Messages

166

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

« on: June 13, 2013, 02:59:07 PM »

Truthfully, I don't have a dog in this fight - but I do find it deeply troubling at the very least. I'm going to dig around and see what I can turn up to ascertain whether these occurrences were isolated incidents of if there's more of a pattern going on here.

I'm hoping for the former but, honestly, I suspect the latter 

167

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

« on: June 13, 2013, 01:45:12 PM »

I was having a browse of this page

http://www.europe-nikon.com/en_GB/press_room/Press_Room_Galery.page?lang=&lid=2

... and I noticed that the PicScout plug-in for Chrome flagged two results; now, I'd heard from some forum users that PicScout has a habit of incorrectly matching images so, to get to the bottom of it, I clicked through to the results.

All I can say is colour me f'n shocked.

The alleged rights managed images that PicScout flagged were this

http://www.gettyimages.co.uk/detail/news-photo/nikon-d4-digital-slr-photographed-on-a-white-background-news-photo/161617159

and this

http://www.gettyimages.co.uk/detail/news-photo/nikon-d4-digital-slr-photographed-on-a-white-background-news-photo/161617160

Now, both these images are freely available to download from the "Press Room" section of Nikon's website (http://www.nikon.co.uk/press_room/downloads/150631_high.jpg and http://www.nikon.co.uk/press_room/downloads/150728_high.jpg respectively); the files that N-Photo Magazine (part of Future Publishing Group) have as part of their uploads to Getty are identical.

Whilst I'd like to have thought that the inclusion of press release images which cannot be the copyright property of N-Photo Magazine / Future Publishing Ltd. was merely an oversight, it very raises serious questions about the checks and balances that are in place with some contributors and at Getty as well... because moments later, I found this.

http://www.gettyimages.co.uk/detail/news-photo/detail-of-a-nikon-d7000-digital-slr-camera-taken-on-news-photo/136406764

Which is actually this shot

http://www.nikon.co.uk/press_room/downloads/105235_high.jpg

The pixel dimensions are exactly the same for both shots - 1600 x 1216 pixels. This time around, the contributor is listed as Digital Camera Magazine... again, part of Future Publishing Group.

Three different press release images, uploaded on two different dates by two different contributors - none of which they have the rights to upload, let alone Getty having the right to license what are hand-out images?!?!

I think this might be the tip of the iceberg... 

168

Getty Images Letter Forum / Re: Masterfile's Copyright Registration Method Held Invalid by California Court

« on: June 09, 2013, 12:28:42 AM »

However, please feel free to post sections of US law that deal with such infringements in terms of criminal fraud, if you feel that they exist.

Here you go

http://www.law.cornell.edu/uscode/text/17/506#a_1_B

And here are the potential penalties

http://www.law.cornell.edu/uscode/text/18/2319

If anyone uploads my own works to a photo library in an attempt to profit from them... like I said, I'd look at all legal measures.

169

Getty Images Letter Forum / Re: Masterfile's Copyright Registration Method Held Invalid by California Court

« on: June 09, 2013, 12:06:38 AM »

We are all artists in our own right. Graphic design, web design, photography, drawing, writing, cooking, sewing, music, etc. We put our heart and soul into what we do and, for the most part, it brings us joy and fulfillment. And, if we choose, it can bring in some money.

I understand the above and agree.. but the above also frames the following.

But to bastardize it by mercilessly fleecing people with outrageous fees for unintended mishaps ... well, as you said, goodbye to the "rights managed" sector.

Now this is where you and I are likely going to have a difference of opinion.

When I find my work being used by another creative - especially if that person has had a college or university education in their field and earns (or is attempting to earn) a living from their creativity, then I approach those infringements with a far more firm tone than I would an "inadvertent" use on a small scale blog that has no advertising and/or doesn't solicit income of any kind.

As creatives, we all pour our heart and soul into what we do, so we should all have way more respect for the work of other creatives... which means we should stop and think as to whether we have the permission - never mind the right - to use or include the work of others with our own.

Believe me, I've had other creatives say that they didn't realise that they were doing anything wrong and, worse still, I've had a select few point-blank insist that they were in the right.

