I guess that I feel for 'newzshooter' and 'photographer' a lot more that I feel for the big stock image companies. It would appear to me that they're more like 'victims'.
I also sense that their situations are somewhat different than those of the large companies, but I appreciate the perspectives that they have expressed here.
Copyright infringement is not "theft". If you phone the police about a "stolen" image, they won't come; it's not part of any criminal statute.For now :)
Furthermore, if you get your stereo stolen, you lose the use of it, and you lose the value of the item. If an image is infringed upon, you don't lose the image, or the use of it. You may have lost the income that you would have had if the infringer had purchased it. But, that assumes that the infringer would have purchased it, which is speculative.Thats quite a simplistic view of it, as I gave in my examples above there are many other issues involved which can add to the damages. For instance I am negotiating for exclusive use of an image but first the purchaser wants to make sure that all the ripped off versions on the web have been removed. I dare say if that fee was in jeopardy the infringer would soon know about it. It also depends a lot on whether the stolen image was stolen wilfully, in other words if the person knew it was someone elses IP and removed all of those details. This can be difficuly on those who have stolen a stolen image if you know what I mean. Its hard to disprove the wilful aspect as the details have gone.
'photographer', you spoke of issuing proceedings, which I take to mean "court proceedings". My opinion is that the moral 'high ground' is sending a simple cease and desist letter. It works the vast majority of the time.Indeed, Id never go after a blogger for 9k, thats just ridiculous. However as I mentioned above there are cases where this has lead to loss of revenue beyond the basic image licence fee and thats when I really press the issue.
Threatening a lawsuit or going through with a lawsuit in order to generate monies is a method of using infringements as a revenue stream. There's nothing wrong with that so long as you own the images, have done the paperwork, and are asking a fair price. But, less people will feel sorry for your plight and others like you in such a case.There are two issues there, one is the ambulance chasing, downright bad news and the other is that it will tar people with the same brush who have legitimate complaints. Similar to those infringers who dont know any better as opposed to those doing it for commercial gain. Theres a whole range of issues and as you say photographers feel less sorry for those infringers who are as much a victim as we are. Indeed this site has been invaluable for some of my colleagues for providing them with contact details for lawyers who will take their case on. It works both ways.
I don't think that the vast majority of infringers are crooks or evil. The culture of the Internet up until very recently has been a free-for-all. It's the fault of infringers for sure, but it's even more the fault of artists/photographers who didn't consider protecting and policing their content until they realized that they could make money from legal threats. So, now we're left with quite a mess. Prior to this, most people had only heard of IP disputes over major brands or patents.Whilst I agree not all infringers are crooks or evil, I disagree that its somehow our fault. I have always made sure my images are marked with my ownership, indeed all images carry the camera serial number and owner so its embedded the minute we press the shutter. I also dont accept that that most people assume things are free, they must belong to someone somewhere (Ive been using the web since 91 and was always told to be careful of copyright issues, even before the net was invented).
Large stock image companies are doing a huge disservice to photographers/artists like you.Tell me about it, I have no love of Getty, Ive been badly treated by them for years, Getty is only out to protect one thing, Getty. This is what this is all about. If they dont stamp down on infringers and stamp down hard then they will lose their business too.
They wish to systematically weaken the copyright protections rather than strengthen them. They wish to make the system of bulk registrations acceptable as proof of copyright.Actually blame the USA for that. They did not implement Berne completely and hung on to the legacy which requires registration, everywhere else in the world that isnt involved so it is a lot of hoops to go through in the US courts.
However, the concept of bulk registrations actually weakens the concept of copyright protection for everyone.I dont understand? As far as I was aware only the copyright holder can register an image. In a lot of cases the likes of Getty and Masterfile do have in house teams producing the images and so own the copyright. They can register what they want.
If a company can say, "it's our image, and it's in there somewhere... just take our word for it", then how is that a proof of copyright?Its not. Thats the problem with the US registration system. You only sign a form to say you are the copyright holder. Theres nothing to stop me registering someone elses images. Hence why the US system is redundant and no other country does it. Everywhere else you just include the original in the court papers. Simple - it is what we have to do when we go to court anyway and by the time it does that Getty etc already have their affidavit witnessed by a local lawyer, proving copyright.
