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Author Topic: Copyright, Designs and Patents Act 1988  (Read 8010 times)

Bill-McRae

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Copyright, Designs and Patents Act 1988
« on: April 23, 2013, 02:29:25 PM »
I'm surprised this hasn't been mentioned before (sorry if it has and I've missed it).

This is section 97 of the Act

Provisions as to damages in infringement action.

(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—
(a)the flagrancy of the infringement, and
(b)any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require.

http://www.legislation.gov.uk/ukpga/1988/48/section/97

Couch_Potato

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Re: Copyright, Designs and Patents Act 1988
« Reply #1 on: April 24, 2013, 04:35:15 AM »
Yes, this has been quoted many times. Ignorance of the law is usually no defence however it would also depend on the circumstances.

If you took an image from google, however innocently I would always make an offer, because you obviously infringed.

If you paid a third party to design the site and they used images I think you may be able to argue that you have innocently infringed regardless of what Getty tells you in their letters because you acted in good faith at all times.

Ultimately what Getty hope is that you are insured under either PI cover if you are a business or some home insurance policies have add ons to cover legal action and they pay up in a settlement, or you pay up yourself.

If they really cared about protecting copyright why not join with others in the same industry and launch a campaign to educate people. That is what the movie industry did to great effect.

Bill-McRae

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Re: Copyright, Designs and Patents Act 1988
« Reply #2 on: April 24, 2013, 10:46:34 AM »
I got mine from a website offering free stock images and pointing this out to Getty along with the law, seems to have stopped them in their tracks.  In case that's not enough, I have also identified the image on countless websites, several of which are offering it for free download.  This would arguably show that I was not being ignorant of licensing, but instead was well informed (albeit incorrectly) that the image was license free.

Getty's only recourse would be to demonstrate that I've made commercial gain from the use of the image, which I very much doubt they would be able to prove.  Another point is that they were billing me for over £900, but if I'd purchased the image from them it would have only been £550.  Frankly I'm surprised that companies like Getty exist when images of an equal quality can be licensed from istockphoto for a fraction of the price.


Couch_Potato

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Re: Copyright, Designs and Patents Act 1988
« Reply #3 on: April 24, 2013, 11:18:44 AM »
Companies like Getty exist because they do licence some pretty rare photos, usually of famous people or of certain sporting events where good pictures are very hard to find and you can expect to pay appropriately.

However there is another side of these companies whereby they place photos, which look like standard stock photos that should have a royalty free licence in their rights managed section and charge amounts they would never be able to get because similar images can be bought for pounds with no restrictions on other sites.

I've often wondered if they move images from royalty free to rights managed when they detect an infringement because there is always a delay of around 6 months between them detecting an infringement and actually contacting companies. Honestly, it wouldn't surprise me although I have no evidence of this practise.

I'm not sure of your particular exchange with Getty but unless they have informed you they are dropping the case do not be surprised by long periods before hearing from them again, or more likely, hearing from one of their claims chasers.

stinger

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Re: Copyright, Designs and Patents Act 1988
« Reply #4 on: April 24, 2013, 02:51:20 PM »
Couch_potato, I share your suspicion.

DavidVGoliath

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Re: Copyright, Designs and Patents Act 1988
« Reply #5 on: April 24, 2013, 04:30:33 PM »
I've often wondered if they move images from royalty free to rights managed when they detect an infringement because there is always a delay of around 6 months between them detecting an infringement and actually contacting companies. Honestly, it wouldn't surprise me although I have no evidence of this practise.

I've worked for Getty as an editorial photographer as both a stringer and contributor, so please take the following opinion with the caveat that I have never supplied "stock" images to them.

Shifting a photograph from RF to RM pricing models would, at best, be a very messy affair; the key reason behind this would be because it would necessitate a change in the contract with the photographer / collection: it's generally up to the contributing photographer to decide whether they want their shots to be offered as RF or RM in the first instance and their contract with Getty would reflect this.

