Messages

61

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 04:23:45 PM »

Do your research on the "photographer" making the claim before you think of replying.  You might be surprised by what you find.

We were discussing photographers in general - not your spat with Tom Schwabel. As to the former, you said the following

"Many trolls... have a whole business model out of spreading images around the web and lie in wait to cash in on innocent people like yourself who just wanted to share an image.  It's way more common than you think and it's calculated and planned - they discuss it in photo sharing forums"

That's a bullshit claim. I've asked you to point to any photo sharing forum where this kind of honeytrap is discussed, and I'll not hold my breath for such evidence.

In the case of Tom Schwabel, the image he tried to extort me with was a copy of a common image in most every photographer's portfolio, one that was freely available on hundreds of sites.

I'm curious as to what kind of photograph/image you're talking about because it sounds like you're alluding to similar images being commonly displayed on the portfolios of other photographers. A link/example would help here.

And his specific image?  It is on 22 BILLION websites.

That's a very bold claim. Again, I'd love to know which picture of Schwabel's it is which you're claiming to be in use on 22,000,000,000 websites.

How did it get there?  Easy!  He seeded it there.

Even the site owners and admins here will tell you that seeding, even if suspected, is nearly impossible to prove. I can't conceive of any photographer that would want to run the risk of using such a strategy because once found out, they would (deservedly) face severe legal consequences.

Intent to protect copyright has to be accounted for.

The law as currently written, and some court cases, more or less state that the responsibility is to not infringe, rather than for a copyright owner to guard against being infringed upon. Consider that reverse image search technologies were not widely used until just a few years ago. Also, for a reverse search algorithm to return a match, it has to have data on both the image you're searching for and already have indexed the same photograph elsewhere on the web.

Because reverse-searching is thus subject to these variables, a photographer might only now discover an unlicensed use from ten years ago. In the US courts, that would still be an actionable claim, since you have three years from the date of discovering an infringement to bring a court action.

If someone is out spreading their copyrighted work around with intent to cause people to use it, seems the courts should not find that infringement has occurred.

On this, we mostly agree. It would still be an infringement in the strictest sense but, depending on the specifics, a judge might well toss the claim, or worse. Any photographer that deliberately sets out to create a honeytrap should face stiff legal consequences for doing so if proven.

62

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 12:21:45 PM »

On account of treaties such as WIPO and the preceding Berne Convention, it doesn't matter where you live with respect to where the copyright holder lives: all they need to do is retain counsel in *your* country to bring initiate a legal claim and/or file an action with the courts. On that note, a lawyer in any state can contact you to make a claim on that person's behalf but, if they actually want to take you to court, they have to do so in a relevant jurisdiction i.e. one where you have either personal residence or business interests. Out-of-state lawyers often partner with in-state lawyers, or they can obtain pro hac vice admissions if the particular state allows it.

63

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 06:24:20 AM »

I have not, however, responded to the original email, nor the followup. I contacted an attorney who I'm working with on an unrelated matter, and that attorney did less than an hour's worth of work online to see that Burns was a copyright troll and recommended I ignore the letter.

That's really, really bad advice from your attorney. I know a guy who hired Leslie Burns a few years back when she was one of the lawyers at the PhotoAttorney practice, and they ended up asking Burns to file suit because the infringer had ignored all their attempts to communicate. The picture had been removed from the web, so it was clear that the first letter had been read.

The other thing that I clearly remember is that, in this specific case, the infringer was actually an attorney themselves; I know from a web chat with the photographer that the attorney had consulted a lawyer who told them to ignore the claim.

I know that the suit wound up in favour of the photographer, but I don't know the specifics of it, being that it was about four or five years ago. I'll drop them a line and see if there's anything that they can tell me about it, though I do know that sometimes there are confidentiality clauses with these things.

64

Getty Images Letter Forum / Re: email from Leslie Burns

« on: July 27, 2018, 06:07:43 AM »

It's way more common than you think and it's calculated and planned - they discuss it in photo sharing forums - how they hope people take their images so they buy fancy new lenses or in Schwabel's case, go on some fancy high-priced trip.

I'm calling bullshit on your blanket assertion: point me to any photo sharing website where folk explicitly state that they share their images widely with that intent. I'll wait.

no image is worth more than a few dollars online and this ass should be ashamed of himself for asking that amount for your personal twitter.

