I'll look here at the whole complaint.
This is an action for copyright infringement under Section 501 of the Copyright Act and for the removal and/or alteration of copyright management information under Section 1202(b) of the Digital Millennium Copyright Act. This action arises out of Defendant’s unauthorized reproduction, sale, and public display of approximately forty-seven thousand fortyeight (47,048) photographs known to date.Copyright infringement and DMCA 1202 are powerful tools. If only Zuma Press qualifies, 47,000 infringements will be expensive. I am somewhat surprised, not because Getty is grabbing 47,000 photos, but because it's grabbing them from a known big agency. Individual photographers are unlikely to sue when it happens to them, not so for Zuma.
Zuma has exclusive relationships with photographers specializing in Sports Photography due to the fact that it grants press credentials and exclusive access to events. Photographers specializing in sports that work with Zuma do not, as a rule, work with any other agency, licensee, or entity. A true and correct copy of a typical exclusive agreement between a photographer and Zuma, is hereto attached as Exhibit B.I don't have Exhibit B. They call it exclusive agreement, and "as a rule" photographers don't work with any other agency.
Note: "photographers specializing in sports who work with Zuma" sounds better than "that work with Zuma" .
though originally conceived to counterbalance the internet’s corrosive effect on the creative marketplace, Getty has quickly become the content creators’ worst detractor, recklessly aggregating content, acquiring more images than it can responsibly administer and belligerently enforcing whatever imperfect rights it might have in those images.
12. Upon information and belief, Getty has been aggressively acquiring competitors since its inception. From small family-run firms to larger competitors, Getty has been growing at a rate that makes due diligence and adequate review of acquisitions difficult and improbable.
From its inception in 1995 to 1999, Getty had acquired Tony Stone Images, Art.com, Allsport, Word View, Liaison Agency, Newsmakers, Online USA, Hulton Press Library, among others. It further acquired EyeWire and Energy Film Library. In 2000, Getty acquired Archive Photos of New York.
Upon information and belief in 2004, Getty acquired image.net. In 2006, it purchased iStockphoto. In 2007 Getty bought MediaVast – its biggest competitor and PunchStock and Pump Audio. In 2008-2009, Getty acquired Jupiterimages of JupiterMedia. In 2009 Getty bought HAAP Media. In 2011, it acquired PicScout and Photolibrary.
14. Upon information and belief, in January 2016, Getty covertly purchased Corbis’ image licensing business via Visual China Group, Getty’s exclusive distributor in China.
15. In response to the clandestine deal, Getty’s then-CEO and current Co-Founder and Chairman, Jonathan Klein tweeted “Almost 21 years but got it. Lovely to get the milk, the cream, cheese, yoghurt and the meat without buying the cow.” @JonathanDKlein, January 22, 2016 at 7:41 A.M.
16. That same day Getty stated that “VCG and Getty Images will immediately begin work to migrate Corbis content, with migration to be completed as quickly as possible” in its press release. See http://press.gettyimages.com/getty-and-corbis/. Extremely interesting worded. It's not clear to me why the latter was a "clandestine" deal, though. (anyone knows what that means?)
Otherwise, the facts make sense, and the story is interesting, but it doesn't really matter for copyright infringement/DMCA, unless Zuma attempts here to paint a picture as to Getty's usual behaviors and motivations. I'm not sure however that they manage to tie that picture to copyright infringements. Yet...
17. Upon information and belief, Getty has been carelessly and recklessly acquiring content, not doing due diligence and not taking adequate measures to prevent infringement as well as falsifying/removing proper copyright management information. In fact, its aggressive acquisition schedule is possible only at the expense of others’ rights. Undeterred by almost two hundred complaints filed with Washington State Attorney General’s Office[1], despite several lawsuits[2], and the growing consensus in the industry that its abusive, unethical, and reckless business practices must be addressed, Getty has shown that it cannot and will not reform on its own accord.
[1] See https://www.scribd.com/doc/222235974/1-2-Index-of-Compaints
[2] See Agence France Presse et. al v. Morel, Shepard et. al v. Getty Images (US) Inc. et. al, Highsmith v. Getty (US) Images, Inc. et. al, as well as several other pertinent cases.Wow. A packed paragraph, amazing in its own right. Now we're getting somewhere.
On a side note, Greg, I'm afraid your index of complaints contains a typo, and it's in a court document now. (compaints->complaints) I think the URL will be needed as it is today. If you'll want to fix it, this URL won't work. Or you could duplicate it. Your choice.
People have complained for years that Getty doesn't want to prove its ownership of copyright, when asked. That isn't mentioned here, but it would be relevant. Maybe Getty didn't want to prove because it didn't have those rights and it knew; I hope an amended complaint will add that. It's true at least in Carol Highsmith's case because she
told them on the phone that she owned the rights and not Getty/LCS/Alamy.
Morel and Highsmith cases are mentioned, but I'm surprised there's no cite. In Morel's case, just a quick legal research on public documents will show the court decision. (that's part of why my guess is that the complaint was rushed)
Falsifying/removing copyright management information seems an action that is intended. How do you that without intention? At most, you might believe proofs that copyright belongs to someone else, and fix the pics, but nothing less. That should be a darned good proof, when you're removing someone's info.
