Messages

181

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 02, 2011, 06:59:43 AM »

Helpi,

Thanks for the update on Tenenbaum.  Even though the case might not be applicable to Getty cases, it was still good to see that some common sense prevailed.


Helpi Wrote:
-------------------------------------------------------
> "We should all keep an eye on the case anyway to
> see if the jury award in Tenebaum  will be
> upheld."  
>
> Old news as well.  
>
> 3x statutory min ($750) = $2250 per infringed work
> is the maximum award constitutionally allowed
> given the facts (non-commercial file sharing),
> according to the Judge.  The jury awarded $22,500
> per.  
>
> (Keep in mind the case involved non-commercial
> infringement.)
>
> “Weighing all of these considerations,” the
> judge wrote, “I conclude that the jury’s award
> of $675,000 in statutory damages for Tenenbaum’s
> infringement of thirty copyrighted works is
> unconstitutionally excessive. This award is far
> greater than necessary to serve the government’s
> legitimate interests in compensating copyright
> owners and deterring infringement. In fact, it
> bears no meaningful relationship to these
> objectives. To borrow Chief Judge Michael J.
> Davis’ characterization of a smaller statutory
> damages award in an analogous file-sharing case,
> the award here is simply “unprecedented and
> oppressive.” Capitol Records Inc. v. Thomas, 579
> F. Supp. 2d 1210, 1228 (D. Minn. 2008). It cannot
> withstand scrutiny under the Due Process
> Clause.”
>
> “For the reasons I discuss below, I reduce the
> jury’s award to $2,250 per infringed work, three
> times the statutory minimum, for a total award of
> $67,500. Significantly, this amount is more than I
> might have awarded in my independent judgment. But
> the task of determining the appropriate damages
> award in this case fell to the jury, not the
> Court. I have merely reduced the award to the
> greatest amount that the Constitution will permit
> given the facts of this case.”

182

Getty Images Letter Forum / Re: Interesting Recent Intellectual Property Issues

« on: January 02, 2011, 06:38:13 AM »

Hi Helpi,

Thanks for the update on Maverick.

More of my uneducated laymen's thoughts:

Of course, the dates of Oscar's posts you're refering to are very old and, I believe, posted before the decisions you cite.  However, regarding Maverick, there is still good news, I think in spite of the appeal.  The statutory damages were held at the absolute minimum (considering the innocent infringer defence was disallowed for a technicality) of $750 per infringement.  This combined with the fact that infringment of multiple items in an image compilation are currently held, I believe, as a single infringement shows a very favorable position (compared to the grim picture painted by some, I think) for many letter recipients, I think.  And remember that the images must have been registered before infringent before statutory damages can be awarded at all.

Personally, I think these companies want us to obsess and worry over the fine points of the law to the point of painting a grim picture in our own minds till we give in and just pay whatever they ask.  I, for one, won't do that.  For sure, I think that we all need to have a look at the specifics of our own cases and get good qualified legal advice specific to our own cases from a lawyer.  

 

Helpi Wrote:
-------------------------------------------------------
> Seasons Greetings.
>
> Is the person in charge of updating this thread OK
> ?
>
> Maverick v. Harper was overturned by the appellate
> court ten months ago.  And the Supreme Court
> subsequently declined to hear the case.
>
> ABA case summary
> (http://new.abanet.org/SCFJI/Lists/New%20Case%20Su
> mmaries/DispForm.aspx?ID=108):
>
> "In an opinion by Judge Clement, the U.S. Court of
> Appeals for the Fifth Circuit found in favor of
> the record companies, both by affirming Harper’s
> guilt and by adjusting her penalty from $200 to
> $750 for each of the 37 audio files in question.
> Harper’s liability to the companies therefore
> totaled $27,750.  The Fifth Circuit explained that
> it did not matter whether Harper knew her conduct
> was illegal.  As long as the record companies
> provided notice that unauthorized reproduction was
> a copyright infringement, the subjective state of
> mind of the defendant does not matter.  The Fifth
> Circuit found that warning labels on the compact
> discs from which Harper’s files were originally
> downloaded satisfied this notice requirement.
> Whether Harper ever saw these compact discs was
> irrelevant."
>
> Alito dissent (he wanted to hear the case):
> http://tinyurl.com/34hxvvp
>
> Record companies (who won) and the infringer (who
> lost) arguments to the Surpreme Court to not hear
> and to hear the case, respectively (sorry, you may
> have to google if these URLs don't post
> properly.).
>
> http://www.scribd.com/doc/32060955/Harper-Petition
> -for-certiorari
>
> http://www.scribd.com/doc/39440193/Plaintiffs-Oppo
> sition-to-petition-for-certiorari-in-Maverick-Reco
> rdings-v-Whitney-Harper
>
> Oscar, not only is Maverick not helpful any longer
> it suggests the following question:
>
> Whether 401(d) precludes the innocent infringer
> defense when a stock image company places
> copyright notices on the copies it publishes at
> its freely accessible web site even if the copies
> infringed by the defendant had no copyright notice
> on them.