It frustrates me no end as, really, the last thing I want to do is go through the courts but I'm often left with no other alternative. At the time of typing this message, I have about a dozen cases in which I'm on the brink of filing suit over. That's going to be $4,800 in filing fees alone, and perhaps a few hundred dollars more if I wind up needing a process server for any of those instances. Having that sort of money fly out the door is not something I do lightly.

To me, copyrights are about respect and common decency. If a person has that creative spark within then that drives them to write, cook, sew, knit, design or whatever - then they should damn well be respectful of the efforts as others, since they are no less valid.

170

Getty Images Letter Forum / Re: Masterfile's Copyright Registration Method Held Invalid by California Court

« on: June 08, 2013, 11:38:28 PM »

"law enforcement agencies"?
What the hell are you on about now?

You obviously missed (or ignored) the part where the site admin claimed to have gotten my photograph from 123rf.com.

Now, I don't know about you, but uploading the copyright work of others, passing it off as your own with the intent to earn revenue from licensing of said work constitutes fraud... and, in this instance, there were two people that would have been defrauded.

1. The website admin whom supposedly licensed the photograph from 123rf.com
2. Myself

Had 123rf actually been able to supply me with information as to which of their users had uploaded the photograph in question, you're damn right I would have explored all options open to my by law, up to an including criminal charges being brought if at all possible.

Like I said, I found it troubling that 123rf was unable to supply me with any information as to whom had uploaded the photograph, and it was also more than a little odd that the site admin paid my licensing fee when I said I was suspending my claim against them pending the outcome of any investigation.

You think I'm "the problem" with the industry? Take your blinkers off, fella, and have a read through the first post I made to this site to better understand my position.

If you mentally want to lump me in with the stock agencies whose practices are often less than helpful to other creatives, go right ahead - just remember that I'm self-employed, register all my own works in a timely manner and only turn matters over to my attorney when

a) Attempts to negotiate for my lost license fee are rebuffed, or
b) The infringer is a corporate entity and/or headed up by or employs media professionals (i.e. people whom should know about copyrights and have no excuse to infringe)

If I think that someone is using my work within the bounds of fair use, I contact them and ask them to put in a proper byline credit and copyright notice if they haven't already done so.

If someone is using my work outwith the bounds of fair use, I'll seek my lost license fee from them and hopefully convert someone whom was probably unaware of image rights into a person who better understands and respects the work of creatives.

If you want to think that I'm "trolling", go ahead - I can't alter your opinion and, frankly, all it does is leave me disappointed that you're apparently so keen to have such a black-and-white view of people.

171

Getty Images Letter Forum / Re: Masterfile's Copyright Registration Method Held Invalid by California Court

« on: June 08, 2013, 11:50:06 AM »

Here's a little story that involves 123rf.com

Almost one year ago, I found a website using one of my photographs, with a byline credit "Pic retrieved from anothersite.com"; I performed a WHOIS search, got the site admins email address and sent an infringement notification, seeking settlement for the lost license fee.

At the same time, I also sent a near identical email to the anothersite.com, as they were also infringing.

A little over a day after I had emailed the first web admin, he responded saying that he had gotten my shot from 123rf.com, going so far as to include the URL where I could find my shot on 123rf

I quizzed him a bit on this point, as if he had indeed gotten it from that image library, why did the credit line say "Image retrieved from anothersite.com"; his explanation was that the admin for anothersite.com had told him that they'd gotten it from 123rf.com.

In the intervening period, the site admin from anothersite.com had repled to my email and agreed to settle for the lost license fee.

Still with me? Good.

So I got back to the admin of the first site and informed him that, since he'd licensed the photograph from 123rf.com, I'd need a copy of that license so I could provide it to the authorities, as an act of fraud had taken place i.e. someone had uploaded my shot to 123rf.com with intent to fraudulently obtain income from it.

I also contacted 123rf.com at this time to get the ID of whomever had uploaded the shot, informing them that they would likely be contacted by both my copyright attorney and such law enforcement agencies as woudl be necessary to investigate the fraud.

I informed the site admin that I was suspending my demand for payment of my lost license fee pending the outcome of any investigation that law enforcement would undertake; I reiterated my request for him to supply me with any information or records from 123rf.com that would help in this regard.

This is where it took a turn for the surreal.

After a little back-and-forth emailing with the admins at 123rf.com, I got this as my final response

"We are unable to find out who was the contributor who has stolen your image; this being said, we would require the contributor's Username from the client, but since the image has already been removed from our server, we are unable to investigate any further."

