Messages

106

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: September 23, 2014, 12:18:13 PM »

On evidence: search warrants are requirements under criminal law, and copyright matters are civil law.

Also, if the language of the Computer Misuse Act 1990 were to mean PicScout were illegal, then so too would the core technologies of many search engines - and I'm sure that we'd have heard all about that by now

107

UK Getty Images Letter Forum / Re: The Ending to it??

« on: September 20, 2014, 08:29:44 AM »

I see. So forever then. No end, until they get sick of it, in the UK.

From a statutory standpoint, that's correct - so long as the entity has permission from the author to pursue a claim on their behalf. (FYI, such a clause is written into Getty's contracts)

So would your opinions with experience be not to communicate with any of them?

Here's an opinion of how you can effect a positive outcome; it's possible that you might be able to track down the individual photographer who created the work and offer to pay them directly for the past use.

Believe it or not, the majority of photographers aren't an adversarial bunch. We like to create, we like it when our work is licensed - and we hate dealing with the hassle of infringements. It's time-consuming, frustrating and overall a "negative" aspect of our business interests. If someone came to me and said "Hey, I used one of your pictures and would like to pay for it" then that opens up a wholly different dialogue and attendant possibilities.

Of course, there's also that chance that the shot was created by a staff photographer, or that tracking the actual author of the shot is difficult, in which case dealing with Getty (or similar) may well be your only option.

108

UK Getty Images Letter Forum / Re: Come to Join the Club

« on: September 20, 2014, 08:13:31 AM »

I think most of us have been "caught" unknowingly by one means or another in this. I choose my words carefully. Would any sane person actually go to a stock photo site or Google and take an image with a watermark on it clearly showing it is copyright.

You'd be surprised: I've found some photographs from my online archive which have never been licensed to anyone pop up as infringements, where the only way the person could have gotten hold of them was to do a screen capture of the archive page.

I used to have my name appear as a 30% transparent watermark in the lower right corner of every image - the infringers would either use the shot with the watermark, or trim the image so as to remove it from the picture. Using the picture with the watermark in place destroys any claim that you didn't know it was a copyright work, as does any attempt to remove it.

These images are just floating around, no watermark id, for the unsuspecting to pick up, use and "get caught".

Horseshit.

I'm sorry, but the pre-purchase images that you can view on my archives now carry a nice, fat watermark in the center of the image to deter outright theft, but when someone licenses an image from me, it is quite rightly supplied to them without a watermark, and a byline credit will normally appear in some form of proximity to the image in question. Sometimes it's immediately beneath the shot, sometimes it's at the bottom of the article that the picture is used in - and sometimes, especially with select US clients, there's no byline at all (because the US does not have laws on the books regarding right of attribution)

Whenever a search engine such as Google indexes a web page, it will do so "as is", meaning it will link to both the source page, where you can see the shot used in context, and the image itself. So: When Google indexes my archive, it'll show the shots with the watermark in place; when it indexes a page where a client has legitimately licensed the shot, it will show it without a watermark.

Now here's where people fall foul of their own ignorance of the law: a copyright work does not have to display a copyright notice to enjoy protection under law. It's not a legal requirement.

Claiming that an unwatermarked shot which you can right-click, save as via Google is the equivalent of a fishing lure is akin to thinking that you can pick up a new ride by testing the doors of those sitting vacant in a car park and, when you find one that's unlocked and with the keys in the ignition, thinking "jackpot!"

There's a very simple rule to using images: if you didn't create it yourself, or if you didn't get permission / obtain a license for the use, then you might be infringing. If you're happy to take that risk, then by equal measure you might also fall foul of the consequences of your choice.

109

UK Getty Images Letter Forum / Re: The Ending to it??

