A message from the little guy

[DavidVGoliath]

My impression is that DavidVGolliath probably takes fairly time sensitive photos either in the 'celebrity' or 'fashion' areas. In these areas, publishers and advertisers often do want fresh copies and they want exclusivity. Even bloggers who swipe the photos often want very specific photos-- not just "knobby knees of man on ladder".   Taking good, clear commercially desirable photos in these instances is a skill-- and it's not replaced by Getty's  batch of Flickr contributors who upload their images -- which as attractive as they sometimes are -- are quite often fungible commodities.

Your right that my work is time-sensitive and I'm usually working on deadline; my clients would like me to file my images yesterday if at all possible. Apart from my camera gear with totals $35,000 at current insured value, I also have significant investment in computer hardware and software so that I can get images out minutes after they're shot - and safely backed up/archived once the job has wrapped.

DavidVGolliath says he routinely registered each photo.  Getty asks for large sums for photos whose value is sufficiently dubious that almost none in the entire collection are properly registered. (For example: in the case of the letter they sent me, it seems the image was not registered properly and possibly not at all.)

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

DavidVGolliath does sue and even for 1 photo and evidently gets settlements in those cases; it sounds like his rate of suing and getting settlements vs. approaching people is fairly high. Getty rarely sues and rarely for individual photos.

The truth is that I'd prefer not to have to "go legal" at all; my absolute preference would be for people to come to my archive and legitimately license my works as that's the "win-win" solution for everyone. Going to court is the 'nuclear' option when all else has failed because it's extremely time-consuming, costly and no-one but attorneys truly win in the end, no matter what the settlement is.

DavidVGolliath is dealing with his own photos. So there is no question he has a right to press the claim. Getty has been sufficiently sloppy in dealing with paper work or overseeing contractual obligations that it's not clear they even have a legal right to press a claim. (For example: in the case of the letter they sent me, the copyright owner who was the heir to the photographer was offering the image as a free download for personal use on her own site. Getty doesn't monitor for these uses.)

Oh, you'd be surprised at how many people, when presented with clear evidence of my rights, still basically spit in my face and tell me to take a hike... even when all I've asked for is a retroactive license for the image(s) they've used (think low three figures in most instances)

Regrettably this sort of behaviour is quite common and, each time it happens, my willingness to be cordial with the next infringer erodes a little bit more.

DavidVGolliath says he makes sure he has a claim. If so, that's different from Getty. In the case of the letter Getty sent me, my use does not violate US copyright law as ruled by the 9th circuit court in Amazon v. Perfect 10.  So there would be no claim even if the copyright owner had registered the image and even if Getty had a valid exclusive licence.

Correct: I take into consideration the four point assessment of 'Fair Use' per 17 USC § 107 when reviewing a site where my shots have been used and, in a few instances, have left the uses alone as the aggregate of the four points would lend probability to a use being fair. I may still reach out to the site owner to ensure that they give proper attribution and also offer up a watermarked photograph as a replacement... all to reduce the risk of a "downstream" infringement.

The trouble that often arises is that far too many people believe that claiming 'fair use' is a get-out-of-jail-free statement that gives them free reign to do as they please.

For photographers (like me) who make a living from the licensing of our work, the most heavily weighted section of the fair use assessment is the following

"(4)the effect of the use upon the potential market for or value of the copyrighted work."

What this boils down to can be summed up thus: if uses of my photograph were allowed to run rampant (i.e. be deemed 'fair') then the potential market value for my original photographs would be greatly diminished.

Section 4 can be viewed as the 'tipping point' and might carry as much as 49 ~ 50% of the weight in my claims against fair use. I'm well aware it would be up for a court to agree with me i.e. I can't simply counter a claim of fair use with my assertion that it isn't... but, believe me, I have a strong argument ready and waiting should it ever come to that.

So the fact is: It is entirely possible for some photographers to deserve large amounts of money for some photos and at the same time Getty's behaviour to represent extortionate demands for payment.  Often, you can tell the difference when you see the examples of photos and hear the background.

I'm sure the majority photographers would prefer their work is correctly licensed (assuming that it's available for license) and thus enjoy better incomes and more widespread recognition.

There's nary a one of us that gets into the realm of professional photography with the top priority being to make money: we're almost all driven by passion, enthusiasm and a love of our subject matter; that we get to earn a living from doing so is the icing on the cake - even when baking the cake can cost us in the proverbial blood, sweat and tears along the way.

[lucia]

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

The batch registration is understood.. But in the case of images involved in many of the Getty letters, in many cases those photographers appear to have any images, or they have registered 1 or 2 in special instances but for the most part, their images listed at Getty were never registered. Getty will have to register them if they eventually elect to sue, but as things stand, those images are not registered.

