Here's what I can tell you about your situation; the photographer, Chris Cole, is based in the UK... so there's not going to be any registration certificate as there's no copyright registration system in the UK; copyright is automatic at the time of the creation of the photograph.
Copyright is also automatic in the US. However,
statutory damages require the photographs to be registered. As far as I am aware, there is no exemption for artists who happen to work in other countries. So, even though failure to register will not vitiate copyright in the US, it will affect the potential that heavy damages will be levied. This is where discussing the issue with someone like Oscar who practices in the US can matter.
Getty aren't going to hand over a copy of Cole's contract to you as that's private and confidential and they've alluded to this (the part where documents would be produced during discovery ahead of trial) but point b) makes that moot anyway.
No. But as previously noted: Getty could write their contracts with a caveat that permitted them to show the contract when they approach a suspected infringer. It appears they don't do so-- that's their choice, not an immutable law of the universe. Also: They could request the photographer to grant permission.
Getty being unwilling to provide information that matters during settlement negotiations might influence a judge. Also: if the contract is flawed, Getty will lose in court. A person negotiating can bear this in mind given that Getty has in the past been very sloppy with contracts. If Getty does not show the contract, the person who receives a letter can decide what risk they are taking. If Getty provided an iron clad contract, they would be more likely to just settle.
Also, as Cole is a UK resident, there would be no need for him or Getty to file a registration within three months of first publishing (a "timely" registration) for statutory damages to be sought; Cole will be sending his images to the UK office of Getty, so the country of first publication would be the UK - so Berne Convention terms apply for litigation purposes.
That might hold if they are going to sue in "international court". But in US courts, judges apply US law.
Using a combination of Google's Search by Image function and the TinEye reverse image search engine, I discovered in short order that Getty is indeed the only image library that has this particular photograph available for licensing.
This is not as foolproof as you might think. Some photo sites block spiders from crawling. In those cases, TinEye will not find the image. However: if the images is only Getty, then that's going to be a factor in Getty's favor.
I've looked at the image in question and a one month, low resolution web use license came out at £288.00, or approximately $443.71. Getty's claim for $790 will include that "lost" license fee and I note they've stated as such in their reply to you, even if they haven't cited the fee itself.
In court, Getty will need to show that they actually have licensed images for the fees they demand. If they do get those fees, then this fee will be in Getty's favor. If it turns out that many of the images are never licensed... not so much. Once again: this would be a risk the accused infringer would be having to consider.
Whether you personally believe the image is worth that doesn't enter into the equation - it's what the photographer and Getty have set the price point at.
No. In court, the
market sets the price point. Getty is going to have to show the images do sell to someone for that price. This may seem like a distinction without a difference. It would be if everything is listed near a real sale price. But you need only take out a search for collectibles on ebay to realize that virtually identical items are listed at a huge range of prices and if you watch the higher listings they
don't sell. (They will often be relisted-- and still not sell.) I know this because I have a 1960s era formal china set and want to accumulate platters, gravy boats and so on. The Lenox Rhodora gravy boat listed at $153 here will not sell.
http://www.ebay.com/sch/i.html?_trksid=m570.l1313&_nkw=Lenox+rhodora+gravy+boat&_sacat=0&_from=R40(Chances are the $50 ones won't sell either. They might at Christmas, but not now. I have a watch on these, waited 6 months and bought one for $20.99. I was the only bidder.)
Getty will state that image users have the freedom to choose the sources for their images, as well as the price they pay, much like a New Yorker can choose to eat at McDonalds for a dollar, or walk to Serendipity 3 and pay $295 for their extravagant creation. At their core, both are ground beef between two buns... and you could also choose not to eat.