The image might be in the collection, or it could be a scam (it's not in there). Maybe it's in there, but it's your image, or even mine. Therefore, a person or company could claim whatever they/it wanted, and that would be proof enough. That would be fine if everyone was honest, but not everyone is. In the end everyone's copyright's are weakened, as standing would be based on taking someone's word for it, and that's not simply not enough proof in this day and age.Indeed, which is why the likes of Getty store the original file and have it on record with all the details embedded and they check this all out before sending the first letter. I cant say for Masterfile as I know nothing about them. When I send out infringements, I send out a copy of the infringing image, the context and a proof of my original file. Thats all the recipients lawyer needs to know so we can cut to the chase.
In any case, we're going to see something big happen soon. Getty might go to court over a big case involving several images.They have outside the US and won every time. One business in the UK I think it was decided to call their bluff on a 1500 GBP demand. They settled on the morning of the case for 27k GBP. Thats over 43 thousand dollars!
Or, several Masterfile victims may get together and file suit. Masterfile in particular may be vulnerable here. They have a policy of sending people threatening letters, making threatening phone calls, sending 'draft' lawsuits (this is illegal for collection agencies to do in some places by the way), sent cases to collection agencies over non-existent debts, filed papers with the courts and then backed out at the last minute when they realized that the defendant was going to fight.Again I cant comment as Im not involved with Masterfile but either way I want to see a resolution of this particular matter as it will stop all the ambulance chasers and let people know that creators with legitmate concerns address them.
Even a small number of people who have experienced the above could get together, and Masterfile had better hope that they own the copyrights. Demand letter recipients have been contacting the actual photographers about alleged Masterfile infringements, and some of these photographers are saying in writing that they still hold the copyrights.As I said above I dont know about Masterfile but my Getty contracts allow them to act on my behalf as copyright holder. Getty also get an affidavit regarding copyright before any court case. I cant persue any claim regarding my images lodged with Getty (as per the contract) and can only take this on if they are not willing (which is never in my experience).
Getty is often especially weak on copyright standing, so they're a target too.Again not in my experience. They often have things tied up incredibly tight. Ive had them reject model releases that the signature was smudged, date written in different order (signed by europeans) etc etc. In submitting images I have to be careful I dont infringe anyones copyright with the images or in the case of editorial images, clearly submit them as such. Even if I did submit a non-editorial image with copyright infringment, it would never get through and I would be on the receiving end of a phone call!
S.G.
'photographer': thanks for the interesting comments about the web design issue; it's quite a competitive business.And with all the cheap schemes it will come back to bite them on the ass. The problem is the beancounters never take this into consideration
I also have the impression that many businesses outsource web design to other countries to save money.
You stated that, "Its currently being discussed in the EU to put it on the statute and white papers on amendments to Berne have suggested making it either a global or country agency issue. In other words the good old government will recover damages through fines and will remunerate creators accordingly." I'm not aware of this, but, I'm interested in looking into it. However, I'm not sure how this could be successfully implemented. I can't see how the "state" would or could take on civil litigation issues for individuals or businesses. If it's a 'fine' that one cannot fight, then it would be "against the constitution" as US folks might say. Is there a source for the information?Have a look at the hargreaves response in the UK and the equivalent upcoming debates in the EU on copyright. Interesting thing is that Google have been told to go swing by the UK govt. Its no coincidence that Google image search which was recently launched is so well developed. They are touting for the international business this might bring. So as far as Im aware it wouldnt be a problem in the US. Its not the photography industry that is leading this, we are playing catchup. I had lunch last month with a music IP expert from LA and if you had infringed music IP rights then they really grab you by the balls. Its mainly music and video driving all the changes, photography seems to be an afterthought. The big studios/google have a lot of influence so I dare say, like a lot going against the constitution is probably just a question of how much.
You also mentioned that, "Just a bit of background info, my Getty contracts state that as copyright holder I authorize them to act on my behalf. When it comes to court I just sign an affidavit that I am the copyright owner (which is then verified) and I have instructed them to act on my behalf (just as you would any other lawyer). I have spoken to Gettys legal department many times and trust me, I would hate to be on the receiving end." I believe that there may be some serious legal problems with this method. This method of assigning the right to sue, but not the actual copyright has gotten Righthaven in a lot of hot water:I dont assign them the right to sue, I cant, I am the only one with a right to sue. Of course I can instruct them to represent me and get the best possible outcome for my images. Dont confuse people being stupid and doing the wrong thing with the ones that do know what they are doing.