Also, despite informing the site admin that I was suspending my infringement claim pending what might turn into a criminal investigation, he volunteered to pay my license fee of $121.00.. in fact, the funds were in my PayPal account before I'd even read his message.

What I found most odd is that, in searching 123rf.com, there were no other images of mine on the site - not from the same event, or any other shots I'd taken. All that had been there was the one shot that a site admin had claimed to have licensed from them.

More troubling still is that 123rf.com were unable to provide me with any information as to how my shot wound up on their site in the first place.

Absent any hard data for me to put toward law enforcement - and since both sites had settled with me for the licenses that were due - I put the issue on the back burner... though I still periodically check 123rf.com to ensure none of my shots are up there.

172

UK Getty Images Letter Forum / Re: Should I respond?

« on: June 06, 2013, 06:31:52 PM »

The statute of limitations is 3 years.

Not in the UK it's not; whilst there are time limits for certain civil actions, those limits are entirely dependent on which courts you appeal to. Example: if you wish to bring an action via the small claims court, you have six years in which to do so for most types of cases.

Getting to specifics of UK law: the best example is the case of Matthew Fisher, whom was the keyboard player responsible for the distinctive Hammond organ melody on Procol Harum's hit A Whiter Shade of Pale (based on Bach's "Air on the G string").

The song was recorded in 1967, but Fisher sued to attain several rights to the song in 2005. He initially won his case in 2006, but the result was appealed and partially reversed in 2007.

Fisher was given leave to appeal the reversal in 2008, and a unanimous verdict was rendered in 2009 at the House of Lords, which granted Fisher the co-authorship that he claimed and a resulting 40% royalties claim.

Most importantly from this case came the statement from the House of Lords that there were no time limits to copyright claims under English law. In this instance, an action had been brought after 38 years had passed (1967 - 2005) - a clear precedent if ever there was one.

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/fisher-1.htm

So: anyone facing a copyright infringement claim in the UK would be wise to consider this fact when looking at their options.

173

Getty Images Letter Forum / Re: Thoughts on my Response to Getty Images. Next step.

« on: June 05, 2013, 05:59:51 PM »

Firstly, you have a measure of my sympathy for the fact you find yourself in this position. What I write below is from my own perspective as a photographer whose own works are regularly infringed upon, so do bear this in mind.

Here's what I can tell you about your situation; the photographer, Chris Cole, is based in the UK... so there's not going to be any registration certificate as there's no copyright registration system in the UK; copyright is automatic at the time of the creation of the photograph.

Getty still can bring an action in the US on Cole's behalf assuming either a) his contract has that provision or b) Getty get his approval prior to filing suit.

Getty aren't going to hand over a copy of Cole's contract to you as that's private and confidential and they've alluded to this (the part where documents would be produced during discovery ahead of trial) but point b) makes that moot anyway.

Also, as Cole is a UK resident, there would be no need for him or Getty to file a registration within three months of first publishing (a "timely" registration) for statutory damages to be sought; Cole will be sending his images to the UK office of Getty, so the country of first publication would be the UK - so Berne Convention terms apply for litigation purposes.

Using a combination of Google's Search by Image function and the TinEye reverse image search engine, I discovered in short order that Getty is indeed the only image library that has this particular photograph available for licensing.

I've looked at the image in question and a one month, low resolution web use license came out at £288.00, or approximately $443.71. Getty's claim for $790 will include that "lost" license fee and I note they've stated as such in their reply to you, even if they haven't cited the fee itself.

Whether you personally believe the image is worth that doesn't enter into the equation - it's what the photographer and Getty have set the price point at. Getty will state that image users have the freedom to choose the sources for their images, as well as the price they pay, much like a New Yorker can choose to eat at McDonalds for a dollar, or walk to Serendipity 3 and pay $295 for their extravagant creation. At their core, both are ground beef between two buns... and you could also choose not to eat.

Also, another thing that doesn't factor is the sales history for that particular image: maybe it's been licensed dozens of times, or maybe it's never been licensed at all. None of this factors in an infringement lawsuit - all that the courts assess is what fee the image was offered for license at... and even then, that would only be in a Actual Damages & Profits claim.

