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541

Getty Images Letter Forum / Re: Pro photographer + expert witness Sedlik comments on copyright infringements

« on: May 26, 2012, 07:20:56 PM »

From the US Copyright Office:

Published or Unpublished? Under copyright law, publication is the distribution of copies of a work—in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. However, a public display of a photograph does not in itself constitute publication.

The definition of publication in U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.

NOTE: Published and unpublished photographs cannot be registered on the same application.

http://www.copyright.gov/fls/fl107.html

---

So, the only thing that's ambiguous is "online transmission".
To prove publication via "online transmission", a plaintiff could show a presence on an Internet archive that an image was published before a registration.  However, an argument could still be made as to what (and what does not) constitute "publication" in terms of online use.

In any case, a collection that has a mix of published and unpublished photos at the time of its registration would seem to be a faulty copyright registration.
A nice defense...

S.G.

542

Getty Images Letter Forum / Re: photoattorney.com / Carolyn Wright

« on: May 26, 2012, 04:37:14 PM »

Interesting snippet.  I'm just a novice.  But, my understanding is that:

When one is faced with a potential lawsuit over an infringement (a demand letter threatens such), then the alleged infringer may file his/her own lawsuit first.
The strategy is to cause a great inconvenience (travel and lodging) to the alleged copyright holder and its counsel, or to ensure that it's answered in a court located near the alleged infringer which could save a great deal of effort and money for the infringer.
Furthermore, I would imagine that one could also use this procedure to ensure that the case is filed in a court circuit that is most favorable to the alleged infringer (for example if a court precedent already exists in that circuit).

Like this quote from wikipedia: "Sometimes a lawsuit is filed, but not served, before sending such a notice, to preserve a jurisdiction advantage without engaging the judicial process fully."

Of course the alleged infringer could also seek various damages related to a faulty or fraudulent claim made by the alleged copyright holder. 

Neat.

S.G.

543

Getty Images Letter Forum / Re: Pro photographer + expert witness Sedlik comments on copyright infringements

« on: May 26, 2012, 04:20:40 PM »

I'm especially interested in Sedlik's comment about mixing published and unpublished images in a single registration (in a compilation) and how it "may result in the loss of the remedies gained by registration".
Does anyone else have more details on this?  This could be a great defense...

S.G.

544

Getty Images Letter Forum / Re: Pro photographer + expert witness Sedlik comments on copyright infringements

« on: May 26, 2012, 04:09:01 PM »

Carolyn, and Copyright Services commented separately.
Sorry that I didn't put a comma (serial comma) between the two, which caused confusion.
You're been reading too many legal docs!  lol.

Looking forward to your comments, Matt.

S.G.

545

Getty Images Letter Forum / Pro photographer + expert witness Sedlik comments on copyright infringements

« on: May 26, 2012, 03:35:59 PM »

Noted professional photographer and expert legal witness Sedlik comments on copyright infringements.

The name “Jeff Sedlik” may ring a bell to you.  If not, you should know that he’s quite well known, teaches and is a professional expert legal witness in all things copyright.
Therefore, I feel that you take what he says quite seriously.
http://www.photographyexpertwitness.com/
http://www.jazzandbluesmasters.com/Sedlik.htm


I found some comments of his on a blog that I feel will surely be of great interest to readers of the forum:
"You may not mix published and unpublished images in the same registration, so ganging up all of your images onto a single 5 times a year is a mistake that may result in the loss of the remedies gained by registration. You must also separate your published images by year of first publication, so images published in December must be separately registered from images published in the following month."

He goes on:
"If your matter proceeds to court and does not settle, expect expenses – not including your attorney’s fees – to fall into the range of $25,000 to $250,000 or more, over a 2-5 year period of discovery, trial and appeals. There is no guarantee that you will prevail, even if you are in the right. There is no guarantee that your damages will exceed your costs or that your costs will be reimbursed, even if you have a solid copyright registration. Expect that all of your income statements, estimates, invoices and licensing records will be subpoenaed by the infringer and will be used to demonstrate the value you routinely have placed on your own work over time. Not for the weak of heart."

