Messages

91

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 17, 2012, 01:30:59 AM »

http://www.copyright.gov/title17/92chap4.html#409

The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include —

(6) the title of the work, together with any previous or alternative titles under which the work can be identified;

In the mass registration, there are no titles. If a photographer has 10,000 images, some of which are registered, some of which are not, or some are registered to different owners, how can anyone know which specific images belong to whom, and which images are registered and which are not?

and

http://www.asmp.org/pdfs/guides/primer.pdf

B. Can you submit the work of other photographers on your registration, if you own the
copyright to their images? No, you cannot. All the photographs registered in the group must be the
work of one photographer.

92

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 16, 2012, 04:06:56 PM »

I found a wonderful discussion of the issue here
http://thecopyrightzone.com/?p=362

It seems that the in genuine nature of mass registration will be its downfall.

The law is designed to benefit individual bone fide copyright holders, not cynical stock agencies.

93

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 16, 2012, 03:45:01 PM »

How ironic! The whole world ( literally ) is analyzing his case, and he isn't yet aware of its existence! The Internet at its best! Don't you just love it!

94

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 16, 2012, 03:26:15 PM »

Is anyone going to contact the defendant and advise him to read this thread? The case is practically over and yet he may not even have received his copy yet!

Soylent Green mentioned Muench Photography Inc. v. Houghton Mifflin Harcourt etc. This is THE case that puts an end to the sham of bulk registration, and offers the defendant his best argument.

Here is an excellent analysis on the site of the "Professional Photographers of America".

http://www.ppa.com/ppa-today-blog/copyright-alert/corbis-responds-to-bulk-regist.php

"For any stock photographer who submitted work to Corbis (or anyone else who took ownership of the copyright "solely for the purpose of copyright registration"), the ruling invalidates the registration made on their behalf in the name of the third party."

95

Getty Images Letter Forum / Re: I found a copyright infringement!

« on: January 16, 2012, 02:34:35 PM »

S.G   - I love it! One step ahead!

96

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 15, 2012, 12:53:20 PM »

Masterfile certainly claims to own the copyright outright

Clause 15 - "Masterfile is the assignee of copyright in the one Image identified in Exhibit A.
and in general:
Clause 13 "Masterfile is the assignee of copyright in the images it acquires
for its collection from photographers."

If they own the copyright, they do not need to add the photographer as a plaintiff.

However, I presume they would need extremely clear contracts showing that the photographer transferred his entire copyright to them!

It doesn't look like they have presented any such evidence.
Furthermore, the copyright registration of the image in question, doesn't in fact mention the image in question! It only refers to the photographer.

I think someone should contact the copyright office, and ask them what contracts were provided to them, allowing them to accept Masterfile's claim that the photographer has foregone his copyrights.

Even Getty doesn't ask photographers to give up their copyright. For Masterfile, the advantage is that they dont have to add the photographer as a plaintiff, but they still have to show that the transfer of copyright was valid. I think the defendant should try and invalidate the copyright registration.

On the other hand, if Masterfile specifically chose this photograph and photographer, maybe they have all the paperwork in order.

97

Getty Images Letter Forum / Re: Masterfile starts it round of 2012 Lawsuits

« on: January 15, 2012, 08:20:46 AM »

In my non-legal opinion.......let’s start at the beginning! The moment Mr. George Contorakes took the photo in this case -  “Portrait of Cat and Dog”, he automatically became the legal copyright owner.

In order for Masterfile to register themselves as the copyright owners ( as they seem to have done), they would have to possess a written and signed agreement in which Mr. Contorakes transfers his entire copyright ownership in this specific image to them (not just an exclusive license as is the case with most Getty Images).

Where is this agreement? The lawsuit does not include it!

Yet in clause 4 of the “Certificate of Registration”, where it says TRANSFER, the explanation “copyright assigned contractually” appears. Would the copyright office not have to see this contract? It’s like granting me the ownership of a car simply because I claim that I have a contract with the previous owner at home!

