Messages

151

Getty Images Letter Forum / Re: Need an opinion on a letter I received.

« on: November 15, 2013, 05:03:11 PM »

Removing the image was wise. 

Next: My first thought was: is this even real?  After all, it's possible we can start seeing phishing type extortion schemes over time. And there are strange things about this letter (why suggest you communicate through email? Lots of phone number are untraceable and so on.)  But I googled around and the attorney seems to exist and he seems to be representing BWP media here:
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2013cv03595/268943/13

In that case, BWP is going after NING, which would at least have been a large company. But I don't know what the actual complaint is.  I also don't know if your letter is actually real. 

But I googled around, and my judgement is: you need to think about an attorney. Not because you'll lose the suit that is coming your way, but because I think this guy is filing lots of suits.

Google
[email protected]

Among other things, you'll find traces of an ongoing suit against Ning
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2013cv03595/268943/13

justicia.com is a real site, so that seems real. 

I found other stuff: I have no idea what plainsite.org is.

I found this tibit: The 'filing' seems similar to the one here:
http://www.plainsite.org/flashlight/case.html?id=2553272
Scroll down to document 1.  Scroll up: note point 7:

CLERKS E-MAIL RE LOCAL RULE 3-2 TO COUNSEL on 6/3/13 addressed to [email protected]. COURT REQUIRES YOUR IMMEDIATE RESPONSE. Pursuant to Local Rule 3-2, you are required to e-mail, within 24 hours of filing, a Filed stamped copy of your complaint and other civil case initiating documents, in PDF format to the Court. To date, we have not received the PDF images of your filing. Please do so within 24 hours or this matter will be referred to the Judge for further proceedings. (mg) (Entered: 06/03/2013)

Note 10: whatever happened, BWP dismissed the claims.  I think this means BWP dropped the lawsuit.  So that looks like a complete LOSS for BWP. But likely the person he sued hired a lawyer to respond to the suit.

Something hauntingly similar happened here:
http://www.rfcexpress.com/lawsuits/copyright-lawsuits/california-central-district-court/559949/bwp-media-usa-inc-v-playboy-enterprises-international-inc/summary/
This one is further along though.

And I see http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEEQFjAE&url=http%3A%2F%2Fdigitalcommons.law.scu.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1540%26context%3Dhistorical&ei=npSGUv3dHYqA2wXaqYGAAw&usg=AFQjCNHWJ8UBFjmcMeyvx3io4JqWMGKGvQ&bvm=bv.56643336,d.b2I  which suggests an ongoing suit against "FlipKey, Inc. and Tripadvisor, LLC,"

This guys seems to be filing stuff.  I'm guessing he is losing hither and thither and lots of those counts are nutso. But if he files you will probably have to answer.

I'm sort of still thinking: Really? Is this real?!! But it sortof looks real.  Maybe other people can figure out if these cases are real or if they are things that have been spoofed to make a scam look more real.

152

Getty Images Letter Forum / Re: Got the Getty extortion letter grrrrrrrrrrrr

« on: November 12, 2013, 07:07:05 PM »

Lucia, thanks. Again, I have no knowledge of the alleged infringement and cannot find proof of it anywhere--other than the pixelated--and, for all I know, doctored--screenshot they sent in their ransom note. I can't imagine a judge would rule in their favor on the strength of that screenshot alone.

I'm fairly certain a judge would not do so, particularly not if you confidently stated that that image was never hosted on your server.
 All I'm saying if you say "it might have been in a flash module", the next question become: Do you mean a flash module hosted on your server? 

I like to look at both the "worst that could happen" and "the best that could happen". And, initially, the way you worded things, it sounded as if you could confidently state that the image was not on your server. But your later statement makes it sound like the image may have been inside a flash module and the flash module on your server. That is an image hosted on your server.

One thing you need to remember is that if they sued you, they might have access to the html and other stuff. That is: they could have evidence beyond what they showed you.  So, even if you don't have evidence, they may. Moreover, if they have a screenshot and the most you can say is you have not been able to find evidence you hosted it, that is not as strong as saying you can definitively say  you did not host the image.

Look what it takes to prove speeding. People get off routinely for uncalibrated radar guns and a slew of other technicalities that fall within the plaintiff's burden of proof. Seems to me a good lawyer would eviscerate this claim. Unfortunately, it looks as though I'll have to retain one now. It's really too bad. This is a major waste of human time and productivity for all parties.

Maybe a good lawyer would eviscerate the claim. But that depends on what other evidence Getty has and other factors which likely you don't know or which if you know you have not shared with us.  And if you went to court, a lawyer would be expensive. That said: even if the lawyer did not eviscerate the claim, they would almost certainly get damages demanded by Getty reduced because Getty states ridiculously high values in their letters (and then they generally don't sue. Collecting whatever they manage to collect and not suing seem to be prime features of their business model.)

