Getty getting sued...again

[Robert Krausankas (BuddhaPi)]

Pot meet Kettle...Getty is accused of selling/marketing images on their site for which they did not have permission..probably an honest mistkae on their part i'm sure..

you can grab the court docs below:

http://copyright-trolls.com/site/getty-images-goes-to-court-as-defendant/

[DavidVGoliath]

Robert,

Having read over the court documents, it appears that the plaintiff - Marshall Thompson - is suing getty because his likeness appeared in one (or more) of the photographs they had available for licensing on their site. He's claiming this is an infringement of his "right of publicity"

Without knowing which photograph(s) Thompson appeared in, or the whether they were available for editorial or commercial licensing, it's not clear if he has grounds for a claim and/or will be successful.

If Thompson's likeness was included in photographs that were available only for editorial licensing - and providing that he was photographed either in a public place or in the context of editorial reportage - then it's likely Getty will prevail.

Conversely, if Thompson's likeness was prominently included in a photograph that was available for commercial licensing, and the photographer in question either did not seek to obtain a model release from Thompson or, worse still, if the photographer falsified a model release from Thompson, then he may have grounds... but his claim should be against the photographer, not Getty.

When you submit a set of stock photographs to any agency, you almost always have to fill out a form indicating whether model or property releases are required (based on the subject matter) and if they have been obtained (in which case you would upload copies of said releases with the set of images)

Getting to specifics: I'm going to go out on a limb here and suggest that the images to which Thompson has objected might be the one (and similar) on the bottom-right corner of this page, which is the only instance I could find when searching for "Marshall Thompson Illinois Getty"

http://www.starsightings.com/event-An-Evening-with-Berry-Gordy

A further search yielded this set on Getty's site, which does not include the photograph above (being that it has likely been removed from the set on Thompson's request)

http://www.gettyimages.co.uk/Search/Search.aspx?query=z.i.H4sIAAAAAAAEAOy9B2AcSZYlJi9tynt_SvVK1-B0oQiAYBMk2JBAEOzBiM3mkuwdaUcjKasqgcplVmVdZhZAzO2dvPfee--999577733ujudTif33_8_XGZkAWz2zkrayZ4hgKrIHz9-fB8_In7dfLn9-ZN79-79Hr_W-u2ve7bILvJf89f4NX6Nx_T_NL_Ml8XyIr0q2nk6yev6Or2o6tl1Op0X0-yi-jVHaCrPr_3l-bn9I_KYlr9mUldV-zKrs0Xz6-hnvxb-v7uDX--Y9r-7-eU3wz-_Cf3_13v3-ro5fcdA8H_vbwaS2f5_Tf0dcH_t7HxqsTR_4P-_Nn7ucNeL1r3pfv91qHFpv7B_4b1fl_6oFxZs-Oevj-a7-OvX488nFkbnb37tPIRi_2QoOxbKeQeK-5tfq0Mo9k-Gsmeh1B0o7m-iTG5e-jXxx6-tfzCZdvHbb0j__y137t_dPbi7t7O7l-7sPOL_4bvfGP-AlkSmfGWA_prBX792PmnsN-YPpn_u0PJ-_7Vy19z7_dduViv7Of4waP9W9sXLqXvR_f7rVLXHPfYv_mqS-1-Zv_D82rOrpfn91zR_gHF_nWbtjSf469fOM4eB_wf9vvK_sH_8uk0ALfzz13737LmbG_rDfpHVHm7eH79RM61W-ZP1clZ6RAw-NQB_HHAe7NzH778OsdXaNg_--nXmtfwhFMJfBsLH9P9f62CHW02CVhOv1SeuFbGXEzj_j1_vRX6VN-3_EwAA__-SHF4skwQAAA..&rid=156612331&rcat=Event&rt=IL%3a+An+Evening+With+Berry+Gordy

If this is the photograph in question, then I'll go out on a further limb and say that Thompson will not prevail in his claim, as his likeness was made available for editorial use and he knowingly posed for the photograph.

It's very probable that the photographer, Daniel Boczarski, had access to the event only with the permission (or even invitation) of the organisers and, furthermore, the organisers would have known that he was filing shots with Getty. It's almost routine for event PR to contact photo agencies and offer them the option of sending a photographer, either exclusively or maybe as one of several press photographers granted access for reportage purposes.