« on: September 18, 2014, 12:39:37 PM »

I had to dig around to get the information, but it turns out that the statement citing there was no limits on the time that could elapse before bringing a copyright claim in the UK courts was made in the House of Lords back in 2009

Although Fisher won his case in 2006 and was granted 40% of all future royalties of the song, the defendants - singer Gary Brooker and songwriter Keith Reid- were given leave to appeal. In 2008, Booker and Reid took their case to the Court of Appeal, where it was ruled that Fisher had waited too long to bring his case, and the copyrights / royalties reverted to Booker and Reid alone.

That's not where it ended, though, as Fisher was then given leave to appeal the case to the House of Lords.

During the appeal in the Lords, it was Lord Hope that specifically said there there were no time limits under English law in copyright claims, and he and the four other Law Lords on the panel reversed the appeal, granting Fisher both his authorship and 40% cut of future royalties. As the song was published in 1967, Fisher will continue to receive royalties until 2047.

The defendants were left with no higher court to appeal to, thus rendering the Law Lords ruling as final.

110

UK Getty Images Letter Forum / Re: The Ending to it??

« on: September 18, 2014, 05:36:13 AM »

There's no statute of limitations in the UK for claims of copyright infringement claims; this is established case law that was taken all the way up to the High Court in 2006, when keyboard player Matthew Fisher won the right to be recognised as one of three authors of the song "A Whiter Shade of Pale", which was originally released in 1967. The judge also granted Fisher a 40% right to future royalties.

So, that's a case that spans almost forty years from the creation of the work to the judgement in favour of Fisher. For as long as the work is covered by copyright (life of author + 70 years for photographs), a claim can be brought at any time.

111

Getty Images Letter Forum / Re: Letter on image now available for embedding and unsolicited email?

« on: September 17, 2014, 12:18:45 PM »

The image in question is available for embedding now but not when it was displayed on my blog. I was too naive to get this image from a "free image" site... lesson learned. They are asking for $907 but their price formula doesn't apply to my blog's type and use of the image. I just wonder that since the image is available for embed now, its value is reduced since not all Getty images are available for embed.

As a former contributor to Getty, let me preface that their embed programme was one of a handful of reasons I terminated my contract with them.

Now that's out the way, their embed feature is essentially providing images under license without the end user paying a license fee; the terms of use are incredibly narrow.

Getty believes those limited terms don't and won't cannibalise their core business, because if you want to use the image outwith the embed frame - whether that be for editorial, commercial or advertising use, then you'd have to pay for a relevant license.

From this standpoint, the image has not been devalued at all, as the value of a given license is determined by many factors relating to the nature and scope of use, regardless of the subject matter.

A major problem is that they contacted me on my personal email and I didn't provide them that info. Is it legal for them to approach me this way? How can I protect myself from their harassment strategies?

If your personal email appeared to be connected to your blog in any manner whatsoever - including mention on a different website then it's fair game, as they'd be acting "on information and belief" If you're curious as to how they found it, you should perhaps try a Google search for your email address to see where it's referenced.

112

Getty Images Letter Forum / Re: Photo Attorney Operation Seems Sketchy

« on: September 17, 2014, 11:51:50 AM »

... so you're saying you've never heard of the concept of doing business as, d/b/a (and other variants thereof) and/or the practice of remote working?

If the Richardson receives a salary or retainer from the PhotoAttorney people, then he's staff - regardless of where he's geographically located; as long as any correspondence shows the address of the law firm that he's employed by, this should be a non-issue.

Another point: when an attorney sends out correspondence on the instructions of a client, they will always make mention of it - they'll use language such as "we represent X" or similar. An attorney might make a suggestion to a client as to a course of action, but it's up to the client to green-light any suggestions.

Lastly, on the point of sending correspondence out-of-state: you could have a Californian attorney send a letter to a New York infringer on behalf of a photographer in Texas and it would, as I understand it, be perfectly legitimate.

To the best of my knowledge, the only issue arises when the matter escalates beyond cordial negotiations and starts heading down the road of litigation; per the example above, the Cali attorney would either need to obtain pro hac vice with the state bar wherever the defendant is resident, or pass the matter to an attorney who is licensed in the state where the action will be brought - which could mean someone within the same company, or an outside entity.

