Messages

76

Getty Images Letter Forum / Re: Statute of Limitations

« on: December 20, 2010, 04:36:50 PM »

"No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." "Does this mean that Masterfile or Getty cannot pursue any action after 3 years of the infringement for civil actions?"

No, it means they can't maintain an action three years after "the claim accrued." Not to be cute but the statute says what it says (a lesson to Corbis).

Helpfully Congress doesn't define what "the claim accrued" means so that leaves it to the courts to figure out.  What it means depends on what Circuit you are in.

"And is the infringement the date of the publication of the image on the website or the last date that it was viewed by someone accessing your web site?"

If it's up on a site the infringement is occurring.

"I ask as there is case law in our state "

Irrelevant.   If you're discussing the SOL for copyright infringement, then the applicable statute is the Copyright Act, specifically 507(b) and you need to look at case law discussing 507(b), not state law.

"And, is the date that the claim accrued the date that they knew or should have known about the violation and not the date that they finally send a letter claiming the infringement? "

The meaning of 507(b) is open for interpretation so it's an area people litigate. Courts go in one of two ways for what "the claim accrued" means:  (1) when the plaintiff knows or has reason to know of a Copyright Act violation (referred to as the "discovery rule") or (2) when the Copyright Act violation occurs; that is, when the plaintiff suffers the injury) (referred to as the "injury rule").

So in Lettered's example, image posted Jan 1, 2000 and image taken down Jan 1, 2011. Let's say you sue Jan 1, 2012.  All courts would allow damages back to Jan 1, 2009 since under either rule those claims are not time barred by the 3-year SOL.

Whether you can go back further depends on the court, which rule it uses to define the date the "claim accrued" and the facts and circumstances known to the plaintiff.  

Obviously I'm not giving legal advice. Ask Oscar for that.

77

Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 20, 2010, 04:01:35 PM »

I wasn't suggesting anything nefarious about it. Assuming the costs are fairly computed and allocated, it seems fair, doesn't it ?

78

Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 19, 2010, 10:33:17 PM »

I think Getty may pass the cost of this effort on to some of its contributors. So it's all profit. -D

I was curious so I went and found Getty's "Contributor Agreement."  (https://contribute.gettyimages.com/olc/agreement/sample_agreement)

Relevant excerpts below: (eventually you drill down to "unauthorized use detection and enforcement fees and expenses").  Who knows what it means because they don't define it (always nice to have a black box in an agreement when its your money going into it...) but it reads to me like including this sort of effort ("extortion letter" as you prefer to refer to it).

==========From the Getty Agreement=============

Consumer Licenses: means (i) licenses by Getty Images or Distributors directly to members of the public...

Royalties are paid on Gross License Fees for business-to-business licenses and on Net License Fees for Consumer Licenses....

Net License Fee: means the amount actually received by Getty Images either directly from Clients or, after commissions, from Distributors, in each case minus any License Fee Deductions.

[Bold and underline added by me.]

License Fee Deductions: means any applicable Taxes, unauthorized use detection and enforcement fees and expenses, shipping and insurance charges, advertising sales commissions and fulfillment fees paid to third parties.

79

Getty Images Letter Forum / Re: Any attorney defended lawsuits yet?

« on: December 18, 2010, 06:46:16 PM »

"Helpi, the copyright act needs to be modified so that it is clear."

That does not seem a realistic task for many reasons.

But making the registration process simple, relatively inexpensive and clear is. We can all agree or disagree on what the remedies should be but whatever they are should be available without traps.

80

Getty Images Letter Forum / Re: Question for Oscar

« on: December 18, 2010, 06:30:08 PM »

Thanks for the reply.

I was only trying to understand whether Getty has to think at all about a risk of paying attorney fees if they reject such an offer :

""Can defendant place Getty at risk of paying costs + attorney fees by making a Rule 68 offer of say $400 ? (More than the low end $200 that could be awarded to Getty.) "

So where does this leave us ?

"No" or "maybe" or it's so uncertain I don't consider recovering attorney fees when contemplating making such an offer in an infringement suit ?

81

Getty Images Letter Forum / Re: Settlement Demand Letter arrived in Sweden

« on: December 18, 2010, 04:01:32 AM »

"Corbis however does register its images so it is different form Getty "

They try to register them.  ;-)

82

Getty Images Letter Forum / Re: "Ask your lawyer" -- I did

« on: December 18, 2010, 03:58:53 AM »

"My lawyer wrote 'I would ignore it until they tried to commence a small claims court action.'

Good that she is not suggesting billable work without Getty first making a more aggressive move but I'd be concerned if my lawyer thought Getty would be filing an infringement action in small claims court.  Not a good sign. I guess if they are really good at litigation they can come up to speed on a simple case but it's a definite tip they are not familiar with copyright law.

"The reason Getty rarely sues is that their images are not registered so they will not recover their legal fees "

I wonder what their thinking is.

They must be doing this as a profit driven strategy and not as an education campaign.  Or maybe it looks good to the contributors. If I were a Getty contributor I want Getty to police my work. In fact, if I'm assigning them exclusive rights, I insist they police it or permit me to do it if they pass. Who wants Getty to handle their work exclusively if they aren't policing infringement.

83

Getty Images Letter Forum / Re: Any attorney defended lawsuits yet?

« on: December 18, 2010, 12:56:38 AM »

I was thinking for going forward with new works and new registrations.  After looking at that case, I'm aware of the implications for many existing registrations done by the stock agencies using that bulk registration process.  

