Possible reasons for class action suit against Getty in the USA

[lucia]

Lucia, I'm suggesting that we have to set a goal for how we'd like to remedy the current "strategic litigation problem." The article quoted makes a suggestion that I find intriguing, so I brought that into the discussion.

Then I'll bite: I disagree. I don't think we need "to set a goal for how we'd like to remedy the current "strategic litigation problem."  I think what everyone on the Eli team is doing is higher priority that this and they would be foolish to divert their time and attention to this other issue. But if you want to make that your goal and work toward it, that's fine.

The fact pattern is exactly what's being discussed, one that could be grounds for a class action in the US. I think the discussion has actually been spirited and informative.

As far as I can tell, absolutely nothing about the fact pattern creates "grounds for a class action in the US".  But maybe you have some sort of concrete idea in your head but just haven't managed to elucidate it.  In my opinion, if you think the fact pattern exists, you should do some work to flesh out the issue and present it clearly. Then post precisely what  the legal complaint would be, what specific laws it violates (go find the statutes) tell us what characteristics make someone a member of the class with standing to sue and list the evidence you have that getty actually might be found liable if someone filed the specific class action suit.

Otherwise, quite honestly, if you can't be specific I find the discussion entirely hypothetical and I think people on the Eli team would be wiser to focus on more productive activities.

[Moe Hacken]

I'll certainly try to be more clear in the future, Lucia. I thought the topic of the thread suggested that brainstorming was invited. I never proclaimed to be a legal expert. I'll be the first to admit I'm grasping at straws.

If the topic is such a buzzkill, then why would you want to read the thread? It was the topic that attracted me to participate.

So let's move on to more productive activities, shall we?

[lucia]

 

I thought the topic of the thread suggested that brainstorming was invited.

I think it started that way. But somewhere around page 3, it seemed to become pretty obvious that no one has any information to come up with a candidate class action suit with even the tiniest hope of winning.

[Moe Hacken]

Okay then, just one more: Trespass to Chattels:

http://ilt.eff.org/index.php/Trespass_to_Chattels

Just kidding. I know you guys have talked about this until you're blue in the face. Don't listen to me.

[scraggy]

I am not at all sure why this thread seems to have rattled some feathers, but I am going to clarify my ideas once again. Here's an analogy.

Let's suppose a guy hangs around a parking lot, and every time he sees someone dent another car ( not his ), he jumps into action, claims that the car is his, and asks for $2000 compensation. If they don't pay immediately, he threatens them with a $20,000 lawsuit. Unsuspecting car owners believe the claim that the car is registered in his name, fear legal action, and pay up!  Everyday, he manages to catch a handful of drivers ( mostly the weaker and more vulnerable among us ) , and makes a pretty good living!

He doesn't sue people  - because the car isn't registered in his name!


Is there a case of fraud here? It seems to meet all the criterion for fraud.

http://listoffelonies.com/Fraud.php

I am not suggesting that Getty has no "exclusive licenses". For arguments sake, I accept that they own exclusive licenses for 95% of the images in their collections. I am however suggesting that for two specific collections, they do not own the exclusive licenses, and therefore have no right to sue.

If, out of every 100,000 letters sent, Getty sent 5000 letters demanding payment for images from the National Geographic or Dorling Kindersley collections, could this not be considered fraud on a large scale?

Here is a link to a landmark decision of eleven judges in the appeals court that dealt with the question - Who is legally authorized to sue for infringement of a copyright?

http://caselaw.findlaw.com/us-9th-circuit/1195551.html

Section 501(b) of the 1976 Copyright Act establishes who is legally authorized to sue for infringement of a copyright:

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

17 U.S.C. § 501(b) (emphasis added).   The meaning of that provision appears clear.   To be entitled to sue for copyright infringement, the plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.”   See 4 Business and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig ed.)  (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright rights, then it cannot invoke copyright protection stemming from the exclusive rights belonging to the owner, including infringement of the copyright.”).

Section 106 of the 1976 Copyright Act, in turn, defines “exclusive rights”:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3)  to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5)  in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;  and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106.   The right to sue for an accrued claim for infringement is not an exclusive right under § 106.   Section 201(d) refers to exclusive rights and provides:

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(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.

17 U.S.C. § 201(d).  Exclusive rights in a copyright may be transferred and owned separately, but § 201(d) creates no exclusive rights other than those listed in § 106, nor does it create an exception to § 501(b).

Section 501(b) must also be read in conjunction with § 501(a), which provides that one who “violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ․ is an infringer.”   The definition of an infringer in subsection (a) is parallel to the definition of a proper plaintiff in subsection (b).  Common to both subsections is an exclusive copyright interest.

