Photographer responded to my email ....

[grafiti]

Hi there, your site has really been helpful! My letter was asking for $900 for a 100 px x 80 px image I was using as a placeholder - it simply got overlooked when the site went live.

After reviewing your videos, I sent an email letter back to Getty explaining my Innocent Infringement in using the tiny photo.  I also sent the photographer an email asking if Getty owned the copyright to the image.  This is what the photog wrote back to me:

Getty images doesn't own the copyright, but as long as its on their website 
I can't sell the image on my own because of the contract I have with them. 
If you have any other questions feel free to contact me.

Before I call Getty to follow up (they haven't responded to my email yet), is this anything I can use in my defense, or is the 'contract' the photog refers to, something that gives Getty all the rights to use the image, even though they don't own the copyright.

Thanks for any insight on whether I can use this little bit of info or not.

Kristi

[SoylentGreen]

Thanks a lot for your post.
It's surely of great interest to readers here.

That email from the photographer is probably your ticket out of trouble.

What most people worry about in these situations are court and the possibility of statutory damages being awarded to Getty (which could be many times the actual retail value of the image).
Since Getty doesn't own the copyright, they couldn't pursue statutory damages in court.
They could attempt to pursue a case over the retail price of the image in court, but that value would be so low as to make the prospect of court a near impossibility.
In any case, I haven't heard of Getty going to court over only one image.

If you wanted to be fair, and put an end to harassing letters, etc, you could determine what the price of the image would be over the length of time that you used the image and offer that payment to Getty.
Hopefully the photographer would get some of that, but who knows?
You might choose to ignore the problem, and they'd likely never formally pursue you.  But, you'll still get threatening letters for a while.

I never believed that everything sold by Getty was actually "copyright getty images".
I find your case especially interesting, as it seems to blow the "exclusive agreement = transfer of copyright" concept out of the water (there was some person making noises about this very issue on the forum).
If Getty told you that they own the copyright and they don't, then it indicates a moral/ethical problem with Getty Images and its management.
I'm sure that sort of thing is what made Matt and Oscar decide to create this forum.

S.G.

[grafiti]

S.G.

Well, I reread the demand letter and I didn't see anywhere where they actually say they own the copyright.  They use the word 'represent':

"...you are using an image represented by Getty Images." 
and
"Getty Images, on behalf of itself and its represented photographers,
 is committed to protecting its imagery from unauthorized use."

I would love to ignore the letter, but being that I was hired by a company to build their website, and THEY got this nasty letter, I want to settle this ASAP so they don't continue to be harassed.  How embarrassing!!  But at the same time, I want to see if I can settle for a reasonable sum.  As Oscar suggested, in my response letter, I told them what I felt was a fair amount (based on the usage and size from the Getty site). 

Well, for now I am glad to have this email, it might come in handy.  But if I have to pay, I would rather give it to the Photographer!! 

Kristi

[Helpi]

SG,

"(there was some person making noises about this very issue on the forum)."

Better to refer you to the relevant statutory provisions. You probably won't follow them but I think at this point it's enough from me.

The sections work together, like much of the Copyright Act

Copyright Act  ( http://www.copyright.gov/title17/ )

From Section 101:

A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.


201(d)(2), in part

"...The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title."

Section 501(b), in part:

"(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411 [Registration], to institute an action for any infringement of that particular right committed while he or she is the owner of it."

Ergo, if Getty has an exclusive license (and the photog didn't hold back the right to sue) Getty would have standing to sue to the extent of the license.

And I hear you that they pressure you (like anyone making a settlement demand) that they have a really strong case. But please stop making noises like I've ever suggested anyone take claims in a settlement demand letter at face value instead of running it by their lawyer.  This is about the fourth time I've asked you to please stop misstating my views. 

I'm going to retire from the standing issue at this point. It's been beaten to death.

[SoylentGreen]

I'm not trying to misstate your views; I wasn't responding to one of your posts.
You're entitled to your views.

A transfer of copyright ownership can be an exclusive license.  In some cases.

