ExtortionLetterInfo Forums

Retired Forums => UK Getty Images Letter Forum => Topic started by: philpotts99 on April 16, 2016, 04:31:35 AM

Title: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 16, 2016, 04:31:35 AM
So it seems we have been escalated to these good people from the debt collectors. The letter runs to several pages quoting case law and ends up with asking us for £420 plus £100 legal fees. Given the original demand was for £600 I suppose this is a result!

Anyone else been chased and how serious should I take it. Looks pretty threatening. Usual methods 7 days to pay otherwise proceedings may be taken.

The letter is signed off by a trainee solicitor who is a real person as she is profiled on their website.

Case law quoted

Alec Saville v Redrup Publications

John Walmsley v education Ltd

Henderson v all around the world recordings

We cannot argue we did not use the image as we did but it was up for less than a week when we realised the mistake but these cases seem horror stories designed to scare the xxxx out of you.

Any views?

the letter, by the way, runs to 21 pages :-X



Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: stinger on April 16, 2016, 01:49:44 PM
Educate yourself on this web site.  Lots of people have been through what you are going through.  Get familiar.  Decide whether you want to fight or pay.  In the U.S., the law firm that came after me (mis) quoted lots of case law too.  I didn't want to pay the $50,000 that they wanted for forty some violations.  I didn't.  Only you can decide for yourself.  But get educated first.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 16, 2016, 02:56:11 PM
Have you responded to them in anyway? Do they have your real name and some sort of idea if you are ready to settle....

As to the 3 cases they have quoted...... Firstly they have not brought any of the cases. I would have thought to have full frighteners effect, from their point of view it would be most beneficial if they were mentioned as the 'claimant'.

Alec Saville v Redrup Publications
http://www.thisisthewestcountry.co.uk/news/10926534.Copyright_breach_puts_Redrup_Publications_out_of_business/

Quote
A COMPANY boss went out of business after landing a huge bill for breaching copyrights belonging to a firm he once owned.

Jon Redrup put Redrup Publications into voluntary liquidation after a judge ordered his company to pay over £55,000 with the threat of an even bigger payout looming.

The judge ruled in the High Court that Mr Redrup reproduced large chunks of training manuals for care home staff from publications produced by Norton Fitzwarren-based Redcrier Publications, which he owned before selling it to Alec Seville.

Mr Recorder Alastair Wilson QC ordered Redrup Publications to make interim payments totalling £37,450 to Mr Seville and Redcrier for breaching the copyright with £18,029.25 towards their costs.

My bold. Yours is a single image infringement, this chap clearly took large amounts of material in breach and tried to fight the case.

Not really applicable to your case except in that case law applies and we already knew that.


John Walmsley v education Ltd
Full Judgement here.

http://www.turin-ip.com/course-documents/documents-2007/2013-edition/copyright/walmsley-v-education-ltd-in-wl-2014-2194626

Original claim was for £2468 plus costs for two images dated from 1968. Defendant admitted using them out of copyright. Appears 2 photo's were photocopied from a ladybird book, digitized and then placed on the internet, defendant downloaded them from a google images search but they were clearly a photograph of a print publication.

Claimant tried to claim breach of moral rights (which it appeared made up the bulk of the claim) which the judge dismisses at section 17, calling the actions of the defendant naive in believing anything found on google images was fair game.

Quote
17 Having said that, I do not think this is a flagrant breach for which it is appropriate for me to
order further damages for the following reasons. First, I do not think the Defendant's actions
show the element of intent or wilful negligence that is envisaged by the word “flagrant”. As I have
said, I think its actions and those of the employee were naive and possibly one might be unkind
enough to say pretty stupid, but I accept Ms Roberts' submissions that there was nothing more
than that and there is no other evidence to point to flagrancy. Secondly, the purpose of an award
of damages for copyright infringement is to compensate the copyright holder and put him in the
position that he would have been in but for the breach of his rights. The Claimant here is in the
business of creating photographs and selling licence fees in them and the Defendant's actions
have not, as far as I can judge, caused them to benefit from any financial windfall nor for the
Claimant's business to suffer more than in the normal course – the Defendant is not a competing
business for example. In saying that I bear in mind that the Defendant's publication of the images
was on a blog aimed at their students and not on their main commercial website. For those
reasons, I am not going to award further damages by way of an additional uplift on the licence
fee or otherwise and I consider the damages that I have already arrived at sufficient to
compensate the Claimant for the infringement suffered.

Judge did find for the claimant and awarded £1000 + vat + costs (as he did not specifically mention or award costs liability) it is reasonable to assume that each side bore their own costs.