[quoteThe truth is that I'd prefer not to have to "go legal" at all; [/quote]
Also understood. But by the same token, the fact that you would go to court and your images are registered and you do have regular clients for these images and you have a valid claim and so on makes it more reasonable to request a fairly high amount even during negotiations.

Oh, you'd be surprised at how many people, when presented with clear evidence of my rights, still basically spit in my face and tell me to take a hike... even when all I've asked for is a retroactive license for the image(s) they've used (think low three figures in most instances)

No. I wouldn't be surprised.

Neverthelss, I am noting that while some aspects of your wanting money for your images is similar to Getty, others are different.

Correct: I take into consideration the four point assessment of 'Fair Use' per 17 USC § 107 when reviewing a site where my shots have been used and, in a few instances, have left the uses alone as the aggregate of the four points would lend probability to a use being fair. I may still reach out to the site owner to ensure that they give proper attribution and also offer up a watermarked photograph as a replacement... all to reduce the risk of a "downstream" infringement.

That's fair on your part. I don't think anyone should object.

What this boils down to can be summed up thus: if uses of my photograph were allowed to run rampant (i.e. be deemed 'fair') then the potential market value for my original photographs would be greatly diminished.

Section 4 can be viewed as the 'tipping point' and might carry as much as 49 ~ 50% of the weight in my claims against fair use. I'm well aware it would be up for a court to agree with me i.e. I can't simply counter a claim of fair use with my assertion that it isn't... but, believe me, I have a strong argument ready and waiting should it ever come to that.

I believe you.  But that doesn't tell us anything about the strength of Getty's various cases.

I'm sure the majority photographers would prefer their work is correctly licensed (assuming that it's available for license) and thus enjoy better incomes and more widespread recognition.

There's nary a one of us that gets into the realm of professional photography with the top priority being to make money: we're almost all driven by passion, enthusiasm and a love of our subject matter; that we get to earn a living from doing so is the icing on the cake - even when baking the cake can cost us in the proverbial blood, sweat and tears along the way.

Sure. But in many cases this is irrelevant to the sorts of situations where Getty is pressing for very high payments.  If Getty sued me over the hotlinked image they sent me letters about they would just flat out lose.  Hotlinking is  not a copyright violation as interpreted by the American courts so that alone would make them lose. (And you would lose a hotlinking case also. ) But even if I had copied and not merely hotlinked, the use I made of the tiny image of a cardinal had no impact on the value of the image which the copyright owner was giving out for free on her own web site. 

So while you have legitimate gripes with regard to people who violate your copyright, the differences between your situation and the one in which someone like I fell into with Getty make a huge difference in my-- and others-- estimation of Getty's practices pursuing what they claim are copyright violations.

[Oscar Michelen]

DVG Thanks so much for your excellent posts.  My comrades in arms here have pretty much covered all the ground I would hope to cover. But let me make clear as the legal advisor to the site that no one here advocates or supports copyright infringement. We advise everyone who receives a Getty letter to take the image down immediately and make a reasonable settlement offer. It is Getty and others demanding huge amounts for low-res, stock photos that an be acquired for $5.00 that was the cause of the site's genesis. Lucia has already done a great job of distinguishing what you do from what  Getty does, starting with that you register your images. That changes the whole ballgame. Secondly, from your description, your images are not stock photos they are unique and have high value. One picture of a keyboard is as good as another but your's are not interchangeable.  That effects their value. So, please realize that you have only allies here. Most of my IP practice is in pursuit of copyright and trademark infringement so it is only on the damages and methodology that Getty and I disagree.Thanks again for posting

[Greg Troy (KeepFighting)]

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

You may want to read Masterfile v Chaga which ruled last fall that this type of registration is not valid should you need to take someone who has infringed one of your works to court.  This method of registration was adopted by the copyright office to make it easier on them even though the law states it must be individual registration.

Just trying to help you out should the need arise.  You can always register the individual image within 3 months of the date you find the infringement too.

this is also an issue with Getty Images, most of their images are not registered and the few that are have been done in batch for the most part.

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscar-michelen-defends-chaga-against-$6-million-masterfile-lawsuit/

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/masterfile's-copyright-registration-method-held-invalid-by-california-court/

[lucia]

You can register batches of photos with the Copyright Office by uploading them as a .zip file that doesn't exceed 170MB in size. You can also have multiple .zip files form part of each application. This is very handy as I can sometimes shoot up to 4,000 ~ 5,000 frames in a night and I register all of them.