If there is no written agreement between the photographer and Masterfile, the photographer remains the only person on earth who has the right for sue for copyright infringement.

Why not write to him and ask him what agreements he has with Masterfile? [email protected]

I was under the impression that photographers tended not give up their copyright ownership.

One additional point - Surely any registration of copyright ownership has to include the title of the work. After all, they are not copyright owners of ALL of Mr Contorakes's photos.

The attached copyright registration looks like a sham! Why did the copyright office accept it?

and what about the attached letter that starts with " DEAR REMITTER" ? Who is the remitter?

98

Getty Images Letter Forum / Re: Resolution of Getty v. Advernet (A blow to Getty & Stock photo companies)

« on: January 13, 2012, 02:48:35 PM »

Quoting from the above Getty contract:

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"

So, the lawsuit would be at Getty’s expense, but it may not be pleasant for the photographer.

How would one define – “reasonable cooperation”?

99

Getty Images Letter Forum / Re: Resolution of Getty v. Advernet (A blow to Getty & Stock photo companies)

« on: January 13, 2012, 02:05:01 PM »

Thanks for the reply.

I would now like to ask, and try to answer the question:

What information should be included in the legal transfer of an exclusive right?

In my ( non lawyer )  opinion, it wouldn’t be far different from the information required in an initial copyright registration.

Here is a form I found at the United States Copyright Office, for registering copyright in the visual arts (including photography).

http://www.copyright.gov/forms/formvas.pdf

The minimum information required would therefore be:

1.   Title of the work
2.   Name and address of the copyright holder
3.   Year of creation
4.   Signature of the photographer
5.   Signature of the recipient of the exclusive license

The Getty Contributor agreement contains only the name of the photographer and his address.  Would that be enough in any court of law anywhere?

How absurd is it that Getty already owns the exclusive license in photographs that have not yet been taken!!

 “This Agreement applies to all Content (as the term is defined in Section 1.2) that you have previously submitted and, in the future, will submit”

100

Getty Images Letter Forum / Re: Resolution of Getty v. Advernet (A blow to Getty & Stock photo companies)

« on: January 13, 2012, 11:59:00 AM »

I have a question.
In the above case, Getty presented its own contributor agreement (http://contributors.gettyimages.com/img/articles/downloads/2011%20contributor%20agreement%20v.4.0%20%28d%29%20sample-english.pdf  )  as proof of the transfer of the exclusive right from the photographer to Getty. The agreement was completed online, and therefore the photographer’s signature was digital. In a printed version, it would just appear as a printed name.

In addition, the details of any specific images are not included in the “transfer”. The transfer of the exclusive right does not therefore contain any details such as the name or registration number of any image. Quite the opposite, the agreement states

 “This Agreement applies to all Content (as the term is defined in Section 1.2) that you have previously submitted and, in the future, will submit”

So we have a document with no signatures, mentioning no specific images, yet this is Getty’s proof of the transfer of the exclusive license.

The judge in the above case mentioned the fact that the document wasn’t signed, but did not choose this reason not to accept Getty’s exclusive licences. The judge didn’t refer to the fact that the above agreements mentioned no specific images.

What am I missing?

I expected the transfer of an exclusive license to contain some basic information about the image transferred.

Please can anyone enlighten me here?

Thanks!

101

Getty Images Letter Forum / Re: Resolution of Getty v. Advernet (A blow to Getty & Stock photo companies)

« on: December 14, 2011, 05:19:07 PM »

“The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law...
17 U.S.C. § 101. “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly unauthorized agent"

In light of the above requirements of the law, it is interesting that the judge stopped to ask the following pertinent questions, but did not use the lack of a signature as a reason to nullify the transfer of any exclusive licenses.


"Wojtczak testified that the Getty Images Contributor Agreement did “not have signatures. It is a digitally accepted agreement. The contributor signed via our online contributor contract portal.” The following ensued:

THE COURT: And where, if anywhere, does a representative form Getty execute, sign the document, digitally or otherwise?

