Messages

601

Getty Images Letter Forum / Re: Attorney Bruce Rosen (representing Julie Stewart) Sends Certified Letter to ELI

« on: January 10, 2012, 09:52:11 AM »

Matt--
INAL. But I think malice is a term of art in law. Rosen used it because I suspect he knows that many judges would interpret discussion of what those writing the letters wish to be called 'settlement demand' and those receiving them view as extortion to be a matter of public concern. (The judge in the advernet case said as much.)  This means at least in the US Julie Stewart's threshold for winning a defamation suit is  higher than might otherwise be so. Specifically:

. Public Officials/Public Figures: Actual Malice must be proven.
The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.

I haven't looked through all the links-- and anyway I'm not an attorney. But it seems to me that the courts do interpret language as it is spoken.  It would be difficult to imagine that any judge would interpret the term "legalized extortion" as describing any sort of crime.

602

Getty Images Letter Forum / Re: Alternative names for Extortion Letters

« on: January 10, 2012, 08:53:02 AM »

Of the alternatives, I like shakedown.

603

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 08, 2012, 02:37:47 PM »

To document the images use http://www.webcitation.org/ .  Try using it at tineye, google etc. If they block it, then just use it at individual pages.

604

Hawaiian Letters & Lawsuits Forum / Re: Hawaiian Art Network Lawsuit Collection

« on: January 08, 2012, 02:36:16 PM »

mcfilms-- In advernet, was the reason the defendant didn't show up in court that as a corporation they could not represent themselves and the corporation had no money anyway?

605

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 06, 2012, 01:27:03 PM »

Soylent,
I think the photographer and their lawyer are being heavy handed. But I also think you need to be careful before you assume you can convince disinterested parties that the request is actually a scam.

I looked at the photographer's site http://www.dancingpelican.com/store/product_info.php?products_id=66, and the copyright office. I would gauge it highly probable the 'page 1' of the copyright was provided and the skunk image will be found in the other set of image with copyrights from 2004. These are: :

Type of Work:    Visual Material
Registration Number / Date:    VA0001303006 / 2005-02-04
Title:    2004 Dancingpelican uploads.
Description:    CD-ROM.
Notes:    Photos.
Copyright Claimant:    Wendy Shattil, 1949-, & Bob Rozinski, 1938-
Date of Creation:    2004
Date of Publication:    2004-02-01
Copyright Note:    Cataloged from appl. only.
   
Names:    Shattil, Wendy, 1949-
   Rozinski, Bob, 1938-

Previous

If the image is in the collection, quite likely page 2  might be omitted from a fax because it is a CD-ROM, not a paper printout. 

It might be useful for the person who was sent the HAN letter to try to get a copy of the CD-ROM and read the license provisions in the CD-ROM etc.  I suspect escalating with pugnacious language suggesting the photographer is a scammer is not in anyone's best interest.

606

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 06, 2012, 10:36:27 AM »

Oscar,

I was thinking to myself that presenting a new case or extortion letter to the ELI Community is like feeding fresh meat to the sharks.  It didn't take long for them to tear this case apart and analyze it from top to bottom.  Oh, did I forget to mention it was only Day 1?  LOL.

You guys are all crazy but I love the analysis and attention to detail.  I would say pretty nice for a bunch of non-lawyers (with loads of respect to Oscar, of course!)

INAL, but I wouldn't jump to the conclusion that the case is torn apart.  Certainly, it seems plausible that this case might not hold up. The accusation the letter recipient removed copyright info isn't going to hold up.

But it's also still plausible that:

• The photographer listed on the letter appears to be one of two copyright claimants for that image and it's still quite plausible she <I>is</i> a  claimant. (You would need a lawyer to explain whether the existence of a 2nd potential claimant makes any difference should a case go to court.  The other claimant was older than Shattil. Could his heirs also be granting licenses? This is information we do not have at hand.)
• HAN may or may not have exclusive license. ( I don't know how their failure to enforce at all these other infringements affects their license-- but they may have one and the judge might interpret it as exclusive. ) But even if HAN doesn't have an exclusive license, the case could just be taken up by the copyright owner.  So, the issue of exclusive license might not be all that helpful.
• The letter sent by the lawyer and the registration don't appear match the image-- as the copyright info seems to suggest that particular registration is for an image of a bald eagle with a flag on it.  BUT on the other hand, that particular artist has taken images of baby skunks, and has copyrighted a whole bunch of images. At least twice images seem to have been uploaded using a web tool, which suggests that the photographer may have uploaded lots of the previously unpublished image. That could include this particular image of baby skunks If so, I image that the photographer would still have a case for some sort of infringment and the images likely would have been registered prior to their posting on the dog grooming site.
• Assuming the copyright owner isn't "seeding" images (and we have no reason to believe she is) I have to feel at least a little sympathy for the copyright owner/photographer whose images are being infringed massively by sites all over the place. It appears is about 62 years old, and probably would like to make some money from the images. Certainly, when a commercial site uses it, she would like to make money.
  
