Messages

76

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 02, 2017, 05:02:53 AM »

I don't think Annie Leibovitz spends her time doing reverse searches of her work so she can send 75 yr old grandmothers demand letters for using one of her images on their knitting sites.  Granny didn't know any better.  But, just the same Annie might send Granny a note, "Do you mind , Grand Ma?  That's my photo, please take it down?"  "Oh I'm sorry", Granny says, "I didn’t know."

No, Leibovitz probably doesn't do this because I'll lay good money that the majority of her clients engage her on a work-for-hire basis via her agent, and thus she doesn't own the rights to the images she shoots. See http://aphotoeditor.com/2013/02/12/pricing-negotiating-tv-network-work-made-for-hire for an example of how this works.

In my experience, clients at this level do not put resources into chasing infringements for various reasons - mostly because the resulting images have a one-time purpose that benefits them.

The most recent one I can think of is Leibovitz shooting the cast of "Star Wars: The Last Jedi" for Vanity Fair magazine. They teased some of the images online (see http://www.vanityfair.com/hollywood/photos/2017/05/star-wars-the-last-jedi-portraits-annie-leibovitz) which were picked up by hundreds of websites and shared... all of which referenced the fact that VF was publishing four variations of the magazine with different cover shots from Leibovitz's shoot.

The end result is that Vanity Fair gets massive exposure, and hardcore movie/SF fans around the world will likely buy all four cover variations as memorabilia. It's a massive publicity win for VF and, whatever Leibovitz's fee would have been (I'd lay money it was well into five or even six figures), it will have been worth it.

But instead Granny gets a demand letter from Attorney Screw You, Pay Me representing Joe Palucka photographer asking for $7,000 or he'll sue.  What no nice note asking to take the pic down?  No way.  Joe Palucka makes in a month what Annie  Leibovitz make in an hour.  So pay up, Granny, or else!

Joe Palucka, not having an agent or the level of clients Liebovitz does, knows that his income depends on being able to license their images and also that having a registered copyright protects their value. Perhaps Joe is so busy hustling for work that they simply turn over every infringement discovered to their attorney, not having the time or inclination to send a "Please stop, thanks" email for every use they discover. If you're paying for counsel to act on behalf, you're trusting them to perform relevant diligence and act professionally.

If you disagree with how an attorney communicates, you take it up with the related bar association or relevant regulatory body, who will investigate whether said attorney is acting outwith codes of conduct and/or the law. If you think copyright law is unjust or inequitable in your country, work to change it.

Here's a thought for you to consider: if you think that issuing settlement letters is such a predatory "scam" that only serves to make a "quick buck" for property owners and their attorneys - how would you feel if they omitted this step of the process and went straight to filing a lawsuit without any prior warning?

If you see someone taking your property, do you confront them personally with a "please stop", or do you call the police? Maybe you're allowed to own a personal firearm wherever you live, and thus have that to call upon as an enforcement of your words. Do you simply point it at the thief, fire a warning shot, or unload on them?

I suspect most people would say "Well, it depends on the situation and circumstances", arguing that there is no one-size-fits-all response that would be correct for every instance.

The same goes for resolving infringements.

77

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 01, 2017, 06:32:15 PM »

I must say you are an interesting ELI contributor. You are nearly the lone wolf here (although Robert (Buddhapi is a semi-pro photographer) but honestly, this is not a good place for your arguments. It is a bit hard-core for most of us.  I am sure you know ELI is about "defense" and we discuss legal tactics and strategies.

That much has been apparent from long before I created a user account here; on the point of ELI not being a good place for my arguments - I would hope you would welcome the perspective of a creator, lest you devolve into an echo chamber. You will note that, most recently, I wholeheartedly agreed with your assessment that NYPhotographic is/was operating what appears to be a honeypot scam, and I have also weighed in on other instances where I believe the law to favor the defendant in an infringement action.

