Messages

46

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 20, 2018, 06:51:47 PM »

Still waiting for someone to show me a pic that's worth hundreds or thousands and is somehow better than something available free or on istock for some cents

https://petapixel.com/2017/12/21/20-expensive-photos-sold-auction-2017

47

Getty Images Letter Forum / Re: another copytrack letter

« on: August 18, 2018, 05:02:00 AM »

Tman, I concur with Ethan Seven's assessment: if Copytrack is a German firm, and the photographer is German, and you have no business interests or any form of residency in Germany... well, there's really no case for them to make. Citing German law to a US citizen is about as valid and useful as a three-dollar bill.

There's an example of how attempts at extraterritorial justice can fail very, very badly. Not that long ago, LucasFilm took designer and propmaker Andrew Ainsworth to court, suing him for breaching their rights.

Back in 1976, Ainsworth was the London, England based creator of the Stormtrooper armour for the first Star Wars films; he sculpted the moulds that would be used to vacuum-form the individual pieces that would form the suit as a whole. Fast-forward to the early 2000's and Ainsworth discovers his orginal moulds, dusts them off, and starts selling sets of Stormtrooper armour to order via his website.

Lucasfilm took exception to this and sued Ainsworth in US federal court, and won a $20M summary judgement since Ainsworth did not defend the case... but Ainsworth's business was solely based in the UK, and he had no residency or other presence in the US, Lucasfilm was quite unable to collect their money. After all, the US civil courts have no real power over non-resident aliens.

The sole remaining option open to Lucasfilm was to sue Ainsworth in his home country - which they did - but, because of the differences between US and UK intellectual property laws, Lucasfilm lost their case, which was ruled on by the Supreme Court in the UK.

Ainsworth still trades to this day, with the sole consequence of his US judgement being that he can't ship his creations to anyone with a US zip code.

If you're interested in a longer read about this specific case, head to https://www.bbc.co.uk/news/uk-12910683

48

Getty Images Letter Forum / Re: PicRights.com

« on: August 17, 2018, 02:53:35 PM »

If a blogger uses an image of a news event Eg: Bad guy robs bank caught by cops.  Mom and Pop blogger uses the image of the bad guy who robbed the bank.  How is that not fair use?  He's the one who robbed the bank.  The image was found in a news report.  The copyright law allows for fair use in the context of news reporting and that's what Mom and Pop blogger did.  Mom and Pop blogger is not trying to screw the photographer who took the photo.  They're trying to do the right thing as far as they read the law.  Did they have to go to law school in order to read the law as lawyers instead of as laymen trying to comply with it?

If the scenario you cited were to play out writ large, then no news reporting agency would ever license editorial imagery; they would just take photographs from any source they saw fit and never have to pay a dime in licensing fees. So, yes, there are case precedents where it's been successfully argued that the newsworthy item must be the image itself.

Here's an example that's easy to understand: when Daniel Morel took photographs of the aftermath of the earthquake that hit Haiti, and his Twitter account was the only means of getting those images out owing to all other communications infrastructure being damaged or overwhelmed, Getty and AFP thought those shots were free for the taking. We all know how that played out a few years down the line.

in reporting on Morel winning a $1.2M damages award, many websites around the world would have used one of Morel's pictures to illustrate the case result in a "This is one of the pictures that Getty/AFP infringed on" capacity, and these uses would likely have fallen squarely under fair use exemptions.

So: Getty/AFP (and other outlets who settled directly with Morel) taking pictures of his from his twitter feed = infringement.

Using same pictures to report on Morel's court victory against Getty/AFP = fair use*

(* If the country has such fair use exemptions. As a contrary example, UK law does not allow the 'fair dealing' of photographic works for news reporting)

49

Getty Images Letter Forum / Re: another copytrack letter

« on: August 16, 2018, 11:13:33 AM »

Okay, I'll keep this brief since there seems to be a jurisdictional question in play that will require a few answers before i can dig in a bit more.

You've stated that you're resident in the US (and I'm assuming also a US citizen with permanent residence), so how did Copytrack get around to mentioning Germany and German law in their claim letter/email to you?!?

50

Getty Images Letter Forum / Re: another copytrack letter

« on: August 16, 2018, 09:19:30 AM »

Sman, are you resident in Germany? If so, this will fundamentally change the discussion regarding applicable law and scope of liabilities etc. I'm happy to provide you with non-lawyer insights and opinions, but I'd need to know what set of laws we're dealing with first

51

Getty Images Letter Forum / Re: PicRights.com

« on: August 16, 2018, 09:15:39 AM »

I did get the original (is that term in the digital world?) from the photographer back in 2008, but like you said, I doubt a verbal agreement will carry any water.

You're right on that front: getting permissions in writing is always best practice, if only from a cover-your-ass standpoint. Always ask yourself "If the person allowing me to do [X] were hit by a bus tomorrow, how can I prove I had permission to do [X]?"

In the meantime, should I take it down? I'm still holding to that verbal agreement, but thinking taking it down now will somehow paint me in the wrong.

