| Get Help With Your Extortion Letter | ELI Phone Support | ELI Legal Representation Program | |
| Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters. |
Show Posts
This section allows you to view all posts made by this member. Note that you can only see posts made in areas you currently have access to.
my other question is, is it worth it for me to reach out to this photographer directly to ask him to ask his lawyers to drop this action?
I understand him wanting to be compensated for wrongful infringement, but i cannot image such an artist willing to inflict pain and hardship in this particular case. i am not "sue-worthy."
Is this willful entrapment?
First of all, as an artist i would never willfully use copyrighted images - i always get them from creative commons or free image sites.
"Free image sites"...nothing is free, most of these "Free" sites are full of scraped images..
BUT, last month I got an extortion letter from Higbee. It was on a non-professional website i put together to try to pitch a Mr. Roger's Neighborhood style children's tv show. I grabbed a picture of the ocean from some random free site.
http://www.midmodsquad.com/projects/the-green-room/what-is-a-green-room/
professional, non-professional has no bearing on anything... and " I grabbed a picture of the ocean from some random free site." is where you went wrong, did you read the "terms of service"...likely not, and they likely have some sort of disclaimer putting the onus on you if there are any issues..
I responded to them with a letter that i removed the photo that looked "similar" to the one that they said was infringement.
I also explained that I had no assets for them to go after should they decide to pursue a lawsuit.
they now know that they have a "live one"
---------------------------------------------------------------------
Well, today they called me and harassed me on the phone. (I probably said too much to them.) I never admitted guilt. But I kept telling them I had nothing for them to sue and they kept asking me for proof of hardship... bank statements and tax returns.
screw them, you can show this when a judge tells you to.
When I asked them if they had forwarded my correspondence to their client, they said no.
When I ask them if they would forward it to their client they again said not until I send them a proof of hardship.
Then they hung up on me!
So I look up this artist they are representing.
Mark A. Johnson
https://www.markjohnson.com/index
There are all of his images without any copyright notice on the page. None of the images have watermarks or any other notice.
and none is required..
But when you click on the left bar "EXTRAS" there is a little menu option "A word on Copyright"
Then you click again on that and the following comes up:
All of my photography is registered with the United States Copyright Office, which also protects my work internationally. None of my photography is available for free, fair use, Creative Commons, or any other perceived free use. If you like my work, please buy a print or license it from me. It's easy and inexpensive. Thank you!
If you have any questions about use of my work, please contact me.
Aloha,
Mark
i bet his images are circulating in a few places and Higbee is having a field day with this extortion scheme!
On the phone they said they were going to pursue litigation against me.
NOW what can I / should I do?
only you can decide how to move forward, but I suggest reading these forums and getting educated before you do / say anything else.
Hello All,
Today I received a demand letter from Higbee Associates on behalf of AFP and not at all surprised to find this forum. I am so taken a back by the tactics used by this law firm to get me to a.) admit guilt and b.) extort money from innocent people - that I am exploring the possibility of starting a class action lawsuit. I will explain the story and then lay out my case for willful entrapment and extortion on the part of AFP. My background is in marketing so if anyone has any legal insights here, or would like to debate the issue, I'm all ears!
class actions have been mentioned many times here in the last 10 yrs, hasn't happened yet, likely never will, good luck proving "willful entrapment and or extortion.
I did not personally receive the demand letter. It was issued to 4Humanity, a 501(c)3 nonprofit client of mine, claiming copyright infringement for using an image on 4Humanity's website which expired from the ICANN registry in August 2018 and hadn't been used since 2016. In this particular instance fair use is clearly established as follows:
"clearly established" in your mind maybe, but that's for a judge to determine..and it's a very grey area
1.) The image in question is transformative - From what I gather, the original photo was taken in Hong Kong in 2011 to document the total monkey population in Kam Shan, part of the Kowloon Hills. 4Humanity used this cute picture of a monkey eating a banana to help spread awareness for atrocities humans commit against animals of all kinds in the United States.
you just kinda admitted guilt...