113

Getty Images Letter Forum / Re: On "innocent" infringement, re. damages range

« on: August 24, 2014, 04:42:00 PM »

So how about this:

The copyright owner, in their opening message, shows that they have a valid, timely registration of the images in question (including certificate numbers) and requests that just the lost license fee alone is paid for the use up to the date of discovery... which, for the majority of non-advertising and non-commercial uses, would be in the low three figure range: reasonable?

Would it also be reasonable to make mention that, should no reply be received to the message, the copyright holder may refer the matter to an attorney?

114

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: August 23, 2014, 11:35:21 AM »

Dear 'DavidVGoliath'. If you read all of what I wrote you'll see that I never said 'I' got a Getty letter, you will notice I never said this was MY server we're talking about.

No, you didn't; but you also made mention of consulting with an IP lawyer to get some answers, which people generally don't do for the fun of it - as well as making other comments from which someone could reasonably infer that you had received a demand letter from Getty and wondering as to the extent of your liability.

So regarding your comment about losing all respect or sympathy for me I will say, how can I put this without swearing: You can shove it where the sun doesn't shine.

The south pole? It could sit there happily for six months, so I hear.

You do not deserve an explanation for how my music was ripped off and why it would be futile to pursue it legally

I didn't ask for an explanation... and futile to pursue it legally? Wow, you are playing the wounded artist card. Protecting your work and rights might be time-consuming, it might be costly, it might be emotionally draining at points... but it's never futile. If you believe that your music is self-expression worthy of protecting, then it is never a hopeless act to defend it. If people appropriated and used it without your consent, you damn well know it has worth.

I do stand by my opinion, though: if you have infringed and are in receipt of a demand, then you're the pot calling the kettle black - artists ripping off other artists is parasitic behaviour that I have no time or sympathy for.

you're too busy being smug and obnoxious to think outside of the extremely small and foul smelling box you inhabit. Screw you and the proverbial horse you rode in on. (yeah, I'm gonna get banned, let me see... yep, I don't give a damn)

It's a relatively spacious and airy box, thank you, which looks out on to a nature reserve with all manner of wildlife. I've never seen a horse passing through, though we've had deer amble past a few times. You'll pardon me if I decline to saddle up on one, though. 

115

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: August 23, 2014, 09:40:51 AM »

But after seeing so much of my music mercilessly ripped off, to the point of making almost no money from it, I find it empowering to see another artistic field I am interested in apparently incredibly, even unfairly, biased in my favour (granted, to an abusive degree with the likes of Getty).

You're a musician? I'm sorry, I've just lost any respect or sympathy for you; as a creative artist, you absolutely should damn well know better than to appropriate the work of any other artist - doubly so if you yourself have fallen victim to plagiarism or infringement of your own work.
 

Also, I have to mention, you DO realise this is 'extortionletterinfo.com' ?  Shouldn't you be posting on 'youareallguiltyandshouldpaygettynow.com'   

I'm quite aware - but perhaps what you weren't aware of is that more than a few of the people who post here are photographers, musicians, designers, writers and so on. I'm one of them.

You came to solicit some broad advice on the specifics of UK law with regards to a copyright infringement claim, and I offered up some salient points for you to consider. If you want legal advice on the specifics of your own situation, then engage a solicitor or lawyer who is up-to-date on current UK case law on copyright.

You are entitled to hold the opinion that UK copyright laws are unfair or unjustly weighted towards the creator and rights holder... but forgive me if I do not weep for the position you find yourself in, because those very same laws protect your creations as a musician.

There are organisations such as PRS, the Musician's Union, the Association of Independent Music and many, many other entities who would have assisted you with your challenges and ensured you got a fair deal in the event that people attempted to exploit the fruits of your labour.

