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Topics - Jerry Witt (mcfilms)

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Great news! Note that if this applies to DMCA takedowns could ALSO be applied to copyright extortion schemes.

From a recent 9th Circuit decision:

"To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f),"

The judge also adds that copyright owners need to do more than pay "lip service" to fair use, and further, that the "willful blindness doctrine" can be applicable to these type of disputes if a copyright owner deliberately avoids learning of fair use despite high probabilities.

So the next time a site is using an image for purely educational purposes and not for profit and one of the stock companies tries to squeeze them, they can sue for damages.

You have probably noticed that restraunts no longer sing "Happy Birthday to you". Here's why:

Hopefully this will soon change.

Getty Images Letter Forum / A win for the little guy
« on: February 20, 2014, 11:58:23 AM »
I think visitors to this forum will be interested in this item:

A small travel agency in Washington, Tropical Travel, had written permission from some of the  resorts they represent to use images that were apparently licensed from Getty for marketing purposes.  It seems Getty sent their typical "demand letter" and threatened legal action. The travel agency tried to explain that the images HAD been licensed for promotional purposes, but, shockingly, Getty wasn't interested in hearing about it.

Instead of simply rolling over and cutting a check, the travel agency turned to local news media. Once the news media began to report on the situation, Getty quickly reversed their position and left the travel agency alone.

I hope this stands as an example that it IS possible to fight back. I would encourage anyone faced with a similar situation to take the same path. I also hope some of the people that visit this site will comment on, and share, the story.

Getty Images Letter Forum / Copyright in Space
« on: May 24, 2013, 03:08:36 PM »
I'm posting this under the guise that it is copyright related. But it's really because it's an awesome video, I'm a Bowie fan, and I think Commander Chris Hadfield is the ultimate geek rockstar.

Getty Images Letter Forum / Spoke to another meet up group
« on: May 23, 2013, 01:23:27 PM »
Last night I spoke to another Meet Up Group about my personal Getty Image experience. I also shared some of the other stories I have leaned on this site.

One person asked, "Wait. So are you saying these stock image companies won't just send you a DMCA take down notice?" Ha! Ahhh the innocence on naivete. I spent some time explaining that they don't and why. We also went over some of the things developers can do to protect themselves.

Anyway, here is my slide deck:

This time the audience was about 20 or 30 web developers and designers and most hadn't heard about the Extortion Letter scheme. You can see pictures from this group meet up at:

Getty Images Letter Forum / U.S. House Copyright Hearings
« on: May 16, 2013, 06:31:13 PM »
It seems while I was looking "across the pond" at the UK (, a House subcomittee here in the USA also started hearings about copyright. See:

Oddly enough it outlines a lot of the same thoughts I presented in the UK thread. I have to say that after reading the article on Politico, I have changed my position. It sounds like what is being presented here would shift the burden onto content creators and only benefit the tech industry.

But for all of us who wish to see changes to the practice of copyright trolling, it seems now would be a good time to bring this practice to the attention of Representative Bob Goodlatte of Virginia.

I came across this article today:

It's obvious from the article the author is a photographer and doesn't much like the plan. But I say, if photographers think enough of their images they should take a moment to register them with a site such as what is being planned. And meanwhile anyone that posts these images without at least attempting a search, should get penalized.

I personally think a plan like what is being proposed in England CAN be made to work. Just wonder what other people think.

Getty Images Letter Forum / A new tag #gettyflubs
« on: March 08, 2013, 12:09:36 PM »
There are so many threads on ELI that mentions serious gaffs on the part of Getty Images. They include mis-identifying the image, claiming the amount they are trying to collect is ten times higher, identifying the wrong person or business -- the list is quite long. I am going to start replying to these with a tag: #gettyflubs. I encourage everyone else to do the same.


In the event that GI decides to take legal action against anyone, I think it would be valuable to be able to show a history of what can best be described as sloppy business practices. Being able to do a search for threads with "#gettyflubs" will make it much easier to collect all the times they've messed up and show a history of how frequently the company "got it wrong."

Getty Images Letter Forum / What exact IS Google's DMCA policy?
« on: September 20, 2012, 02:50:27 PM »
I'm sure most of you are familiar with the "Innocence of Muslims" 14 minute film that has caused a stir in the Muslim world. I came across this article today:

It seems Google actually sent attorneys to argue that the actress who was duped into being in the movie had no rights to even have a HEARING if the movie should be taken off YouTube.

