Messages

46

Getty Images Letter Forum / New wording and interface on Getty's site

« on: September 29, 2012, 07:40:12 AM »

Getty has changed its wording and its interface when purchasing Rights Managed Images.

Let’s take this image as an example:

http://www.gettyimages.com/detail/photo/eye-46-high-res-stock-photography/102386149

Click on “View Pricing”

One reaches “Price a rights-managed image” interface

For “Image Usage” I selected “Web and App”, followed by “Web – Corporate and promotional site”, which includes “Commercial or promotional use on a website,”

I clicked NEXT, and chose size (low resolution), placement (secondary page), start date (today), duration (up to one month) and industry (Baby/Childcare).

I clicked NEXT, and reached “TARGET MARKET”. This is new! At this stage, the site used to ask:  “ In which territories will the image appear?” I never understood this question. Today you can click on the question mark, and receive an explanation of what is meant by “target market”. The explanation is as follows:

Territory

Choose one or more geographical regions in which your image will appear. If you are licensing for the web, select a territory that best represents the location of your primary audience. For example, if you're licensing for a company website that does a majority of its business in the US, Canada and United Kingdom, select those territories. If a territory is not listed, please call for a price quote.

One might expect that the location of one’s “primary audience” would determine the price.



Leaving all the above parameters the same, I chose the US, Canada and United Kingdom (a combined population of over 400 million people) as my “primary audience”. The licensing price was $315.

Then I chose ONLY the South Atlantic Ocean island of Saint Helena (which has a population of around 4,000 persons) as my “primary audience– the price was an unchanged $315!

Now I chose “select all”. Guess what? A bargain at $315

If the price is the same for any and or all target markets, then why bother asking??

As I have already stated on this forum, one price for Internet licensing makes perfect sense. The Internet is one territory, and cannot be divided into territories for the purposes of image licensing.

How can anyone be sure who are ones “primary audience”? Some sites may be multi-lingual, and be aimed at a worldwide audience. Many English language sites have a worldwide audience. With Google translate, language is no longer a barrier to potential audiences. Ones “primary audience” can also change on a monthly basis.

So why does Getty ask the above question? The answer, in my opinion, is a sinister one. It lies in this sentence  -

If a territory is not listed, please call for a price quote.

PLEASE CALL is a link that opens up a page with a local Getty representative.

Around 30 countries are missing from Getty’s list – among them  - China, The Czech Republic, Israel, Argentina, Greece, Russia, Turkey, Brazil and others.

Why are these countries missing from the list?

If one added these countries, would the pricing be any different? The above evidence would suggest not.

If an American purchases an image license from Getty for his Russian language website, is his license valid in Russia (a country missing from the list)? (No need to reply to this question – clearly no one will actually sue under these circumstances).

If an American has a web site in several languages, does his license from Getty cover the whole Internet?  Or does he need to purchase multiple licenses from multiple Getty representatives around the world? These are rhetorical questions!

If you are in one of these missing countries, and you click for a price quote, you reach the offices of a local Getty representative (not necessarily a Getty office) . For example, in Israel, you reach Marot Image. In the Czech Republic you reach ISIFA  and in Russia you reach Fotobank Biblioteka. There is a drop down list of countries.  Marot Images claims that they own the exclusive license because Israel is missing from the list, and only they can sell licenses for Israeli territory.

If they were right, then an American who purchases a license from Getty, would be violating Marot’s exclusive license if the primary audience were in Israel.

If as an Israeli, I have a web site whose primary audience is foreign tourists, then I can purchase the image directly from Getty! (This didn’t stop Marot from suing me!)

Getty’s question is absurd! Getty’s removal of 30 or so countries from the list of “primary audiences” is not only absurd, but it is also sinister. If the pricing is the same for an island of 4,000 people or for a continent of 400 million people, what possible explanation can Getty have? If Getty owns the “worldwide exclusive rights”, as is written in it agreements with photographers, why bother trying to create the illusion of territorial rights?

