Possible reasons for class action suit against Getty in the USA

[SoylentGreen]

Ok, here we go:

§ 201 . Ownership of copyright
...
(d) Transfer of Ownership. —
...
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. 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.

http://www.copyright.gov/title17/92chap2.html

----

Readers here may recall that Getty has the above right to litigate on behalf of the artist written in its contracts.
In theory, they may only successfully litigate to the extent that they could receive the "retail price" of the image infringed upon.
That is because of the following.  The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.
HOWEVER, Getty doesn't normally register their images in their own name, and are therefore NOT entitled to statutory damages in addition to actual damages (ie the retail price).

Folks should not confuse all of this with the Righthaven debacle.
In that case, Stephens Media ONLY transferred the "right to sue" and nothing else.
This has no legal standing at all.

...and there you have it.

Anyway, I think that at this point, I'd like to see the people posting on here quote actual sections of law.
I don't think that the forum is well served by "opinion" after a certain point, unless you're a lawyer and can prove such.
Because we could go on for days with opinions.  Quote law if you can.

S.G.

[scraggy]

The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.

You seem to have lost your way. The owner of a non exclusive license would not have the right to sue.

You also continue to ignore the fact that I am only talking about two collections.

I am not raising any issues with any of their other collections. You can read the Advernet verdict for that.

Here is a short summary of the various licenses, as explained by Harvard University’s Berkman Center for Internet & Society

http://www.citmedialaw.org/legal-guide/understanding-difference-between-transfer-and-license

Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:

    exercise the right or rights licensed;

    authorize others to exercise the right or rights licensed via a transfer or license; and

    sue for copyright infringement of the licensed right(s).

The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:

    authorize others to exercise the right or rights licensed via transfer or license without permission of the copyright owner; and

    sue for copyright infringement of the licensed right(s).

[SoylentGreen]

Ok.  Good, meaty discussion here!!

To be fair, I did not ignore the fact that you were speaking of only two particular collections.
I agreed that you are indeed correct that Getty is committing fraud if what you claim is true.

The topic of this discussion is "Possible reasons for class action suit against Getty in the USA".
Therefore, we came back around to the general discussion of whether or not a non-exclusive licensee has a right to sue.
I think that the answer lies in between both of our assertions as follows from the Silvers vs. Sony Pictures and  Eden Toys, Inc. v. Florelee Undergarment Co. cases:

"Pursuant to Section 501(b) of the 1976 Copyright Act... only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement. Silvers v. Sony Pictures Entm't Inc.... In so holding, the Ninth Circuit followed the Second Circuit’s decision in Eden Toys, Inc. v. Florelee Undergarment Co.,... superseded by rule and statute on other grounds.... Section 106 of the Act defines and limits the exclusive rights under copyright law.... While these exclusive rights may be transferred and owned separately, the assignment of a bare right to sue is ineffectual because it is not one of the exclusive rights.... Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."

http://www.techdirt.com/articles/20110614/17302814695/judge-rules-that-righthaven-lawsuit-was-sham-threatens-sanctions.shtml

I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.
UNLESS one of the exclusive rights in Section 106 is also transferred AS WELL.  I think that I am correct in this area.
Referring to the above "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright" (referring to the exclusive rights in Section 106).
It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.

We were both correct, technically speaking.  Perhaps, we can live with that?
Again, I think that you are right about the two collections that you mentioned, provided that Getty has none of the Section 106 exclusive rights in its contract(s).

To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars.  But, no legal fees.
Those lawsuits aren't worth it.  Hence very few lawsuits.

Very good discussion, as usual.

S.G.

 

[scraggy]

I think we pretty much agree.

only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement.

I wouldn't argue with a judge!

I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.

I agree with this!

It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.

Well, the content of the Getty contributor agreement would indeed suggest the transfer of an exclusive license, and therefore right to sue. The judge in the Advernet verdict thought otherwise. After all, these "contracts" are not signed by either party, and don't contain the details of any specific images.

But as I say, I don't believe that Getty has any exclusive licenses for the two specific collections mentioned above, because of the reasons mentioned.

