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« on: July 28, 2012, 12:09:52 PM »
Lucia and Buddhapi make many good points and it's good reading.
I think that Scraggy is really, really stuck on the mistaken idea that Getty could only sue if their agreement with the artist is "exclusive".
I have explained again and again that this simply isn't true. I think that his reasoning is that just because he doesn't understand "the law" or what I am saying, that he is "correct" and he has a viable legal case.
I'll say it again. The holder of a non-exclusive agreement HAS THE RIGHT TO SUE provided that one of the following stipulations from "Section 106" is written into the agreement. The list is as follows:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
I hope that everyone is with me so far. It's just a list; you don't even have to know what those mean.
If at least ONE from the list is written into the non-exclusive agreement, then the holder of that agreement has the right to sue.
You may now ask "why is that?". Very good question.
There was a legal case in the US that set a clear legal precedent.
What's a "precedent"? That is when somebody made the argument in court in the past, won, and as such this decision has legal weight and dictates future court decisions by judges.
This "precedent" was set in the cases "Silvers v. Sony" and "Eden Toys, Inc. v. Florelee Undergarment Co...". I posted links earlier.
These say that:
1) "these exclusive rights may be transferred and owned separately".
These "rights" are from the list that I pasted above.
This point simply means that one may choose to put one, or several things in the list into a "non-exclusive" contract.
You may at this point ask, "what makes S.G. think that this hypothetical contract is "non-exclusive"?
I'm glad that you asked. I know that we're referring to a non-exclusive contract, because an exclusive contract would confer the entire list above upon the other party; we wouldn't "pick and choose" from the list.
2) "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright"
In US law, when one speaks of "exclusive rights", that's referring to the list that I pasted above.
I think that this second point is very clear on its own:
One has the legal right to sue so long as one or more of the exclusive rights from the list is written into the contract.
Righthaven lost at every turn, because they didn't have the "right to sue". They did not have any points from the list of exclusive rights written into their contracts.
However, Getty usually has at least one thing from the list written into their contracts. I'm going to tell you what it is.
It's usually one or both of the following:
1) to reproduce the copyrighted work in copies or phonorecords
2) to prepare derivative works based upon the copyrighted work
In the first case, it allows Getty to reproduce the images on electronic media, or paper media.
In the second case, it allows Getty to magnify, crop, adjust color, resample the images, etc. Which they do.
Additionally, I'm not buying your assumption that Getty has the same things in their agreements as Marot.
It appears to me that "the last person to post in the thread is the winner", but court isn't like that.
You can say that I'm wrong, but unless you can shoot down my analysis with a better legal argument, I will insist that I'm right.
Furthermore, I know that there are people here that won't back down unless Oscar himself comes to THIS THREAD and says that they're wrong.
Some people here have such blind faith in their theories, they will not even give credence to past postings that Oscar made.
So be it. But after a certain point, it's like one person saying that the sky is blue, and the other saying that the sky is red, because he/she likes that color better.
Scraggy, at this point, I'm wondering if you were ever really sued by Marot.
You've gained respect here because of your claim, especially from Matt. But, I question your credibility at this point.
I'm going to finish by saying that if a complete amateur can shoot down your legal theory, then Getty's 1000 dollar/hour lawyers are going to have a ball hanging you out to dry.
S.G.
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