Messages

46

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 12, 2016, 05:04:13 PM »

[Thank you, stinger. Yes, I hope the same.
Since I'm on mobile, I can't analyze stuff at the moment, just scouring the internet]

A commentator here:

https://nctritech.wordpress.com/2008/11/04/the-getty-images-extortion-scheme/#comment-9344

Natureboy2014 on August 30, 2014 at 11:06 am
"The letter I received was not a letter in the mail but an email from License Compliance Services for Design Pics Inc. I looked up the company Design Pics Inc they are based out of Canada and are not owned by Getty Images. [...] My website was developed by a Web Design company based in India. I have no idea that about this. I am not a website developer I run an educational program that I just started and have not even made a single penny in revenue but have spent thousands in opening costs for this program. After they sent me the email i forwared the email to the Web Design Company an they promptly took the picture down to be safe and they are saying that this is a scam because they say the picture in question was part of an advertising campaign (called “Incredible India”run by the Government of India, Ministry of Tourism, and this picture was one of the pictures released in a Media Kit (they sent me the link) by the Government of India to be freely used by companies in their ads in print or online media to promote tourism to India. Government of India gave out CD’s of these pictures with Incredible India logo on them and without. So how can Design Pics claim they have rights to this picture. The email they sent me also had a link to promply make the payment of $600.00 through credit card and they said you can make the payment through bank account and the shady part is that the name on the bank account says Picscout, which is a company based in Isreal and the bank account is in Florida. So a company based in Canada claims they have copyrights to a picture released by Govenment of India media kit and then a company based in Seattle, Washington,US, called “License Compliance Services sends me an email and wants me to pay $600.00 in settlement amount, with a bank account which belongs to Picscout a company in Isreal?? This is shady ?? And then 3 days ago they called and left me a voicemail. Please advise.. I am not going to email or return their calls.."

IOW, LCS sent a letter (on behalf of some apparently Canadian company), and demanded payment in a bank account owned by ... Picscout.

(I know this is an anonymous comment somewhere, but maybe a research on similar facts confirms them.)

47

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 12, 2016, 04:22:38 PM »

Trivia:

Carol Highsmith's attorneys are http://www.giocondalaw.com/?p=26

Specialized in trademarks, brand management, anti-counterfeiting.

Getty's lawyers are:
https://jenner.com/people/KennethDoroshow formerly RIAA's lawyer in peer-to-peer cases, if I understand correctly;
https://jenner.com/people/EricaRoss
https://jenner.com/people/ScottWilkens, represented big media against Aereo, and Viacom against YouTube.

/justcurious

48

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 12, 2016, 12:43:58 AM »

About the public domain images that Getty sells as "rights managed" but tells the court that it's not about copyright:

Here are example extortion letters where Getty/LCS says:
"A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. You do not have a valid license to use the images in question. All it takes for you to infringe is to post a rights managed image publicly without a valid license."

That, by Getty's own words, includes the public domain images it's "licensing".


https://kjfarnham.com/tag/koleta-vee/

http://cakeniron.com/2016/08/09/the-tiger-post-how-copyright-trolls-are-ruining-ideas-pt-1-intro/

49

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 12, 2016, 12:07:04 AM »

If it was necessary..

http://lcs.global.cutestat.com/

DNS: dns01.gettyimages.com, etc
Sites hosted at the same IP: gettyimages.com

50

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 12, 2016, 12:00:44 AM »

http://www.ukbusinessforums.co.uk/threads/lcs-global-copyright-infringement.352332/

"License Compliance Services, Inc.
101 Bayham Street
London NW1 0AG, United Kingdom
Email: [email protected], Telephone: 0800 376 2514, www.LCS.global"

A commentator notes:
"LCS UK registered office is the same as Getty Images in London. A Google search of LCS and Getty together brings some interesting reading. "

So not only in Seattle, offices are the same. (if confirmed)

51

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 11, 2016, 11:50:00 PM »

You folks may want to watch this unbelievable statement of Getty's memorandum:
(internal quotations removed, my emphasis)

As noted, Plaintiffs complain extensively of a single letter that Defendant LCS sent to Plaintiff TIA on behalf of Defendant Alamy – and not on behalf of Getty Images – allegedly asserting copyright interests in a particular Highsmith Photo. Although the letter and the alleged communications surrounding it had nothing to do with Getty Images and thus are irrelevant here, Plaintiffs allege that LCS is an “alter ego[]” of Getty Images, such that the allegations against LCS “should be interpreted to include Getty . . . as appropriate.” However, these alter ego allegations are wholly conclusory and should be disregarded. Two elements are required to pierce the corporate veil: (1) the parent must exercise “complete domination” over the subsidiary “with respect to the transaction at issue,” and (2) “such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” Multiple factors are relevant to piercing the corporate veil.