"she had to follow the language of the Act"

Maybe the 2nd Circuit will have to give effect to the intent and purpose of 411(b) and rule that "contains any inaccurate information" includes missing information. That 411(b) trumps 409.  That Congress intended to end this practice of invalidating registrations statements on technicalities when it adopted new 411(b) (and if the Copyright Office says you are good to go any purported defect is almost by definition a technicality).  Or whatever else someone more creative than me can come up with that sticks to get a more "just" result.

Anyway, whichever side one is on, that case highlights that the registration process is way too complicated. If lawyers and the Copyright Office (which is an expert agency) are arguing over whether a registration process satisfies the statute what hope do lay persons have ?

84

Getty Images Letter Forum / Re: Question for Oscar

« on: December 18, 2010, 12:17:29 AM »

"You only get your COSTS not your attorney's fees."

So I took a look around.

I understand how Rule 68 isn't that helpful if the only thing at play are costs and not attorney fees. But how is your statement to that effect correct in light of this (emphasis added by me):

"In the context of copyright law, the Seventh Circuit has held that the offer of judgment does nothing to make fees payable to the defendant, while the Eleventh Circuit and a district court of the Fourth Circuit have reached the opposite conclusion. "

http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=June&artYear=2004&EntryNo=1108

This author of the "Copyright Litigation handbook" cites the district court case (Lucas v. Wild Dunes Real Estate, Inc., 197 F.R.D. 172 (D.S.C. 2000)) for this "practice tip".

"Practice Tip: If you receive an offer of judgment, advise your client in writing that a failure to accept may result in a liability for attorney's fees if the recovery does not exceed the offer."

"In Lucas v. Wild Dunes Real Estate, a case involving copyright infringement of a photograph, the defendant presented an offer of judgment to the plaintiff in the amount of $15,000. The plaintiff rejected the offer. Subsequently, at trial, the jury awarded the plaintiff $4,120.40 on the copyright infringement claim. The defendant then filed a motion seeking costs, including attorney's fees. Even though the plaintiff technically “won” the copyright claim, the court refused to consider the plaintiff the “prevailing party” for purposes of awarding costs and attorney's fees because the plaintiff recovered less than the defendant's offer of judgment. Instead, the court interpreted the cost-shifting provision of Rule 68 of the Federal Rules of Civil Procedure to include attorney's fees and awarded the defendant costs, including attorney's fees. The court reasoned that the judgment for the plaintiff of $4,120.40 was less favorable than the defendant's offer, therefore the plaintiff must pay “costs” which included attorney's fee as indicated by the underlying copyright statute."

http://copyrightlitigation.blogspot.com/2010/04/umg-v-veoh-response-to-eric-goldman.html

85

Getty Images Letter Forum / Question for Oscar

« on: December 16, 2010, 11:53:42 PM »

Assume innocent infringement and no defenses to the infringement claim. If it goes to judgement, presumably the court will award Getty something because there is no liability issue.

Can defendant place Getty at risk of paying costs + attorney fees by making a Rule 68 offer of say $400 ? (More than the low end $200 that could be awarded to Getty.)  

More generally can you explain how Rule 68 works in the context of infringement actions and specifically low dollar actual damages and/or innocent infringement cases ?

Thanks.

86

Getty Images Letter Forum / Re: Just recived this letter

« on: December 16, 2010, 11:32:11 PM »

"What i do not understand is this, why would they try to pressure payment if we removed the image right away,"

I would guess because they want to be paid for any use of their content ? If they let it be known that it was their business practice to permit unlicensed use of their content up until the moment it is found out and removed it would likely result in routine infringement of their work. Though I'm sure they would argue that routine infringement already exists.

"why would we be liable for fees if we purchased this image as part of a design from an other company (in good faith)?. "

Because (Oscar gives a very good overview elsewhere),  liability for infringement does not depend on whether the infringer knew or had reason to know they were infringing.  This is referred to as "strict liability."  Now on the issue of damages (also explained elsewhere around here) it is very much relevant whether your infringement was knowing or not.  

Finally, you may have a suit to pursue against the person that supplied you the images depending on what they represented to you.  Unlike the copyright claim which can only be litigated in federal court, this other suit, if based on a breach of contract, could be brought in small claims court where you don't need a lawyer and it's much cheaper and quicker (at least the case, collecting not always so easy).  But, again, all of this is one giant hassle given what is at stake.

87

Getty Images Letter Forum / Re: Getty's position on providing proof

« on: December 16, 2010, 12:45:35 AM »

Copyright Act Section 504(c)(2):

"In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."

It's a question for the jury to consider.  "the court" = jury. At least when the plaintiff requests a jury trial.

Also the court can't find innocent infringement if a copyright notice IN THE CORRECT form and position was on the  published copy of the work to which the infringer had access.

88

Getty Images Letter Forum / Re: Any attorney defended lawsuits yet?

« on: December 14, 2010, 06:59:08 PM »

"very favorable to our position"

How is Muench so helpful ?

I mean does Muench stand for anything other than fill out a registration in accordance with the statute ?

If the author doesn't mess up the registration you'll have to deal with the substantive infringement issue. Which HM has spent nearly two years fighting to avoid. Assuming HM is successful stock agency will merely change the way they do any "bulk registrations" and/or photographers will register themselves (which they should anyway.)  <