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Messages - lucia

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Getty Images Letter Forum / Re: Extortion letter/s from August Images
« on: February 05, 2015, 10:16:19 PM »
Yes, that is the case, it's a celebrity photo. So all of this may be more serious?

It certainly makes it difficult to determine fair market value on my end....  to even counter offer with, if I decided to go that route.
It's not just a "celebrity photo". Celebrity photos can include papparazzi shots and so on. Those can be valuable-- but some are nearly interchangeable and of limited market value.  But August images are often clearly staged images created by well paid photographers who have been hired to create advertizing campaigns, magazine covers, and so on. 

To gauge the 'risk'.

On the one hand: August Images does carry truly valuable images. They do need to protect their images from being posted because those images have actual customers who don't want the value of the images devalued.   It's quite likely all the images are registered, and it's likely that if they pursued this, they could prove value of the particular image you copied.  The argument wouldn't be some general argument about the value of collections of the business model as a whole and so on. It would be showing the value of that particular image.

On the other hand: we don't have much history on August. It may very well be that they drop things if people don't pay. After all: They actually do have paying customers for these images.  So, their business model isn't to have a collection of near valueless images bymake money by scaring people into over-paying.  Given that, it may well be that they would drop this rather than suuing -- and that their real goal is to just get people to take these down. ( Scaring them enough to get the story out that you shouldn't just pick any old image to post would likely be part of their motive too.)

Factors making them (or anyone) less likely to sue are the the fact that you used a thumbnail -- which by it's nature has a lower commercial impact on saleable uses and that can affect the size of awards they could get.  After all: the image is small.

Other factors? I can't say, I don't know enough about your site to know how they might view it overall. I also don't know if the company is in a situation of wanting to send a message and so on.

As for the rest: I don't know how the "fair use" defense would pan out. I don't know enough about how strong the argument your use was "fair use" would be in court. After all: they could point out that you could have chosen any image at all to demonstrate what could be done with photo-shopping. You could have taken your own image of some young lovely and photoshopped her. The question they would ask you -- and the judge would want to hear the answer is: Why use that image? Why not some other image?

When it comes down to it: the risks are something you need to judge. I'd gauge this as "more risky" than the typical Getty Letter because (a) typical August images are more valuable and marketable than typical Getty Images images and (b) we don't know much about how August generally behaves.

How risky is it? That's the unpredictable thing. But really, no one here can tell you much more.

If I recall correctly, Oscar writes one letter. If he gets a response, he writes a second letter. (My impression is he rarely gets a response from getty.)  After that, if Getty pursues, yes, you need to hire a lawyer. The letter writing program is not a guarantee of representation is Getty actually files.

In most cases, the issues are not complicated the letter complains about a single images, the images in not really that valuable, and in reality, Getty is unlikely to sue. However, they do pester as if they plan to do so. The main benefit you get is Getty stops writing anyone at all. If a lawyer write them, they can no longer pester you directly. 

However, if you are one of the people who posted hundreds images creating multiple sites for people and so on, then the letter writing program won't do you much good. You will need an attorney to help negotiate an actual settlement. (There is a case like that. Someone set up a web design service and sold customers web designs with infringing images putting them at risk. Getty went after the web designer and rightfully so.)

I hope you are not any such web designer, but if you are you'll need services. In that case Oscar himself might be able to help you, but the letter writing program won't be enough.

Getty Images Letter Forum / Re: 1st Getty Letter
« on: January 28, 2015, 09:43:50 AM »
Greg is correct:
In the US, you as web designer have no legal standing in a dispute between Getty and your client. Unless Getty is paid, history shows us they will continue to request payment from their client. There is nothing a web designer can do-- other than to pay Getty for the client. This is a tough break for web designers-- but it is what it is.

I don't know what happens in Canada. If you and your client are both in Canada, you will need to consult a Canadian attorney. You might also want to do a search to find out whether Getty bothers to file suits in Canada-- because it may well be filing is not cost effective there. My impression is Canada's laws don't have all these draconian possible fines that sound scary-high and the owner has to show actual loss. But that's something you need to look into.

Getty Images Letter Forum / Re: Received a Complaint from BWP Media USA
« on: January 28, 2015, 09:24:52 AM »
I love the comments in the ruling at scribbed
The “webpage captures” are minuscule, no more than one-sixteenth of an inch wide and some four-and-a-half inches tall, and do not reveal any discernible images within. (See id .) Indeed, it is not possible to confirm plaintiff’s assertion that the exhibit represents a website

The whole thing is pretty funny though.

Getty Images Letter Forum / Re: Received Letter From DeBoer IP
« on: December 29, 2014, 02:27:50 PM »
Puzzling. I remembered "webshots" as the site that hosted many of Vincent K. Tyler's images.  I discussed webshots /Tyler here

At that time, Webshots (2008), those uploading to webshots were presented a TOS that I archived here:
We are unable to license Webshots images to third parties; if you would like to use any of the images, you will need to contact the photographer directly through a link under the image on our website. Those needing assistance contacting the photographer or artist's representative, please contact
This sounds like web shots is NOT the exclusive representative for the photographers-- and so would not be able to sue on their behalf.