183

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 23, 2010, 10:27:06 PM »

The discovery rule in your example would get you damages outside the 3 year window preceding filing of the suit, but I'm not at all convinced that it would get you more than 3 years total damages (unless there was some fraudulent concealment).

 "Outside the 3 year window of filing suit" and "more than 3 years damages" are two different things.  

You might recover damages on an infringment that occured "outside the 3 year window of filing suit" (discovery rule), but you still can't get "more than 3 years damages".  That's my understanding, anyway.



infringer Wrote:
-------------------------------------------------------
> OK, I see the point you're trying to get across
> now.  If I had an unlicensed image on my website
> up until 2005 and Getty didn't become aware of it
> and send their letter until 2010, I would still be
> exposed if the court is using the discovery rule.
> Good to know.  However, I don't think any of the
> stock image companies are scouring the way back
> machine for infringement... yet.
>
> As far as exposure to damages for periods > 3
> years: I understand what Oscar's opinion is, but
> what I'm asking is how effective is his argument
> with the stock image companies?  I'm sure they
> will say that they are entitled to all damages,
> but is the argument an effective tool in getting
> them to reduce their settlement demand?
>
> And yes, you assumed correctly regarding what I
> meant by registration.  I apologize for being
> unclear.

184

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 02:11:37 PM »

Hi Infringer,

Here's the best article I've found so far (as far as being to the point and easy to understand) and well worth a read:

http://williampatry.blogspot.com/2005/05/statute-of-limitations-part-one.html

Is there a risk of damages being awarded outside the 3 year window in typical Getty demand letter cases?  Sure, but I think that risk is insignificant (at least in my own case . . . a Getty demand letter).  The risk is so small (in my mind) that I don't even really think of it as a risk, and I certainly won't base any decisions on such a small risk. That's just my uneducated opinion.

I look at it this way:  There is also a small risk that an entirely new precedent could be set if you went to court and you could really be taken to the cleaners over a single unregistered image.  Obviously, I think that risk is also quite small.  I won't base any of my decisions on that small risk either.

That's pretty much my view on the matter unless and until a lawyer tell me I'm wrong to look at it this way.

Not that I'm losing any sleep over Getty now, but I certainly won't be losing any once their demand letter to me is over 3 years old.



infringer Wrote:
-------------------------------------------------------
> The way I see it, the point Helpi is trying to
> make is very significant if you're faced with a
> demand letter for a registered image (i.e. from
> Masterfile) that you had been using for > 3 years.
>  If the image was registered when you used it, you
> must settle or likely face a lawsuit.  The
> copyright holder is going to demand damages based
> on the length of time they believe you have been
> using the image (usually by looking your site up
> in the Way Back Machine).  If the circuit you are
> in is using the injury rule and you had the image
> for 6 years, you are in a better position to
> negotiate because you are only exposed to 3 years
> of damages.  Otherwise, if the court uses the
> discovery rule, you'll loose out on that
> bargaining chip.

185

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 01:07:58 AM »

Helpi Wrote:
. . .
> Thanks for the compliment. Reminds me of the
> rewards of of pro bono work.
>
. . .

No offense intended, and if you are indeed a lawyer, I appologize for the incorrect assumption that you were not.

