Getty Images in Canada

[a_dezwart]

Thank you all for your generous help regarding the registration.  It appears that I am in decent shape to defend myself.  I have a different topic to discuss, hence the new post.  I live in Canada.  The letter I received is from Getty Images in Seattle, WA.  The contact email is [email protected] but the remission details are as follows:  Remit to: Bank of America Getty Images Canada Inc.  Address in Toronto Ontario.  So the bank is located in Toronto but the head office in Seattle.  Am I under US or Canadian jurisdiction? Or does it matter. How do I know. I did a bit of reading on the forum about Canadian cases and noticed that some people were cautious offering recommendations about Canada.  Also, I'm trying to figure out whether to write my own letter or get Oscar to represent me.  I'm leaning towards Oscar because it gives me more peace of mind but then would he represent me in this case? 

[Greg Troy (KeepFighting)]

If the letter states that you have violated US copyright law and was sent from a US office like Seattle then you can use Oscar's defense letter program.  If the letter states you are in violation of Canadian copyright law then Oscar can not help you as he is not licensed in Canada.  If you are not sure contact Oscar's office and he can tell you for sure if he can help you or not.

Hope this helps, please keep us posted to your progress.

Thank you all for your generous help regarding the registration.  It appears that I am in decent shape to defend myself.  I have a different topic to discuss, hence the new post.  I live in Canada.  The letter I received is from Getty Images in Seattle, WA.  The contact email is [email protected] but the remission details are as follows:  Remit to: Bank of America Getty Images Canada Inc.  Address in Toronto Ontario.  So the bank is located in Toronto but the head office in Seattle.  Am I under US or Canadian jurisdiction? Or does it matter. How do I know. I did a bit of reading on the forum about Canadian cases and noticed that some people were cautious offering recommendations about Canada.  Also, I'm trying to figure out whether to write my own letter or get Oscar to represent me.  I'm leaning towards Oscar because it gives me more peace of mind but then would he represent me in this case?

[lucia]

You live in Canada. Where was your website hosted? If that was Canada, I think your jurisdiction is Canada because I don't think any American copyright court would consider the case to fall in their jurisdiction. 

Even in the US, they have to bring the case in the jurisdiction that applies. So, for example: I live in Illinois. If I decide to photo-copy books using a copier located in Illinois, and sell the copies in a store in Illinois, the copyright owner has to file that case in my jurisdiction, which means the case will be heard in Chicago.  In the hypothetical I created, they can't file the case in California.   I'm not quite sure what happens if I post on my blog which is served from a machine located in California.  So, maybe someone getting me for copyright could file in California-- I'm not sure. But I think they couldn't file in Seattle (unless they could dream up some rather novel theory that involves something about the publication happening in that jurisdiction).

So, it seems to me if you are in Canada, and your server is in Canada, they are going to have to file in Canada. Moreover, are any of your assets in the US?  I don't know how Canada deals with American copyright awards. Getty might have difficulty collecting from a Canadian.

[a_dezwart]

If the letter states that you have violated US copyright law and was sent from a US office like Seattle then you can use Oscar's defense letter program.  If the letter states you are in violation of Canadian copyright law then Oscar can not help you as he is not licensed in Canada.  If you are not sure contact Oscar's office and he can tell you for sure if he can help you or not.

Hope this helps, please keep us posted to your progress.

Ha, in their letter, Getty Images does not state which law I violated, they just lists them all:  Canadian Copyright Act, The United States Copyright Act and equivalent laws in other jurisdictions that entitle Getty Images to seek legal remedies.  They cover their basis just in case.  Its like they don't really know. I will contact Oscar, just have to scan my latter.  Thank you.

[a_dezwart]

You live in Canada. Where was your website hosted? If that was Canada, I think your jurisdiction is Canada because I don't think any American copyright court would consider the case to fall in their jurisdiction. 

Even in the US, they have to bring the case in the jurisdiction that applies. So, for example: I live in Illinois. If I decide to photo-copy books using a copier located in Illinois, and sell the copies in a store in Illinois, the copyright owner has to file that case in my jurisdiction, which means the case will be heard in Chicago.  In the hypothetical I created, they can't file the case in California.   I'm not quite sure what happens if I post on my blog which is served from a machine located in California.  So, maybe someone getting me for copyright could file in California-- I'm not sure. But I think they couldn't file in Seattle (unless they could dream up some rather novel theory that involves something about the publication happening in that jurisdiction).

So, it seems to me if you are in Canada, and your server is in Canada, they are going to have to file in Canada. Moreover, are any of your assets in the US?  I don't know how Canada deals with American copyright awards. Getty might have difficulty collecting from a Canadian.

Lucia, you raise an interesting point.  I live in Canada in British Columbia, the letter was sent from Seattle, Washington.  Getty is claiming that they can collect the fees in Toronto Ontario, yet my site is hosted out of California. The photographer is Irish.  Wow, this case crosses provinces, states and international borders.

