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Author Topic: Simon Muirhead and Burton demand on behalf of Getty  (Read 15945 times)

John Walmsley

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #15 on: May 22, 2016, 02:25:30 AM »


I’m John Walmsley, a professional photographer.  I’ve been away so coming late to this.  I’ve learned that Getty have been quoting my case against Education Ltd (OISE Cambridge) in the letters they send to people who they think have infringed the copyright of images Getty represents.  Reading the bits of your discussion relevant to my case, for everyone’s sake I would like to correct some wrong presumptions/statements and provide a few more facts which you might find useful.

First, let me say I have been a self-employed photographer for over 40 years working in the education and charity areas.   I’ve never made as much as the national average income in the UK, but have survived.  About 5 years ago, I found my photos were increasingly appearing all over the world but my income had dropped to £10,000 per year, unsustainably low.  Either I had to give up and retire or fight back.

I like people to find my work useful but I also have bills to pay.  When I find someone has used my work without asking or paying, I contact them and ask for my fee.  The fees I claim are just the fees the user would have been quoted had they asked at the time.  They are not picked out of the air but are the level of fees my normal clients are used to paying.

At the beginning, I used to just ask people to remove the photos but I, and most other photographers like me, found this did not reduce the infringements.  They just carried on increasing, I think, because it told infringers that, if they infringed, they would lose nothing.  I had to start charging my normal fees so my complaints were taken seriously.  It took many weeks  of my time to learn how to deal with these infringements, how to correspond politely but firmly,  how to begin a legal case if necessary and how to present a case in court myself (I can’t afford a lawyer). 

Let me say here that I have no connection whatever with Getty and never have had, nor with any other large picture libraries.  It was a complete surprise to find them quoting one of my cases.

My approach is to be polite but firm.  All I want is to be paid, then move on.  Most of my photos are from self-started and self-funded projects.  I have not been paid to take them.  My only source of income is from fees paid when people use my work.  Having had quite a few cases (the vast majority settled without legal action), I could see a pattern emerging.  Infringers seemed to be spending considerable time and incurring significant costs by acting on insufficient or wrong information.  That almost all of them did this, seemed to benefit no-one so I wondered how it could be avoided.  We photographers could give facts to the defendants but why would defendants believe what we said.  I reckoned, if we could show what the judges have said, that would probably be accepted. 

In the Intellectual Property & Enterprise Court (IPEC) in the UK, where IP cases are heard, proceedings are recorded but no transcription is made available.  My case against Education Ltd, was my first ever case there and you are able to read the transcript only because I, personally, paid for it to be done.  I hope everyone who does read it takes it seriously because it shows how the judge applied the law on copyright.  It is the judge speaking, not me.  Also, the transcript is complete.  I have not edited it in any way.

My claim was for my normal fees plus 100% uplift because my photographer’s credit was missing, plus another uplift for flagrancy.  The judge awarded me £500 in fees.  She also  accepted that one of my trading conditions did apply, that, when the photographer’s credit is missing, the fee doubles.  The thinking behind this is that a credit can and does bring new clients to me, so is valuable.  My evidence showed that the defendant could easily have seen that I am the copyright holder of the images used.  They had copied pages from my book with my name on as the author.  They claimed this was not clear on Google but I showed several copies of the same images on the same Google page which did show I am the copyright holder.  So, the judge awarded another £500 for that.  To clarify, this was awarded because I had asserted my moral right to be identified as the author of the images (covered in the Copyright, Designs & Patents Act 1988 (CDPA)). 

I had also claimed a separate uplift for flagrancy feeling the defendant must have seen I was the copyright holder but had ignored it.  The judge did not agree and so made no award for flagrancy.  Then she did award costs against the defendant.  In the IPEC, costs are severely limited to actual court fees plus a few incidentals.  The defendant had to pay £340 in costs. 

So, in the end, the defendant had to pay me £500 in fees, £500 for denial of my moral rights (plus £200 VAT) plus £340 in costs, which I had already paid.  It’s worth noting that the Head of the school and her legal advisor travelled to London from Cambridge and spend all day on it.  I hope that has clarified the details.

Personally, I never send extortion letters, it’s not my nature.  But, I do have to be paid when people use my work so I do write to the picture users, asking how they came by my work, how long they’ve been using it and full details of all uses, so I can work out the correct fee.  All of which seems entirely proper and reasonable to me.  If any of you feel it isn’t, please, say why. 

Could I say a couple of general things here which may help all of us resolve these situations more quickly and cheaply.  If, when an infringement is clear, the picture user quickly holds up their hands and admits an unfortunate error, it can all be over so quickly.  My record is 7 days start to finish and with a good discount given.  But that almost never happens and we then have to go the difficult route, difficult for both sides.  Why a quick settlement is so rare is a mystery to me.  Except, I do know that throughout time in school and college, students are free to copy and use anything they find on the web.  Could that approach be somehow carried into working life when it really should not as it then is unlawful?

If a picture user receives a letter suggesting they’ve infringed someone’s copyright, best to take it seriously, have an open mind and, above all, check the facts.  Did the picture user publish the image without permission or not?  Before sending the letter, the photographer has almost certainly already researched and recorded what has happened.  We have learned we have to do this because, when we contact the picture user, they commonly remove the images from their website and then claim they were never there.  Personally, I doubt very much if any letters are sent unless there is clear evidence that an offence has likely been committed.  There’d be no point.  Sole traders like me really don’t have the time to spend on claims which can’t be proved.

When the copyright holder asks how long the picture user has been using the photo, best to be honest, because he probably already knows the correct answer.  If it does go to court, the picture user’s responses will be shown to the judge.  If it is clear they’ve been using the photo for 2 years but they said it was only 10 days, the judge will take note of that and it will probably count against them. 

All the photos on the web are owned by someone and they are all (with a few exceptions) copyrighted.  A few owners don’t mind others using them but most do.  One of Google’s ToS is that people agree not to make use of images without the permission of the copyright holders.  That is something many people either are not aware of or they ignore. 

The law is simple.  If a photo is used without the permission of the copyright holder, it is an offence against the CDPA.  It is that simple.   It’s open and shut.  The only way to avoid liability is to produce a valid licence issued by the copyright holder. 


Common reasons given by picture users include the following:

1.   My designer did it and he’s now left.
2.   It was on the web so must have been free to use
3.   It was not marked as being copyrighted
4.   Someone told me it was OK to use
5.   I found it on a site which said it was under a Creative Commons licence (i.e., free to use).