Accidental use of a print publication image which the judge found as a strong mitigating factor.

Henderson v all around the world recordings
http://www.bailii.org/ew/cases/EWHC/IPEC/2014/3087.html

This case applies to song lyrics and loss of royalties so what it has to do with your case is anyone's guess.

Another case I came across whilst researching the cases quoted in your letter.

http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html

Is between a loft insulation firm and a home improvements undertaking. Concerns 21 photographs. The judge found that use of the 21 photo's was flagrant (a deliberate attempt to circumvent copyright) and awarded £6,000.00 (quite hefty damages) But:

1. No attempt to remove them was made prior to the claimants 'letter before action'.
2. Case revolved around deliberate use and it was clear that the defendant's company had won work and expanded his business off the back of the use of the photographs.

Judge awarded damages on the basis of these two points which almost certainly do not apply to your case.

To summarize.

1. None of these cases were brought by Getty or LCS.
2. They all appear to have been brought by the original holders of the copyright under dispute.

In the UK only copyright holders or those 'holding an exclusive copyright licence, called the exclusive licensee'. Does Getty or LCS or whatever else they are calling themselves this week hold this exclusive licence in the image (yours) in question. If they do not they cannot bring action against you.

See this valuable resource published by UK citizens Advice.
https://www.citizensadvice.org.uk/consumer/copyright/the-internet-filesharing-and-copyright/if-you-re-accused-of-online-copyright-infringement/

Doesn't stop them sending 'phishing' letters' though. If only one in twenty pay up it's still a result for them.

End of the day it is your call. As has been said by @Stinger in the post before this one the more information at your fingertips the more informed you will be.

I am at the very early process of this I only got an email last week alleging infringement of one PA image which I immediately took down. I made no contact with them nor do I intend to do so. I expect I will also get a letter some time next week but am right at the start of the process.

Some years ago I was caught 3 miles over the speed limit by a LTI20/20 argued the toss on a point of law (which at that time was still to be settled at the EctHR). Was convicted of speeding at the magistrates court and fined £120 with 3 points. Appealed the case (on the point of law) up to the High Court in London.
It was at that time I got used to reading court judgements and appreciating what was reasonable behaviour on all sides. I (and a lot of others) eventually lost the case as per the EctHR ruling and thought I was going to get clobbered by costs. It turned out that as I had researched my case and had laid a coherent written argument the learned judges waived any costs liable on my part. All in all the case cost me £120 and 3 penalty points but the experience I gained of the UK legal system was invaluable, plus the fact I learned to drive a tad slower.


Bottom line is yes someone has a case and can probably sue you for damages.

That may not be Getty/LCS though.

Your infringement may be so small time so as not to waste the Courts time. There exists such a thing in UK law of malicious intent in court proceedings. If for example someone was to chase you for a single image with a licensing value of say £99.00 for many thousands of pounds damages, I suspect a judge would take a pretty dim view of it and call it malicious. Particularly if at the end of the day you are able to convince the judge the breach was naive and purely accidental.

As I say mate at the end of the day it is your call. We are all here to support each other.....









Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 17, 2016, 11:26:04 AM
Geezer123

Thank you for this response it is really appreciated. Still seem to have the good folk of Atradius after us as well so maybe have some fun with both of them. The solicitors want £420 plus£100 legal costs. Atradius want £600.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 17, 2016, 01:29:54 PM
That's interesting.

On what basis does the solicitor come to the conclusion you owe them? You have not instructed them. Seems to me they want part of the  extortion action.

Can you quote verbatim exactly how they have requested this fee (redacting personal stuff of course). Perhaps there is scope for a complaint to the Law society... Was it addressed to you personally?

Edit to add. This may be of some use and clarify the position. Although of course in no way should these sums being extorted be regarded as debts.

https://www.nationaldebtline.org/EW/factsheets/Pages/03%20EW%20Harassment%20by%20creditors%20and%20debt%20collectors/Default.aspx

Quote
Communication
Information:
what the FCA says
"A firm must...communicate information...in a way which is clear, fair and not misleading."

Principle 7, Principles for Businesses
This includes:

sending letters that look like court claims;
not making it clear who the company is or what their role is;
using unhelpful legal language;
not giving balance statements about the debt when asked;
not letting you know the outcome if you have disputed or queried the debt;
contacting you at unreasonable times even when asked not to; and
asking you to contact them on premium rate phone numbers.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 19, 2016, 05:39:45 AM
What a time for scanner to pack up!!!

Have quoted the final bits of the letter after the first 2 pages quoting case law. The ed missing from review is their typo not mine! The original letter from Getty was after £600 not £420. Debt collecting clowns also wanted £600.