And what KingKendall says is right in many ways. He (like most of us) are mostly in the "defense" side and that is where most of the discussions slant.  We are not on the "offense" / photographer side because there are TONS of photography forums where your views are favored and discussed. ELI has a lot of rebel types.  :-) KingKendall telling someone to not be so quick to pay up or buckle to intimidation is a perfectly legitimate response. I agree with some of his sentiments if not his wording.

You may agree with the heart of his opinions, but I disagreed with the specifics of his language and offered up a counterpoint, even though it may be viewed as an unpopular one by some people.

And there are people who do take advantage of people's legal ignorance. It is also true many people are not intentionally trying to hurt photographers either.

I broadly agree (see NYPhotographic) and I also know that the complexity of copyright law, coupled with gross misinformation on the web that has persisted since the days of bulletin boards and the likes of CompuServe/AOL, has resulted in a minefield for both creators and users of content. I am well aware that a few unscrupulous entities habitually act in manners that make copyright claims a ball-ache for everyone else, whether claimants or defendants but, above all else, I believe that copyright laws (even imperfect ones) benefit everyone.

Certainly, you are free to contribute as you have been but ELI will never become a photographer's forum, plain and simple. And we don't pretend to be.  We have differences of opinions and perspectives.

I don't expect ELI to become anything other that what it always has been - a place to discuss the nuances of copyright claims. I'll contribute to posts where I feel I have either something relevant to add by way of knowledge or experience, and also offer a reasonable counterpoint to anything I believe to be a flawed argument or opinion.

78

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 01, 2017, 12:07:14 PM »

The extortion scam thrives because unscrupulous characters taking advantage of antiquated copyright laws to make a quick buck.

Please, explain to me how UK copyright law (the jurisdiction in question), which was last revised in 1988, along with associated regulations which were last revised in 2003, are antiquated in any way?

And also, do tell why the creator of a work is unscrupulous if they discover someone has used it without paying, and then ask to be compensated retroactively? There is no other realm of property right (and yes, copyright is a property right) that a rational person would expect to make use of another's property - without asking permission in advance - and not be liable in some form when the use has been discovered.

Then they hide behind the law and claim it’s the law.

Maybe because it is the f'n law? If you feel the copyright laws wherever you live are unjust or inequitable, then lobby to change them... but you are not exempted from liabilities just because you think someone is being harsh in applying laws, as written, to protect interest in their property.

If I injure you personally, whether maliciously or accidentally, you may have redress through criminal or civil process. If I make use of your property without your consent or damage it, then you can again you can avail yourself of whichever legal options are open you based on my actions. A creator citing copyright law to recoup lost revenues is no different.

Nobody is looking to hurt creators of content.  They just want a nice image to put on their site.

There are a myriad of options available to people who want "nice images" for their sites. Perhaps the simplest is to create them themselves or, if they lack the time or skills to do this, to work directly with someone who can, to your mutual benefit.

They’re not thieves.  But, ignorance is a money maker for some people

I'd counter that ignorance - both of the unwitting and the wilful kind - does hurt creators, regardless of intent. As far as photographs go, it is perfectly reasonable for the copyright (property) owner to expect to be paid when they find out someone has used their work - especially if the creator is in the business of licensing their pictures.

79

Getty Images Letter Forum / Re: Pixsy demand email

« on: May 30, 2017, 12:42:03 PM »

I have asked Pixsy to provide proof that Mr. Dartford has instructed them to seek a license fee from me and also provide proof that the image is under copyright and that Mr. Dartford is the owner as I have been unable to find any information that clearly states this, how to obtain a license or how much the license would be.

First off, photographers sign up to the Pixsy service, which then indexes their own works as hosted on sites like Flickr, Tumblr, 500px, Photoshelter and even their own websites.

Secondly, a quick web search shows that Matthew Dartford is a photographer based in the UK and, since you are too, that sets jurisdiction as UK courts and legal system.

There is no registration process for copyrights in the UK, and every work automatically enjoys copyright protection at the point of creation.. and the duration of copyright is for the lifetime of the author + 70 years after the year of their death.