Grant of License

When you post or transmit Content on or through Webshots you grant Webshots, its parent company AG, their affiliates and partners a nonexclusive, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, create derivative works of and publicly perform that Content on and through each of the services provided by Webshots. Your photos and other content are your property and will only be used by Webshots in the same way they have always been unless you give us permission to do something else with them. The changes to the Terms reflect the change in ownership, not a change in use of your content. This license shall apply to the distribution and the storage of your Content in any form, medium, or technology now known or later developed. You may remove Content you have posted on or through Webshots at any time. When you do remove your Content, this license will automatically expire.

So here, the image creator would be licensing Webshots to do something.  But it's a non-exclusive license. So, I think this means Webshots can't sue on the part of the person who uploaded the image.  Webshots would have to claim to own the copyright themselves. But if so, presumably, they have a copyright on a compilation-- and all the complications entailed in that.

Mind you-- the language above is 2008. I don't know what it was in 2004. Also, Webshots might have been buying images outright in 2004. Who knows? 

We really won't know the validity of any copyright claim by Webshots unless they sue someone. Given the language in 2008, I wouldn't be surprised if it turns out their ducks are not in a row. But who knows?

I'm also considering suggesting to ignore it until he receives any thing else, i'm not certain at this point if this was a email, letter, certified letter or what from getty.
So if it wasn't a certified letter...
The one I received 3 years ago in November was not certified. Sending certified letters would probably cost Getty too much. ;)

The client needs to decide what to do. Details about what the image was, how long it was up and so on would affect advise I would give. But often these are trivial images and Getty doesn't pursue. The only kicker here is that this seems to be a business site, which tends to make the matter more serious and tends to translate into use of higher quality images -meaning images that really do have some sale value .

In contrast, images on blog pages tend to be throw away.  That said: you really need to know the image to say for sure.

Getty Images Letter Forum / Re: Just Received a Cease and Desist for $975
« on: December 16, 2014, 12:01:05 PM »
t's in his name.  [...]
We asked him to remove the image today (completely off the website/server) and I'm wondering if we are liable or if we should just ignore it?
I doubt that you are liable. First: you don't own the site. Second, you don't control the site. He does. He may have done it 'for' you, but if you didn't hire him, you don't control him, you don't own the site, you don't own the server and you had nothing to do with any choices or activities involved, it's not legally your site. In fact: in principle, if he was a jerk, if his behavior was interpreted as yours, then anyone including a deranged vengeful former lover could just decide to call a site "yours" put anything and everything up there, and then magically, you are liable. Obviously, that's not right.

In this case, since you like the kid, it is not to your advantage to communicate with the people asking about copyright. Letting them sit in an informatin vaccuum is probably the best-- as then they aren't likely to learn who did copy, own and so on.  You aren't required to volunteer information to  help them sue the person who did copy, own etc: that would be this kid! Heck, you aren't required to tell them anything. No comment is fine. Telling them you would need a subpoena etc is fine.

Thanks for the advice. I'm leaning toward the letter writing program but i am curious if calling them first could do any harm?
Heres how the call would go something like " Hi, i'm calling on behalf of client name, on case # code# etc etc. I offer 100 to settle this issue, i feel this is a reasonable amount, you have 7 days to change the online payment or i turn this entire issue over to my lawyer."

thoughts ?
I think this is pointless. You turn it over to your lawyer, who might do.... what?

Your lawyer can't do anything because you don't have any legal standing in this dispute. Getty is asking someone who is not you--(your client)-- for money. They are threatening someone who is not you.

 You can't really do anything.  From the point of view of the law, Getty isn't doing much of anything to you. Unless you have one hell of a clever lawyer who can figure out ... some odd angle, you and your lawyer can't do anything. So there is no point in threatening Getty with the idea that your lawyer will contact them.

If your client wants a buffer between him and Getty, he has to hire a lawyer who write on his behalf. 

I stock shows it here
The credit says
Medical illustration depicting the upper part of the human body. Published in Systematischer Bilder-Atlas zum Conversations-Lexikon, Ikonographische Encyklopaedie der Wissenschaften und Kuenste (Brockhaus, Leipzig) in 1844. Photo by N.Staykov (2008)

So it appears that this is a photo of an underlying image originally created by someone else.  The underlying images would not belong to them.  On can get a copyright on a derivative-- but then they have to prove you copied their derivative. So... are they saying yours is watermarked and so can show you copied their copyrighted copy of the original? And not someone elses copy of the orginal? Or even your own copy of the original.
They can't "own" the underlying original -- if they could, I could gain copyright on the original Mona Lisa by going to the Louvre and taking a photo-- and so could anyone else! 

 It would be rather interesting to hear what a judge would say about their copyright claim if they did pursue it.
It would be interesting to read what Oscar says too.

The link
 is showing me

Reference number not found. Please confirm reference number or Contact us if error persists.