Consider this other point: people seeking RM images are usually on the look-out for something they simply cant get from RF 'stock' shots - and quite possibly they'll be looking for some sort of exclusivity along with it. It would make no sense for Getty (or any library) to shift an image from RF to RM unless it had no known uses and the client was seeking exclusivity.

Just my €0.02 worth.

DavidVGoliath

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Re: Copyright, Designs and Patents Act 1988
« Reply #6 on: April 24, 2013, 05:06:53 PM »
Quote from: Bill-McRae
I got mine from a website offering free stock images and pointing this out to Getty along with the law, seems to have stopped them in their tracks.  In case that's not enough, I have also identified the image on countless websites, several of which are offering it for free download.  This would arguably show that I was not being ignorant of licensing, but instead was well informed (albeit incorrectly) that the image was license free.

Bill, what you've likely done is point Getty towards a "bigger fish" for them to fry. Also, if your actions were exactly as described (and you have a paper trail to back it up) then it may not be in Getty's interests to pursue you, though I qualify that statement with the usual I Am Not A Lawyer rider

Quote from: Bill-McRae
Getty's only recourse would be to demonstrate that I've made commercial gain from the use of the image, which I very much doubt they would be able to prove.

This is one section where the majority of people really get the wrong end of the stick; I've lost count of the number of times that people claim that they haven't "profited" from the use of my work whenever they've gone and appropriated it from the websites of my paying clients.

The way that photographers like me view it is this: the infringer has profited because they bypassed the legitimate licensing system e.g. they didn't come to me to license the image. This causes immediate actual damages via the 'lost' license fee ergo, that's the 'profit' part... by not having to pay the fee for legitimate use, they've profited by at least that amount.

I've ran into websites that make regular use of dozens - if not hundreds - of unlicensed images. Some of these sites are owned by corporations with turnovers of six or seven figures. Imagine how less profitable their business' would be if they'd had to legitimately license all of the content that they use... many simply couldn't afford to and would have to shut down but, instead, they sail on regardless and hope that they never get caught.

As a case in point: I'm currently engaged in an action against a corporation whom have used many of my photographs over a significant span of time. My attorneys and I have estimated the lost licenses alone to be in the region of €16,500.

The CEO of said company, when I first contacted them, wanted me to drop the matter for just €149, on the condition that I sign a legal release to not pursue them for any other infringements (past or future) as he had no idea how many pictures his writers had grabbed from Google Images... yeah, that's practically word-for-word what he said.

Quote from: Bill-McRae
Another point is that they were billing me for over £900, but if I'd purchased the image from them it would have only been £550.

Again, when pursuing infringers, the rightsholder can claim additional heads of damage and either lay these out in their demands or, more commonly, they multiply their license fee to account for the time and expense in tracking down the infringement and then collecting on it.

Whilst it's not a perfect analogy, it's not that far removed from what might happen to a person if they got caught shoplifting. The shopkeeper might simply ask that you put whatever you took back on their shelves, they might demand that you pay the going rate for what you've taken... or they might take civil or criminal legal actions against you (depending on the nature of the theft)

And yes, I'm well aware that infringements of digital assets do not reduce the availability of the original - but it can damn well have a significantly adverse effect on the market value... and that's what copyright laws attempt to protect.

Quote from: Bill-McRae
Frankly I'm surprised that companies like Getty exist when images of an equal quality can be licensed from istockphoto for a fraction of the price.

You can get a burger from McDonalds, Gourmet Burger Kitchen, the Malmaison or any number of other outlets of varying stature. It's all ground beef between two buns. You're within your rights to argue till the cows come home as to which is better value for money or has more 'taste' but, in a free market economy, at least you have a choice.

Please bear in mind that I'm not disputing your position, claim or anything else - I'm just offering up my own viewpoint as someone whom makes a living from licensing my own work.

stinger

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Re: Copyright, Designs and Patents Act 1988
« Reply #7 on: April 24, 2013, 05:09:28 PM »
You may very well be correct DavidVGoliath.

