361
Getty Images Letter Forum / Re: How to STOP Getty and Getty's Employees Harassment
« on: August 05, 2012, 08:20:13 PM »
Good summary Rock.
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362
Legal Controversies Forum / Re: Anybody can sue anybody for any reason...abuse of the law is still rampant!
« on: July 16, 2012, 08:53:15 PM »
Any lawyer who would take a case like this needs to be publicly shamed - it's ridiculous. Last week in Nassau County where I lived, a woman filed a suit against the County for $10M because she claims that they failed to properly supervise one of their police officers allowing HER to have an affair with him! That's right - he used to go to her house during his shift and they would get it on. It came out in the papers and now she says she is traumatized because of it and they should have supervised him better so that he would not be able to do that with her. Here's the link to the story:
http://www.lifamilies.com/chat/topic-woman-sues-nassau-over-affair-w-cop-747452-1.html?AspxAutoDetectCookieSupport=1
http://www.lifamilies.com/chat/topic-woman-sues-nassau-over-affair-w-cop-747452-1.html?AspxAutoDetectCookieSupport=1
363
Getty Images Letter Forum / Re: My Analysis of Corbis vs. Nick Starr Case Outcome
« on: July 16, 2012, 04:49:38 PM »
Let me just put in my two cents on this case.
First: Matt - website owners can always look to their web developers for payment of damages awarded against them (indemnification) when the website owners did not personally handpick or provide the images used on the website. The problem is that many website owners outsourced the work to companies in India, Bangladesh, Sri Lanka and other world outposts so good luck trying to get any money out of them. But the website owners are not off the hook. They are ultimately responsible for the content on their website and have an obligation to ask and make sure that any intellectual property put on their site is legally obtained and licensed. Also, the developer will likely be seen to be an agent of the owner making the owner potentially responsible for their actions. So what would happen is that after a determination that there was an infringement, the court would then determine the share of responsibilty between the owner and developer (totaling 100%). How much gets put on the owner will depend on how much input the owner had in selecting the images; the experience and know how of the owner; what steps the owner took to find out about the legality of the images; and what the owner was told about the source of the images. But "joint and several" liability means that even if the court finds the owner 10% responsible and the developer 90% responsible, the plaintiff can still collect the whole 100% from the owner and make the owner try to get the 90% from the developer. That's why its best for website owners to pay a little extra to go with a reputable web devloper who won't get you into this mess to begin with but who will be there should a mistake be made and a Getty claim arise.
Second: The defendants here did not make a strong enough argument on the compilation registration issue. How do I know that? Because in support of his giving judgment to Corbis the judge cited two cases that said registration of a collection provides protection to the individual works of art within the collection: While the case law in the Sixth Circuit is silent on this issue, other courts have found that registration of a collection extends copyright protection to each copyrightable element in the collection."); Sefton v. Jew, 201 F. Supp. 2d 730, 748 n.14 (W.D. Tex. 2001) (citing Szabo v. Errisson, 68 F.3d 940, 944 (5th Cir. 1995)). But in both of those cases, there was only ONE author and all of the collection was published at the same time. That is simply not the case here. Also, this is not a collection but a compilation and the Copyright Act specifically states that a compilation registration does not give protection to the individual works fo art within the compilation. Also, did the defendants' lawyer show Muench/Bean to the court? Those cases are directly on point as I believe it was an artist who had assigned his photos to Corbis that was involved so the declaration by Judge Preska that this method of registration was invalid would have a lot of weight.
Third: Even with all of this, there is no way to spin this case other than as a loss to Corbis. They are in the business of making money and this case cost them a ton of money and time. I wonder whether the defendants were even able to pay the judgment or did they declare bankruptcy?