None of these are valid defences.  They may well show how it happened but they are not defences.  The court would ignore them all.



Many people feel that copying an image off the web is OK, everyone does it.  Maybe they do, but it is still likely to be an offence and I hope picture users can see why a photographer, struggling to pay his bills, would take action. 

What would I like?  I just think too much time, trouble, heartache and costs are wasted on these cases.  For the sake of both sides in many/most of them I think it would help if the picture user, once the facts have been established, accepted the situation, that they’d made a mistake (we all do), and agrees to pay quickly.  Personally, I always give a good discount because a quick resolution saves me so much time and trouble.  But, this happens in maybe only 2% of cases.  The remaining 98% follow a familiar and expensive pattern where, even though it’s clear the picture user did commit an offence, they then search everywhere for a way of not paying (perfectly understandable, but can be expensive).  Many employ lawyers and, at the end, have to pay the fees anyway plus all the lawyers’ fees.  It should be avoidable, shouldn’t it?

Taking a step back, why do picture users keep infringing others’ copyright?  Just my opinion but I think it’s that so many people in all walks of life put no value on photographs.  Right through their education years photos were free to use.  These days everyone has a camera and takes thousands of photos.  People pass them around on social media.  They see a good one in the paper, copy it and post it to their Facebook page or Tweet it.  But, for those of us who make our living by them, photographs are very expensive to produce and administer, they are the ‘goods’ in our ‘shop’.  They do have a significant value.  We don’t like to see them being removed from our ‘shops’ without payment.  Who would?

Enough.  I do hope you receive this in the spirit it is intended. 

Very best wishes,

John Walmsley

© John Walmsley 2016.  All rights reserved.
Member of the NUJ and the Society of Authors.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #16 on: May 23, 2016, 08:25:37 AM »
Thank you for your valuable input Mr Walmsley.

You are of course quite correct if a persons creative work is used and a copyright exists then that persons deserves payment for use of the material. Of that there is absolutely no dispute.

The problem here is Getty/LCS/Others are fishing for payment without the knowledge of the original copyright owners and where they are able to achieve a payment may or may not be passing on a percentage to that person...

In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.

This clearly is arse about face.

Getty/LCS/Others are using a well known tactic in harassing potential infringer's and those who have not infringed to 'pay up or face legal action'. This in itself may well be breaking UK law. (Untested at this time)

Two wrongs do not make a right.....

I did read the transcript of your case http://www.turin-ip.com/course-documents/documents-2007/2013-edition/copyright/walmsley-v-education-ltd-in-wl-2014-2194626 and found it unusual in that the copyright material was first placed in a printed publication before being copied to the 'internet'. It also related to copy and was not confined to photographic material.

Clearly this influenced the outcome and good luck to you, clearly the defendant should have folded earlier but in any event it made a goods test case as as copied from a print publication it was obvious it was protected material. (all if not all print publications contain the usual copyright disclaimers)

Getty/LCS/Others are pursuing people for large sums of money (not in the slightest related to the actual loss incurred) for the honest error of people unknowingly breaching copyright in the using of photographs of the internet.

There is a fine borderline between the honest capture of fees and a scam. To claim fees without the original copyright holders knowledge or permission probably puts this in the latter category. Which magazine as posted elsewhere on  this forum would also seem to agree.

John Walmsley

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #17 on: May 24, 2016, 05:09:38 AM »
Thanks, 'geezer123'.

You said,
The problem here is Getty/LCS/Others are fishing for payment without the knowledge of the original copyright owners and where they are able to achieve a payment may or may not be passing on a percentage to that person...

Do you know of cases where Getty/LCS/Others have asked for payment from a picture user where the copyright holder has no contract with Getty?  Which cases?  Please specify.  I have no connection with Getty but do know the contracts between photographers and their agencies allow the agencies to pursue possible infringements on behalf of the photographers.  The photographers probably are not informed when this happens and there is no need for the agencies to tell them as it is already covered in the contracts.

You said,
In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.

How could you know this?  You would need to have access to Getty's own records to know this, wouldn't you? 

I really do want to understand what's been going on.  I wonder, why would Getty contact someone out of the blue?  If that person has not made use of a Getty photo, then there's no case to answer.  If they have, it should be relatively easy to establish if a licence was requested and granted as there would be a trail of correspondence and payment, wouldn't there?  If Getty has found one of their photos being used by that person and Getty can find no record of a request for a licence or payment, then Getty would contact that person.  This all seems fair and, from the first line of your post, you seem to agree with this (hope I have not misunderstood).

Asking that person to produce a licence seems to me a sensible question which could save both sides time.  As a one-man-band myself, this is the first question I ask because I know my records may not be complete and I may have granted a licence to that person but lost that record.  It can happen.  My own experience of this over 100 cases is that not once has the picture user been able to produce a licence (so, maybe, my records are not that bad).
« Last Edit: June 12, 2016, 12:53:29 PM by Matthew Chan »

stinger

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #18 on: May 24, 2016, 08:57:12 AM »
There are examples on this blog where Getty is alleged to have tried to collect royalties on images taken by NASA, which are public domain.

geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #19 on: May 25, 2016, 08:20:11 AM »
Thanks, 'geezer123'.

You said,
The problem here is Getty/LCS/Others are fishing for payment without the knowledge of the original copyright owners and where they are able to achieve a payment may or may not be passing on a percentage to that person...

Do you know of cases where Getty/LCS/Others have asked for payment from a picture user where the copyright holder has no contract with Getty?  Which cases?  Please specify.  I have no connection with Getty but do know the contracts between photographers and their agencies allow the agencies to pursue possible infringements on behalf of the photographers.  The photographers probably are not informed when this happens and there is no need for the agencies to tell them as it is already covered in the contracts.

You said,
In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.

How could you know this?  You would need to have access to Getty's own records to know this, wouldn't you? 

I really do want to understand what's been going on.  I wonder, why would Getty contact someone out of the blue?  If that person has not made use of a Getty photo, then there's no case to answer.  If they have, it should be relatively easy to establish if a licence was requested and granted as there would be a trail of correspondence and payment, wouldn't there?  If Getty has found one of their photos being used by that person and Getty can find no record of a request for a licence or payment, then Getty would contact that person.  This all seems fair and, from the first line of your post, you seem to agree with this (hope I have not misunderstood).

Asking that person to produce a licence seems to me a sensible question which could save both sides time.  As a one-man-band myself, this is the first question I ask because I know my records may not be complete and I may have granted a licence to that person but lost that record.  It can happen.  My own experience of this over 100 cases is that not once has the picture user been able to produce a licence (so, maybe, my records are not that bad).