Adequately pleading an alter ego theory requires far more than merely asserting that the defendants share some officers and resources, which is all that Plaintiffs have done here.

This is Getty saying like, we just share some officers and resources, but we're not the same entity and the letters sent by LCS over years - oh lets ignore those - when LCS wasn't even incorporated, we don't know from whom they were, we just paid the people sending them.

How about this job posting on LinkedIn:
https://www.linkedin.com/m/job/134299647/

"right hand of the Director of LCS", among others.

52

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 11, 2016, 09:58:49 PM »

Just for the sake of it, I made perma.cc links to:
http://perma.cc/B9B9-DU8F = public domain image licensed by Getty
http://perma.cc/ARN6-U5PN = the license agreement you get when you click on "Rights managed" link, which says "all content is owned by Getty or its suppliers" and contains "copyright", "intellectual property rights" info, and the warranties made by Getty that it uses in extortion letters to prove it has rights to pursue alleged infringements.

Agreement has been updated in August 2016, it says. I'm frankly shocked to see that an update exists, now with these lawsuits, Zuma and Highsmith, and Getty doesn't seem to give a damn - it still publicly says it owns intellectual property rights, while filing a memorandum in court that says "oh but we don't say copyright".

53

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 03:18:31 PM »

See also this topic:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-images-and-lcs

When the user asked Getty/LCS for a proof they have copyright rights over the content, the answer was:

1.       Proof of Getty Images’ right to manage the image

 
Please visit our website at www.gettyimages.com and enter the image number for the image in question xxxx into the search field. When you have searched and found the image, please click on the thumbnail image. This will open the image in a new window, at which point you will be able to read the details on the image. Please click “Rights-managed” in this window (under “License type: Rights-managed” in the navigation panel to the right).
 
The Getty Images Editorial, Rights-Managed and Rights-Ready Image and Video License Agreement will open up.  We direct your attention to sections 5 and 6. Section 5(ii) is Getty Images’ warranty that it represents the image. In section 6, Getty Images indemnifies the licensee for any claims of copyright infringement.
 
These two sections confirm that Getty Images is legally entitled to manage the image.

Really? Well, I did that with a public domain image, and I see the same results as Getty told the user: I get a License Agreement, for Rights Managed images among others, and while the section numbering doesn't fit (agreement was updated recently), I read similar sections: Getty and suppliers allegedly own the image, they warrant that the licensee's use in accord with this agreement will not infringe copyright rights of others, and indemnifies the licensee in case it does.

"These two sections confirm that Getty Images is legally entitled to manage the image."

If Getty is serious - and I assume it is -, then it seems to be saying that it's entitled to exclusive rights over Highsmith's photos and public domain photos alike. These sections, by its own words, are the proof that Highsmith needs, that it is indeed claiming that.

54

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 02:56:09 PM »

(part 2)


    Intellectual Property Rights.
        Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers. All rights not expressly granted in this agreement are reserved by Getty Images and the content suppliers. You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content.
        Attribution.
            Do I need to include a photo credit? You do not need to include a photo credit for commercial use, but if you are using content for editorial purposes, you must include the following credit adjacent to the content or in production credits: “[Photographer Name]/[Collection Name]/Getty Images”
            Do I need to include a video credit? If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include the following credit in comparable size and placement: “[Video] [Imagery] supplied by [Artist Name]/[Collection Name]/Getty Images”
        Can I use the Getty Images name or logo, or the name and logos of its content suppliers? You may use the name of Getty Images and/or its content suppliers as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.

    Termination/Cancellation/Withdrawal.
        Termination. Getty Images may terminate this agreement at any time if you breach any of the terms of this or any other agreement with Getty Images, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Getty Images in writing that you have complied with these requirements.
            Social Media Termination. If you use the content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, upon Getty Images’ request, you agree to remove any content from such platform or website.
        Refunds/Cancellation. All requests for refunds/cancellations must be made in writing or using the cancellation function on the Getty Images’ website. Provided that the request is made within 7 days and the licensed content has not been used, Getty Images may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
        Content Withdrawal. Getty Images may discontinue licensing any item of content at any time in its sole discretion. Upon notice from Getty Images, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Getty Images may be liable, Getty Images may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Getty Images will provide you with replacement content (determined by Getty Images in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.