Getty Images Letter Forum / Re: I'm done worrying about it.
« on: December 11, 2014, 08:31:45 AM »
I hit my 3 years. Wooo hoo!
It would be nice if they told people they internally dropped things. :)

On the one hand: I knew they had no case against me. Hot linking-- among other things.  But there were other issues:  creator: original owner had died. That specific images was offered free for personal use on a site with her name on it-- run by someone whose name suggested they were an heir.  Names of companies etc seemed to change (last name .inc, personal name and so on.). So, any licensing paperwork might have been difficult for Getty to present in their favor with all sorts of potential slip-ups on who owned, who signed forms etc.   So, there really was no way Getty could win a case if they filed it.

On the other hand, there was no communication from them saying "Whoops. Our bad. You're right.

Yes. A web developer can offer to pay the money in place of the client. But otherwise, there isn't anything they can do to make Getty stop pestering the client.   This is a tough thing for ethical web developers, but Getty wants its money and the law permits Getty to go after the client. So, like it or not, they are not going to agree to let liability transfer to a web developer who then won't pay.  And it doesn't matter that the web developer knows the demand is unreasonable-- Getty's knows the only way to incentivize the web developer to pay for his client is to keep pressing the client, who might get disgruntled and take his business to another web developer.  Meanwhile, they also hope the client might pay-- so they have two chances.

It's a tough spot for a web developer. But the fact is: if the client wants to avoid being pestered, or set someone up to negotiate for them, they need to have a lawyer send a letter to Getty Images.  A web developer can't do anything to force Getty to stop sending letters to the client, and Getty won't agree to do so.

The image Getty sued me for is one that is widely available in print on posters. People hang posters all over the place, in public and in private and, as far as I know (I'm not a lawyer, though), if a poster is hanging somewhere in the real world, there isn't any kind of law that says you can't take a picture of it, for whatever purpose. So, let's say that my friend Bob has one such poster in his home, and he's standing there next to it, and I take his photo. Then, on my business' blog, I post the photo in high-res... maybe I even crop it and just show the poster w/ a note like "Hey, look at this cool poster that was hanging in Bob's home office."
I'm not a lawyer, so take this for what it's worth. But still, this is what I think!

Copyright contains a provision for "fair use". Fair use is an affirmative defense you can advance if you are sued.  You then have to make a case your use does fall under fair use.  You are describing a situation that might be borderline and details not included in your discussion would matter. 

One on extreme of "you took a photo of Bob":

Suppose you are in Bob's living room, he's on the couch, you snap a photo. The photo is mostly Bob, but in the background one can see the photo.  Then you put that on  your facebook, blog, or even a business blog etc.  You say, here's bob on his couch! The focus is Bob but the image in the poster is undeniably 'copied'.   There's a pretty good chance you can assemble a convincing argument that will pass the four factor fair use test. Basically: it's most likely that with that set of facts, the photo you are posting doesn't affect the market for the image and you can probably convince a judge that your 'creative' contribution is of "bob in his living room" and as such, the image is only copied for it's function of "being in his living room" and so -- in some sense-- is your "speech" and that speech is about "bob and his living room".  Maybe you'd lose, but I suspect you could put together a good argument.

If the portion of the photo containing the image was small enough or lots of people were milling around in front of it and so on, you might even get "de minimus" which is also not infringing but under a slightly different principle than 'fair use'.

On the other hand, suppose you are with Bob in his living room. You see he's got a remarkable image on his wall. You intentionally get him to siddle up to it-- not obscuring the image at all. You take a photo in which you intentionally focus on the image-- not bob. And then you crop bob out, and only have the image-- in high resolution and in focus. And then you upload and use that as a decoration at your business blog, but include some tiny nearly insignificant snippet that few readers might see that says "Look at this cool poster Bob has in his home"-- and that is done in a context where you are marketing ... something.... You might have a harder time putting together a fair use claim. The judge might see that as just you trying to get around paying a fee to get permission to display the photo itself.  If it's the whole photo and your business blog gets a lot of traffic, I would be too optimistic about winning under 'de minimus' in this case either.  (Worse, if it's a photo of a celebrity and your blog is a celebrity fan site.... forget it. Putting "look at this cool photo on Bob's wall" is not going to cut it. )

Or not. Hard to say. But what you are talking about is how good the argument of 'fair use' or 'de minimums' might be in a specific instance. And "fair use" is very fact specific.

Getty Images Letter Forum / Re: Sanders Infringement Letter
« on: December 03, 2014, 04:00:53 PM »
If I were in your shoes and the image was indeed hotlinked, I would not so politely tell Craig Sanders to go fuck off,
I have learned that the lawyerly way to express the sentiment you advise he convey is
"We refer you to the reply given in the case of Arkell v. Pressdram"

Of course, to understand this, you need to be familiar with the reply sent in the case of Arkell v. Pressdram, which was
"We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off."

Getty Images Letter Forum / Lucia's Statute of Limitations Reached
« on: December 03, 2014, 03:51:37 PM »
It's a bit late, but I wanted to let people know the statute of limitations for the infringement alleged in my 2011 Getty Image letter has passed.  No action on their part which was not too surprising since I hotlinked and hotlinking is not infringement. But still... it's a milestone. I'm in the "SOL" club!

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