In which case you should keep proper records should you not?

You Getty/LCS or otherwise are attempting to prove copyright has been infringed. If they are so unsure that they have to ask for 'proof of use' then they are clearly fishing.

The letters should be framed 'you have infringed copyright and we seek reasonable damages and costs' not a request for the alleged infringer to produce proof of use.

Not a very professional business tactic I must say. If you are to accuse others of wrongdoing then you must be sure of the ground you stand on. By implication no one is under any obligation to do anything prior to a civil case being pursued into the courts.

I for one would not produce a licence without a summons and then I would only show it to the judge along with a complaint of vexatious litigation and request appropriate damages for the inconvenience.

In such a scenario the judge look very dimly at the complainant as not having correct business records and for bringing such a case before the court on a 'hunch'.
I would also expect that same judge who view vexations complaints very seriously to be very sympathetic towards an out of pocket costs claim against the complainant.
« Last Edit: May 25, 2016, 09:31:26 AM by geezer123 »

Robert Krausankas (BuddhaPi)

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #20 on: May 25, 2016, 07:02:03 PM »
I'll jump in here, but first you need to know I'm in the states and not familiar with UK law, I'm also fortunate ( or unfortunate) to be not only a victim of Getty's trolling tactics, but also a hobbyist photographer... Just some point about Getty Images and their scam worth considering, when looking at their track record.

1. They always provide screenshots, however this is not proof of infringement, we have seen many cases in the 5+ yrs I have been active on this forum, where images have been "linked", or brought into a web page via an rss feed.. Google v perfect10 clearly state that hotlinking is NOT infringement, yet Getty and other trolls still try to collect.

2. As stated previously, Getty has tried to collect on images in the public domain. ( shots from NASA, as well as the US Armed forces), yet they still try to collect.

3. Somewhere in the getty forum is a thread concerning Getty Images attempting to enforce copyright for one of their contributors, the letter recipient reached out directly to the photographer, who informed the recipient, that he was no longer associated with Getty, and hadn't been for some time...yet Getty tries to collect....

4. Then we have the photographer that uploads stock images to sell thru Getty, and "double dips" by also uploading those images to another stock agency....yup Getty tries to collect...remember the burden is on Getty to prove the infringement, it doesn't work the other way around.

5. To reference my case, I supplied Getty with the license agreement I received after purchasing some stock images and templates, the response from Getty was " anybody could have created this agreement, show us an invoice"...mind you I purchased the images 10 yrs prior & I had no invoice and was lucky to even find the license agreement...Getty till tried to collect and failed miserably.

6. what about folks that purchase images in good faith, but it turns out the place where they purchased the images, swiped them?? Getty doesn't care, they just want your money.

7. Why is it that Getty always stonewalls when asked for records, and or further information?? Could it be they don't have their ducks in a row?? Now is a good time to remind everyone of the case that went to Federal Court and Getty LOST, because when they presented the contract between Getty and the photographer, there seemed to be a small piece missing....the signature of the artist!!...sorry Getty contracts must be signed by both parties or it's not a contract..

just some food for thought folks...Getty wants your money, they don't care about FACTS, circumstances or their own contributors, they only care about income and keeping the "board" happy...The stock image industry is for all intents and purposes dead and gone and Getty Images among others have failed to adapt to the changing landscape.
« Last Edit: May 26, 2016, 09:02:53 AM by Robert Krausankas (BuddhaPi) »
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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John Walmsley

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #21 on: May 29, 2016, 01:50:05 PM »


‘Geezer123’ said:
In which case you should keep proper records should you not?
I agree, we should all keep good records.  My point was that I do keep good records but am human so either, I might make the odd mistake, or, without my realising it, the computer may lose data, usually when moving it from one place to another.  These things happen.  Losing data is rare but I just think it’s prudent to keep this in mind as a possibility.  In my 100 or so cases, I had complete data and full records, as far as I was aware, but could find no mention of the picture users requesting any licences or paying fees.  That meant they almost certainly didn’t have licences but, importantly, it didn’t actually guarantee it.

‘Geezer123’ said:
You Getty/LCS or otherwise are attempting to prove copyright has been infringed. If they are so unsure that they have to ask for 'proof of use' then they are clearly fishing.  The letters should be framed 'you have infringed copyright and we seek reasonable damages and costs' not a request for the alleged infringer to produce proof of use.  Not a very professional business tactic I must say. If you are to accuse others of wrongdoing then you must be sure of the ground you stand on. By implication no one is under any obligation to do anything prior to a civil case being pursued into the courts.
We copyright holders are in a lose/lose situation when it comes to the first approach.  If I ask a possible infringer to provide a copy of their licence, some respond by saying I should have come right out and accused them of infringing my IP.  If I do start by accusing them, some would say, why didn’t I just ask to see the licence before making such an accusation?  As the point of contacting them is to resolve the issue as amicably as possible, I think it’s better not to start by accusing someone of unlawful activity, just in case I’m wrong.  Much better to say there may be an issue here, could we look at it together, please?  I don’t know how Getty operates but we sole trader photographers would not bother contacting an alleged infringer until we are as sure as possible that we have a valid case and evidence which would convince the court.  It’s a time consuming business and really not worth doing unless it’s pretty open and shut.



‘Geezer123’ said:
I for one would not produce a licence without a summons and then I would only show it to the judge along with a complaint of vexatious litigation and request appropriate damages for the inconvenience.  In such a scenario the judge look very dimly at the complainant as not having correct business records and for bringing such a case before the court on a 'hunch'.
I would also expect that same judge who view vexations complaints very seriously to be very sympathetic towards an out of pocket costs claim against the complainant.


The court requires both sides to have done all they can to resolve the issues before taking legal action and does not like anyone to hold back relevant information.  If an alleged infringer has a valid licence and refuses to show it when asked, the court would take a dim view of that because it is unhelpful.  Why would you not show it?  Well, I suppose, if a big library were building a reputation for scamming and an alleged infringer wanted to ‘even things up’ a bit, then I can see that motivation.  But, otherwise, there seems no benefit to not showing it.

Geezer123, if you withheld a valid licence until you were in front of a judge, my personal experience of the court is that you could expect the judge to throw the book at you for wasting court time.  The whole point of the pre-action protocols is to lay out the method for attempting to resolve these cases and explore all avenues before court fees are incurred and certainly before the hearing.  I don’t think you are allowed to suddenly produce crucial evidence at the hearing.  That may happen on TV in criminal cases but not in civil cases at the IPEC. 