In addition, when a copyright interest is transferred it must be recorded to protect the copyright holder's right to bring an infringement suit.  17 U.S.C. § 205(d);  see H.R.Rep. No. 94-1476, at 129 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5744 (“The provisions of subsection (d)[ ] requir[e] recordation of transfers as a prerequisite to the institution of an infringement suit․”).  This requirement ensures that prospective buyers or transferees have notice of the copyright interests owned by others.   See H.R.Rep. No. 94-1476, at 128, reprinted in 1976 U.S.C.C.A.N. at 5744 (stating that a copyright recorded in compliance with subsection (c) provides constructive notice of its contents).   By contrast, the recording statute does not contemplate a transfer of anything other than an ownership interest in the copyright, along with the concomitant exclusive rights.

Returning to the operative section, under § 501(b) the plaintiff must have a legal or beneficial interest in at least one of the exclusive rights described in § 106.   Additionally, in order for a plaintiff to be “entitled ․ to institute an action” for infringement, the infringement must be “committed while he or she is the owner of” the particular exclusive right allegedly infringed. 17 U.S.C. § 501(b).

 The statute does not say expressly that only a legal or beneficial owner of an exclusive right is entitled to sue.   But, under traditional principles of statutory interpretation, Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.   The doctrine of expressio unius est exclusio alterius “as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.”  Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.1991).

By the way, in the above case, the author herself did not have the right to sue!

As Matthew said - we are all on the same side.  I totally agree with Moe. We should encourage brainstorming and open discussion. We have to think outside the box! It's not conducive to discussion to tell anyone that they are talking out of their ass! There are intelligent people on this forum, and any arguments should remain civil.These forums contributed so much to my understanding, Abusing one another will simply make people leave the forum.

I would still like to know from Oscar if he has come across a significant number of images from these two collections.

I am sorry that my idea would only cover 5% of Getty's images! There are additional ideas above that would cover 100% of Getty's collections. They are just ideas - which is ok! This is a forum for ideas. No one said there was a magic solution! It's an uphill struggle!

[Robert Krausankas (BuddhaPi)]

@Scraggy, your analogy with the car may very well be fraud, but if the car owners are too fearful, dumb, or lazy and just pay it, that's their problem. AS has been said numerous times someone has to stand up and make the fight, as you have apparently done in Israel. Without this it is a moot point.

I highly doubt Oscar has gotten a single letter concerning the collections you mention, if he had and the number was significant we would have heard of this and known of this. Just because he doesn't have time to post often, does not mean he is not in contact with ELI. I'm quite sure he would keep us in the loop.

To further back this up, I've been thru every complaint filed with Getty and there are no mentions of these colletions.

Brainstorming is perfectly fine, discussion is perfectly fine, but there comes a time when the issues get twisted and things start going south and it's all downhill from there, not everybody is going to agree on everything and sometimes it's best to agree to disagree. The beauty of this forum is the different personalities along with different points of view.

[lucia]

Scraggy:
I love what you are doing in Australia where the evidence required for the class action suit was apparent and you filed.

And initially, the discussion in this thread about whether it might be possible in the US was interesting. But after a while, spending a whole lot of time on speculating about whether we could have a class action *if* numerous  hypothetical things happened is a waste of time *unless we have evidence some hypothetical thing happened.*  After page 3 of this series we alternate a) the discussions of counterfactuals with b) people saying this exercise is becoming pointless.   The reasons why it might be pintless are either a) the legal theory for an actionable offence is tenuous or b) we have no evidence that getty committed the office or c both (a) and (b) are true.

With regard to your counter factual:
1) I would suspect that *only* the people who were sent letters about the DK owned photos could particulate in "the class".

2) Whether the action is fraud would depend on whether Getty could present a colorable case that suggests they at least *believe* they have a right to sue. In your car example, it's not fraud to ask for money for a damaged car you *truly believe to be yours* even if it turns out there was a flaw in your title and you were mistaken. (I think SG hsa repeatedly made arguments that pretty much drive home this point. )

3) On this thread we have not seen even one single DK or National Geographic owned images.  (Robert and others have made this point.)

4) We certainly don't know anyone who got a letter about DK or National Geographic owned images *and paid*. (Robert and others have made this point.)

Whether or not I am correct on 1 or 2 might matter if we were law students required to prove our legal chops. But to use, it hardly matters because of (3) and (4).

I would still like to know from Oscar if he has come across a significant number of images from these two collections.

I understand why you would like him to answer this question as it  touches on issue (3).

I'm sure that if Oscar reads what you wrote and he has a glimmer of a recollection any DK or NG images are in the collections, he'll tell you. But I doubt if he is going to spend a weekened pulling out all the files, and sitting computer trying to see if the images are DK or NG.  I'm pretty sure he also can't just share them owing to attorney/client confidentiality requirements, so none of us can do that. 

