Messages

196

Hawaiian Letters & Lawsuits Forum / Re: VKT Lawsuits

« on: July 24, 2013, 08:49:58 PM »

the way i read it, they were referring to copyright at the bottom of the site centered in the footer, and not actually added to the image itself..

Rereading, I think you are correct. They are complaining about the copyright symbol on the page. That's not going to be such a big deal them.

Nice to see you here Lucia...been a long time!

Thanks! Been busy!

197

Hawaiian Letters & Lawsuits Forum / Re: VKT Lawsuits

« on: July 24, 2013, 04:36:20 PM »

Robert--
I agree it could be very difficult to prove the defendant removed copyright info info could have been removed by another party.   But I think VKT is also alleging they added fake copyright info. If the new images do display the fake info, that's going to look bad. The defendant would have to explain the fake info-- and also explain whether they got permission from the person who claimed copyright.

If the fake info points to the plaintiff (e.g. 'gypsytravel.com' or 'my actual name' etc.) that's going to be insurmountable. 
It would (or will) be interesting to see the defendants response. 

198

Hawaiian Letters & Lawsuits Forum / Re: VKT Lawsuits

« on: July 24, 2013, 01:26:50 PM »

Oh my.  A case VKT might deserve to win.

See paragraph 17 on the gypsyguide.com case. The gypsy guide people are accused of (among other things) added their own faked copyright information on  the image!  In 21 they are accused of continuing to use the images after VKT asked them to take them down!

It's also worth noting that in the case of the travel guide, scenery images used to advertise their tours to those specific locations goes well beyond someone posting a decoration at their blog!  It's a business and the scenery is very specific to marketing the business. Using these images in travel guides is one of the 'commercial uses' one would specifically anticipate for images of what are fun travel destinations!  The images aren't just fungible background in this case-- you really want an image of that specific travel destination, you want it to be panoramic, brightly lit etc.   

I know these tend to be all over the place and I generally have little sympathy for VKT. But in this case, I think he's likely to win. And if the facts are al VKT alleges, it's pretty darn hard to sympathize with gypsyguide.com.

199

Getty Images Letter Forum / Re: copyright questions

« on: July 21, 2013, 04:06:18 PM »

Lets say, for example, I'm on getty's site and run across a picture that has some football players wearing the helmet and jersey that my friend designed.  Or say I run across a picture that has a snowboard he designed.  Is getty in violation of my friend's copyright?

I think this might depend on some details about the photos.  For example: If the photo is of a highschool team playing a football game, the helmets are on the players heads and so on the appearance of the artwork might be 'fair use'.  If not you would get in a situation where 100% of photos of "Generic Highschool Football Game" fell under the copyright of someone who designed a logo on the helmets.

On the other hand, if the photos start to be nothing more than a close up photo of side of the helmet focusing on the artwork with that photo emblazoned on the front of a t-shirt.... that would start to be different.  With certain types of uses, a judge is going to interpret the 'fair use' provision applying the various principles. Details matter here.

200

Getty Images Letter Forum / Re: copyright questions

« on: July 20, 2013, 01:42:48 PM »

Robert--
Yes. I remember. Getty's use was not incidental, commercial, and did have the potential to dilute the mark!

201

Getty Images Letter Forum / Re: copyright questions

« on: July 20, 2013, 11:48:15 AM »

Bear in mind that tv shows and movies often not only get permission to include copyrighted or trademarked items, but the owners may have paid the show or movie to include the item.  In this case, it is highly unlikely something like "Pespi" or "Nike" would go after someone who snaps a picture of themselves in front of the item and places it on their facebook page or blog because to some extent, that's what Pepsi or Nike wanted to happen.  Mind you: they might go after someone under special circumstances, but mostly, no. 

Also: with trademark law, I think the main issue with respect to using is "confusion".  If you made a cola beverage, called it "Popsi Cola", and made mark that looked a lot like Pepsi cola, that could cause confusion among consumers who might think they were buying Pepsi when they were actually buying Popsi. But your taking a photo of yourself and friends standing in front of an advertisement for Pepsi-- not so much.  So the two operate differently.

That said: It may be that somethings could be both trademarked and copyrighted.

But really, most major commercial brands for tangible goods (e.g. sneakers, cola, cold cuts, detergent etc.) are not going to go after someone for incidental use of their ad materials. Doing so would risk a lot of negative press. Imagine Oscar Mayer suing you for showing a photo with a package of their bacon on the counter.  The whole suit would likely reduce sales of their products which are bacon and cold cuts, not photos of the bacon or cold cut packages.  In contrast, if they found you stealing truckloads of bacon from their facility, they would certainly sick the police on you! 

In contrast: Getty's product and commercial photographers products is the images themselves.

202

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

« on: June 18, 2013, 10:52:35 PM »

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.

203

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

« on: June 14, 2013, 06:13:15 PM »

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.