The image was taken down as soon as we realised the mistake had been made and was up for less than a week. All of this explained to Getty but despite their insistence they have tried to settle this amicably the language used in all correspondence has been one of threats and intimidation in my opinion.

I quote from the letter verbatim apart from including their bank details helpfully inserted for quick payment.

"The costs incurred by our client at this stage are irrelevant and will be a matter for the court at the Case Management Centre

Without prejudice to its rights Getty Images has review the case and will now settle this matter on the following terms at this pre action stage

a)payment of £420 and
b)payment of £100 legal costs

Accordingly as you have been on notice since Getty Images first letter of 3 December 2015 the total amount of £520 should be remitted within 7 days to the following account


You must now respond to us within 7 days i.e by 22nd April 2016. If you make the above payment of £520 and cease to use the image then our clients will treat this matter as closed. If you do not respond to us take this letter as notice we are instructed to issue and serve proceedings on you.

If proceedings are served against you and our clients are successful in their claim please be aware we will seek damages with added interest and you may also potentially be liable to pay our clients legal costs of the entire proceedings. We may also claim additional damages under Article 13(1)(a) of the directive on the enforcement of intellectual property rights (2004/48/EC and/or section 97(2) of the CPDA
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 19, 2016, 06:19:37 AM
It's all worded in such a way to put you under extreme pressure and force you to pay sorry settle......

End of the day it is up to you how you want to proceed but if I thought they were serious about proceeding a matter to court over a single image infringment and had the authority to do so holding exclusive rights I would consider cutting their legs off at the knees and make them a Part 36 offer.

UK Citizens Advice is a wealth of information on this subject... Have a good read through.

https://www.citizensadvice.org.uk/consumer/copyright/the-internet-filesharing-and-copyright/

Edit to add...

Not sure if yours is a PA image (mine certainly is) so on that basis I researched it. I checked your other thread but I thought I read it somewhere.

My image was NOT for sale on the Getty portal but WAS for sale on the PA portal. This IMHO calls into much doubt LCS/Getty's claim that they have exclusive copyright.

In addition the Press Association terms and conditions regarding purchasing a licence...   https://www.paimages.co.uk/assets/docs/terms/ecommerce_terms_editorial.pdf

Quote
1. Ownership of the PA Material
1.1 The Website is owned and operated by PA.
1.2 The PA Material is owned by PA or its licensors.
1.3 The PA Material and all related rights shall remain the exclusive property of PA and its licensors.

Seems to me that as far as Getty/LCS claiming rights on PA images that section 1.3 nails it.

Incidentally I priced my image up on the PA website for a 5 year+ licence and it came to £90.00. I believe in fair use of intellectual rights so I might just purchase it and tell Gatty/LCS to go and get stuffed.

It is for them to prove you do not have a licence, not for you to prove that you do....



Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 27, 2016, 12:50:11 PM
And duly received the claim form for the small claims court. Give them their due they are efficient. Getty using their Seattle address so big American company bullying little English company into submission.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 28, 2016, 03:47:50 AM
Claim form?

What do you mean Summons to appear? Which court address are they using..
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 28, 2016, 04:34:14 AM
Chancery Lane London
If we want to settle we need to pay in person to the address on the claim form. Seattle!
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 28, 2016, 05:18:15 AM
Am assuming it is this form?

http://hmcts.s3-eu-west-1.amazonaws.com/Forms/n001-eng.pdf

With the Guidance notes of

http://hmcts.s3-eu-west-1.amazonaws.com/Forms/ex302-eng.pdf

Did you ever establish if Getty had exclusive copyright on the image(s) you are supposed to have offended with.

Now would be a reasonable time to ask them to provide evidence of such....

Read through the notes at the link. The court expects every party to take every opportunity to settle this out of court. Seems to me you have already taken a step in that direction.

Quote
Do I have to take my claim to court?
No. Going to court should always be a last resort. It can be expensive, stressful and can take
a lot of time.
Before going to court, you should try to find an agreement in another way, for example by:
• negotiating an agreement direct with the person or organisation;
• involving an ombudsman who can act as an independent referee;
• using a mediator to help you and the other person to find a solution;
• involving an arbitrator who will make a binding decision that will solve the
problem; or
• contacting a regulator who can help you deal with issues to do with landlines and
mobile phones, the internet, and water and domestic energy supplies such as gas
and electricity.
Using an alternative way may solve your problem more quickly and cost you less. It might
also give you a better, longer-lasting solution to your problem.
Remember, you are expected to find another way of reaching an agreement before
taking your claim to court. Otherwise, the court might decide that you will not get
your costs back or that you should pay the other side’s (defendants) costs, even if you
win the case.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on April 28, 2016, 07:56:02 AM
It is a small claims and is Getty and the photographer jointly both citing USA addresses.