    Representations and Warranties. Getty Images makes the following representations and warranties:
        Warranty of Non-Infringement. For all licensed content (excluding content marked “access only”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
        Additional Warranties for Certain Content.
            RF: For licensed royalty-free content (excluding content marked “editorial”), Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
            RM/RR: For licensed rights-managed and rights-ready content where Getty Images specifically notifies you that a model and/or property release has been obtained, Getty Images warrants that your use of such content in accordance with this agreement and in the form delivered by Getty Images (that is, excluding any modifications, overlays or re-focusing done by you) will not, where a property release has been obtained, infringe on any trademark or other intellectual property right and/or will not, where a model release has been obtained, violate any right of privacy or right of publicity.
        Warranty Disclaimer. Unless specifically warranted above, Getty Images does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
        Caption/Metadata Disclaimer. While Getty Images has made reasonable efforts to correctly categorize, keyword, caption and title the content, Getty Images does not warrant the accuracy of such information, or of any metadata provided with the content.
        No Other Warranties. Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Getty Images does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.

    Indemnification/Limitation of Liability.
        Indemnification of Getty Images by you. You agree to defend, indemnify and hold harmless Getty Images and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Getty Images; and (iii) your failure to obtain any required release for your use of content.
        Indemnification of you by Getty Images. Provided that you are not in breach of this or any other agreement with Getty Images, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 8 above, Getty Images agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Getty Images of its warranties in Section 8 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from Getty Images, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.
        The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
        Limitation of Liability. GETTY IMAGES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GETTY IMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.

    General Provisions.
        Assignment. This agreement is personal to you and is not assignable by you without Getty Images’ prior written consent. Getty Images may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
        Audit. Upon reasonable notice, you agree to provide to Getty Images sample copies of projects or end uses that contain licensed content, including by providing Getty Images with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Getty Images may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Getty Images of five percent (5%) or more of the amount you should have paid, then in addition to paying Getty Images the amount of the underpayment and any other remedies to which Getty Images is entitled, you also agree to reimburse Getty Images for the costs of conducting the audit.
        Electronic storage. You agree to retain the copyright symbol, the name of Getty Images, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
        Governing Law/Arbitration. This agreement will be governed by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Centre for Dispute Resolution ("ICDR") in effect on the date of the commencement of arbitration (the applicable rules to be at your discretion) to be held in one of the following jurisdictions (whichever is closest to you): Seattle, Washington; New York, New York; Chicago, Illinois; Los Angeles, California; London, England; Paris, France; Munich, Germany; Madrid, Spain; Milan, Italy; Sydney, Australia; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Getty Images shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Getty Images, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
        Severability. If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
        Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
        Entire Agreement. No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Getty Images and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
        Notice. All notices required to be sent to Getty Images under this agreement should be sent via email to [email protected]. All notices to you will be sent via email to the email set out in your account.
        Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
        Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, Getty Images may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
        Licensing Entity. The Getty Images licensing entity under this agreement is determined based on your billing address in accordance with the chart found here.

55

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 02:55:19 PM »

Here's the full license. Just in case:
(emphasis added; emphasis marks the things said by this agreement which imply or explicitly say there are IP rights being "licensed")
(part 1  )



GETTY IMAGES CONTENT LICENSE AGREEMENT

LAST UPDATED: August 2016

This is a license agreement between you and Getty Images that explains how you can use photos, illustrations, vectors, and video clips (individually and collectively, “content”) that you license from Getty Images. By downloading content from Getty Images, you accept the terms of this agreement.

    What types of licenses does Getty Images offer? Getty Images offers three types of license models: royalty-free (“RF”), rights-ready (“RR”) and rights-managed (“RM”). Royalty-free does not mean there is no cost for the license. Instead, royalty-free means that the license fee is paid once and there is no need to pay additional royalties if the content is re-used. Royalty-free content is licensed for unlimited, perpetual use, and pricing is based on the file size. Rights-managed and rights-ready content is licensed for specific types of use, and pricing is based on factors such as size, placement, duration of use, and geographic distribution.

    Comp license: You are welcome to use content from the Getty Images site on a complimentary basis for test or sample (composite or comp) use only, for up to 30 days following download. However, unless a license is purchased, content cannot be used in any final materials or any publicly available materials. No other rights or warranties are granted for comp use.