An exclusive license doesn't necessarily include a transfer of copyright ownership.
An exclusive license can be any document that provides "exclusivity" in some area of business.
As you can see from "grafiti"'s post, Getty doesn't own the copyright, although the photographer has an exclusive agreement to only sell through Getty's channels.
Unless you're saying that "grafiti"'s lying, and the photographer is lying.

Are you really an attorney?
Or are you trying to tell the readers here that Getty has copyright standing no matter what?
If you are an attorney, you should be putting some sort of disclaimer in your posts that you're not giving specific legal advice and that a posting to the author in a thread doesn't constitute an attorney-client relationship.  Guess you missed the ethics course at the Correspondence Law School.

S.G.

[Helpi]

"A transfer of copyright ownership can be an exclusive license.  In some cases."

That's an odd way to state it. But, yes.

"An exclusive license doesn't necessarily include a transfer of copyright ownership."

That statement is legally gibberish. I can't go into why. I refer you to another lawyer you trust.

"An exclusive license can be any document that provides "exclusivity" in some area of business."

??

"As you can see from "grafiti"'s post, Getty doesn't own the copyright, although the photographer has an exclusive agreement to only sell through Getty's channels.
Unless you're saying that "grafiti"'s lying, and the photographer is lying."

You can't make any of these "determinations" without examining the relevant documentation. This is the last time (I don't think the point gets stronger with repetition) I'll make that point to you. My understanding is that in almost no case does a photographer ever assign the copyright. Which doesn't answer whether Getty has standing. Am I really engaging in a back and forth discussion of standing with you. I must have my head examined.

Are you really an attorney?

Asked and answered. Coincidentally (or not) went to law school with one of the Profs at NY Law.

Or are you trying to tell the readers here that Getty has copyright standing no matter what?

That is the nth time you have misstated my views. I don't wish to engage in personal attacks but are you for real?

"If you are an attorney, you should be putting some sort of disclaimer in your posts that you're not giving specific legal advice and that a posting to the author in a thread doesn't constitute an attorney-client relationship.  Guess you missed the ethics course at the Correspondence Law School."

I've stated that N times as well. But up is down to you. Left is right. EVERY POST IS FOR DISCUSSION PURPOSES ONLY. NO ONE SHOULD POSSIBLY

[Helpi]

Opps. Hit enter or something. I no way, shape or form did I intend to right F.U.
rest of post to follow

[Helpi]

the rest of the words were : POSSIBLY rely on anything I post. In fact, repeatedly I've said I can't speak to any particular case. Even if I wanted to, which I don't, how can anyone possibly do so without speaking to the person directly and getting all relevant docs so they can review them. I know you can't be on the level. No, nothing I post here should ever be construed as legal advice in case after N posts it's still not perfectly apparent to you.

You more than most must see an attorney competent to handle your case and your many questions.  Make sure they provide you a stamped, certificate of good standing with the bar because there is no way someone like you will sleep at night merely viewing a diploma. After all, it is possible they failed the bar or perhap they were subsequently disbarred but are still soliciting clients. They fabricated the diploma. Any number of wild scenarios. Think about it. It's a scary world. No one would ever try to assist someone. Someone is always out to get you.

Matt, the "fuck off" isn't a problem in this board. Oscar, this is the type of board you want representing your law firm ?

Please moderate it. Keep it civil. You'll not only lose posters but I'm telling you other people will read the board (posters and not posters) and not come away with a very positive view.

[Katerina]

we contacted the artist as well and that's what he answered:
"The contract that I signed with Masterfile is still valid and applies to all of my images held by Masterfile.  Copyright law applies to all pictures regardless of the medium (digital or other).  None of my pictures are public domain."
Also, there is a line in a contract that the artist that the artist warrants MF that he or she is the sole and exclusive owner of all stock images delivered to the company, and then there lines that the artist appoints the company as exclusive agent for sale  and licensing of the images,  grants full power and absolute authority to license the images, and the artist waives "moral rights" of all images (what does it mean? I do not completely understand). Then it is written that the copyright of all images is and will remain the exclusive property of the artist. But, this registration empowers the company to sue the infringers for statutory damages in the USA......
That's what was written in the agreement. So, it looks like the artist granted full authorization to sue on his behalf.
Every situation is different. If the poster's artist  said that Getty didn't own copyright, he might be right, but it needs to be checked what was written in the agreement, because if this is similar agreement, he authorized getty to sue of his behalf.
 And again - please calm down.