Decided to defend on the basis of the unreasonableness of the demand, the threatening and harassing nature of the past few months from all the various parties associated with this and ask the court to decide what we should pay on the basis we made an offer to meet half way which was rejected.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on April 28, 2016, 02:00:56 PM
As I understand it, the claimant has to justify their demand and the Citizens advice exemplifies this.

They cannot just pluck a notional figure and say that sounds right they have to break it down. If you can find the image for sale on their website then a screengrab showing the actual cost of a licence can only be beneficial to your defence.

Having read through these pages it seems Getty are making an example (or attempting too) and unlucky as it sounds this is you. Interesting though that they have decided to go down the small claims route as this may well hinder what they can claim and now having named the figure it cannot be 'inflated'.

Small claims is designed to be a simple supposedly stress free route to settle civil claims and persons shouldn't be afraid of the experience.

Citizens advice have a whole section on the procedure at such courts and I suspect you have already read it.

https://www.citizensadvice.org.uk/law-and-rights/legal-system/taking-legal-action/small-claims/

At first glance a couple of things could well stand in your favour..

Are you in London? I hope you live in Inverness and can apply to have the case transferred there..   :)

Quote
Any money claim must be issued at the County Court Money Claims Centre. Other cases can be issued in the local county court.

The court will then transfer the case automatically to the defendant’s nearest county court if:

the case is defended, and
the claim is for a fixed amount, and
the defendant is an individual, not a company.
In other cases, either party can ask for the case to be transferred to another county court.
My bold....

Quote
In most cases, the court will not order solicitors’ costs to be paid by the losing party in a small claims case, and if you instruct a solicitor you will have to pay the costs yourself. For this reason most claimants deal with a small claim without the help of a solicitor. It is possible to have the help of a friend or ‘lay representative’, for example, some Citizens Advice Bureaux can offer trained advisers to help people with small claims.

Glad to hear you are going to contest the action. I wonder if Getty have worked out that by the time they get to the end of this it will have cost them a lot more than £420.00 not including the £100 legals which by the sounds of it they are not entitled to claim anyway...

Speculative invoicing, unreasonable, threatening and harassing demands needs to be confronted. The Judge I think will not be amused of the bullying tactics as you have pointed out. Whilst they may have a copyright infringement case they do not have the right to 'put the frighteners' on to extract payment.

Good luck and please keep us informed as to how you get on...

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on May 05, 2016, 07:03:09 PM
Thank you for your support and comments but just not worth it.  If you could see the amount of effort put in by the solicitors for less than £500 on behalf of Getty then would just hope the solicitors are charging them by the page our count on 2 letters rand to 33 pages!

Along the way have managed to get up the noses of a couple of fancy titled execs at Getty UK, debt collectors and solicitors so had some fun and almost got value for money!!! :D






 
 
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on May 06, 2016, 06:40:38 AM
Thank you for your support and comments but just not worth it.  If you could see the amount of effort put in by the solicitors for less than £500 on behalf of Getty then would just hope the solicitors are charging them by the page our count on 2 letters rand to 33 pages!

Along the way have managed to get up the noses of a couple of fancy titled execs at Getty UK, debt collectors and solicitors so had some fun and almost got value for money!!! :D

Oh well, kudos for at least having a go......I suspect you were the Guinea Pig to be tested in the small claims so they could use your case on future extortion correspondence.

I am up to two emails and two letters now. I shall completely ignore them right up to the point when the small claims paperwork comes through and then tell them I will present the licence in court....... 8)
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 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 (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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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).
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: stinger 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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) 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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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


Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 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.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 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.

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 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..





Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) 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?

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) 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?
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley 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
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) on June 08, 2016, 08:36:45 AM
have a look through this thread...

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-for-sale/15/
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: geezer123 on June 09, 2016, 02:12:11 PM
Excellent Example of Getty selling images they do not have the rights too.

http://www.gettyimages.co.uk/license/113493550

https://commons.wikimedia.org/wiki/File:Lyndon_B._Johnson_taking_the_oath_of_office,_November_1963.jpg

Shame we cannot post images here or hotlink to them.....  ;) I suspect that is for a reason....
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) on June 09, 2016, 04:15:51 PM
doesn't get much better than that!
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on June 12, 2016, 10:50:08 AM
So, if Getty takes in an image which is already in the public domain, puts in time and trouble ingesting it into their systems, I can see they would feel justified in charging an admin fee, but not a fee in exchange for the right to use, when a client downloads it for use.  Similarly, if someone were to copy and use the image either from Getty directly or from a use which Getty had supplied, then I can see Getty would feel they were due a fee.  Had Getty not put in the time and trouble to make the image available, the picture user would not have had the opportunity to copy and use it (from that source).  But, even in those circumstances, would it be an infringement of IP.  If not, under what law could Getty make the claim? 