THE WITNESS: You know, I'm not entirely familiar with where in the process that happens"

102

Hawaiian Letters & Lawsuits Forum / Re: Free Baitpapers

« on: December 09, 2011, 05:50:56 AM »

Just a thought - If the same photographs of Vincent K. Tylor are sold on different stock photo sites, then no individual site could claim to own the exclusive license, and hence they would not have the right to sue.

For example, I found a large collection of his photos here

http://photo.net/photodb/member-photos?user_id=538298

The site conditions appear here
http://photo.net/info/terms-of-use

and section 3 ( Intellectual Property Rights ) shows that by uploading his photos, he gave away many rights!

For example

"You also grant us a perpetual non-exclusive worldwide royalty-free license to use, reproduce, adapt, publicly perform and publicly display your User Content on the Site and to promote the Site. "

Other sites also sell his images

http://www.sunshinearts.net/catalog/Vincent_K_Tylor-184-1.html
http://www.usefilm.com/photographer/11626.html

My non legal opinion - only the owner of the copyright or the owner of the exclusive license have the right to sue.

If you can show that more than one image stock site sells the same image, how can any one site claim to own the exclusive license?

103

Getty Images Letter Forum / Re: how would you interpret this???

« on: November 30, 2011, 04:03:59 PM »

In my opinion, not every photo in all the Getty collections is subject to an exclusive license. In the case of the photo you have listed above, it could well be that Getty only has a non-exclusive license, (and therefore no right to sue for copyright violation).

Another theoretical option would be a photographer who has not abided by the contractual obligations to Getty. Such a photographer would be in breach of contract.

If Getty sued over copyright violation of the above image, I guess the above situation would pose a problem. Whilst Getty would have a written contract giving them an exclusive license, the license is clearly NOT exclusive at all. I am not a lawyer, but it seems likely that Getty could not sue in this case. Only the photographer, as the copyright holder could take legal action.

All the above is a laymen’s opinion.  I am NOT a lawyer.

104

Getty Images Letter Forum / Re: how would you interpret this???

« on: November 24, 2011, 06:06:41 AM »

Fascinating point raised by SG that Getty's own agreement with photographers may possibly weaken their own ability to enforce parts of that agreement ( i.e copyright infringement ), by diluting their claim to exclusivity.

The photographer signs a clause that allows "distributors" ( whose identity is unknown to the photographers, and I presume Getty can appoint at a later date ) "the exclusive right to make, control, settle and defend any claims related to infringement of copyright"

In theory, could it be that scores of Getty distributors ( are they called Master delegates by Getty?)  located around the world could each claim that they have received an exclusive right to sue from the photographer ( via Getty )? Each exclusive right could concern a different region or country.

Would the copyright owner ( the photographer in most cases) not have to sign an agreement with each distributor in order to transfer any exclusive rights at all? Or could Getty sub license based on the above contract?

Clause 1.1 of the same above contract states:

Getty Images may sublicense or authorize any third
party distributors (“Distributors”), any customer who licenses Accepted Content from Getty Images or a Distributor (“Clients”) and their customers to
exercise the rights described in this Section 1.

Does this mean that Getty can sub license its exclusive license and create additional valid exclusive licenses ( that don't overlap with its own license )?

For example, could they appoint a different company in every country to own an exclusive sub license?

If so, then they wouldn't simply be transferring the "right to sue" alone!

105

Getty Images Letter Forum / Re: how would you interpret this???

« on: November 23, 2011, 04:05:08 PM »

This is a very important question. It concerns Getty’s ability to receive an exclusive license from a photographer, yet delegate or transfer the right to sue for copyright infringement to a third party, that seemingly does not own the exclusive license, yet acts as a distributor of the image in question.

This would seem to be particularly relevant in cases where Getty allows a company outside of the USA to sue for copyright infringement in their own country.

If, as in the Righthaven judgments, the transfer of the right to sue as a stand alone right , is not legal, then would Getty’s own contract with photographers not contradict the American law?

I would very much like to read a lawyer’s opinion of this seeming contradiction.