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Getty Images Letter Forum / 17 USC 401 et al
« on: April 27, 2012, 12:38:34 AM »
Dear Getty Images:
In response to your letter dated 22/SEP/2011 (that I received yesterday late), I have taken down the image that you claim is yours. I discussed the image with my webmaster at GeeksAlley of Benton, Texas, and am informed that the image was obtained from a "free images" site on the internet. There was no mention of copyright or indication whatsoever (e.g., no watermark, circled c, etc.) that this was a copyright protected image, or that it belonged to you. Further, neither I or my webmaster have been able to find the image on your site, which makes me think that this could very well be either a mistake, or a scam. In either case you have no standing to claim damages, nor would you have standing if the image is or was yours as it was not clearly marked, or was it marked at all, for that matter, that it belongs to you or is copyrighted.
Chapter Four of Title 17 United States Code, Section 401, et al, states:
Section 401. Notice of copyright: Visually perceptible copies
(a) General Provisions.— Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.
(b) Form of Notice.— If a notice appears on the copies, it shall consist of the following three elements:
(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and
(2) the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
(c) Position of Notice.— The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.
(d) Evidentiary Weight of Notice.— If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2)
Your company did not comply with USC 17 Section 401(b)(1-3), therefore has no standing to make this claim. If you do in fact hold a copyright to the image in question, it was taken down within hours of your properly notifying me that it is yours and there was, therefore, no damage to you non-compliance committed by me. I am an artist myself and respect the intellectual property laws, am aware that they are a constitutional guarantee, and therefore appreciate the business and service you provide for artists. However, if you're going to offer this service to artists, please do it properly and make sure that images you post on the internet are properly protected---you failed to do that in this case. You did not affix notice to the copy in such a manner as to give reasonable notice of the copyright. See clause (c) above. It also appears you let it escape to the public domain.
In response to your letter dated 22/SEP/2011 (that I received yesterday late), I have taken down the image that you claim is yours. I discussed the image with my webmaster at GeeksAlley of Benton, Texas, and am informed that the image was obtained from a "free images" site on the internet. There was no mention of copyright or indication whatsoever (e.g., no watermark, circled c, etc.) that this was a copyright protected image, or that it belonged to you. Further, neither I or my webmaster have been able to find the image on your site, which makes me think that this could very well be either a mistake, or a scam. In either case you have no standing to claim damages, nor would you have standing if the image is or was yours as it was not clearly marked, or was it marked at all, for that matter, that it belongs to you or is copyrighted.
Chapter Four of Title 17 United States Code, Section 401, et al, states:
Section 401. Notice of copyright: Visually perceptible copies
(a) General Provisions.— Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.
(b) Form of Notice.— If a notice appears on the copies, it shall consist of the following three elements:
(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and
(2) the year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
(c) Position of Notice.— The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.
(d) Evidentiary Weight of Notice.— If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504 (c)(2)
Your company did not comply with USC 17 Section 401(b)(1-3), therefore has no standing to make this claim. If you do in fact hold a copyright to the image in question, it was taken down within hours of your properly notifying me that it is yours and there was, therefore, no damage to you non-compliance committed by me. I am an artist myself and respect the intellectual property laws, am aware that they are a constitutional guarantee, and therefore appreciate the business and service you provide for artists. However, if you're going to offer this service to artists, please do it properly and make sure that images you post on the internet are properly protected---you failed to do that in this case. You did not affix notice to the copy in such a manner as to give reasonable notice of the copyright. See clause (c) above. It also appears you let it escape to the public domain.