Best to look up ‘vexatious litigants’.  I don’t think it could be applied to individual cases.  There must be a series of similar actions to be seen as vexatious.

But, coming back to Getty and similar big libraries, ‘Geezer123’ said:
In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.
And I had asked how you could know that.  Many thanks to those who gave examples of a few cases.  I was unaware of those and am interested to learn about them.  But I’m still left doubting your claim here, that ‘In most if not all cases, they do not even know if …’.  How can you know this and know that it’s more than half of all cases?  OK, there are some cases which are discussed on this forum, but do they constitute more than half of all the cases Getty and others pursue?  Personally, I’d be very surprised.  What do you base the claim on, please?  If, on reflection, you feel you may have overstated the situation, it would help others if you would now say so.  That would prevent others from being tempted to rely on the claim and view it as a fact, if it is not a fact.

Let me say again, I am chipping in on this forum because I, and other one-man-band photographers, have seen a pattern where alleged infringers base their actions/defences on wrong or incomplete information and we see that costing them money tome and again.  I want to help provide some information you can check out so you know where you are, what could happen and what your realistic options are.  The actions you take are, of course, up to you.


With cases you suspect are scams, I’m not sure I’ve fully understood the situation, what the problem is.  If a picture user receives a letter alleging IP infringement, then it is up to the claimant to prove that infringement by providing evidence of it.  If the picture user did not make unauthorised use of the photo, there would be no evidence, there couldn’t be, as far as I can see.  If the claimant provides no reliable evidence, end of problem.  That’s correct, isn’t it?  But, if the claimant does provide proof of unauthorised use, then the infringer has to consider how to respond.  Is the perceived problem that big libraries keep on making claims which are not backed by evidence?  Is that the real problem, that it’s an ongoing scam on a large scale?  But, do people pay such claims when there’s no evidence?  I guess, those are the situations you see as extortion?

In all types of cases, if both sides agree there has been an infringement but cannot agree on the fees due, I see three options for the infringer.  1. Ask for a discount in exchange for quick payment, but have this conversation on a Without Prejudice basis.  2. Get  good advice on where you stand legally so you can be sure of your position.  3. Delay, obfuscate and hope it goes away (sometimes it will but I don’t think it safe to presume that means it was a scam, there can be other reasons).  Much has been written on what an infringer must pay.  The Court of Appeal ruled that, where there is a gulf between the sides on this, the IP holder’s rates are more important, as long as they can show they are normally paid at those rates. 
See: http://www.bailii.org/ew/cases/EWCA/Civ/2003/423.html (Irvine & Ors  v.  Talksport Ltd), particularly s.114. 

The judge said:
‘In my judgment, the unchallenged evidence leads ineluctably to the conclusion that TSL would in all probability have had to pay at least £25,000 in order to enable it to do lawfully that which it did unlawfully, that is to say represent by means of the image appearing on the front of the leaflet that Mr Irvine had endorsed Talk Radio.’
END.

Basically, the Appeal Court judge is saying that the defendant must pay what the claimant would normally charge, not what the defendant would normally pay or wants to pay.  By inference I think it also means the view, ‘what a willing buyer and willing seller would agree’, does not apply because this was one of those cases where there would have been no agreement.

If you think anything I say is untrue or I have misunderstood something, please tell me.

John Walmsley



geezer123

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #22 on: May 30, 2016, 04:17:37 PM »


‘Geezer123’ said:
In which case you should keep proper records should you not?
I agree, we should all keep good records.  My point was that I do keep good records but am human so either, I might make the odd mistake, or, without my realising it, the computer may lose data, usually when moving it from one place to another.  These things happen.  Losing data is rare but I just think it’s prudent to keep this in mind as a possibility.  In my 100 or so cases, I had complete data and full records, as far as I was aware, but could find no mention of the picture users requesting any licences or paying fees.  That meant they almost certainly didn’t have licences but, importantly, it didn’t actually guarantee it.

‘Geezer123’ said:
You Getty/LCS or otherwise are attempting to prove copyright has been infringed. If they are so unsure that they have to ask for 'proof of use' then they are clearly fishing.  The letters should be framed 'you have infringed copyright and we seek reasonable damages and costs' not a request for the alleged infringer to produce proof of use.  Not a very professional business tactic I must say. If you are to accuse others of wrongdoing then you must be sure of the ground you stand on. By implication no one is under any obligation to do anything prior to a civil case being pursued into the courts.
We copyright holders are in a lose/lose situation when it comes to the first approach.  If I ask a possible infringer to provide a copy of their licence, some respond by saying I should have come right out and accused them of infringing my IP.  If I do start by accusing them, some would say, why didn’t I just ask to see the licence before making such an accusation?  As the point of contacting them is to resolve the issue as amicably as possible, I think it’s better not to start by accusing someone of unlawful activity, just in case I’m wrong.  Much better to say there may be an issue here, could we look at it together, please?  I don’t know how Getty operates but we sole trader photographers would not bother contacting an alleged infringer until we are as sure as possible that we have a valid case and evidence which would convince the court.  It’s a time consuming business and really not worth doing unless it’s pretty open and shut.



‘Geezer123’ said:
I for one would not produce a licence without a summons and then I would only show it to the judge along with a complaint of vexatious litigation and request appropriate damages for the inconvenience.  In such a scenario the judge look very dimly at the complainant as not having correct business records and for bringing such a case before the court on a 'hunch'.
I would also expect that same judge who view vexations complaints very seriously to be very sympathetic towards an out of pocket costs claim against the complainant.


The court requires both sides to have done all they can to resolve the issues before taking legal action and does not like anyone to hold back relevant information.  If an alleged infringer has a valid licence and refuses to show it when asked, the court would take a dim view of that because it is unhelpful.  Why would you not show it?  Well, I suppose, if a big library were building a reputation for scamming and an alleged infringer wanted to ‘even things up’ a bit, then I can see that motivation.  But, otherwise, there seems no benefit to not showing it.

Geezer123, if you withheld a valid licence until you were in front of a judge, my personal experience of the court is that you could expect the judge to throw the book at you for wasting court time.  The whole point of the pre-action protocols is to lay out the method for attempting to resolve these cases and explore all avenues before court fees are incurred and certainly before the hearing.  I don’t think you are allowed to suddenly produce crucial evidence at the hearing.  That may happen on TV in criminal cases but not in civil cases at the IPEC. 