I personally have licensed single images for use on Twitter for north of €1500, and I know several of my peers have garnered similar licenses from clients who want to use their work on Twitter, Facebook or other similar platforms.

The correct thing for him to do was send you a note to take the image down, no bad feelings.

Copyright is a property right. Consider: if you owned several houses for the purpose of renting them out as vacation homes, and someone made use of your property without your knowledge or permission, would you take the same laissez-faire attitude?

65

Getty Images Letter Forum / Re: What should I do? Image Rights Inter. contacted me

« on: July 18, 2018, 06:50:06 PM »

He's got a real day job and it isn't photography.  Just another parasite looking to cash in:

Jesus, someone really pissed in your cornflakes, didn't they?

Here's a thing: the article you linked to clearly cites that Wild is an expert entomologist who also takes photographs of the insects he studies, and he's licensed his works to well-known clients. That he does so alongside his "day job" doesn't make him less of a photographer, in the same way that there are many people around the world for whom photography constitutes a much-needed secondary income. I and some of my peers count ourselves as fortunate to devote all our energies to our craft; from our viewpoint, infringers are the parasites - consider the textbook definition@

An organism which lives in or on another organism (its host) and benefits by deriving nutrients at the other's expense.

or

A person who habitually relies on or exploits others and gives nothing in return.

So: if publications like Nature and National Geographic are quite happy to pay licenses for Mr. Wild's work, why should a business like Cypress Creek Pest Control get a free ride?

66

UK Getty Images Letter Forum / Re: An update from 2013

« on: June 26, 2018, 02:02:08 PM »

Certainly, if Getty or anyone else in the UK can expend money for expensive lawyers and file all the lawsuits they want. But against smaller parties, I think the collection rate would be low. Many would not show up. And even if there was a judgment against a defendant, I predict many defendants would simply go underground and move their money to make sure it is inaccessible.

Civil procedure is quite simple in the UK for the vast majority of claims and, if someone sticks their head in the sand after receiving a court judgement, a claimant can even apply to the High Court to have enforcement officers recover any monies owed to them; these officers have broad powers to seize cash or other assets/goods that can be auctioned off to meet all or part of the total sum (which, if it reaches that stage, will have accrued considerable additional fees for all the enforcement steps).

If filing lawsuits and collecting money were so easy, there would be no need for extortion letters and all the cajoling, intimidating, and manipulation to get people to pay.

As simplistic as the small claims (£10,000 or less) process is, there are rules to follow (https://www.justice.gov.uk/courts/procedure-rules/civil), and part of those rules means that claimants must show that they have attempted to settle a matter outside the courts before filing an action... otherwise, they risk censure and having their claim (temporarily) thrown out. That's why letters/emails are always the first steps in any claims process.

67

Getty Images Letter Forum / Re: Email from PicRights.com

« on: June 26, 2018, 12:20:46 PM »

Maybe that argument is not legally correct.  But there are no damages to be awarded here that any sane person would ever award.

Sorry, nope; the damage is at least the loss of income that the photographer/rightsholder can prove.

On quite a few occasions, I have licensed images for four-figure sums - sometimes for advertising uses, sometimes for social media uses, sometimes for editorial uses. If someone rips an image from one of my paying clients and then goes on to use it in a similar manner, I can readily prove the extent of my losses. Many other photographers can also prove the extent of their losses in a straightforward manner.

Now, a lot of people may consider the fees I charge from my images to be quite high ("It's just a photograph!" but the clients I work with are happy with both the quality and timeliness in which I can provide work to them, and pay me fees commensurate with both. If someone else wants to use my work, they're free to negotiate a fee in advance of the use but, if my rates exceed their budgets or we can't agree on licensing terms, either party can walk away from the situation without being disadvantaged.

However, if Entity X just rips my work from a licensed source, you can bet that I'll pursue them for at least my lost revenues and, where the local laws allow, I'll tack on multipliers for things like wilfulness, interest fees etc.

It's not entirely unlike Entity X choosing to dine out at a gourmet burger restaurant but, when they've filled their belly and the bill comes due, they try to argue that they'd only have paid €0.99 for the cheeseburger from the McDonald's a few streets away, as that's all they think "a burger" is worth.

With this in mind, the following link speaks to the arguments that are commonly used both for and against the value of imagery, even if it is specific to UK case law.

