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Topics - DavidVGoliath

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Legal Controversies Forum / Copytrack
« on: November 28, 2018, 06:34:05 AM »
This is definitely food for thought for anyone that receives emails from Copytrack; it's sad to say that, even if photographers signed up to use their service in good faith, it looks like both image creators and those who infringed (not going to touch on innocent/unwitting etc.) are possible victims of what looks like a large-scale fraud.


TL/DR: If Google indexes a photograph that has IPTC metadata embedded in it, it will now display those results as part of any search query. The next major hurdle for photographers and agencies will be to ensure that their client's workflows keep all metadata intact at the point of publication.

On a personal note, I'd love to see Google's algorithm give priority to results that contain embedded IPTC data/

If that happens, it will go a long way to preventing instances of "I didn't know the image was under copyright" or "I didn't know how to find the author" which, by extension, will mean people are less likely to use such works in a cavalier manner - which could lead to a net reduction in infringement claims and litigation.

That's got to be a win-win for everyone, right?

Having viewed Matthew's recent post about alternative RM or RF image sources, might I also suggest that, whether you're looking for pre-existing images to license or a photographer to create bespoke works for you, end users should give Photoshelter a try?

The key benefit to using Photoshelter is that you will be communicating directly with the creator of the works and, when licensing terms are agreed, at least 89% of the revenue goes straight to the photographer - unlike image agencies who can hoard as much as 90% of the gross for themselves.

I can't stress enough that if both creators and image users want to see the likes of Getty consigned to history as the parasitic entity that they are, then finding a way to work together directly, cutting out as much of the middleman as possible, is the way to go. Portals like Photoshelter are an invaluable resource towards that goal.

So: if you're looking for pre-existing images, the link you'll want to use is

If you'd like to find and commission a photographer for a bespoke project, the following link is best

Thanks in advance to all readers for taking this into consideration and, if you find this information valuable, please share it.

Interesting information to be found at the foot of page 20 / start of page 21 in the following

For those without the time or inclination to read, here's the take-away

"The Copyright Act prescribes three ranges for statutory damages, depending on whether the infringement was innocent, willful, or neither. The statutory damages range is $200 to $30,000 per work for innocent infringement, $750 to $150,000 per work for willful infringement, and $750 to $30,000 per work for regular infringement"

There's further information which lays out the six factors (prescribed by the 2nd Circuit) as to how to determine an amount of Statutory Damages

1. The infringer's state of mind
2. The expenses saved, and profits earned, by the infringer
3. The revenue lost by the copyright holder
4. The deterrent effect on the infringer and third parties
5. The infringer's cooperation in providing evidence concerning the value of the infringing material
6. The conduct and attitude of the parties

My takeaway from this? If you receive an infringement notification from someone who has all their ducks in a row (correct and timely registration etc.) and they're offering you a chance to avoid litigation via negotiating a settlement, it's probably not a good idea to stick your head in the sand or, worse still, tell them to "get lost" (or variants thereof)

Just my €0.02.

Getty Images Letter Forum / Getty: terminated
« on: March 30, 2014, 02:49:28 PM »
I've not been around in a while so this is a quick, brief update.

After digging in to many issues, I terminated my contract with Getty Images and have pulled my entire library of work from their archives too. There's no single reason behind my decision - rather, it was an amalgamation of several issues.

I'm doing my best to convince other shooters I know to leave the Getty fold and/or not sign with them in the first place; I guess the short version is that I've uncovered a several practices which have highlighted that they only have their own interests - and those of their largest clients - at heart.

Their aggressive race to the bottom and seeming lack of desire to comport their business in an ethically and morally sound manner is no longer a practice I can support. Their actions have - and are - causing significant damage to the wider community of content creators and content users alike.

Legal Controversies Forum / Okay, this takes the cake...
« on: June 13, 2013, 01:45:12 PM »
I was having a browse of this page

... and I noticed that the PicScout plug-in for Chrome flagged two results; now, I'd heard from some forum users that PicScout has a habit of incorrectly matching images so, to get to the bottom of it, I clicked through to the results.

All I can say is colour me f'n shocked.

The alleged rights managed images that PicScout flagged were this

and this

Now, both these images are freely available to download from the "Press Room" section of Nikon's website ( and respectively); the files that N-Photo Magazine (part of Future Publishing Group) have as part of their uploads to Getty are identical.

Whilst I'd like to have thought that the inclusion of press release images which cannot be the copyright property of N-Photo Magazine / Future Publishing Ltd. was merely an oversight, it very raises serious questions about the checks and balances that are in place with some contributors and at Getty as well... because moments later, I found this.

Which is actually this shot

The pixel dimensions are exactly the same for both shots - 1600 x 1216 pixels. This time around, the contributor is listed as Digital Camera Magazine... again, part of Future Publishing Group.

Three different press release images, uploaded on two different dates by two different contributors - none of which they have the rights to upload, let alone Getty having the right to license what are hand-out images?!?!

I think this might be the tip of the iceberg...  :-\

This is beyond troubling.

I don't see how this can be legal, ethical, moral or even logical... if the letter is to believed then, at best, it's tantamount to a "professional suicide" note from whomever wrote it.

All I can say is that if such correspondence was ever issued here in the EU, the sender would find themselves on the wrong end of criminal law in very short order.

Legal Controversies Forum / A message from the little guy
« on: April 12, 2013, 01:41:02 PM »
Here's the deal.

I'm a European based editorial photographer and have been plying my trade for about nine years now, slowly climbing the ranks from a wet-behind-the-ears freelancer, carving out a niche for myself and settling into a niche that I'm comfortable with.

I live in a two bedroom rented apartment with my wife, three children and a dog. Our net income is nowhere quite average, we have modest savings and, all in all, we have a more or less quiet existence.