I have thousands of photographs in my archives which have never been used by any of my clients; there are 'popular' images that have been licensed many times for varying fees, and I have on occasion licensed a few select photographs for four-figure sums.

I know that you feel stung because your actions in linking to the page on getfitwithnicola.com with the best of intentions and you likely did not realise that you were exposing yourself to liability when you also included the photograph in question... but US copyright law is a "strict liability" tort, which means that your intentions don't factor into the legal process.

I'd also like to touch on the term "innocent infringement" that gets thrown around a lot; this is referenced in 17 USC § 504.

"In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

Note the infringer sustains the burden of proving portion: this means going to trial and stating your case infront of a jury.

Also, the court may reduce the damages to just $200... or they might not. There's a mistaken belief held by many that proving an innocent infringement means that the courts will award no more than $200.

The fact is they could award any sum starting at $200, rising up to and including what the plaintiff was seeking (which will depend on whether they're seeking Actual Profits & Damages or Statutory Damages)

Personally speaking - and I cannot stress the personal part enough - I think that offering to settle for somewhere between the "lost" license fee and what Getty are asking for would be a good compromise.

The other replies to this thread are valid too - you could choose to ignore their claim and the demands that will follow, as well as the possibility of suit being filed, for the duration of the next three years (that's the statute of limitations for bringing a copyright action in the US Courts: three years from the date of discovery of the infringement), or you could dispute the claim either directly or via representation of some means.

Just my €0.02 worth.

174

UK Getty Images Letter Forum / Re: SWEDEN: Letter from a law firm recieved!

« on: June 01, 2013, 04:56:11 AM »

That's something I've wondered about: if Getty Images, Inc is the "exclusive licensee" of the images, and only the exclusive licensee can bring a copyright action (in the UK, presumably elsewhere too), where does Getty Images Ltd (UK) or Getty Images Sverige figure in the whole thing? Surely these companies are not in a position to take court action, so the "extortion letters" actually are extortive?

It entirely depends on the contract or agreement which the photographer, who shot and supplied the images to Getty, signed with them.

I've detailed in another thread that there are three key ways in which a photographer can work with an agency such as Getty

1. Contributor: photographer submits work which Getty licenses on their behalf. Getty splits the licensing revenue with the photographer (percentage determined in contract) and the photographer retains all copyrights in their own work. If you infringed on the work of a contributor, only they can bring a copyright action against you.

2. Stringer: photographer submits work which Getty then wholly owns. Getty pays the photographer a one-time flat fee for the supply of their images, which also transfers to Getty the copyrights of the shots supplied. Getty will be able to pursue you directly for any infringements.

3. Staff: pretty much self-explanatory; Getty's own photographers whom effectively create works-for-hire i.e. creations made during the course of their employment, which Getty would own the rights to automatically.

So in two out of the three instances, Getty absolutely would have the rights to pursue infringements and - depending on the specifics of the contract they have with a specific photographer per case #1 - they might even have been granted the rights to pursue infringements for contributors too.

Does anyone know? Perhaps that's another reason they'll never supply proof -- because it would be proof that some other company is actually the licensee.

I reckon the core reason that they don't supply "proof" is because, up until the matter escalates to formal actions at court, they don't have to - especially contracts, which often contain confidential information or third-party details which Getty couldn't disclose without consent, and therefore would only be supplied if legally compelled to do so. Just my €0.02 worth.

175

Getty Images Letter Forum / Re: Getty letter about image included with commercial web design software

« on: May 30, 2013, 06:23:13 PM »

So a question now is who did use the originals as part of the transformed image and did that person have permission?  And then who is the owner of the transformed image?

The answer comes in five parts.

1.) Whomever made the alterations to the original is the entity that created the derivative work, though they would need to get permission of the copyright owner to effect such a creation for any reason other than private, personal use.

2.) Such permission would need to be granted explicitly in writing - especially if the intent of entity that made the derivative work was to re-distribute the derivative, whether for profit or otherwise.

3.) In all instances, the author of the original work would hold the copyright in both the original and any authorised derivative.

4.) Any derivative work that is distributed without the knowledge or consent of the author of the original work would constitute an infringement of copyright.

5.) Both the creator of the derivative, and any end users of the derivative, would be liable for infringements per the 'strict liability' nature of copyright infringement under US law.

