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Author Topic: Getty in the UK  (Read 22804 times)

Robert Krausankas (BuddhaPi)

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Re: Getty in the UK
« Reply #15 on: March 05, 2012, 09:44:29 AM »
It's one thing to admit the image was used, they have a screen capture showing this, it's another thing to openly admit where said image came from, there are some good threads here, with letters admitting to using the image, but not admitting any wrongdoing at the same time.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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Khan

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Re: Getty in the UK
« Reply #16 on: March 05, 2012, 09:57:22 AM »
That is what I wanted to say : Do not admit any wrong doing  ;)

SoylentGreen

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Re: Getty in the UK
« Reply #17 on: March 05, 2012, 10:26:29 AM »
Just a few comments.

While Getty may be actively registering some of its images, I think that there's a roadblock to this process in many cases (besides the financials and time involved).
Getty doesn't want to pay the artists any more than it absolutely has to.
If an artist is approached about transferring "exclusive rights" upon Getty, the artist will definitely want quite a bit more compensation for that privilege.  That's the hurdle.

Getty recently tested the court system.  In "Getty vs Advernet" in the US, Getty lost even though the defendant didn't show up for court.
That's as weak as it gets.  That's how bad things are for stock photo industry.

Some have reiterated here that "admitting the offence" is dangerous.  I tend to agree.
In most cases, it's best not to ignore the letters, etc.  However, going completely in the opposite direction and giving your adversary everything they need to fleece you is ill advised.
One may remove the offending image as a precaution, and may even offer a settlement without admitting any "guilt".

Sure, the concept of "ignorance of the law is no excuse" is fairly universal.
This sort of thinking harkens back to the old concept of "no matter what, you've infringed", which I mentioned in a previous post in this thread.
If you think this way, you really need professional legal advice, because in most cases, no infringement has been made against the actual owner of the image (assuming that there is one).
One should quietly recognize the fact that "ignorance of the law is no excuse", while saying as little as possible in order to mitigate any damages.

Let the likes of Getty prove their case, don't do their work for them.  Being too cooperative may get a "thanks for your honesty" response, but it could also cost you in a big way.

It's always bothered me when people want to be too cooperative with companies like Getty.
They're not your friends.  They don't want a "fair price" from you; they want as much as they can possibly get.  By assisting them, you'll pay much more (possibly even have to hire a lawyer).
They won't provide any proof that might assist you with your side of the argument.

I want to wrap up by saying that trying to keep a sense of "goodwill" with your adversary has some advantages.
I do, however, feel that it's a bit overrated, as it doesn't change the material facts of an alleged case of infringement, and it can play into the hands of the stock image company/photographer.

S.G.


Nodge

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Re: Getty in the UK
« Reply #18 on: March 05, 2012, 11:49:15 AM »
I'm with buddhapi as well. You can't admit an offence until you know that you have committed one. You may well have copied images without checking but you don't know if this was an offence until such time as Getty provide the relevent proof. So your 3 points need to be in the order a), c), b)

Khan

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Re: Getty in the UK
« Reply #19 on: March 05, 2012, 11:53:55 AM »
Just for to show goodwil  8):

Sufi Proverb:

Pick up a bee from kindness, and lern the limitations of kindness.

Tacitus:
Men are more ready to repay an injury than a benefit, because gratidude is a burden and revenge a pleasure.

nixlyn1

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Re: Getty in the UK
« Reply #20 on: March 05, 2012, 03:33:37 PM »
Just got in and saw the responses.

I must check my postings a little more carefully prior to posting - the points were not necessarily in any particular order!
In letters that have been sent by me and others It has been stated that Getty must provide proof of ownership or the rights to sell the image. This is not the full legal blurb obviously.

However, it is true to say that I have put in writing that should they provide this evidence then I will pay and made an open offer to this extent based on the general cost of similar images available for stock libraries.

This is an appropriate tactic under UK Law!

Sooner or later Getty will start providing this evidence and then where will you be?
You can deny everything until the cows come home but you really have to think beyond that point.
Once you are in a courtroom having said, up until that point, that they have evidence which they now produce you can complain bitterly but you have not addressed the point about damages and the real costs/value of the photographs.
I don't know about the US but in the UK courts tend towards looking at the credibility of the prosecution and the accused. This can play a major part in determining damages and costs.
If a case is presented in the right way right from the beginning then the chances of success are much higher.
For people who have not addressed the letters properly or ignored them completely then the chances are that Getty/Solicitor will be awarded much more money than would otherwise be the case. By accepting that you don't know the origin of the images and are willing to pay something if the owner provides proof of ownership it makes you look much more honest and credible.

This is my own point of view but the legal tactics employed by copyrightinfringement.org.uk are not dissimilar. They are however properly worded!

