Messages

106

Getty Images Letter Forum / Re: Has pixsy ever taken serious legal action?

« on: May 11, 2018, 09:49:20 PM »

They, like CopyTrack, are a German company.  They only have a mailing address in the US.  My guess is there is nothing to worry about as they are not a law firm. 

If you post the name of the copyright holder, I will check Pacer and see if they ever sued anyone.

107

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 11, 2018, 12:54:32 AM »

Owner has to prove sales history. Defendant can challenge or rebut the evidence. 

How I view it does not matter much.  The law does not require that an owner always enforce their rights.  That being said, if the owner gave the image to others with the understanding they would license it for free, that would devalue the sales history and reduce the damages. 

I do think some owners like to set traps off which they can profit through enforcement.  That is just one reason people should get their own images from reputable sources. 

108

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 10, 2018, 04:25:53 PM »

Maybe I should have specified that the market price for the Mercedes was $75,000.  The point is the same.  The case law is clear.  The actual damages are based on the value of the actual work used, regardless of what value the defendant places on it or what lower price alternatives are available. 

See Oracle America, Inc. v Google, Inc. 2012 WL 44485  “to determine a work’s market value at the time of infringement, the Court should apply a hypothetical approach, i.e., what a willing buyer would have been reasonably required to pay a willing seller for the owner’s work.”    Notice, the court looks at the owner’s work, not a reasonable substitute.

So, if the photographer has sales history to support the demand amount for the photo, a court will use that to calculate damages, regardless how the defendant’s lack of appreciation or under utilization of the photo. 

It is important to note that there must be some sales history for the owner’s image or work, the court will not enforce arbitrary or fabricated prices. 

I am not an expert on Schwabel, but my quick look lead me to believe he is professional photographer.  I don’t have the inclination to dig much further.  I will take your word for it. 

109

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 10, 2018, 12:41:57 AM »

Your logic reminds me of a scene from Black Sails:

https://youtube.com/watch?v=OjAyw80RjjQ

While I get where you are coming from, the case law does not support your argument that money damages should be lowered because there are lower priced alternatives.  Think of it this way, let’s say you own a white Mercedes that sells for $75,000.  What would do you think the judge should do if a defendant who stole it and demolished it said your white Mercedes does the same thing as a $10,000 white Honda Civic, and therefore he should only pay restitution of $10,000?

Hopefully, that helps explain why if there is licensing history that supports the plaintiff’s price, the fact that you do not appreciate the difference between the plaintiff’s image and a lesser priced image will not cause a judge to reduce the award of damages. 

As far as the example you chose, I do not know Tom Schwabel, but it is pretty easy to see that he is a legitimate professional photographer and not a hack or an “extortionist,” especially if he is only asking for a couple hundred dollars for someone using his work without a license.    The guy’s photos are amazing and he travels the world to capture impressive subjects.   He is represented by three different agencies.  He also puts copyright notices his images.  Frankly, I am surprised he is only asking for a couple hundred bucks when he finds someone using them without a license.

My guess is there are unsuccessful photographers who make more on enforcement than they do on actual sales, but I disagree with the conclusion that any photographer who demands compensation for use of their images is a hobbyist or part-timer.    Many big name photographers and agencies are aggressive and even over aggressive in their efforts to collect from those who use their work without a license.   

110

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 09, 2018, 03:34:42 PM »

A Lawyer is correct for the most part.    There is a circuit split on when a plaintiff can file their copyright claim.  Some, like the 9th Circuit, hold that it is as soon the plaintiff files their request for registration.  Others, like the 2nd Circuit, hold that the plaintiff must wait until the US Copyright Office issues the registration certificate.  So, they could file a lawsuit today if they are in a some circuits; otherwise, it would be weeks or months, depending on how fast the USCRO is at issuing the registration certificate.   

Question for UnfairlyTargeted, what makes you think the photo is a “worthless” photo that has a $10 iStock equivalent?    I am not saying it is not, I am just curious if I am missing something.   

111

Getty Images Letter Forum / Re: Safe to Ignore Copytrack Threats In the US?

« on: May 09, 2018, 03:03:55 PM »

While I am sure it was not done intentionally, I believe you, Mr. Chan, completely misconstrued what I said and just put words in my mouth that I never spoke (or wrote in this instance).

