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Messages - DavidVGoliath

Pages: 1 2 [3] 4 5 ... 15
UK Getty Images Letter Forum / Re: Getty images infringed my copyright
« on: September 14, 2018, 04:31:15 PM »
If you can hang fire until Monday, I can offer you up some of the pros/cons of taking on a solicitor vs. self-representation. The latter is actually quite easy in the UK courts, because Copyright claims can fall under the small claims process, which amply allows for self-representation. That aside, let me know if you live a reasonable distance from central London, as an IPEC (intellectual Property and Enterprise Court) filing may be even better for you - and again, they have a 'fast track' for small claims, and allow self-representation in those cases.

Getty Images Letter Forum / Re: Picrights & AFP Copyright Infringement
« on: September 14, 2018, 07:01:59 AM »
If I were the original poster, I wouldn't be looking to pay them money. I would start insisting that this installation was my original artwork, that the photographer did not get my permission to take the photo, and that I insist that they take it down from their licensing catalogue immediately. Furthermore, I would ask that they preserve all previous licensing records for this image while I retain a lawyer. I'd make it clear that I intend to seek compensation for the sales of the photograph of the installation and ask for contact information for the photographer.

Eh, any good IP lawyer will tell you that's not going to happen

The short answer is yes, you need to chase this further; are you resident in the UK? I ask only because you're posting in the UK section of these forums, so I want to be sure before offering up options on what you could do next.

I'm with Matthew on this; you've settled this claim and it's most likely a system glitch that saw you receive this fresh letter.

With that said, if you get *any* push-back from Higbee as to the veracity of your settlement, do follow up with that information here. I might have a pro-copyright, pro-creator stance around here but, above all that, I am very much against abuse of process.

UK Getty Images Letter Forum / Re: Extortion Letter from PicRights UK
« on: September 09, 2018, 06:14:39 PM »
I suspect the legal process in the UK costs money, effort, and legal fees to engage. That barrier of entry makes people think twice.

It can cost as little as £25 to file a claim, though the fees scale with the amount being claimed; also, if you win or the claim is uncontested, then the amount you paid to file the claim is added to the monies owed, which may also include statutory interest and discretionary uplifts (penalties). Claims can be filed online and you can easily self-represent if the claim is less than £10,000 in total. Most claims/counterclaims are initially heard "on paper" i.e. neither party actually needs to attend court unless absolutely necessary

And I also suspect that even with a win, getting money from an unwilling payer who is digging in is not an easy thing to collect.

Easy? No - but there's a clear escalation process from which goes right up to High Court Enforcement. If a defendant is refusing to pay, you can request that their bank accounts be frozen (personal and business), that direct deduction is made from their any salary (employers *must* do this if ordered) and you can even place a charge on their land/property, so they can't sell it without first paying you any monies the courts have ordered them to.

A more common action If a defendant has dug their heels in is to apply to the High Court for enforcement, which can be done so long as you are owed £600 or more. The costs of HCE visits and other fees are added to the claim amount, and HCE officers have the power to enter both private and business premises to seize assets for sale at auction, with all proceeds going to the claimant. If a defendant calls the police, HCE will simply produce their warrant from the courts and the police will not intervene, being that HCE attends on the orders of the courts to enforce civil recovery.

If it gets to that stage, a claim that started out as £600 to settle could wind up being high-four figures... and I think that all but the most intransigent people wouldn't want things like their car or other personal possessions being seized for sale.

That is why there is a high motivation to settle. If not, they get nothing.

The motivation to settle exists for both parties; there are time/cost factors involved at each stage of escalation, but it's a large gamble on the part of any defendant to wonder to what extent a claimant will pursue them, since the cost of doing nothing could be a high one indeed.

Although Black China lost 3 o 4 points, 2 of the points Sadowski won were NOT screaming victories.

It's actually the contrary: Sadowski alleged infringement and BackChina countered with a claim of fair use (an affirmative defense) and was BackChina who had their defense dismissed after failing three out of the four tests. It's not like each the four-point tests has hard pass/fail thresholds, so Sadowski didn't need to have a screaming victory of any kind - the judge's opinions of the facts relating to this specific case was all that mattered.

IP Lawyers will tell you that every single fair use defense is judged solely on the facts of the particular case i.e. there is never a bright line standard where you can unequivocally state "X is fair use, but Y isn't" - because the four-point test for fair use has masses of leeway for interpretation, you could even have the same case with identical facts tried by two different judges and wind up with very different opinions.

Let's say you had a judge that was a photography enthusiast as a hobby; BackChina might also have lost the one point conceded to them, because a judge knowledgeable about the technical aspects of photography might counter that Sadowski's picture - although a depiction of a factual scene - was also a wholly original work whereby Sadowski applied his skills and experience to determine how and when to make the photograph, including (but not limited to) his choice of camera, lens, focal length, aperture, shutter speed, ISO value, framing of subject, placing of light sources, and other variables honed through knowledge of his craft.

