Messages

226

Getty Images Letter Forum / Re: Help checking image registration

« on: April 24, 2013, 04:20:16 PM »

Yes, I think it is likely that Egan would file the online license for this image with Getty, since he states on his website that he is distributing the images though Getty Images.  Egan being from Ireland should not make any difference if he filed, what he thinks, a legal license with Getty in the U.S.?

I would assume Egan thinks he's doing whatever he needs to do to sell in the US.  But he may be following Getty's advice (which could be mistaken) or he may merely think the extra he can make in the US doesn't merit his registering copyrights himself in the US.  (Getty seems to have led some photographers to believe this-- and then have lost cases in court owing to courts interpreting US copyright law differently than Getty.)

But there are two different issues:
(a) registration of the copyright.  Registration would be filed with a government agency: e.g. US copyright office, Irish copyright office and so on.
(b) licensing the right to use the copyrighted content. Licensing would be a contract between the copyright holder (often the photographer) and the user or reseller (which could be Getty.)

The two are separate actions.  The copyright holder could have granted a perfectly valid license to Getty in the US. But the registration might be flawed or nonexistent.

The total damages Getty or the photographer could recover in a suit is affected by whether the image was registered prior to any unauthorized copying. In US law, a copyright holder can get actual damages if the image was not registered prior to unauthorized copying but they can get statutory damages if the images was registered. The latter can be much higher and often drive the very scary numbers in the letters Getty sends out. We have pretty good evidence the photographer does not register his photo's in the use-- but he may register them in Ireland. I just don't know how such registrations are treated in US courts. (I don't know because I'm inexpert!)

 Whether Getty has standing to sell licenses and pursue unlicensed copying for the copyright holder depends on whether the license(i.e. contract between the copyright holder and Getty) is valid.  I'm sure the photographer has gone through some motions filling out forms and paperworks with the intention of creating a license with Getty.  However, it's not clear that judge would interpret these licenses as valid in court. The reason is that-- at least in the past-- Getty seems to have set things up in ways that don't ensure the paper work is sufficiently clear, properly signed and so on.  So, some of Getty's cases might be thrown out on the grounds that Getty doesn't have standing to sue because the license doesn't really hold water.  If Getty's license is flawed, then Getty couldn't sue you on behalf of the photographer-- but the photographer could sue you ( if he wished to bother.)

Getty has in the past had difficulties both with respect to flawed licenses and with respect to flawed copyright registrations.  To prevail in a suit, they need to fix both. They may have done so. We don't know.

227

Getty Images Letter Forum / Re: Getty Images in Canada

« on: April 24, 2013, 03:10:36 PM »

I know US copyright recognizes copyright from other jurisdictions and for non-US citizens. What I don't know is how registration in another country affects potential penalties if a case is brought in the US.  Since the photographer is Irish, it's plausible he would register in Ireland, and then not register in every single country on the planet.  I would imagine copyright law is (and ought to be) written to give such  holders protection.  Still, I don't know if the photographer can collect statutory penalties in the US if he did not register in the US prior to the claimed violation happening. (Oddly, the photographer on the legal-issues thread might know. But he seems to live in Europe and seems to take care to file for copyright in the US. His registering in the US is sufficient to resolve any issues about penalties should he bring suit in the US: A court could award him statutory penalties. )

But with respect to your case, Getty would definitely need to figure out where to file any case. I don't know if they can file any case against you in California-- but it's plausible if your server is hosted there.  If they filed there, US law would apply. Oscar could write a letter for you or represent you.  I'm sure Oscar also knows whether the server being in Canada gives sufficient nexus to permit them to sue you in California courts.  I just don't know.

If they file in Canada, Canadian law would apply. Oscar can't represent you or send a letter.