First: Matt - website owners can always look to their web developers for payment of damages awarded against them (indemnification) when the website owners did not personally handpick or provide the images used on the website. The problem is that many website owners outsourced the work to companies in India, Bangladesh, Sri Lanka and other world outposts so good luck trying to get any money out of them. But the website owners are not off the hook. They are ultimately responsible for the content on their website and have an obligation to ask and make sure that any intellectual property put on their site is legally obtained and licensed. Also, the developer will likely be seen to be an agent of the owner making the owner potentially responsible for their actions. So what would happen is that after a determination that there was an infringement, the court would then determine the share of responsibilty between the owner and developer (totaling 100%). How much gets put on the owner will depend on how much input the owner had in selecting the images; the experience and know how of the owner; what steps the owner took to find out about the legality of the images; and what the owner was told about the source of the images. But "joint and several" liability means that even if the court finds the owner 10% responsible and the developer 90% responsible, the plaintiff can still collect the whole 100% from the owner and make the owner try to get the 90% from the developer. That's why its best for website owners to pay a little extra to go with a reputable web devloper who won't get you into this mess to begin with but who will be there should a mistake be made and a Getty claim arise.
Second: The defendants here did not make a strong enough argument on the compilation registration issue. How do I know that? Because in support of his giving judgment to Corbis the judge cited two cases that said registration of a collection provides protection to the individual works of art within the collection: While the case law in the Sixth Circuit is silent on this issue, other courts have found that registration of a collection extends copyright protection to each copyrightable element in the collection."); Sefton v. Jew, 201 F. Supp. 2d 730, 748 n.14 (W.D. Tex. 2001) (citing Szabo v. Errisson, 68 F.3d 940, 944 (5th Cir. 1995)). But in both of those cases, there was only ONE author and all of the collection was published at the same time. That is simply not the case here. Also, this is not a collection but a compilation and the Copyright Act specifically states that a compilation registration does not give protection to the individual works fo art within the compilation. Also, did the defendants' lawyer show Muench/Bean to the court? Those cases are directly on point as I believe it was an artist who had assigned his photos to Corbis that was involved so the declaration by Judge Preska that this method of registration was invalid would have a lot of weight.
Third: Even with all of this, there is no way to spin this case other than as a loss to Corbis. They are in the business of making money and this case cost them a ton of money and time. I wonder whether the defendants were even able to pay the judgment or did they declare bankruptcy?
364
Getty Images Letter Forum / Re: Masterfile's Copyright Registration Method Held Invalid by California Court
« on: July 16, 2012, 03:58:04 PM »
Two things MF could do: (1) MF may appeal (likely); (2) 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. However, since the pictures were not properly registered at the time of the alleged infringement, MF would only be able to get its "actual damages" and would not be able to get attorney's fees. This makes it unlikely that they will pursue the claim in this fashion. This is especially so since there were a number of other substantive defenses we were prepared to raise in the event the court allowed the lawsuit to proceed. I suspect they will put all their eggs into the appeal basket and I expect that like the plaintiffs in Alaska Stock, they will bring out all the guns and get supporting briefs from the Dept of Justice, and many others.
365
Getty Images Letter Forum / Re: New Topic: ELI "AfterDark"
« on: July 13, 2012, 10:42:18 AM »
Great job!
366
Getty Images Letter Forum / Masterfile's Copyright Registration Method Held Invalid by California Court
« on: July 12, 2012, 06:05:33 PM »
As many of you know, I have been representing Chaga International in a case brought by Masterfile ("MF") in the California District Court. MF sued them for a whopping $6,000,000.00. Well a few weeks ago, Judge Manuel Real of the court GRANTED our motion for summary judgment and threw out MF's complaint! We are in the process of entering the final judgment now. I will send Matt Chan the transcript so you can read what Judge Real said, but will summarize it here.
Basically, MF relies on compilation registrations whereby they send the Copyright office a CD containing thousands of images by various authors and list three random authors' names and then add "and other authors" under the section where the authors' names are supposed to go. They also use one date of publication for all the images, even though they may have been published at different times. They also do not list where the images were first published. They used this method because they relied on correspondence between Nancy Wolff, a photographer's lobbyist, and the Copyright Office, whose registrar at that time was Marybeth Peters.