If you did not stand up to fight for your rights, if you allowed your work to be exploited without taking steps to address it or seek help in doing so, that's on you... but perhaps it would be worth you knowing that the UK has no statute of limitations on copyright claims via the courts, nor is there any requirement for a formal registration - so, if you feel sufficiently aggrieved with your situation, there is still time for you to do something about it.

116

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: August 23, 2014, 07:56:18 AM »

There are lots of situations in which it could be legitimately believed that a photo was not subject to a copyright claim (part of a collection buy-out, creative commons, public domain, etc).

... and the onus is on the defendant to prove their belief the photograph was not subject to copyright, and that such belief was reasonable - and for the Judge to agree with such evidence.

As I mentioned, I will speak with an IP lawyer to clarify these points for me. I maintain that I find it unreasonable in principle that a scenario of unintentional and trivial use (which is rectified imediately upon notification) would be treated in such a draconian manner. It falls outside of the spirit of the law and into the realm of abuse.

Consulting with a solicitor or lawyer who has specialist knowledge of copyrights is perhaps the single best step that you could take.

Having said that, I am about to make available a bunch of my own photos for licensing and I am thrilled at the prospect of so much easy money knowing I can extract such sums for even the most obscure and inconsequential use, regardless of any malice of intent or even awareness, personal gain or provable loss on my part. 'Seems like a wonderful business model.

Oh, please; do you really think that creators such as artists, musicians, film-makers, writers etc. work at their craft in the hope of someday discovering someone had breached their rights, just so that they can take legal action against them?

If someone offers their work for licensing, it is because they hope to earn an honest income from it. If it's good enough for you to use, then it's also reasonable to expect that you should compensate the rights holder for such use. 

In the Daybrook/ Sheldon case, do we know if they appealed? Did Daybrook just pay up?

Daybrook did not appeal. They reached an out-of-court agreement with Sheldon on the question of costs and fees, so that they did not have to return to Judge Birss to have him make a ruling on that issue, and when combined with the damages awarded by the Judge, the total sum was in the low five figures. I do not recall the specific amount, but it was somewhere between £15,000 and £20,000.

I maintain that it's a VERY different matter when the photo in question is so specific, ie a celebrity etc because in such a situation you probably won't have thousands of substantially the same thing available free, it's not like a generic pic of a cactus or something.

The specificity of the image is why Judge Birss allowed for Sheldon to apply a 20% mark-up above his standard fee, as this accounted for the exclusivity and scarcity of this particular image. The ruling makes repeated mention that the sole consideration under law is what the content creator could have reasonably licensed the image for.

Also, I would advise anyone against arguing that many other images are available for lower or zero cost, as a judge may take a dim view of someone who knew that other options existed.

Also, in that case it could be argued both that their use resulted in financial gain and / or was 'flagrant' thus section 97 not being applicable.

Flagrancy, or willfulness, is a secondary consideration under section 97.

Another big difference about that case is that they used the photo and that point is not in question. With many of the people on here that have received the Getty letter, it is simply picscout finding an image on their server, no proof they ever used it, or for how long, if anyone actually saw it etc.

... and images do not magically appear on a web server without someone putting them there, whether manually or via an automated process. As we're talking about UK law, there is no equivalent of the DMCA to exempt you from liability for third parties placing content on your server; furthermore, if the content was provided to you by someone subject you your direction (such as a web designer) then unless you have a contract where they agree to indemnify you against such actions, again, you are liable for the result of their actions - and would have to take steps against them to recover any losses.

Additionally, UK copyright law, insofar as establishing whether an infringement occurred, does not concern itself with the extent to which you "profited" from the use of the image - though that may form part of a damages claim if a plaintiff chooses - so questions as to how many people "saw" the image are irrelevant; all a defendant need prove is that you obtained the image without license or permission.

117

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: August 22, 2014, 04:11:10 PM »

Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.

Section 97 only offers a defence if the defendant had reason to believe that there was no copyright vested in the work; for example, that more than 70 years had passed since the death of the author, or that the author had renounced copyright.