Robert Krausankas (BuddhaPi)

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Re: Getty in the UK
« Reply #21 on: March 05, 2012, 03:56:37 PM »
"Sooner or later Getty will start providing this evidence"

You also have to remember that from what we understand the vast majority of Getty's images are NOT registered, hence they cannot provide this evidence.. Go look at the Advernet case, where the defendant didn't even show up in court, Getty still lost on several points... one big on e being:

"Wojtczak testified that the Getty Images Contributor Agreement did “not have signatures. It is a digitally accepted agreement. The contributor signed via our online contributor contract portal.” The following ensued:

THE COURT: And where, if anywhere, does a representative form Getty execute, sign the document, digitally or otherwise?

THE WITNESS: You know, I'm not entirely familiar with where in the process that happens"

so not only are most images not registered, they evidently don't even have contracts signed by both party's to enforce anything!

A contract MUST be signed by both parties, so if the photogrpaher, "digitally signs" upon sign-up / registration, Getty must also sign something as well, or the contract is null and void
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Khan

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Re: Getty in the UK
« Reply #22 on: March 05, 2012, 04:07:31 PM »
Speaking about the judge:
Look at the Advernet case. That is the company you are dealing with (it is not the BBC). They have a bad track record not you. They want your money. Do not be worried about the judge. Gather enough evidence which show why you (and everybody else should too) distrust Getty regarding their allegations. You do not have to believe somebody who has a track record of lying.

Matthew Chan

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Re: Getty in the UK
« Reply #23 on: March 05, 2012, 04:14:31 PM »
For what it's worth, Oscar frequently uses what they call an "affirmative defense" for his clients. I used an affirmative defense (through my own actions) in my case. Most people who respond to extortion letters (through their actions) use an affirmative defense.

From Wikipedia:

"in an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense. [2] Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability"

Just because you admit to infringement does not suddenly mean, you owe $150,000 and legal fees as the extortion lawyers might have you believe. You admit to one point and you move on.

Before I make my next statement, let me preface this by saying I have been to court several times and testified UNDER OATH in different cases.  Let me tell you that if I was standing before a judge UNDER OATH, I am NOT going to stand there and fight the claim that the image was on my website when the screen shot makes it clear otherwise. The reason why is because judges and juries are human beings. They won't be as sympathetic to the person who is burning up the court's time over little matters such as proving your identity, your website, who did it, etc. If you fight these small points, it could be viewed as stone-walling which would paint you in a negative light once they get to the damages part. 

It's difficult to credibly and simultaneously plead innocent infringement because your website developer made a mistake while you are standing there making the opposing side prove the screen shot may not be valid one at all. You also cannot "credibly" claim copyright registration issues, market value, and all the other talking points that have been brought up over the years on these forums without "giving to the other side" that the image in question was on your website to begin with. It makes no sense, defies common sense, and lacks credibility.

I very much understand the notion of "making them fight every step of the way and not give them anything." Believe me, I do. But as a practical matter, you may hurt your case more than help it if you don't view it in the larger context. There comes a point where it defies common sense.  You simply anger everyone (including the judge and jury) by burning up everyone's time over a small point. If you hired a lawyer, do you really want to spend an expensive hour of his time trying to disprove the image was on your website at all when the screen shot has been provided? I suppose if you have a strong case where the screen shot was blurred and unclear, you can make a case for it. But most screen shots I have seen, it would be difficult to do so. Remember, if you are a defendant, there is a good chance you will have to testify under oath.

Last year I received a notice in the mail to pay $4 for running a toll in Florida.  However, the problem was I was nowhere near Florida at the time the night image was captured of my supposed license plate.  I looked at the image very hard, blew it up, and everything I could to see it. I looked at the rear fender and the trunk surrounding the license plate and compared it to the rear view of my own car.  They did not match. I called the agency and told them I was not in Florida at the time the image was captured, the image was unclear, and the rear view didn't match my car. The woman admitted the image seemed unclear and it was dark. She consulted with a co-worker and concluded that they agreed with me. They sent the toll notice to the wrong owner of the registration plate.  I could have paid the $4 to make it go away but it really bugged me to do that since I knew it was not my car. There was an error in the system and I knew it. I stood up for myself and said it wasn't me.  I was NOT exercising an affirmative defense.  It wasn't me! I was rightfully denying the entire event.

So, there is a place for entire denial.  However, is someone really going to, under oath, say "no, that screenshot is not my website"? I would say that most people won't and then you move to the mitigating circumstances, the affirmative defense, the circumstances surrounding the incident (innocent infringement), valid copyright registration, length of infringement, market value, actual damages, etc.

I would say that for most people, it will be difficult to deny to anyone (a judge for that matter) that the screen shot was NOT your website. You can fight that fight if you want but, in my view, that is a losing fight wasting time taking your credibility away.