Well for years, when we first started this program, I would argue with MF and their lawyers that the Copyright Office was dead wrong! This method of registration was invalid in my opinion as it did not comply with the specific language of the Act. I would get snide snickers and comments like "So you think you know better than the Copyright Office?" And I would reply "Not about everything, but about this - Yeah! It's Plain English. Read the statute. It must list the author's name and the date and place of publication. Furthermore, the Act states that compilation registration does not provide protection for the individual images contained in the compilation."
My arguments did not get very far until I was vindicated by Judge Loretta Preska's decision in Muench v. Houghton Mifflin which basically stated word for word what I had been saying. Muench (which was argued by my friend Russell Jackson at Skadden, Arp, Meagher & Flom) has been discussed at length on this site. Other courts soon followed suit, most famously the Alaska District Court in the case of Alaska Stock Photography v. Houghton Mifflin (also argued successfully by Russell). Only one lone judge in Utah held that he did not agree with Muench and awarded MF a judgment against a real estate company that used an MF image (that case was called Masterfile v. Gale). The lawyers in Utah for the Gale defendants did not argue the same argument as the lawyers in Muench for some reason, so the Utah court never really had to decide the specific issue. Instead, the court just added that it disagreed with Muench (If you want all the esoteric legal details, all of this is laid out in detail in my Memo of Law which Matt Chan uploaded or will upload soon).
Anyway, I basically stated that the same arguments as in Muench and Alaska Stock applied in this case and that the same result should apply. Motion papers and arguments were submitted back and forth and on June 18, a court date was set for submission of the motion. My local counsel advised me that there was no need to make a personal appearance as Judge Real relies almost exclusively on the papers and just wants to make sure no one has anything to add before he renders his decision on the record. MF's lawyer did attend and tried to briefly argue about an appellate case he felt was applicable.
True to his procedure, Judge Real read his decision on the record and dismissed the case stating in part:
With respect to MF's argument that the Copyright Office told them it was OK to file this way, Judge Real stated:
That courts in NY and California have now held that compilation registration is invalid shoots a poisoned arrow straight into the heart of MF's claims that it has copyrighted works and is therefore entitled to statutory penalties and attorney's fees. They will probably continue to argue that they feel the Utah decision is right,but that is a weak argument. Looking at the Alaska Stock, Muench and Chaga decisions, it is clear the courts in those three case thoroughly analyzed the registration method and the arguments raised by counsel. The Gale decision does not have the same depth of analysis and the court was not asked to rule if the registrations complied with Section 409 of the Copyright Act, so I believe that decision is of little or no value. Unfortunately, the Alaska Stock appeal is on hold as the plaintiff has field for bankruptcy so we will not have an appellate decision on this vital issue anytime soon. I was confident that the Ninth Circuit was going to uphold the decision in Alaska Stock which would have made for an even stronger position for our side.
Needless to say, its always nice to win. But to have this legal position upheld is even more important (at least to everyone but the folks at Chaga!). Let's wait and see what MF will do now in light of this decision.
I want to thank Russell Jackson and his team at Skadden, Arps for paving the way on this issue.
Basically, MF relies on compilation registrations whereby they send the Copyright office a CD containing thousands of images by various authors and list three random authors' names and then add "and other authors" under the section where the authors' names are supposed to go. They also use one date of publication for all the images, even though they may have been published at different times. They also do not list where the images were first published. They used this method because they relied on correspondence between Nancy Wolff, a photographer's lobbyist, and the Copyright Office, whose registrar at that time was Marybeth Peters.
Well for years, when we first started this program, I would argue with MF and their lawyers that the Copyright Office was dead wrong! This method of registration was invalid in my opinion as it did not comply with the specific language of the Act. I would get snide snickers and comments like "So you think you know better than the Copyright Office?" And I would reply "Not about everything, but about this - Yeah! It's Plain English. Read the statute. It must list the author's name and the date and place of publication. Furthermore, the Act states that compilation registration does not provide protection for the individual images contained in the compilation."