The reason that I share Couch_potato's suspicion may just be how easily someone looking at Getty's RF page suddenly is presented with images that are RM.  I know, it says right there on the page that they are RM.  But if you are not looking for that, and you are simply looking for images, you can be surprised.

There is nothing to overtly signal that I have left the RF page and am now shopping through RM images.  In fact, they seem to be mixed together.  I will admit that Getty's website today is far clearer at pointing some of these things out that it was in the past.  But it is still not where it should be if they truly want to be in the business of licensing images.  But it was much much worse back in 2008, and 2007, and 2006, and 2005, and before.  And they have obfuscated that fact by denying archive sites the right to archive their RF page prior to 2009.

I believe that it where the seed is planted to grow suspicions like mine and Couch_potatos.

Bill-McRae

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Re: Copyright, Designs and Patents Act 1988
« Reply #8 on: April 25, 2013, 04:36:15 AM »
DavidVGoliath, I don't think you'll find many people on this forum (me included) who would dispute your right to make a good living from your work.  The problem is more about Getty's arrogant, obnoxious attitude that appears to be more about their bottom line than it does about protecting your livelihood.

If you have experience in this field, it would be very interesting to get your opinion on how much of the money being billed in these letters actually goes to the original photographer.  Is the original photographer even informed of these actions?

Couch_Potato

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Re: Copyright, Designs and Patents Act 1988
« Reply #9 on: April 25, 2013, 04:44:17 AM »
I've often wondered if they move images from royalty free to rights managed when they detect an infringement because there is always a delay of around 6 months between them detecting an infringement and actually contacting companies. Honestly, it wouldn't surprise me although I have no evidence of this practise.

I've worked for Getty as an editorial photographer as both a stringer and contributor, so please take the following opinion with the caveat that I have never supplied "stock" images to them.

Shifting a photograph from RF to RM pricing models would, at best, be a very messy affair; the key reason behind this would be because it would necessitate a change in the contract with the photographer / collection: it's generally up to the contributing photographer to decide whether they want their shots to be offered as RF or RM in the first instance and their contract with Getty would reflect this.

Consider this other point: people seeking RM images are usually on the look-out for something they simply cant get from RF 'stock' shots - and quite possibly they'll be looking for some sort of exclusivity along with it. It would make no sense for Getty (or any library) to shift an image from RF to RM unless it had no known uses and the client was seeking exclusivity.

Just my €0.02 worth.

http://prophotocoalition.com/tdonaldsonppc/story/getty_really_makes_me_mad/

Getty absolutely can move images between licences although there are some terms for them to do it.

I would be willing to bet that nobody pays their standard RM price for the images Getty pursue with the letter programme.

Go on the getty site to their rights managed section and look how many of those images are generic that you can get almost identical copies of under a royalty free licence.

I would also be willing to bet that nobody uses those rights managed photos exclusively. They just aren't unique enough.

As I stated before there are a lot of images on the Getty site that are legitimately unique and you can expect to pay appropriately for their use. No issue there.

I do feel a little for photographers because I also work in an industry where there is currently a big focus on price and there is a worry of a race to the bottom. However, you have to see where you add value and price accordingly. Taking yet more pictures of dudes in suits shaking hands and thinking they are worth hundreds of pounds to licence is going to fail as a business model.

DavidVGoliath

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Re: Copyright, Designs and Patents Act 1988
« Reply #10 on: April 29, 2013, 09:09:26 AM »
Quote from: Couch_Potato
http://prophotocoalition.com/tdonaldsonppc/story/getty_really_makes_me_mad/

Getty absolutely can move images between licences although there are some terms for them to do it.

I'd heard about this possible change in the terms two years ago; as I'd only ever supplied editorial content (which is RM by default) the proposed changes made no difference to me. I'm going to check if these proposals were every enacted - might be some time before I can dig up the info and report back.

