Messages

316

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 26, 2012, 02:03:37 PM »

Getty can still sue in the US even if the agreement is "non-exclusive", so long as there's one of the Section 106 stipulations in the agreement.

"Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."
Eden Toys, Inc. v. Florelee Undergarment Co.

Let me translate this for you, so that you can understand it better:
So long as one of the "exclusive rights" in Section 106 are included in the "assignment" (meaning the non-exclusive agreement), then the assignee (holder of the non-exclusive agreement) has the right to sue.
I've posted actual case law precident for you.  You still cannot seem to grasp it, and your only argument seems to be "I disagree with US case law".

You are AGAIN assuming that when a plaintiff loses a case, they never had the right to sue in the first place.  That is quite incorrect.
You brought up Getty vs. Advernet.  Getty lost on the standing to collect monies.  But, they didn't lose on the "right to sue" argument.
I don't think that the "right to sue" was ever brought up.  Additionally, the "right to sue" is the same as "standing to sue".

Furthermore, Getty had nothing to do with Marots' actions.  So, this changes nothing in case of Getty.

S.G.

317

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 26, 2012, 12:27:29 PM »

Stinger, I've already re-posted what Oscar said about a Getty class-action.
People can use the search function and find many posts that he has made regarding this.  But people are really, really lazy.
I don't think that Oscar has much more to say than he's already said.

Discussions have value, sure.  However, the laws are the most important thing.  That's all that matters in the end.  Were talking about court here.
When the discussion begins going in a circular motion, and noob posters begin saying "yeah, but we're not talking about that" when we were speaking of that particular topic,  or "I was referring to something else".  the discussion begins to fall apart.
You can't "win" a discussion by changing the subject.

Scraggy doesn't have the foggiest clue of what's in Getty's contracts with National Geographic.  He's talking out his ass.
Furthermore, he doesn't understand the fine nuances of "exclusive" and "non-exclusive", even when it's been posted here for him to read.
It keeps coming back to "Getty has no right to sue"... but Getty's gone to court haven't they?  They have the right to sue like anyone else.
They have trouble prevailing in court, but that's completely different than not having the "right to sue".
He needs to read a book or two.  I'm done with him, and this discussion.

S.G.

318

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 26, 2012, 11:36:12 AM »

Well, we're all entitled to our opinions.
You can see that the other regulars here can't be bothered even getting into the "class action against Getty" thing.
Here's how I see these these discussions at this point:



I don't like Getty, either.  If you want to sue Getty, go for it.
But, until somebody does it, and wins, you're talking out your ass.

S.G.

319

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 06:32:54 PM »

Ok.  Good, meaty discussion here!!

To be fair, I did not ignore the fact that you were speaking of only two particular collections.
I agreed that you are indeed correct that Getty is committing fraud if what you claim is true.

The topic of this discussion is "Possible reasons for class action suit against Getty in the USA".
Therefore, we came back around to the general discussion of whether or not a non-exclusive licensee has a right to sue.
I think that the answer lies in between both of our assertions as follows from the Silvers vs. Sony Pictures and  Eden Toys, Inc. v. Florelee Undergarment Co. cases:

"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."

http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml

I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.
UNLESS one of the exclusive rights in Section 106 is also transferred AS WELL.  I think that I am correct in this area.
Referring to the above "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright" (referring to the exclusive rights in Section 106).
It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.

We were both correct, technically speaking.  Perhaps, we can live with that?
Again, I think that you are right about the two collections that you mentioned, provided that Getty has none of the Section 106 exclusive rights in its contract(s).

To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars.  But, no legal fees.
Those lawsuits aren't worth it.  Hence very few lawsuits.

Very good discussion, as usual.

S.G.

 

320

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 04:48:23 PM »

Ok, here we go:

§ 201 . Ownership of copyright
...
(d) Transfer of Ownership. —
...
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

http://www.copyright.gov/title17/92chap2.html

----

Readers here may recall that Getty has the above right to litigate on behalf of the artist written in its contracts.
In theory, they may only successfully litigate to the extent that they could receive the "retail price" of the image infringed upon.
That is because of the following.  The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.
HOWEVER, Getty doesn't normally register their images in their own name, and are therefore NOT entitled to statutory damages in addition to actual damages (ie the retail price).

Folks should not confuse all of this with the Righthaven debacle.
In that case, Stephens Media ONLY transferred the "right to sue" and nothing else.
This has no legal standing at all.

...and there you have it.

Anyway, I think that at this point, I'd like to see the people posting on here quote actual sections of law.
I don't think that the forum is well served by "opinion" after a certain point, unless you're a lawyer and can prove such.
Because we could go on for days with opinions.  Quote law if you can.

S.G.

321

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 04:37:22 PM »

Yes, I agree Scraggy!!  If Getty had NO contracts with the actual owner, then this would be a clear fraud.

Khan, I still think that each non-exclusive licensee may attempt to collect damages.
But, don't try to give these artists any "ideas", ok?   

S.G.