So, let me reiterate or clarify.  I never called anyone ethically challenged.  Nor did I say that people should pay over inflated demands.  I actually made it clear that I was advising my client to not pay Copytrack’s inflated price which seems to be 10x the market price. 

I did say that I do believe that most businesses are ethical and that when faced with the fact that they used another businesses property, they will pay a reasonable amount to compensate the owner and to reduce the risk of being sued. 

I agree with you that nobody should pay $1,000 for a $5 image that was used on a page with 10 visits.  Faced with those facts alone, my advice would be to offer to pay $25 to $100.   That is a reasonable amount for the image and costs incurred.   At that point, there is next to no chance that an attorney would let their client clog up a federal court docket over the dispute.  Most judges are annoyed or furious when they are asked to resolve a small dispute that should have and could have been resolved without litigation

That being said, the addition of a few facts could greatly alter my recommendation.  For instance, if my client added his watermark to the image or removed meta data, which would give rise to a section 1202 violation. 

In general, I think very small or floundering businesses without assets have very little chance of being sued.  Plaintiffs attorneys in copyright cases almost always work on contingency.  They want to sue businesses or people who have assets and who can pay the judgment or settle.   While companies without assets do sometimes get sued, it is usually because the attorney was under the mistaken belief that the defendant had assets or for personal reasons.

Alright, enough on this thread for me.   I have learned what I was hoping to learn: nobody knows of any Copytrack cases leading to litigation in the US.   I will check back occasionally.

112

Getty Images Letter Forum / Re: Safe to Ignore Copytrack Threats In the US?

« on: May 01, 2018, 05:32:12 PM »

I can understand the emotion behind that suggestion, but I cannot say I agree with it in most circumstances.  There are many legitimate photographers who sue people and being on the defense on a copyright claim is not a good place to be without a license or real defense.

In this case, the creator of the image is definitely an established photographer and there is no doubt my client used the image.  So, at that point there are both ethical and strategic reasons to make some offer. 

The ethical  reason is obvious, my client used someone’s property without paying and caused them to incur some costs in enforcement, my guess this is a very small amount since Copytrack is not a law firm. 

The strategic reason is is twofold. One,  they may accept the lowball counteroffer and that reduces risk and saves time and stress. Second, if they do litigate, it looks very bad and increases the chances that a judge will award attorneys fees if the defendant made no offer to settle the claim; conversely, it also makes the Plaintiff look very bad if they are wasting court time when the defendant made a somewhat reasonable offer.   

I understand how someone who does not have ethical concerns or is not worried about being sued may wish to ignore the letters or offer nothing, but I doubt that is most people.  It is definitely not my client

113

Getty Images Letter Forum / Re: Copytrack chasing me

« on: April 28, 2018, 01:43:59 AM »

I am not sure what country you are in, but if it brings you comfort, I spent about five hours searching court records in the US for evidence of them or their clients ever filing copyright lawsuits and found none.   I am not saying don’t offer to pay something, just that you probably should not do anything out of fear of getting sued in the US.

If they were in the US, I would report them to the state bar for the unauthorized practice of law.  However, I think they are only really in Germany.

114

Getty Images Letter Forum / Re: Safe to Ignore Copytrack Threats In the US?

« on: April 28, 2018, 01:39:04 AM »

From what I have been able to find, most of their clients are from Europe.  I searched Pacer and none have ever filed a copyright lawsuit in the US.  I think there is close to a zero percent chance that this claim would result in a lawsuit.  The image is not even registered in the US, which means they would not get statutory damages or be able demand attorneys fees. 

My client would pay a fair amount for the time they used the photo and a little for the costs incurred, but Copytrack is insisting on way, way more than that.  So, they will probably just get ignored now.  Greedy bastards.

115

Getty Images Letter Forum / Safe to Ignore Copytrack Threats In the US?

« on: April 23, 2018, 12:26:39 PM »

Has anyone seen any evidence that Copytrack does more than just send demand letters?  They are not a law firm and obviously cannot file law suits.  I also could not find any evidence that the parties they are collecting for ever file lawsuits.   Has anyone seen any evidence that their claims gets escalated to a law firm or that they litigate claims?

I have a friend/client that received a letter asking for about 10 times what I think the normal licensing fee would be for the picture.  Just want to make sure it is safe to ignore Copytrack’s demands until they accept or make a reasonable offer.

Thank you for any insight.