Masterfile - in need of urgent advice

[Oscar Michelen]

Yes you are correct. But if you read the Muensch case you will see that according to that decision, MF may not have the right to claim that single image as a registered image if they registered as part of a compilation

[Bekka]

Does the ruling in Muensch case still stand?  If so, I have a question regarding the compilation registration.  I just received the registration paperwork from Masterfile and it shows 3 pages of authors and works ranging form 700-0001 through 33000.  Most are not for hire, but the image in question for me is an author who uses a pseudonym name of MTPA Stock and is listed on the form as "for hire."  Does the Muensch ruling still apply in this senario?

[Katerina]

Thank you so much, Oscar! I will study Muensch case.

[Nemen Night]

You need to get yourself freed of the paranoia and ignore everything. Dont respond to anymore Masterfile letters and you will be just fine. Trust me. Don't listen to anoyne else here, that you need to reply, give an offer etc... just forget it. never reply, never pay. Thats it. Problem solved.

[Katerina]

Hey, guys, could you please help me to understand this:
"§ 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully." (employing preexisting material - in case of Getty and Masterfile, does this term mean images taken by photographers?)

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work (if Masterfile is the author of compilation, but is not the author of the images taken by photographers, but has agreement with them - does it apply here?), as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."
any ideas?

[Katerina]

Well, I got totally confused.
Masterfile registers images in compilations, and is the author of this compilation even though is not the author of each particular image. So, this compilation, the catalog, is their registered work, thus using one or several images from their catalog is using some part of their registered work, right? So, if I understand correctly, they have all rights to claim damages from infringements of their registered work – compilation. Right? Then how does Muench case apply here, saying that they cannot claim damages unless they register each particular image? May be I am misunderstanding smth…… or got overhelmed....
Any comments on this?

[Bekka]

The info that I was sent from Masterfile showed that 33,000 images were registered at one time.  However, they included 3 pages of authors along with it.  Now, since I can't see the individual image in the compilation, I don't know if it shows who the author is and if other relevant info is attached to the image.  The way the law is written seems rather confusing in my opinion, even the Muensch case results are written in a confusing way.  It really does take a lawyer to translate!  I don't know if the reason the they were ruled against is because each image is not marked accordingly or if it is because some of the registrations only list one author and then "numerous others," without listing their individual names.  In my case each author's name was listed, but I don't know if they were attached to the images that they created.  This is a point I would like clarified as well.

[Katerina]

True, I have the same question. But, I think that the only way to check if the image in question is really associated to that registration and author is to request this service from Copyright office, but there was a topic, that most of CDs are corrupted, so you still cannot see, and you have to pay for this, but the court can accept the sworn statement that the image in question is on that CD anyway. So?
Confusing......Muensch case is written in confusing way, I read it several time........

[Nemen Night]

Just because Oscar says it, it does not mean that the Judge will accept sworn statements from Masterfile against little person like you Katrina.

If the image is not on the CD it is not part of the compilation and it is not registered period. The Muensch chase will apply here because there will be no way of knowing whether or not each image on the CD was properly identified with the artist name. Any sworn statements will not prove it beyond any reasonable doubt and therefore will not be accepted by the judge or jury.

Here is a hypotetical scenario:

The judge ask Masterfile: Where is your evidence of registration?

Masterfile will say: Here, on the application..we list all artists right here.

Judge: Ok, where are the pictures?

Masterfile: All pictures are on CDs that we sent to the Library of Congress.

Judge: Lets see the pictures. Lets see if they have been properly named because we don't like images registered in compilations. Compilation works consiting of pictures that cannot be identified by the artist name make the registration invalid. Please put the CD into a computer now. I want to see the pictures.

Masterfile: Actually, Sorry your Honor, the CD's dont work and we can't see any of the images, but we swear that they were there.

Your Lawyer: My client swears too that he/she had no reason to belive that the image was copyrighted and therefore it is an innocent infringement.

Judge to Masterfile: Well.. We Masterfile we can't just take your word for it. We don't even know if the picture you claim is on the CD let alone confirm valid registration (Muenuch case).

Masterfile: But your honor, all the pictures were there on the CD.

Judge: Given the incomplete evidence of proper registration of individual images and inability to confirm existance of those images, I rule the registration invalid.

Judge continues: Given that we have lack of registration and the defendant innocent infringement, the amount awarded to Masterfile is $200 per image. No statutory damages and legal costs are owed to Masterfile.

You pay $200, go home, celebrate and blog about it.

[Katerina]

Lol! Funny
Thanks for support

[SoylentGreen]

Nemen Night does make a good point that the plaintiff must prove his/her case.
While the burden of proof isn't as high as in a criminal case, there must be compelling evidence nonetheless.
Part of the MF/Getty tactics are intended to make the average person (who often knows little about copyrights) feel that the case rides solely on the defendant's ability to prove "innocence".

S.G.

[Katerina]

I know.... We got this feeling from correspondence with them.

[VIN1028]

I am in a similar situation except the extortion amount is MUCH higher. My understanding is Statutory Damages are only applicable if the infringement took place AFTER the image had been registered with the U.S. Copyright office. Is this a true statement? Does no statutory damages also mean they cannot make me liable for their attorney fees if legal actions are taken? Assuming both are true, it is highly unlikely they will persue litigation???

In looking at the Copyright database, the artist registered thier compilation (not individual images) only this year; while the demand letter makes the accusation we have had the image on our site for several years.

Any thoughts, anyone???

[Jerry Witt (mcfilms)]

VIN1028,

I would say that you are in the position to just about tell the photographer or stock agency to pound sand.

SG just put up a great explanation of the copyright registration law in the US. See:
http://www.extortionletterinfo.com/forum/index.php/topic,2188.msg2854.html#msg2854

This is one case that I would think would be highly unlikely to go to court. You may want to consider making a low-ball offer without admitting any guilt and in the interest of not wasting time. I have read on here that such a good-faith settlement offer might mean they have to pay all court costs (theirs and yours) even if they win an award. (In the VERY unlikely case that this went to trial.) I'm sure someone will correct me if I am wrong.

The one thing you should be doing is trying to find out and document for yourself when and where the image first appeared on the Internet. Also see if it appears anywhere else and if there are similar images available that are not "rights managed" and available for a flat license (or public domain). Also you need to document your story as to how you came upon having the image on your site.

I think it's funny the artist is just now getting around registering it but wants you to pay for using it for years. Pretty snakey.

[VIN1028]

Thank you, mcfilms. This is encouraging to hear. I greatly appreciate your valuable input.