These sorts of images are precisely why people who receive letters from Getty are advised to request contract and copyright information from Getty.  Just because the images is listed by Getty and priced by Getty does not mean that Getty  has a valid claim.

I think the difficulty is in Getty's system.

204

Getty Images Letter Forum / Re: Trollog Defined

« on: June 09, 2013, 07:20:06 PM »

hahaha... "trollog"...
Ranks right up there with "butthurt".

S.G.

Perfect 10 is a US case. It's irrelevant if they sue you in the UK.

205

Getty Images Letter Forum / Re: Trollog Defined

« on: June 09, 2013, 09:25:31 AM »

<i>All images where hosted by a 3rd party, I have never hosted any copies of the images in question</i>
If you are in the US, that's pretty much the end of it. Getty cannot win in court. Mind you, if you engage, they'll likely send you something that claims they could. They are wrong.

What you should do depends on whether you want to position yourself to make a strong case to the Washington State. DA or not.  Since there is no way they can really win in court you could just ignore them. Do nothing, no complaints to the DA etc. Alternatively, you can respond, cite Perfect 10, and wait to see their counter response. If they continue to threaten you after citing Perfect 10, send all the correspondence to the Wa. State DA making the case that these guys continue to press when they know perfectly well the courts have ruled against hotlinking being a copyright violation.

If my case wasn't so stale, I'd write a complaint letter-- because I was in a similar position to you. Unfortunately, I didn't think of it at the time, and Greg came around with this idea a year and a half later.   But people do need to write letter emphasizing that:

1) Getty is certainly aware of Perfect 10, and yet sends out letters for hotlinked images. Checking for hotlinking is trivial, they merely need to look at the url.  Either they don't check which is very bad or worse, they send out letters knowing that the url corresponds to hotlinking.  Given the tone of the letter and the monatary demand, this is a very unethical practice.

2) Even when people respond with Perfect 10, they sometimes reply back not accepting that as evidence that the images was not hotlinked and continue to request money. (At least they did this with me. If they've stopped, that would be good.)

But really, you are in a strong position to complain even if only (1) occurred. You would be able to write a stronger complaint letter than *most* people who complain. (It is an unfortunately irony that the people who have the strongest complaints against Getty are often so relieved when they discover they are free and clear that they don't write the letter of complaint. After all: problem solved! But really, it would be nice if the hotlinkers did write. I wish I had.   But it would be a bit silly at this point. Though.. I dunno. Maybe I should anyway. )

206

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

« on: June 08, 2013, 12:48:44 PM »

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.

Copyright is also automatic in the US. However, statutory damages require the photographs to be registered. As far as I am aware, there is no exemption for artists who happen to work in other countries.  So, even though failure to register will not vitiate copyright in the US, it will affect the potential that heavy damages will be levied.  This is where discussing the issue with someone like Oscar who practices in the US can matter.

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.

No. But as previously noted: Getty could write their contracts with a caveat that permitted them to show the contract when they approach a suspected infringer. It appears they don't do so-- that's their choice, not an immutable law of the universe. Also: They could request the photographer to grant permission.

Getty being unwilling to provide information that matters during settlement negotiations might influence a judge. Also: if the contract is flawed, Getty will lose in court.  A person negotiating can bear this in mind given that Getty has in the past been very sloppy with contracts.   If Getty does not show the contract, the person who receives a letter can decide what risk they are taking. If Getty provided an iron clad contract, they would be more likely to just settle.

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.

That might hold if they are going to sue in "international court". But in US courts, judges apply US law.

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.

This is not as foolproof as you might think. Some photo sites block spiders from crawling. In those cases, TinEye will not find the image. However: if the images is only Getty, then that's going to be a factor in Getty's favor.

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.

In court, Getty will need to show that they actually have licensed images for the fees they demand.   If they do get those fees, then this fee will be in Getty's favor. If it turns out that many of the images are never licensed... not so much.  Once again: this would be a risk the accused infringer would be having to consider.

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.

No. In court, the market sets the price point. Getty is going to have to show the images do sell to someone for that price.  This may seem like a distinction without a difference. It would be if everything is listed near a real sale price. But you need only take out a search for collectibles on ebay to realize that virtually identical items are listed at a huge range of prices and if you watch the higher listings they don't sell. (They will often be relisted-- and still not sell.)  I know this because I have a 1960s era formal china set and want to accumulate platters, gravy boats and so on.  The Lenox Rhodora gravy boat listed at $153 here will not sell.
http://www.ebay.com/sch/i.html?_trksid=m570.l1313&_nkw=Lenox+rhodora+gravy+boat&_sacat=0&_from=R40
(Chances are the $50 ones won't sell either.  They might at Christmas, but not now. I have a watch on these, waited 6 months and bought one for $20.99. I was the only bidder.)

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.