To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars.  But, no legal fees.
Those lawsuits aren't worth it.  Hence very few lawsuits.

Sorry, I don't agree with this. Can you imagine what mayhem there would be if owners of non-exclusive licenses could sue? Owners of non exclusive licenses dont have the right to sue. That didn't stop Marot Images however!

Ian

[SoylentGreen]

Well, we're all entitled to our opinions.
You can see that the other regulars here can't be bothered even getting into the "class action against Getty" thing.
Here's how I see these these discussions at this point:



I don't like Getty, either.  If you want to sue Getty, go for it.
But, until somebody does it, and wins, you're talking out your ass.

S.G.

[stinger]

Scraggy, I think these discussions are very good.  There are lots of angles from which to come at this.  As long as we keep this topic on the table and keep attacking it from different angles, I am certain that some day a smart lawyer might see a winning line and agree to take Getty on in a class action suit.

Without these discussions, that possibility becomes more remote.  I too, wonder what Oscar thinks of your angle.

[SoylentGreen]

Stinger, I've already re-posted what Oscar said about a Getty class-action.
People can use the search function and find many posts that he has made regarding this.  But people are really, really lazy.
I don't think that Oscar has much more to say than he's already said.

Discussions have value, sure.  However, the laws are the most important thing.  That's all that matters in the end.  Were talking about court here.
When the discussion begins going in a circular motion, and noob posters begin saying "yeah, but we're not talking about that" when we were speaking of that particular topic,  or "I was referring to something else".  the discussion begins to fall apart.
You can't "win" a discussion by changing the subject.

Scraggy doesn't have the foggiest clue of what's in Getty's contracts with National Geographic.  He's talking out his ass.
Furthermore, he doesn't understand the fine nuances of "exclusive" and "non-exclusive", even when it's been posted here for him to read.
It keeps coming back to "Getty has no right to sue"... but Getty's gone to court haven't they?  They have the right to sue like anyone else.
They have trouble prevailing in court, but that's completely different than not having the "right to sue".
He needs to read a book or two.  I'm done with him, and this discussion.

S.G.

[Jerry Witt (mcfilms)]

The bottom line to all this is that in the U.S., unless you have a copy of Getty's agreement with the photographer, you don't really know WHAT rights Getty has. Even some photographer from National Geographic claiming that they never transferred their rights to Getty doesn't mean much. They could have been on a work-for-hire gig with NatGeo, and the rights were never theirs to transfer.

This is why it is essential for anyone being pursued for "infringement" should insist on a copy of the agreement with the original rights-holder. This is not trying to "out lawyer" the lawyers. This is simply stating, "prove to me you hold these rights." In the US this is met with, "we only share this information should the case go forward." The correct response to this is a shrug and and "so be it."

As much as we'd all love to see a class action suit go forward and be successful in the U.S., their just isn't enough meat on that bone yet. The differences in the situation in Israel seem small, but they are pronounced enough to make all the difference. (Primarily it is that the company threatening people has no standing at all.) Go find 100s on demand letters that were paid for images that Getty did not hold any rights to. THEN you have a class action in the U.S.

[scraggy]

Go find 100s on demand letters that were paid for images that Getty did not hold any rights to. THEN you have a class action in the U.S.

I haven't seen Getty's contracts with DK or NG, but these two companies continue to sell the same rights managed images as Getty, thus suggesting Getty does not therefore own an exclusive license for these specific images.

Only Oscar would know if Getty had sent 100 letters with images from these collections. Of the close to 100 letters I received here in Israel, I now have 7 images ( 5 from DK ) from the above two collections.

By the way, when I say "right to sue", I mean "standing to sue". Maybe that has caused some mis-understandings here. Sorry.....I am not American!

[SoylentGreen]

Getty can still sue in the US even if the agreement is "non-exclusive", so long as there's one of the Section 106 stipulations in the agreement.

"Since the right to sue is not one of the exclusive rights, transfer solely of the right to sue does not confer standing on the assignee.... One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright... Further, to obtain a right to sue for past infringement, that right must be expressly stated in the assignment."
Eden Toys, Inc. v. Florelee Undergarment Co.