  Mind you, cute as those skunks are, no end user would pay a huge amount for their use on any web site.  But, ideally if HAN weren't the intermediary, I image that the photographer and the creator of the dog grooming site could just negotiate a reasonable settlement-- possibly even including the skunk image and linking to the photographer's site so that the photographer could get more sales!

It does look like any accusation that the web site creator stripped copyright information would be impossible to prove. (I would think nearly any judge looking at the evidence of all the images without copyright info on the web and conclude it's more likely the web site creator did not strip copyright information.)

I think the letter recipient needs to request page 2 and also communicate to HAN that without page 2 based on the text at the copyright office, it appears that registration is not for the baby skunks image.  But I suspect they shouldn't jump to the conclusion that the skunks have no copyright at all (they probably do) nor that they aren't registered. The photographer may  just  have pulled up the wrong registration.

607

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 05, 2012, 03:29:10 PM »

Guessing a baby skunk image might be in the childrens book, I googled a bit. That particular skunk image doesn't seem to be in this book--
http://books.google.com/books?id=BGx2GQ5rjOMC&pg=PA18&lpg=PA18&dq=wildlife-watching+for+kids+skunk&source=bl&ots=HnUA0ovyA7&sig=k1At-PwnF7_ngUWuxWYeWJVzJYs&hl=en&sa=X&ei=jQIGT52gAuqrsQKL0KCRCg&sqi=2&ved=0CC0Q6AEwAA#v=onepage&q&f=false

So, the 2001 copyright won't cover it. I'm looking for the calendar.

I found a 2009 book-- but I don't see this on her .  The text with "skunk" is singular:
http://books.google.com/books?id=i20XkUNPCywC&pg=PT27&dq=Shattil+skunk&hl=en&sa=X&ei=0gMGT4neO4jDgQfsr_3gAw&ved=0CDsQ6AEwAQ#v=onepage&q=skunk&f=false

What I gauge as likely is if the image is registered, it's likely to be in one of these:

Type of Work:    Visual Material
Registration Number / Date:    VAu001076459 / 2011-08-25
Application Title:    2011_Jan thru June_Unpublished_Images_Registration.
Title:    2011_Jan thru June_Unpublished_Images_Registration.
Description:    Electronic file (eService)
Copyright Claimant:    Wendy Shattil. Address: P.O. Box 370422, Denver, CO, 80237, United States.
   Robert Rozinski. Address: P.O. Box 370422, Denver, CO, 80237, United States.
Date of Creation:    2011
Authorship on Application:    Wendy Shattil; Domicile: United States; Citizenship: United States. Authorship: photograph(s)
   Robert Rozinski; Domicile: United States; Citizenship: United States. Authorship: photograph(s)
Rights and Permissions:    W Shattil, P.O. Box 370422, Denver, CO, 80237, United States
Copyright Note:    C.O. correspondence.

or

Type of Work:    Visual Material
Registration Number / Date:    VAu001061589 / 2011-03-25
Application Title:    2010_Unpublished_Images_Registration.
Title:    2010_Unpublished_Images_Registration.
Description:    Electronic file (eService)
Copyright Claimant:    Wendy Shattil. Address: P.O. Box 370422, Denver, CO, 80237, United States.
   Robert Rozinski. Address: P.O. Box 370422, Denver, CO, 80237, United States.
Date of Creation:    2010
Authorship on Application:    Wendy Joy Shattil, 1949- ; Domicile: United States; Citizenship: United States. Authorship: photograph(s)
   Robert Alexander Rozinski, 1938- ; Domicile: United States; Citizenship: United States. Authorship: photograph(s)
Rights and Permissions:    Wendy Joy Shattil, (303) 721-1991, [email protected]
   
Names:    Shattil, Wendy Joy, 1949-
   Rozinski, Robert Alexander, 1938-

These are e-filed,  it's my guess that the filing isn't limited to whatever was selected for a book or calendar.  The recipient of the letter might want to  look in there.

608

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 05, 2012, 02:59:50 PM »

I'd avoid getting to excited though. It might just be a clerical screwup. Googling around it's clear these two photographers have registered lots of wildlife images, and published in books. So it may turn out that they sent the wrong registration but a registration does exist. 

609

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 05, 2012, 02:56:32 PM »

I'm learning. I noticed the previous updates an image from 1991. I think it might be this:

Public Catalog
 Copyright Catalog (1978 to present)
Search Request: Builder = (Shattil Wendy)[ in Name: All ]AND(Rozinski)[ in Name: All ]
Search Results: Displaying 15 of 33 entries
Previous Next
Detailed Record

[Bald eagle portrait]
Type of Work:    Visual Material
Registration Number / Date:    VA0000451671 / 1991-02-12
Title:    [Bald eagle portrait]
Description:    photo.
Notes:    Title from appl.
Copyright Claimant:    Wendy Shattil & Bob Rozinski
Date of Creation:    1980
Date of Publication:    est. 1Jan84
Date in Notice:    notice: 1980
Authorship on Application:    Bob Rozinski.
   
