Messages

61

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

« on: July 26, 2012, 01:22:44 PM »

Go find 100s on demand letters that were paid for images that Getty did not hold any rights to. THEN you have a class action in the U.S.

I haven't seen Getty's contracts with DK or NG, but these two companies continue to sell the same rights managed images as Getty, thus suggesting Getty does not therefore own an exclusive license for these specific images.

Only Oscar would know if Getty had sent 100 letters with images from these collections. Of the close to 100 letters I received here in Israel, I now have 7 images ( 5 from DK ) from the above two collections.

By the way, when I say "right to sue", I mean "standing to sue". Maybe that has caused some mis-understandings here. Sorry.....I am not American!

62

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

« on: July 26, 2012, 08:36:47 AM »

I think we pretty much agree.

only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement.

I wouldn't argue with a judge!

I say that you are correct in that a simple non-exclusive agreement doesn't provide the licensee the right to sue.

I agree with this!

It's simply my contention that many of Getty's contracts do in fact have one or more of the Section 106 Exclusive rights transferred, which in turn makes the right to sue a legal possibility.

Well, the content of the Getty contributor agreement would indeed suggest the transfer of an exclusive license, and therefore right to sue. The judge in the Advernet verdict thought otherwise. After all, these "contracts" are not signed by either party, and don't contain the details of any specific images.

But as I say, I don't believe that Getty has any exclusive licenses for the two specific collections mentioned above, because of the reasons mentioned.

To answer Khan's question of why there aren't tons of lawsuits being filed by non-exclusive licensees...
that's because they could only get the "retail price" in court; often 2 to 200 dollars.  But, no legal fees.
Those lawsuits aren't worth it.  Hence very few lawsuits.

Sorry, I don't agree with this. Can you imagine what mayhem there would be if owners of non-exclusive licenses could sue? Owners of non exclusive licenses dont have the right to sue. That didn't stop Marot Images however!

Ian

63

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

« on: July 25, 2012, 04:57:01 PM »

The artist has granted Getty a non-exclusive license to sell the image and included the right for Getty to sue.

You seem to have lost your way. The owner of a non exclusive license would not have the right to sue.

You also continue to ignore the fact that I am only talking about two collections.

I am not raising any issues with any of their other collections. You can read the Advernet verdict for that.

Here is a short summary of the various licenses, as explained by Harvard University’s Berkman Center for Internet & Society

http://www.citmedialaw.org/legal-guide/understanding-difference-between-transfer-and-license

Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:

    exercise the right or rights licensed;

    authorize others to exercise the right or rights licensed via a transfer or license; and

    sue for copyright infringement of the licensed right(s).

The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:

    authorize others to exercise the right or rights licensed via transfer or license without permission of the copyright owner; and

    sue for copyright infringement of the licensed right(s).

64

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

« on: July 25, 2012, 04:42:38 PM »

Khan, I still think that each non-exclusive licensee may attempt to collect damages.

I don't think so! If this were correct, you could face hundreds of lawsuits over the same image!

65

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

« on: July 25, 2012, 04:32:35 PM »

S.G - Please remember that I am only talking about two specific collections.

Regarding these two collections, if I am not mistaken, Getty has no contracts with the photographers. The photographers may have never heard of Getty! Their contracts were with DK and NG. The artist would not therefore be "double dipping".

The letter recipient would have paid the wrong person. That wouldn't be the photographer's problem!

I contend that non-exclusive licensee's may also sue, but aren't entitled to statutory damages (attorney's fees, etc.) if they win; only actual damages.

This couldn't be the case. It would mean that you could face multiple lawsuits over copying one image!

66

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

« on: July 25, 2012, 03:44:59 PM »

S.G. I disagree, and will explain why.

Let's assume that a photographer has only given a non exclusive license to National Geographic. The photographer himself may therefore continue to sell the image ( which is not the case with an exclusive license ) , and ONLY the photographer can sue for the violation of his copyright. In turn, NG has allowed Getty to sell the same image. Both Getty and NG therefore have a non exclusive license. Neither has the right under American law to sue for copyright violation.

What if Getty's lawyers then turn to people and state - " We have the right to sue you under American copyright law, and we will indeed do so if you do not pay us the following amount", and people rush to pay and put the threat behind them.

The problem is that in the above circumstances, Getty would not have the right to sue. Moreover, the photographer could turn around and sue himself! The claim, and corresponding threat would be a complete mis representation of the facts.

