Thank you Robert Krausankas.
I’m in the UK and have no direct experience, myself, of the ins and outs of US law, though I do understand about registering photos with the US Copyright Office (mine are). From what you’ve said, in your case, Getty had no evidence so they could not sue you. Apologies if I have misunderstood. And your reasonable responses to them were not treated reasonably or sensibly. Your case is similar to so many. It’s Getty’s approach which is the problem.
Your case is specific but the principles would apply to many others. Where an image is available from Getty and another source, there are obvious problems. To my mind, it’s worth looking at whether both sources actually did have the right to sell the image. They both said they did but is this right? I’m not and never have been with Getty but I just checked their current Contributor Contract on exclusivity.
Copied from the current Getty Contributor contract which can be viewed here:
https://contribute.gettyimages.com/olc/agreement_form/sample_agreement‘Exclusivity’.
‘All Content submitted to Getty Images is on a Content exclusive basis. This means that Content submitted to Getty Images and
any other content that is substantially the same (a “Similar”) may not be licensed to any third party unless Getty Images has
notified you that Content and all of its Similars have been rejected. In addition, you must submit exclusively to Getty Images any
and all Content and Similars (a ) that you have taken on assignment for or as a representative of Getty Images; (b) that you have
created acting on information, direction or access provided through Getty Images; or (c) where Getty Images is funding any of the
costs incurred in connection with creating that Content. Additional terms apply to editorial Content, see Section 5’I also asked a photographer who has supplied Getty for 6 years and he confirmed this exclusivity condition was in place when he joined so it does seem to have been in effect for at least the last 6 years. That raises a question or two about who had the right to sell the image. If it were properly placed with the source you bought from before the photographer gave it to Getty, then it’s possible/likely the photographer was not in a position to place it with Getty and any contract between them would/could be seen as invalid (Getty make agreements based on exclusivity and the photographer would not have been in a position to meet that condition, therefore, no valid contract). On the other hand, if he gave it to Getty first under an exclusivity agreement and later also gave it to the source you bought from, then that source could not have had the right to sell it to you (they can’t sell what they don’t have) even if they thought they had. Lots of work for the lawyers to sort that out.
With the Statute of Limitations, I offer a word of caution. This is what has happened in many of my cases in the UK and I wonder if it would also apply in the US? I say this with some hesitation because I feel (some/most) UK lawyers are mistaken on this point (or are aware of it but choose to keep quiet). I am not a lawyer, just someone who has been around the block a few times and has leaned some things on the way. The SOL is 6 years in the UK and, I think, 3 years in the US. Correct me if I’m wrong, please. Under the SOL, claims can be brought up to 6 years after the event but there are important and relevant exceptions.
http://www.legislation.gov.uk/ukpga/1980/58Section 32 the Limitation Act 1980 , provides
for postponement of limitation period in case of fraud, concealment or
mistake. As follows:-
(1) Subject to [F26subsection (3)][F26subsections (3) and (4A)] below, where
in the case of any action for which a period of limitation is prescribed by
this Act, either—
(a)the action is based upon the fraud of the defendant; or
(b)any fact relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant; or
(c)the action is for relief from the consequences of a mistake; the period of
limitation shall not begin to run until the plaintiff has discovered the
fraud, concealment or mistake (as the case may be) or could with reasonable
diligence have discovered it.
(2)For the purposes of subsection (1) above, deliberate commission of a
breach of duty in circumstances in which it is unlikely to be discovered for
some time amounts to deliberate concealment of the facts involved in that
breach of duty.
Most cases are the result of mistakes rather than fraud or deliberate concealment. In all my cases against household name international book publishers and British government Departments, their lawyers have always claimed the SOL restricts my claims to 6 years in the UK. My claims were for up to 20 years. I have relied on s32.1.c saying that, as the infringing uses were the result of mistakes, ‘ … the period of limitation shall not begin to run until the plaintiff has discovered … the mistake ..’ In all my cases the lawyers have quickly dropped their defence that I was limited to the last 6 years and have paid the claims going back up to 20 years. These are big companies with good lawyers and I do not think they would have paid the sums they did if they were sure they could rely on a limitation of 6 years. Postponing the period of limitation for mistakes seems fair to me. The Limitations Act 1980 is for cases where the claimant knew of an event but did not act in a timely manner. I don’t think it was intended for cases where the claimant could not have been aware of an event.
This leaves me wondering about the NASA pictures and I’m still waiting for a reply from NASA to my queries. Here it’s important to know how NASA pictures can be available for free use and, at the same time, Getty can sell them, presumably, under an exclusivity condition with NASA.