Sorry for the long post!
Ian

47

Getty Images Letter Forum / Re: Copyright Troll Randy G Taylor from Copyright Defense League on video

« on: September 28, 2012, 05:47:35 PM »

I suppose you could divide it up in any way agreeable to the parties of the contract?  For example I think one person can have exclusive digital media rights while another has print media rights?

Again, I'm not a lawyer, but this seems plausible. Locally printed newspapers are limited to a physical territory. But if the same newspaper had an online version, then it might be that for that different use ( online digital use ) , a separate exclusive license holder may exist.

48

Getty Images Letter Forum / Re: Copyright Troll Randy G Taylor from Copyright Defense League on video

« on: September 28, 2012, 05:29:31 PM »

I don't see how it's possible to divide the Internet territorially.

The physical world can be divided territorially.

But on the world wide web, once an image goes up , it's seen in every territory simultaneously.
How many exclusive licenses can I violate by uploading one image to the Internet?

I think the answer has to be ONE. It's precisely why Getty's and Masterfile's agreements give them worldwide exclusive licenses.

In the words of David R. Johnson and David G. Post, published in the Stanford Law Review: 48. 1367 (1996):
http://cyber.law.harvard.edu/is02/readings/johnson-post.html
Law And Borders: The Rise of Law in Cyberspace

Cyberspace has no territorially-based boundaries, because the cost and speed of message transmission on the Net is almost entirely independent of physical location: Messages can be transmitted from any physical location to any other location without degradation, decay, or substantial delay, and without any physical cues or barriers that might otherwise keep certain geographically remote places and people separate from one another

Ian

49

Getty Images Letter Forum / Re: Copyright Troll Randy G Taylor from Copyright Defense League on video

« on: September 28, 2012, 03:37:21 PM »

I'm still not sure how it would pan out if the exclusive rights were divided into geographical areas.

If the geographical divisions were creatable and enforceable, then you would still have territorial exclusive rights.

Regarding the display and licensing of images on the Internet, is any such territorial exclusivity theoretically possible?

50

Getty Images Letter Forum / Re: Copyright Troll Randy G Taylor from Copyright Defense League on video

« on: September 26, 2012, 01:02:47 PM »

Looks like C-Registry will have the potential to act as a pretty convincing unofficial copyright database that will greatly facilitate the extraction of copyright settlements from uneducated and fearful infringers ( i.e. they pay up! ).

51

Getty Images Letter Forum / Re: Copyright Troll Randy G Taylor from Copyright Defense League on video

« on: September 26, 2012, 10:21:01 AM »

It would seem to me that the non-exclusive rights given to "C-Registry" don't overlap the exclusive rights that a photographer would typically give to a stock photo agency such as Getty.
Randy Taylor himself explains this in the C-Registry" copyright forum.
http://c-registry-copyright-forum.blogspot.co.il/2009/04/what-rights-do-photographers-grant-c.html

It’s critically important to note that creators are merely granting ACCESS to their works with C-Registry, NOT USE of their works.

52

Getty Images Letter Forum / Re: an inside peek at picscout

« on: September 24, 2012, 02:26:21 PM »

Pretty innovative how the Israeli's came up with a scheme to make the goyim pay.  lol.

S.G. I don't understand your comments or your tasteless choice of image. Why did you choose an image of Anders Behring Breivik?? He killed 77 people in two sickening attacks in Norway last year! Have I missed something?

By the way, no need to take it personally! Israelis are also the victims of Picscout. The exact same lawyers here in Israel represent Marot Images ( Getty's local representative ) and Stockfood. It would seem that Picscout runs the show by connecting different stock companies around the world with the same local lawyers.

I'm not at all sure that Israelis came up with the whole extortion racket business. You give them too much credit. I'm not even sure that they had it in mind when they developed image identification software. Let's also be fair, if Picscout hadn't been the start-up that beat the rest, some other company would have developed the same software sooner or later. The software is not the cause of the problem! The spineless lawyers that abuse the software and the law are the problem.