322

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 04:22:53 PM »

Khan, I think that you're incorrect.
Getty represents the photographer in its contracts.
Part of that contract stipulates that Getty may collect on the artist's behalf, and the artist will be paid accordingly.
Therefore, it would be difficult for the artist to go to court and sue in order to "double-dip".

S.G.

323

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 04:19:43 PM »

Obviously, exclusive licensees may sue, and are entitled to damages and statutory damages.  We agree on that.

I believe that you are incorrect that only the exclusive licensee has the "right to sue".
I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.
This is our disagreement.

Now, I think that you are probably correct in that only an actual owner of the image may transfer (some or all) of his/her rights to other licensees.  We agree on this?
In such a case, there can actually be many non-exclusive licensees in addition to the actual owner.
One may have Getty, Corbis and Masterfile sell their image, for example.

Obviously, there can't be a "mix" of an exclusive licensee and other non-exclusive licensees.  Otherwise, it's not "exclusive" to anyone, right?

I'm going to hit the US law books and post some further info.

S.G.

324

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 02:01:13 PM »

Because Getty actually has licenses with their artist/photographers, they are not breaking any laws by pursuing settlements.
This sort of thing is NOT contingent on whether or not Getty has exclusive licenses with its artist/photographers.
In fact, my understanding is that even if their licences are non-exclusive, they still may pursue the actual retail price of the images infringed upon (but not statutory damages).
So they do in fact have some legal grounds for what they're doing.

Oscar touched on this in the past:

"If there was valid way to bring a class action for this conduct, I would have done so years ago or one of these firms, who do nothing but bring consumer class actions. Barratry requires the litigant to have no claim - these companies do have a right to protect these images. It is not harassment to try and collect for an infringement; it is their methods and demand amounts that are just overbearing and  disturbing.  But as always I am open to suggestions so please tell me what would the basis be for a class action; what is the illegal conduct they are engaging in that gives rise to a claim?  I will be the first to sign on to bring the case myself!"

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscar-to-ask-attorney-gen-of-ny-to-investigate-masterfile-evidence-available!/

I think that we're making too much of a comparison between Marot and Getty.
Again, I don't think that Marot had any valid claims of infringement.
But, Getty does have licences with its people, which does give it some legality; they can come after you for a settlement (even if a court would only grant them the retail price).
That's the law.  It kills off the argument that a case could be built upon this.

S.G.

325

Getty Images Letter Forum / Re: Contacting getty before receiving a letter

« on: July 25, 2012, 01:40:05 PM »

Also "get PreCrime!  It works!" 

S.G.

326

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 11:15:19 AM »

Isn't Marot a completely different company from Getty?
I don't get it.  Am I misunderstanding something?   

S.G.

327

Getty Images Letter Forum / Re: Contacting getty before receiving a letter

« on: July 25, 2012, 11:10:22 AM »

Laughed my ass off.

S.G.

328

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 25, 2012, 11:09:18 AM »

I agree with Ian in that I think that he has a great case against Marot.
The fact that his lawyer is working on contingency also shows that he feels that he'll make money on this.

I also agree with Couch_Potato.
But again... it all comes back to the facts that Getty doesn't have enough legal standing to win lawsuits against most infringers.
Conversely, it's also my opinion that they do have the legal right to send demand letters and sue people.
If they had NO license agreements with their artists, it would be a different story; it would be a complete fraud.
These fact are quite difficult to overcome, I think.

S.G.

329

Getty Images Letter Forum / Re: Heres your Saturday snicker!!

« on: July 25, 2012, 10:37:56 AM »

Not sure which matter you're referring to?
My post wasn't intended for use in the "ELI Factor" of course.
Also, my postings don't necessarily "represent" ELI or the opinions of its principals in any case.

S.G.

330

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 24, 2012, 07:27:05 PM »

We're clearly not lawyers here, and it shows.  lol.

I should clarify a couple of points, however:

The first is that a person or other entity can sue over practically anything.  One needn't even have a "winning case".
The second is that one can sue even if there is no exclusive agreement between the artist and the retailer.
Thirdly "Getty" may in fact "register" content in its name, and come back for another go in cases such as MF vs Chaga for example.
A quote from Oscar: "MF could now properly register each and every picture individually (provided it has proper assignments from the photographers) and file a new lawsuit provided it's still within three years of the alleged infringement."
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/masterfile's-copyright-registration-method-held-invalid-by-california-court/
Do not think for a second that Getty couldn't generate enough legal standing to fend off most class-action lawsuits based on "standing to sue" alone.
Marot can't register squat, because they had no license agreements with the artists in question at all.
The fourth point is that "Getty" does have license agreements between itself and its artists.  My understanding is that Marot is quite a different situation.

There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially, and can prove it because you've "won", you've probably already had your attorney fees and expenses awarded to you.
You've been made "whole".  How can one come back for another "go" at it?
The people that haven't been sued haven't been "damaged", and have no case against Getty.

I dislike Getty more than some of the regulars on here, and I'd like to see them stop what they are doing, or at least demand resonable settlements.
However, my personal opinion is that we need to separate the concepts of "standing to sue", and "a losing case".
There's a difference.

S.G.