2.) The image was used in good faith, for both nonprofit and educational purposes: It was a thumbnail size image of a monkey eating a banana, on a secondary page of a website, aiming to spread awareness about the treatment of animals in the US.
3.) There is zero evidence whatsoever that it effected the potential market for the photo. Not only didn't it effect the market for the photo, it's absolutely laughable to think a website which receives less than 500 page views per month could possibly effect much of anything let alone the potential market for any stock photo on the face of the earth. Especially when the very company licensing the photo also owns iStockPhoto which licenses nearly identical images of monkeys eating bananas for $12 - Seriously? It could very logically and reasonably be argued that Getty Images damages the market for their own photos every time they license iStock images for $12 rather than the $1775 they are demanding 4Humanity pays immediately to resolve the issue.
"nearly identical images" has nothing to do with the actual image in question, those are likely royalty free images, while the image in question is likely a rights managed image..
4.) Lastly, the photo on the website was cropped significantly, downsized, and altered to the point that not 1 pixel of the photograph retained any of the original color information.
Obviously fair use is a nuanced thing, but in this case it's pretty clear. There is also very recent precedent set last summer re:
BRAMMER v. VIOLENT HUES PRODUCTIONS, LLC
This case is currently being appealed and IMHO will likely be overturned.
Now to my main point willful entrapment and extortion of innocent people...
Pretty peculiar isn't it, that it's impossible to save or download any image from Getty's website without a watermark yet if you search Google Images there they are, completely free of watermarks. Furthermore, if you click on the un-watermarked photo in Google Images it directly links to a page on Getty's website WITH a watermarked photo. Hmmm...What's also interesting to note is the size of the images in Google is also significantly larger than the images on the front-end of Getty's website. Why is this important? Anyone who does design knows thumbnail size images which are watermarked are totally useless. The images on Google however are not totally useless, they are not watermarked and they are large enough to be viable in many uses. One could claim fault on the part of Google or ignorance by AFP, but this is also untrue as AFP sued Google in March 2005 for populating AFP material in search results without permission. The two parties struck an undisclosed licensing deal for Google to use AFP material in their search results.
A watermark is not required, copyright exists at the moment of creation, every google image search result page states images may be copyrighted.....
"Google or ignorance by AFP, but this is also untrue as AFP sued Google in March 2005 for populating AFP material in search results without permission."
this is factually incorrect AFP sued google over the fact that google was using images and news snippets in its "google news" service, which is seperate from a typical google image search. Google does not need to have permission to show image results in it's image search results, as they are simply linking to images and not making a copy of them.
Fast forward to present, Google is legally allowed to populate search with AFP images, yet the images they are populating and prioritizing do not have watermarks. How is this possible? AFP uploads a medium resolution photo into their database, not watermarked, and uses simple coding language to size the images down and make it impossible to save them on the front-end. Why do they do this? So that Google bots can scrape the code on AFP's website, locate the source image without watermark, only then to prioritize the un-watermarked images in search, baiting innocent people around the world into using them.
good luck proving this ina court of law
Are you telling me the developers and SEO people at the world's 3rd largest news agency don't know full well how to populate an image into Google without a watermark? Are you telling me that the most genius developers and cutting edge AI on planet earth at Google don't know how to prioritize images, especially ones that are copyrighted with watermarks all over them? Child, please!!!
It's not googles job to enforce the copyright of others, a watermark is just that a watermark and not a legal requirement..and again virtually all of the images in a google image search are "copyrighted" unless they are in the public domain..
You can try this yourself. Here's the link to the original image on Getty:
https://www.gettyimages.com/detail/news-photo/macaque-eats-a-banana-as-it-scavenges-for-food-at-a-country-news-photo/107955395
Now go to Google Images and search the image title:
https://www.google.com/search?q=A+macaque+eats+a+banana+as+it+scavenges&source=lnms&tbm=isch&sa=X&ved=0ahUKEwj21vaejvTfAhUKmoMKHfu8A1UQ_AUIDigB&biw=1621&bih=939#imgrc=_
Am I the only one who finds it odd and coincidental that the Getty image has no watermark, yet somehow every other photo from a stock photo site has a watermark? Not only that but Getty Images are also astronomically higher in value than the rest?