But, if anyone were to find a copy elsewhere, so not from Getty, then I see no basis for Getty charging them any kind of fee.  What would the fee be for?  No service had been provided by Getty.

If the situation really is that Getty are (knowingly?) making a significant number of unfounded claims against picture users, what can be done about it?  Is it illegal?  If so, what law(s) does it break?  I think ELI has an associated attorney?  I guess he/she has already looked at this and found there's  nothing can be done? 

I think it's time for me to leave the group.  I've learned quite a bit and I hope one or two things I've contributed just might be useful to one or two members at some stage.  I thank you for your politeness to me, the guy from 'the other side'.  I have no connection with Getty but I would like to leave you with the thought that we self-employed one-man-band photographers are not a litigious lot and pursue claims only when we have plenty of evidence to support them.  I wish you all the best.

John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on June 15, 2016, 01:51:36 AM
... but, before I go, one issue still perplexes me.  In several posts, people have said a claimant must be the exclusive agent in order to bring a claim.  That, if a photo is available from more than one source, no claim can be brought.  If I've understood that correctly, I don't see how it can be true, at least, in the UK.  Here, in the Intellectual Property & Enterprise Court (where our smaller claims of IP infringement are heard, and is part of the High Court), judges routinely hear cases where an image is definitely available from more than one source and they are happy to do so.  Yesterday, I discussed this with a self-employed photographer who has several years' experience of pursuing the unauthorised use of his work and he confirmed that, when a photo of his is properly offered for licencing by two separate libraries (as well as from himself) and an infringement is found, all three entities have a contractual right to pursue the infringer.  Of course, only one should, so they decide amongst themselves which one it would be.  Whichever one it is, they are not the exclusive agent for that photo and, as I say, the court is aware of that position and does not see it as a problem.

I Googled the term 'exclusive agent' and the only relevant link was to the Copyright, Designs & Patents Act 1988.  The only line in there I could find about 'exclusivity' was this one:

Rights subsisting in copyright works.
2.(1)   The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.'


The owner is free to assign any rights to another entity.  Usually, this happens when the photo is placed with a library, like Getty, under whatever contractual terms they agree.  From the Getty contracts I've seen, an individual photographer is required to agree exclusivity terms with Getty.  But, if a smaller library places the work they hold with Getty, they are not required to agree exclusivity.  So, it does happen that Getty could make infringement claims for work which they represent on an exclusive basis and also for other work which is not exclusive.

So, I have a question which I think would best be answered by the ELI associated legal counsel.  It is, where does the notion that, in order to bring a claim, the claimant must be the exclusive agent, come from, please?  Is there something in US law which we don't have in the UK?  Could you identify exactly which piece of law it is based on?

Thanks,

John Walmsley



Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) on June 15, 2016, 03:46:13 PM
ok so from a "users" standpoint, you don't have an issue with the followin scenario?:

photographer licenses image with getty, and agrees to their terms of exclusivity, meaning the image cnnot be offered elsewhere.

same photographer then licenses same image with say pond5, thus ignoring, forgetting or whatever,the terms they agreed to with getty.

I come along purchase and use the image from pond5.com ( because frankly Getty sucksgoat balls and is way over priced)..

Getty finds said image and comes after me for infringement..

Are you telling me you're okay with this?...Please also keep in mind, even though Getty would have no case, they would certainly lose, Getty rarely files lawsuits , they just continue targeting low hanging fruit that have no legal knowledge, and are likely to cough up cash to make it go away
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on June 16, 2016, 03:56:59 AM
I would definitely have an issue with the scenario Robert posed.  If the photographer had contracted to Getty on an exclusive basis, then he had no right to also place it with Pond5 or anyone else.  Agreed. 

But that is not the scenario I described nor the question I was asking.  I would like the attorney associated with ELI to give his view on the legal basis that a claimant must be the exclusive rights holder.  It's an important issue which seems to affect several cases discussed on ELI and, I think, is worth getting to the bottom of.  I'm asking that the attorney answers so we have a view from a legally qualified source.  One possible explanation might be that, in legal terms, the photographer was and has remained the exclusive rights holder but has contractually agreed with two libraries that each can market the photo and each could pursue infringements.  So, he would still be the exclusive rights holder and could pursue infringements through either of his agents (the two libraries) with the agants having been given the right to pursue them on his behalf.  That would make sense to me.  But I'd like to hear the attorney's view.

