Messages

151

Getty Images Letter Forum / Re: Getty: terminated

« on: April 05, 2014, 07:23:07 AM »

I would like the copyright law to not only protect the artists and their works but protect the innocent/non-willful infringer from copyright bullying and extortionist practices.

 

I hear what you're saying here, Greg, and I think perhaps your issue lies less with copyright law as codified under 17 USC and more with how pre-court action is handled.

As I see it, the infringement penalties are just fine as they are; actual damages for unregistered images equate the lost license fee and a plaintiff would have to prove that the license they're seeking to recover is reasonable and in line with an industry average.

Statutory damages are also just fine as they are: the starting point of $750 is quite apt for a lot of cases and it's at the jury's discretion as to how far north of that point they will go. If an infringer is found to be innocent, the damages might be as low as $200.

Now, demand letters / emails are another thing entirely: they are akin to saying "hey, this is what you've done and, if you want to avoid me taking you to court about it, this is how much I think you should pay me"; whether that demand letter cites $100, $1,000 or $100,000 as the offer to settle - it's all perfectly legal.

Why? Because you are within your rights to say "no, I don't think that's reasonable", refuse the offer and maybe even counter with your own offer. You are also well within your rights to refuse to engage them at all until the point you're named in a federal suit.

I said in another posting that creatives are, by and large, emotionally attached to their work - so when they perceive that they've been wronged, they'll unleash the proverbial fire and brimstone. There's an emotional tendency to tar all infringers with the same brush, so to speak... especially if it's a large entity that's appropriated their work: one issue that springs to mind is Samantha Ravndahl in her case against rap artist L'il Kim http://www.huffingtonpost.ca/2014/01/22/samantha-ravndahl-vancouver-makeup-artist-sues-lil-kim-lawsuit_n_4578168.html

By all accounts, Ms. Ravndahl made efforts to settle the matter without it "going legal" and was rebuffed; instances such as this get the creative community fired up and emotional. One would like to think that the larger the entity, the quicker they'll put a situation right. My personal experience has been quite the contrary with very few exceptions.

There should be a fair amount in these cases (1200.00 for a sprinkler head is WAY out of line) and punishment for these businesses should be equal to punishment for willful infringers.

There's always going to be a difference of opinion as to what constitutes fair. You're entitled to hold the opinion that someone seeking redress to the tune of $1,200 for unlicensed use of an image of a sprinkler head is excessive - much in the same vein that the creator of the shot is entitled to an opinion that the use of their work without license was because their image was the best fit and, if properly registered, $1,200 is a fair offer to settle without having to go before the courts.

As an example: moments ago, I went to Google Images and searched for "sprinkler head" - many of the shots were very run-of-the-mill and a few were quite technical. The first one to pop out at me was this file

http://commons.wikimedia.org/wiki/File:Sprinkler_Irrigation_-_Sprinkler_head.JPG

It stood out from the other searches because of the use of a slow shutter speed, the creative use of depth of field, the angle of view and the overall framing & composition of the shot. It just so happens that the author, Anton Croos, has also made the file available via Creative Commons licensing.

Now this creates an interesting situation: knowing that there is a highly creative and artistic shot to illustrate a sprinkler head which is freely available to use (with minimal caveats) - what if an entity just instead lifts a different picture from the web, one which happens to have been timely registered?

In a free market economy, the person appropriating the other image has made a choice through whatever value judgement is relevant to them. They had the options to create their own shot of a sprinkler head, or to make use of an image that was free-to-use... but they instead elected to choose a different file. Their choice may well come with consequences - remembering, of course, that they also had a choice to not use an image at all.

To my mind, this is why copyright law is codified in the present form: ample exemptions exist for uses which the law considers to be fair (as long as your use genuinely meets all four criteria) and any use outwith that scope must be viewed through the framework of protecting the artist's rights in the free market economy.

Laws generally aren't written with fairness in mind - they're more concerned with justice (which is not the same thing); the only time that any concept of fairness comes into play is via jury trial, where both parties have to hope that the panel of peers will rule on the facts, considering the respective - and often disparate - positions of the defendant and plaintiff.

In closing, I really do get where you're coming from, Greg: when a demand letter lands at anyone's feet, I have no doubt that it's a stressful experience and will definitely feel very one-sided;  one should never lose sight of the fact that the attorneys who send these letters are doing so on the specific instruction of their clients and, like I said, a person is quite free to ignore the offers that those letters contain.