Ohhh... Oscar would be better than googling. But I found this: The Calder Test, which it seems, would be applied by an American court determining whether Getty could sue you someplace other than were you reside or other than where you do business. 

http://faculty.ist.psu.edu/bagby/432Spring12/T15/jurisdiction.html
Often times determining if a state has personal jurisdiction in online cases can be difficult. This is why the Calder test has become so important as a starting point. The court has to determine three things to grant personal jurisdiction. First, whether or not the act was committed intentionally. Second, if the act was directly aimed at the plaintiff in the forum state and finally, whether or not the defendant suffered damages in that state. If the court can find all three of these tests to be true, then personal jurisdiction can be granted.

But I do read other interpretations that seem to organize the arguments differently. For example:
http://onellp.com/blog/knowledge-and-copyright-infringement-do-not-create-specific-jurisdiction-in-plaintiff%E2%80%99s-forum-state/


I suspect that your act will not have been "directly aimed at the plaintiff in" any state of the US.  If all three need to be fulfilled to get jurisdiction in a venue in the US, Getty would then have to hope to sue you in Canada. If you had any sort of attorney, I suspect Getty would have a tough time creating an argument to meet the jurisdictional hurdle for a US filing. But.. as I said: Oscar is the one who would know. It's his specialty.

228

Getty Images Letter Forum / Re: Help checking image registration

« on: April 23, 2013, 08:52:05 AM »

Hmm... on the other thread, you said you are in Canada. You need to take all American legal interpretations with a grain of salt. They only apply if the jurisdiction for the suit is the US.  If it's Canada, Canadian law applies.

229

Getty Images Letter Forum / Re: Getty Images in Canada

« on: April 23, 2013, 08:48:34 AM »

You live in Canada. Where was your website hosted? If that was Canada, I think your jurisdiction is Canada because I don't think any American copyright court would consider the case to fall in their jurisdiction. 

Even in the US, they have to bring the case in the jurisdiction that applies. So, for example: I live in Illinois. If I decide to photo-copy books using a copier located in Illinois, and sell the copies in a store in Illinois, the copyright owner has to file that case in my jurisdiction, which means the case will be heard in Chicago.  In the hypothetical I created, they can't file the case in California.   I'm not quite sure what happens if I post on my blog which is served from a machine located in California.  So, maybe someone getting me for copyright could file in California-- I'm not sure. But I think they couldn't file in Seattle (unless they could dream up some rather novel theory that involves something about the publication happening in that jurisdiction).

So, it seems to me if you are in Canada, and your server is in Canada, they are going to have to file in Canada. Moreover, are any of your assets in the US?  I don't know how Canada deals with American copyright awards. Getty might have difficulty collecting from a Canadian.

230

Getty Images Letter Forum / Re: Help checking image registration

« on: April 23, 2013, 08:35:45 AM »

Hhmmm...I looked at Egan's other images. Looking at the images, it occurred to me he's not American. I don't quite know what happens with Copyright claims if they were registered elsewhere for example Ireland. Here's Egan's website:
http://shaunegan.com/  He appears to be in Ireland.

This photographer does do commercial work.   

231

Getty Images Letter Forum / Re: Help checking image registration

« on: April 23, 2013, 08:29:04 AM »

Lucia, so glad someone can understand these things so well.  But in this hypothetical situation if the calendar had the image and if getty had a nice strong license with calendar maker (which they probably don't) then this would be an argument for getty, wouldn't it?  Or am I getting totally confused here?

Yes. If that images is one whose copyright owner is the calendar maker, the calendar maker is the one who licensed to Getty, and the license is valid and Getty sued you,  I think Getty would have a valid claim.  The only way to resolve uncertainty about that is to find out if that image is on the calendar, if it is, find out if the license is with Getty. 

This is why most people negotiate these things with some level of uncertainty. That's no different from most of life where you need to act based on information you have. 

You might be able to gauge whether it's likely the photographer is the one with the license by searching for images by him at Getty. If there are tons, he's probably the one who uploaded and filled out the online license granting Getty permission to list. (This online license may not hold up in court for several reasons. But once again we can't be sure. But we do know the copyright owner needs to fill it out).  Of course, there would be no guarantee based on incomplete knowledge. But less incomplete knowledge can be useful.