Now, I'm for free speech as much as anyone. However I find it ironic that Google will yank anyone's video off YouTube with a simple DMCA claim and yet showed up in court to argue that this video didn't violate her right to privacy. If I were representing her I'd be looking into filing a DMCA complaint against it right now.

Today I came across an interesting article about the Waybackmachine on Wikipedia:

It said:

"In an October 2004 case called "Telewizja Polska SA v. Echostar Satellite", a litigant attempted to use the Wayback Machine archives as a source of admissible evidence, perhaps for the first time. Telewizja Polska is the provider of TVP Polonia and EchoStar operates the Dish Network. Prior to the trial proceedings, EchoStar indicated that it intended to offer Wayback Machine snapshots as proof of the past content of Telewizja Polska’s website. Telewizja Polska brought a motion in limine to suppress the snapshots on the grounds of hearsay and unauthenticated source, but Magistrate Judge Arlander Keys rejected Telewizja Polska’s assertion of hearsay and denied TVP's motion in limine to exclude the evidence at trial.[15] However, at the actual trial, district Court Judge Ronald Guzman, the trial judge, overruled Magistrate Keys' findings, and held that neither the affidavit of the Internet Archive employee nor the underlying pages (i.e., the Telewizja Polska website) were admissible as evidence. Judge Guzman reasoned that the employee's affidavit contained both hearsay and inconclusive supporting statements, and the purported webpage printouts themselves were not self-authenticating.[16]"

So based on this, it seems to me that the troll's use of the wayback machine (or Internet archive) is limited. I suppose they'd have a hard time proving either the length of infringement OR even usage with shots from I guess this is why they are so anxious to have you tell them how long you used an image.

I came across an interesting article today.

It seems the zeal used by some companies to issue DMCA take down notices actually trumps their own marketing efforts. These are mostly film studios and record companies where the left hand didn't seem to know what the right hand was doing.

But this led me to Googles Transparency Report at You can see there is an upward trend in take down notices. I looked around and couldn't find a search function. I was trying to see where the site or the Scribd account ranked. :)

Getty Images Letter Forum / A win for the bad guys
« on: May 21, 2012, 12:19:37 PM »

The Supreme Court has refused to take up a Boston University student's constitutional challenge to a $675,000 penalty for illegally downloading 30 songs and sharing them on the Internet.

The high court on Monday refused to hear an appeal ... for illegally sharing music on peer-to-peer networks. In 2009, a jury ordered Tenenbaum to pay $675,000, or $22,500 for each song he illegally downloaded and shared. A federal judge called that unconstitutionally excessive, but the 1st U.S. Circuit Court of Appeals in Boston reinstated the penalty at the request of Sony BMG Music Entertainment, Warner Brothers Records Inc. and other record labels represented by the RIAA.

Although this isn't specifically about the stock photo industry, I thought ELI readers would find it interesting. I was quite surprised that the higher court was unwilling to hear about excessive fines. Also, there is a big difference between using an image on your site that has been seen by 20 people and sharing a song with millions of free downloaders.

I wanted to share a bill that is making its way through Congress and encourage ELI members to help defeat it. This is something all ELI members can relate to. But it give the companies even MORE power. They can basically block or erase your site from the internet based on the accusation of a copyright holder.  Check out the infographic on this page:

Internet censorship legislation is barreling through Congress, and could come up for a vote in the next couple of weeks. 

The Stop Online Piracy Act would ruin so much of what's best about the Internet: It will give the government and corporations new powers to block Americans' access to sites that are accused of copyright infringement, force sites like YouTube to go to new lengths to police users' contributions, and put people in prison for streaming certain content online.

Please visit to learn more. BEG your congressman to vote against SOPA.