And:
“…if more than one image is infringed from a compilation, such as a book, calendar or website, statutory damages are limited to a single award, as if only one image had been infringed, even if thousands of images were infringed.”

Sedlik also speaks of protections for photographs and states the potential penalties that infringements can result in.  I think that he’s credible, and his words have a balanced approach here.
You can read his posting on this blog (scroll down), the owner of the blog itself it quite aggressive and outspoken and I not agree with his recommended approaches:
http://www.jeremynicholl.com/blog/2011/06/13/the-10-rules-of-us-copyright-infringement/

Note that Carolyn Wright chimes in, along with a not-so-subtle plug by "Copyright Services International" who gets their facts wrong and is corrected by Sedlik.

S.G.

546

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: May 25, 2012, 11:16:04 PM »

Interestingly, their website is still active:

http://copyrightservicesinternational.com/contact.htm

What's with that?

S.G.

547

Getty Images Letter Forum / Re: Getty to possibly be sold or go public?

« on: May 25, 2012, 06:28:32 PM »

I haven’t been able to find much detail on Getty’s lobbying efforts to change copyright law.  Although, I don’t doubt the existence of such.

My thoughts are that they’d like to focus on two areas; copyright registration and contracts.  However, I cannot see how they’d gain much ground in regard to these. 

Getty may wish to make “bulk registration” a universally accepted method of registration.  The problem as I see it is more fundamental than this.  Before registering an image in its name, Getty would have to essentially “own” the image outright, or have exclusive rights transferred to them under an exclusive contract with the artist.  The Advernet case has proven that Getty has failed in this aspect.  One cannot (legally) register a work if he/she does not own the work.  The fact that Getty is always unwilling to provide proof of its allegations against alleged infringers indicates that things haven’t improved.  Now, some may argue that the law could be changed in order to make bulk registrations an acceptable method of copyright registration, and this could be made to happen.  The sticking point will be that Getty will have to buy exclusive rights from every photographer in order to make legally enforceable registrations in its own name.  This would be prohibitively expensive for Getty.

You can be quite sure that we’ll never see a scenario wherein the mutually-exclusive legal status of agent or exclusive agent are “combined” (i.e. the rights that exclusive owners are entitled to now fall upon mere agents) in order to allow arms-length third-party retailers to easily threaten/litigate (for statutory damages) over content that they do not even own.  Photographers/photojournalists and artists that do top-notch work would be robbed of very lucrative opportunities that come from exclusivity.  Finally, the onslaught of “copyright trolling” has made the ability to verify who actually owns a work to be absolutely paramount.  This cannot become some sort of “grey area”.

It’s been stated by a troll on this forum that “all anyone has to do is copyright something (even if you don’t own it), and sue like hell” (I’m paraphrasing here).  But, this is very flawed thinking.  The real power of copyright registration is that one can make the registration BEFORE the work is published or used in any manner.  That’s when registration is most powerful.  In this case, registration by the owner pre-exists any prior use by anyone else.

I also doubt that copyright law will be changed to enable exclusive business agreements to be “digitally signed”, which was the downfall of the Getty vs. Advernet case.  Given how contentious and widespread claims of infringement are, it would be very foolhardy to weaken the substance and verifiability of these documents.  Demanding ten-thousand dollars or more for one image?  High stakes indeed.  Such documents could be challenged by any artist that claimed that a reasonable person pressing a “submit” button couldn’t imagine that it was a “legal” document that bestowed exclusive rights upon Getty.  It’s simply not the right time, nor is it practical to “sign” a legal document by checking a box and clicking “submit”.  People understand credit card use in these terms, but they do not expect binding legal contracts to handled in such a manner.  I do think that Getty’s method of “digitally” signing its submission forms online was simply a way to make it appear that the contracts were exclusive for purposes of litigation.  However, both Getty and the artist were aware that the contract was in no way exclusively binding, and Getty paid the lower fee as an “agent” to the artist.  They should have known better than to test it in court, as forms can faxed, signed and then mailed back to Getty easily.  It’s not the sixteenth century after all.