I've also contested their claim that I've 'significantly devalued the image' as it's been widely used on hundreds of other websites without attribution or a license

Pixsy isn't accusing you of devaluing the image alone - they said: "Unlicensed usage takes power away from the creator and significantly devalues their work". Rampant, widespread unlicensed uses can and do detract from the value of images.

I personally know the owner of one site that's used the image and they aren't trying to extort money from him.

That might just mean that this friend of yours, who used the same image, has not had their use of the image discovered yet - or that they simply haven't contacted him about it at this point in time. You should be aware that there is no statute of limitations (time limit) under UK law to bring about a copyright infringement claim.

I don't mind paying a reasonable fee if I've stupidly used an image that's under copyright, however, I feel the money they are demanding is too much as I earned virtually nothing from the use of the image and don't like the feeling that I'm being unfairly singled out.

You profited to the tune of not paying for something that you otherwise would have, regardless of any income you derived (or didn't) from the specific use of the image. Consider: a car rental firm doesn't care whether the van you hired sat in unused in your driveway all weekend long. The fee due is the fee due, regardless of the use you made of it.

I'm from the UK and as far as I can see the company and owner are from the US, so are Pixsy likely to pursue a legal case against me considering I'm from another country?

Pixsy is a tech firm, but they partner with lawyers in several countries, and the UK is one of them. Thus it is quite possible that Mr. Dartford could instruct them to initiate proceedings on his behalf, at which point additional heads of damage could be claimed under law

Pixsy are due to get back to me with a signed declaration from the so-called copyright owner so once they do, I'm not sure where to go from here. Any advice or help would be appreciated.

You've already negotiated a lower amount than that which they've asked for, and that might be as good as it gets for you.

80

Getty Images Letter Forum / Re: New Pixsy letter

« on: April 14, 2017, 10:08:23 AM »

Okay - just so that you have all facts to hand: consider that it's possible for the photographer to have filed a group registration of images, and such a registration could have the particular image included, but not specifically mentioned in the registration title etc.

An example would be a certificate "Capital FM Jingle Ball 2016: Day 1". That show had twelve acts appear on stage, and many celebrities in attendance backstage etc.; a group registration of published photographs for that event contains dozens of images, but the title of the registration certificate wouldn't give you any clues as to which specific images are included.

81

Getty Images Letter Forum / Re: New Pixsy letter

« on: April 14, 2017, 03:44:20 AM »

I did a Copyright search and this particular image is not copyrighted.

What are your grounds for stating that? Did a search using the photographer's name not turn up any registration records?

82

Getty Images Letter Forum / Re: New Pixsy letter

« on: April 13, 2017, 12:34:12 PM »

When does the SOL date start? My first notice was Nov 2016, however the picture was taken and first published in September 2015.

Almost all courts will hold that your statute of limitations commences when the rightsholder discovered and notified you of the infringement; so, that'll be whatever date is on the letter/email that you received in November of last year.

83

Getty Images Letter Forum / Re: New Pixsy letter

« on: April 13, 2017, 10:52:02 AM »

I need to get ideas on how to proceed here without spending over $500 (which I don't have to begin with) on a picture that no one ever saw and I made $0 on.

From a photographer's perspective: the lack of page views and/or revenue generated from your use of the photograph will likely not be a mitigating factor. I'll try to explain why.

If I license my photograph of 'Celebrity X' for use in an online news article for, say, $500, then I don't care whether that article gets 1 hit, 1000 hits, or if it gets the highest traffic of all their stories that week. I don't expect to be paid more if the story gets traction and, in a similar way, I certainly don't offer a refund on my fees if the story falls flat.

It's a little like renting a car for a weekend. The dealer doesn't care whether it's simply parked in your driveway during that time, or if you're taking it on a 48hr road trip... so long as it's returned to them in the expected condition at the agreed time and date. It's not a perfect analogy, but it's one most people can grasp.

I'll also say this: to you (and to most folk), $500 seems like a crazy high asking price for the use of a photograph. Consider that the photographer might well regularly license their shots to clients for that amount, so it's a normal asking price for them.