Finally, don't forget that here in Israel ,we are the first to have launched a class action suit against Getty's local representative.
On the eve of Yom Kippur - the day of atonement ( which is tomorrow ) , I hope that goes some way to atoning for our sins!

Ian

53

Getty Images Letter Forum / Re: Masterfile $12K per Image Extortion Letter

« on: September 04, 2012, 03:26:30 PM »

Let me put it this way.

Let’s suppose that SIE S.R.L grants Masterfile an exclusive license ONLY in the USA (as seems to be the case in the above contract). Let’s then suppose that they grant 200 additional such licenses to 200 similar companies in additional territories/countries.

An American citizen then uploads one image from the above collection to the Internet, and it instantly appears on the screens of citizens in all 200 territories.

How many of the 200 worldwide companies has the right to sue ?

( Maybe Picscout could help them all retain local counsel at reduced rates! )

The answer is either 200, or none.

If it’s 200, then the display of images on Internet has to be divided territorially, and I don’t see any evidence of this.

If it’s zero ( because the Internet is not divided into exclusive territories ) , then Masterfile does not own the right to sue, even in the USA, regarding images in the above collection.

My opinion is that the answer is zero because the Internet is one indivisible territory, and only one company (such as Getty Images) can own a worldwide exclusive license to display an image.

Getty’s contract with contributors gives it such a license. See clause 1.1

http://www.aphotoeditor.com/wp-content/uploads/2011/04/2011-contributor-agreement-v.4.0-d-sample-english.pdf

You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to Getty Images

Incidentally, I just took a look at the four Masterfile contracts listed above. The above quoted sentences regarding territorial exclusivity only appeared in the SIE S.R.L – photo contract.

In the other 3 contracts, the wording was completely different, and gave Masterfile a worldwide exclusive license!

See for example clause 3.1 of the David Muir agreement

During the term of this agreement, Artist grants Masterfile an exclusive license of all rights (including copyright) in and to the Accepted Images, with the right to sublicense on such terms as Masterfile may determine, such license to be effective throughout the world

Ian

54

Getty Images Letter Forum / Re: Masterfile $12K per Image Extortion Letter

« on: September 02, 2012, 03:55:12 PM »

S.G. I agree that that the above passages are more than interesting! I believe they raise the question as to whether MasterFile has the right to sue for copyright infringement AT ALL!

4.1 During the term of this Agreement, Company grants Masterfile an exclusive license of all rights (including copyright) in and to the Accepted Images, with the right to license on such terms as Masterfile may determine, such license to be effective throughout the Territory.

4.1.1 Masterfile recognizes that Company and/or Artist will continue to market and license Accepted Images in the International Licensee Territory and any income derived from such licenses or sales will be the sole property of Artist and Company.

I am not a lawyer, so the following is only my non-legal opinion.

An exclusive license must be precisely that – EXCLUSIVE! There cannot be any overlap between various “exclusive” licenses. If there were, the license would no longer be exclusive.

For example, the rights to broadcast soccer games from England’s premier league are divided territorially. FOX has the exclusive broadcast rights in USA. The holders of the broadcast rights in the UK (SKY, I believe) cannot broadcast the games in the USA. The territorial division of rights can be created, monitored and enforced. If you violate copyright in the USA, FOX will sue you!

Regarding the display of images on the Internet, I cannot see how any territorial exclusivity could be created or enforced. Once an image appears on the Internet (from whatever country or server), it is simultaneously viewed all around the globe. The Internet is one territory.

For arguments sake, let’s say that SIE SRL signed similar agreements with Masterfile type companies in Russia, France and Australia. I then upload an image from the SIE SRL collection to my web site, and violate someone’s copyright. I live in Israel. Which of the above companies has the exclusive right to sue me? The Russian, French or Australian company?  My image “appears” in all the above countries. Let’s say that my site is also in Russian, French and English. Can they all sue me?