Someone who is way smarter than me please tell me the legalities here.
i'm not a lawyer but here goes...
1. copyright exists at momnet of creation.
2. watermark not required.
3. "I did not know it was copyrighted" is not a valid defense.
4. "fair use" is not straightforward.
5. getty & istock 2 different business models, each allowed to set their own pricing structure...why is a rolls royce so much more than a kia, after all they are both cars, and pretty much do the same things..
Higbee supervisor seemed to agree - they know millions of people around the world search google images everyday and innocently infringe on copyright. BUT! Young Buddha, did you or did you not have a monkey eating a banana in a 200px circle on your website a long time ago?! Ohh ohhh oooh, so your admitting guilt?!
You Mr. Supervisor at Higbee, you are not a lawyer either my guy. I established fair use in an hour on Google. Take a breath. We are all the same. We will all die.
I digress...
So does AFP and Getty's marketing departments not check Google Images or...? They are advocating on behalf of the creatives right?
why would they check? what would they be checking for? google just links to things it finds to bring in revenue, AFP & Getty are advocating for their bottom line, they could care less about artists and photographers, this is plain as day when you look at the measly commissions they pay.
They never manipulate search rankings via SEO?
Huh.
It has to be more beneficial for Google to have amazing photos for free, than lo-res watermarked stock photo previews that cost $1775 after applicable taxes + fees? Right? Am I crazy?
why is this beneficial to google?....NOTHING IS FREE
Imagine if Pexels.com could manipulate search like AFP! Look at all these infringement free photos you could get of monkeys:
https://www.pexels.com/search/monkey%20eating%20a%20bana/
https://www.pexels.com/photo-license/
I cringe at the thought of how many pirated images exist on pexels.com, all of the images are uploaded by users, god only knows where they get the imges... might want to read their terms.
"5.6. While photographers and users that upload Content to our Website represent and warrant to us that they have all the rights therein and that the Content does not infringe any third party rights, Pexels cannot reasonable monitor all Content uploaded to the Service. We therefore do not make any representations or guarantees for the rights granted hereunder to you.
in other words "use at your own risk"
To the overwhelming majority Google has become as automatic as thinking thoughts and breathing. A little bit of code solves a whole lot of innocent copyright infringement.
not googles job, when using google you are agreeing to their terms of service, which in part states "Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law."
It hurts my heart they do this entrapment scheme while simultaneously preaching their altruistic intent trying to collect on behalf of the creative community. This is the same company that got caught, prosecuted, and found guilty in 2013 for stealing images of the Haiti Earthquake from a photog on Twitter, selling them on their platform, generating huge revenues and forgetting to pay the photographer. Whooops!!!
I've been in the creative world for quite some time. Getty is having an increasingly difficult time competing against economical competitors and began committing suicide when they acquired iStock. Who is going to spend that much on a photo when you can get them for free from Pexels.com - In addition, who in their right mind would knowingly infringe upon a copyright of a $1775 image when they can get it for $12 on iStock or free on Pexels.com? The very logical answer would be NO ONE.
"The very logical answer would be NO ONE."...well except maybe 4humanity and coiuntless others..
I am very passionate about fairness, justice, and pushing society forward in a positive direction. It is only possible if we come together and stand up for what's right.
What do you think?
I wholly agree on this statement, and I wholly disagree with what Higbee, Getty and countless other trolls do to generate revenue, but folks need to at the very least get educated, before trying to make an argument that may backfire
Do we have a case?
sure, everyone has a case, the question is, is it a winning case?? or better yet, what are the odds of having a lawsuit filed? If so is it worth it to fight it, maybe win, maybe loose??
Robert, you have a laser memory. You remember the case I am referring to? I think we discussed this 2 years ago?
Official ELI Help Options |
Get Help With Your Extortion Letter | ELI Phone Support Call | ELI Defense Letter Program |
| Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters. |