Quote from: Couch_Potato
I do feel a little for photographers because I also work in an industry where there is currently a big focus on price and there is a worry of a race to the bottom. However, you have to see where you add value and price accordingly. Taking yet more pictures of dudes in suits shaking hands and thinking they are worth hundreds of pounds to licence is going to fail as a business model.

You're not kidding. Since cameras went digital, it's become easier for people to create their own photographs and offer them up for use (paid or otherwise). Great content will always rise to the top, but the sea of mediocrity keeps on expanding... and there's always an army of fresh-faced hopeful new shooters to replace those whom bow out when they realise making a living isn't as easy as they'd hoped it would be.

Bill-McRae

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Re: Copyright, Designs and Patents Act 1988
« Reply #11 on: May 07, 2013, 06:26:02 PM »
Hi David

What I'd say to you is that maybe it's about time this industry moved into the 21st Century in the same way that iTunes has revolutionised music downloads.  Getty et al still act like the purveyors of some sacred stone and instead of embracing the new digital world, they fight against it.  The fact that they cling to outdated models does nothing to benefit honest people like yourself...as can be seen in this forum's post

My suggestion would be to collaborate with other photographers and create your own website(s).  You not only free yourself of other companies' commissions, but have more control over your output, plus you will find that 'small people' like me would welcome your work and gladly pay for it, because you're one of us.  To create a niche, and also profit for yourself, you make sure that your content is always fresh, so that you can accept that after a few months your images will be copied to the hilt, but people will pay for something that no one else has.

Getty can exist in their world promoting exclusive images, but how many images actually fall into that category?  The majority of us want high quality images that are representative of our brands and if the cost is reasonable, payment is not an issue.  If you create strategic partnerships with marketing companies (large and small) you can not only secure good licensing terms, but bespoke work as well.

Great content does float to the surface, but there are ways to see good, honest people profit from their work in a structure other than the one we currently have.  This is an opportunity and I do sincerely hope you take it.

DavidVGoliath

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Re: Copyright, Designs and Patents Act 1988
« Reply #12 on: May 13, 2013, 01:38:04 PM »
What I'd say to you is that maybe it's about time this industry moved into the 21st Century in the same way that iTunes has revolutionised music downloads.

Most image agencies - including Getty - are already at the iTunes Point when it comes to subscription clients... on the editorial side of the business anyways; I've seen Getty license photographs for as little as $1.00, meaning the photographer got between $0.35 ~ $0.10 as their share.

Getty et al still act like the purveyors of some sacred stone and instead of embracing the new digital world, they fight against it.  The fact that they cling to outdated models does nothing to benefit honest people like yourself...as can be seen in this forum's post

Because of the way in which copyright protects the creators / owners of a work, they are protecting a valuable asset... the fact that similar assets might be available for lower fees and/or free elsewhere doesn't mean they have to change their position.

The choice rests with the consumer: if someone needs generic stock images for their site, why not go to a microstock agency or have a look for works that are available under creative commons licensing?

My suggestion would be to collaborate with other photographers and create your own website(s).  You not only free yourself of other companies' commissions, but have more control over your output, plus you will find that 'small people' like me would welcome your work and gladly pay for it, because you're one of us.  To create a niche, and also profit for yourself, you make sure that your content is always fresh, so that you can accept that after a few months your images will be copied to the hilt, but people will pay for something that no one else has.

Photographer collectives (such as you outline above) certainly exist already - the one that springs immediately to mind is the award-winning, invitation only http://www.viiphoto.com/; another small collective whom I know about is http://www.hoganphotos.com/ Both of these agencies have specific niche markets which they serve. I'm not sure if anything similar exists for the stock photography sector - I don't shoot stock, so I wouldn't know.

As for my own site, yes: I have a site powered by PhotoShelter for just this purpose and it allows me to showcase my work, license directly from the site (just 9% going to PhotoShelter) and also acts as an image delivery mechanism for select clients.

