Messages

46

Getty Images Letter Forum / Re: Getty Images Acquires PicScout

« on: July 01, 2011, 04:18:58 PM »

"That Getty paid $20 Million for PicScout shows to all how much money they are  making off this program."

Actually it seems like a good fit. One would assume it was shopped to a number of large content owners including Masterfile and Corbis.

"BTW I wonder how Masterfile and Corbis feel about sharing part of their infringement income with their biggest rival, Getty."

They'll pay ("share") the non-infringement part of their income to use the service if it makes you feel better...

47

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: July 01, 2011, 08:28:43 AM »

It seems RHs lawyers will soldier on until the Judge has had enough and/or the clients money runs out.

http://arstechnica.com/tech-policy/news/2011/06/newspaper-chain-fights-for-copyright-trolls-survival.ars

48

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 17, 2011, 03:55:20 PM »

"I see that it's pretty easy to troll in some Getty toads on here.
We're not like Righthaven at all!!  Honest!!  ...fun times.

If explaining the standing issue to you makes me a troll then sign me up. If having any relationship with Getty or RH makes me a troll then I'm not.

While I recognize the site serves to cheer and support as well as to solicit clients, I would suggest that if understanding the issues is of any concern, it's helpful to point out areas not only where Getty is weak but where they are not weak.

For the reasons already noted, Getty does not appear to be standing in the same position as Righthaven as far as standing (pun intended).

49

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 16, 2011, 02:20:55 PM »

"What you've provided is a "sample agreement".
It has no legal standing."

>>"Obviously one would need to see the actual agreement used in any particular case. But if it's consistent with this Getty is not sitting in the same position as what I understand Righthaven to be doing from that article."

I think you'll find the actual agreements are similar. I don't think many of the agreements would be state secrets and you could probably dig up either the current form of agreement that is actually used or an actual executed one. I did another google and found this page:

https://contribute.gettyimages.com/producer/help/workingWithGetty

In part, "Only Getty Images may license the images and Similars (defined in the Agreement and FAQ) you place with us while the Agreement is in effect (Getty Images will have exclusive licensing rights)."

Which makes clear they are interested in exclusive rights. I think if you think Getty is telling all it's potential contributors that you need to give Getty exclusive rights during the period you deal with them but that when it gets down the actual executed agreement Getty takes less is fanciful.

Getty needs to license rights in order to relicense (unlike what Righthaven wanted, merely the right to sue). They are either obtaining exclusive or non-exclusive rights. Call Getty and inquire as to becoming a contributor. I think you'll, again, learn that Getty is interested in exclusive rights. If you have something Getty really needs could you cut another deal ? Why not. But that does not appear to be the norm.

What is it you're thinking (hoping) Getty's agreement looks like ?

"But, from what I've read on this forum, they are unable to produce such proof to those that they accuse of infringement."

Unwilling does not mean unable. Why don't you ask Oscar how it typically plays ? At what stage in a dispute someone would turn over that type of agreement and to whom ?

"In these cases, the whole "We're going sue!!" song and dance is beginning to ring quite hollow."

They're entire "song and dance" and when or whether they will sue is a separate issue from whether Righthaven case/standing impacts Getty.

From what I've read (here and elsewhere) and my general understanding of Getty's relationship with contributors, I think you're barking up the wrong tree if you think standing is (generally) the way to attack Getty. Obviously each case must be evaluated on its own. (There could be defects in any particular agreement. Getty must have the rights during the relevant period etc....)

50

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 16, 2011, 01:32:23 AM »

FYI, I found this googling:

http://tinyurl.com/5v5l35o

Obviously one would need to see the actual agreement used in any particular case. But if it's consistent with this Getty is not sitting in the same position as what I understand Righthaven to be doing from that article.

Here is some of the relevant language:

1.1 License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce,
display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to
Getty Images.

DING DING DING.  Exclusive License. Pretty broad one in fact.

Here we find a provision addressing issues related to Getty's right to sue:

1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to
proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the
exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual
property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your
cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or
that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any
settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it

51

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 15, 2011, 11:48:40 PM »

"I personally feel that Getty (and some others) do not own the copyrights to much of the content that they sell. "

It's not a matter of what either of us feel. There must be a written agreement. That is a requirement of the Copyright Act to either assign section 106 rights or to enter into an exclusive license related to such rights. And if there is litigation you can discover the agreements as I must assume happened in the Righthaven case. The Judge read it and said this isn't an exclusive license this a (purported) assignment of the right to sue. Which doesn't work because 501(b) tells us who can sue: (1) legal owners and (2) beneficial owners (related to transfers in exchange for royalty payments.)

The standard Getty agreement that I saw grants Getty an exclusive license.

"That is why Getty recently urged their contributors to copyright their works (ie. Getty's not doing it, they expect the artist to do it)."

There could be a number of reasons, that is not one of them. Getty isn't without legal resources. They can read The Act the same way Oscar can. They are not setting up an "agency" to sue if I understand what you are trying to say because such a thing doesn't work. They are either an exclusive licensee or a non-exclusive licensee of the content. If the former, they have standing.