You may want to read Masterfile v Chaga which ruled last fall that this type of registration is not valid should you need to take someone who has infringed one of your works to court.  This method of registration was adopted by the copyright office to make it easier on them even though the law states it must be individual registration.

Greg, I think some types of bulk registrations are fine; other's aren't.  It's likely DavidVGoliath is ok because he's the photographer and registering his own stuff.

One of the problems with some of the copyright companies registrations is they tried to use bulk registration to register works by multiple creators , the registration often didn't name all the creators, didn't indicate country of residence for creators living abroad and so on. These flaws don't necessarily carry over to DavidVGoliath who is registering his own single creator works, likely listing his own name, residence and so on.

[DavidVGoliath]

One of the problems with some of the copyright companies registrations is they tried to use bulk registration to register works by multiple creators , the registration often didn't name all the creators, didn't indicate country of residence for creators living abroad and so on. These flaws don't necessarily carry over to DavidVGoliath who is registering his own single creator works, likely listing his own name, residence and so on.

You're absolutely correct, Lucia: when I file a bulk registration, it's of my own work and - more detailed still - it's almost always a very specific body of work e.g. a series of images shot at a specific event for the event duration. By way of example, the title of the work registered might be "Photographs from London Fashion Week 2013, 15 - 19 February"

Furthermore, if a potential client or infringer were to go to http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First and search my name, they'd find a clear record of all my registrations, including my name, address, telephone numbers and email - pretty much everything they need to verify that I'm the rightsholder to my work.

[Greg Troy (KeepFighting)]

Thank you for the clarification. 

[Jerry Witt (mcfilms)]

Wow, somehow I missed this thread entirely until now. DavidvGoliath, thank you for posting. I'm with everyone else who says we only wish the large stock image agencies (as well as other copyright holders) conducted themselves in the way you say you do.

In the case of large images being used for commercial purposes I agree with your approach 100 percent. And in most cases these companies should know better. It sucks for you that you have to obtain a lawyer to "wake them up."

I do wonder how you deal with smaller mom-an-pop commercial blogging sites that have mistakenly infringed on your copyrighted work. Maybe they found an image on a third party site or in an rss feed and used in in a blog post on a craft site. In that case, you hold the cards. They could argue "innocent infringement" because they thought it was freely available. But they posted your art on their site without paying and without attribution. Maybe they point to images on the microstock sites that sell for $1 to $50. What do you say to them? What would you deem to be fair in this circumstance?

By the way, we have had photographers on here in the past and most have moved on. Many of them were represented by the stock photo agencies. It became clear that the difference in opinion was too vast to ever come to a consensus of how copyright claims and proof of infringement should be presented.

It's interesting that so many of us here on ELI produce our own intellectual property but also are appalled at the scam the large stock agencies are running.

[DavidVGoliath]

I do wonder how you deal with smaller mom-an-pop commercial blogging sites that have mistakenly infringed on your copyrighted work.

I can count on one hand how many times it's been a "mom & pop" mistake; the lion's share of 'small' sites that take my shots are wannabe news sites - either extremely enthusiastic 'fans' of the subject matter I shoot whom pull photographs and news stories from multiple sources and then re-hash them as their own or (more seriously) the part-time "journalists" whom have day jobs but aspire to be in the big leagues... often times they have unpaid contributors posting stories on their sites too, but there's always a concerted drive to pull in revenue of some sort via adverts or similar.

Maybe they found an image on a third party site or in an rss feed and used in in a blog post on a craft site. In that case, you hold the cards.

RSS feeds are a huge problem in terms of educating people on legitimacy of use. It's an uphill struggle as there's nary any case precedents to cite.

They could argue "innocent infringement" because they thought it was freely available. But they posted your art on their site without paying and without attribution. Maybe they point to images on the microstock sites that sell for $1 to $50. What do you say to them? What would you deem to be fair in this circumstance?

In an ideal world, I could simply convert infringers into licensees instead. The trick is that most of the time my images are used, they're still under limited exclusive license to paying clients ... so I couldn't license those pictures to the infringer even if I'd wanted to.

This leaves only one option open: they have to remove the image, but pay the going rate for the time it was in use (which is an 'up to one month' license. I don't license by the day/week/pro-rated)

Sadly even the offer of such a low, reasonable settlement gets spat back in my face more often than not, leaving me no choice but to escalate the matter.

By the way, we have had photographers on here in the past and most have moved on. Many of them were represented by the stock photo agencies. It became clear that the difference in opinion was too vast to ever come to a consensus of how copyright claims and proof of infringement should be presented.