Names:    Shattil, Wendy
   Rozinski, Bob, 1938-

610

Hawaiian Letters & Lawsuits Forum / Re: CPM Legal Settlement Demand Lettter on Behalf of Hawaiian Art Network

« on: January 05, 2012, 02:53:43 PM »

At least the letter has some information indicating something was registered.
I went to the copyright search http://cocatalog.loc.gov/ used the advanced search and found

Public Catalog
 Copyright Catalog (1978 to present)
Search Request: Builder = (Shattil Wendy)[ in Name: All ]AND(Rozinski)[ in Name: All ]
Search Results: Displaying 29 of 33 entries

Type of Work:    Visual Material
Registration Number / Date:    VA0001301433 / 2004-05-25
Title:    Webshots uploads 2/15-5/18/2004.
Description:    Photos.
Copyright Claimant:    Wendy Shattil, 1949-, & Bob Rozinski, 1938-
Date of Creation:    2004
Date of Publication:    2004-02-15
Previous Registration:    Prev. reg. 1991, VA 451-671.
Basis of Claim:    New Matter: addition of American flag background.
Copyright Note:    Cataloged from appl. only.
   
Names:    Shattil, Wendy, 1949-
   Rozinski, Bob, 1938-

I don't know enough to figure out how to view the actual  images that were registered.  But I am intrigued because I'm not seeing any American flag background behind the cute baby skunks.

611

Getty Images Letter Forum / Re: RIAA case...held to cost of single license fee

« on: January 01, 2012, 07:22:22 PM »

It is my understanding and someone please correct me if I am wrong, that the clock starts upon actual "discovery" of the alleged infringement. The PROBLEM is that is tough to determine or PROVE since Getty will NOT disclose any DATES and recipients of these letters must ball park it by the date of the first demand letter.

I suspect the date of discovery is very shortly before the first demand letter. The demand letter appears to be a form letter. It seems to me very little human effort was involved. So, I'd guess they get something from picscout, assign someone the clerical task of trying to discover an address and send out a letter rather quickly. 

At least from an outsiders point of view, Getty Images does not seem to assign anyone to the task of checking whether the registrations, contracts, dates and relevant evidence to present a disinterested third party are all in order as would be required if they ever went to court. In the Advernet case, it even seemed no one from Getty visited the wayback machine until a week or so before the trial.   If I'm right, there is no point in Getty allowing much time to pass between the date when they get a report from picscout and when they mail a letter. If they don't do much in that time, why wait?

612

Getty Images Letter Forum / Re: RIAA case...held to cost of single license fee

« on: January 01, 2012, 06:08:30 PM »

YOU: "Okay, and my policy is not to simply give away money. I guess we are done here."

More to the point: If Getty Images does not have standing to sue, and only the copyright owner has standing, that means Getty's promise not to sue become valueless.    Getty's 'promise' would not bind the owner in this circumstance.  That means that hypothetically, one might pay Getty $875 and still get sued-- by the owner of the copyright!

That's hardly a good deal. 

613

Getty Images Letter Forum / Re: RIAA case...held to cost of single license fee

« on: January 01, 2012, 06:00:18 PM »

Yes and here we are mcfilms. Let the games begin! Three years..YIPPEE!

Out of curiosity, when does the clock for the three years start? From the time the alleged infraction was initiated (e.g. when an image was first placed on a web site), or from the time Getty Images or the author discovered the alleged infraction?  Or is this one of those things that is hit and miss in different jurisdictiona?

btw..YES we are still receiving letters and are quite certain that the next set will be "escalation" and then either claims or a letter from McCormick or both. This is why this site is so important and has helped us tremendously with regard to knowing what to expect.

Oh... I anticipate another letter. I'm still curious to read how they respond.   

614

Getty Images Letter Forum / Re: RIAA case...held to cost of single license fee

« on: January 01, 2012, 01:51:51 PM »

.. while Getty could introduce its standard license fee, the defendants could introduce what a reasonable price for the image they used would be in the market place.

This is of practical importance.   

In the case of the image infraction they allege on my part, http://www.photoshelter.com/ offers a license to display the identical image on the web at much lower rates than does Getty Images. (Of course, the fact that photoshelter.com-- a Getty Image competitor-- offer licenses at all also raises the question about whether Getty Image really has an enforceable exclusive license with regard to the image.  In my second response to them, I requested they provide me information on copyright and also information about any contract showing they have been granted an exclusive license.  I'm pretty sure Getty is on tenuous footing with respect to the Getty letter they sent to me, but at this point, I'm curious to see if they even have standing to sue! )

615

Getty Images Letter Forum / Re: I have 2 questions for everyone

« on: December 31, 2011, 11:00:16 AM »

I believe the Advernet case involved something like 30+ images.

Yes, but K's question was "Q #2 Has anyone in the USA actually been taken into court?"  The answer to this is that yes, they have taken people in the US to court. That said, they don't seem to have taken anyone to court over only 1 or 2 images.