That said: moving away from "what is the worst that could happen" to "what is more likely to happen", it's unlikely Getty will sue you for reasons stated above. If they don't sue, a lawyer is irrelevant.  But, it's not quite the slam dunk I thought initially-- so it might be that you want a letter writing program. But, if as I suggested above, it's possible Getty doesn't even really know who owned the site, or who to sue, you might not even want that. Also, if the statute of limitation is up, you also don't need a lawyer.  Statute of limitations is 3 years from when they found the image.

153

Getty Images Letter Forum / Re: Got the Getty extortion letter grrrrrrrrrrrr

« on: November 12, 2013, 12:51:51 PM »

Thanks for the additional insights.

It may have been "hot linked" from another site . It's also possible that it was embedded/compiled in a Flash module that showed a montage of very small images. But in either case, it never at any time physically resided on the server as a standalone image, and I have 100% validated that.
[/blockquote]
Hmm...  You're introducing modifiers there.

With respect to the hotlinked issue: By embedded in a Flash module: was the Flash module hosted on your server? If yes, then you won't want to be throwing the "Amazon v. Perfect 10" ruling at Getty.   Because I would call hosting an image by way of embedding it into a Flash module which is hosted on your server hosting the image on your server. With respect to the "hotlinking" issue The issue is: did you copy (from the pov of copyright law)? Or did someone else someone else copy?  Copying it onto a Flash module could still be copying.

(Mind you: you might have a fair use defense. Or a deminimus defense. And all sorts of other things could arise. But "didn't host as image as a stand-alone file on my server" is not the same as "didn't host the image on my server".  And the only really truly "safe" interpretation of Amazon v. Perfect 10 is that if you didn't host the image on your server (or one you control) at all-- not even if you look at it cross-eyed, they Amazon v. Perfect 10 clears you of needing to worry about it any further.

Getty mafia. What they are doing is extortion because it presumes guilt without due process, and they demand outrageous sums of money that have no correlation whatsoever with actual "damages." It's pure corporate bullying, exploitation, and profiteering and needs to be stopped.

Yes. They word it that way. And I disapprove of them. But to some extent, if we can either discuss Getty generally, or your case specifically. With respect to your specific issue:
(a) ultimately, they can't force you to pay unless they sue you and prove their case to a judge. They aren't the judge. 
(b) mind you, if they are right both in their accusation and the law, you might have to pay a lot.
(c) they rarely sue anyway and
(d) if we switch to discussing Getty generally on the thread specifically discussing your case, we'll miss the details that might help you decide what to do in your case.

So: back to the hotlinking.  When you say it might have been in a flash module: did you host that? You aren't required to answer that here and in fact, it may be prudent to not answer it. But you need to understand that copying an image onto a flash module and then hosting the flash module on your server is almost certainly hosting the image on your server from the POV of the law. So in that case, you lose the "hotlink is not copying" argument.

But, if I understand you correctly,  it looks like you probably still have these in your favor
1) Dated materials with time stamps that suggest Getty found this at least two years ago.  If so, the statute of limitations for their filing a suit is short. They have three years. If they don't file before the first date for which you have dated documents in hand, they will lose not because they are wrong on copyright, but because they have to file in a timely matter.

2) You are only using 1 image. So they are unlikely to sue. (This is a very important issue in your favor.)

3) Not sure what happens with the dissolved corporation.  Maybe you would be liable in their place, maybe not. (Of course that would be irrelevant if they can't even be sued.)

4) Irrespective of that- it's possible based on the documents you say you have in hand that they don't know who to sue. In which case, strategically, it might be wise to not respond -- particularly if you think you might be liable in place of the corporation. Their having no idea who to sue would be in your favor (and would contribute to them not suing).

5) I'd tell you to take the image down, but it appears you have?  If it's in a flashmodule which you host, remove that flashmodule from your server. Otherwise, if they know the uri of the flashmodule, they could copy that module. They can also monitor whether the module is there and recopy from time to time to prove that you continue to host a flash module with the image on it even after they informed you of the issue. While a screenshot is not evidence, the flashmodule would be and their stating that they copied it from a uri in your host would be evidence you hosted the image. The screenshot would then indicate you displayed that flash module, and if they have html for the page, they would have stuff that amounts to evidence. So, don't assume that what they show you is the only evidence they could possibly have.  So: if you are hosting the image in anyway shape of form, take that image off your server.

6) You indicate there is no evidence on the Wayback.  That's in your favor. (But do see above.)

7) It might be the case that if you were sued, you would have a "fair use defense". This might be particularly so if the flash video was some sort of spoof, irony, political commentary and the image was somehow used as commentary of some sort.   But we can't know that without seeing the flash video, and all in all, it's cheaper to avoid a suit rather than fight it. So, it remains prudent to take it down. (OTOH, if it's very important to you to keep it up, and you want to defend that and so on, consult with an attorney, show evidence and find out whether you have a good case for fair use and so on.)