    How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Getty Images are:
    Royalty-Free
    Perpetual, meaning there is no expiration or end date on your rights to use the content. Worldwide, meaning content can be used in any geographic territory. Unlimited, meaning content can be used an unlimited number of times. Any and all media, meaning content can be used in print, in digital or in any other medium or format. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Getty Images to discuss a buy-out.
    Rights-Managed/Rights-Ready
    Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Getty Images website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. Exclusive licenses may be available for rights-managed content upon payment of an additional license fee. Please contact Getty Images if you are interested in licensing content on an exclusive basis.

    For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.

    Restricted Uses.
        No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.
        No Commercial Use of Editorial Content. Unless additional rights are specified on the Getty Images invoice or sales order, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
        No Alteration of Editorial Content. Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.
        No Standalone File Use. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
        No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.
        No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
        Collection Specific Restrictions. If you are licensing content from the following collections, please click here for additional restrictions: Digital Globe; BBC Motion Gallery; NBA.

        Restricted Uses - unless additional license purchased. The following are prohibited without the prior written consent of Getty Images and payment of an additional license fee:
        No “On Demand” Products. Unless you purchase a custom license, you may not use content in connection with "on demand" products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom designed websites, as well as sites such as zazzle.com and cafepress.com).
        No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
        No Use in Trademark or Logo. Unless you purchase a custom license, you may not use content as part of a trademark, design mark, tradename, business name, service mark, or logo.

    Who, besides me, can use the licensed content? The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
        Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase a royalty-free image, only one of you (and not both) may re-use that image for multiple projects.
            Seat/User Restrictions for RF Content. Please note that seat/user restrictions apply for royalty-free content. You may store licensed royalty-free content in a digital library, network configuration or similar arrangement to allow the licensed royalty-free content to be viewed by your employees and clients, so long as there are no more than 10 users total (not at any given time). If you require content be available to more than 10 users, please contact Getty Images to purchase additional seat licenses.
            No Seat/User Restrictions for UltraPacks. If you purchase an UltraPack, seat license restrictions do not apply and an unlimited number of users within the same organization may use licensed content.
        Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.

    User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Getty Images immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Getty Images reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Getty Images determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.

56

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 02:50:32 PM »

Getty makes various statements in this memo, that it can "license" content and that it is somehow mysteriously not a "copyright license". Like this example:

Getty Images also sells licenses to its customers for the use of Getty Images’ copies of particular images. For a period of time, Getty Images sold licenses to its copies of the Highsmith Photos, with different prices for different sizes and types of uses. While these licenses included “restrictions on usage” of Getty Images’ copies, the exhibits to the FAC make clear that these licenses did not purport to be “copyright licenses” as Plaintiffs allege. Compare FAC ¶ 85 (claiming that “Getty offers for sale on its website copyright licenses for using Highsmith Photos”), with FAC, Ex. K (image of Highsmith Photo previously on Getty Images’
website with license listing but no mention of “copyright”).

I don't have the exhibits, to see what was all about. But this statement is bushwah.

Here's a simple experiment I made in another thread:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/dmla-makes-a-statement-on-highsmith-v-getty/msg20270/#msg20270

I checked several sites, public domain photos from Getty and this other site that was selling public domain photos in print. The comparison is damning for Getty: the other site, which I named selling public domain images done right, never talks about rights, and intellectual property, and licensing, and restrictions on use.

On Getty's site on the other hand, this is public domain image:
http://www.gettyimages.com/license/114938474

It has "Restrictions: Contact your local office for all commercial or promotional uses."

It's "rights managed". If I click on "Details", I see it's rights managed, and if I click on it, it takes me here:
http://www.gettyimages.com/eula#RM (tested from US, Canada, Sweden, UK)
This is a "Getty Images Content License Agreement", and it has been updated in August 2016 (!). It *STILL* says lots of disturbing stuff, as I noted elsewhere, stuff that tells clearly the reader that they're licensing some content with intellectual property rights attached to it, and severe restrictions of use.

It has a section on Intellectual Property Rights:
"Who owns the content? All of the licensed content is owned by either Getty Images or its content suppliers. All rights not expressly granted in this agreement are reserved by Getty Images and the content suppliers. You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content."

So let me get this straight: there's no mention of "copyright", only of licensed content and ownership by Getty or its suppliers, which own the "intellectual property rights". Maybe photos are patentable subject matter, lately.

Note that Getty doesn't bother to even *imagine* that, you know, if it's indeed public domain, *no one* owns that content. It pretends there are only two options: Getty or its suppliers own it. So, Highsmith photos fall in which category? Public domain photo linked above falls in which category?