Assuming the above is aligned with the facts, then it very much looks like Thompson has objected to his photograph being made available for editorial licensing; Getty complied with Thompson's request to have his photograph removed as a gesture of goodwill, though they certainly did not have to.

In attempting to pursue a personality rights claim against Getty, it very much looks like Thompson will only wind up lining the pockets of his own counsel.

[Robert Krausankas (BuddhaPi)]

Thanks for the lengthy and well thought out response! I suspected this case had more to do with something other than "copyright infringement', but whenever I get the chance I always attempt to throw them under the bus. Getty did in fact enter a motion to dismiss, I will have to go back into PACER to see what other documents I can find, I think I may have seen something about an amended complaint or something..Keep in mind I'm not a lawyer, i'm just your everyday image thief : )

[Jerry Witt (mcfilms)]

It does seem odd that Getty did not specify that the image was ONLY available for EDITORIAL. Maybe the plaintiff found his image used in a commercial context and that is the root of his dispute.

[DavidVGoliath]

Jerry,

Getty did, in fact, specify that images from the set are only available for editorial usage.

Go to Getty's homepage, put your cursor into the search box and type "Berry Gordy Chicago" in the search field, being sure to search editorial images only. This will yield 93 results from that search.

If you click on any of the 93 thumbnail images, you'll be taken to a medium sized preview which will contain the image caption (description) and a host of other file information.

The two key fields to look at are Restrictions and Release Information.

For the photographs in this set, the Restrictions filed reads "Contact your local office for all commercial or promotional uses."; this is fairly standard as Getty would be the go-between for the photographer, licensee and image subjects when it comes to getting the appropriate permissions to use an image in either way.

Here's how it works. Getty's client wants to use the photograph in an otherwise restricted manner. Getty contacts the photographer to ensure that they're okay with that particular client using the photograph outwith the limits of editorial use. Getty then makes efforts to contact the person(s) pictured in the photograph to obtain their permissions to license the photograph in a non-editorial context.

It's the responsibility of the client to pay both Getty AND the subject(s) when they want to use the photograph for commercial or promotional purposes.

The only scenario by which this three-way approval process might be simplified is if the subject(s) pictured in the photographs had signed model release forms and provided them to the photographer, either at the time of shooting or at any point thereafter.

The 'release' in the form is basically a written statement of consent that the person(s) have granted permission to the photographer to make use of their likeness in any way he chooses, usually in return for being paid, but sometimes it may be an exchange of services such as "Time for Prints" for instances such as fashion or art modelling.

In all of this, there's one potential spanner in the works: a client of Getty might have purchased an editorial license and then used the photograph in a commercial/promotional context without informing anyone - doing so would be a breach of license terms (a copyright infringement) and also Thompson's rights of publicity.

If this is what happened (and there's nothing in his claim to suggest this) then he's barking up the wrong tree... his suit would at least have to name whomever made use of the photograph in such a manner as a co-defendant; all that Getty would need to do to get off the hook would be to demonstrate that they only ever licensed the photograph for editorial use.

I'd also like to touch on one last thing: assuming that Thompson's claim only relates to the fact that Getty had a photograph of him available for editorial licensing, then he's really going to lose, and badly. I had another quick look around the web to see if there were any other photographers present - and here's an interesting page I found.

http://www.chicagonow.com/ndigo-chit-chat-all-that/2012/11/an-evening-with-barry-gordy-at-history-makers-2/#image/1

You'll see that it appears a small red carpet and white backdrop were placed by the event organisers with the apparent specific intention of having guests pose for photographs in this area as they arrived. I've covered dozens of similar events where this has been the case and know the format quite well.

I'll hazard a guess that, when Mr. Thompson arrived at the event, he was invited by event PR to pose for photographs in this very location. It would have been Thompson's right to refuse to be photographed and/or ask where or how the photographs were going to be used... but let's look at the photograph again

http://assets.starsightings.com/photos/000/001/357/00000135723/135723.thumb.160x160.f2d5d654b76505f66d4687c7e75ea1a3.jpg?v=1353420281

Yeah, it's not ideal to use a thumbnail sized shot but, if you enlarge it, you can see that Thompson is looking straight at the photographer's lens, is smiling and has obviously stopped to pose for them - therefore, there is implicit consent in having his photograph taken.

Going out on a limb (again), I'll suggest that Thompson objected to the photograph when he discovered it available for licensing and mistakenly thought this was an infringement of his personality rights. If his attorney wasn't conversant with the laws of relating to this, then... well, you can guess how it's going to play out.