I thought, perhaps wrongly, that anything Getty is seeking is considered 'damages' when it actually goes to court. Whether that is simply a license fee or something else. I will see about having a copyright lawyer clarify these points for me for future reference.

The damages are largely assessed on what a willing plaintiff could have licensed the image for to a willing defendant. There are other factors that come into play in determining the total amount that a defendant could be found liable for, but the "lost" license will, in the majority of instances, make up the significant portion.

I think in the area of 'fair market value' they would need to show that the fees they are requesting are actually being paid for that image by real customers.

Partially; they only have to show that the license being requested is reasonable and broadly similar to other licenses in the marketplace - so, if we're talking about a "stock" image, then they might put forth evidence that similar photographs from other vendors (eg. Corbis, Shutterstock) are also licensed for fears that are within approximation of their own fees.

Your example is irrelevant because we are talking about a very different situation when talking about a stock photo with a very defined license fee pricing structure vs an exclusive photo that was not being offered for sale in such a way. An example in music would be the use of the Rolling Stones string melody by the Verve in 'Bittersweet Symphony'. It was not a case of something that was available to buy a license for.

The example is wholly relevant; case law shows that the consideration is weighted towards what the plaintiff would have been able to collect in terms of a reasonable license fee. Establishing what that license might have been is easier for photography than your example of music, because sync of sample licensing is elastic in terms of pricing as it is dependant on many variables - far more so than stock or rights managed photography - which is why there are specialist agents who only deal in sync and sample licensing for music.

As I have said, I understand the need for intellectual property protection under the law but there is also a divide between what is reasonable and what is not.

Again, the case precedent I put forth shows clearly in which way the law leans - so long as the defendant can prove the portion of their damages claim that relates to their license fee is reasonable, then it is fair to assume any judgement will fall in that direction.

You'll forgive me if I don't address your analogy as I can glean little from it. If you would care to share some more general details as to the claim you are facing, I might be able to offer some suggestions to you.

118

UK Getty Images Letter Forum / Re: Can we just 'bottom line' this ?

« on: August 22, 2014, 12:38:56 PM »

You need to look at the text of Sect. 97 in its entirety

"Provisions as to damages in infringement action.

(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a)the flagrancy of the infringement, and

(b)any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require."

As infringement actions are largely civil claims, the onus is on the defendant to prove that they had good cause to believe that the image used was not protected by copyright. Also, even the vacating of damages in a case still gives the plaintiff leave to seek other recourse ("but without prejudice to any other remedy")

As to the amount of damages that might be awarded, all that the plaintiff needs to show is that their license was reasonable and in line with common industry averages, and there is case law to reinforce this

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

Look at sections 13 and 22 in particular

So it boils down to this; if anyone were sued through the courts in the UK for a copyright matter, case precedent has clearly established that a correct measure of damages is a reasonable license fee, plus such mark-ups as may be fair and just.

In addition to damages, a defendant may also be awarded costs. In the Sheldon vs. Daybrook case, although the judge awarded damages of £5,682.37 excluding VAT and interest, I believe the entire matter was settled for a low five-figure sum, as the parties reached an agreement on costs out-of-court.

For what it's worth, Certain court tracks bar either party from applying for costs as they permit self-representation (the Small Claims Track of the Patents County Court is an example) but still, the cost to defend a claim - in terms of time and expense - can be considerable... thus if you have infringed, it may be worth assessing whether settlement of the sum claimed is the least expensive of the two options.

119

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 22, 2014, 03:56:45 AM »

I'm going to pass over some of your rant and focus on just a few choice sections.

Occum's razor says he put the images there.  Even if I took down the image, I'd still owe him?  How can that be anything other than extortion?  Look at the crap he spews on his pages about image theft.

Here's why: professional photographers license their images. I'm sure you're familiar with the concept of licensing, as you may have had cause to need a few in your time such as a firearms license, fishing license and so on. Licenses, or permits as they are often also known as, grant you permission to engage in a specific activity for a certain period of time.