I do appreciate that not everyone has a "spare" $500 simply laying around to settle these matters but, beyond offering the insights I already have, I can't suggest a course of action to you. Others might say that trying to negotiate a lower amount is a good option, some will say you should just ignore the letter/email and wait until you receive a court summons, or your three year statute of limitations has passed (assuming you're in the US, that is).

84

Getty Images Letter Forum / Re: New Pixsy letter

« on: April 13, 2017, 07:15:19 AM »

Caveat: I'm a photographer, and Pixsy is one of the tools I use to help me find unlicensed uses of my work, but I don't currently use them to recover lost revenues on my behalf, nor have I done so in the past.

As you'll no doubt know, Pixsy's service will first index a photographer's own works either from their hosting service (Flickr, Tumblr, Instagram, Photoshelter etc.) or from a direct upload - that's how it knows what images to search for.

Once it has indexed a photographer's works, it then scans the web for matches and - this is the crucial bit - reports back the information to the photographer, who then decides what action they want taken. If you've received a letter from Pixsy on behalf of the photographer, it's because that's the action they want to take. Pixsy do not send out letters automatically or blindly.

As for your statement that the image file (and your site) have since been deleted on account of you not renewing hosting/domains - well, the way Pixsy indexes sites, it caches evidence of the uses, such as the URL of the page, and the URL of the static image file that would have been on your server. There'll no doubt be legacy WHOIS data that shows you owned the domain name at the time they indexed your use of the photograph referenced in their letter. There may also be a third party record of your website at the proximate date, on a service such as web.archive.org (known as the "WayBack Machine")

In this way, it's a little like having CCTV footage: you might not recall what photographs you used, or when you used them, but if evidence exists to show what was on your site at a specific date and time, that's all that is required to claim an infringement. Should additional third party evidence also exist, that only bolsters the claim further.

You could perhaps search the photographer's name in the US Copyright Office's database to see if they have any registrations on file. If they do, and any of the registrations suggest they are related to the subject matter of the image in question, that would point to the validity of their claim. You also could try to contact the photographer directly if you want to.

Having worked as a photographer for over twelve years, I can tell you that the majority of my peers simply want to be fairly compensated when someone makes use of our work. Before 2011, it was very hard to trace infringements unless you had very deep pockets to pay for means to do so, but as indexing technologies evolved, they became more commonplace and also free to use (TinEye and Google's reverse search being prime examples)

When you work as a photographer, your images are a result of the time, energy, and money that you have poured into your craft. To find your work being used without permission can not only be an indicator of lost revenues, but also quite deflating. Any of my peers will tell you they'd readily engage in pre-use negotiations but care little for the hassles of recovering losses from infringements. That's what attorneys are for - or services such as Pixsy.

What you decide to do is ultimately up to you, but with Pixsy, I'd personally like you to consider that the genesis of the letter/email you have received is from someone who takes their craft seriously - at least seriously enough to expect to be compensated whenever someone uses their work.

85

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photog Christopher Sadowski, Notorious Copyright Troll

« on: April 11, 2017, 04:14:46 AM »

If you disagree on what a copy troll is because you're a photographer yourself then we're gonna have to agree to disagree.  I've had other people contact me to remove an image from my blog and I apologized and removed it right away.  Playboy even sent me a notice telling me to remove their image and I immediately complied.  That wasn't the case with Chris Sadowski.  He immediately went to extortion letters no different than Linda Ellis with the stuff she does.   

Okay, so let's get this straight: hearing from Sadowski wasn't the first time that you'd been contacted by someone to say "stop using my photographs" - but it was (I'm guessing) the first time you heard directly from an attorney, without prior notice?

Like I said before, there's nothing in US copyright law that says a person has to send a polite "please stop?" notice before they engage counsel. Heck, there's nothing to stop them going straight to filing suit in Federal court if they wanted to, but lawyers tend to advise against that because some judges frown on it - since it shows no prior attempt to settle things outside of an overburdened civil courts system.