Getty has had some success outside of the US, but I do believe that it's been a bit spotty. They haven't won every time.As above, there are certain cases where the information has been incorrect or presented in an incorrect manner, in all the cases I am aware of (I know a lot of other Getty photographers) they have won.
The big win in the UK was earth-shaking. The defendant didn't show up for court as I understand it and received what might be considered the worst possible outcome.As far as Im aware they did show up and it wasnt really the worst possible outcome, it was just the demand that Getty had asked for plus interest but with massive legal fees.
Getty lost quite a famous case in Germany. They sued an alleged infringer who has his own contract with the photographer, and Getty lost in court.
"In Germany, Getty images lost a court case to an individual after the person has proved that he gotten exclusive rights from the photographer."Again selective quoting, the individual bought a retroactive license from the photographer. All legal and above board but the Getty contact allows them to recover costs of the proceedings from the photographer, bit stupid really. No mention is made of what happened to the photographer, the account etc.
As you can see, I'm more familiar with US/Canadian issues. Perhaps you can shed even more light on UK concerns in future posts?No problem, I dont mind sharing with people who have a rational interest in the subject rather than just trolling (I do and always have copyrighted all my photos btw). Im familiar with the issues globally as I have to be, I work globally and each jurisdiction is different. The meeting with the music professionals in the US and Canada was a real eye opener. Their approach to infringement makes the Getty approach seem reasonable!
Just some of my thoughts and some stuff that I found on the web along the way. Thanks for your contributions here.
S.G.
I dont assign them the right to sue, I cant, I am the only one with a right to sue. Of course I can instruct them to represent me and get the best possible outcome for my images. Dont confuse people being stupid and doing the wrong thing with the ones that do know what they are doing.
I dont assign them the right to sue, I cant, I am the only one with a right to sue. Of course I can instruct them to represent me and get the best possible outcome for my images. Dont confuse people being stupid and doing the wrong thing with the ones that do know what they are doing.
If I read this correctly, this means that GI can only send out the demand letters and not file suit on behalf of nay artists.In order to file suit they (GI) would need to be the actual copyright owner, and also have the image registered. From what I understand Getty does not have most of the works in their library registered. Perhaps this is because they can't register images that are already registered by the artist?
in all the cases I am aware of (I know a lot of other Getty photographers) they have won.
photographer said:Quotein all the cases I am aware of (I know a lot of other Getty photographers) they have won.
Really? My take is that in the US nearly all the handful of cases that Getty has won have been default judgments. The other "wins" were settlements before a verdict was actually rendered.
You mentioned that wilful damages don't need registration.
True, you can collect punitive damages without registration; that would be the fair purchase price of the image (often $39 to $300).
This is usually a low amount and is often not worth litigating over. But, you cannot collect statutory damages if the image isn't registered. That's where the real money is.
S.G.
In the Getty case in the UK, the defendant did not show up for court, and the plaintiff won on default:
"I have actually commented on this case on the UK blog on the FSB forum; it appears that the defendant did not contest the case and it was granted on default.
Also, I believe that the issue of "innocent infringement" which in UK means that there are no damages awarded if the infringement was not intentional, was not argued either.
So I don't know how much precedent value the case will have."
-Oscar Michelen
S.G.
I would classify those as a win, they didnt lose and they didnt draw and the infringers ended up paying...
Oh and I see masterfile have been bought out today....
I meant wilful infringements as in wilfully deleting copyright information contained within the image (Title 17 1202).
A lot is has been said in this thread, but I don't see much in the way of links to sources on the web that would confirm many of the opinions.
So, for what it's worth, thanks for your opinions.
'photographer' says that, "the Getty photographer agreement is an exclusive one and that also includes extending them the rights in the first instance to pursue all infringements", but this statement is directly contradictory to the Righthaven case which shows that it's unacceptable to transfer only the "right to sue".Again this is a very basic misunderstanding about what an agencies function is. Righthaven were claiming a different function which ultimately failed and wouldnt stand up in court in any jurisdiction.
My argument is tested in court, I can provide evidence of this. Business agreements will never override the rule of law or legal precedent; Getty doesn't have that kind of power.Totally agree with you, Ive never disputed this, Im just trying to explain what an Agent is. I cant sue anyone in a court of law because Im not a lawyer, I need a lawyer to act as my agent and work on my behalf. Thats the difference, Getty are an Agent, Righthaven were trying to be something else.