Yes. But you are arguing by analogy and others are likely more apt. For example: Say the person listing the gravy boat for $153 finds
no one to buy it at that price. Suppose that after the listing closes, the person listing the item breaks their gravy boat. Now suppose being insured, they submit a bill for $153 to their insurance company. The insurance company is likely to notice that I bought an indistinguishable gravy boat for $20.99 only last week. So the established value is closer to $20.99. Failing that they could notice that several gravy boats are listed near $50 today. So, a replacement can easily be had for $50. No judge is going to insist the insurance company pay $153 merely because the owner of the gravy boat was not willing to part with it for less. They will find a fair market price which is going to be somewhere between $20.99 and $50. With that money, the person could buy a gravy boat and then continue to try to sell it for $153. (They will likely continue to fail. Though, with ebay, you never know. Some people don't understand the system and do buy at ridiculous prices. It's not the majority of buyers though.)
In your analogy about the restaurants, the only reason the market value of the burgers at the restaurant is accepted as $295 is because
customers are buying them. If no one is buying the a burger, the chef puts on on a table in front of the lone waiter who has decided to chow down having been given free burgers as a 'perk' for working at the restaurant, and the UPS guy drops a package on the burger, no court would award the restaurant $295 in damages for the loss of the burger would not be the 'market value' even if that was the list price on the menu. (I'm not even sure a judge would award the restaurant $295 if it was a customer's burger. They likely would if the customer had to leave and so didn't pay for dinner-- resulting in an actual loss. But they might not if the customer waited for a replacement burger.)
Also, another thing that doesn't factor is the sales history for that particular image: maybe it's been licensed dozens of times, or maybe it's never been licensed at all. None of this factors in an infringement lawsuit - all that the courts assess is what fee the image was offered for license at... and even then, that would only be in a Actual Damages & Profits claim.
I believe you are simply wrong. If a company could be shown to have a listing service that posted items -- or even categories of items at prices resulted in
zero sales a judge would take that into consideration. Because the judge considers the
actual damages and profits not just an amount the photographer or Getty hoped they could make (if only there were any consumers who would buy at that price.)
Though I would defer to Oscar's judgement on this, if the dispute were to reach court and the issue of damages is raised, the judge would want to Getty to show that either
(a) this specific photo does sell at the listed price,
(b) this photographers photos sell at the listed price (say at least 3% in that authors catalog?) or
(c) at least a sizable number of images in the collection sell at the listed price .
Evidence of (a) would carry the most weight in favor, (c) less. Of course, amount of time the images is listed would matter to. (Even a good image might not sell in only a few days. But an individual image listed for 5 years with no sales? Or a photographer listing 50 images for 5 years with none ever selling at the list price? The first would be proof the listed price is not the market price for that image. The second would constitute proof the listed prices is not the market price for
any of the images. The photographer would not be 'damaged' at the level suggested by the listed price because
no one will buy at that price.
I have thousands of photographs in my archives which have never been used by any of my clients; there are 'popular' images that have been licensed many times for varying fees, and I have on occasion licensed a few select photographs for four-figure sums.
Yes. But you can show (b). Many of the images in your archives sell and for large sums. Moreover, based on previous thread, you often have contracts in place when you shoot photographs. This matters even if no one later buys the image
I'd also like to touch on the term "innocent infringement" that gets thrown around a lot; this is referenced in 17 USC § 504.
"In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
Note the infringer sustains the burden of proving portion: this means going to trial and stating your case infront of a jury.
Yep. (Though possibly just a judge. Juries aren't required in all court cases). But note: this is a limitation of
statutory damages. Getty won't get those at all unless the image was registered. So, if the images wasn't registered, the infringer doesn't have to prove this burden because there will be no statutory damages. At. All.
As for the rest: I don't disagree though I might quibble about the appropriate amount to offer. (After all: I dispute the notion that the market value is whatever someone asks. Asking price is not sufficient to establish a market value in most venues: housing, collectibles and so on. Sales prices do.)
I think in cases where an infringement occurred, you know the photographer did take the photo and so on, some settlement is appropriate. It's not clear what that should be-- knowing sales prices and whether it's registered would help pin that down both as a matter of fairness and estimating the risk of loss should Getty sue.
Topic: Thoughts on my Response to Getty Images. Next step. (Read 9426 times)