My arguments did not get very far until I was vindicated by Judge Loretta Preska's decision in Muench v. Houghton Mifflin which basically stated word for word what I had been saying. Muench (which was argued by my friend Russell Jackson at Skadden, Arp, Meagher & Flom) has been discussed at length on this site. Other courts soon followed suit, most famously the Alaska District Court in the case of Alaska Stock Photography v. Houghton Mifflin (also argued successfully by Russell). Only one lone judge in Utah held that he did not agree with Muench and awarded MF a judgment against a real estate company that used an MF image (that case was called Masterfile v. Gale). The lawyers in Utah for the Gale defendants did not argue the same argument as the lawyers in Muench for some reason, so the Utah court never really had to decide the specific issue. Instead, the court just added that it disagreed with Muench (If you want all the esoteric legal details, all of this is laid out in detail in my Memo of Law which Matt Chan uploaded or will upload soon).
Anyway, I basically stated that the same arguments as in Muench and Alaska Stock applied in this case and that the same result should apply. Motion papers and arguments were submitted back and forth and on June 18, a court date was set for submission of the motion. My local counsel advised me that there was no need to make a personal appearance as Judge Real relies almost exclusively on the papers and just wants to make sure no one has anything to add before he renders his decision on the record. MF's lawyer did attend and tried to briefly argue about an appellate case he felt was applicable.
True to his procedure, Judge Real read his decision on the record and dismissed the case stating in part:
Quote
Here, the registration fails to comply with section 409. The registrations have multiple deficiencies, including failure to name the authors or their nationalities or domiciles in certain instances. Further, they failed to name the titles of the individual works, the years in which the works were completed or the dates and nations of each work's first publication.
With respect to MF's argument that the Copyright Office told them it was OK to file this way, Judge Real stated:
Quote
An agency's interpretation is entitled to no deference if it conflicts with the clear intent of Congress. Here, Congress has clearly identified the registration requirements of Section 409, and thus the individual office's decision to develop procedures in conflict with those requirements is entitled to no [deference].
That courts in NY and California have now held that compilation registration is invalid shoots a poisoned arrow straight into the heart of MF's claims that it has copyrighted works and is therefore entitled to statutory penalties and attorney's fees. They will probably continue to argue that they feel the Utah decision is right,but that is a weak argument. Looking at the Alaska Stock, Muench and Chaga decisions, it is clear the courts in those three case thoroughly analyzed the registration method and the arguments raised by counsel. The Gale decision does not have the same depth of analysis and the court was not asked to rule if the registrations complied with Section 409 of the Copyright Act, so I believe that decision is of little or no value. Unfortunately, the Alaska Stock appeal is on hold as the plaintiff has field for bankruptcy so we will not have an appellate decision on this vital issue anytime soon. I was confident that the Ninth Circuit was going to uphold the decision in Alaska Stock which would have made for an even stronger position for our side.
Needless to say, its always nice to win. But to have this legal position upheld is even more important (at least to everyone but the folks at Chaga!). Let's wait and see what MF will do now in light of this decision.
I want to thank Russell Jackson and his team at Skadden, Arps for paving the way on this issue.
367
Getty Images Letter Forum / Re: Should i settle???
« on: July 12, 2012, 05:24:10 PM »
Listen, with all the material and information available on this site, we shouldn't entertain such general and generic questions as "Should I settle" or "What should I do?" or "What will happen next?" Read the forums, look at the videos, get educated and then make a decision based on what you've read and learned. Why would you even think about settling before you have evaluated the value and strength of Getty's claim?
368
Getty Images Letter Forum / Re: Getty For sale
« on: July 12, 2012, 05:21:31 PM »
I'm with SG on this , although I would never use as harsh a word as "sucker," I would say they were "misinformed."
369
Getty Images Letter Forum / Re: Masterfile Drops Case Against Photographer/Graphic Artist
« on: July 12, 2012, 05:19:18 PM »
Thanks for all the kinds word. I do regularly tell folks that if they have one or two images they are better off putting what they would pay me into a settlement offer and trying to make MF go away for a reasonable sum.