Best to look up ‘vexatious litigants’.  I don’t think it could be applied to individual cases.  There must be a series of similar actions to be seen as vexatious.

But, coming back to Getty and similar big libraries, ‘Geezer123’ said:
In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.
And I had asked how you could know that.  Many thanks to those who gave examples of a few cases.  I was unaware of those and am interested to learn about them.  But I’m still left doubting your claim here, that ‘In most if not all cases, they do not even know if …’.  How can you know this and know that it’s more than half of all cases?  OK, there are some cases which are discussed on this forum, but do they constitute more than half of all the cases Getty and others pursue?  Personally, I’d be very surprised.  What do you base the claim on, please?  If, on reflection, you feel you may have overstated the situation, it would help others if you would now say so.  That would prevent others from being tempted to rely on the claim and view it as a fact, if it is not a fact.

Let me say again, I am chipping in on this forum because I, and other one-man-band photographers, have seen a pattern where alleged infringers base their actions/defences on wrong or incomplete information and we see that costing them money tome and again.  I want to help provide some information you can check out so you know where you are, what could happen and what your realistic options are.  The actions you take are, of course, up to you.


With cases you suspect are scams, I’m not sure I’ve fully understood the situation, what the problem is.  If a picture user receives a letter alleging IP infringement, then it is up to the claimant to prove that infringement by providing evidence of it.  If the picture user did not make unauthorised use of the photo, there would be no evidence, there couldn’t be, as far as I can see.  If the claimant provides no reliable evidence, end of problem.  That’s correct, isn’t it?  But, if the claimant does provide proof of unauthorised use, then the infringer has to consider how to respond.  Is the perceived problem that big libraries keep on making claims which are not backed by evidence?  Is that the real problem, that it’s an ongoing scam on a large scale?  But, do people pay such claims when there’s no evidence?  I guess, those are the situations you see as extortion?

In all types of cases, if both sides agree there has been an infringement but cannot agree on the fees due, I see three options for the infringer.  1. Ask for a discount in exchange for quick payment, but have this conversation on a Without Prejudice basis.  2. Get  good advice on where you stand legally so you can be sure of your position.  3. Delay, obfuscate and hope it goes away (sometimes it will but I don’t think it safe to presume that means it was a scam, there can be other reasons).  Much has been written on what an infringer must pay.  The Court of Appeal ruled that, where there is a gulf between the sides on this, the IP holder’s rates are more important, as long as they can show they are normally paid at those rates. 
See: http://www.bailii.org/ew/cases/EWCA/Civ/2003/423.html (Irvine & Ors  v.  Talksport Ltd), particularly s.114. 

The judge said:
‘In my judgment, the unchallenged evidence leads ineluctably to the conclusion that TSL would in all probability have had to pay at least £25,000 in order to enable it to do lawfully that which it did unlawfully, that is to say represent by means of the image appearing on the front of the leaflet that Mr Irvine had endorsed Talk Radio.’
END.

Basically, the Appeal Court judge is saying that the defendant must pay what the claimant would normally charge, not what the defendant would normally pay or wants to pay.  By inference I think it also means the view, ‘what a willing buyer and willing seller would agree’, does not apply because this was one of those cases where there would have been no agreement.

If you think anything I say is untrue or I have misunderstood something, please tell me.

John Walmsley

If the claimant is sure of their grounds and that an infringement has been committed then they should pursue it to court.

The key is being  'sure of the grounds' to proceed The claimant is seeking redress or damages. The so called infringer has not asked to be brought to court the claimant has decided to take them there.
The onus is on the claimant to prove the case.

Clearly if the infringer does not have a licence and the defence consists of well I didn't know sorry ect then the judge is entitled to take a dim view of that conduct and award taking into account the intransigence of the infringer. Damages would be much more than they would otherwise have been.

On the other hand the claimant is expected to have their 'ducks in a row' and be sure of a licence or not before they proceed to court for damages. The infringer is under no obligation, to produce at any point. Clearly if they were arraigned before a court it would then be very wise to produce it.

The claimant of course is free to seek a court order demanding production of the licence  if they so wish which again would settle the matter one way or the other if granted.

The infringer is under no obligation to make the claimants job easier for them, even in civil cases the bedrock of English common law exists, innocent until proven guilty.

Clearly we have differing interpretations of the word vexatious. I have quite a bit of experience in appearing as a lay officer in employment tribunals. Experience of those situations tells me that the judges would take a poorly thought out case bad form and would not blame the party compelled to appear.

If a plaintiff is progressing a court claim they need to be sure of their case otherwise they also can be accused of wasting the courts time. The court of course would ask itself if it was deemed reasonable for the infringer to produce the licence and in normal circumstances that would certainly be the case, the trouble here is the 'reputation' that Getty/LCS/Others have attained in their attempts (and I pick my words carefully) to insist money is forked over for the so called infringements. There is reams of material available these days across the internet demonstrating the poor tactics employed so Getty have 'buggered' it up for themselves.

Just my point of view. I of course respect yours and thank you for engaging and explaining the opposite point of view. I fully support your rights to your IP at all times. If I had for example infringed (with your material) I would want to be discussing a remedy with yourselves not some bully boy stock photo company that is fishing for £££ for its own bottom line.

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #23 on: May 31, 2016, 02:31:46 PM »
Well, ‘Geezer123’, looks to me like we agree on the important issues. 

On the details, I don’t agree with what you said about producing a valid licence when asked.  Agreed, there’s no compulsion on a defendant to produce anything which damages their position.  But, producing a valid licence strengthens their position and would save them much time and trouble so, I wonder, why not produce it?  You really cannot leave it until a hearing as that would go against the protocols laid down by the court.  But I’ve said that before, so I’ll stop.  We’ll have to disagree on this.

It leaves me with a question I’ve asked before.  If a picture user receives a Getty demand for unauthorised use of a picture and the picture user knows they have not made unauthorised use of that picture, Getty would have no evidence.  If it hasn’t happened, they could not prove it did.  There would be no evidence, end of problem.  Or am I missing something?  Is the problem that, the receipt of such letters is scary and some people pay up just to be done with it?

However, if a picture user has made unauthorised use of a picture, whether by mistake or not, and receives a Getty request/demand for the fee, is the problem that they would like to find a way of not paying it?  Or, at least, not paying so much?

John Walmsley

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #24 on: June 01, 2016, 03:19:23 AM »
And then there is hot-linking of an image and the placement of it on a website at server level....