Not if you phrase it along the lines of "Thanks for your message: I had verbal permission from the photographer ten years ago to use this image and am currently seeking confirmation of those permissions in writing. As a good-faith gesture, until I receive an affirmative written reply from them, I will temporarily remove the photograph. Please expect my more fulsome reply in due course"

The above may be more formal sounding than your own regular tone, so adapt it to suit

52

Getty Images Letter Forum / Re: another copytrack letter

« on: August 15, 2018, 01:53:01 PM »

I also understand that copyright may have a 3 year time limit for them to begin a lawsuit which should have passed as the image was originally published on a blog over 3 year ago.

This is a common misconception: the statute of limitations is that a claimant has three years from the discovery of an infringement in which they must file suit. The clock effectively starts ticking on the date that the infringement claim was made to you in writing, whether email or physical letter.

There is also the fair use issue which I think is strong and Copytrack got pretty disrespectful and vulgar with me over email and I asked them to cease communications which they ignored and I also asked that they don't hire third parties to communicate on their behalf since this is clearly not an example of copyright infringement or I would consider that harassment

Another common misconception. If you believe that your use of a work is exempted under 17 USC 107, then that's an argument you make in your defence pleadings if/when you are sued and, ultimately, it would be down to a judge and/or jury to determine if your use was fair or not.

In simpler terms: one cannot say "Fair Use!" and expect it to be a get-out-of-jail-free card.

I also added in that I don't see their case as an attempt to collect a valid debt.  Obviously they ignored that as well.  They are asserting I owe $1500 for a single image and it's an image that is used over 100 times online that the original photographer spent money to distribute publicly on pinterest so that he could attempt to sue people and on pinterest I've seen the image attributed to another photographer who is from the US and not the person they claim took the image.

That's a very bold claim to make - I'm curious as to the merits of what you say and, with this in mind, are you willing to point to the image in question?

53

Getty Images Letter Forum / Re: Pixsy Letter Even Though Image Isn't Hosted On Website

« on: August 15, 2018, 01:45:20 PM »

Ethan Seven is partly correct: the "server test" has been argued as still infringing on the copyright holder's right to display under 17 U.S. Code §106, part 5, and although it's not settled case law yet, there's a fairly strong argument that it will become so... even in the 9th circuit (eventually)

Frankly, it's a little surprising that this sort of challenge to the "server test" method wasn't made sooner. After all, the right to display can be infringed by using a picture resident on any server - whether an image is 'hotlinked' or not, the end user experience of viewing the work is no different.

Naturally, there are quite a few parties that are trying to challenge this viewpoint because their business model relies on hotlinking to images rather than hosting them because a) hosting images without license exposes them to infringement liabilities and b) actually licensing images instead of hotlinking would eviscerate their revenues.

54

Getty Images Letter Forum / Re: PicRights.com

« on: August 15, 2018, 01:17:11 PM »

Getty should have a model release, if they don't I don't think they can use the image..

It's not that cut and dried; without a model release, photographs can't be used for commercial/advertising purposes but almost always can be used in an editorial (news related) capacity.

It gets even trickier when you consider that some states and countries don't have personality rights laws at all, so they could theoretically use an image of anyone in any circumstances... and challenges can be expensive (see https://www.judiciary.uk/wp-content/uploads/2015/01/fenty-others-v-arcadia-others1.pdf as an example)

And lastly - as odd as it may seem - even if a picture is of you personally, you have no automatic right to make use of it without permission and/or payment to whomever did take the shot.

To runningbombtech: if you did get a copy of the shot from the photographer, then your best and only chance is to get a written statement from them (email is fine) saying that they're okay with how you used the picture. In the event that you can't get that (or if they don't want to give you permission based on how you used it) then you're likely still on the hook. Well-known and highly respected copyright attorney Ed Greenberg lays out why here http://thecopyrightzone.com/?p=163

55

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 15, 2018, 06:56:47 AM »

Your argument is flawed, again. Getty owns iStock, but Istock is not Getty. iStock is a discount line of royalty free images.  Getty focuses on rights managed images that cost much more.  So, Schwabel is probably getting paid much more than you think.

I just popped on to iStock moments ago; a search for "Tom Schwabel" or "Thomas Schwabel" returned no images. Conversely, he has 168 images listed on Getty.

So: Schwabel will most likely be receiving a royalty rate of 35% which means that, outside of volume licensing clients (who tend to license news/sports shots) he'll be earning semi-decent royalties from his works there.

I do have a question for UnfairlyTargeted, though: did Schwabel file suit against you or not? If he filed, and won,

56

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 14, 2018, 09:25:39 AM »

So, why do I say photos are worth very little?  Check this out:
http://www.microstockposts.com/istock-contributors-furious-over-new-royalty-of-2-cents/

You're quoting someone saying they're quitting iStock because of low royalty rates. Not exactly helping your case.

So if a piece of shit like Schwabel sells photos on Getty (he does), then he's accepted that he'll be paid TWO CENTS per license.