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

As a side note, the defendant in the above case eventually settled the claim for £20,000 ($26,500/€22,600 at the time of writing)

Especially to some talentless hack photographer who thinks their work is worth a million dollars like most of them who use Pixsy and the likes do, and who refused to agree to any sort of reasonable resolution to the problem.

I think my licensing fees are reasonable, and I'm always open to negotiate fees in advance of my work being published. If you infringe on my works, you can at least expect to pay the same rates that my clients do for advertising, commercial or editorial uses... otherwise, the matter gets referred to lawyers to work out, and you can almost guarantee that the end result will cost the infringer far more than a license would have - which is simply a matter of protecting my business interests and licensing revenues.

68

Getty Images Letter Forum / Re: Email from PicRights.com

« on: June 25, 2018, 02:01:22 PM »

The thing is, I had the photo on a sales page  where I display two different products that I sell on my site. I can prove that I have never sold one of these two products on my site. Through Google Analytics I can actually prove that exactly 0 (zero) people have visited the page with the photo on it since I created it. So there are no damages, no one saw it other than their sophisticated software crawling bot.

That argument isn't going to fly.

If you took out an advert in the local paper which offered the same two products for sale, and no-one contacted you or bought either of those products in the period your advert ran for, would you ask your paper to refund you the cost of the advert, or not pay their invoice when it came due?

By using a photograph on a page which you designed to sell products, this constitutes a commercial/advertising use of the image, and will often command higher than standard licensing fees - regardless of whether you actually sold anything or not.

69

UK Getty Images Letter Forum / Re: Extortion Letter from PicRights UK

« on: June 02, 2018, 09:36:20 AM »

You're free to ignore it if you so choose but, if they do file a court claim (which they don't need a solicitor to do - you can self-represent for the majority of UK civil cases) then it won't go well for you/your client.

Ignoring the claim and any court action will leave the door open for them to claim flagrancy i.e. you knew you had infringed, yet declined to communicate. This can add up to 100% of the claim amount as a court award. They can also legitimately claim interest from the date of the infringement, usually 4% PA simple interest and, if they prevail, you/your client will be made to pay any associated costs.

Assuming the lost licensing revenue is what they're seeking, then the £850 settlement can quickly become a £2,000+ court claim.

Worse still, if you/your client ignore any court claim which then results in a default judgment (and a CCJ on your/their credit file), the rightsholder could refer the claim to High Court Enforcement Officers i.e. bailiffs, and then a £2,000 claim can quickly become a £4,000 once the bailiff's fees are added. If that goes unpaid, they can legally enter any related business (and sometime personal) premises and seize property to be sold at auction which will cover the fees... and yes, that action also hikes the associated costs again. This could be IT equipment, vehicles etc.

Lastly, and this is often overlooked: there is no statute of limitations for bringing court actions for infringement in the UK. If you ignore a claim, a court filing could be effected in as little as a few weeks, or it could be years down the line. This was established in the House of Lords some years ago, where they heard an appeal on infringement action that went back more than thirty years.

So: sure, you could ignore whatever claim has been made if you're happy to roll the dice of living with an uncertain and potentially far more costly outcome down the line.

70

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photographer Nicholas (Nick) Youngson of NYPhotographic.com

« on: October 16, 2017, 05:53:27 AM »

I actually paid the $10, I feel that if someone is complaining that you violated their copyright, but agree to sell you a license for $10, then they can't claim you owe them $5,000 in damages.

To show the nonsense of Higbee, I did answer the call from one of their "staff". I told them that I bought a license. They checked with Youngson and said that I bought the license for them after their initial claim. They still wanted to negotiate a settlement.

Sorry, Ted: there's case precedent that purchasing a license after you have committed an infringement does not get you off the hook for infringing: Palmer/Kane, LLC v. Rosen Books Works, LLC, Case No. 15-cv-7406 (SD NY Aug. 31, 2016) (viewable at https://scholar.google.com/scholar_case?case=9723625002606900591)

71

Getty Images Letter Forum / Re: PicRights.com

« on: October 06, 2017, 09:29:56 AM »

I've done the same to small to big companies who borrowed some of my designs to sell on t-shirts without permission. For a little business guy without high paid lawyers, that was all I could do according to my legal attorney at that time.

Going off topic here a bit, but that was spectacularly bad legal advice. I can only guess that your attorney wasn't an IP lawyer by trade and had little to no knowledge of how copyrights function in the real world. Your design wasn't "borrowed", it was stolen - and the fact that it was used in a for-profit endeavor would have weighed heavily in your favor.