I haven't seen any evidence to the contrary posted here, just opinions from people who make money from posting misleading information.I hope you arent referring to me as someone who makes money from posting misleading information. That is libel after all and I could sue ;-)
Or, stating absurdities such as the "government" is going to go after infringers and fine them. Are you 12-years old, or something?Nope I not 12 years old but my 12 year old nephew could probably read the white papers and come to his own conclusions... which is all I am asking people to do. Dont be led by the nose by anyone here (myself included) do your own research, if you have been issued with any claim then consult a qualified IP attorney/lawyer and dont listen to hearsay.
It simply serves to illustrate how the scheme of misinformation operates in order to entice people to pay with doing their homework.
'photographer' sounds like a 'sockpuppet' for HELPI who left here because his "cover" was blown.There you go with the libel again.
The whole, "we don't need to own the copyright because we have an exclusive agreement" argument is becoming tiresome.Again you are missing the point, I do have total control, all my images are copyright, I just choose to instruct Getty to sort out the images I have with them. If I didnt like it I wouldnt have signed the agreement. I do use other agents (lawyers, attorneys, solicitors, barristers) to do exactly the same result. I own the copyright, its down to me.
Copyright your photos properly, and you'll be fine. That's the only way that you can have some control in the world of infringements.
But, I'd be very, very interested to see a copyright infringement challenge in court for tens of thousands of dollars wherein the plaintiff arrives with a complaint, but no paperwork from the copyright office as proof of ownership.Would anyone be that stupid? Would any self respecting law firm let it get that far without any cast iron proof? It would be laughed out of court and be incredibly expensive in costs and probably perjury/whatever.
I get the points that you're making in your last posting. If I may:Nope, thats not what I said and contrary to the views Ive posted. It does take time to do fact finding and research and a month or two isnt going to make much difference to the interest. In my posts where I have mentioned what I have done I have always mentioned negotiating. What isnt worth doing is ignoring it and hoping it will go away. Some sort of conclusion must be reached.
"Hurry up and pay out. It takes time to do fact-finding plus research, and you may accrue interest while you're doing that. So pay up fast, don't negotiate."
"Don't ask questions of the demand letter sender, because you'll get charged for every phone call and email that it takes for them to convince you to pay."Nope, again I didnt say this. You have to ask questions of the demand letter sender, they could be trying it on. They have to provide you with details of the infringment and evidence of how they came up with their figure. They also have to give you enough time to contact your lawyer (see point below), present them with the evidence, see what they say and then get back to them with your figure and then negotiate. In every single case Ive ever had it has always been advised to enter into negotiations. After all a judge/jury will look to see if the process has negotiated to see if an amicable settlement has been reached. What bearing they put on this is up to them but its worth remembering.
"Lawyers are 'bad' because they make a living defending people from Righthaven, Riddick/Imageline, MF and Getty Images."Good lawyers also make a living helping me recover damages from infringers. In fact I would go so far as to say some of the same lawyers are doing it for both parties. Where people have to draw the distinction is when the lawyer(s) offer bad advice, take things off the internet or are just stringing things out. Most settlements can be sorted out within 2-3 weeks if its done correctly and there is no dragging of heels by either party or the solicitors. I have had one case drag out 8 years (not copyright) and whilst the payout was substantial, the legal fees dwarfed this.
"Furthermore, lawyers cost a lot of money, so it's much cheaper to just pay those who send demand letters. It's too expensive to fight them."Not if you have union representation or use your company insurance policy and legal protection line....
"The lowly photographer gets screwed in the end, regardless."Ive been screwed as much by Getty as infringers, dont worry about that one.
Thanks for your opinions. I don't entirely agree with you, but perhaps I've helped to clarify where you stand?No, Ive done that myself. My opinions are based on my experience, not through quoting stuff other people have said or misinterpreted on the internet. I go through dozens of these infringments per year, which range from takedown notices to filing court papers, on various continents. You only have my word on that and can disregard it if you want but it is my experience and no amount of quoting wikipedia entries or someone elses assumptions and misinterpretations of other peoples postings will change that. I am in possession of all the facts about all of my cases. I also quote from actual people and actual circumstances I know.
Thanks once again for calling me "Charming", Helpi.So let me get this straight, someone else, in a different part of the world says similar things to you and you dont think, hold on a minute two different people telling me the same thing doesnt mean perhaps they are right or have a different view, they must be the same person?
"Nice S.G. Very charming."
S.G.