154

Getty Images Letter Forum / Re: Got the Getty extortion letter grrrrrrrrrrrr

« on: November 11, 2013, 11:21:36 PM »

I should add a caveat: If you hotlinked from a site you don't control, you are gold.  Basically: you get to use the letters I wrote to getty roughly 2 years ago.  Or you can be even feistier.

 OTOH, if you have an account of some free photo hosting site, uploaded to your account there and hotlinked from there, maybe you aren't gold. Getty might need to persuade a judge that the Perfect 10 ruling doesn't apply and that the fact you could upload matters -- and it might win such an article But if you just hotlinked from some stray site you have nothing to do with, and your in the US.  You are gold.  More later.

155

Getty Images Letter Forum / Re: Got the Getty extortion letter grrrrrrrrrrrr

« on: November 11, 2013, 11:09:04 PM »

So does anyone know the success rate in Oscar's program? I don't want to pay $200 only to have to pay Getty  eventually if he can't get this shut down

It's good. But if you hotlinked... you don't need Oscar. (Hotlinking is when the image is on someone elses server and you just had html that caused it to display.)  BTW: statute of limitations is 3 years from the time they find a violation. But hotlinking.... not a violation.

156

Getty Images Letter Forum / Re: Got the Getty extortion letter grrrrrrrrrrrr

« on: November 11, 2013, 11:07:14 PM »

Alleged image is not on the web server anywhere.

If your site is in the US, the fact that the images is not and was never on a web server you control is potentially the single most important fact here.  The issue of hotlinking has not made it to the US Supreme court, but it has made it to the 9th circuit which is 1 layer below.  They ruled hot-linking is not a copyright violation under the US statutes.  There is also a 6th circuit ruling that looks good for you (which I need to hunt down.) So, be very happy.   No way is Getty going to sue you for 1 hotlinked image and if they did, they would probably lose big time.

If you are sure it's not and has never been on your server, we can point you to appropriate fun letters to write tomorrow. You can also contemplate helping Greg out in his campaign to lodge complaints.

Reads as if other factors are in your favor too.   I advise waiting to respond only so that you can write one of the best letters evah!

157

Getty Images Letter Forum / Re: Get getty letter, please help

« on: November 04, 2013, 11:52:01 AM »

I'm taking the letter recipients word that the photographer is famous and that the images are registered. Most images in Getty's catalog are by photogs who are not famous and who did not register the images. Note also: Roughly $900 per image seems to be Getty's standard requested value.  Mine was in the $850 range for 1 thumbnail by a not-particularly famous photog. (She did create nice photos and was known a bit.)

158

Getty Images Letter Forum / Re: Get getty letter, please help

« on: November 02, 2013, 11:10:48 PM »

Most people who arrive here are in the situation of 1 image, it's not registered and so on.

That's a lot of images. And you say all are registered and the photographer is famous? I'd hire a lawyer.  You could try Oscar's letter program.

159

Getty Images Letter Forum / Re: Small Business up against big Getty

« on: October 30, 2013, 11:09:32 AM »

First: Picscout makes weird mistakes.   For example, I loaded up an digital image that was nothing more than a square with an X across it. Picscout's browser add on tool said it was "the same" as a bird sitting on an electric wire. The shared element is the diagonal line. Seriously....

Mind you, we don't know if Getty is using Picscout or something more sophisticated.  More sophisticated comparisons are technologically feasible and Getty may be using something else when ultimately sending out their letters.

But still, IF they took this to court, they would have to be able to explain precisely what element in your image comes from the other image.  So, it is totally reasonable to ask them to explain precisely what element in your image they think matches the one in their image. Maybe they are going to claim a shoreline shape? Maybe someone cut and pasted in water and the ripples are the same? Who knows? But whatever they claim is the same, they ought to be able to tell you. 

Obviously, your also in the "it's one image" category. So, they are unlikely to sue. But these other factors make it even more unlikely they will sue. After all: it's one image and it's a more complicated case to make in court.

160

Getty Images Letter Forum / Re: Pinterest New Relationship With Getty Images

« on: October 27, 2013, 05:45:12 PM »

I'm wondering how the copyright owners (i.e. photographers) feel about this. Are they going to be paid when their image is "pinned"?  If they are, they might think it's fine. If not, many will be pretty pissed off.

161

Getty Images Letter Forum / Re: Here Is My First Response Letter To Getty > Please Review & Use

« on: October 25, 2013, 06:34:28 PM »

Also, in the meantime, it can be useful to learn how to look up registrations at the US copyright office. (It's not that hard.) In fact it's useful to do this before sending any letter. (We can explain how. But it's late-- so if you need help, ask, and I can point you to the place tomorrow.)