I can see how territorial exclusivity could apply to the display of images outside of the Internet. If you for example licensed the use of an image for use on trains on the Russian Metro , then clearly the images wont be seen in London.

But I believe that only one company worldwide could have exclusive rights regarding the display of images on the World Wide Web, in the territory of cyberspace. My opinion is that no theoretical contract could create territorial exclusivity on the Internet. How therefore could Masterfile own an exclusive territorial license in the USA?

Ian

55

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: August 07, 2012, 01:28:19 AM »

Posted by: SoylentGreen

Silvers vs Sony is a precedent as you say, however later precent Eden Toys, Inc. v. Florelee Undergarment Co. showed that the non-exclusive license holder could sue if certain conditions were met.

The Eden Toys case was 20 years before Silvers vs Sony. There was no discussion at all concerning non-exclusive licenses. The case discussed the need for Eden Toys to own an exclusive license in order to sue, and concluded that "one who owns no exclusive right in a copyright may not sue for infringement". Silvers vs Sony then discussed the case 20 years later, and supported the view that only the owner of an exclusive license has legal standing to sue. If you still think otherwise, please send me the specific quote you are referring to that shows the opposite.

Here is a summary of the case:

http://www.coolcopyright.com/cases/fulltext/edenfloreleetext.htm

if Eden had an exclusive license at the relevant time to
exploit Paddington's copyrights in the market in which Florelee was selling,
Eden would be entitled by its exclusive license to sue Florelee for infringement
of those copyrights.  See the discussion infra of Eden's exclusive license
claim.

Eden's Claim as Exclusive Licensee

   Eden also sues for infringement as exclusive North American licensee for
certain Paddington Bear products.  An exclusive licensee of a right under a
copyright is entitled to bring suits for infringement "of that particular right,
" 17 U.S.C. § 501(b) (Supp. IV 1980), without being required to join his
licensor. 3 M. Nimmer, supra, § 12.02, at 12-24 (1981). The question, then, is
whether Eden was the exclusive licensee of the right allegedly infringed by
Florelee,

Twenty years later, the Silvers vs Sony judgement quoted the above case.

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

In Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir.1982), superseded by rule and statute on other grounds, the court held that one who owns no exclusive right in a copyright may not sue for infringement.   The court explained:

Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee.   Clause 9 of the 1975 Eden/Paddington agreement ․ contemplates such an arrangement.   We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf.   While F.R. Civ. P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, the Copyright Law is quite specific in stating that only the “owner of an exclusive right under a copyright” may bring suit.

Id. at 32 n. 3 (citations omitted).

It is not entirely clear whether the copyright holder in Eden Toys had granted to Eden the right to sue on accrued causes of action, as is the case here, or only the right to sue prospectively.   Whether the assignment was prospective or retrospective, however, the court made plain the basic principle, which we also have derived from § 501(b) and its context and history, that only the owner of an exclusive right under the copyright is entitled to sue for infringement.

56

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: August 06, 2012, 01:26:29 AM »

Hi Oscar,

Regarding your quote above:

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 hard as I have tried, I simply cannot find any laws or precedents in the USA to support the view that the owner of a non exclusive license has the right to sue for copyright infringement. Could you please show me where this appears? I have found plenty to the contrary.

Take a look....

http://caselaw.findlaw.com/us-11th-circuit/1561309.html
 

(“[T]he holder of a nonexclusive license may not sue others for infringement.”); I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir.1996) (“[A] person holding a nonexclusive license has no standing to sue for copyright infringement.”).

http://mashburnpatentlaw.com/?page_id=7
 

A written license agreement, however, is not required for a non-exclusive copyright license, and a non-exclusive licensee cannot sue others for infringement nor can they register their interest in the copyright.

http://www.legalcorner.net/articletemplate1.asp?name=copyright_license_art_002
 

Since a non-exclusive license is not a transfer of copyright, the holder of a non-exclusive license cannot sue for infringement, only the owner of the copyright has that privilege.

and even IN THE UK
 
http://www.inbrief.co.uk/intellectual-property/who-can-claim-copyright-infringement.htm
 

Who can bring a claim for copyright infringement?
 