176

Getty Images Letter Forum / Re: Getty letter about image included with commercial web design software

« on: May 30, 2013, 04:36:51 PM »

Also, the image I used is a collage of four images.  Getty is claiming ownership of only two.  The two they are claiming were significantly altered, (i.e., gray scale instead of full color, faded edges to blend in with the other images in the collage instead of being sharply defined as in the original, and much lower resolution).

As a technical point: the fact that the images were altered has no bearing on their claim - alterations could be classed as derivative works.

17 USC § 106, which describes the exclusive rights in copyrighted works, mentions that a copyright holder has the right "to prepare derivative works based upon the copyrighted work"

I'll concede that there is the potential for a 'fair use' argument that the amount of alteration that you made to the original work resulted in a transformative work but, from your own admission that you merely substituted greyscale for colour and blended the edges of the photographs, I'd be of the opinion that such minimal alterations do not qualify as sufficiently transformative.

Just my €0.02

177

Getty Images Letter Forum / Re: Getty letter about image included with commercial web design software

« on: May 29, 2013, 04:27:28 PM »

You could link to the page on Getty's systems where their image is located, and perhaps offer a link to a site where your version of the photograph is located - as long as it's a third party site. To my mind, that would be permissible. Just my €0.02.

178

UK Getty Images Letter Forum / Re: SWEDEN: Letter from a law firm recieved!

« on: May 29, 2013, 03:47:10 PM »

Getty UK would send out letters for photographers whom work with their own local office; Getty does have offices in Stockholm, Sweden - so they absolutely could litigate in that country if they wanted to.

Remember also that no formal registration of images is required anywhere in the EU to enjoy the protection of copyright. The Swedish government has made a handy primer on how the law works in their country via this PDF

http://www.government.se/content/1/c6/05/67/65/ac3af6b4.pdf

179

Getty Images Letter Forum / Re: Getty letter about image included with commercial web design software

« on: May 29, 2013, 03:39:34 PM »

It would not surprise me if their spider bot is designed to find any images they own regardless of the date they were acquired.

If Getty acquired the images after the date that you made use of them (2008?) their claim might still be valid, so long as their acquisition of the library included full assignment of copyrights to Getty... which is a 99.999% certainty (otherwise there'd be no point in the takeover)

From the US Copyright Office's FAQ

"A person or organization that is not an author may be named as claimant only if the copyright ownership of all rights was acquired in writing or by operation of law. Written transfers must be signed by the party transferring the copyright or his authorized agent. In addition, copyright ownership may be transferred by the provisions of a will or by operation of law other than by inheritance, for example, by operations of state community property law"

As an FYI, Getty wouldn't need to show you this documentation prior to the discovery phase of any litigation; though, in my opinion, anyone whom uses a "best practice" when enforcing their copyrights could show their registration certificate or rights assignment paperwork either when issuing their demand and/or at any time it is requested... certainly that's what I do when enforcing my own rights.

Just my €0.02

180

Getty Images Letter Forum / Re: I too am a victim of Getty Images

« on: May 22, 2013, 06:22:10 AM »

Okay, I have counsel in Canada whom litigates copyright infringement matters for me, so here's how you might be affected.

If your website was non-commercial, your legal liability (if it were to go to court) would be between $100 - $5,000 per infringement.

If your site promoted your business, displayed adverts or solicited advertising income, or offered products or services for sale - whether directly on the site or via a third party - then the use of the image(s) could reasonably argued to be commercial in nature.

For commercial uses, the range of liability starts at $500 and goes up to $20,000 per infringement.

Crucially, there is no requirement under law to register images in Canada to enjoy copyright protections; although a registry exists, it is purely voluntary and no registration is needed to file suit.

Canadian law does have an innocent infringement defence but, in all honesty, I don't know what standard of proof is required to establish this. If you have retained all the emails from the eBay fraudster, along with details of the transactions and how the files were provided to you, then this would be a good starting point in establishing your case.

I do have a measure of sympathy for your position as it appears you were taken in by a fraudster who, in my opinion, is quite a blatant infringer. I'd be interested in seeing a copy of the letter you received from Getty to ascertain their claims in relation to Canadian law vis a vis comparing them to the letters my own Canadian counsel have issued on my behalf.