What the user is allowed to do:
"How can I use licensed content? You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Getty Images are:"

"Rights Managed/Rights Ready
Limited to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Getty Images website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Getty Images can license the same content to other customers. Exclusive licenses may be available for rights-managed content upon payment of an additional license fee. Please contact Getty Images if you are interested in licensing content on an exclusive basis."

This: "For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. " means this agreement is either a copyright license, or otherwise it is conflicting with copyright, by Getty's own argument (second argument, copyright policy, above).

(in the next post I'll copy out here publicly the whole text. It exceeds 20k characters lol)

57

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 01:53:43 PM »

Of course, Getty isn't claiming only rights created by contract. There are at least three other things here:

1) in the eyes of users, due to the phrasing, use of the same wizard for "licensing", same "rights managed" expressions with exclusive rights photos, etc, it seems to me Getty is claiming copyright, or at least something users perceive as IP rights (which then, people usually take as copyright);
2) extortion letters clearly say copyright and copyright infringement;
3) Getty's wizards and "licenses" require that users stop "use" after time expires. Even if this shitty contract over public domain works (or other people's works) was valid, I don't see how Getty can get via contract the right to stop people from using the works. Claiming that it can seems to me claiming an IP right.

58

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 01:37:18 PM »

State law claims, part (3) of the arguments in Getty's memorandum

So, the first amended complaint adds two state law claims, under New York law. I don't know too well these laws and their jurisprudence, so my commenting on Getty's reply is limited.

Same thing as a copyright claim or not

First, as expected, Getty attempts to attack the claims saying they must be preempted by copyright. The issue here is this: if I do something to material that copyright law is concerned with (this includes a public domain work), and what I do is exactly and only the acts that would infringe an exclusive right (copy the material, distribute it, display it, and a couple others, nothing more), then I can only be sued for copyright reasons. No other law, state law, can apply, in addition of copyright or instead of it, if my actions are directly those that copyright is meant to cover.

That is, Highsmith can only bring those state law claims where the state laws are breached by Getty doing something else, in addition or instead, the exact actions that would make it a copyright infringer (all else being equal).

I don't have any opinion on whether these two claims by Team Highsmith are or are not doing that. Getty keeps saying that they do the same thing as copyright, so they mustn't apply. But what I recall I noticed from Highsmith's complaint, is that it talks about other things, like bad faith, required by these laws. Indeed, other elements in Getty's conduct to breach those laws could make Highsmith's claims stand, and Getty's arguments dismissed. We shall see.

Public domain works policy

Getty also claims that allowing state law claims at all would pose an obstacle to accomplishing federal policy regarding public domain works. This part of their memo is so weird for me to read, because what really happens, is not that state law claims, if they contain more than just copying or displaying the works, pose any obstacle to copying or selling public domain works. Instead, they'd pose obstacles to precisely obstructing free use by the public like Getty is obstructing it by "licensing" public domain works. That is to say, they might help *assure* that federal policy of keeping a free public domain is not subverted by misleading pretenses of "licensing" and "restrictions on use" like Getty puts on them. At least that's Highsmith's intention.

Getty's own words, amazingly, are: (sources of internal cites removed, for simplicity of reading)

"the general proposition pertains in copyright law, as elsewhere, that a state law is invalid that stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” [Nimmer] “When state law touches upon the area of” federal copyright or patent law, “it is ‘familiar doctrine’ that the federal policy ‘may not be set at naught, or its benefits denied’ by the state law.” Here, permitting Plaintiffs to recover under [state laws] would create an obstacle to the accomplishment of the Copyright Act’s objective that a work in the public domain – whether because the work is not copyrightable, because copyright protection has expired, or because, as here, the copyright holder has voluntarily ceded that protection – “may be made and sold by whoever chooses to do so.”; also “Any person may use the public domain work for any purpose – quoting, republishing, critiquing, comparing, or even making and selling copies”. Indeed, this is precisely the teaching of the Supreme Court’s decision in Sears. There, a lamp manufacturer sued Sears for unfair competition in violation of state law for selling a lamp substantially identical to the one the manufacturer had created, but which was not subject to a patent. The Supreme Court held that state law liability was preempted: “Just as a State cannot encroach upon federal patent laws directly” by extending the life of a patent, “it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws.” Because the lamp was “in the public domain,” Sears had “every right . . . under the federal patent laws” to copy its design for profit; “to allow [the] State by use of its law of unfair competition to prevent [such] copying ... would be to permit the State to block off from the public something which federal law has said belongs to the public.”