52

Righthaven Lawsuits Forum / Re: Judge Rules That Righthaven Lawsuit Was A Sham; Threatens Sanctions

« on: June 15, 2011, 06:29:04 PM »

"Hope that Getty is taking note."

The Getty standing issue was discussed on this board way back and appears to be quite different then what Righthaven was doing.

The problem with attacking Getty on standing is that Getty appears (from the standard contributor agreement I read and posted to way back) to be an exclusive licensee.  Hence, they have standing. Righthaven (from the article; I have not read the decision) purported to take an assignment of the right to sue not of any of the exclusive section 106 rights. The right to sue is not a distinct (section 106) right under the Copyright Act. The right to sue attaches to copyright owners (which includes exclusive licensees).

Put another way. Getty obtains exclusive licenses to exploit content (e.g., exclusive right to license my photo of X for web use for three years) and as a result has standing to sue to the extent someone interferes with their exclusive right to use the image for web use during the term of the exclusive license.

Righthaven appears to be in the business of bringing lawsuits on behalf of content owners presumably footing the cost and then taking a piece of the prize. If they want to do that they need to be in a different business. It's called a law firm and you need to be a licensed lawyer to do it and, in any event, the plaintiff would not be the law firm but the copyright owner.

"Gibson said the ruling left him pondering an interesting question: If Righthaven does not have "standing," or the right to file a lawsuit, then who does?"

The copyright owner, which I presume is Stephens Media. Not that interesting.

53

Getty Images Letter Forum / Re: Famous letter in.... Belgium !

« on: April 13, 2011, 02:30:23 AM »

"They'll never take it to court for this amount. It is too costly."

In the US, the point of permitting the plaintiff to recover attorney fees (if the work was registered prior to the infringement), which while not mandatory are routinely awarded, is to encourage lawsuits involving copyright infringement that would otherwise be uneconomic to pursue.  

So while I can't speak to Getty, I'd say, in general, not the most comforting theory that someone with a substantive claim will go away simply because the dollars appear small.

54

Getty Images Letter Forum / Re: Getty Images Director of Corporate Counsel Lisa Willmer Hosts YouTube Video

« on: February 13, 2011, 10:10:46 PM »

You think I miss the main point and the thrust ?

I'll have to try harder.

55

Getty Images Letter Forum / Re: Is PicScout Legal? - Cyber Trespass

« on: February 13, 2011, 07:49:29 PM »

Oscar: "the photographers picked on a big fish - Houghton Mifflin publishing"

Side one = couple of photographers + law firm
Side two = giant publishing house + one of the world's largest law firms

Claim: Publishing house exceeded the terms of the negotiated license.

Side one is picking on side two ?

Result: photographers lose on a technicality.  


Oscar: "I have also questioned whether assigning copyright for the sole purpose of registration and then re-assigning it back to the photographer who then re-assigns it back for enforcement ( which some of these digital image warehouses do on occasion)is really the way the Copyright Act was meant to be utilized."

I believe H-M argued that assignment solely for purposes of copyright registration was not sufficient to make Corbis a "copyright claimant" thereby invalidating the registrations because to be a copyright claimant under the regs you have to be the author or obtain ownership of all rights in the copyright.

The court didn't seem to have an issue with it or didn't need to address it because even if Corbis were a claimant the registrations were still defective because they didn't list out each author of each photo per 409. So maybe the question will be addressed directly in the future.

56

Getty Images Letter Forum / Re: Getty "Stone Collection" Images - Used After 2008 Registration

« on: February 13, 2011, 12:02:14 AM »

"I'm not an attorney, "

I am. The directive that good counsel and some research is a good thing is not a controversial one for me. In fact, we could refer to it here as "extortion letter communique no. 1" to make it topical.

http://kiaoragaza.wordpress.com/2011/02/13/peoples-communique-no-1/

It also generally costs money. In any event, many of your points are duly noted.

I certainly would not advise cutting a check to anyone without having a lawyer evaluate the claim.  Even if the claim is legit, you are not in a position to evaluate its strength or necessarily the best way to respond to it.  The devil is often in the details (as you seem to be aware of).

Good luck with your situation.

57

Getty Images Letter Forum / Re: Getty "Stone Collection" Images - Used After 2008 Registration

« on: February 11, 2011, 08:27:24 PM »

Soylent, if I were building my case, lack of standing (i.e., Getty has no right to sue) would not be the most promising avenue.

All Getty needs for standing is an assignment of the copyright, which I assume they do not have, or to enter into an exclusive license to do whatever it is they are claiming you are infringing on (e.g., "exclusive right to display images on the web during such and such period of time"), which I assume they do have.