If BackChina is being represented pro bono or by counsel that they are personally connected to, then I agree that it is now perhaps in their best interest to settle the matter, though I'm sure it will cost them a lot more than $2,500 to do so, now that Sadowski has incurred filing fees and other costs in making his claim.

I still thin the judge was wrong in not considering a Chinese publication of an English story not transformative.

Any translation of the text from the original English news article to a Chinese language summary would still be factual. No artistic transformation of the photograph occurred and, since the matter before the judge related to a claim of infringement of rights in the photograph only, that's the reason for not even considering the publication on as being transformative.

This judge's opinion on fair use raises a question in my mind.  Suppose the photo was a a smoking car tailpipe into a bank of snow, with smoke barely escaping he exhaust.  Wouldn't that be more descriptive to the text of the story?

It wouldn't matter how descriptive the photograph was with respect to the story/translation that BackChina posted on; the photograph in question originally ran on the NY Post's website and thus was descriptive of the story i.e. "this is the car in which a mother and her children succumbed to carbon monoxide poisoning during a snowstorm"

The judge's opinion was that Sadowski's photograph was more factual as opposed to one involving a high degree of creativity but, even then, that was the only point of the fair use test that was upheld.

No fucking way did the Post pay $5,500 for a photo of a car surrounded by snow.  If I were the lawyer for Black China I would to the NY Post and get document proof how much Sadowski got paid for that license and submit to the court that Sadowski submitted fraudulent documentation to the court.

I agree with your points and, if you read through BackChina's motion for summary judgement, you'll see that Sadowski's invoice to the NY Post is supposedly for the supply of eleven photographs in total, so $500 each.

$500 is a believable license fee for newsworthy images that the Post couldn't obtain from any other source. In my early years as a photographer, a local newspaper forgot to apply to have one of their staff photographers shoot a "Pussycat Dolls" concert. It was the first leg of their tour in the country so it was a big deal. The agency I was working with at the time was paid €625 for just one shot that ran as a double-truck in the paper along with their writer's review of the show, with my cut being 60%

Weeks later, their staff photographer and I wound up talking about how I didn't see him at the show. I told him how much I'd been paid for the shot, and he steadfastly argued that there was no way his paper would have ever paid that much for a concert picture. I just shrugged and said that my commission statement says otherwise.

Anecdote aside, It still bothers me that Sadowski's invoice has no line-by-line breakdown of the number of photographs supplied or license terms/restrictions for each image, let alone descriptors of the shots licensed.

The only leeway I'm prepared to cut Sadowski in this regard is that many creatives are absolutely hopeless at the business side of their craft, and simply don't know how to write up a robust licensing document/invoice. It's not something that's taught at college and university courses for the arts and, if a person has fallen into self-employment on the back of their hobby/passion, it's possibly not something they've ever been taught.

You can be a great photographer but, if you suck at running a business, you'll quickly find yourself out of your depth or worse... a lack of structure to your business operations can leave you hamstrung in situations where you're asked to provide evidence of having done something, like having licensed eleven photographs to a newspaper.

If Back China is the serial infringer that DavidVGoliath says, it is very odd that they did not settle this claim fast.  Either plaintiff was asking for big money or their attorney was giving them bad advice. 

BackChina's own motion for summary judgement cites that Sadowski's opening demand, via his lawyer, was for $2,500. As you say, they're now likely on the hook for multiples of that sum in their own defence fees alone. If the case hasn't settled yet, then the defendant is either hoping to drain Sadowski's finances/will to pursue this, or they're in so deep in that they're pushing through in the hope of a win where Sadowski has to cover their costs, in part or whole.

I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.

Seems there was an Order made on this case just two days ago, but it's not accessible without a PACER login. I'll hazard a guess that, following the dismissal of the summary judgement request and the failure of the fair use claim, the parties went back to the negotiating table and settled the matter out-of-court.

At any rate, the licensing value of the photograph rarely comes into play when a claim of statutory damages is at the heart of the petition; it would be down to the judge/jury to decide where the needle stops in the $750 - $30,000 range that the law prescribes; having invoices and corresponding payment records are useful tools to bolster arguments for valuation in actual damages claims, but only peripherally useful in cases like this one.

With that said: my opinion is that I've never seen an invoice anything quite like the one Sadowski claims he sent to the New York Post for the specific photograph at the heart of this case. My own invoices are far more specific and include the license type, duration, territorial restrictions, exclusivity clauses and so on, as well as detailing who my company contact is, if there is any corresponding purchase order number or client/vendor ID and so on. I can also, without fail, lay my hands on corresponding bank records that will show payments of invoices, usually within a few days or weeks of the invoice being presented to the client.

The last recorded update ( was that summary judgement was, unsurprisingly, denied.