186

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 22, 2010, 12:39:05 AM »

I still don't get how any of the points you raise or the cases you cite have much (if any) relevance to Getty cases where the image was taken down upon receipt of the demand letter.   In any event, I'll be shocked if Getty sues anyone over a demand letter that is greater than three years old.  

Since both of us are laymen and presumably not overly qualified to do these type of legal interpretations anyway, I guess we'll just have to agree to disagree, and assess our own risks differently.

187

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 21, 2010, 10:20:48 PM »

I dont understand your point.  If you've got a letter from Getty that proves they know about the infringment on Jan 1, 2011 and you take it down on Jan 2, 2011 then it doesnt matter if you use the discovery rule or the injury rule for determining the accrual date.  It's essentially the same accrual date either way, and it's pretty much locked in at that point as I understand it.  If they sued on Jan 1, 2012 and tried to use the discovery rule claiming that they didn't know about the infringing activity until Jan 1, 2012 (in order to get 3 full years of damages), they would look pretty silly when you produced a demand letter from them dated Jan 1, 2011.

I don't see how the application of either rule could ever net more than a maximum of 3 years damages in any non criminal case.  Not where the infringment stopped upon discovery anyway.

188

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 21, 2010, 03:32:47 AM »

Oscar, Thanks for the clarification.

Helpi,
Here's a pretty decent article discussing the controversy over the statute of limitations that I think you are refering to and might find interesting:
http://lawreview.wustl.edu/inprint/78-2/starr.pdf

I believe, for most of us, the "controversy" is moot.  We have a letter from Getty proving that they know about the alleged infringement on a certain date.  Most of us take the image down very soon after the receipt of the letter.  So it doesnt really matter if its determined that the claim accrues based on the injury rule or the discovery rule ... they are nearly the same date anyway in most of our cases.

... unless of course I'm misunderstanding something?

189

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 20, 2010, 09:03:45 AM »

I'm not a lawyer, but I wanted to try to post my understanding on the matter mostly to make sure I do understand it correctly.  Hopefully Oscar will let me know if I am wrong.

Assuming non-criminal infringment of unregistered images (which covers most Getty cases I would think).  
Infringment begins the day you post the image.  The 3 year statute of limitations "clock" begins to run the day you take the image down.  This is important, because any damages Getty may be entitled to start to diminish at this point.  Example:
Image posted on Jan 1, 2000
Image taken down on Jan 1, 2011
If they file suit on Jan 1, 2011 they can get 3 years worth of damages
If they file suit on Jan 1, 2012 they can get 2 years worth of damages
If they file suit on Jan 1, 2013 they can get 1 year worth of damages
They wouldn't be entitled to any damages after Jan 1, 2014
(notice that the date of the claim letter isn't relevant)

That's my understanding anyway.

190

Getty Images Letter Forum / Re: Masterfile employee: 85% of revenue comes from litigation

« on: December 09, 2010, 07:37:25 PM »

Makes sense to me. Actually 85% sounds low. Who on earth would willingly pay some of the pricetags on some of these stock photos of simple everyday objects is beyond me.  I mean, if you needed a thumbnail of a shopping cart and you saw it for $200 for a year license wouldn't any reasonable person just take the picture themselves with their own camera ... or go to one of the discount providers and get one for a few bucks?  Who else would be paying these prices other than victims of unscrupulous website designers who feel forced to under threat of legal action?

191

Getty Images Letter Forum / Re: 2nd Letter From Getty

« on: December 09, 2010, 03:04:17 PM »

It's good to see that you aren't leaving your client on the hook.  

Here's an idea to consider:  Send a signed letter to your client promising to be responsible for any and all costs associated with this demand. This may even need to be a contract where your client gives you permission to defend (maybe Oscar will clarify this point). Then you could get Oscar to send a letter to Getty on you and your client's behalf.  This way, I think that Getty wouldnt be able to contact your client again and you'd be taking full responisbility and you could then make Getty any offer you see fit.

Also, if you did this with other clients, you should contact them to remove unlicensed images asap.