18. Upon information and belief, in April 2016, Defendant copied approximately forty-seven thousand forty-eight (47,048) Photographs and placed it on their Website to license and sell to the public ranging in prices. True and correct copies of the Photographs on the Website are attached hereto as Exhibits A1-A41.
19. Defendant did not license the Photographs from Plaintiff to license or sell, nor did Defendant have Plaintiff’s permission or consent to publish the Photographs on its Website.
20. Upon information and belief, Defendant altered/removed Zuma’s credit and replaced it with its own credit.I don't know how to check if Getty removed them. Some internet outlets say it did, after the lawsuit was filed.
This paragraph brings home the accusations of copyright infringement and DMCA 1202, and apparently it adds exhibits to show it. 47,000 photos grabbed, miscredited, distributed and allegedly "owned by" Getty is a BFD. Zuma doesn't need any of the rest, as long as it can prove this, with at least some of 47,000. Some nice thousand would do.
Getty might want to say, on the second, that it didn't strike down copyright notices itself, but maybe it was mislead by someone else. Well, as Getty points out often, it doesn't matter for copyright infringement.
24. Upon information and belief, the foregoing acts of infringement by Defendant have been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s exclusive rights.As I noted, I'm not sure willfulness is alleged properly. Some of the previous phrases, like talking about how Getty grew too much and it didn't manage to perform due diligence, sound like allegations of the opposite of willfulness. On the other hand, personally I doubt anyone can infringe 47,000 photos unintently. They're darn tens of thousands.
In any case, it will be interesting to see what comes out of it.
What is even more amazing to me, is that Getty could even think to claim lack of knowledge or intent, when their Picscout's job is exactly to find photos on the web. I mean, Getty owns the software which is touted to find with precision copies of photos, or even parts of, on the internet. Why didn't it set Picscout on finding these photos before publishing them? Same for Highsmith's photos. Or did it set Picscout in action, saw and ignored Zuma (and Highsmith/LoC!), and claimed copyright over the photos regardless? None sounds good for Getty.
25. As a direct and proximate cause of the infringement by the Defendant of Plaintiff’s exclusive rights under copyright, Plaintiff is entitled to damages and Defendant’s profits pursuant to 17 U.S.C. § 504(b) for the infringement."Direct and proximate
cause"? This doesn't sound right to me. Bring out those legal clerks to review this, Zuma.
When the Photographs were published on www.ZumaPress.com, the Photographs contained copyright management information protected under 17 U.S.C. § 1202(b).
29. Upon information and belief, on its Website, Defendant intentionally and knowingly altered/removed Zuma’s copyright management information.
30. Upon information and belief, on the Website, the Defendant replaced the existing gutter credit with its own gutter credit, altering and falsifying copyright management information.
31. The conduct of Defendant violates 17 U.S.C. § 1202(b).By the sound of it all, Zuma doesn't seem to have had contact with Getty prior to filing this lawsuit. It's also so soon. I think the likely explanation of this filing resides in Highsmith's filing making headlines. I'm not sure what to make of that, maybe it's because Zuma isn't really looking to sue Getty... but to get a better deal out of Getty's infringement than it would otherwise. I don't know.
Or maybe these lawsuits will lead to discovery, and attract attention from other parties. In the measure there's reasonable suspicion of fraud shown by Carol Highsmith's case, and the public AG complaints show patterns worth investigating, maybe Getty will be investigated eventually.
One more bit: in the prayer for relief, Zuma says:
1. That Defendant be adjudged to have infringed upon Plaintiff’s copyrights in the Photographs in violation of 17 U.S.C §§ 106 and 501;
[..]3. Plaintiff be awarded Plaintiff’s actual damages and Defendant’s profits, gains or
advantages of any kind attributable to Defendant’s infringement of Plaintiff’s
Photographs.It doesn't ask for statutory damages for copyright infringement. That might mean Zuma doesn't have the photos registered prior to April 2016. It should have them now, but then I'm not sure it can ask for defendant's profits either.
2. The Defendant be adjudged to have falsified, removed and/or altered copyright
management information in violation of 17 U.S.C. § 1202. [...]
4. That, with regard to the Second Claim for Relief, Plaintiff be awarded either:
a) Plaintiff’s actual damages and Defendant’s profits, gains or advantages of any
kind attributable to Defendant’s falsification, removal and/or alteration of
copyright management information; or b) alternatively, statutory damages of at
least $2,500 and up to $ 25,000 for each instance of false copyright management
information and/or removal or alteration of copyright management information
committed by Defendant pursuant to 17 U.S.C. § 1203(c);
5. Pursuant to 17 U.S.C. § 1203(c)(4), the Court may award up to triple the damages if the Defendant had a judgement entered against it for violating 17 U.S.C. § 1202 within the last three years.
6. That Defendant be required to account for all profits, income, receipts, or other benefits derived by Defendant as a result of its unlawful conduct; Indeed, triple damages for DMCA 1202 can be very powerful. Still, it's less than normal statutory damages for copyright infringement, provided that works were registered, that infringement was willful, and that Zuma can convince a jury or judge to award maximum or close.
Zuma sounds like having the financial power to bring this lawsuit to completion. I hope we'll see more of this, including a nice amended complaint. Unless Zuma actually wants a settlement, and no one will know anything. Including photographers in question, I'd guess.
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