Lucia, How do I look up copyright registrations?

Love,
Leslie

Sorry for the delay,
The copyright registration search tool is here:
http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

It's a bit strange.  But, what seems to work best is to first enter the author name in the "search for". Select "100 results per page" this is helpful because of the strangeness.)

If the author has a common name you'll wan to click "other search options" which get you here:
http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?PAGE=bbSearch&SEQ=20131025182816&PID=XMRpauJGK4qaZwbsjb0IPmsUD-Gyp

You'll want to use the authors name-- and try various choices for name (claimant etc.)

If you are getting a lot of results, you might want to try "search limits" (Look to the right of the page). Pick "visual materials". 

Usually, if the name is unusual, you get no results because most of these photographers don't register anything. But if yours is the exception, you'll probably find LOTS of results.  In which case, the issue is whether the image YOU are dealing with is there.  The least ambiguous case is actually when you do find the photographer has registered something (often for a book by someone else!) but doesn't register much-- and in particular did not register anything around the time your photo was registered.

Sorry I can't give better advice, but it's really a crotchety system. (I can't compare it to healthcare.gov because I haven't tried that one. )

162

Getty Images Letter Forum / Re: What if the image is being sold on other sites

« on: October 20, 2013, 01:45:20 PM »

With respect to the unauthorized use of our represented imagery, the burden of proof lies with your company to show licensed use of the images in question.   Copyright exists in an image the moment the work is created, copyright law protects one's intellectual property regardless of registration.  You must obtain the permission of the copyright holder or his designated agent prior to use.  Copyright infringement can occur willfully or accidentally, but copyright law prohibits both.  Although the unauthorized use may have been unintentional, the law may still find the end user liable.
 

The difficulty for Getty is they can't sue on behalf of the photographer if they are not an exclusive agent. The photographer may.   

Because the photos are sold elsewhere, the fact is that Getty can't know who has licensed based on their records. You could have a license from one of the other groups.  And even you you don't, you have reason to believe they are not the exclusive agent and so there is no reason to deal with them. You could deal with the photographer.

I'm not quite sure how to word this best, but tell them that you have reason to believe they are not the exclusive agent.  Other licensing venues exist.  As such, the have no reason to suspect any infringement because they should be perfectly aware their records about licensing are incomplete. Maybe you could say you prefer to limit your dealings with whoever does have a right to enforce the copyright, which in this case appears to be the photographer.  Then tell them that if they can show proof of exclusive agency, you will negotiate with them.

 Of course, it's possible the photographer could step forward. If you have violated copyright, the copyright holder does have a right to sue on his own. Or, they may provide proof  they are exclusive agent.  It's just that Getty can't sue unless they are the exclusive agent-- and if the images are being sold elsewhere and they have not been enforcing what they believe is their right as exclusive agent, a court may decree the aren't the exclusive agent.   

163

Legal Controversies Forum / Re: Willful Infringement case: USA vs JULIUS CHOW LIEH LIU,

« on: October 15, 2013, 09:29:57 AM »

http://webcache.googleusercontent.com/search?q=cache:sKZVh-aAmroJ:cdn.ca9.uscourts.gov/datastore/opinions/2013/10/01/10-10613.pdf+&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a

cdn.ca9.uscourts.gov/datastore/opinions/2013/10/01/10-10613.pdf‎

164

Getty Images Letter Forum / Re: Here Is My First Response Letter To Getty > Please Review & Use

« on: October 13, 2013, 11:25:47 PM »

As soon as I read your letter I immediately removed the image from our website andmade sure no copies existed on the computer or backup drives.

Maybe you could word it to say you modified the html of your pages to ensure the images in question no longer appear when your pages are display. This leaves the question open whether the images were  were stored on your server.

But bear in mind: If you did store the images on your server and Getty has gotten some smarts they will have started to store html. In which case, they will know you had the image on your server. (Still, don't say actively admit it. If they want to tell you they know it was on your server, let them say so.)

Also: Do not tell them where you "get" your images. None of that information needs to be shared with them. But either now-- or when you get the next letter-- be ready to ask them for proof that they have a right to represent the copyright owner. So: registration, contract and so on.

Also, in the meantime, it can be useful to learn how to look up registrations at the US copyright office. (It's not that hard.) In fact it's useful to do this before sending any letter. (We can explain how. But it's late-- so if you need help, ask, and I can point you to the place tomorrow.)

165

Getty Images Letter Forum / Re: Here Is My First Response Letter To Getty > Please Review & Use

« on: October 13, 2013, 02:29:47 PM »

It's one image. Getty probably won't sue. But we can be 99% sure Getty will respond with another scary letter. They do that even when they are 100% wrong.