Two completely different things one is potential IP Theft the other much less clear..... Getty Ect don't differentiate between either and do not produce evidence of the background code to prove how an image was placed.

Social media is with us big time. I see images on their sites every day (twitter, facebook and others) hot linked from the likes of the BBC, Daily Mail, PA and all sorts. Some I suspect are even uploaded and placed on the social media sites. Strange that our courts are not overwhelmed with cases of the social media giants being taken through the system.

They all have dcma notices which explain all one needs to do it contact them and request removal which by and large they do.

Another example of double standards Chasing the internet naive and frightening them to pony up the funds?

A much better business model would be picscout identify potential breaches and then informing the IP holder who can then check their records and enter into a reasonable dialog with the alleged infringer.


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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #25 on: June 02, 2016, 03:09:39 AM »
Receiving a Getty letter usually causes worry and stress.  To help reduce that, one would need to establish the details and the facts.  Generalities would not help much.  It’s usually the details which matter.  Once you know the actual details, you would have a pretty good idea where you stand.

I still do not understand what the real problems are with these Getty letters and, to help me, could anyone on the forum answer the questions I posed (repeated below) in my last email, please?

It leaves me with a question I’ve asked before.  If a picture user receives a Getty demand for unauthorised use of a picture and the picture user knows they have not made unauthorised use of that picture, Getty would have no evidence.  If it hasn’t happened, they could not prove it did.  There would be no evidence, end of problem.  Or am I missing something?  Is the problem that, the receipt of such letters is scary and some people pay up just to be done with it?

However, if a picture user has made unauthorised use of a picture, whether by mistake or not, and receives a Getty request/demand for the fee, is the problem that they would like to find a way of not paying it?  Or, at least, not paying so much?




Another unanswered question (if it was answered, apologies, I missed it) was to ‘Geezer123’.
‘Geezer123’ said:
In most if not all cases they do not even know if the person alleged to have infringed holds a licence or not and part of their so called process requires the alleged transgressor to prove they have the licence.
And I had asked how you could know that.  Many thanks to those who gave examples of a few cases.  I was unaware of those and am interested to learn about them.  But I’m still left doubting your claim here, that ‘In most if not all cases, they do not even know if …’.  How can you know this and know that it’s more than half of all cases?  OK, there are some cases which are discussed on this forum, but do they constitute more than half of all the cases Getty and others pursue?  Personally, I’d be very surprised thinking, if I, as a sole proprietor of a small niche library, can have 100 cases, then Getty probably have thousands.  What do you base the claim on, please?  If, on reflection, you feel you may have overstated the situation, it would help others if you would now say so.  That would prevent others from being tempted to rely on the claim and view/repeat it as a fact, if it is not a fact.


‘Geezer123’, I won’t hound you on this and won’t ask it again but do think it would help clarify the position if you would either withdraw/amend it or, if you stand by it, tell us the details/figures you base your view on, please?  How do you know it definitely applies to ‘most, if not all, cases …’? 




‘stinger’ said,
There are examples on this blog where Getty is alleged to have tried to collect royalties on images taken by NASA, which are public domain.

Thanks, ‘Stinger’.  Its an extensive blog.  Where would I find these cases, please? 

I see NASA photos are available from NASA direct and from Getty.  NASA’s T&Cs make clear the photos are free of copyright and may be used for some uses without fee or further permission from NASA.  However, there are restrictions on the uses allowed and these are listed in their T&Cs here:
http://www.nasa.gov/multimedia/guidelines/index.html

In the cases mentioned on this forum where Getty have claimed a payment for the use of a NASA image, does anyone know any details of those uses, please?  It may be that those uses were not allowed by NASA.  I don’t know.  Does anyone?  Some uses not allowed include 1. photos showing any NASA personnel including astronauts.  2. Most commercial uses unless specific conditions are met and approval sought.  So, although it is true to say that most NASA images are copyright free, that does not mean they can be used outside of the NASA restrictions.  I’ve just written to NASA to ask about how it works, having free photos available from them and photos available for a fee from Getty.  How does that work?  How would Getty know if an alleged infringement actually came from Getty or from NASA?  To my mind, all these details matter and can be the difference between being liable or not for a picture use.  The details matter.



‘Geezer1123’ said:
Social media is with us big time. I see images on their sites every day (twitter, facebook and others) hot linked from the likes of the BBC, Daily Mail, PA and all sorts. Some I suspect are even uploaded and placed on the social media sites. Strange that our courts are not overwhelmed with cases of the social media giants being taken through the system.  They all have dcma notices which explain all one needs to do it contact them and request removal which by and large they do.

I’m told by folk more technical than me that all the social media (SM) sites are set up as mere conduits, that they provide the ‘building’ but others provide what goes on inside it, the content.  Because of that, the SM sites, themselves, are not liable.  If there is an infringement, it would be by the poster, the content provider, who can be difficult to identify and probably not worth chasing.  Also, it may be that the BBC, Daily Mail etc. have bought the rights to ‘share’ the photo and article so their appearance on SM sites is authorised.  Again, the details matter.

DCMA takedowns apply only within the USA and have no force in any other areas, I’m told.



Geezer123’ said:
A much better business model would be picscout identify potential breaches and then informing the IP holder who can then check their records and enter into a reasonable dialog with the alleged infringer.

And that is what we one-man-band photographers have been doing for 4 or 5 years now.  As well as Picscout, there are several other reputable companies doing the searching and reporting to the copyright holders for assessment.

John Walmsley


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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #26 on: June 02, 2016, 06:50:36 AM »
One only has to do a general google search on 'getty images extortion letter' to find literally dozens if not hundreds of results, this forum of course amongst them
The content is always pretty much the same, bulk sending of emails and letters alleging infringement and demanding payment or proof of licence on threat of court action. The business practice is well known and is reported across numerous sites.

In essence, pay us or prove licence or we will sue you. A very hostile opening, why should anyone want to converse with this firm, even if they have a licence?

The web results tell us almost exclusively that those who do try and speak to Getty get little mutual co-operation and that they are only ever after money.

My observation is through research of this site and many others which demonstrate the same tactics in the vast majority of cases. Very few reports though of cases actually being taken through the courts... Maybe because this is they cannot prove the persons does not have a licence? Clearly there is the case you took but that applies to a very specific detail (partly print publication) and should not be compared with IP infringement of an image.

