Getty, Masterfile, Righthaven, and others committing crimes on a daily basis?

[newzshooter]

@ Soylent

I think we will see the number of images registered as a collection (bulk) drop a bit. I registered about 500 images in one shot not too long ago, and got a notice from the copyright office requesting that in future registrations I supply a list of image titles with the registration. Right now, they are only making it a request, but I have a feeling it will be a requirement before too long.
It will add another step to the registration process, along with adding more time to complete the form. On the positive side, it should clear up any questions about ownership of an image, strengthening a copyright holder's claim while reducing false claims and BS litigation.
For me, it will probably force me to cut down the number of images I register at once, I'm figuring on about 200 or so in a collection from now on.
I don't know how it will affect Getty or the other stock sites, I suppose they'll have the money to pay people even though it will drive their labor cost up.

Righthaven has singlehandedly f-upped the legitimacy of actual copyright holders in this country. Because of them, anyone who pursues a claim is automatically assumed to be a troll.

[photographer]

'photographer': thanks for the interesting comments about the web design issue; it's quite a competitive business.
I also have the impression that many businesses outsource web design to other countries to save money.

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

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.
Essentially the idea is that you have one big overseeing body that has the power to 'license' copyright information which initially will be reactive but then it will be proactive... hmm retroactively licensing IP contact - a fine by any other word. Of course the govt gets a cut for managing the thing which it will outsource as it doesnt have the capability to host and search worldwide...

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.
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.

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.

"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?
Just some of my thoughts and some stuff that I found on the web along the way.  Thanks for your contributions here.

S.G.

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!

As I said above, I have no love for Getty or any agency but at the same time if someone does rip me off I will go after them. I will say though that the vast vast majority of people I contact about infringements are well mannered, apologetic people who its easy to come to an arrangement with. Its the ones who get abusive or try to enforce their 'rights' without seeing the irony that I just hand over to lawyers. They will all pay in the end as I do dot the i's and cross the t's.

[Robert Krausankas (BuddhaPi)]

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?

[Katerina]

If such a case, then how come that they send demand letters stating about "infringement of their registered image"? It is lie from the very beginning then!

[photographer]

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?

Only the copyright holder can file suit anywhere in the world, that is true. However, the Getty photographer agreement is an exclusive one and that also includes extending them the rights in the first instance to pursue all infringements. They are acting as agent. They find the infringements and pursue on our behalf, thats in the contract. Its no different to any recovery service, its the same with my appointed lawyers, I give them the information they need to get on with it and they do.
When it comes to court the copyright holder has to give explicit permission for the lawsuit, which we do before it ever comes to that stage.
Getty is our agent and they are acting for us, just the same as we would ourselves or any lawyer working on a contingency basis. Thats what we essentially pay them for with their cut of the royalties.
Of course Getty also wholly own copyright to a lot of the image in their archive so they can just sue away without anyones permission.

The registration bit is a bit of a red herring too, wilful damages dont need registration, nor does any illegal usage fee etc. Getty can only register the images it owns the copyright to but thats not to say the photographers dont register the images themselves. Its something we have to fill in with each image we upload (except breaking news/editorial which is often registered within the time limit post publication). So yes they are the sole agent, all sales go through them, and they know if the images are registered or not.

So in short, in the majority of cases, what Getty is doing is in accordance with the photographers agreement. They act on our behalf. Thats the job of the agency to pursue infringers. They have a 'duty of care' with our images and our contract.

[SoylentGreen]

"photographer', to best reinforce your points please include sources from the web whenever possible.
My posts are my opinions of course, but I also include the sources of my information whenever I can.

I still don't see how government-run Internet policing would work.  No government would spend hundreds of millions in taxes on such a scheme; they'd get voted out.
That's like saying that "the government" should have spent 20 million dollars on PicScout instead of Getty.
Then spend $135 dollars an hour searching the US copyright database for each alleged infringement to determine who owns what.
Next, pay multiple lawyers $250 - $500 an hour to fight alleged infringements in court.
Are infringements more important than health care, or more important than education?  Are you actually serious?
Can anyone imagine the actions of Righthaven or even Imageline/Riddick being publicly funded while some governments are going broke?
There would be riots in the streets and people would die.