[lucia]

I know US copyright recognizes copyright from other jurisdictions and for non-US citizens. What I don't know is how registration in another country affects potential penalties if a case is brought in the US.  Since the photographer is Irish, it's plausible he would register in Ireland, and then not register in every single country on the planet.  I would imagine copyright law is (and ought to be) written to give such  holders protection.  Still, I don't know if the photographer can collect statutory penalties in the US if he did not register in the US prior to the claimed violation happening. (Oddly, the photographer on the legal-issues thread might know. But he seems to live in Europe and seems to take care to file for copyright in the US. His registering in the US is sufficient to resolve any issues about penalties should he bring suit in the US: A court could award him statutory penalties. )

But with respect to your case, Getty would definitely need to figure out where to file any case. I don't know if they can file any case against you in California-- but it's plausible if your server is hosted there.  If they filed there, US law would apply. Oscar could write a letter for you or represent you.  I'm sure Oscar also knows whether the server being in Canada gives sufficient nexus to permit them to sue you in California courts.  I just don't know.

If they file in Canada, Canadian law would apply. Oscar can't represent you or send a letter.


Ohhh... Oscar would be better than googling. But I found this: The Calder Test, which it seems, would be applied by an American court determining whether Getty could sue you someplace other than were you reside or other than where you do business. 

http://faculty.ist.psu.edu/bagby/432Spring12/T15/jurisdiction.html
Often times determining if a state has personal jurisdiction in online cases can be difficult. This is why the Calder test has become so important as a starting point. The court has to determine three things to grant personal jurisdiction. First, whether or not the act was committed intentionally. Second, if the act was directly aimed at the plaintiff in the forum state and finally, whether or not the defendant suffered damages in that state. If the court can find all three of these tests to be true, then personal jurisdiction can be granted.

But I do read other interpretations that seem to organize the arguments differently. For example:
http://onellp.com/blog/knowledge-and-copyright-infringement-do-not-create-specific-jurisdiction-in-plaintiff%E2%80%99s-forum-state/


I suspect that your act will not have been "directly aimed at the plaintiff in" any state of the US.  If all three need to be fulfilled to get jurisdiction in a venue in the US, Getty would then have to hope to sue you in Canada. If you had any sort of attorney, I suspect Getty would have a tough time creating an argument to meet the jurisdictional hurdle for a US filing. But.. as I said: Oscar is the one who would know. It's his specialty.

[seoulite]

Hi Everyone,

This is my first post here and instead of creating another topic, I figured I'd jump in on this discussion. I'm in the same situation as a_dezwart. I'm a Canadian and have received a demand letter from Getty Images based in Seattle. The demand letter makes reference to one image. They are requesting payment of $950 for an RM image. The image itself (and the screenshot they took of my website) are not the same. The image I had used (unknowingly) had allegedly been altered from the original image according to Getty.

My website is Canadian and aimed only specifically at GTA (Greater Toronto Area) residents. The servers of my website's host are located in the GTA as well. While I think it is a ridiculous and unethical business model, I am a small business owner and the time it will take me to fight this will cost me more than if I negotiated a reasonable settlement.

From my research on the forum it looks as though some people are suggesting a first step of writing back to Getty to demand proof of copyright ownership while others have deemed that a waste of time since Getty will write back that they will not supply it, so I might as well just skip to offering a one-time settlement and letting them know if they don't accept it and conclude the matter resolved that they should not contact me anymore.

Just wanted to bring more attention to this topic as more and more Canadians it seems will be receiving these letters. Any advice/tips for me, and do I have a strong case seeing as how the images are not even the same?

[lucia]

Hi Everyone,

This is my first post here and instead of creating another topic, I figured I'd jump in on this discussion. I'm in the same situation as a_dezwart. I'm a Canadian and have received a demand letter from Getty Images based in Seattle. The demand letter makes reference to one image. They are requesting payment of $950 for an RM image. The image itself (and the screenshot they took of my website) are not the same. The image I had used (unknowingly) had allegedly been altered from the original image according to Getty.

My website is Canadian and aimed only specifically at GTA (Greater Toronto Area) residents. The servers of my website's host are located in the GTA as well. While I think it is a ridiculous and unethical business model, I am a small business owner and the time it will take me to fight this will cost me more than if I negotiated a reasonable settlement.

It reads as if you are clearly in Canada. That means Getty cannot sue in the US. They have to pursue in Canada.  I have no idea what's most advisable under Canadian, but I would certainly take the image down as a precaution. 