Quote
I’m told by folk more technical than me that all the social media (SM) sites are set up as mere conduits, that they provide the ‘building’ but others provide what goes on inside it, the content.  Because of that, the SM sites, themselves, are not liable.  If there is an infringement, it would be by the poster, the content provider, who can be difficult to identify and probably not worth chasing.  Also, it may be that the BBC, Daily Mail etc. have bought the rights to ‘share’ the photo and article so their appearance on SM sites is authorised.  Again, the details matter.

Or maybe because it is the social media sites will not co-operate with getty by providing IP addresses of posters who have potentially infringed. Of course they could request a Court order under existing case law ( Norwich Pharmaceutical Order) to have the information provided and in the current climate it would probably be granted but that would cost many thousands of pounds and as this is about making money rather than enforcing a principle would not be worthwhile.
DCMA is certainly US legislation although the term is accepted this side of the pond in relation to copyright takedowns. More often these days FACT and other Organisations have sought and been granted high court orders where IPS's have been required to block assess to web sites which betray IP rights.
One was only granted last week in relation to video streaming sites where Virginmedia in the UK blocked access to putlocker and some other large scale media hosting sites.

Quote
And that is what we one-man-band photographers have been doing for 4 or 5 years now.  As well as Picscout, there are several other reputable companies doing the searching and reporting to the copyright holders for assessment.

Hopefully by adopting a reasonable approach rather than demands and threats you are able to strike up a dialog and seek a mutual resolution to the issues.

End of the day court action is still available. If anyone thinks they have been wronged then they are entitled to have the case heard by a court.

If Getty or indeed anyone thinks there IP has been infringed then they should seek redress through the these channels..






Robert Krausankas (BuddhaPi)

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #27 on: June 02, 2016, 10:44:15 AM »
It leaves me with a question I’ve asked before.  If a picture user receives a Getty demand for unauthorised use of a picture and the picture user knows they have not made unauthorized use of that picture, Getty would have no evidence.  If it hasn’t happened, they could not prove it did.  There would be no evidence, end of problem.  Or am I missing something?  Is the problem that, the receipt of such letters is scary and some people pay up just to be done with it?

I'm not sure what you're not understanding here..I'll use my own "case" as an example:

I purchased images in good faith years ago, and received the Getty letter, turns out the image in question was/is in the Getty library, however I purchased from another source, I immediately supplied Getty with the license agreement via email while I won the phone with them, they then accused me of "creating the license myself" while I was talking with them..how fucking absurd is that? They continued to hound me. I refused to pay. SOL ran out.

Getty had no evidence, yet the still wanted my money, so much so they offered me a "reduced settlement amount" of $850.00 with 3 months remaining on the Statute of Limitations.

However, if a picture user has made unauthorised use of a picture, whether by mistake or not, and receives a Getty request/demand for the fee, is the problem that they would like to find a way of not paying it?  Or, at least, not paying so much?

As stated ad nauseum on this forum ( use the search feature), it's mostly a combination in the heavy handed methods they use and the amount they demand. Over 80% of Getty library is NOT registered, or not registered properly, hence they would not be able to collect the amounts they request, if awarded a "win" in a court of law. How is it they demand 1k- 1200.00, knowing full well a judge would award the minimum of $200.00 IF they were to win?

« Last Edit: June 12, 2016, 12:56:31 PM by Matthew Chan »
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..

Robert Krausankas (BuddhaPi)

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #28 on: June 02, 2016, 10:47:52 AM »
‘stinger’ said,
There are examples on this blog where Getty is alleged to have tried to collect royalties on images taken by NASA, which are public domain.

Thanks, ‘Stinger’.  Its an extensive blog.  Where would I find these cases, please?
 

use the search feature, why should we have to do your homework for you?
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..

John Walmsley

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Re: Simon Muirhead and Burton demand on behalf of Getty
« Reply #29 on: June 06, 2016, 11:50:57 AM »
Thank you Robert Krausankas.
I’m in the UK and have no direct experience, myself, of the ins and outs of US law, though I do understand about registering photos with the US Copyright Office (mine are).  From what you’ve said, in your case, Getty had no evidence so they could not sue you.  Apologies if I have misunderstood.  And your reasonable responses to them were not treated reasonably or sensibly.  Your case is similar to so many.  It’s Getty’s approach which is the problem.

Your case is specific but the principles would apply to many others.  Where an image is available from Getty and another source, there are obvious problems.  To my mind, it’s worth looking at whether both sources actually did have the right to sell the image.  They both said they did but is this right?   I’m not and never have been with Getty but I just checked their current Contributor Contract on exclusivity.

Copied from the current Getty Contributor contract which can be viewed here:
https://contribute.gettyimages.com/olc/agreement_form/sample_agreement

‘Exclusivity’.
‘All Content submitted to Getty Images is on a Content exclusive basis.  This means that Content submitted to Getty Images and
any other content that is substantially the same (a “Similar”) may not be licensed to any third party unless Getty Images has
notified you that Content and all of its Similars have been rejected. In addition, you must submit exclusively to Getty Images any
and all Content and Similars (a ) that you have taken on assignment for or as a representative of Getty Images; (b) that you have
created acting on information, direction or access provided through Getty Images; or (c) where Getty Images is funding any of the
costs incurred in connection with creating that Content.  Additional terms apply to editorial Content, see Section  5’



I also asked a photographer who has supplied Getty for 6 years and he confirmed this exclusivity condition was in place when he joined so it does seem to have been in effect for at least the last 6 years.  That raises a question or two about who had the right to sell the image.  If it were properly placed with the source you bought from before the photographer gave it to Getty, then it’s possible/likely the photographer was not in a position to place it with Getty and any contract between them would/could be seen as invalid (Getty make agreements based on exclusivity and the photographer would not have been in a position to meet that condition, therefore, no valid contract).  On the other hand, if he gave it to Getty first under an exclusivity agreement and later also gave it to the source you bought from, then that source could not have had the right to sell it to you (they can’t sell what they don’t have) even if they thought they had.  Lots of work for the lawyers to sort that out. 