[SoylentGreen]

Good post by Katrina here.

Surely we can all agree that we must check all of the relevant documentation and evidence before making decisions about settlements, etc.
Do not assume anything.

"Armchair attorney" Helpi and I actually agree on his statement, "You can't make any of these "determinations" without examining the relevant documentation."  Amen.

My "case" is long gone, and I didn't pay anything.  So, fight if you can.
I could have bought a really nice car with the kind of money that was demanded from me.
In fact... Damn, that leather feels great on my ass. I don't like Bose audio stuff usually, but they make a decent car stereo.

Something else just occurred to me about what Katrina said.  It's really key.  Get this.  Wait for it...
Masterfile has the right to sue...  etc, etc... scary legal stuff.
BUT, if the artist retains the copyright, then Masterfile cannot get statutory damages in court.  Just the retail purchase price of the image.

S.G.

[Katerina]

Thanks, S.G.!
I think that I will re-read the agreement one more time.
btw, that copy that we got from MF has some blank space in some sections, like, the text was covered with a piece of paper when it was scanned. It was payment section and some thing else. I believe, this information is considered to be confidential and that's why they covered it. but, what if in covered information there is a key? What do you think, should I request the full copy?

[Katerina]

If so, if they do not own the copyright and cannot get statutory damages, then how come that they were awarded from Country Cycling? Default Judgement?

[Matthew Chan]

Everyone needs to cool down.

As much as some of us might disagree with HELPI, he really hasn't crossed any boundaries that I can see.  He might be a bit provocative, I will admit but let's be civil here.

I am deleting/editing posts with the F-word.  It isn't that the F-word isn't allowed.  But we should not be telling people to "F-off".

Also, this website doesn't represent Oscar's law firm.  Oscar lends his name to the ELI project and forums and he has the right to withdraw at any time.  Having said that, we cannot let these forums devolve to name-calling and using profanity at each other.  I also am not looking for a reason so Oscar can escape us.  :-)

And if I slip up on the profanity (which as been known to happen I admit), I expect someone to tell me as well.

Matthew

[SoylentGreen]

Matt,

This "Helpi" guy called me a "douche".  He even spelled it wrong.  But, seriously, I don't really care.  "Feels good man".


Katerina,

Country cycling lost on a default judgment.  They didn't show, so it was pretty much hopeless for them.

I wouldn't worry too much about what was hidden on the contract.  If it was anything that would help their case, they would have left it in.

I was going to wait for somebody to argue with me.  I honestly wanted to fight some more about how "exclusive agreements = assignment of copyright".  But, I'm busy.
So, I'll just mention it now.  Masterfile's trying to do what Righthaven/Stevens Media were trying to do.
Righthaven sues, and Stevens Media holds the copyright.  It isn't working out too well for them is it?
Same as Masterfile sues, and the photographer holds the copyright.
You can't transfer the right to sue according to the courts.

Yesterday, a federal judge tossed the case. This has been a pattern of late; Righthaven's agreement with the Review-Journal's owner didn't actually assign the story copyright to Righthaven, instead granting a bare right to sue over the story. But such a right doesn't exist, and only the copyright holder or exclusive licensee can bring a suit.

"Since the right to sue is not one of the exclusive rights [under copyright law], transfer solely of the right to sue does not confer standing on the assignee," wrote Judge Kent Dawson of Nevada. 

http://arstechnica.com/tech-policy/news/2011/07/lessons-in-retroactivity-righthaven-cant-change-the-facts-after-it-suesrighthaven-learning-it-cant-change-the-facts-after-it-sues.ars

By the way, Getty does the same thing.

S.G.

[Katerina]

S.G., thanks for the post.
Matt, thanks for your word to calm down. Indeed, these fights are not for this place.