Nope. The percentage of revenue paid to iStock contributors is between 10 - 20%. Now I'm not going to argue that $0.02 is anything other than an abysmally low cut for anyone to get for their work, especially since that means it would have been an image licensed for $0.20 or $0.40. Those sort of revenue splits happen when iStock gets a monthly payment from one of their subscription clients; the ones who pay several hundred or thousand dollars per month to iStock and get to use a fixed number of images during that period. In other situations, an iStock contributor might make significantly more money depending on the license e.g. if it's a one-time purchase for a wide swathe of rights.

Conversely, there are other photographers who self-manage, employ agents, or work with boutique agencies who charge very high fees for licenses. This is particularly true in the cutthroat world of celebrity and entertainment images, where a good exclusive shot (or series) can command five, six or even seven-figure fees.

If you get a letter from this royal piece of trash or any other Pixsy trash and you feel you must reply, offer two cents, but tell him that your hourly rate to verify his claim is at least minimum wage.  Since you will spend more than a minute or two reading his crappy email, then he now owes you for your time, which exceeded two cents.

I said in a previous post: Pixsy is just a tool that can be used to verify if an image is being used under license or not. I personally use Pixsy on occasion to see what's out there but have never used their claims handling process.

My own photographs are routinely licensed for three and four-figure sums, and I can (and have) proven this during legal proceedings - so I guarantee you that myself, and many of my peers, absolutely have our ducks in a row when we initiate infringement claims, and if someone tried to counter with an $0.02 offer, I'd likely move to file at court fairly rapidly.

57

Getty Images Letter Forum / Re: Picrights & AFP Copyright Infringement

« on: August 14, 2018, 05:45:39 AM »

Did you click through the URLs in their post? I did, the day that they posted: turns out they paid online and settled the matter.

58

Legal Controversies Forum / Re: UK: Photo pricing examples. Stock pricing vs. full commercial license

« on: August 08, 2018, 06:30:23 PM »

In UK copyright claims, case law has established that it's the reasonable fee that a willing seller and buyer would agree to - and specific case law will favour the seller in the event that they can substantiate the grounds for their licensing rates; the Intellectual Property and Enterprise Court made a ruling that would serve as a yardstick back in 2013 (see http://www.bailii.org/ew/cases/EWPCC/2013/26.html, particularly parts 13 and 22)

Once you've read the above, you may come to understand that even if other websites offer similar images for far lower fees than you are being asked to settle for, if the specific image commands a higher fee (and, for veracity, if the seller can prove that such higher fees have been paid in the past) then that's more or less how the courts will rule. Judges tend to look to past rulings as the foundation of their opinions, as this is far easier than establishing new precedents.

59

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 08, 2018, 06:01:14 PM »

Can you point me to a copyright infringement case where there was a judgment on a copyright infringement case where there was a "contempt of court charge"? It is my understanding that, at best, various collection efforts are made or perhaps seeking meaningful assets (if any) to collect unpaid judgments.

I don't know of any copyright cases where a civil contempt of court action has been lodged as a response to non-payment of a court order; with that said, there are two caveats to my statement: firstly, I am not a lawyer and, secondly, petitioning for a charge of civil contempt would certainly be an option in these types of cases... an extreme one to be sure, but one that exists nonetheless (see https://litigation.findlaw.com/going-to-court/civil-contempt-of-court.html for some information)

60

Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)

« on: August 08, 2018, 04:55:56 AM »

In the off chance he actually sues and in the off chance he actually wins a judgment....  who cares?  Just don't pay it.  It's very hard to get money from someone who doesn't want to pay anything, even with a judgment.

Stellar legal advice there, fella: just ignore a judgement if sued. Way to run the risk of a contempt of court charge - doubly so since copyright claims are tried at Federal level.

I wouldn't pay a talentless POS Pixsy "photographer" a single fucking cent.  The people that use Pisxy are unsuccessful pieces of human trash that have no other way to sell their crappy photos of protein powder, and they know it.

You do know Pixsy is a reverse-search service used by photographers of all kinds, right? You can't "sell" pictures using Pixsy... it's just a tool that you can use to track down unlicensed uses of your work.

Read up in photography channels how they talk about how to extort the maximum money from people and how they can't sell their photos for more than pennies otherwise.

This is the second time in a month that you've made this bold, unsubstantiated claim: I asked you before to give me even one example of a photo website/forum where specific (or even implied) discussions of using copyright claims to 'extort' people are prevalent, and you've failed to do so... so, again, I'm calling BS on this hyperbole.

There's one really notorious POS, Tom Schwabel, who has a whole handbook and manifesto online with full instructions on how to carry out this scam.

You first posted about Schwabel almost four years ago. That's a long time to hold such a bitter, vitriolic grudge against someone who contacted you directly without lawyering up, asked you to stop using their work and pay a very reasonable, low figure settlement for your past use of their work.

That level of anger is a hot stone: the longer and tighter you hold on to it, the more you burn only yourself.