Possible reasons for class action suit against Getty in the USA

[Couch_Potato]

According to the great fountain of knowledge Wikipedia, class action cases may be brought to purposely change behavior of a class of which the defendant is a member.

Still, Getty would fight it tooth and nail, especially now when they are looking to sell.

[SoylentGreen]

I agree with Ian in that I think that he has a great case against Marot.
The fact that his lawyer is working on contingency also shows that he feels that he'll make money on this.

I also agree with Couch_Potato.
But again... it all comes back to the facts that Getty doesn't have enough legal standing to win lawsuits against most infringers.
Conversely, it's also my opinion that they do have the legal right to send demand letters and sue people.
If they had NO license agreements with their artists, it would be a different story; it would be a complete fraud.
These fact are quite difficult to overcome, I think.

S.G.

[Moe Hacken]

It's clear that the class action in Israel is a very specific instance of the Getty Copyright Abuse Program. Marot overreached in its role as the enforcement agency, and I do think the case being made is good. Marot did not have the right to shake anyone down.

Getty's conduct is the US market has been different. They've hired enforcement agents who may or may not have standing to contact people with threatening letters. The letters themselves may be cause for a class action in the U.S.

The aggressive surveillance by PicScout could be a cause for a class action suit, perhaps in one state. In California, private investigators have to register with the state to operate as such. Is PicScout not acting as a robotic private investigator? Are they registered in California? Are they collecting "evidence" illegally and does the "evidence" have any validity in court?

There's also the issue of "claim vs. debt" in Getty's letters. Their approach is to cause intimidation with legal threats and then treat the matter as a debt without having received an award from a court or arbitrator. The law is not in their hands like that.

It could be that REAL extortion could be argued. They're basically using the courts to bully small businesses and individuals. Here's the legal definition of extortion:

The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

This is how Getty would probably try to defend themselves from being charged with extortion:

A person who acts under a claim of right (an honest belief that he or she has a right to the money or property taken) may allege this factor as an Affirmative Defense to an extortion charge. What constitutes a valid claim of right defense may vary from one jurisdiction to another. For example, M, a department store manager, accuses C, a customer, of stealing certain merchandise. M threatens to have C arrested for Larceny unless C compensates M for the full value of the item. In some jurisdictions it is only necessary for M to prove that he or she had an honest belief that C took the merchandise in order for M to avoid an extortion conviction. Other jurisdictions apply a stricter test, under which M's belief must be based upon circumstances that would cause a reasonable person to believe that C took the item. Another, more stringent, test requires that C in fact owe the money to M. Finally, some states entirely reject the claim of right defense on the theory that M's threat is an improper means of collecting a debt.

Source: http://legal-dictionary.thefreedictionary.com/extortion

I'm not a lawyer, I went to art school. Just throwing some ideas out there to help the brainstorming process.

[SoylentGreen]

Isn't Marot a completely different company from Getty?
I don't get it.  Am I misunderstanding something?   

S.G.

[Couch_Potato]

Marot is a different company.

I think the point made is that Marot tried to collect on an image that was both available through Getty and directly through the copyright holder online and Scraggy was spitballing about the possibility of a class action suit against Getty on the basis they may also be scaring people into paying for images they know they do not have the exclusive rights for.

I know the point has been made that Getty has questionable right to collect anyway for any infringements.

[scraggy]

Couch Potato is absolutely right.

If Getty is collecting payments regarding images to which it knows full well that it does not own the exclusive license ( most specifically the National Geographic and Dorling Kindersley collections), then do you, in the USA, have a case against them?

I am not talking about the other collections at all. I am not talking about the Advernet verdict. I am referring specifically to two collections ( that made up close to 5% of the images contained in Marot's letters in Israel ) to which it seems that Getty could not own an exclusive license. National Geographic and Dorling Kindersley ( both very large and serious companies ) continue to sell rights managed licenses for the same images to which Marot claims to own the right to sue.

My question to Oscar. Does Getty send demand letters for these two collections in the USA? If not, everything I have written in irrelevant.

By the way, no one picked up on the different pricing between Getty, NG and DK books for the exact same images.

Ian

[SoylentGreen]

Because Getty actually has licenses with their artist/photographers, they are not breaking any laws by pursuing settlements.
This sort of thing is NOT contingent on whether or not Getty has exclusive licenses with its artist/photographers.
In fact, my understanding is that even if their licences are non-exclusive, they still may pursue the actual retail price of the images infringed upon (but not statutory damages).
So they do in fact have some legal grounds for what they're doing.