152

Getty Images Letter Forum / Re: Getty: terminated

« on: April 05, 2014, 04:55:37 AM »

I would think most photographers like taking pictures and not all the work that goes into selling and distributing them.  Getty makes it appear that they will handle all the work the photogs dislike.

Ain't that the truth; the creative mindset doesn't often gel well with the necessary business acumen or even simple administrative tasks that you have to do in order to earn a living. Heck, to this day I'm sometimes tardy on getting invoices out the door once a job has wrapped. This also points to why a good many shooters become emotional to the point of hyperbole when infringed on - they're passionate about their art, and want blood when someone takes it.

Maybe someone needs to show them a better way.  Maybe ELI can host a forum for photogs to help them find more or better ways to market themselves.  Putting their collective heads together could do a whole lot of good for this industry.

Well there are smaller independent agencies that are effectively collectives - the VII agency springs immediately to mind... but quite a few photographers that I've met over the years are extremely territorial and untrusting of others.

I remember quite clearly an incident in my first year where I had just joined a relatively high-end agency that specialised in getting direct access to actors and celebrities; I had emailed them speculatively and sent some examples of my work, and they were happy to have me contribute to them. Unbeknownst to me, a local shooter in the same city - who I assumed worked directly for a newspaper (as he was always shooting on assignment for them)  was also contributing to the same agency, and he got up in my face about it when we next saw each other, accusing me of "cutting his own grass" - my response was that if the agency had felt they had sufficient material from our area, they wouldn't have needed me - and if he was a better shooter than me, he'd have nothing to worry about.

Almost nine years later and those attitudes are still prevalent; I'm sure that there's quite a few shooters where I live who would kill to land some of my clients. If my clients believe their work is qualitatively better than mine - well, I'll have dropped the ball and deserve to be elbowed out. Same goes if I majorly screw up a shoot.

Collectives work when shooters have gotten comfortable enough that they don't have an ego in the sense of "someone is going to take my place" and, instead, just get on with what they do. I've met almost no-one in my locale that would qualify as such 

153

Getty Images Letter Forum / Re: Getty: terminated

« on: April 04, 2014, 04:05:05 AM »

I figured you'd have that opinion, Greg 

Patent abuse is an ugly thing, especially when companies cease to innovate and simply sit back and strong-arm the competition through legal process, especially when there are very compelling cases for prior art which would invalidate the patent.

It's also disappointing when some companies use their patents as a means to stymie would-be competitors in the marketplace (I'm looking at you, Apple & Samsung) - as if it's not enough that they can be successful, they have to actively destroy their rivals.

On a personal level, I'd far prefer if Getty were stung by those they claim to represent: creative artists. I have a feeling that the NFL case will be one such blow. What worries me is that, in the light of these actions, creatives still support Getty by funneling their work through them. That's the part that confuses me the most.

154

Getty Images Letter Forum / Re: Getty: terminated

« on: April 02, 2014, 10:03:16 AM »

Another case that could be potentially devastating to Getty is a patent infringement case which if I read it correctly claims Getty's entire system of online licensing is based on patented technology which Getty has not licensed from Uniloc.

I'm afraid that, on general principle, I can't root for Uniloc - I trust you've seen the information here?
 
http://en.wikipedia.org/wiki/Uniloc

I suspect Uniloc are going to run into serious prior art issues here, as their patent was granted in 2000, which post-dates Getty Images' presence on the internet, not to mention other libraries such as Corbis.

Getty's retention of counsel from Perkins Cole LLP points to this as, although Patent, Trademark and Copyright law have some principles in common, litigating the issues are very different tasks. If I were in business at a relevant level, I'd retain separate specialist counsel for each branch of IP law.

Just my €0.02

155

Getty Images Letter Forum / Re: Getty: terminated

« on: April 02, 2014, 04:13:27 AM »

Greg,

I imagine that, if Getty declined to pursue a claim, they'd that fact in writing to the creator - effectively releasing / transferring said right. It's a perfectly valid and sound option under law to the best of my knowledge.

Oh and for what it's worth, the full contract language states that the copyright for images submitted as a contributor always vests in the author of the image - Getty don't claim the copyright over works that are submitted... only the right to pursue legal action if they're infringed upon; that's why clause 1.11 also states that the creator must cooperate in the claims process. In effect, it's akin to appointing Getty as your copyright attorney - but without the transparency.