The Court thus concluded that “a State may not, when the article is unpatented and uncopyrighted, prohibit the copying of the article itself or award damages for such copying.”

Right, and we have two candidates here:
(1) if Highsmith's state laws ban indeed only copying or other copyright-covered acts (and not bad faith or whatever else), then to be sure, they'd be preempted;
(2) Getty's licensing over public domain works - hey it says so itself! -, is an attempt to gain copyright-like protection against its users, in contradiction with the exact policy quoted above.

As Nimmer put it, such purported "licensing" with "restrictions on use" (like Getty admits doing in its own memo) "contravenes one of the core policies of the Copyright Act by extending quasi-copyright protection to works that do not qualify as "original." (source)

You might want to check out this - my irony meter shows signs of serious overuse. Read it while keeping in mind what *Getty* claims over public domain photos - as well as over copyrighted works by others, over which Getty has no rights to exclude the public from use.

Highsmith voluntarily ceded to “the public all [of her] rights, including copyrights throughout the world,” in the Highsmith Photos. Those Photos therefore are “in the public domain” and may be used – including for profit – “by whoever chooses to do so.” Imposing liability under state law for copying and selling the Highsmith Photos would impermissibly “permit the State to block off from the public something which federal law has said belongs to [it],” namely, the right to use works in the public domain. For this reason, courts since Sears have held that state law liability relating to the copying and sale of unpatented or uncopyrighted goods or works is preempted.
Dastar further demonstrates why state law cannot be used in this way. While the question there concerned the scope of the Lanham Act, rather than preemption of state law, Dastar made clear that “reverse passing off claims [a]re the proper domain of copyright law” and therefore cannot be smuggled into other causes of action, no matter their source. As previously discussed, in Dastar, the Court held that the uncredited copying of a work no longer protected by copyright could not be the subject of a claim under Section 43(a) of the Lanham Act. As in Sears, the Court explained that under copyright law, “the right to copy . . . once a copyright has expired . . . passes to the public,” which may then use the work “at will and without attribution” – and, as in both Sears and Dastar, for a profit. The Supreme Court therefore held that allowing liability under the Lanham Act would impermissibly “create a species of mutant copyright law that limits the public’s federal right to copy and use expired copyrights.” Allowing Plaintiffs here to recover under state law when they could not do so under the Copyright Act would have precisely the same effect. Thus, both state law claims are preempted because they would pose an obstacle to the accomplishment of federal
copyright policy."

Everything that Getty says about Highsmith's state laws claims can and must be said about its own claims of "licensing" via its terms of use for public domain photos.

Let me show what I mean: in the following, I take the same paragraph and replace with Getty's own actions. My replacements are in [square brackets]. Here's what I get:

[Getty argues that] Highsmith voluntarily ceded to “the public all [of her] rights, including copyrights throughout the world,” in the Highsmith Photos. Those Photos therefore[, according to Getty,] are “in the public domain” and may be used – including for profit – “by whoever chooses to do so.” [By its own argument,] imposing liability under contract for copying [,displaying] and selling the Highsmith Photos would impermissibly “permit [Getty] to block off from the public something which federal law has said belongs to [it],” namely, the right to use works in the public domain. For this reason, courts since Sears have held that [contract-based] liability relating to the copying and sale of unpatented or uncopyrighted goods or works is preempted.
Dastar further demonstrates why [contracts] cannot be used in this way. While the question there concerned the scope of the Lanham Act, rather than preemption of [contract], Dastar made clear that “reverse passing off claims [a]re the proper domain of copyright law” and therefore cannot be smuggled into other causes of action, no matter their source. [And yet, this is exactly what Getty is doing, by attempting to expand its rights via a contract saying that the user must cite the archive as  "[name of photographer] / [Collection Name] / Getty Images", otherwise, he/she will be charged 100% fee in addition to other remedies Getty would allegedly have.] As previously discussed, in Dastar, the Court held that the uncredited copying of a work no longer protected by copyright could not be the subject of a claim under Section 43(a) of the Lanham Act. As in Sears, the Court explained that under copyright law, “the right to copy . . . once a copyright has expired . . . passes to the public,” which may then use the work “at will and without attribution” – and, as in both Sears and Dastar, for a profit [or not, as they please]. The Supreme Court therefore held that allowing liability under the Lanham Act would impermissibly “create a species of mutant copyright law that limits the public’s federal right to copy and use expired copyrights.” Allowing [Getty] here to recover [and threaten users with its rights] under [purported contracts] when it could not do so under the Copyright Act would have precisely the same effect. Thus, [Getty's alleged licensing] claims are preempted because they would pose an obstacle to the accomplishment of federal copyright policy."