232

Getty Images Letter Forum / Re: Help checking image registration

« on: April 22, 2013, 08:23:41 PM »

gimby
There is rarely any 'conclusion'. The best one can do is have data that suggests what the maximum loss might be IF getty did sue (which they likely won't for 1 image).

With respect to the calendar: One way to know if this picture is on the calendar, is to obtain the calendar.  You could write the calendar author/maker.  They were listed on the copyright. Also: If the images is on the calendar, the author of the calendar seems to own the copyright because the photo was work for hire.  That means any contract granting a license needs to be between the calendar maker and getty, not the photographer. 

233

Getty Images Letter Forum / Re: Help checking image registration

« on: April 22, 2013, 03:07:40 PM »

We know Getty has tended to try to compile batch registrations. Their earlier method didn't hold up. Whether they have found a new method that is valid, we can't guess. However, I think one of the elements ought to be that the photographer should be listed by name in the registration. Searching at the US copyright office, I found exactly one instance of Shaun Egan:

http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?SC=Author&SA=Egan%2C%20Shaun&PID=9J8gCLW88fGTH-XtL7_Z3fv0e0TS&BROWSE=1&HC=1&SID=10

That's a calendar and the copyright owner is not the photographers. It's the Universe Publishing who hired them to create photos used in the calendar.

Bear in mind the search tool only goes back to 1978. I'm also not sure whether every name listed on a bulk registration would be 'findable' in a US copyright office search.

234

Getty Images Letter Forum / Re: Help checking image registration

« on: April 22, 2013, 02:49:25 PM »

This image?
http://www.gettyimages.com/detail/photo/stepping-stones-across-sand-and-shallow-high-res-stock-photography/10197387

I'll search for the photographer's name and so on. 

235

Legal Controversies Forum / Re: EFF Moves to Quash Subpoena in Copyright Troll’s Retaliatory Lawsuit

« on: April 19, 2013, 06:19:04 PM »

it's flat out ridiculous to claim that the Prenda Law (a corporation) has been libeled by allegations of fornication and adultery.

Just wait until Prenda Law's wife hears about the adultery, files for divorce and asked for alimony!!!

236

Getty Images Letter Forum / Re: new image bot/spider/scraper

« on: April 19, 2013, 04:34:26 PM »

Lucia, I have a question about method I that you describe.

If Getty comes to my site through picscout, and copies my copyrighted images onto their server so they can then scan them to determine if they are theirs, is that act of copying my images a copyright infringement by picscout?  Or do they have to publish something first?  It seems like they have taken something that is not theirs and made a copy of it.

First that's a legal question and my answer to the legal question is "I don't know". Oscar might know whether their copying onto their server violates copyright or failing that, whether someone alleging copyright would have a colorable case.  I assume picscout would claim fair use for the copy. They might win. Oscar would be the one who could speculate intelligently about that.
Second: They may  not load the images onto their server. 
Third: This might be largely hypothetical since you don't know whether a visit results in their making a copy to their server. They may merely compare. 

If it is infringement, one would have to find a way to prove that this is happening.

Supoena? Discovery after they sue you? Those are the only legal methods I can think of. The illegal ones would be "cracking into their computer".  I'm not sure how you would bring that evidence forward.

I don't want to use the words S.G. hates, but could a poorly designed picscout open Getty up to some sort of large scale action?  They are certainly not teaching or commenting on my photos.

Once again: Legal question.  Worse: complicated fair use question about a transformative use.  (Google gets to copy and cache.  I think that's been deemed fair use.)

If someone steals a priceless painting and doesn't display it, they are still guilty of theft if caught.  Is that also true with digital images?

Well.... Getty seems to say it applies to digital images.

237

Getty Images Letter Forum / Re: new image bot/spider/scraper

« on: April 19, 2013, 04:27:16 PM »

Although I salute the effort Robert and Lucia put into blocking these bots, I really don't see it worth the effort. I was convinced the first time I tried to visit Lucia's site and my IP was blocked. I can't afford to start blocking potential customers, so I knew this wasn't for me.