I can clearly imagine a scenario where Getty issue a demand letter for a three or four figure sum and, when a payment is received, they first deduct all their "expenses" for pursuing the claim, leaving a fraction of the sum recovered from which to pay the 35% royalty to the contributor. There's nothing in the clause - or anywhere else in the contract - that offers up a proper accounting of expenses etc.

At least if I'm dealing with my own counsel, I know how much a claim is costing me as they have to provide a thorough breakdown of costs. Getty's version of handling a claim is analogous to "hey, trust us, okay?"... not bloody likely! It smacks of the way that the larger players in the film and music industry obfuscate their costs so as to reduce net royalties liabilities (for those curious on what I mean, have a look at http://www.deadline.com/2010/07/studio-shame-even-harry-potter-pic-loses-money-because-of-warner-bros-phony-baloney-accounting)

Consider how Getty appears now: they aggressively pursue infringements of content they distribute, yet also seek to reduce fair compensation to (or avoid compensating altogether) the content creators themselves... and/or infringe on their rights too.

I now hold the personal opinion that Getty are a de facto enemy of content creators; the Morel case showed their true colours, the ongoing case of the seven sports shooters vs. Getty / AP / NFL has brought to light some very troubling allegations which - if proven - will eclipse even the Morel case in terms of impact. I hope that the photographers in question don't settle and the matter gets forced out into the open.

156

Getty Images Letter Forum / Re: Getty: terminated

« on: April 01, 2014, 01:50:12 PM »

Here's the text of the clause in question:

"1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it."

Now, given that Getty licenses images to its largest customers for $1.00 or less (subscription clients especially - I've seen it on my statements), and given that they pay a 35% royalty, the scenario that is extremely plausible is this: when a photographer like me discovers that an image has been used without license by one of Getty's largest clients, the potential exists for Getty to turn around and say "hey, let's not sour things... we'll roll in a back-dated license for the use at your normal rate" - the language is there in the term I've referenced. I'd have pointed towards a major infringement for effectively bugger all to be done about it.

This reeks of a double-standard to me: If you're a Getty client, you'll get a disapproving glance and a hey-let's-not-rock-the-boat-we're-friends-mkay?... if you're Joe Average and not a currently a source of income for Getty, you'll receive a settlement offer letter instead and might end up being litigated against.

There's no way on this earth I could be a party to such business practices and, like I said, it's one of the key factors as to why I quit them.

157

Getty Images Letter Forum / Re: Getty: terminated

« on: March 31, 2014, 12:14:50 PM »

Like I said: there's no one single issue that made me decide to leave - though the writing was on the wall for over a year. If I had to sum up my largest concerns, they would be (in nor order)

a) Their treatment of the Daniel Morel case
b) The claims laid out by the four sports shooters in their ongoing case against Getty / NFL
c) The "race to the bottom" regarding royalties, which were cut from 50% to 35% for seemingly no other reason than it helped to streamline Getty's accounting processes.
d) Their contractual "right to control claims" for images they do not own the copyrights to

The last one was probably the straw that broke my back. I couldn't find any accounting for an image use that I discovered on the website of a major blue-chip tech company.

I asked Getty to look into it on three separate occasions over the course of a year (I'm a patient man) and, when they finally got back to me and said "no, it's never been licensed by us" I said thanks, I'll pass this to my attorney.

The agent then emailed me back almost immediately citing a clause in my contributor agreement saying that Getty had the right to control my claim - my own damn fault for not scrutinising the contract at the last amendment. I disagreed with this as they didn't own the rights to the image (i did) and told them as much and, pissed off that it had taken them over a year to simply tell me an image had never been licensed (info that should be at their fingertips) I told them screw it, I'm cancelling my contract and no, I'm not going to co-operate with your request for infringer details.

My suspicion is that if they didn't know that the image was being infringed upon, they might have provided it to the company in question without charging them. If I find this to be true, all bets are off.

158

Getty Images Letter Forum / Getty: terminated

« on: March 30, 2014, 02:49:28 PM »

I've not been around in a while so this is a quick, brief update.

After digging in to many issues, I terminated my contract with Getty Images and have pulled my entire library of work from their archives too. There's no single reason behind my decision - rather, it was an amalgamation of several issues.

I'm doing my best to convince other shooters I know to leave the Getty fold and/or not sign with them in the first place; I guess the short version is that I've uncovered a several practices which have highlighted that they only have their own interests - and those of their largest clients - at heart.

