can register what they want.

If a company can say, "it's our image, and it's in there somewhere... just take our word for it", then how is that a proof of copyright?
Its not. Thats the problem with the US registration system. You only sign a form to say you are the copyright holder. Theres nothing to stop me registering someone elses images. Hence why the US system is redundant and no other country does it. Everywhere else you just include the original in the court papers. Simple - it is what we have to do when we go to court anyway and by the time it does that Getty etc already have their affidavit witnessed by a local lawyer, proving copyright.


The image might be in the collection, or it could be a scam (it's not in there).  Maybe it's in there, but it's your image, or even mine.  Therefore, a person or company could claim whatever they/it wanted, and that would be proof enough.  That would be fine if everyone was honest, but not everyone is.  In the end everyone's copyright's are weakened, as standing would be based on taking someone's word for it, and that's not simply not enough proof in this day and age.
Indeed, which is why the likes of Getty store the original file and have it on record with all the details embedded and they check this all out before sending the first letter. I cant say for Masterfile as I know nothing about them. When I send out infringements, I send out a copy of the infringing image, the context and a proof of my original file. Thats all the recipients lawyer needs to know so we can cut to the chase.

In any case, we're going to see something big happen soon.  Getty might go to court over a big case involving several images.  
They have outside the US and won every time. One business in the UK I think it was decided to call their bluff on a 1500 GBP demand. They settled on the morning of the case for 27k GBP. Thats over 43 thousand dollars!

Or, several Masterfile victims may get together and file suit.  Masterfile in particular may be vulnerable here.  They have a policy of sending people threatening letters, making threatening phone calls, sending 'draft' lawsuits (this is illegal for collection agencies to do in some places by the way), sent cases to collection agencies over non-existent debts, filed papers with the courts and then backed out at the last minute when they realized that the defendant was going to fight.
Again I cant comment as Im not involved with Masterfile but either way I want to see a resolution of this particular matter as it will stop all the ambulance chasers and let people know that creators with legitmate concerns address them.

Even a small number of people who have experienced the above could get together, and Masterfile had better hope that they own the copyrights.  Demand letter recipients have been contacting the actual photographers about alleged Masterfile infringements, and some of these photographers are saying in writing that they still hold the copyrights.
As I said above I dont know about Masterfile but my Getty contracts allow them to act on my behalf as copyright holder. Getty also get an affidavit regarding copyright before any court case. I cant persue any claim regarding my images lodged with Getty (as per the contract) and can only take this on if they are not willing (which is never in my experience).

Getty is often especially weak on copyright standing, so they're a target too.  
Again not in my experience. They often have things tied up incredibly tight. Ive had them reject model releases that the signature was smudged, date written in different order (signed by europeans) etc etc. In submitting images I have to be careful I dont infringe anyones copyright with the images or in the case of editorial images, clearly submit them as such. Even if I did submit a non-editorial image with copyright infringment, it would never get through and I would be on the receiving end of a phone call!

S.G.

Can I just say thanks for continuing the debate in a rational way as it helps to put a different view across and perhaps gives some insight as to the legal requirements for the other side. As I said above I can only give details on my experience with my own images and some experience with my images with Getty. I have no experience of Masterfile.

22
Heres another photographers case that people tend to overlook and its why I have adopted the Getty/Masterfile approach.

I am commissioned by a company. They dont see stock photos in their industry that suit their needs so they go through a commission process. I work with them over a period of time discussing their needs/wants/expectations and through an iterative process on their site and my studio we agree on a set of finalised images.
An exclusive license agreement is drawn up on a certain set of the images and the rest I can use as stock. They put them on their website, use them in their literature and promotional material, I get paid, everyone is happy.

A time later I have an irate COO on the phone saying Im a disgrace and that I have breached our exclusive agreement and he will tell the local and national business community not to work with me again. Im confused, he calms down and sends me multiple web links.

Some people in the same industry and competitors of his company have just decided they cant be bothered to do all the work themselves and just steal the images off their website.
Now its up to me (as the copyright holder) to go down the heavy route and issue proceedings because I need to prove to my now ex-client that the images were stolen and that I just wasnt being greedy by selling the images on.

Image theft is theft plain and simple. The people stealing images dont realise its not just a picture on the internet but something someone has spent time money and effort in creating and sometimes professional reputations hinge on that. It is worse if models are involved, I had an image stolen and used on a site about drug abuse, the photo was taken from one I had sold to time magazine for an article and the thief decided he would take it and label it as 'drug addict'. The model who rightly was incensed threatened to sue me for defamation....

I try to be reasonable most times but there are certain times when you have to come down hard. Every time I have to spend a day issuing take down notices and contacting lawyers is a day away from doing what I should be doing, making images. I would love to have a world were I didnt have to do this (and I say have because in most cases I am forced to take action) but as long as people keep stealing and putting my livelihood in jeopardy I will do it.

23

As you can see there is no watermark on his own image.  That's not going to help his case.

There is also no copyright information stored within the blog image. Someone should download it and take a screenshot as evidence.
There is no way of identifying the blog photo as his own and normally this isnt an excuse but it means there is no willful removal of copyright info and so will negate that part of the case.

I would also get the defendant to check his professional status. It doesnt appear that he is a full time professional and that might have an influence on the amount of damages awarded (if any) although I am not a lawyer and this might be complete bs.

I am not condoning any copyright theft, indeed I regularly send out demand letters myself but there are times when the amount demanded by others is just ridiculous which makes it more difficult to those of us who like to reach reasonable and where possible, amicable settlements (and get on with our business).

PS meant to add if the image was uploaded to the blog first and then registered as unpublished/published later....

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