With the Statute of Limitations, I offer a word of caution.  This is what has happened in many of my cases in the UK and I wonder if it would also apply in the US?  I say this with some hesitation because I feel (some/most) UK lawyers are mistaken on this point (or are aware of it but choose to keep quiet).  I am not a lawyer, just someone who has been around the block a few times and has leaned some things on the way.  The SOL is 6 years in the UK and, I think, 3 years in the US.  Correct me if I’m wrong, please.  Under the SOL, claims can be brought up to 6 years after the event but there are important and relevant exceptions.

http://www.legislation.gov.uk/ukpga/1980/58
Section 32 the Limitation Act 1980 , provides
for postponement of limitation period in case of fraud, concealment or
mistake. As follows:-

(1) Subject to [F26subsection (3)][F26subsections (3) and (4A)] below, where
in the case of any action for which a period of limitation is prescribed by
this Act, either—
(a)the action is based upon the fraud of the defendant; or
(b)any fact relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant; or
(c)the action is for relief from the consequences of a mistake; the period of
limitation shall not begin to run until the plaintiff has discovered the
fraud, concealment or mistake (as the case may be) or could with reasonable
diligence have discovered it.
(2)For the purposes of subsection (1) above, deliberate commission of a
breach of duty in circumstances in which it is unlikely to be discovered for
some time amounts to deliberate concealment of the facts involved in that
breach of duty.


Most cases are the result of mistakes rather than fraud or deliberate concealment.  In all my cases against household name international book publishers and British government Departments, their lawyers have always claimed the SOL restricts my claims to 6 years in the UK.  My claims were for up to 20 years.  I have relied on s32.1.c saying that, as the infringing uses were the result of mistakes, ‘ … the period of limitation shall not begin to run until the plaintiff has discovered … the mistake ..’  In all my cases the lawyers have quickly dropped their defence that I was limited to the last 6 years and have paid the claims going back up to 20 years.  These are big companies with good lawyers and I do not think they would have paid the sums they did if they were sure they could rely on a limitation of 6 years.  Postponing the period of limitation for mistakes seems fair to me.  The Limitations Act 1980 is for cases where the claimant knew of an event but did not act in a timely manner.  I don’t think it was intended for cases where the claimant could not have been aware of an event. 


This leaves me wondering about the NASA pictures and I’m still waiting for a reply from NASA to my queries.  Here it’s important to know how NASA pictures can be available for free use and, at the same time, Getty can sell them, presumably, under an exclusivity condition with NASA.

Robert Krausankas said:
How is it they demand 1k- 1200.00, knowing full well a judge would award the minimum of $200.00 IF they were to win?

The amount claimed by different IP holders and their agents will vary enormously.  In the UK, the courts typically award what that claimant can show they normally charge and are paid, plus any applicable uplifts.  In my case, which Getty refer to in one of their letters, the fees for two photos were 500GBP, plus 100% for not crediting me as the copyright holder, making 1,000GBP in total.  I was also claiming 100% uplift for flagrancy on the basis it was very easy for the defendant to see early on who the photos belonged to and they had every opportunity to contact me, which they did not do.  That seemed flagrant to me but the judge disagreed.  Another judge may have agreed with me and, in that case, the award could have become 2,000 GBP.  Remember, this is without any lawyers’ fees.  What I’m getting at is it’s very easy for claims and awards to reach four figures or five, depending on the rates normally charged and the image usage details.  Photography is expensive.  My camera bodies are 4,000 GBP each.  A simple filter is 60 – 110 GBP.  If Getty would normally charge, say, 100 USD, then why would they charge more in a claim?  Possibly, 100 USD is the rate for clients who ask and pay at the right time but, because of the cost of identifying possible infringements and then contacting and chasing the picture user, they feel the rate for that use must be higher (it’s a lot more work and Getty are paying outside firms to do it).  I’ve no idea if that’s their thinking but it really wouldn’t be unreasonable. 



Stinger said
use the search feature, why should we have to do your homework for you?

Thank you ‘Stinger’.  I Googled Getty letter and looked at all 9 results on the first page.  Not one of them gave details of any cases but all gave general advice.  Each case would be different and it would be crucial to establish the details to know if Getty (or any other IP holder making a claim) might have a valid claim.  The ones I found on ELI did not give enough actual detail for me to respond to so I am grateful to Robert Krausankas for giving details of his case.




‘Geezer123’ said
My observation is through research of this site and many others which demonstrate the same tactics in the vast majority of cases. Very few reports though of cases actually being taken through the courts... Maybe because this is they cannot prove the persons does not have a licence? Clearly there is the case you took but that applies to a very specific detail (partly print publication) and should not be compared with IP infringement of an image.

Let me clarify the details of my case and confirm it was a straightforward case of infringement of my photos so it can safely be compared to others.  I was claiming fees for the unlawful publication of the photos.  I do not have and have never had any copyright in the book, even though I am the author of it.  That copyright belonged to Penguin Books.  The book was referred to because the offending site had reproduced pages from the book (including my photos) and I could show in the documents submitted prior to the hearing, that I was identified in the book as the copyright holder of the images and so it would not have been difficult for the defendant to see this.  That persuaded the judge that I was entitled to the 100% uplift for the missing credit.



I know my constant asking questions and saying I don’t fully understand some things is annoying and frustrating, for which I apologise.  The only reason I’m here is to see if I can help picture users understand the position they’re in and the options open to them when they receive a letter from Getty or any other IP holder.  As you know, I’m an IP holder, possibly the only one on this forum.  If my input can help people understand they need to establish all the specific details of their of the claim, that should save them (and we IP holders) quite a bit of time and money.  We’d all benefit.

What would I do in a picture user’s position when a Getty letter landed?  I’d check to see if I had used the photo they said in the way they said.  If I hadn’t, I’d write back asking them to provide evidence of the use claimed.  If I hadn’t used it, there could be no evidence.  If they persisted, I’d tell them I would not respond again until they did provide serious evidence that could be checked.  If I had used the photo, I’d check to see where I had obtained it and if I had a valid licence.  If I had one, I’d forward a copy to Getty.  If they continued to press their claim, I’d ask them to give their reasons in detail for pressing a claim when they could see I had a valid licence for the use.  It’s up to them to show I had infringed one of ‘their’ photos.  I would also ask to see the Getty Contributor’s contract, signed by the photographer which probably would prove they had a right to pursue it on behalf of that photographer.  If they produced that, I’d then contact the photographer to check it was genuine, current and valid.  If it was clear they did have a valid claim, I’d offer to settle quickly for a discount.  Settling quickly saves them a significant sum so I’d expect them to accept.

Essentially, I recommend you check, check and check the details.  Just because someone says something is true, doesn’t always make it so.  Many of my photos are on the web as Creative Commons free to use images.  That is totally untrue and I have not put them there.  I’ve had a case against one government department which was supplied with my photos by another government department with an assurance they were free to use them.  That was quite wrong.  The supplying government department had no right to supply them.  Enough.

John Walmsley

 

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