Robert Krausankas said:
How is it they demand 1k- 1200.00, knowing full well a judge would award the minimum of $200.00 IF they were to win?The amount claimed by different IP holders and their agents will vary enormously. In the UK, the courts typically award what that claimant can show they normally charge and are paid, plus any applicable uplifts. In my case, which Getty refer to in one of their letters, the fees for two photos were 500GBP, plus 100% for not crediting me as the copyright holder, making 1,000GBP in total. I was also claiming 100% uplift for flagrancy on the basis it was very easy for the defendant to see early on who the photos belonged to and they had every opportunity to contact me, which they did not do. That seemed flagrant to me but the judge disagreed. Another judge may have agreed with me and, in that case, the award could have become 2,000 GBP. Remember, this is without any lawyers’ fees. What I’m getting at is it’s very easy for claims and awards to reach four figures or five, depending on the rates normally charged and the image usage details. Photography is expensive. My camera bodies are 4,000 GBP each. A simple filter is 60 – 110 GBP. If Getty would normally charge, say, 100 USD, then why would they charge more in a claim? Possibly, 100 USD is the rate for clients who ask and pay at the right time but, because of the cost of identifying possible infringements and then contacting and chasing the picture user, they feel the rate for that use must be higher (it’s a lot more work and Getty are paying outside firms to do it). I’ve no idea if that’s their thinking but it really wouldn’t be unreasonable.
Stinger said
use the search feature, why should we have to do your homework for you?Thank you ‘Stinger’. I Googled Getty letter and looked at all 9 results on the first page. Not one of them gave details of any cases but all gave general advice. Each case would be different and it would be crucial to establish the details to know if Getty (or any other IP holder making a claim) might have a valid claim. The ones I found on ELI did not give enough actual detail for me to respond to so I am grateful to Robert Krausankas for giving details of his case.
‘Geezer123’ said
My observation is through research of this site and many others which demonstrate the same tactics in the vast majority of cases. Very few reports though of cases actually being taken through the courts... Maybe because this is they cannot prove the persons does not have a licence? Clearly there is the case you took but that applies to a very specific detail (partly print publication) and should not be compared with IP infringement of an image.Let me clarify the details of my case and confirm it was a straightforward case of infringement of my photos so it can safely be compared to others. I was claiming fees for the unlawful publication of the photos. I do not have and have never had any copyright in the book, even though I am the author of it. That copyright belonged to Penguin Books. The book was referred to because the offending site had reproduced pages from the book (including my photos) and I could show in the documents submitted prior to the hearing, that I was identified in the book as the copyright holder of the images and so it would not have been difficult for the defendant to see this. That persuaded the judge that I was entitled to the 100% uplift for the missing credit.
I know my constant asking questions and saying I don’t fully understand some things is annoying and frustrating, for which I apologise. The only reason I’m here is to see if I can help picture users understand the position they’re in and the options open to them when they receive a letter from Getty or any other IP holder. As you know, I’m an IP holder, possibly the only one on this forum. If my input can help people understand they need to establish all the specific details of their of the claim, that should save them (and we IP holders) quite a bit of time and money. We’d all benefit.
What would I do in a picture user’s position when a Getty letter landed? I’d check to see if I had used the photo they said in the way they said. If I hadn’t, I’d write back asking them to provide evidence of the use claimed. If I hadn’t used it, there could be no evidence. If they persisted, I’d tell them I would not respond again until they did provide serious evidence that could be checked. If I had used the photo, I’d check to see where I had obtained it and if I had a valid licence. If I had one, I’d forward a copy to Getty. If they continued to press their claim, I’d ask them to give their reasons in detail for pressing a claim when they could see I had a valid licence for the use. It’s up to them to show I had infringed one of ‘their’ photos. I would also ask to see the Getty Contributor’s contract, signed by the photographer which probably would prove they had a right to pursue it on behalf of that photographer. If they produced that, I’d then contact the photographer to check it was genuine, current and valid. If it was clear they did have a valid claim, I’d offer to settle quickly for a discount. Settling quickly saves them a significant sum so I’d expect them to accept.
Essentially, I recommend you check, check and check the details. Just because someone says something is true, doesn’t always make it so. Many of my photos are on the web as Creative Commons free to use images. That is totally untrue and I have not put them there. I’ve had a case against one government department which was supplied with my photos by another government department with an assurance they were free to use them. That was quite wrong. The supplying government department had no right to supply them. Enough.
John Walmsley
Show Posts