Credibility absolutely matters in a courtroom. If you are in denial about EVERYTHING, without substantial evidence to the contrary, you lose credibility. Providing an affirmative defense is what Oscar often does for his clients to minimize the hit to the legal fees. He says, "Ok, my client admits infringed on these 2 images. Can we please move the argument forward to the damages portion?" I subscribe to an affirmative defense approach and that is mostly what I advise. Most people, including newbies, by their own actions use affirmative defenses (even though they are not familiar with the term).

An affirmative defense does not automatically mean they get any kind of meaningful damages. I know some of you will still disagree no matter what and that is your choice. You believe that they should work for every little piece but I would question how much practical experience you have in a courtroom under oath testifying for yourself or pay legal fees when the clock is running.  I believe you have to pick and choose your battles here.

The moral of my story is, for most people, I recommend an affirmative defense. It will paint you in a more credible and sympathetic light.
« Last Edit: March 05, 2012, 04:24:37 PM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

nixlyn1

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Re: Getty in the UK
« Reply #24 on: March 05, 2012, 04:32:06 PM »
Hi Matthew

I just finished writing a long response and then your new one popped up before posting. I had actually written something with the same basic principle as you. However, you made the case in a more effective way.

I totally agree denial is not the way to go if you want to appear credible!

SoylentGreen

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Re: Getty in the UK
« Reply #25 on: March 05, 2012, 04:57:43 PM »
"Sooner or later Getty will start providing this evidence and then where will you be?
You can deny everything until the cows come home but you really have to think beyond that point."

One needn't speculate and gamble on what evidence they (Getty) may or may not have.
Because, they'd have to submit their evidence before a court foray.  Such evidence can be examined well before a court date.
They cannot just arrive on court day with "surprise" evidence.

If they cannot provide compelling evidence, then it's worth fighting them; in fact they might even back off before court.
But, if they have in fact registered the image(s) in question, and the one cannot "win", then a reasonable settlement could be made.

So, let's just cool it with the made-up bullshit.

S.G.
« Last Edit: March 05, 2012, 06:42:45 PM by Matthew Chan »

Khan

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Re: Getty in the UK
« Reply #26 on: March 05, 2012, 05:30:06 PM »
Dear Matthew
Just to understand you correctly: Do you suggest that if you can get the pictures elsewhere (and you have the proof) to go for the affirmative defense. I think then they have no case even if you got the picture from the internet.
In my case I have the proof that I can buy the photo directly from the photographer (and I bought it afterwards just because to proof I can buy it somewhere else). Why not asking Getty to show their exclusive contract?
In my response I did not say anything about an infringement and did not admit to anything. I just asked for proof since I have got other evidence.
Sorry to insist. Thank you very much for your help
Khan

P.S.

Robert Krausankas (BuddhaPi)

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Re: Getty in the UK
« Reply #27 on: March 05, 2012, 05:42:56 PM »
Khan!! See this is the thing right here in a nutshell!! Getty is trying to tell you they own the image, and you owe them money, but you just bought the same exact image from the artist himself. I highly doubt Getty has an exclusive license for this image, and they also have no way to prove where it came from or where it was purchased..in oither words if they were to go to court, they would have no case...which is part of the reason they file very few lawsuits..they know they have nothing to go on and are hoping the scare tactics work..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

nixlyn1

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Re: Getty in the UK
« Reply #28 on: March 05, 2012, 05:54:50 PM »
Hi Soylent Green

In one of my first posts on this site I said that I wouldn't have a forum on the UK site because things start going round in circles and posters start abusing each other.

I think that you have just proved my point!

I have a point of view which maybe correct or incorrect. The same applies to you. It is not made up and whilst what you say about evidence being available pre-trial is absolutely correct I think we do need to speculate about what Getty might do and try and defend against it. Its called good planning.

By the way I love the photo of you in your hat - very cute!

SoylentGreen

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Re: Getty in the UK
« Reply #29 on: March 05, 2012, 06:16:36 PM »
Very well said.

Yeah, we've really gone back and forth on the forum a ways back about Getty having "exclusive agreements", "registrations" and "standing".
There wasn't much ever produced to that effect, and the absence of evidence was used by trolls to argue that Getty had to be paid, because they had some "ace" up their sleeve.
Turns out that it was a bluff a whole time.  Oscar did mention something in the past about the "Stone Collection" being registered.
But I just feel like the ship has long ago sailed on the whole "Getty has strong legal standing", and "they don't have to tell you anything" train of thought.

The danger of paying off people in case they "have something but won't tell us" has the effect that anyone could cook up a threatening letter, send it off,
 and tell us to "pound salt" if we ask any questions.  Then we pay it out of fear.  Get ready for an epidemic of threatening letters if that's the case.

So, folks have to put up some resistance and be patient.  Because companies such as Getty have to show their their hand sooner or later.
Heck, we could probably check it out on our own if we wanted to.

S.G.

« Last Edit: March 05, 2012, 06:24:28 PM by SoylentGreen »

 

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