I've gotten better at not blocking people. But you are correct that with respect to the copyright extortion issue, the correct practice is not to use images that don't belong to you. 

The main reason I block bots is that I see lots of bots that do nothing but raise my server costs. These aren't necessarily image bots; in fact most are not. This is a problem for a hobby blog that generates $0 by design and has absolute positively no revenue model.  If I block someone, I block someone. It's not desirable, but I don't lose customers or revenue. 

I've gotten better at figuring out how to block the non-image bots too. But once again: in my case, it's acceptable to sometimes block people. That likely is not the case for your business.

238

Getty Images Letter Forum / Re: new image bot/spider/scraper

« on: April 19, 2013, 08:58:15 AM »

Ahh... Oscar. The conversation evolved.


Robert and I began by talking about methods an image search company could use to search for images that have been copied.

The two methods are being discussed.   Here's are the methods in a hypothetical.

Suppose I have 10 images on my site.  The company X is hired to by photographer Y to discover whether I am violating Y's copyright by hosting his image.   

Method I: Company X can create a 'bot' (aka computer program or script), that comes to my site, tries to load every file on my server possibly copying each to its own server. This is generally called 'scraping'. When it finds an image, it compares that image to photographer Y's image. If there is a match, it reports the URI for that image to photographer Y. 

Method II: Company X can create a bot that goes to Google's image search page scours all those images, when it finds a match to photographer Y's image, the bot is programmed to click over to the offending site (in this case mine). After clicking over, it identifies the URI and reports that to photographer Y.  This method will permit Company A to find images on my site provided I have been permitting Google to crawl my images and save those to Google's server. (Note, I have changed verbs from "scrape" to "crawl". The two actions could be described as being 'exactly the same';  scraping could be defined as "unwelcome crawling". Sort of like "Stop your pawing!","Cara mia! That was a caress!")

Because Method I consumes lots of my server resource (my $$), I prefer company X use Method II. That would mean they consume lots of Google's server resources (Googles $$).  As it happens Method II might also consume fewer of company X's resources because they know that everything at Google images is an image and they don't have to crawl through lots of non-image material to find image links.  So company X might want to do this.  This method II is what Mulligan was suggesting when he kicked this off with

I wonder if this company's using Google's image search as the backbone? Is it possible to do that?

Method II would be "using Google's image search as the backbone" of company X's system.  But now lets turn to Mulligan's second question: Is it possible?
 

 I'm pretty sure Google wouldn't like company X to use Google's search in quite this way both because (a) it consumes Googles server resources and (b) crawlers don't click advertising links and so don't make Google any money.

So, Google would likely be motivated to take steps to make it difficult for companies of this nature from using Google search in quite this way.  These steps might involve having its legal eagles write TOS that prohibit the behavior or it might involve using technology to notice the behavior and prevent or throttle it. The first would involve people like you writing a TOS, but it would be toothless if programmers and coders didn't do something to notice the behavior or collect evidence. And if they can notice or identify the behavior, they are likely to try to prevent it or throttle it.  And Google is chockful of people who know how to code. So, I would bet they use code to inhibit Company A from using the image search as a backbone. That said: It's impossible to use technology entirely prevent a determined party from scraping a public facing resource while still permitting public access, so its possible Company A does it nonetheless.

So, that was the first part of the conversation.   

After that, Robert switched to: Who would block Google from  crawling?  And I told him some people might block Google from crawling images and explained why they  might do so. Robert likely understands my fuller point because he already knows that Google names their crawler and has different ones. Their image crawler is separate from their text crawler. So if I like, I can block Googles image crawler but permit the text crawler.  One reason I might block the former and not the later is that I get very little 'good' traffic from image searches. I get lots of 'good' traffic from the text searches.  (I'm the one who defines what's good from my point of view.)