Let me translate this for you, so that you can understand it better:
So long as one of the "exclusive rights" in Section 106 are included in the "assignment" (meaning the non-exclusive agreement), then the assignee (holder of the non-exclusive agreement) has the right to sue.
I've posted actual case law precident for you.  You still cannot seem to grasp it, and your only argument seems to be "I disagree with US case law".

You are AGAIN assuming that when a plaintiff loses a case, they never had the right to sue in the first place.  That is quite incorrect.
You brought up Getty vs. Advernet.  Getty lost on the standing to collect monies.  But, they didn't lose on the "right to sue" argument.
I don't think that the "right to sue" was ever brought up.  Additionally, the "right to sue" is the same as "standing to sue".

Furthermore, Getty had nothing to do with Marots' actions.  So, this changes nothing in case of Getty.

S.G.

[Moe Hacken]

Well, I happen to disagree with SoylentGreen on this one. I can TOTALLY be bothered to talk about class action against Getty or any other troll who has abused tort to EXtort for cash. The question is simply one of strategy.

Of course the local expert on this matter would be Oscar. The "standing to sue" angle may be too esoteric or difficult to attempt in a US court. I would suggest we put that aside as a possible strategy for the moment. There are other angles in the US.

As I mentioned before, I'm intrigued by the possibility that their methods could be called into question, particularly PicScout's aggressive "private investigation" of people's servers without consent and very much ignoring warnings to stay out of the server.

Troll/Wallpaper Purveyor Vincent Tylor likes to say that you're still guilty of auto theft even if the doors were open and the keys were in the ignition. Well, you could be committing an illegal search without a warrant even if the directory was not password protected. At least I would think there's some comparison between the two scenarios.

I know this has been discussed here before, but really not too deeply. Saying "it can't happen" is not a deal-closer argument. I'm of the mind that the real situation is that "it hasn't happened YET." Thus, we can think about how to make this happen.

If we take out PicScout, we emasculate not only Getty but all their client base in the U.S. Other countries may have different legal frameworks concerning electronic surveillance, but our goal is to succeed in the U.S.

The rest of the world can follow after. Any thoughts? Here's some background on electronic surveillance and the law in the U.S.:

http://www.yale.edu/ynhti/curriculum/units/1983/4/83.04.07.x.html

[SoylentGreen]

Moe, you mentioned that you disagree with me.  However, I don't see any logic in your "disagreement".
I never said that a class action wasn't plausible.  I'm simply saying that the scenario that Scraggy suggests is flawed.
I was talking about exclusive/non-exclusive agreements.  But, you've brought up PicScout instead.

Well, so be it.
Moe, your reasoning is incorrect.  In fact, anything that's scanned by PicScout is in fact "public".
Nobody has any actual evidence that PicScout has hacked into anyone's servers that I have seen, and I've searched for it.
So, I don't think that you'd have a "case" in this regard.
HOWEVER, if you can post actual evidence of hacking (not just your opinion), I might be inclined to agree with you.
I'd like to see you take your "opinion" into a courtroom without any proof of hacked passwords, etc.

Again, Oscar has commented many times on these issues.  One need only do a cursory search for them.
None of these topics are new in any fashion.

S.G.

[Couch_Potato]

Happy to be corrected if wrong but I thought section 106 rights still had an element of exclusivity when assigned but instead of assigning exclusivity in it's entirety you were instead transferring exclusivity to distribute in a particular way only.

The assignee would be able to claim for an infringement of their assigned right only.

Could be wrong because legalese is bloody confusing  :-$

[Matthew Chan]

Let me just chime in a bit here.

1. I am a glazed donut on most of the important details so I won't speak to the very detailed issues.

2. I am NOT a "save the world" kind of guy. I am more of a "help you save yourself if you do some work" kind of guy.

3. I know my limitations and my interests. Class-action is not one of my big interest as it relates to copyright extortions.

4. Class-action is a perfectly valid topic of discussion but a few of us don't care enough about it to spend time on it.  I am one of those people.