The scenario I described in my question, in which a photo can end up being available from three sources, one of which is Getty, is real, contractually sound and quite common.  The view put forward on ELI is that, because it is available from more than one source, no-one could make an IP infringement claim.  From other photographers' real world experience that does not seem to be the case.

John Walmsley



Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: stinger on June 16, 2016, 05:46:15 PM
I am not an attorney, but I believe any attorney familiar with digital image law will tell you that under U.S. law, only one party may hold the rights to pursue copyright infringement over any image.  That right may not be exercised by more than one party.  The copyright holder has the ability to contractually transfer that right to one, and only one, party.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on June 17, 2016, 04:14:27 AM

I am not an attorney, but I believe any attorney familiar with digital image law will tell you that under U.S. law, only one party may hold the rights to pursue copyright infringement over any image.  That right may not be exercised by more than one party.  The copyright holder has the ability to contractually transfer that right to one, and only one, party.

Thanks, 'Stinger'
But I think we still need to hear from the ELI associated attorney on this.  His view would be more reliable than any non-attorney's (yours, mine or anyone else's) as he would have so much more knowledge of (US) copyright law and other relevant laws.

If what you say is exactly right in all details, then US law is different to UK law and it would be useful to establish that.

That right may not be exercised by more than one party.
To me, that makes perfect sense but it does not, of itself, preclude that right being held by more than one entity.

Let's hear from the attorney, please.

John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Oscar Michelen on June 19, 2016, 10:02:59 AM
More than one person can own a copyright - you can actually have joint authors of the work or the copyright registration can just list more than person as being the owner. Each of those persons then has all the right of a full owner - they can license the work without the consent of the other and they can pursue infringement claims without the consent of the other as they both have exclusive rights.  Their only obligation would be to fully account to and properly compensate the other owner. However, if only one of them licenses the work to another party that party would only have a non-exclusive right (as the one owner cannot cut off the other's rights) and that party CANNOT sue. Under US law (specifically 501(b) of the Copyright Act  - you must have an exclusive right to be able to sue - having  a non-exclusive right does not give you standing to sue. Here endeth the lesson

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on June 20, 2016, 02:49:43 PM
Thank you, Oscar.  But, I wonder if you have answered a different question?  You have dealt with the situation where more than one person owns the copyright.

We were dealing with the situation where only one person owns the copyright (and, may or may not have registered with the US Copyright Office) but has granted two entities the right to market the photo.  My understanding is that they both have rights to market it but none of them owns the copyright.  Or, am I misunderstanding what you have written?

Oscar said.
Under US law (specifically 501(b) of the Copyright Act  - you must have an exclusive right to be able to sue - having  a non-exclusive right does not give you standing to sue. Here endeth the lesson.


From the US Copyright Act
p.158
Copyright Law of the United States

Ԥ501. Infringement of copyright

(b) The legal or beneficial owner of an exclusive right under a copyright is
entitled, subject to the requirements of section 411, to institute an action for any
infringement of that particular right committed while he or she is the owner
of it. The court may require such owner to serve written notice of the action
with a copy of the complaint upon any person shown, by the records of the
Copyright Office or otherwise, to have or claim an interest in the copyright, and
shall require that such notice be served upon any person whose interest is likely
to be affected by a decision in the case. The court may require the joinder, and
shall permit the intervention, of any person having or claiming an interest in
the copyright.’



To look at this extract from the above.

‘The legal or beneficial owner of an exclusive right under a copyright is
Entitled …..  to institute an action for any infringement of that particular right committed while he or she is the owner
of it’



My reading of this is that the exclusive copyright holder is entitled to institute the action.  It does not limit how he may do this.  He could do it himself or, to my mind, he could employ someone else to do it on his behalf.

The situation in at least one case with the Getty letters, is that there is one photographer who owns the copyright outright.  He has contracted two libraries to market his work.  He is still the exclusive copyright holder and has merely contracted other entities to market his work and, as part of his contract with them, to pursue any infringements, on his behalf.  That seems to me to comply with the requirements of the law.  I don’t see why it would not.

It certainly is accepted by UK courts but, maybe, not by US courts.

I take your point about there being no right to sue if there are more than one copyright holder but that is not the case here.  There is only one copyright holder.