BTW, wait till you see the news in my next forum topic, let's just say I am not likely to receive a Christmas card from MF this year!
BTW, wait till you see the news in my next forum topic, let's just say I am not likely to receive a Christmas card from MF this year!
370
Getty Images Letter Forum / Re: Getty and Picscout
« on: July 12, 2012, 05:11:34 PM »
The case would be covered by Canadian copyright law and have to be brought in Canada.
371
Getty Images Letter Forum / Re: Getting our message to the main stream media
« on: June 22, 2012, 09:49:04 PM »
April: Great teaser. You may want to try the AP. Its hit or miss with them as they get so many press releases. But the bonus is that if they decide to pick it up, the story goes national immediately. Here's the contact inof for the AP's Washington State bureau
WASHINGTON
Nancy Trott
Chief of Bureau
[email protected]
(206) 285-0819
WASHINGTON
Nancy Trott
Chief of Bureau
[email protected]
(206) 285-0819
372
Getty Images Letter Forum / Re: Cyber Liability Insurance
« on: June 22, 2012, 08:08:03 PM »
First of all Mr Nice Guy, you could be a little nicer. You come on here looking for free advice, you get free advice (quality free advice I might add) and then you tell folks what to post and what not to post. Perhaps you have noticed by now that ELI users are not really excited about shilling for some commercial entity they have not actually used. As usual, the advice you received but rejected is right on the money. If you don't post the content on your site, you can rely on the DMCA for protection provided you registered a DMCA agent. If you bother to read through most of the material here you will see that if you hang tough and fight back, these claims are usually resolved with little or no payment. Most settlement amounts would not cover a year's premium.
373
Getty Images Letter Forum / Re: Getty Images Extortion Letter with Sales Tax
« on: June 20, 2012, 10:15:01 PM »
Almost from the beginning of this program, Getty has added VAT to the European extortion letters but I never gave it much thought because we don't get involved in cases outside the States and I just assumed it must be allowed on settlements as well. Maybe Getty saw how much extra cash it was raking in from VAT and decided to start a pilot program in the States. Wouldn't it be really interesting if we find a letter charging sales tax in one of the five states that don't collect sales tax?
374
Getty Images Letter Forum / Re: A puzzling situation
« on: June 20, 2012, 10:06:09 PM »
Chances are your manufacturer did not speak to Getty as that makes no sense that they would be OK with it as long as you published the entire image. Why would that make it OK? Getty would more likely have told them that reproducing an image on a puzzle and a puzzle box without license is definitely copyright infringement. The first sale doctrine merely means that if I buy a piece of art (a photo, a painting, a book, whatever) from the person with the right to sell it, I can re-sell that EXACT same one piece of art as the copyright holder is only entitled to the money from "the first sale" of the piece of art. It can be re-sold and re-sold and re-sold and the original copyright holder only gets the first sale. But if I buy a piece of art and then REPRODUCE it and sell the reproductions, then I am infringing on the IP rights of the original copyright holder because only he has the "right" to "copy" it. That's why its called "copyright." To protect yourself you need to make sure that the image used for the puzzle is properly licensed. That's the only way you can be sure you have the right to make copies of it for your puzzles.
375
Getty Images Letter Forum / Re: an interesting message from a Getty "Copyright Compliance Specialist "
« on: June 20, 2012, 09:13:21 PM »
Nancy's statement has been Getty's standard position for some time. I am sure she did not come up with it on her own but took that language from corporate boilerplate that she is given. Getty has always relied on the "honesty and integrity" of its photographers, it is in fact a big old honor system. "Trust me, these are my images, which I am allowing you to license for me." What Getty does not realize is that when they get to court they will have problems trying to convince a judge to award huge damage amounts when (a) they may not be able to prove standing (see Advernet case) (b) they refuse to show any part of the proof of their claim during good faith settlement negotiations and (c) since their images are not registered they cannot get legal fees and statutory damages. That's why they have filed about 7 lawsuits in the 7 years of the program.
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