I say unsurprisingly because if you read through their motion for summary judgement, they tried to make a very flawed fair use argument, and the judge's opinion shows the grounds on which it failed.

The arguments that BackChina made are ones that are often thrown around as supposedly viable fair use defences centered on the commonly misunderstood news reporting exemption and, when I read them myself, I saw how shot through with holes they were, so it was no surprise to me that BackChina failed on three out of the four-point fair use tests.

Also, anyone reading the judge's opinion will note they did not touch on BackChina's claim that they were not the persons who uploaded the photograph. If you search the US Copyright Office's designated agent directory (their database of DMCA agents), there are no entries for either BackChina or - and, as of moments ago, the website still hasn't posted information to the required standard either, so it's likely only a matter of time before they get hit with an infringement claim again, since their site is using many photographs that are plainly copied from other news reporting outlets.

I think this is the biggest reason why a lawsuit for single image has not gone all the way through a jury tirial and verdict or extremely rare.  Asking for thousands of dollars for a photo with a market value of $10 would be thrown out as a colossal waste of tome.

I think the reason that you haven't seen single-image lawsuits go all the way to a jury trial is that defendants will want to minimise their risk of being slapped with a hefty judgement against them. In the event that a plaintiff can prove wilful infringement, damages can be as high as $150,000, and that's before any provable DMCA violations are factored for.

If a case against an infringer is fairly airtight and there's a good chance to argue/prove that DMCA was violated (e.g. a watermark/copyright notice being cropped out of a published use - which also proves wilfulness) then you're looking at combined damages of at least $3,250... plus the prospect of paying part or all of the plaintiff's legal fees, as well as your own legal fees to defend the suit. That could quickly become a five-figure sum that you're on the hook for. Conversely, settling the matter at the pretrial stage is less costly to all parties.

So, that image that may have cost you just $10 to license, but you took it anyway? A court may not look favourably on that action and, if the plaintiff has their ducks in a row regarding timely registration, they might well render a verdict that is as much punitive in nature as compensatory, because judgements tend to also factor for deterring others from engaging in similar acts.

Put it this way: if the sole penalty for stealing something valued at $10 was that you would be made to pay the $10, then there are a great many people who would happily roll the dice in the hopes of never being caught.

Also, here's a thing to consider: the damages ranges for infringements per 17 USC 504 were written into law back in 1946 and statutory damages back then were of ranged between $250 - $10,000. If those numbers had kept pace with inflation, the 2018 damages range would be $3,230 to $129,330. Wilful infringements had a damages range of $10,000 to $50,000 ($129.330 to $646,170, adjusted) and even "innocent" infringement was pegged at $100 ($1,293, adjusted)

The current figures for damages in 17 USC 504 were laid down in 1999 so it's fair to say that we may see them being revised in the near future so as to factor for inflation and other variables. Let's see how that would pan out using numbers adjusted to 2018.

"Innocent" infringement minimum damages of $200 would become $300
Statutory damages range of $750 - 30,000 would become $1,135 to $45,300
Willful damages cap of $150,000 would become $226,900

Prior to the 1999 adjustments, the damages scale was last modified in 1988... so I'd say it's likely going to be revised again any day now, and wouldn't be surprised if revisions are announced and put into effect before 2020. I can easily see the statutory damages range becoming $1,500 to $50,000 and willful infringement becoming capped at $250,000.

I'd also bet that the 'innocent' infringement minimum will move closer to $500 than the inflation-adjusted $300. Before Napster burst onto the scene in June of 1999, discussions about copyright and infringement were really not part of the public consciousness, so the ability to argue innocence in an alleged infringing act was (in my opinion) much higher than it is today, and laws are always written with deterrence in mind.

same tree, different photographer, different angle, different settings, different pricing, different quality...

You're not kidding. I got a bit of a headache looking at the iStock shot, being that the framing/composition felt very cramped an overly busy. It also (on my screen) looked like the iStock preview image was very low quality compared to the Getty RM image preview.

I meant pic on the internet that's been sold for that much.  Not some antique photo

You're asking something to be proven that would likely be private information between the seller and buyer - you know, client confidentiality?

Getty, iStock and most all other agencies which have public-facing sales portals are almost always about volume licensing; they have clients who have a large demand for new images every day or week, and they pay a prearranged fee to these agencies in return for a fixed number of images per day/week/month.

The high-end licenses usually happen between buyers and photographers directly, or via the photographer's agents.  Here's a good example of how having an agent - even temporarily - can yield a four-figure fee for just three images.

On a personal note only, I routinely license my works for high-three to mid-four-figure sums. My largest single invoice was for two photographs that were used by a secondary ticketing company, and that was just under €8,950 at the time (about $10,300). Granted, this was a long-term nonexclusive license for use across all eight of their European websites, so that played a part in the fee being so high. I don't have an agent (yet) so I handle all licensing queries myself, but I can see a point not far off in the future where it may be beneficial to have an agent representing me.

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