In any case, most of us think-- based on what we've seen-- that the answer to your question is "No. He hasn't come across a significant number of images from these two collections."   

Unless someone does a heck of a lot of work that answer is not going to change.  And so that line of questioning just stops dead. 

If you want a better researched answer to that specific question, why don't you go here:

http://copyright-trolls.com/site/getty-images-public-record-complaints/

where you will find records Robert took time and energy to obtain there by making them accessible for research.

Download all the complaints , find the images involved and see whether even one is from DK or National Geographic.   That would
a) partly answer your quesition and
b) if you find and DK or NG owned images the people who wrote those letter will materially benefit from your efforts.
c) if you find and DK or NG owned images you'll be on your way to having evidence an honest to goodness class action suit might be possible.

After that, you can also go through the forum Matt has created  and  to see if you can find a single DK or NG owned image discussed in the forum at large.  Matt has uploaded lots of scanned letters so you can read each and compile the statistics to answer your letter. 

While you are doing this, you could assign a code number to each one and enter each case in an excel spreadsheet with heading  corresponding ot the first line below and entries corresponding to the second.
Case,    agency,  author,         copyright owner,      collection,   image number,   possible actionable offence, victim paid?, vicitim was sued?
1,       getty,    photog's name,    national geographic,   NG,         124xyz      ,    beats me! ,  yes, no

After doing that clerical task, you could compute statistics if anyone asked "How many of the letter are getty?" or "How many of the getty letters are in the Stone collection? , how many might have involved "tresspass to chattels" or whatever other actionalbe offence you think might support a class action suit. Only after you find several will you have a class of people who you could approach to create a class action suit. (And many of them might turn out not to be interested. So unless you find at least.. oh... 10, you probably aren't going to get a class action suit.)

I think the task will take you the full weekend, and I anticipate you will find the answer to your current quetions is: "So far, we have no evidence Getty sent a letter demanding money for a single NG or DK owned image."  But I could be wrong. And anyway, by collating, you might find something else.

Moreover, if by starting the clerical task of collating you do find *something concrete*, you should report that as soon as possible because finding something might inspire a few people to assist in further collation. (Or not.)

Other than that: as far as I can see, unless the brainstorming and talking leads to a specific volunteer taking on a specific research task (which will mostly involve clerical efforts) and those clerical efforts produce *evidence* that would be useful in a class action suit,  the brainstorming will just lead to people answering the speculations about "class action suit" by repeatedly explaining that you have no evidence to support the hypothetical path to a class action suit. 

So I would suggest that the one,  two or three people who are interested in trying to identify a basis for a class actions suits should sit down and think about what tasks this line of attack requires. Collect evidence is certainly one of these task.  Then one of those people should take on which ever task seems most fruitful to them. 

[SoylentGreen]

Lucia and Buddhapi make many good points and it's good reading.

I think that Scraggy is really, really stuck on the mistaken idea that Getty could only sue if their agreement with the artist is "exclusive".
I have explained again and again that this simply isn't true.  I think that his reasoning is that just because he doesn't understand "the law" or what I am saying, that he is "correct" and he has a viable legal case.

I'll say it again.  The holder of a non-exclusive agreement HAS THE RIGHT TO SUE provided that one of the following stipulations from "Section 106" is written into the agreement.  The list is as follows:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

I hope that everyone is with me so far.  It's just a list; you don't even have to know what those mean.
If at least ONE from the list is written into the non-exclusive agreement, then the holder of that agreement has the right to sue.

You may now ask "why is that?".   Very good question.
There was a legal case in the US that set a clear legal precedent.
What's a "precedent"?  That is when somebody made the argument in court in the past, won, and as such this decision has legal weight and dictates future court decisions by judges.
This "precedent" was set in the cases "Silvers v. Sony" and "Eden Toys, Inc. v. Florelee Undergarment Co...".  I posted links earlier.
These say that:
1) "these exclusive rights may be transferred and owned separately".
These "rights" are from the list that I pasted above.
This point simply means that one may choose to put one, or several things in the list into a "non-exclusive" contract.
You may at this point ask, "what makes S.G. think that this hypothetical contract is "non-exclusive"?
I'm glad that you asked.  I know that we're referring to a non-exclusive contract, because an exclusive contract would confer the entire list above upon the other party; we wouldn't "pick and choose" from the list.

2) "One can only obtain a right to sue on a copyright if the party also obtains one of the exclusive rights in the copyright"
In US law, when one speaks of "exclusive rights", that's referring to the list that I pasted above.
I think that this second point is very clear on its own:
One has the legal right to sue so long as one or more of the exclusive rights from the list is written into the contract.