Without any doubt, Getty's "licensing" does exactly that: attempt to put some non-negotiated contract between the works and the users, such that the users agreeing to it will feel prohibited to do with the works what they may actually be perfectly entitled to do, and subvert the intention of the federal copyright law and policy all along: users were supposed to be able to copy with impunity, without attributing GETTY, "use" the works on their website, etc, without, as Getty's website told me when I tried, being "restricted" to 3 months of "licensed use".

59

Getty Images Letter Forum / Re: Getty answered to Carol Highsmith

« on: September 09, 2016, 09:54:15 AM »

You folks may want to watch this unbelievable statement of Getty's memorandum:
(internal quotations removed, my emphasis)

As noted, Plaintiffs complain extensively of a single letter that Defendant LCS sent to Plaintiff TIA on behalf of Defendant Alamy – and not on behalf of Getty Images – allegedly asserting copyright interests in a particular Highsmith Photo. Although the letter and the alleged communications surrounding it had nothing to do with Getty Images and thus are irrelevant here, Plaintiffs allege that LCS is an “alter ego[]” of Getty Images, such that the allegations against LCS “should be interpreted to include Getty . . . as appropriate.” However, these alter ego allegations are wholly conclusory and should be disregarded. Two elements are required to pierce the corporate veil: (1) the parent must exercise “complete domination” over the subsidiary “with respect to the transaction at issue,” and (2) “such domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.” Multiple factors are relevant to piercing the corporate veil.

Adequately pleading an alter ego theory requires far more than merely asserting that the defendants share some officers and resources, which is all that Plaintiffs have done here.

This is Getty saying like, we just share some officers and resources, but we're not the same entity and the letters sent by LCS over years - oh lets ignore those - when LCS wasn't even incorporated, we don't know from whom they were, we just paid the people sending them.

60

Getty Images Letter Forum / Re: Public domain v copyright liberal license (Highsmith v Getty)

« on: September 08, 2016, 10:23:06 PM »

I take a look at Getty's answer on copyright v public domain issue of this lawsuit. As noted here, Getty's memorandum has 3 substantial parts, and I feel this topic is better suited for part (1).

Significantly, Plaintiffs do not claim that Defendants infringed the copyrights in the Highsmith Photos, and that is for good reason: Highsmith owns no such copyrights, having long ago dedicated the Highsmith Photos to the public domain.

Interestingly, in the comments on the Oscar's blog on Highsmith v Getty lawsuit, a commentator said the same - that the reason for not suing for infringement would be that works would/could be in the public domain. (I guess Getty reads the blog).

But that's not quite right; as Getty itself points out in the next pages, there has to be infringement for most, if not all, DMCA counts to exist. Rather, my guess would have been that photos weren't registered in time or something.

[...]U.S.C. § 1202, which prohibits the falsification or alteration of copyright management information that is conveyed in connection with a copyrighted work. But even if Plaintiff’s factual allegations were true (they are not), liability can attach under Section 1202 only where the defendant acted with “the intent to induce, enable, facilitate or conceal infringement” or with
knowledge that infringement would result. § 1202(a)-(b) (emphasis added). Because the public domain works at issue here are no longer subject to copyright and thus, by definition, cannot be infringed, Getty Images could not have acted with the requisite intent or knowledge of infringement.

This is Getty's main argument, and it depends simply and fully on whether infringement exists, which is to say, whether copyright in the works exists and it was infringed. While I didn't spend much time on DMCA 1202 in the past, I did with the occasion of this lawsuit. Mainly, this seems right:
https://www.law.cornell.edu/uscode/text/17/1202

Both a) and b) have the condition "with the intent to induce, enable, facilitate, or conceal infringement" or "knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement". Just doing it doesn't seem to suffice; one has to do it with intent or knowledge that it will [...]conceal infringement.

One could try to argue that for b), these conditional words are tied to sub-point 3), only, and that 1) and 2) don't depend on it, but the look of the text doesn't seem to make that interpretation believable.

That means, as noted from the very start, that Carol's copyright-related claims (including DMCA) depend on the existence of a copyright, so on the interpretation of the instrument of gift. The judge will have to deal with it on its own, and make a decision on that one.