5.  Class-action requires someone to want to actually step up and step out publicly. Right now, there is only a handful willing to do so and most of those people are already part of ELI.  Out of that group, I see exactly zero people who have expressed in being that figurehead client.

6. Even if a figurehead client is found, who will front the legal work and expenses?  Most want a a class-action law firm to do it on contingency.  Fine.  We have had a few stop by and talk to Oscar and none have ever come back.  "Someone" needs to find this class-action law firm willing to do this.

7.  If I cared enough, I probably would take the lead and shake something out. I am good at these things but it's obvious I don't care enough and not terribly interested. I have other selfish priorities.

8.  No consensus is required to take meaningful action and make good stuff happen.  How do I know this?  Personal experience.  I've taken on all kinds of projects without asking for anyone's approval or proof I was right. I just went and did it.  ELI is one of those successful projects I believed in without any good rationale, tools, or roadmap.  I believed I could figure it out along the way and I have.

9.  I commend Scraggy for coming to this U.S. based forum and share his story and views. He seems to be taking meaningful action regardless of agreement or disagreement.  I don't care for putting time into class-action but can I still respect Scraggy's efforts?  Absolutely, yes and he can be at the forefront.  I think he has done tremendous things so far. But am I terribly well-informed? No, but from what I can see, he gets my respect.

10. It's clear that the ELI community prefers consensus to get "everyone" onboard especially the "regulars". But consensus is not required to get along as long as we agree on the larger issues. I think we do.  "Copyright extortion is bad. Boo. Hiss. Spankings needed." We all agree on this.

11. Not every effort needs a legal argument to launch a fight. If you ask a lawyer: the legal argument is EVERYTHING.  To a non-lawyer / marketing / go get-em type like me: Legal argument is simply a tool and talking point to be used to your advantage.  It is NOT my primary compass.  My brain is. That is why I choose to speed 5mph over the speed limit with no guilt.  Or own a radar detector even if some states say it is illegal.

12.  I would like to remind everyone that supports me and ELI that the exclusive legal argument will never absolutely be the deciding factor of what goes.  ELI works on a much larger context. We get results, whatever it takes.  If we use can legal system and legal arguments, wonderful.  If that doesn't work (which we have seen frequently), we take "alternative measures" of making change. Do I need to make an extensive list of names and incidents that ELI has directly impacted and beat back without ever filing a single legal document?

So, feel free to continue on the discussion freely but just realize we may have to agree to disagree and that a consensus may not be possible.  But remember this, we can all agree "Copyright extortion: Bad. Fight and Spank back: Good."  Everyone gets to choose their favorite weapon of choice.

My favorite weapon of choice?  Writing open and public snarky letters similar to those I have done with Jennifer Sherrouse, Linda Ellis, and Julie Stewart. They seem to work very well, fun to do, and I don't have to hire a lawyer.  SG likes his cartoons and memes.  Nice weapons there too.  Robert and his Google-digging?  Like that too. Oscar and his legal insights for OUR side?  Love that too.  Scraggy?  He likes class-action.  More power to him. Don't beat him up for it. :-)

[Robert Krausankas (BuddhaPi)]

Try as I might to stay away from this debate, now that our cult leader has spoken I feel obligated to chime in as an ELI Defense Team Member ( I love my title and benefits BTW)

While I find this topic interesting I tend to side with MC, we're just not to that point yet, not to mention it is very complicated law and I'm not a lawyer, nor do i want to be. I'm not going to spend my time attempting to decipher all of the legal aspects at this time..Not to say that if a class action became something viable to present I wouldn't , because at that time i would more than likely be willing to learn the ropes as it were.

Yes sometimes we need to agree to disagree and let it go at that, part of the beauty that is ELI is the different opinions, angels and thought processes. As Matthew stated "Copyright extortion: Bad. Fight and Spank back: Good."

Every single one of us has a place in ELI in terms of fighting back, and I have respect for every single person that contributes....Well except for Uncle Glen Carner from Hawaiian Art Network.

and now my admission of guilt...see I just tied Glen Carner who works with Vincent K Tylor from Hawaiian Art Network and Copyright Services International to a thread dealing with a Class Action Lawsuit.

Another FREE google entry!