As a freelancer, I'm quite fortunate that I earn enough from my shooting that I can contribute to my family income in a meaningful manner - although there are the near constant costs of doing business such as insurances, gear maintenance etc., not to mention on-the-job expenses that I sometimes have to wait months to see reimbursement for.

Unfortunately, the subject matter than I cover means that, since 2008, I have seen the amount and frequency of infringements of my photographs climb almost exponentially. Certainly, the technologies to discover unauthorised uses of my shots have become simpler and less costly, so maybe I'm just finding more instances than I used to. Who knows.

The first time I ever enlisted an attorney to take on a copyright infringement case was back in 2010. One of my photos had been used by a major clothing company with annual revenues of well over $150,000,000 per year. They used my photograph as the basis of an online advert that - when clicked - would take viewers to their store where they could purchase apparel.

When I contacted them, they offered me a t-shirt by way of compensation. The actual license fee  that would have been due for the manner they used the shot was a modest four figures (calculated from averaging a few sources for quotes). Upon being told this, they flat-out refused to pay anything more than $50, citing that was the "average" for images on the internet.

At this juncture, our combined family income wasn't great and - to be frank - it was a struggle to make ends meet each month. Some days we'd have next to nothing in the bank the day before pay-day.

This is where the services of contingency fee attorneys are a lifeline. I was able to scrape together the copyright registration fee and navigate the US Copyright Registration process and effected a timely registration (within three months of publishing) of the photograph in question.

Even having the representation of qualified counsel whose specialist area was IP and Copyrights, the clothing company still refused to play ball. Yes, the opening demand was low five figures but, in all honesty, we were talking about a multi-million dollar company that thought they could offer me a t-shirt in return for them creating an advert out of one of my photographs.

Negotiations stalled with their "final" offer of $200 and we knew fine well that we'd need to file a claim with the courts to move forward. It was difficult to scrape together the $350 filing fee and $100 for process service, but we managed it.

Almost the day after filing the complaint with the court, my counsel was contacted by a new attorney representing the defendant and, a couple of weeks later, an out-of-court settlement was reached for low five figures. Yes, a chunk of that went to my attorney but without their help, I'd have gotten nought but a t-shirt (or maybe $50)

Between then and now, I've had my work infringed upon by the likes of Microsoft, Yahoo, Fox, countless "news" websites of all sizes and many others.

I have made a point of almost always attempting a direct dialogue with those whom make use of my work; only one in every five people I contact make any effort to engage with me and take the issue of the infringement seriously.

I've offered settlements for the "lost" license fee (mostly in the range of $75 ~ $150), settlement for a percentage of the license fee where multiple shots have been used... and on about four out of five occasions, I get it all thrown back in my face.

Some have claimed "fair use", some have denied liability, others have flat-out lied as to how and where they sourced my work (I always embed IPTC and EXIF data, and have a particular file naming convention) and, when caught in the lie, they shout "extortion!" and scream that they have no money, no assets and that I will never see a single red cent from them... yet they persist in using the work of others for their own gain as if it were some God-given right.

Others hide behind services like DomainsByProxy - and even all the DMCA takedown notices in the world end up playing out like a perverse game of Whack-A-Mole; I get one image taken down, only for a different one to pop up on the same website some weeks later. They hide behind anonymity and profit from my work - mostly sites set up to scrape RSS feeds and earn a few hundred dollars per month in advertising revenues.

It's tiring. It's frustrating. It leaves me shaking my head that, whilst there are so many people who want to make use of my work, so few of them elect to do so legitimately.

Is it any wonder, then, that I have to turn to the services of contingency fee attorneys so that I might protect my rights, business interests and livelihood? I've seen mention on this site that such attorneys - whom peg their contingency fees as 33% or thereabouts for pre-litigation settlements - are pariahs and extortionists.

Look at it from my perspective; I rarely put a case towards my attorneys where I haven't initiated contact with the person / business whom has used my photograph first. The exceptions to my rule are where the infringer is in the IP business themselves and absolutely should know better - think newspapers, media companies, journalists etc.

About one in five of those contacts results in a direct settlement of the infringement, which is a win for everybody: the 'defendant' has learned about IP laws, I've earned licensing income and not a single lawyer has profited from the exchange.

From the remaining four out of five... maybe two or three of them don't realise that I'm truly serious about protecting my rights until I've gotten an attorney involved. They're notified of my copyright registration certificate number, they're told what the maximum penalties are if it goes to court and it's down to me to decide the opening sum that goes into the demand letter.

Those one or two people then start negotiating and, when a middle ground is reached, a settlement is effected. I always hate going down that road as it results in burnt bridges and sometimes a burning ember of resentment on the part of the defendant... but I content myself that I had exhausted the personal approach prior to this juncture.

And the last person? The remaining 20%?? They fight tooth-and-nail and most often claim that their actions are a "no harm, no foul" situation. They don't seem to consider that maybe, just maybe, in taking my work without licensing it (and using it well outwith the bounds of fair use) they're screwing the little guy.

I'm not Getty Images. I'm not Corbis. Heck, I'm not even a microstock site. I'm a freelance editorial photographer working to provide an income for my family. I do my work because I love taking photographs. I do my work because, in my niche, I'm one of the best in the world... and I've worked hard to get to this point, finding and retaining clients who value my images.

Do you really believe that people that appropriate my photographs are entitled to a free ride? Is it really so reprehensible an idea that, in order to protect the value of my work (not to mention my clients interests) that I might have to resort to the letter of the law... and that my finances mean I have to use a contingency fee legal firm to do so??

Please remember that the provisions of USC 17 exist just as much to protect the little guy like me... that attorneys willing to take on my cases bear all the financial risk because I simply can't afford to.

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