You can certainly instruct Getty to represent you.  In fact, anyone can sue anybody else at any time for anything.
But the likelihood of a court win is remote without Getty owning the copyrights because of the Righthaven precedent that I quoted.
My advice would be don't go to court unless you *own* the copyright, otherwise you'll lose and end up a lot poorer.
You could "team up" with Getty in a lawsuit, that would work.

In all the cases that I am aware of (and I've provided proof), Getty hasn't always won.  Do you wish to contest this statement?
While all quoting is "selective", it still stands that Getty lost the case in Germany.  Getty does not always win.
I can quote the case from 50 other sources, but folks can use Google if they would like to verify that.

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

Source:
http://www.extortionletterinfo.com/forum/index.php/topic,641.0.html


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.

"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."

Source:
http://www.benedict.com/Info/Law/Why.aspx


Much has been made on this forum about Getty being an exclusive agent and exclusive contracts.
But I must again remind you that this failed miserably for Righthaven.  So, I cannot see how such an argument holds water at this juncture.

Beyond all of this, the best course of action is to copyright images individually as you have done.
There's nothing stopping anyone from doing this, except the effort needed.  The other methods aren't working.

S.G.

[newzshooter]

Actually, Righthaven is a completely different breed of duck.
While Getty, Corbis and others have been representing photographers for years, Righthaven represents no one but itself. It makes no effort to create its own content, which Getty and Corbis both do, it merely purchases rights for the sole purpose of suing for infringement.

[SoylentGreen]

Yes, Righthaven is different from Getty in many ways.  So, you're right.
But, Righthaven and Getty are much the same in a key aspect.

Getty is much like Righthaven in that it frequently threatens to litigate over content for which it doesn't own the copyrights.
If Getty owns copyrights for all of its content, and also doesn't threaten to litigate over content for which it doesn't own copyright, I'll gladly retract the above statement.

Whether or not a company creates its own content or not doesn't generate copyright standing.
Copyright standing (for practical court purposes) is only created by proper copyright registrations.
Anything else is what I call "Phantom Copyright"; that's anything that essentially worthless as proof in court.  The hearsay stuff.

That probably explains why Getty hasn't followed through with very many lawsuits.
Defeating Getty in the 'States is as easy as not paying.  So, it's kind of a moot argument anyways.

S.G.

[Jerry Witt (mcfilms)]

photographer said:

in 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.

I would be very interested to learn which cases in the US have gone all the way to trial with plaintiff and defendant present and a judge has awarded the plaintiff.

I cannot find them.

[photographer]

photographer said:

in 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.

I would classify those as a win, they didnt lose and they didnt draw and the infringers ended up paying...

As mentioned above the Getty thing is a different animal. They are no different to the people who sue on behalf of George Lucas and Bruce Springsteen etc. You dont actually think George or Bruce have to sit down and fill in forms themselves do you? They have people to do that for them.
It is exactly the same laws, being done in exactly the same way. Up until now it has been incredibly difficult to find infringments, now its just a few clicks away.

Thats why Getty and Righthaven are different. Getty are my agent, I pay them, they do all the processing, keywording, marketing, selling, invoicing, tax calculations, tax liaison with the IRS, infringments etc etc.
I think you have a basic misunderstanding of the concept, they dont need to own the copyright to chase infringers, that is what I am paying them for. Section 1.4 of the Getty photographers contract authorises them to do exactly what they are doing on my behalf.

As to the registration body for government use, Google have already hinted that they would do it. They have given up their crusade to have all internet content copyright free. As they often cried that it would be impossible for them to set up in business in the UK/EU and having had the orphan works ideas thrown out by the UK govt (which would contravene EU law anyway) they are poacher turned gamekeeper.
After all if you have spent all the time developing a decent image search, then its only a matter of time before they replace the likes of Getty, for a less percentage and with the blessing of governments as its all outsourced to them at no cost for the additional revenue.