Yes. But you are arguing by analogy and others are likely more apt. For example: Say the person listing the gravy boat for $153 finds no one to buy it at that price. Suppose that after the listing closes, the person listing the item  breaks their gravy boat. Now suppose being insured, they submit a bill for $153 to their insurance company. The insurance company is likely to notice that I bought an indistinguishable gravy boat for $20.99 only last week. So the established value is closer to $20.99.  Failing that they could notice that several gravy boats are listed near $50 today. So, a replacement can easily be had for $50. No judge is going to insist the insurance company pay $153 merely because the owner of the gravy boat was not willing to part with it for less. They will find a fair market price which is going to be somewhere between $20.99 and $50.  With that money, the person could buy a gravy boat and then continue to try to sell it for $153. (They will likely continue to fail. Though, with ebay, you never know. Some people don't understand the system and do buy at ridiculous prices. It's not the majority of buyers though.)

In your analogy about the restaurants, the only reason the market value of the burgers at the restaurant is accepted as $295 is because customers are buying them. If no one is buying the a burger, the chef puts on on a table in front of the lone waiter who has decided to chow down having been given free burgers as a 'perk' for working at the restaurant, and the UPS guy drops a package on the burger, no court would award the restaurant $295 in damages for the loss of the burger would not be the 'market value' even if that was the list price on the menu. (I'm not even sure a judge would award the restaurant $295 if it was a customer's burger. They likely would if the customer had to leave and so didn't pay for dinner-- resulting in an actual loss. But they might not if the customer waited for a replacement burger.)

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 believe you are simply wrong. If a company could be shown to have a listing service that posted items -- or even categories of items at prices resulted in zero sales a judge would take that into consideration. Because the judge considers the actual damages and profits not just an amount the photographer or Getty hoped they could make (if only there were any consumers who would buy at that price.)

Though I would defer to Oscar's judgement on this, if the dispute were to reach court and the issue of damages is raised, the judge would want to Getty to show that either
(a) this specific photo does sell at the listed price,
(b) this photographers photos sell at the listed price  (say at least 3% in that authors catalog?) or
(c) at least a sizable number of images in the collection  sell at the listed price .

Evidence of (a) would carry the most weight in favor, (c) less. Of course, amount of time the images is listed would matter to. (Even a good image might not sell in only a few days. But an individual image listed for 5 years with no sales? Or a photographer listing 50 images for 5 years with none ever selling at the list price?  The first would be proof the listed price is not the market price for that image. The second would constitute proof the listed prices is not the market price for any of the images.  The photographer would not be 'damaged' at the level suggested by the listed price because no one will buy at that price.

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.

Yes. But you can show (b).  Many of the images in your archives sell and for large sums. Moreover, based on previous thread, you often have contracts in place when you shoot photographs. This matters even if no one later buys the image

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.

Yep. (Though possibly just a judge. Juries aren't required in all court cases). But note: this is a limitation of statutory damages. Getty won't get those at all unless the image was registered. So, if the images wasn't registered, the infringer doesn't have to prove this burden because there will be no statutory damages. At. All.

As for the rest: I don't disagree though I might quibble about the appropriate amount to offer. (After all: I dispute the notion that the market value is whatever someone asks. Asking price is not sufficient to establish a market value in most venues: housing, collectibles and so on. Sales prices do.)
 I think in cases where an infringement occurred, you know the photographer did take the photo and so on, some settlement is appropriate.  It's not clear what that should be-- knowing sales prices and whether it's registered would help pin that down both as a matter of fairness and estimating the risk of loss should Getty sue.

207

Getty Images Letter Forum / Re: Got A Getty Letter Today

« on: May 26, 2013, 11:33:42 AM »

Before you wrote: Did you copy and upload the copy to your server? Or is it hotlinked?  If it's hotlinked and you are in the US: no worries. So check. 

208

Getty Images Letter Forum / Re: A note on photos that are "public domain"

« on: May 26, 2013, 11:22:48 AM »

DavidVGoliath,
On this:

I'd really hope that there aren't any creatives out there exploiting the system by knowingly seeding their works just so they can issue legal  demands or court proceedings from infringements; that's fraud on the same level as people whom fake accidents, injuries or illness so they can instruct an ambulance-chasing attorney to collect for them.

I think the overall numbers are very samll.
But there is a photographer whose behavior and listings suggest he is either intentionally or unintentionally seeding. His photos are lovely in the way that many who visit Hawaii with a decent camera in hand could take lovely photos.  He has sent out many letters.