S.G.

548

Getty Images Letter Forum / Re: DISH Skipping TV Commercials is Copyright Infringement?

« on: May 25, 2012, 06:22:27 PM »

from 2002:

Turner Broadcasting chief Jamie Kellner claims that personal digital recorders such as Tivo and the recording systems employed in new satellite settop boxes pose a threat to commercial cable companies and broadcasters...

...Asked about viewers who go to the bathroom during commercial breaks, Kellner responded, "I guess there's a certain amount of tolerance for going to the bathroom. But if you formalize it and you create a device that skips certain second increments, you've got that only for one reason ... to make it easy for someone to skip a commercial."

http://creativegeneralist.blogspot.ca/2002/05/it-always-amazes-me-how-corporate.html

S.G

549

Getty Images Letter Forum / Re: Copyright Troll and Georgia Attorney Cindy Wan-Hsin Hsu

« on: May 25, 2012, 11:14:50 AM »

Well ,Julie Stewart tried to take on Matt, and now she's getting out of the trolling business.
I guess that if she didn't succeed, she can serve as an example to others.

http://img155.imageshack.us/img155/1319/juliestewartbitchstewie.jpg

S.G.

550

Getty Images Letter Forum / Re: Getty Images and scented trees update.

« on: May 25, 2012, 10:58:26 AM »

I suspect that "Car Freshener" wants the contracts as part of the discovery so that they can go after the photographers also.
Now, the war also turns on the artists.  It was bound to happen sooner or later.

S.G.

551

Getty Images Letter Forum / Re: Getty Images and scented trees update.

« on: May 25, 2012, 01:32:10 AM »

The scary thing is that technically, it may apply to everyone, not just Getty.

From the article that I posted above:

"...the decision seems troubling because of the chilling effect it could have on future copyright holders. Such a precedent would gum up the creation of these photographs and their sale. The worry would be unintentionally capturing trade marks in such common photographs as streetscapes and being subject to litigation by some of the most litigious participants in the market."

Additionally, here's a case wherein Chrysler got sued because a street mural accidentally appeared in one of its commercials:

http://www.autoblog.com/2011/12/03/chrysler-settles-with-graffiti-artists-over-j-los-fiat-500-ad/

S.G.

 

552

Getty Images Letter Forum / Re: Getty Images and scented trees update.

« on: May 25, 2012, 12:41:03 AM »

Great, concise explanation by Oscar!!
It's like one is (legally) sparring expertly in a dojo, then the master arrives, and an awed silence befalls everything...

Here's some analysis that I also enjoyed reading regarding the case.
It explains possible rationales for dismissal in terms of copyright/trademark infringement cases.
http://jiplp.blogspot.ca/2012/02/difficulty-of-early-dismissal-of-trade.html

S.G.

553

Getty Images Letter Forum / Re: Photo Attorney Leslie J. Burns Settlement Demand Letter for Phototake

« on: May 24, 2012, 06:47:26 PM »

Buddhapi did all of the research and posted the info!!
I can't take any credit here.

Thanks tho!!

S.G.

554

Getty Images Letter Forum / Re: Getty to possibly be sold or go public?

« on: May 24, 2012, 06:46:01 PM »

Nice to see Oscar's post!!

If I may, what copyright act changes is Getty proposing?
Is there a link to this? 

S.G.

555

Getty Images Letter Forum / Re: Getty to possibly be sold or go public?

« on: May 24, 2012, 04:53:23 PM »

Like I'd buy that stock and lose my money. lol:

http://i.imgur.com/jJrec.jpg

Also, the more they troll, the worse their PR is... it could affect prices...

S.G.