Oscar touched on this in the past:

"If there was valid way to bring a class action for this conduct, I would have done so years ago or one of these firms, who do nothing but bring consumer class actions. Barratry requires the litigant to have no claim - these companies do have a right to protect these images. It is not harassment to try and collect for an infringement; it is their methods and demand amounts that are just overbearing and  disturbing.  But as always I am open to suggestions so please tell me what would the basis be for a class action; what is the illegal conduct they are engaging in that gives rise to a claim?  I will be the first to sign on to bring the case myself!"

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscar-to-ask-attorney-gen-of-ny-to-investigate-masterfile-evidence-available!/

I think that we're making too much of a comparison between Marot and Getty.
Again, I don't think that Marot had any valid claims of infringement.
But, Getty does have licences with its people, which does give it some legality; they can come after you for a settlement (even if a court would only grant them the retail price).
That's the law.  It kills off the argument that a case could be built upon this.

S.G.

[scraggy]

S.G. I disagree, and will explain why.

Let's assume that a photographer has only given a non exclusive license to National Geographic. The photographer himself may therefore continue to sell the image ( which is not the case with an exclusive license ) , and ONLY the photographer can sue for the violation of his copyright. In turn, NG has allowed Getty to sell the same image. Both Getty and NG therefore have a non exclusive license. Neither has the right under American law to sue for copyright violation.

What if Getty's lawyers then turn to people and state - " We have the right to sue you under American copyright law, and we will indeed do so if you do not pay us the following amount", and people rush to pay and put the threat behind them.

The problem is that in the above circumstances, Getty would not have the right to sue. Moreover, the photographer could turn around and sue himself! The claim, and corresponding threat would be a complete mis representation of the facts.

Consumer laws for one would not sanction such actions.

If you don't own the right to sue, how could it be legal to extort payment from someone by claiming that you do?

Getty, under the above circumstances would be fraudulently inducing people to pay them.

Again, I am only talking about two specific collections, for which ( if my analysis is correct - see above ) Getty does not have an exclusive license, and therefore has no right to sue.

Ian

[Khan]

It is my understanding:

If Getty has a non-exclusive license and the infringer settles with GI, the photographer (=copyright holder and the one who granted the non-exclusive license to GI) would still have the right to go after the infringer and sue him for the same infringement.

So it is my understanding that GI has no right to sue for the infringement (having a non-exclusive license)

[SoylentGreen]

Obviously, exclusive licensees may sue, and are entitled to damages and statutory damages.  We agree on that.

I believe that you are incorrect that only the exclusive licensee has the "right to sue".
I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.
This is our disagreement.

Now, I think that you are probably correct in that only an actual owner of the image may transfer (some or all) of his/her rights to other licensees.  We agree on this?
In such a case, there can actually be many non-exclusive licensees in addition to the actual owner.
One may have Getty, Corbis and Masterfile sell their image, for example.

Obviously, there can't be a "mix" of an exclusive licensee and other non-exclusive licensees.  Otherwise, it's not "exclusive" to anyone, right?

I'm going to hit the US law books and post some further info.

S.G.

[SoylentGreen]

Khan, I think that you're incorrect.
Getty represents the photographer in its contracts.
Part of that contract stipulates that Getty may collect on the artist's behalf, and the artist will be paid accordingly.
Therefore, it would be difficult for the artist to go to court and sue in order to "double-dip".

S.G.

[scraggy]

S.G - Please remember that I am only talking about two specific collections.

Regarding these two collections, if I am not mistaken, Getty has no contracts with the photographers. The photographers may have never heard of Getty! Their contracts were with DK and NG. The artist would not therefore be "double dipping".

The letter recipient would have paid the wrong person. That wouldn't be the photographer's problem!

I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.

This couldn't be the case. It would mean that you could face multiple lawsuits over copying one image!

[Khan]

OK.

Lets go a little bit further : If Getty, Corbis and Masterfile have a non-exclusive license (for the same picture) and all three send a demand letter because they represent the photographer ? Would this be possible ? Do we have a "triple dip"  ?

Khan

[SoylentGreen]

Yes, I agree Scraggy!!  If Getty had NO contracts with the actual owner, then this would be a clear fraud.

Khan, I still think that each non-exclusive licensee may attempt to collect damages.
But, don't try to give these artists any "ideas", ok?   

S.G.

[scraggy]

Khan, I still think that each non-exclusive licensee may attempt to collect damages.

I don't think so! If this were correct, you could face hundreds of lawsuits over the same image!