So.. I think that's what the F we were talking about.

239

Legal Controversies Forum / Re: A message from the little guy

« on: April 19, 2013, 12:04:29 AM »

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

You may want to read Masterfile v Chaga which ruled last fall that this type of registration is not valid should you need to take someone who has infringed one of your works to court.  This method of registration was adopted by the copyright office to make it easier on them even though the law states it must be individual registration.

Greg, I think some types of bulk registrations are fine; other's aren't.  It's likely DavidVGoliath is ok because he's the photographer and registering his own stuff.

One of the problems with some of the copyright companies registrations is they tried to use bulk registration to register works by multiple creators , the registration often didn't name all the creators, didn't indicate country of residence for creators living abroad and so on. These flaws don't necessarily carry over to DavidVGoliath who is registering his own single creator works, likely listing his own name, residence and so on.

240

Legal Controversies Forum / Re: A message from the little guy

« on: April 18, 2013, 08:23:00 PM »

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

The batch registration is understood.. But in the case of images involved in many of the Getty letters, in many cases those photographers appear to have any images, or they have registered 1 or 2 in special instances but for the most part, their images listed at Getty were never registered. Getty will have to register them if they eventually elect to sue, but as things stand, those images are not registered.

[quoteThe truth is that I'd prefer not to have to "go legal" at all; [/quote]
Also understood. But by the same token, the fact that you would go to court and your images are registered and you do have regular clients for these images and you have a valid claim and so on makes it more reasonable to request a fairly high amount even during negotiations.

Oh, you'd be surprised at how many people, when presented with clear evidence of my rights, still basically spit in my face and tell me to take a hike... even when all I've asked for is a retroactive license for the image(s) they've used (think low three figures in most instances)

No. I wouldn't be surprised.

Neverthelss, I am noting that while some aspects of your wanting money for your images is similar to Getty, others are different.

Correct: I take into consideration the four point assessment of 'Fair Use' per 17 USC § 107 when reviewing a site where my shots have been used and, in a few instances, have left the uses alone as the aggregate of the four points would lend probability to a use being fair. I may still reach out to the site owner to ensure that they give proper attribution and also offer up a watermarked photograph as a replacement... all to reduce the risk of a "downstream" infringement.

That's fair on your part. I don't think anyone should object.

What this boils down to can be summed up thus: if uses of my photograph were allowed to run rampant (i.e. be deemed 'fair') then the potential market value for my original photographs would be greatly diminished.

Section 4 can be viewed as the 'tipping point' and might carry as much as 49 ~ 50% of the weight in my claims against fair use. I'm well aware it would be up for a court to agree with me i.e. I can't simply counter a claim of fair use with my assertion that it isn't... but, believe me, I have a strong argument ready and waiting should it ever come to that.

I believe you.  But that doesn't tell us anything about the strength of Getty's various cases.

I'm sure the majority photographers would prefer their work is correctly licensed (assuming that it's available for license) and thus enjoy better incomes and more widespread recognition.

There's nary a one of us that gets into the realm of professional photography with the top priority being to make money: we're almost all driven by passion, enthusiasm and a love of our subject matter; that we get to earn a living from doing so is the icing on the cake - even when baking the cake can cost us in the proverbial blood, sweat and tears along the way.

Sure. But in many cases this is irrelevant to the sorts of situations where Getty is pressing for very high payments.  If Getty sued me over the hotlinked image they sent me letters about they would just flat out lose.  Hotlinking is  not a copyright violation as interpreted by the American courts so that alone would make them lose. (And you would lose a hotlinking case also. ) But even if I had copied and not merely hotlinked, the use I made of the tiny image of a cardinal had no impact on the value of the image which the copyright owner was giving out for free on her own web site. 

So while you have legitimate gripes with regard to people who violate your copyright, the differences between your situation and the one in which someone like I fell into with Getty make a huge difference in my-- and others-- estimation of Getty's practices pursuing what they claim are copyright violations.