Getty can exist in their world promoting exclusive images, but how many images actually fall into that category?

Again, I can't speak for stock images, but I've shot many an event for Getty where I've been the sole person with "inside" access on the red carpet, at parties, closed door functions and so on. You can't get much more exclusive than that.

The majority of us want high quality images that are representative of our brands and if the cost is reasonable, payment is not an issue.  If you create strategic partnerships with marketing companies (large and small) you can not only secure good licensing terms, but bespoke work as well.

The tricky point in the above is "if the cost is reasonable"; if someone really needs those high-quality images which exactly fit their brand identity, then the best thing they can do is commission a photographer to shoot for them, and that normally comes at significant cost... well, more than a good enough stock image might cost to license.

Great content does float to the surface, but there are ways to see good, honest people profit from their work in a structure other than the one we currently have.  This is an opportunity and I do sincerely hope you take it.

Yes, cream rises to the top and I firmly believe that my own work is already up there - at least based on how often my shots get ripped off and used by all and sundry, ha!

All joking aside, I have carved out my niche and work diligently to expand my reach; it's a tough slog as this means that the bulk of my time is spend doing a slew of tasks other than actually taking pictures.

By contrast, working with/for an agency frees photographers to concentrate on shooting... so the agency business model isn't going to die off anytime soon.

Couch_Potato

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Re: Copyright, Designs and Patents Act 1988
« Reply #13 on: May 14, 2013, 05:34:14 AM »

Again, I can't speak for stock images, but I've shot many an event for Getty where I've been the sole person with "inside" access on the red carpet, at parties, closed door functions and so on. You can't get much more exclusive than that.

Nobody here has an issue with those exclusive images costing a lot of money to licence. They are obviously rare and should be priced accordingly.

However, that is not really the issue with Getty on this forum. The issue is Getty are putting stock images into their rights managed section and then expecting an innocent infringer to pay more than the image is actually worth by pressuring them with fear of litigation.

An image of 3 people smiling around a business meeting table is not worth £500 to a small business for 3 months use on a secondary page of a website. Not even close, and in most instances the company in question hasn't sourced the images on their website. They have trusted their web designer to do it.

DavidVGoliath

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Re: Copyright, Designs and Patents Act 1988
« Reply #14 on: May 14, 2013, 06:52:00 AM »
However, that is not really the issue with Getty on this forum. The issue is Getty are putting stock images into their rights managed section and then expecting an innocent infringer to pay more than the image is actually worth by pressuring them with fear of litigation.

Whether an image (or collection) exists as either Rights Managed, Royalty Free - whilst subject to the control of an agency - is largely down to the photographer per the contract they agreed with the agency at the time of joining.

Secondly, when it comes to the value of an image, you might as well ask how long is a piece of string. The rightsholder sets the fees and terms as they see fit; if someone feels that the fee for an image is excessive, then they're certainly free to shop around for an alternative elsewhere.

My personal belief is that you don't get the luxury of arguing over the fee after you've used an image - no matter if a lower priced, similar alternative exists. It's akin to sitting down in a restaurant, ordering without looking at the menu, eating the meal and then attempting to haggle over the bill when it turns out to be way more than you thought it would - all because similar outlets on the other side of town charge far less.

(Yes, it's not a perfect analogy, but you get the point)

An image of 3 people smiling around a business meeting table is not worth £500 to a small business for 3 months use on a secondary page of a website. Not even close, and in most instances the company in question hasn't sourced the images on their website. They have trusted their web designer to do it.

Whilst I agree that most small businesses would not license a single photograph for a three figure sum (especially where the subject matter of the photograph might be generic, easily replicated or have similar alternatives available elsewhere for a lesser fee.) the company should have gotten a contract with the web design firm whereby they would be indemnified and held harmless for any legal claims arising from the acceptance of the work done by the design firm for them... absent such contractual protections, the company would be exposed to the risks and liabilities that operating solely on a trust basis can bring to their door.

 

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