192

Getty Images Letter Forum / Re: Just recived this letter

« on: December 09, 2010, 10:37:28 AM »

Just to be clear again, I'm no lawyer and Im just giving my layman's understanding of the issues in most Getty cases:
"guilt" is pretty much a given.  You need to get comfortable with that. Focus on the amount of damages you are liable for.
  Figure out if the image was registered before infringment began. If it's Getty, I doubt it was registered. If it wasn't then attorney fees and statutory damages arent recoverable.  That leaves only actual damages, which in my opinion, is far less than the $1000 to $1400 or so that Getty has asked for a single image violation.  I seriously doubt Getty would take anyone to court in the US for a single unregistered image infringment.  Why not just offer them what you think is just and fair (far less than what they are asking in many cases in my opinion) then forget about it?  I seriously doubt they will accept a reasonable offer, which is OK by me (less money out of my pocket).  Oscar's letter is a good way to do this if you want the added benefit of them ceasing direct contact with you.

193

Getty Images Letter Forum / Re: Just recived this letter

« on: December 07, 2010, 04:14:20 PM »

infringer Wrote:
-------------------------------------------------------
> I agree, Lettered and I would add that it makes no
> sense for Getty to pursue a $1000 claim if they
> can't get attorney fees awarded.


I agree ... very important point for letter recipients over a single image.

194

Getty Images Letter Forum / Re: Just recived this letter

« on: December 07, 2010, 08:51:25 AM »

Im no lawyer either, but I understand the Getty situation a bit differently.  I think the point of whether the infringement is willful or not is moot** in many Getty demand letter cases.  This is because a large number (I think even the vast majority) of Getty images aren't registered prior to the infringment.  This means ONLY actual damages can be awarded.  That means no attorney fees and no statutory damages.  From this point there are two positions on potential damages in these cases:

Here's what I think it is:
1) only the fair market license fee for the image in question for the time is was used (subject to 3 year statute of limitations).

This is what it seems to me Getty thinks it is:
2)  the license fee for the image in question for the time it was used, plus extra revenue to cover the cost of running their letter campaign.  I can't find any solid formula for their calculations, but it always seems to me to be more than #1 above.

Note that this applies ONLY to images which weren't registered before infringement (most of Getty stock I think).  Masterfile seems to me to register images much more often than Getty, so a dispute with Masterfile is a different ball game.

** I say moot from a theoretical legal perspective.  I think, however, if you went to court acting like a blatant remorseless willful infringer, it could very much make you less credible in court, and make a court much less likely to want to help you.  Just my opinion.

infringer Wrote:
-------------------------------------------------------
> IANAL, but let me try to answer your questions.
> These demand letters are a part of Getty's
> business model.  They've realized that there are a
> lot of people out there using their images without
> authorization, so they scour the web to find them
> and send out bills (they wouldn't make money
> sending C&Ds).  I like to call it post-delivery
> sales.  You're liable because the law applies to
> end-users.  If you can prove that you thought you
> were licensing the image from a third-party (i.e.
> with receipts), you may be able to claim innocent
> infringement, which can substantially lower the
> amount of damages Getty would receive in court.

195

Getty Images Letter Forum / Re: Don't buy from Getty, but who then?

« on: November 23, 2010, 01:17:34 PM »

Just understand the risks associated with all these types of sites.  Not to pick on "Big Stock Photos", but I think if you take a look at it (and other sites similar to it) you will find that virtually ANYONE can upload images to sell, and I think you'll also find in the fine print of the agreements that you assume all risk of use of the image.  That would mean, I assume, that if one or more of the images you buy from them is violating someone's copyright, and the real owner takes action, then you are the responsible party.  Could you make the web site pay up for any damages?  I'm no lawyer, but not the way I read it.  The agreements on those types of websites seem pretty clear to me that the end user is assuming all risks of use of the images they buy.

How could even the most well intentioned website verify all of the photos being uploaded for sale arent violating a third party's copyright?

I think we all have a good idea of who Getty would go after if, for example, some of their photos got uploaded for sale by some unscrupulous party and distributed widely to unsuspecting end users.

I think the safest thing to do is buy a camera and take your stock photos yourself.  Copyright law is just too out of whack.