A claim for copyright infringement can be brought by the owner of original work which is protected by copyright or by a person who has been granted an exclusive licence to the work by the copyright owner.
 
A non-exclusive licensee cannot bring a claim for copyright infringement.

The verdict from Silvers vs Sony discussed why ONLY the copyright holder and owner of the exclusive license had the right to sue

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).

What do you think?
Thanks
Ian

57

Getty Images Letter Forum / Re: GETTY IMAGES CONTRIBUTOR AGREEMENT

« on: July 30, 2012, 04:46:23 PM »

Which is EXACTLY why I want the real McCoy...a recent one..and I WILL get one...man on a mission!

I have a few real ones from 2011. Robert, I will e-mail one to you if you like. You know where to find me!

58

Getty Images Letter Forum / Re: GETTY IMAGES CONTRIBUTOR AGREEMENT

« on: July 30, 2012, 11:35:05 AM »

Clause 1.1

1.1 License Grant to Getty Images: You grant Getty Images a worldwide, exclusive right to market and sublicense the right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to Getty Images.

I agree with S.G. This would seem to me to be about as close to the transfer of an "exclusive license" as we are going to get. The document isn't signed by either party, and it doesn't mention any specific images.

The fact that the document isn't signed seemed to be of importance to the judge in the Advernet case, but he didn't use this reason alone to rule that Getty had not proved ownership of the exclusive license for 27 of the images.

Wojtczak testified that the Getty Images Contributor Agreement did “not have signatures. It is a digitally accepted agreement. The contributor signed via our online contributor contract portal.” The following ensued:

THE COURT: And where, if anywhere, does a representative form Getty execute, sign the document, digitally or otherwise?

 

THE WITNESS: You know, I'm not entirely familiar with where in the process that happens. All I know is the contributor agrees to the terms at the time of submission, and from that moment the contract becomes viewable as that contributor having a revised agreement, essentially. Any contributor that has not entered into the newer Getty Images contributor agreement as of yet, when viewing their information, when I went in to look for their contract, I could tell who—who had executed and who had not, but I am not familiar with the process in terms of the actual execution.

 

THE COURT: So you don't know if Getty representative executed the contributor agreement that is part of Exhibit 4 that you were discussing with me.

In light of the foregoing analysis of the plaintiff's claim that the images at issue are licensed exclusively to it, the Court finds that material issues of fact exist with respect to the plaintiff's copyright ownership interest in twenty-seven of the images at issue, as discussed above.

The fact that no specific image title is mentioned seems important to me. For example. if a photographer has 10,000 images in his entire collection, and has transferred only 1,000 of these images to Getty, what would there be to stop Getty from claiming the exclusive license for all the photographer's images? After all, the above agreement doesn't differentiate between or list specific images. Getty could claim to own the exclusive license of an image for which the photographer had transferred the exclusive license to another stock company.

Wouldn't the transfer of an exclusive worldwide license for a specific image have to include the identification ( title ) of that spefific image? After all, Getty uses these contracts to prove ownership of an exclusive license to specific images. If anyone is interested, I have a dozen or so real examples of these contracts ( sent by Getty to Marot Image). The name of the photographer is printed.

It's worth comparing the above contract with the form recommended by the copyright office for registering a copyright in the visual arts

http://www.copyright.gov/forms/formgr_va.pdf

It contains details such as the title of work, the date of creation, etc. These details are not included in the Getty contract.

59

Getty Images Letter Forum / Re: Getty Images and Complaints filed with the Washington State Attorney General

« on: July 28, 2012, 03:40:23 AM »

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

The link isn't working........

60

Getty Images Letter Forum / Re: Possible reasons for class action suit against Getty in the USA

« on: July 28, 2012, 03:35:35 AM »

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!