John Walmsley

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on July 01, 2016, 01:53:21 AM
Could I ask Oscar Michelen to respond to my post, please, to clarify the position? 
Thanks, John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on July 05, 2016, 04:25:49 PM
This has got interesting since I last looked. we settled because we did not have the time or resource to take on the big bully boy. Given Getty want £420 (or £600 or £520 or 25 % of the last offer they made) what are you photographers getting out of this? Sounds like the only people getting rich are the Getty organisation. I wish ill on every last one of them.

My issue was never about paying but the manner in which we were dealt with by everyone associated i.e Getty, Debt collectors and their solicitors. Scandalous is the only word.

I fully support copyright but not those clowns.

I look forward to the day when someone with time and money takes them down and reveals them as the crooks they are.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on July 10, 2016, 04:07:01 AM
First, I have to wonder, is it wise, on a public forum, to call someone a crook?  Might be better to say that, ‘in your opinion they are crooks’?  I am not a lawyer, that’s just my opinion.

As you know, I’m a photographer and copyright holder.  My aim in being on this forum is to reduce the time and cost to both sides spent on copyright infringement cases.  I’ve learned quite a lot from the forum and intend my own inputs to help identify the issues which really are reliable facts, so we know how to proceed.

I, too, find Getty’s approach unnecessarily aggressive and cannot see how it benefits them in the long run.  We individual photographers don’t take that approach.

Coming back to facts, it is essential to establish what has happened and what the law says about it.  Many issues can be discussed here but reliable input is required from qualified experienced IP attorneys which is why I have asked Oscar Michelin to respond to my earlier post about the need for there to be a single copyright holder.  He has given his view once but, having read the section of law he referred to, I don’t see that it supports his view.  It’s an important issue which affects many cases and I would like to understand his reasoning.  Once it’s been clarified, we would all know whether, having a photo available from more than one source, removes a right to sue or not.  In the UK there’s no doubt at all that a photographer can have a photo with more than one library and any of those libraries can sue (there’s only one copyright holder but more than one library with the right to pursue cases on behalf of that copyright holder).  So, we’re trying to clarify the position only in the US.
 
If a picture user receives a letter from a copyright holder (or agent, like Getty), it is best to do some research and establish if they did use the photo in the way claimed.  If so, did they have a valid licence to do so.  If they have a valid licence, end of problem, as far as I can see.  If they haven’t, the cheapest route would be to negotiate a quick settlement in exchange for a discount.

What do we photographers get out of these settlements?  It varies but the law in the UK allows only that we are put back in the position we would have been in had the picture user requested permission and paid at the right time.  Yes, there may be uplifts allowed, either through the photographer’s own T&Cs or at the discretion of the court.  On balance, the vast majority of settlements take so long and soak up so much time, the photographer would be lucky to break even.  Big libraries can afford to engage lawyers.  We individual photographers can’t and take advice from them only on a readily available pro-bono basis. 

Why do we individual photographers pursue cases where we’d be better off ignoring them?  Because picture users (mostly professional large scale ones) seemed to have decided it was to their advantage to just go ahead and use photos without asking or paying, knowing/expecting that, if caught, all they’d have to pay would be the fee they would have paid in the beginning.  It was a win/win position for them.  We had a choice: either, give up and go fishing or fight back.  Having fought back for 4 years, we see a reduction in the cases and presume there is now a much better understanding of copyright, the law and the possible consequencies of behaving unlawfully.

‘philpotts99’ said:
‘I look forward to the day when someone with time and money takes them down …’
There’s no need really.  If the picture user can establish that Getty have a valid case, then negotiate a settlement.  Why not?  If the picture user can show there has been no infringement, send the documents to Getty.  They might huff and puff but it is most unlikely they would start legal proceedings without a firm basis.  It would be a complete waste of their time and money and the court would throw it out early on.

John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: philpotts99 on July 13, 2016, 12:22:45 PM
Withdraw crook would not want to offend the tossers.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on July 20, 2016, 02:58:47 AM
On June 19th, Oscar gave us his legal view.  On June 20th, I posted saying I thought he had answered a different question to the one we were discussing.  On July 1st, I asked if Oscar would respond to my post as the issue is important to many cases.

If Oscar has responded, I’ve missed it, so would ask again for him to have another look at the specific issues, please.  That is, where a single copyright holder has contracted with two libraries for each to market the photo and for each to be able to pursue infringements on his behalf.
Thanks,  John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) on July 21, 2016, 11:38:20 AM
Oscar rarely pokes his head in anymore these days, I actually sent him an email requesting he address your initial question, which he did,  I know he's busy with other matters, if I communicate with him in the near future, I'll ask him to return if he has a few moments.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on July 21, 2016, 02:26:23 PM
Robert, that's very kind, thank you.
John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Engel Nyst on July 27, 2016, 07:21:15 PM
Quote from: John Walmsley link=topic=4421.msg20205#msg20205 date=146t
That is, where a single copyright holder has contracted with two libraries for each to market the photo and for each to be able to pursue infringements on his behalf

In the meantime, I suggest to google "Righthaven" and/or "bare right to sue".

