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Getty Images Letter Forum / Re: Unfavorable Court Rulings ?? Getty ??
« on: April 15, 2011, 10:40:22 PM »
thank you, i appreciate your detailed responses
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17
Getty Images Letter Forum / Re: Unfavorable Court Rulings ?? Getty ??
« on: April 15, 2011, 08:19:28 PM »
$49-$200 seems reasonable to me given there are no damages, and Getty provides no proof of exclusive license, or individual registration of the image, but I doubt they will agree to this. so, then it comes down to how many hours it will take personally, or legally, to deal with the issue, and what value those hours have. unfortunately, this is like any extortion scheme, such as localized towing companies... they will tow cars from a lot whether the car was parked legally or illegally, and then demand payment to release the automobile. the police don't get involved as it's a civil matter. you have to pay to get your car back (ransom) and then sue in small claims court, which is costly and time consuming, and hardly worth the effort for a $100-$150 tow. it will take legislation to fix this.
18
Getty Images Letter Forum / Re: anyone countersued Getty for damages to your own business?
« on: April 15, 2011, 07:32:13 PM »
that's a good point. we had a tenant who stopped paying rent and didn't pay rent for months. we took her to court after she refused to pay rent and/or move, and we won a judgment. she actually paid us $50 a couple times randomly, but then we never heard from her. how, realistically, were we going to pursue her for money she didn't have? it takes a lot to garnish wages, etc.. a friend of mine avoided paying his student loans back for years simply because he couldn't afford it, and nothing ever happened. another friend avoided paying back credit cards for years simply because he couldn't afford it, and nothing ever happened. the question, for me, just comes down to how you want to live your life and the price of a good night's sleep... do you pay the mob when they come knocking on your door for protection money if it's reasonable, or do you stand up and fight despite consequences.
19
Getty Images Letter Forum / Re: Something to think about - Online Photo Editing
« on: April 15, 2011, 07:29:04 PM »
Something needs to be done legislatively to address the near impossible task of ascertaining copyright registration on images found on the internet, especially when companies have been registering them without individual authorship as part of compilations, which begs the question in my mind as to whether the compilation is a body of work and removing a single image for non-commercial use is a derivative work, or is that pushing it...
If someone finds an image in the public domain, or seems to, or even pays another site for it, to what extent does due diligence require them to go? Do they have to seek out every photographer in the world and ask, Is this your photo that is available for free on this site?
I think that unless financial gain and intentional attempt to profit can be proven, that the government should write legislation to limit initial action to a cease and desist letter, and if an individual ceases, and desists, that the matter is settled.
There is a big difference between photocopying an image out of a magazine and finding an image on the internet in reality, though perhaps not legally. In the former case, you know the image source and you know you are "taking" something without asking the owner, in the latter case, with so much free content floating around, or "unsecured content", it becomes like finders keepers... like a dollar bill on a sidewalk, who is to say to whom the dollar bill belongs without proof of ownership.
I copyright my artistic creations, and I put them on the internet for free download, in a certain form. I realize not everyone wants to do that, but Getty's approach is wrong, and something needs to be changed in copyright law to address the internet free for all.
If someone finds an image in the public domain, or seems to, or even pays another site for it, to what extent does due diligence require them to go? Do they have to seek out every photographer in the world and ask, Is this your photo that is available for free on this site?
I think that unless financial gain and intentional attempt to profit can be proven, that the government should write legislation to limit initial action to a cease and desist letter, and if an individual ceases, and desists, that the matter is settled.
There is a big difference between photocopying an image out of a magazine and finding an image on the internet in reality, though perhaps not legally. In the former case, you know the image source and you know you are "taking" something without asking the owner, in the latter case, with so much free content floating around, or "unsecured content", it becomes like finders keepers... like a dollar bill on a sidewalk, who is to say to whom the dollar bill belongs without proof of ownership.
I copyright my artistic creations, and I put them on the internet for free download, in a certain form. I realize not everyone wants to do that, but Getty's approach is wrong, and something needs to be changed in copyright law to address the internet free for all.
20
Getty Images Letter Forum / Re: Unfavorable Court Rulings ?? Getty ??
« on: April 15, 2011, 07:21:34 PM »
that's what makes me wonder if it's worth arguing them down to $500 and paying $500 to settle the matter and put it behind him, cheaper than absorbing Getty's legal costs if they decided to make an example.
21
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).
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).
22
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?
"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?
23
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??
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??
24
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
#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
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