Righthaven lost at every turn, because they didn't have the "right to sue".  They did not have any points from the list of exclusive rights written into their contracts.
However, Getty usually has at least one thing from the list written into their contracts.  I'm going to tell you what it is.
It's usually one or both of the following:
1) to reproduce the copyrighted work in copies or phonorecords
2) to prepare derivative works based upon the copyrighted work

In the first case, it allows Getty to reproduce the images on electronic media, or paper media.
In the second case, it allows Getty to magnify, crop, adjust color, resample the images, etc.  Which they do.

Additionally, I'm not buying your assumption that Getty has the same things in their agreements as Marot.

It appears to me that "the last person to post in the thread is the winner", but court isn't like that.
You can say that I'm wrong, but unless you can shoot down my analysis with a better legal argument, I will insist that I'm right.
Furthermore, I know that there are people here that won't back down unless Oscar himself comes to THIS THREAD and says that they're wrong.
Some people here have such blind faith in their theories, they will not even give credence to past postings that Oscar made.
So be it.  But after a certain point, it's like one person saying that the sky is blue, and the other saying that the sky is red, because he/she likes that color better.

Scraggy, at this point, I'm wondering if you were ever really sued by Marot.
You've gained respect here because of your claim, especially from Matt.  But, I question your credibility at this point.

I'm going to finish by saying that if a complete amateur can shoot down your legal theory, then Getty's 1000 dollar/hour lawyers are going to have a ball hanging you out to dry.

S.G.

[lucia]

SG--
I believe scraggy was sued.  The statutory law or precedents may be different in Israel and Marot may not have the rights Getty has.  That happens all the time-- and the difference could contribute to his understanding that one might need a different fact pattern to prevail in the US.

[Robert Krausankas (BuddhaPi)]

Iv'e heard of more than person claiming Getty is "suing me" when in fact, they only received a "demand letter"...2 very different beasts.

[SoylentGreen]

To be fair...
Scraggy did send me some links.
"Ian Cohen" is indeed leading a class action.

S.G.

[Matthew Chan]

Quite correct.  People exaggerate and that bothers me a lot. It takes credibility away when people say things that aren't really true.

That is why I get a little freakish on these forums when people go too far in speculating and conspiracy theories.  People should NOT make statements as fact if they are actually opinion and speculation.  That happens a lot.

Or people say things with very weak or shaky evidence. Even if it comes from someone credible, I will still occasionally drill down and ask "who and where did you get that info from" and see if it is first-hand or second-hand information.

I am big believer in checks and balances because EVERYONE can make a mistake.

Iv'e heard of more than person claiming Getty is "suing me" when in fact, they only received a "demand letter"...2 very different beasts.

[Matthew Chan]

Yup, that is why I give Ian a lot of latitude.  He is actually doing something about it in the region he is living in.  The rest of us, including me, can only talk about the class-action angle.  Hell, I barely even do that!

Not a single person in the U.S. (that I know of) has done anything even remotely close on the class-action front to being meaningful but lots of people (especially newbies) come passing through shouting "class action".  Great idea, never heard that before, next!

On the Linda Ellis front, we have one Australian extortion victim generate more discussion than anyone else in the U.S. besides April & UJB.  And yet, there are all these U.S victims with their traps shut tight.

It almost always comes down to those special people who step up that make a big difference.

To be fair...
Scraggy did send me some links.
"Ian Cohen" is indeed leading a class action.

S.G.

[SoylentGreen]

I'm going to book-mark this thread.
The "class-action" topic comes up a lot.
It will be good to have this handy.

S.G.

[Oscar Michelen]

OK  - let me start by saying what I have said several times before - we are regularly contacted by folks interested in the class action angle and a few times per year are contacted by class action lawyers.  I share alot of information with them (all client names and identifying info are redacted of course) and they never come back to me with any further interest. It has gotten to the point where I have a file called "class action response" that contains the redacted letter(s), a brief synopsis of the Getty issue and some bullet points of pro/con of a Getty class action. So now I just send folks that file when they indicate an interest in proceeding.  SG is absolutely correct that Getty can have different arrangements for certain collections which  while non-exclusive still allow Getty to sue or make a claim on behalf of the copyright holder. As to those two collections, I do not recall seeing them with any frequency built we do not catalog the claims based upon the images.  We only keep a look out for cases involving The Stone Collection as I believe Getty has registered that collection (though of course I feel the registration method used is invalid but that's a whole other story).  I will however tell my staff to keep an eye out for those collections and will let you know. Where I think there may be some room for a class action is where Getty charges sales tax in addition to the claim amount.  Since we last posted about it, we have not received any Getty letters where they demanded sales tax so maybe Getty has stopped doing that.