I have begun to put together a list of sites that at least CLAIM their imagery is free and in the public domain. I welcome any additional notes or clarification. A lot of these companies make the images available under a Creative Commons License. I have done some cursory research and it seems to me that these are legitimate free PD images. If anyone has information to the contrary, I would welcome it. Also, if anyone has additional sites to share, please let me know.  (Look carefully, the first 3 images are for sale, the rest are free) A lot of textures and elements for artists and animators  Nice photos small selection

It is worth mentioning that my understanding is that anything produced by the U.S. federal government is in the public domain. - one example of the many photos you can use for free from U.S. Government sites. - claims to be the largest collection of public domain photos (my notes say images are so-so)

A couple of less-useful sites:

I almost suggested, but their EULA is only for non-commercial sites.
And requires you to leave their logo in

And finally, when all else fails and you really cannot hire a photographer or license an image directly from a photographer on, you may need to purchase an image from a stock photo company. If, like me, you'd like to avoid doing business with a company that sues it's customers, then you should know that Getty Images also owns iStockPhoto and JupiterImages, two of the larger stock photo companies. They also own Tony Stone Images,, Allsport, the Hulton Picture Library (or Hulton Getty) and the Keystone Collection.

So what is left? I phoned and after speaking to a number of people there, I feel pretty confident that they are independent of any GI and the other larger stock image companies. I also have not read much on this board about (owned by Bill Gates) threatening legal action. In fact the one page I looked at read more like an initial inquiry and a take-down notice.

Again, I welcome additions or corrections to this list. I would also suggest that if you DO use images from these sites, you document when and where the image came from. It is a pain in the butt, but it might help you if you down the road.

Poking around on the web I have learned that, in the US at least, very few lawsuits are actually filed against companies that Getty determines to be infringing. I only found six. (Ironically there are many more cases where Getty is the defendant. Seems copyright holders find their business practices shady too.) The six I tracked down are outlined below. It seems to this layperson that the Judge tossed one out of court, Getty dropped two of them before judgment and the plaintiff settled out of court on the fourth. I think the other two are developing. If anyone has an update on the status of their case against Advertnet or Baron Associates  I'd be interested to hear.


Getty Images (US), Inc., Plaintiff
v.  ICG America Inc., Defendant
ORDER OF DISCONTINUANCE: Accordingly, it is hereby ordered that this action is discontinued without costs to either party and without prejudice to restoration of the action to the calendar of the undersigned within 30 days of the date of this order if in fact there has not been a settlement of this matter. (Signed by Judge Richard J. Holwell on 6/19/2008) (jpo) (Entered: 06/23/2008)
Getty Images (US), Inc. v. Ruth Industries, Inc.
STIPULATION (Joint) and Order of Dismissal With Prejudice by Plaintiff Getty Images (US), Inc., Defendant Ruth Industries, Inc.. (Jaffe, Daniel) Notification sent to: Karen Bekker, SATTERLEE AND STEPHENS, 230 Park Ave, New York, NY 10169 and Francesca A. Sabbatino, RUSSO AND KEANE, 26 Broadway, 28th Floor, New York, NY 10004 on 9/16/2008 (MCB). (Entered: 09/15/2008) (LM)
This means the lawsuit was terminated by voluntary request of the plaintiff (Getty)
Getty Images (US), Inc. v. ACT Telecom, Inc. et al
STIPULATION AND ORDER OF DISMISSAL. It is hereby stipulated and agreed by and between counsel for the parties to the above captioned action, subject to the approval of the Court, that this action including without limitation all claims presently known or unknown arising from the individual allegations made herein, is hereby dismissed in its entirety with prejudice against all parties and each party shall bear its own costs and attorneys' fees. So Ordered by Judge Sandra L. Townes on 7/11/2007. (Clarke, Melonie) (Entered: 07/16/2007)
Getty Images (US), INC., v. First National Bank of Long Island
ORDER OF DISCONTINUANCE: Based upon the defendant's letter, dated June 9, 2008, indicating that the parties have reached a settlement, it is hereby Ordered that this action hereby is discontinued, provided, however, that the Plaintiff or Defendant may apply, on or before July 10, 2008 (noon), by letter showing good cause why this action should be restored to the calendar of the undersigned. (Signed by Judge Richard M. Berman on 6/10/2008) (jfe) (Entered: 06/10/2008)

Two cases I couldn't get the results on:

The one against Advertnet has been in discovery for almost two years: DISCOVERY PLAN REPORT.Document filed by Getty Images (US), Inc..(Aieta, Mario) (Entered: 08/19/2009) source --

If anyone has any other examples, please post them.

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