The path does involve wall paper sites, but also involves the photographer uploading very high resolution images for downloads as wallpapers.  (There is discussion all over the place. Some here: http://www.extortionletterinfo.com/forum/getty-images-letter-forum/what-is-glen-carner%27s-official-position-on-vincent-k-tylor/msg7487/#msg7487 .) The very high resolutions images are displayed in places where it is either free or very cheap and easy to download a wallpaper image. These quickly end up on free wallpaper sites, where people who think they are free download and then display publicly rather than just using as wallpapers on their ocmputers. I'm under the impression the behavior has been going on for years, and many people have been sued. Meanwhile, the free/cheap high resolution images continue to appear at sites that are traceable to the photographer. 

Of course once can't be sure the photographer really, truly understands what is happening here. But one might think a person who is vigilant about suing would figure out that making high resolution images available at a very cheap site will provide the first step to the path of infringement. 

This issue has been discussed.   It does appear the legal representative who used to work with this photographer no longer does so

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/vincent-k-tylor-no-longer-associated-with-copyright-services-international/

I can't guess the extent to which conversation here lead to the change in legal representation.

It would be a severe abuse of the system and - in my opinion - would need to be treated as a criminal matter.

I'm not sure how a letter recipient could get the authorities to treat it as such. 

I also don't know if this particular photographer ever won a case on court. I know he has sued. I think some suits have settled. What does that mean? I don't know.

Lettered

simple unremarkable picture of a common item like a baseball is important enough to protect with life crushing fines of tens of thousands of dollars

I think you need to distinguish between merely "common item" and "common snap-shot of common items". After all: Andy Warhol's pictures of soupcans are pictures of soup can's. Some paints of fruit are lovely.  Some advertising photos are, when you come right down to it, just common items.   To a large extent, the US requirement that statutory damages only apply to material the creator or owner bothered to register, paying a relatively small fee, and doing so in a way that makes it possible to trace that specific creation to the creator and owner ought to take care of the issue.

In my view, the fact that Getty has been fairly sloppy about bulk registration and even-- we suspect-- the licensing paper work- is to quite a large extent the evidence that those images were not considered to have great commercially valuable individually. (BTW: I think bulk registration can be ok provided it is done properly. It reads like DavidVGoliath does that. Getty seems to have done things like: no mention who the creators are, not provide individual photos and so on.

There is a big difference here. It's huge proper bulk registration shows the creator values that work sufficiently to bother to file. Few 'flickr' type photographers who take even very nice photos of the shrubs in their back yard or pairs of tennis shoes lined up by the door, or photos of their sweaters, upload to flickr, and then auto-licence to Getty are going to bother to register because they know the photos are not distinctive. They may welcome the potential for a few bucks should someone want to use the thing. But for most those photographers, the filing fees would exceed the probably anticipated licensing feeds. 

Of course, difficulties could arise if an amateur photographer happens to be positioned in a location where he can-- by luck-- take a photo of historic interest. e.g. You're in the apartment above the street from the Tsarnaev brothers/police shoot out.  You're brave enough to stand by the window and take a photo.  You upload. But-- really- to cover this sort of situation - you have something like 6 months to register and still get statuory penalties, and you ought to do so.

209

Getty Images Letter Forum / Re: Well at least they are trying SOMETHING in the UK

« on: May 15, 2013, 10:39:54 AM »

What's wrong with a scenario where there is a free to use image registration system? That essentially fixes the problem.

The problem is that such an image registration system doesn't yet exist in the EU/UK, so the ERRB has kind of put the cart before the horse.

I should think one could be set up quickly. I don't see this as "cart before the horse". The system didn't exist before the law because the system had no meaning until the statute was enacted. Now, presumably, someone can set up the  registration system.  There may be a time gap during which the law exists but no system exist, but that's not such a big deal. 

I too would welcome a recognised registry that one could upload their images to - one that is referenced in the legislation which will form one of the cornerstones of the "diligent search" that they cite as necessary.

There would also need to be codification of the penalties for using works without performing such a diligent search, as well as penalties for the use of registered works.

Lastly, the serious flaws in the bill which relate to the Berne Convention need to be addressed too.

Is there a flaw related to the Berne Convention? The US recognizes copyright exists from the moment created, but also requires registration for the purpose of assessing statutory damages and penalties.

Believe me: rightsholders want those win-win-win scenarios too. The act, as it stands, might not permit such a thing as it appears to favour those whom want to use a work rather than seeking a balance between the interests of creatives and the general market.

It seems to me the balance will vanish once the registration mechanism is set up. That shouldn't take very long.

210

Getty Images Letter Forum / Re: A note on photos that are "public domain"

« on: May 14, 2013, 07:48:22 AM »

Services such as PicScout, DigiMarc and others are highly unlikely to mis-identify a shot - though I'll concede it's not impossible for that to happen. I once had to give some forensic level information to my Canadian attorneys on how I could be absolutely sure that a photograph I found on being used online was my own work - I elected to use an example where I shot literally elbow to elbow with a Getty staff photographer whereby we wound up with almost identical frames.

Why do you think this? PicScouts browser add on makes some pretty hilarious mistakes.