In 1988, she dedicated the Highsmith Photos to the public domain in connection with a gift of that collection to the United
States Library of Congress.[...]
The terms of Plaintiff’s gift were broad and unconditional, providing that “I hereby dedicate to the public all rights, including copyrights throughout the world, that I possess in this collection.” Id., Ex. I (“Instrument of Gift”)

The terms were broad. As discussed here and here, though, there are conditions, the gift has two pages of them.

The Library of Congress thus makes the Highsmith Photos available to the world with “[n]o known restrictions on publication,” id., Ex. J, and states unambiguously that “Carol M. Highsmith’s photographs are in the public domain,”

Indeed, LoC says that. It also says that credit should be given, and the shape in which it should be given. Now, to me, that's a bit contradictory, unless we understand it in one of two ways:
- either, there are no restrictions whatsoever and no credit should be given; in which case LoC just says what it would be nice to do
- or, LoC uses the word "restrictions" to mean forbidding to copy/display/etc the works; in this case, no one is restricted, everyone in the world is allowed to copy, display, etc the photos, it's just that they have to give credit when they do.

Highsmith now asserts that she did not “intend to abandon her rights in her photographs,” but the Instrument of Gift by which she in fact did so speaks for itself.

One thing I always hear in discussions with people new to open source and open licensing, is that copyrights must be used to prevent copying otherwise it means they're abandoned. But that's just not true. Copyrights are a bundle of specific rights to exclude the whole world from doing several very particular actions, like to copy or to distribute or to display a work. I can use my rights to exclude them indeed, or I can use them to authorize, one person or seven or the whole world, to copy, or display, or distribute the work. I can authorize them under some conditions or without conditions at all. I can enforce my copyright, too; if they don't respect the conditions, they might be infringing (if not fair use etc).
To authorize the whole world to do these actions reserved for me, without conditions, seems the closest you get to public domain; it's not public domain, the work is under copyright, but I *can* authorize everyone in the world to copy/etc with impunity, during all my copyright, without any strings whatsoever, if I so please. I haven't abandoned my copyright title; it still exists for the work. But it's a good question, in such extreme case, if I can do *anything* with my copyright. The answer could be complex, I will simplify it by saying: maybe not, except I do not expect that someone will come after me to threaten me with copyright infringement lawsuits of all things (!), to scare me into paying up a "license fee" to them for my own damn work. I should be able to stop that behavior, on me and on the public alike.

Interestingly, Getty makes the statement above in a footnote. Although it's the very essence of the issue. But Getty might do that for a reason: when a contract is clear by its own terms, courts should enforce it as it is. (of course, Getty wants the instrument of gift to be clear, and its footnote implies that it is, even though it's not) But when it isn't clear, then courts look at the intentions of the parties, at the moment when they made that contract. And they interpret the terms of the contract taking intentions into account.

That's why Highsmith's complaint says what she intended, not only what she did. [On a side note, I admire (seriously) the style in which the Highsmith complaint is written: it's accurate and careful. Maybe not all in it will succeed, but that's not the point: it really really carefully passes from what the contract (here, the "instrument of gift") says to what Carol intended, at the right moment, it doesn't say things that aren't reasonable, and it carefully ties the loose ends.]

The instrument of gift is not clear. Carol Highsmith says in it several rather contradictory things. I understand that, and there's a bigger context here, too.

Historically, it's an interesting - and perhaps surprising - detail, that open/free formalized licensing for works has first happened for software works, and only after, for cultural/creative works. For software, such licensing has started around 1980, if not earlier, while Creative Commons, the well known today steward of open licensing for cultural works was born in 2001, and published its first versions of licenses in 2002. Carol Highsmith's gift to the world via the "instrument of gift" to the Library of Congress was first made in 1988.

That is to say, at that time, there wasn't really an understanding of all possibilities offered by copyright, despite us living with it for a few hundred of years. Maybe because open licensing wasn't really necessary or perceived as necessary, for various reasons, in the first age of copyright. Maybe it's because widespread digital means of expression and distribution meant that many more people can express themselves, but not all have any wish to keep their works under too tight control; maybe because some saw themselves as amateurs or maybe on the contrary. Whatever the reasons are, there wasn't a public understanding - and there weren't formalized pre-written licenses for creative works - for doing *something else* with one's copyright than sell it to a publisher.

Carol wanted to do something else. But she didn't have the means of (legal) expression and understanding we have today.

If Creative Commons licenses were written and known when Carol decided to make her gift to the world, would one of them have appealed to her more than writing her own in-house-made contract with LoC? Maybe. Or maybe not exactly one of them, but they might have given her an idea as to what she can do, and how to do it, in carefully crafted language which isn't contradictory or confusing.