Consumer laws for one would not sanction such actions.

If you don't own the right to sue, how could it be legal to extort payment from someone by claiming that you do?

Getty, under the above circumstances would be fraudulently inducing people to pay them.

Again, I am only talking about two specific collections, for which ( if my analysis is correct - see above ) Getty does not have an exclusive license, and therefore has no right to sue.

Ian

67

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

« on: July 25, 2012, 01:49:52 PM »

Couch Potato is absolutely right.

If Getty is collecting payments regarding images to which it knows full well that it does not own the exclusive license ( most specifically the National Geographic and Dorling Kindersley collections), then do you, in the USA, have a case against them?

I am not talking about the other collections at all. I am not talking about the Advernet verdict. I am referring specifically to two collections ( that made up close to 5% of the images contained in Marot's letters in Israel ) to which it seems that Getty could not own an exclusive license. National Geographic and Dorling Kindersley ( both very large and serious companies ) continue to sell rights managed licenses for the same images to which Marot claims to own the right to sue.

My question to Oscar. Does Getty send demand letters for these two collections in the USA? If not, everything I have written in irrelevant.

By the way, no one picked up on the different pricing between Getty, NG and DK books for the exact same images.

Ian

68

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

« on: July 25, 2012, 01:04:10 AM »

The fourth point is that "Getty" does have license agreements between itself and its artists.  My understanding is that Marot is quite a different situation.

If Getty indeed has an "worldwide exclusive" license , then it would be logically and legally impossible for other companies to share the same license.

See Getty's contributor agreement - http://contributors.gettyimages.com/img/articles/downloads/2011%20contributor%20agreement%20v.4.0%20%28d%29%20sample-english.pdf

All Content submitted to Getty Images is on a Content exclusive basis. This means that Content submitted to Getty Images and any other content that is substantially the same (a “Similar”) may not be licensed to any third party

Furthermore, Marot has never even claimed that they have contracts of any kind with the photographers ( as the law here would demand in order for Marot to own an exclusive license).

If Getty owns the worldwide exclusive license, then Marot does not!

Marot claims that Getty somehow ( the law here doesn't allow it ) transferred exclusive rights to Marot, because Marot is a "distributor". I have not seen any document to this effect, and I also assume that Getty wouldn't endanger its own worldwide license and standing to sue in order to save Marot. Territorial exclusivity regarding the display of images on the Internet is also not possible.

There's another possible problem with getting Getty into a class action.
By the time Getty takes one to court, you're damaged financially

Here in Israel, my lawyer is not paid up front. If we win, the court awards him costs. In theory, costs can be awarded against me if we lose, but if a judge sees a good faith attempt to correct a public wrong, costs may not be awarded, and even if they are, they are likely to be symbolic.

Statistically, the chances of our case being accepted as a class action suit are not high. But it was my destiny to file this suit. Almost 100 people contacted me regarding the letters they had received from Marot. The psychological, economic and family pressures they were under were immense. Even charitable organizations for handicapped children have paid Marot Image! Someone had to try and stop this!

Ian

69

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

« on: July 24, 2012, 05:06:35 PM »

I would think that those that paid settlements and signed confidentiality agreements would have difficulty finding other legal recourse at this point.
Those that maintained their innocence, didn't settle and were damaged economically by Getty's actions would be in the best position to file suit.

Well, group A suffered the clearest and most easily measured loss. Marot ( and probably Getty too ) know exactly who paid and how much.
Group B - paid Marot nothing. Therefore, their financial damage is much harder to measure.

As I say, I am the symbolic plaintiff, and have requested to represent groups A and B.

Can't the courts cut through the secrecy clauses?  Or does this mean, if the judge decides to switch the plaintiffs, then he is going to cut through the secrecy clauses?

Yes, we certainly hope so. If the judge rules that all agreements can be nullified because they were based on a mis-representation of the facts ( that Marot had the right to sue, when in fact they didn't ), then the judge can allow the addition of a second plaintiff, or even allow me to continue representing groups A and B. After all, my role is purely symbolic.

Regarding the NG and DK collections, if Getty knew that they had no exclusive license, yet they nonetheless threatened people with court action, then all agreements would be based on a fraudulent claim. This would be similar to the case with Marot.

Retroactive involvement of the photographers wouldn't help. Their agreements are with DK and NG, not with Getty. They couldn't give a retroactive exclusive license to anyone.