Licenses sit at the very core of how many professional artists earn their income - whether photographers, musicians, filmmakers, designers... especially independent, self-employed ones. They create a work and then, under terms agreed in advance, they allow others to make use of it and, in return, receive payment which is commonly known as a licensing fee.

In using Schwabel's photograph on your own website without his knowledge or permission, you avoided paying for a license to do so. Whether you profited from the use of it is of no relevance - for the same reasons that, if you purchased a fishing license and didn't catch anything all season... well, shucks, that's too bad.

Getting back on point: so Schwabel discovered that you used his photograph and asked you to stop. He also asked that you pay him for the fact that you had been using it for whatever period of time it was between the date of you uploading it to your website and the date he contacted you - which, from your postings, I'm guessing was $200.

That's really quite fair and reasonable, all things considered. You obviously think otherwise but, again, that has little relevance to what appear to be the facts. You don't get to haggle over the cost of a meal after you've eaten it... heck, sit down in any restaurant and, even if you just toy with your steak dinner and have a few nibbles, you'll still be faced with the bill... and you can imagine what would happen if you screamed "Fuck, man, I was just peckish... I could have gone to f'n McDonalds! No way I'm paying that!!!"

Not a great analogy, but it's close enough to how you're attempting to wriggle out of paying for something you had made use of - in this case, Schwabel's photograph.

This guy is a psychopath and social parasite.

Cough... pot, kettle... cough. (just my opinion)

I came here in good faith to expose him and I've been surprised at some of the responses, but I am glad I am starting to get through to people.

Oh, your're getting through to people alright - but perhaps not in the way you'd like to 

And I'm not worried about being sued.  I'm just trying to warn other people of the scam this guy is making a living by doing.

Well, karma might just grant you your wish regarding the first part - and if you really believe that reaching out directly to people who have made use of his images and asking them to stop, and pay a small fee for the prior use, is a scam... wow.

Let me reiterate: his first step was not to lawyer up. Neither was his second step (going to your web host), which would have been a taken only if you didn't voluntarily cease using the photograph. He didn't put a four, five or six figure demand to you... but now your own actions have exposed you to the possibility of a lawsuit for wilful infringement, where the damages can be as high as six figures, along with reasonable attorney's fees and costs being awarded to the prevailing party.

That dose of karma, when it comes around, might be something you'll rue for a long time.

120

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 05:11:40 PM »

I think you you'll find that a good many of the contributors on this site are creative professionals who are pro-copyright, because copyright law, at its core, helps to protect artists from the predations of those who would otherwise abuse them.

Sure, there are entities who abuse process and sail very close to the wind of what many here consider, in their opinion, to be extortion.

I guess what you didn't reckon on was that, from your own postings, you'd out yourself as someone who seeks to abuse artists of their right to be compensated when you make use of their work.

Remember, you made mention that Schwabel is either connected to or retains the services of a copyright attorney... yet your opening post stated quite clearly that he reached out to you directly in an attempt to seek restitution for your using his work. That's not extortion by any stretch of the imagination - that's someone taking a reasonable first step.

You're obviously dead-set in your opinion that you are right and Schwabel should never have had the temerity to contact you, let alone expect that he be compensated for your breach of his rights. I'm guessing that he moved to contact your web host when you point-blank refused to voluntarily remove his work from your website.

Again, note that he didn't lawyer up at that stage either. He took a proportionate step in response to your intransigence, and - assuming you're being truthful - your web host pulled the plug on your site as a result; as I said before, that's on you.

For what it's worth, I've never heard of a web hosting provider pulling anyone's site for a single breach of the DMCA; they usually have to have received multiple, repeated notifications that you were breaking the law and/or their terms of service... and they're duty-bound to report any claims to you.

If Schwabel now escalates the matter to a copyright attorney, that's also on you. If you decide to stick your head in the sand if or when that happens, that's on you too - and if this whole sorry mess winds up in court and the judge/jury rules against you... well, what can I say?