Copyright is a bundle of rights (each right set out in section 106 of the Copyright Act).  The entire bundle vests with the "author" (generally the creator of the work) of the copyrighted work the moment the work is created, no copyright notice is required.  After that vesting of rights, the initial copyright owner may carve up the rights any way desired, in whole or in part and either assign them to a new owner or license them. If Getty has an "exclusive license" they have the right to sue for infringement to the extent their exclusive license includes the use they are complaining about.  As far as the right to sue is concerned, there is no difference between assigning a right and granting an exclusive license to it.

If for some reason they only have a non-exclusive license, they do not have the right to sue.  

So why would I not be very confident attacking them on the right to sue. Because I can't imagine they are going around threatening people with infringement unless they had an exclusive license.  And if you google for their standard contributors agreement you'll find exclusive license language in it.   Push comes to shove and they will have to produce an exclusive license or other evidence of ownership.

"if there was a cap on what could be awarded in court."

There is insofar as statutory damages are concerned:  $30,000 for non-willful infringement and $150,000 for willful infringement.  Per work infringed.

"Or, people could become more aware of their rights, etc. "

I would suggest the US Copyright Office for information about copyright. It's excellent. It could answer you questions about the right to sue, about caps on damages and others.

Like this one which seems to be a big unknown to a lot of people. No watermark or any other information is required to be put on a photograph for the author of the photo to have all the rights of a copyright owner. Once the author creates the photo they have all the rights of a copyright owner.  

This is the same rule in just about every country in the world. The US was very late to the game on this rule; we used to require formalities like a copyright notice to be placed when you published a work.  We joined everyone else in 1989.  

So you really need to assume every photograph is subject to copyright and you need to get a license to use it unless you're very confident your use has a defense which would allow it without a license (e.g., "fair use" or one of the specific exceptions to the need for a license that are spelled out in the copyright act.)

58

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 21, 2011, 11:57:17 PM »

It's on the front page:

"You can contact Oscar at his email address: xxx. Or you can call to make an appointment for a free consultation: 516-741-3222."

I have no affiliation with Oscar or this site. And please don't take my posting contact information as any sort of  recommendation.

Good luck to you.

59

Getty Images Letter Forum / Re: Getty Images Director of Corporate Counsel Lisa Willmer Hosts YouTube Video

« on: January 21, 2011, 11:39:32 PM »

Staying away from the stock photo agencies isn't going to solve your issues.  You didn't use a stock agency. Or at least a reputable one. If you had you would have had a license. You would have shut Getty down with one letter.

Let's be clear. What got you into this was using a photo for which you didn't have authorization from the copyright owner. It's as simple as that. All the rest is noise about what the law should be, what the remedies should be, whether Getty has standing, proof issues, defenses, strategy, costs etc...

So to avoid "this nonsense" (which I'll take to mean getting letters from people purporting to own the copyright and threatening you with infringement), you have to not use photographs on your website that you don't have permission to use. And if you're going to acquire images you should deal with reputable businesses and keep good records. Just like you would in any other aspect of your business.

Yes, you can take them yourself, hire someone or use a stock agency among other solutions.

The taking them yourself. Well everyone has to decide how important images are. As for pro verse stock.  There are obviously a bunch of issues including cost. It's very hard to beat the stock photos on a cost basis.

But I think you know everything I wrote. You like ranting.  So here is something you may enjoy more then my comments:

http://nylawline.typepad.com/photolawyer/infringement/

60

Getty Images Letter Forum / Re: Recent Intellectual Property Legal Issues

« on: January 21, 2011, 10:54:40 PM »

Oscar, how about your view on 401(d) as it relates to infringement of online photos ?

Specifically, whether the copyright owner that places a proper copyright notice on her authorized online copies can use 401(d) to preclude the innocent infringer "defense" against online infringers that use an (unauthorized) copy of the photo containing no copyright notice (because the initial infringer removed the notice).  

Background for not-Oscar:  

You used to have to put a copyright notice on your work to protect it once you "published" it.  The US was at odds with most of the rest of the world in this regard. Back in 1989 the US law changed and a copyright notice was no longer required to protect any of the rights of copyright ownership.  Obviously Congress did not get the word out to most readers of this board :-)  Getty appears to be taking up the challenge.

However, Congress still saw some benefit to the copyright notice and offered a carrot to anyone placing a copyright notice. If you put a copyright notice on the work in the proper place and in the proper form that would preclude anyone from raising the innocent infringer "defense" to mitigate actual or statutory damages.

Now before you say, hey the photo I used had no copyright notice. The Texas case mentioned above involving digital music said that you don't ask whether the infringing copy had a copyright notice. You ask whether the "published" copies had notice. And published copies require authorization by the copyright owner.  And if such published copies had notice then you ask whether the infringer had "access" to the published copies. And, if they did, no "innocent infringer" defense may be raised. Here, the court found the infringer had access to the physical CDs which were the "published" copies and which contained the proper copyright notice. So infringer couldn't raise the defense.

So with photographs if you follow the logic of the Texas court you don't ask whether the copy you infringed with had notice.  You ask whether the copies "published" by the photographer or it's exclusive licensee (Getty) had copyright notice. And then you ask whether you had "access" to such copies.