70

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

« on: July 24, 2012, 03:12:15 PM »

I didn't make any comparisons.
I just shared some statistical information - that approx 5% of the images for which Marot Images sent letters were from two specific collections - National Geographic and DK books.

My questions:

1. Is my analysis correct that Getty does not own the exclusive licenses for images in these two collections? ( see above for analysis )

2. If Getty USA sends a similar percentage of letters for these two collections in the USA, that would make a rather large group of letter recipients/ people who have paid up for images to which Getty owned no right to sue at all. If this were the case, would you not have some grounds for a class action suit for these two collections only?

In Israel, we indeed claim that Marot has no rights to sue at all, because it is Getty ( if at all )  who owns the exclusive license, and not Marot!

Regarding our lawsuit, I am the plaintiff, yet I did not pay.
This does raise a problem.
But those who paid signed secrecy clauses.

For now therefore, I am the plaintiff.
The class action law here allows the judge to add or switch plaintiffs if the suit meets all other criterion.
We explained this in our lawsuit, and only time will tell.

71

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

« on: July 21, 2012, 12:15:14 PM »

As those of you who have read my story know, I have received copies of around 100 settlement demand letters sent here in Israel by Marot Images ( Getty’s representative here ) .

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/class-action-suit-filed-against-getty-images-master-delegate-in-israel/

Approximately, 5% of the images involved the "Dorling Kindersley" or "National Geographic" collections.

Getty’s website gives full copyright credit to these two collections (see links below) , but the two collections continue to sell the same rights managed licenses themselves.

This would seem to suggest that Getty only owns a NON EXCLUSIVE license. Marot Images is therefore sending settlement demand letters for images to which even Getty does not own the exclusive license (and neither therefore right to sue).

I wonder if the situation is similar in the USA.

How many people in the USA have paid Getty a settlement for images from these two collections? Oscar may have a statistical sample of letters on which to base an estimate? If it is a statistically significant number, is this a possible class action suit? Are there other collections similar in nature to these two?

Here in Israel, a letter recipient signed an agreement to pay Marot Image around $1000 for using this image - Title:  Jewish Honey Cake with some slices removed

http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&assetType=image&p=75375175

Credit is given to "Dorling Kindersley"  (DK books).

But the same image is still sold by DK books (at a much lower cost – which is also interesting!) at this link:

http://www.dkimages.com/discover/DKIMAGES/Discover/Home/Food-and-Drink/Desserts-and-Confections/Cakes/Jewish-Honey-Cake/Jewish-Honey-Cake-1.html

If these two companies both sell the same image rights, then neither has an exclusive license.

I actually wrote to DK books about the image, and received this reply

DK Images owns the image and copyright but the image is distributed as well as through us, via Getty Images.
 
Either DK Images or Getty can sell this image. Exclusive and non-exclusive licenses are available for this image.
 
DK Images does not currently have an exclusive license with any third party on this image.
 
Hope this is clear
 
thanks
 
Paul Turner.

 

Dorling Kindersley is part of the Penguin Group.

The Penguin group belongs to Pearson plc  and  is considered the largest education company and the largest book publisher in the world.

By the way, Marot Image sued the woman above for violating their copyright. I attended the first court hearing. The judge got it all right! The defense lawyer didn’t have to say a word! The judge knew that there was no way for Marot Images to own the exclusive license! The case will continue on October 10.


Regarding National Geographic, I was personally sued by Marot Image in a Tel Aviv court for using this image:

http://www.gettyimages.com/detail/photo/church-of-the-holy-sepulchre-old-city-high-res-stock-photography/57504480

But the exact same image is still sold by National Geographic - Picture Id:976105

http://www.nationalgeographicstock.com/comp/IR10/114/976105.jpg

In my case, I spoke to the photographer, who insisted that he had never given an exclusive license to anyone!

The case against me was dropped.

If you use this link - http://www.nationalgeographicstock.com, you can price the image on NG - Picture Id:976105

My main question: Is Getty also sending demand letters in the USA for the two collections mentioned above? If so, wouldn’t this be outright fraud?

72

Getty Images Letter Forum / Re: Yet another recent blog post

« on: July 19, 2012, 02:18:25 PM »

Oh Aviva! Oh Aviva!

I had the dubious pleasure of meeting Aviva Weinman a few weeks ago. She was supposed to give a lecture at a conference on photos and copyright. However, I sued her company for 47 million shekels that very same morning, and she left without speaking. Can't imagine why!