I guess most previous photographers may have found this forum after being infringed upon for the first time. It's a very emotive issue for both parties: at best, the photographer feels that they've been wronged, whilst the person whom used their work might not have known what they'd done would have any consequence, let alone upset someone.

It's interesting that so many of us here on ELI produce our own intellectual property but also are appalled at the scam the large stock agencies are running.

I hear you. There needs to be a serious shift in education and attitudes all around. We all need copyrights as the protections they offer allow creators the freedom to express themselves without the risk of brazen exploitation. Abuse of the system on either side of the fence will benefit nobody in the long run.

[lucia]

I can count on one hand how many times it's been a "mom & pop" mistake; the lion's share of 'small' sites that take my shots are wannabe news sites - either extremely enthusiastic 'fans' of the subject matter I shoot whom pull photographs and news stories from multiple sources and then re-hash them as their own or...

Let me guess? Wanna be Perez Hiltons?  There is a huge blogging niche.

Maybe they found an image on a third party site or in an rss feed and used in in a blog post on a craft site. In that case, you hold the cards.

DavidVGoliath seems to be in the photographing-celebrities or high fashion area.

I'd say copyright violations involving images of celebrities are rare at craft sites because craft sites like to discuss crafts, not celebrities. On the other hand copying of photos from craft magazines, or yarn manufacturers patterns is rampant.  Crafters regularly show images of the sweater they plan to knit crochet or whatever.  But no craft magazine would pursue these.  Not necessarily because they couldn't win but because the law suit could be business killing.   There is a possibility the magazine might lose anyway principally because the main commercial use of the picture is to sell the pattern. It would be a bit like Levy's jean's suing someone for posting a catalog image of their Levy's when telling their friend they bought a pair just like those. The reason Levy shouldn't sue has nothing to do with the law; it has to do with PR.

I suspect the magazine, yarn company or sweater designer generally owns the copyright on such images and if they had any sense, they would not sue..

So even though, in principle, someone might sue a crafter for showing images of patterns. In practice, it's unlikely to happen. (Exception that proves the rule: Alice Starmore. And therein lies a tale of a formerly popular designer of beautiful knitting patterns who seems to have alienated a lot of knitters to the extent that she seriously harmed her own knitting business.)

The place where something might get dicey is something like this: Say DavidVGolliath takes a picture of Jessica Simpson wearing a beautiful hand crocheted shawl. That image is RM. Then a craft blogger might see it, copy it and write a blog post asking her readers where they might find a pattern for a similar shawl. (FWIW: The shawl is discussed here http://www.knittersreview.com/forum/topic.asp?ARCHIVE=true&TOPIC_ID=22293 ) In such a case, DavidVGolliath might end up involved with a dicey issue.   I don't know how he'd feel about it but this really would be different from "wanna be Perez Hilton".

[DavidVGoliath]

The place where something might get dicey is something like this: Say DavidVGolliath takes a picture of Jessica Simpson wearing a beautiful hand crocheted shawl. That image is RM. Then a craft blogger might see it, copy it and write a blog post asking her readers where they might find a pattern for a similar shawl. (FWIW: The shawl is discussed here http://www.knittersreview.com/forum/topic.asp?ARCHIVE=true&TOPIC_ID=22293 ) In such a case, DavidVGolliath might end up involved with a dicey issue.   I don't know how he'd feel about it but this really would be different from "wanna be Perez Hilton".

Just an observation: the forum users are posting links to external sites where someone can see the photographs that they're referencing - that clearly falls under fair use.

Even if the forum users were using the images directly in their postings, any less-than-fair use (someone claiming it was their own shot, encouraging people to share/distribute the image etc.) could likely be dealt with via a DMCA notice, as the forum operators probably have a DMCA agent and will enjoy the safe harbor provisions accordingly.

(Caveat: I didn't click on any of the links posted in that forum)

I rarely have issues with people using my work on internet forums for these very reasons. What I take issues with are sites - large or small - that appropriate my work whom could (in theory at least) have licensed it from me, especially if they're passing themselves off as being an editorial or commercial site - doubly so if they solicit payments or advertising revenue.

I take a much more serious view if the site has a copyright policy or "Terms of Use" section which states something to the effect "All content is (c) us" or some variation thereof. That will likely lead to me making a DMCA violation claim, particularly if my work has been used without a byline credit and/or where IPTC or EXIF metadata has been stripped from it.

If the site policy makes mention of content being owned or licensed by them, the gloves start to come off... and for instances where I discover that the site owner is an educated person whom damn well should know about copyrights (think business, journalism or creative arts graduate), then I often don't bother negotiating with them - it goes straight to one of my attorneys.