But the company did pull their clothing from the stores as soon as they got the cease and desist letter.

... because, when notified of an infringement, if they don't C&D, they'd have been inviting very punitive actions if you had pressed them. A good IP attorney would have been able to weigh your case and, in a lot of instances, negotiate a good licensing arrangement out of it, or at least a modest to adequate settlement.

Never, ever think that because you're the "little guy" that copyright laws can't work in your favor when you've been ripped off by a "larger" entity.

72

Getty Images Letter Forum / Re: BWP Media/Pacific Coast News Are Attacking Film Blogs

« on: July 12, 2017, 06:59:11 AM »

I do have a question regarding set photos/paparazzi? Aren't they the property of the movie studio not the photographer who  illegally took a photo?

Nope, the creator of the image holds the copyrights. You will find that most freelance paparazzo are very tenacious when it comes to their image rights, as it costs a lot of money to operate in that field.

The sole time that questions of legality arise with paparazzo images is if either a trespass occurs in order to capture an image, or if the subject had a reasonable expectation of privacy when photographed and, even then, the copyright in the resulting images still vests with the creator.

By way of example: a photographer spots a celebrity dining inside a restaurant. The celebrity is visible through the restaurant window to anyone passing by on the street. A paparazzo uses a long lens to shoot, unseen, from inside a parked car. There's no legal breach, as the celebrity was in plain view from an area accessible to the general public.

Conversely, if the same photographer shot from within a parked car, aiming their camera through a window of a celebrities' house, then there's the possibility of a legal breach insofar that the person inside the house had a reasonable expectation of privacy, and they may be able to lodge a civil suit against the photographer.

However, even in the latter example, the images remain the property of the photographer - though they'd be very limited in their ability to do anything with them at all, since almost all potential publishers wouldn't want to run the risk of getting sued by running the images.

73

Getty Images Letter Forum / Another Alternative Source of Images to Getty, etc.: Photoshelter

« on: June 16, 2017, 08:01:05 AM »

Having viewed Matthew's recent post about alternative RM or RF image sources, might I also suggest that, whether you're looking for pre-existing images to license or a photographer to create bespoke works for you, end users should give Photoshelter a try?

The key benefit to using Photoshelter is that you will be communicating directly with the creator of the works and, when licensing terms are agreed, at least 89% of the revenue goes straight to the photographer - unlike image agencies who can hoard as much as 90% of the gross for themselves.

I can't stress enough that if both creators and image users want to see the likes of Getty consigned to history as the parasitic entity that they are, then finding a way to work together directly, cutting out as much of the middleman as possible, is the way to go. Portals like Photoshelter are an invaluable resource towards that goal.

So: if you're looking for pre-existing images, the link you'll want to use is

https://www.photoshelter.com/explore/index

If you'd like to find and commission a photographer for a bespoke project, the following link is best

https://www.photoshelter.com/explore/photographers

Thanks in advance to all readers for taking this into consideration and, if you find this information valuable, please share it.

74

Getty Images Letter Forum / Re: Can any potential lawsuit be enforced on a non US citizen?

« on: June 14, 2017, 05:01:20 PM »

Just so that everyone is clear: Higbee, a US law firm, quoting US laws, sent a letter to a UK address? Is that correct??

75

Getty Images Letter Forum / Re: Can any potential lawsuit be enforced on a non US citizen?

« on: June 14, 2017, 08:57:14 AM »

It's a question of a plaintiff being able to establish facts that the US courts are the appropriate jurisdiction.

You registered the domain name to a physical address in the UK. If the hosting provider was also in the UK then geographically speaking (and absent any further information) the infringement "occurred" in the UK, and any plaintiff would need to bring a claim using the UK court system and adhere to Civil Procedure Rules (see https://www.justice.gov.uk/courts/procedure-rules/civil/rules)

If the website actually displayed a physical or mailing address in the US, then a plaintiff may have grounds to argue that US laws and jurisdiction apply.

As to your own case: was your letter addressed to you in the UK? If the letter is citing US laws to you, then you can go right ahead and ignore it, as a non-US resident cannot be compelled to adhere to US laws. (See https://www.supremecourt.uk/cases/docs/uksc-2010-0015-judgment.pdf)