The article is about MAROT IMAGES, Getty’s representative in Israel. MAROT IMAGES is not “ Getty Israel” , however much they would like people to believe otherwise. They are registered here (in Israel) as a completely separate Israeli company.

The blogger indeed writes

“First, Aviva points out that ‘Image Bank Israel’ are merely Getty’s delegates in the region.”

I think for the first time, I actually agree with Aviva Weinman!

“Copyright infringement is an offense”, states Aviva. “Just like stealing a car or robbing a supermarket”.

Well actually not! Clause 52 of the Israeli copyright act states as follows:

Infringement of copyright or moral right is a civil wrong and the
provisions of the Ordinance on Torts (New Version), shall apply
mutatis mutandis subject to the provisions of this Act.

Furthermore, how ironic that we have just sued Marot Image for falsely representing themselves as owners of the right to sue, when in fact they have no such rights!

“First, at least the Israeli law defines a ‘default’ penalty per picture that was used against terms. This is the same in most countries, and usually serves as the starting point. If we go to court, the photographer can sue for the entire value of the photo, determined by much money he could make of licensing it over a period of ten years.”

Fascinating! There is no default penalty, or statutory fine in Israeli law. Since the new copyright law of 2007 -  the minimum penalty has been ZERO! 

I should add  - I am not a lawyer.

73

Getty Images Letter Forum / Re: Class action suit filed against “Getty Images Master Delegate” in Israel.

« on: July 10, 2012, 07:22:03 AM »

http://boingboing.net/2012/07/09/porno-copyright-trolls-named-i.html

Porno-copyright trolls named in RICO class action suit

This event was bound to happen. Two things never come together: greed and the art of quitting when it is not too late. All it takes to damage an extortionist’s "business" severely is to mess with a wrong person, and with every day, the likelihood of such an event increases. Fortunately, all the "wrong persons" to date have responded civilly, within the law. Nonetheless, the risk to mess with a wrong type of a "wrong person" is still there.

74

Getty Images Letter Forum / Re: Class action suit filed against “Getty Images Master Delegate” in Israel.

« on: July 07, 2012, 06:27:56 AM »

Porn copyright troll targets strike back in new class action

http://newsandinsight.thomsonreuters.com/Legal/News/ViewNews.aspx?id=51585&terms=%40ReutersTopicCodes+CONTAINS+%27ANV%27

it's cheaper and easier to pay the settlement than to hire a lawyer and defend the litigation.

"By extorting settlements of $1,000-$5,000 the pornography purveyors have developed a model whereby they can unlawfully gain more money than they can by selling access to their pornographic videos."

Sounds familiar?

75

Getty Images Letter Forum / Re: Getty For sale

« on: July 06, 2012, 02:30:43 PM »

Wise move!

They are selling before the shit hits the fan! Their "business model" cannot continue unhindered for much longer. The new owners may have to clean up a lot of mess.
"Strategic abuse of intellectual property rights" has even been noticed by law professors in the USA . See , for example, the following quote from page 31 of the recent article ( THE RELATIONAL CONTINGENCY OF RIGHTS ) , that mentions Getty by name!

The authors are Gideon Parchomovsky ( Jr. Professor of Law, University of Pennsylvania Law School & Professor of Law, Bar Ilan University School of Law, Israel) and Alex Stein ( Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University )

https://bspace.berkeley.edu/access/content/group/e675b947-6067-425e-adbf-10e8922547b9/03.%20Jan%2030_Alex%20Stein%20-%20The%20Relational%20Contingency%20of%20Rights/RCR_1_18_12.pdf

Importantly, the cost advantage enjoyed by owners of large copyright portfolios

has a profound effect on their primary behavior. First, it induces owners to create

and acquire large portfolios of copyrighted works. For instance, Getty Images

Inc. recently acquired Flickr’s entire collection of images. Following this

acquisition, Getty established an international network of enforcement agencies

and started asserting its rights against users of digital photos all over the world.87

This strategic move is consistent with our analysis, but it is not necessary

disconcerting. Second and much more troubling, certain corporations and

individual actors reportedly adopted a “business model” under which they wait

for certain works to become “viral,” or in ordinary parlance, enjoy wide

distribution over the internet. Works typically attain this status due to the fact that

initially they are distributed freely, often under permission from the original

creators. At this point, profit driven actors, typically corporations, acquire the

rights to the works and launch an aggressive enforcement attack against

unsuspecting internet users.88 The companies’ cost advantage in litigation secures

the attack’s success in virtually every case.89