Their aggressive race to the bottom and seeming lack of desire to comport their business in an ethically and morally sound manner is no longer a practice I can support. Their actions have - and are - causing significant damage to the wider community of content creators and content users alike.

159

Getty Images Letter Forum / Re: A friend of ELI

« on: June 24, 2013, 07:57:17 AM »

As I've said before and nicely illuminated by DvG's listing of legal and "do the right thing*" email and phone call victories, it's obvious that there's easy money to be made off one's creative work as long as a person's willing and morally capable of sending out emails and letters threatening people with lawsuits.

And, Lord knows, a $350 filing fee plus a percentage to various teams of lawyers (for example, six in the U.S. and one in Canada with, perhaps, new filing paperwork associates with scary letterheads being considered for hire in England, France, German, Spain, Japan, Russia, Bolivia, Iceland, Argentina, Mexico, and Greenland) represents a terrific investment when you know that move will force a settlement out of most likely almost ALL of those who didn't knuckle under to the initial settlement demand emails giving them the opportunity "to do the right thing.*"

DvG, of course you don't want to answer my questions about your income percentages because doing so would reveal facts that you need to keep hidden if you want to maintain any kind of credibility here on ELI. Everyone with three functioning brain cells understands that.

DvG, of course your terms are confidential. Confidentiality agreements represent one of the main reasons lawyers and trolls get away with the various schemes they get away with.

Quick rant: If all legal results were a matter of public record as they should be in a free and open society that has fair laws legislated to attain justice instead of laws designed to help greedy bastards line their pockets, internet copyright trolls and their collection agent lawyers would be forced to do some honest work to earn their daily bread instead of cashing in using fear, threats of lawsuits, and bullshit confidentiality agreements to keep their slimy schemes private.

"Everyone has a right to an opinion." Yep, but even though they can get away with it and indeed often gloat and brag about it, speculative invoicers do not have the right to lie or twist truth and laws to make money off those who scare easily or those who are intimidated by smooth talking bastards into paying money for images when as far back as 2008 there were already more than 40,000,000,000 photographs on the internet. Charging $100 to $200 for a de minimus infringement is not right in my book. But for some people it's obviously a satisfying ("I cleared $850 today, honey, with six quick phone calls!"), entertaining ("Damn, dog, I love fleecing the rubes!"), as well as an absurdly easy business model to haul in some serious money with very little work.

*To do the right thing -- In too many cases involving copyright trolls, that means... Pay me money for an image I bulk registered or didn't register at all because I know I can make a sweet percentage of my living playing Speculative Invoicing for Dollars.

Y'know, I had in my head a very well thought out response to all of the above, but I've kind of been confounded this morning by the following

"Forbidden

You don't have permission to access /forum on this server.

Additionally, a 403 Forbidden error was encountered while trying to use an ErrorDocument to handle the request

Apache/2.2.2.4 (Unix) mod_ssl/2.2.2.4 OpenSSL/1.0.0-fips mod_auth_passthrough/2.1 mod_bwlimited/1.4 Frontpage/5.0.2.2635 Server at www.extortionletterinfo.com Port 80"

Same error message when I try to access the front page of the site too. Curiously, this only happens on my desktop and laptop computers, which access the internet via my router on what must be a particular IP address. I don't have any issues using my phone to connect over 3G... though it's not best suited to lengthy replies.

I'm sure it's just a glitch, though, right? 

160

Getty Images Letter Forum / Re: A friend of ELI

« on: June 23, 2013, 11:24:51 AM »

Indeed, DvG's contributions on ELI speak for themselves, especially when he still hasn't provided specific answers to questions about how much time he spends on helping infringers do the right thing by threatening them with lawsuits if they don't cough up a "fair" license fee.

I'm not going to go into specifics because a) I don't want to and b) the terms of settlements with those whom I've brought suit against are confidential

But, if you'd like broad brush strokes, here's what's happened in the last three months

1. A settlement for almost $9,000 where a sports establishment in California used six of my photographs without permission. They were given the opportunity, after a lengthy phone call directly to them, to settle for less than 50% of what the images would have been legitimately licensed for, yet they thought I was a "scam artist"... until I filed suit. The case was settled just shy of going to trial during by a court-appointed mediator.

2. A settlement for $25,000 by a corporation in Canada who has used at least 25 of my photographs over a period of time (I think it was actually 36 uses, but of just 25 images). They initially refused to pay any license for my photographs at all, then finally made a direct offer of $300 "for whatever images our writers took off Google". This settlement offer came one week before the case was due to be heard in court.