The core issue is simple: one can be an enforcement agent, but this agent can't enforce copyright in court.
Unless the agent has exclusive rights. Any division of the copyright rights (reproduction, distribution, etc) would work, but that means that the agent *is* a (c) holder.

An entity w/o some exclusive rights under (c) doesn't have standing.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on August 02, 2016, 02:56:28 AM
You may all be aware of this already.  I wasn’t.  A photographer is suing Getty for 1 billion USD for charging for photos of hers when they were in the public domain and she had no relationship with Getty.

She is a very generous photographer and had put her life’s work in the public domain, specifically so they could be used for no fee, by donating them to the Library of Congress while, at the same time, retaining the copyright (I didn’t know you could do that).  It seems Getty ingested 18,000 of them into its system and then, when it found one in use, sent a ‘Getty letter’.  The photographer found out only when she received a ‘Getty letter’ for using her own photo on her own website.

http://www.geek.com/news/getty-images-sued-for-1-billion-by-one-very-generous-photographer-1663844/


The brief:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2249&context=historical

Interestingly, in sections 12 and 13, it is claimed Getty was fined 1 million usd within the previous 3 years in the same court for 17 U.S.C #1202 violations.

Looks likely that Getty was doing no or insufficient due diligence before sending out the letters.

John Walmsley
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Robert Krausankas (BuddhaPi) on August 02, 2016, 11:43:39 AM
"Looks likely that Getty was doing no or insufficient due diligence before sending out the letters. "


Getty has been doing this for years, why do you think we started this forum? There are too many cases to count where Getty was in the wrong, thus making them the largest copy-right troll in history, right next to Righthaven, and Prenda. I hope Carol sticks to her guns and takes them down, and puts them out of business!
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: stinger on August 02, 2016, 02:09:05 PM
Perhaps that judgement is why Getty is now playing the multiple name game.  They may say Alemy was never fined for this transgression.  My hope is that the court will see through all this corporate BS and exact a proper outcome.
Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: John Walmsley on August 04, 2016, 10:11:07 AM
And another big claim against Getty just reported on PDN:
http://pdnpulse.pdnonline.com/2016/08/getty-images-sued-yet-copyright-violations.html

John Walmsley

Title: Re: Simon Muirhead and Burton demand on behalf of Getty
Post by: Engel Nyst on August 07, 2016, 12:39:08 PM
She is a very generous photographer and had put her life’s work in the public domain, specifically so they could be used for no fee, by donating them to the Library of Congress while, at the same time, retaining the copyright (I didn’t know you could do that).

Sure you can. Millions of creative works, including photography, are licensed with non-exclusive licenses to the public, to reproduce, display, etc, under certain conditions set by the copyright holder, such as attribution or for non-commercial use only. If the user wants to use the work commercially, they can contact the author for a commercial license - which will likely be for payment of course.

Copyright gives authors a bundle of rights - to reproduce in copies, to distribute, to display or perform publicly - which means they're entitled to exclude everyone else from doing these things, or to authorize one or more people, or all people, to do these things, in exchange for something. It's the very basis for which you can license people to display, in exchange for money.

Creative Commons licenses are well known legal instruments designed for creative authors to share their work while retaining copyright, and requiring conditions for the uses:
https://creativecommons.org/share-your-work/

This is an example of well known photographer licensing their work with CC-by-NC:
http://www.stuckincustoms.com/2012/02/13/why-photographers-should-stop-complaining-about-copyright-and-embrace-pinterest/

Another post on his choice to not use watermarks too, and why: http://www.stuckincustoms.com/2013/06/25/why-i-dont-use-watermarks/

Another example of photographer deciding to use Creative Commons licenses:
https://medium.com/@samuelzeller/giving-my-images-for-free-8db40f96f292#.hmzg5o6eq

Unfortunately, when Carol Highsmith gave her photos to the Library of Congress, Creative Commons didn't exist yet. It exists only from 2001, and she started in the 1980s IIRC. She uses a different legal instrument:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2250&context=historical

It's much more confusing, as you can see for yourself. It says she granted copyrights to the Library, then that she dedicated them to the public, then she makes restrictions on the uses, with credit, and statements on when the library can reproduce. The judge will need to interpret this document. And most of current lawsuit depends on that interpretation.