Now I obviously don't have all the facts in my possession, but your statement "I've been blogging since 2009.  When I started I didn't know what the heck I was doing. I'd say three times in eight years." implies that you've infringed on a shit-ton of content... simply from the fact that the majority of photographers and rightsholders don't know how to police their work, or don't care to.

The professional photo hosting service Photoshelter held a copyright clinic live stream a few years ago, and during the stream, they published poll results from their members. If I recall, only seven percent of respondents actually registered their work with the US copyright office. Most didn't know how to, and a few more didn't care to. Given that their target audience was professional photographers who pay for a hosting service, then I'd say 7% is a generous figure when you also factor for enthusiasts and the general public. I'd be very surprised if more than 1% of image ever get registered.

Taking those facts into consideration, to be contacted only three times in eight years is just dumb luck, because every time you posted a photograph to your blog, you had maybe a 1% chance of being caught.

Now, when you got your first polite cease and desist, maybe that should have triggered a thought along the lines of "hey, this could have gone a lot worse for me - perhaps I should change my approach to sourcing images, and clean up my site."

When the second one came in, you might have mistakenly thought "Oh, I can use whatever pictures I want to, so long as I remove them when I'm asked."

Then you used one of Sadowski's registered photos, who (well within his rights), retained counsel and sent a far more formal settlement offer.

Now, all of this is supposition on my part. I don't know in what order you were contacted, or by who. You clearly believe Sadowski's approach to be an overreaction based on previous requests. Let's add perspective by ways of an analogy.

You set out to walk through a crowd. You're not paying attention to everyone around you and, in the course of your travels, you bump into someone, who spills a some of a drink they're carrying onto themselves.

The first person, being polite and non-confrontational, says "Hey man, look where you're going!". You apologize, they accept, you move on - not correcting your behaviour.

The next time you bump into someone, they're also carrying a drink and call you out on your ignorance, but they're also accepting of your simple apology, and quickly get on with their own business.

The third person, however, is different. They're wearing a suit that, in their mind, represents an investment in themselves: one they go to pains to ensure is neat and presentable. You might think it to look unremarkable, but it's one they had tailored. You bump into them, they spill their coffee on it - and before you can utter a word, they're in your face, demanding that you pay for an expensive dry-clean... or perhaps even a replacement suit.

Compared to how the first two responded, you might well think this to be an overreaction (and likely other people could too) but from the perspective of the suit-wearer, they have a legitimate expectation that people look where they are going so as to not bump into them, and getting coffee spilled on their suit - one that has special personal value to them - is not something they will just shrug off with a "hey, no problem" and a smile. Perhaps you thought that, at worst, you'd owe them a $4 cup of coffee, and never imagined facing the prospect of maybe having to pay to replace a bespoke suit.

86

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photog Christopher Sadowski, Notorious Copyright Troll

« on: April 10, 2017, 06:17:37 PM »

But I also object to the outrageous, disproportionate amounts also. I also object to the lies, deceit, and manipulation that many people use also.  I also object the presumption and expectation of large payments that have no basis in reality.

What you personally consider to be outrageous, disproportionate etc. is merely a matter of perspective and may (or may not) be further shaped by facts you are not party to.

Here's a real-life scenario for you: I often license images to large media companies for four-figure sums. If an image in my library is timely registered, and a global media company who is not one of my clients simply lifts it from my client's website, and then publishes it on their own site, what is a disproportionate expectation?

What if I can also 100% prove that the source image they pilfered was accompanied by copyright management information?

What if it's not the first time that this company has infringed on my work?

Do I politely ask them to stop using my work, as @kingkendall might wish it?

Should there be some pre-attorney-retention procedural hoops that I have to jump through, similar to a DMCA takedown, that @clist has suggested?

Perhaps I should simply ask for them to pay my undiscounted license fee based on the type and duration of use they have made of my work... only to have their staff or counsel attempt to whittle the fee down in some sort of retroactive bargaining, regardless of their clear breach of my rights. (this has happened far too often for my liking)

What is the proportionate, reasonable response?