It's not clear from the rest whether you believe the image they claim you copied might have been altered in some way or how.  Does it seem remotely possible the image you used might have been copied in any way from the original? Getty's robot does mis-identify-- sometimes laughably. Under anyone's law you can only be liable for copying if the image you posted was copied from the original. If it's merely a similar image with a passing resemblance, that's not copying.  In that case, you don't ask them to provide registration and so on, you tell them that you don't think the image you posted is a copy.   So, you response ought to differ depending on what you think makes sense here.

Just wanted to bring more attention to this topic as more and more Canadians it seems will be receiving these letters. Any advice/tips for me, and do I have a strong case seeing as how the images are not even the same?

Can you send me a private email and let me see the two images?  If you copied the lower left hand 1/4 of their image, you might be liable. But if they aren't even the same image. Well.  No you are not liable. This is something one ought to look at.

[seoulite]

I have been in contact with my website's host to permanently remove the image. They have experience dealing with Getty as other customers of their services (they are also the web designers) have been issued the same demand letter many times. They purchased photos from a certain company, who was bought out by another company, who was then bought out by Getty. Now, Getty goes after the thousands of clients they have for the images that were uploaded during the design of their clients' websites. They've simply ignored Getty and if anything more comes of it, they have a lawyer on hand to deal with those issues.

Since last year, the host has only used their own photos so the problem has stopped. However, the photo in question was used in the blog section of my site. So, I am the first case the host has heard of where they aren't technically involved in the matter. Their advice is to still ignore Getty as they simply will not pursue the matter over one image and have no jurisdiction in the matter. If I am to contact them in any way, then it opens a whole can of worms.

Needless to say I'm at a crossroads with what to do as I'm getting conflicting advice and neither side is quite sure since there are many grey/blurry lines when dealing with cross-border copyright law.

[Greg Troy (KeepFighting)]

Hi seoulite and welcome to the forums.  I am one of the ones who advocate sending at least one letter.  Lucia is correct that you want to make sure that the images is the correct images and if it is I would want to know that Getty has the rights they claim to have.  It has been shown in court that this is not always the case, also if Getty should take you to court you can show that you were trying to negotiate with them.  I also believe in making a fair and reasonable offer, but contingent on them providing proof. This to is good if you should go to court.....Judge, I told them I would negotiate and offered a settlement and all I asked for was proof of claim in light of their past history, they refused and took me to court.  Would not look to good for them would it?

If they refuse to cooperate and refuse to drop the matter I also advocate filing complaints with your equivalent of the Attorney General, BBB and FTC.

@ SG and/or Bernicem77 what are the Canadian equivenalts of the AG, BBB and FTC?

I hope this helps and please keep us posted as to your progress.

[lucia]

I have been in contact with my website's host to permanently remove the image.

YOu need to get the websit's host to remove the image?  So.... was the image on a server whose content you control? Or does someone else host it and you just hotlinked. This would matter in the US where so far, courts rule hotlinking is not copying under US law. I have no idea what applies in Canada. But if you only hotlinked, that might put you in a much better position.

[seoulite]

I have been in contact with my website's host to permanently remove the image.

YOu need to get the websit's host to remove the image?  So.... was the image on a server whose content you control? Or does someone else host it and you just hotlinked. This would matter in the US where so far, courts rule hotlinking is not copying under US law. I have no idea what applies in Canada. But if you only hotlinked, that might put you in a much better position.

It wasn't hotlinked, but uploaded.

[SoylentGreen]

Canadian non-lawyer with an opinion reporting in...

We're sort of dancing around the actual facts a bit.

If it's a Canadian corporation, then Getty would have to pursue legal remedies under Canadian law.
If the business is not incorporated they could go after the actual owner on a personal basis.
If this is the case, and you're a Canadian national in Canada, then Canadian laws would apply.

I do not think that it makes much difference which Getty office contacts you, or what bank they use for that matter.

S.G.

[Jerry Witt (mcfilms)]

They purchased photos from a certain company, who was bought out by another company, who was then bought out by Getty. Now, Getty goes after the thousands of clients they have for the images that were uploaded during the design of their clients' websites.

I know this has been going on for quite some time. In the 90's people bought CD-ROM collections of royalty free images for them to use in print on the web. Somewhere along the line Getty bought these collections and now they are trying to assert copyright.

Is there any chance at all you could ask them the name of the collection or company? We purchased such a collection 20 years ago but I haven't been able to find it. If you or they would rather contact me directly, please email witt at the domain motioncity.com or PM me here.

Thanks!

(Also, tagging this #gettyflubs for future reference.)

[bernicem77]

...

@ SG and/or Bernicem77 what are the Canadian equivenalts of the AG, BBB and FTC?

I hope this helps and please keep us posted as to your progress.

We do have BBBs here in Canada. I think we could also complain to the Ministry of Consumer Services. Other than not, not sure where you could complain.

For the record, I use YAHOO.com small business as my webservice provider. I hired Oscar because my letter came from Getty USA. I'm guessing it came from Getty USA because I use Yahoo.com and not Yahoo.ca