Oh and I see masterfile have been bought out today....

[photographer]

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.

A very important point so I'll make it separately.

No, I meant wilful infringements as in wilfully deleting copyright information contained within the image (Title 17 1202).
17 1203 allows statutory damages 2.5k - 25k without copyright registration for 1202 infringements.

Thats on top of any other damages (either fair purchase price or statutory).

[photographer]

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.

Apologies, I missed this out earlier as well. The plaintiff didnt win on default, a deal to settle was done on the day of the case and the judge rubber stamped it. Hence in the official press releases the case was deemed 'settled' not awarded.
Also there is a 6 year statute of limitations for this in the UK, similar in other EU jurisdictions.

[Jerry Witt (mcfilms)]

I would classify those as a win, they didnt lose and they didnt draw and the infringers ended up paying...

I wouldn't. The point is that this still hasn't been tested or "won" in court.

Oh and I see masterfile have been bought out today....

This IS interesting. How does a company that is trading at 9¢ a share and has a market cap of less than $11 million manage to buy a company for $21.4 million in cash?

I'll tell you what. If I was being hassled by Masterfile I would look at this transaction VERY closely. There is something _odd_ going on here.

I meant wilful infringements as in wilfully deleting copyright information contained within the image (Title 17 1202).

That would be hard to prove. Unless someone was an employee of a firm and they testified that their boss told them to remove the copyright info. I suspect willfully deleting copyright info is very, very rare. In the VAST majority of the cases on this board. People were either told the template or stock was theirs to use OR they have pulled down images from other sites and incorrectly assumed they were in the public domain.

In court, if a representative insists that the image had copyright information affixed and the defendant says that it did not come from that site and did not have it at the time, willful infringement will not be proved.

[SoylentGreen]

It's obvious that there are those who rely on (or partly rely on) infringements for their livelihood.
I don't really expect them to concede any kind of weakness on the part of Getty or its counterparts.
There's a vested interest on their part in keeping up the ruse that Getty (and others) have the ability to sue absolutely anyone and win every time.
A vast majority of the money made from settlements is made from those who fall for the ruse.
That is, those who believe the rhetoric that Getty is always in the right and always wins.

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".
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.
I haven't seen any evidence to the contrary posted here, just opinions from people who make money from posting misleading information.
I cannot see how this helps photographers, artists, Getty or anyone else by attempting to re-write history and pretend that some things never happened.
Or, stating absurdities such as the "government" is going to go after infringers and fine them.  Are you 12-years old, or something?
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.
The whole, "we don't need to own the copyright because we have an exclusive agreement" argument is becoming tiresome.
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.

I'll just finish here by saying again that anyone can sue anyone else at anytime for anything.
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.
A big court case... then nothing... so quiet that you could hear a pin drop.  "My dog ate my copyright, your honor".

S.G.

[photographer]

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.

There are many links, have a look at sites like the Getty UK solicitors, Carolyn Wrights site, Stop43, copyrightinfo etc etc. But they are just internet sites and Im sure there are as many wikipedia entries one way as the other.

'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 dont think I can explain this any more than I already have, if you choose to ignore it then fine, we will agree to disagree.

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?
It simply serves to illustrate how the scheme of misinformation operates in order to entice people to pay with doing their homework.

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.

'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.
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.

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.

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.

If whilst reading this you take anything away is that dont listen to anything you read on the net, consult the relevant legal team in your jurisdiction. And no Im not related to anyone touting IP services on the net either (although my cousin is a barrister and an ex-girlfriend (yes another one) is a solicitor) oh and Ive had lunch with music IP attorneys.

I am a photographer and I dont rely at all on infringements for my livelihood (or part of it).

Of course there is the simple fact that if noone infringed IP in the first place, we wouldnt need this discussion.
Now theres a thought..