87

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photog Christopher Sadowski, Notorious Copyright Troll

« on: April 09, 2017, 03:34:55 PM »

Instead of acting like a gentlemen by sending note asking to remove his photo from a website, he immediately goes to a extortion letter from a law firm looking to cash in for an amount of money much higher than the license fee he got from where his work is published. 

Howabout acting like a gentleman and don't use photographs that you a) haven't taken yourself, or b) haven't obtained a license/permission for?

Also, there is nothing writ into 17 USC that mandates a creator to request you simply stop using their work before they retail counsel, or even file a petition with the courts. Nothing. Zilch. Zip. Nada. You're gonna bleat about courtesy when you likely haven't performed a measure of diligence before you used a photograph? Did you make any effort to find out who the rightsholder was before using their work?

Oh, and here's one more thing for you to consider:

“[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)

88

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photog Christopher Sadowski, Notorious Copyright Troll

« on: April 09, 2017, 08:01:25 AM »

Hold on a second; if Sadowski is a freelance photographer who licenses their work to the NY Post... then exactly how is he "trolling" when they discover unlicensed uses of their work and expect compensation - especially if they have gone the extra mile to register their work with the US Copyright Office?

Here's a simple rule: instead of saying "Don't use this guy's stuff no matter what kind of photo it is", howsabout "Don't use photographs you haven't gotten permission to use and/or have a provable license for"

89

Getty Images Letter Forum / Re: LCS Trunk Archive Follow Up Letter

« on: March 30, 2017, 05:03:33 AM »

Re Gap: They seem to have blown off my argument and be saying that they are allowed to make up their own "reasonable licensing fee"?? In my letter to them I found and used about 10 images from stock websites that were almost totally similar and about half of those were royalty free and the other half ranged from $20-$75 bucks. They seem to have totally ignored this and construed it into something else. They said, "the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.

On this point, they're actually correct. Here's an example that's easy for anyone to grasp.

Your local burger franchise may sell basic burgers for $0.99 or maybe even less. There may be a table service gourmet burger restaurant within a few miles whose least expensive burger on the menu is $12.00.

Both sell burgers, so both items are similar - yet the latter, with regular customers who willingly pay $12.00 or more, has easily established a fair market value for their product.

The same occurs with image licenses. By way of example, I have personally licensed images for companies to use via social media for four-figure sums. Off the top of my head, there was one instance in this past year where the license was €1,351 for a one-month use (the shortest duration I license for). There were similar images available from other outlets for fees lower than my own, but the specific image as desired was only available from my own archives.

Based on the above (and in conjunction with similar licenses), and by the standards applied by the courts, I have established a fair market rate for the use of my works on social media... thus if anyone were to infringe on my images by publishing them to Facebook, Twitter, Instagram etc. without my permission, I can prove my actual losses.

A defendant might want to argue that they could have gotten a similar image for a lower fee elsewhere, but that would be akin to expecting to pay the $0.99 fee for the gourmet burger restaurant's least expensive fayre.

So: if Trunk Archive had ever licensed any of their photographs for a fee near to that in their settlement letter, they could reasonably claim such a fair market value. It's not unreasonable for you to ask for them to produce a copy license (even a redacted one) to verify their fees, but they also don't have to do so - at least, not until they are required to produce such evidence during court proceedings.

90

Legal Controversies Forum / Re: Some basic copyright questions to discuss

« on: February 12, 2017, 11:18:38 AM »

Robert, that's an excellent and timely blog on some of the issues that can come into play. With that said, different jurisdictions can - and have - a different view of plagiarism of the type as discussed in the PetaPixel article you linked to... the one that sprang to my mind when reading it was this

http://www.azrights.com/media/news-and-media/blog/database/2013/11/photographers-photography-copyright-and-the-red-bus-case

Without wishing to go off on a tangent, it's entirely possible that if Mr. Eward McGowan were to bring a copyright infringement action in the German courts, they might well find in his favour.