3. Several settlements of lost license fees alone from direct contact with infringers, which is a win-win scenario. The per image fees were in the $100 ~ 200 range. Whilst this requires way more effort than folk just asking for a license in the first place, it sometimes results in new clients - so it's the result that I prefer the most.

4. Seven cases referred to my attorneys (six in the US, one in Canada) for people who have either not responded to my messages or have told me to 'get lost' (or some variation thereof)

5. Two cases where suit is on the brink of being filed if the infringers and/or their attorneys don't respond by month end... especially as one is a repeat infringer (seems you can't fix stupid)

Oh and yeah: I perform checks of whom has infringed on my works a few times per week. Mostly I don't find anything but, on some days, the results are in the dozens... and there's a ton of due diligence that I do before even making first contact.

You call it "trolling", I call it protecting my business interests and the value of my work. Everyone has a right to an opinion 

161

Legal Controversies Forum / Re: Buzzfeed Faces $3.6 Million Lawsuit for Copyright Infringement

« on: June 20, 2013, 10:54:50 AM »

This had to be done for the publicity - or the guy made a huge error in judgement.

I'm going to go with the latter. I'm sure that buzzfeed.com will piss someone off soon enough whom actually has all their ducks in a row with regards to timely and correct registration of their own works  but, for now... yeah, this isn't going to get very far.

162

Legal Controversies Forum / Re: Buzzfeed Faces $3.6 Million Lawsuit for Copyright Infringement

« on: June 19, 2013, 08:10:03 AM »

Oh dear, I've just noticed that the photographer filed suit as a pro se litigant.

/facepalm/

163

Legal Controversies Forum / Re: Buzzfeed Faces $3.6 Million Lawsuit for Copyright Infringement

« on: June 19, 2013, 07:29:40 AM »

On the one hand, $3.6 million is ridiculous. On the other hand, Buzzfeed's business model is copyright violation.  So, I don't have much sympathy for them. It will be interesting to see how this goes.

I don't think the photographer or attorney expect to net $3.6m in damages... however, much like any damages related lawsuit, the "form" is to go in with a high number and see what the courts think in terms of validity of claim.

I'm also 100% with Lucia on the business model of buzzfeed.com and similar sites - they only exist because they appropriate and redistribute the work of others and hope that they're assess are covered by DMCA and fair use exceptions, whilst earning a bucket of advertising revenue in the process.

I'll be watching the outcome of this suit very closely.

164

Getty Images Letter Forum / Re: A friend of ELI

« on: June 19, 2013, 07:15:49 AM »

Something McCormack law does not seem to "grasp" is the "cease and desist" part.

There's absolutely no requirement to send a Cease & Desist notice before initiating any actions for copyright infringements - though some entities choose to do so, as the "warning shot across the bow" can often serve as notice that you're taking the situation seriously but would prefer not to actually engage in anything formal.

Also, there are instances where a C&D might not be fitting; imagine if your work had been pilfered by a major corporation who actively protected and enforced their own copyrights. (I can think of a few) - I doubt anyone would fault you if your first actions were to file suit against them.

I've been in the position described above on a few occasions - though I haven't ever instructed anyone to file suit before at least informing the infringer of their actions and giving them a chance to do the right thing.... though if I ever found my work being used by Big Media without license, you can bet I'd shoot first and ask questions later.

165

Legal Controversies Forum / Re: Okay, this takes the cake...

« on: June 13, 2013, 04:26:42 PM »

Like most people on this forum, I didn't have a dog in this fight either. But that all changed, when I got the letter . . . . .

Well, we are approaching the issue of copyright enforcement from different ends of the spectrum, aren't we? 

What I meant by "not having a dog in this fight" is that I don't own the rights to any of the images that Getty are mistakenly offering for licensing.

I'm saying mistakenly because, unless I find a pattern of similar images being offered for licensing, it points to an error somewhere along the line as opposed to something more nefarious. That's my hope.

Still, I'm also unsettled that this has happened in the first place as it leaves me with a series of questions as to how these images have wound up, quite wrongly, on Getty's site for RM licensing... because that means that someone might have paid a fee to use this image when there was no need or, worse still, Getty might attempt to enforce copyrights on images to which they quite plainly have no claim to.

Simply put: someone in the chain has f'd up. I'm going to try to find out to what extent they f'd up, because, well, morally it's the right thing to do. What action I take will be determined by what I find.