Messages

91

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

« on: February 10, 2017, 12:04:50 PM »

2) Regarding private international law: As far as I read in Wikipedia, in IP cases it is broadly accepted that the law of the country for which legal protection for the intellectual property is claimed applies.

There are several international treaties regarding copyrights; the net effect of these treaties is that the work of X, who lives in Country A, will equally have their copyrights respected under the laws of Country B.

Accordingly, if X discovers that they have been infringed in Country B, they can seek representation to bring a court action in that country.

What would that mean if I live in country A and infringed the copyright of someone who lived in B by uploading a protected picture to the internet?

Depending on the specifics, it would mean that you would be sued through the court system of the country in which you live.

The layman's perspective seems to be that the law of the country in which the server of the website applies.

Nope, although there are jurisdictional issues that could apply.

If the person who uploaded the photograph lives in a Country B, the complaint would generally be against the person who infringed. Most countries now have laws on their books that mean the third parties such as web hosting services are not liable for acts caused by people who infringe, unless

A) They knew about the infringement

and/or

B) They refused to delete infringing material when asked to do so

That's perhaps a simplification of the laws in play, but you should get the gist.

92

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

« on: February 10, 2017, 11:49:25 AM »

With that in mind let's assume I get sued for selling posters of 20 Getty pictures of a celebrity on the red carpet of one event. I do not have a license.

That would, straight up, be twenty counts of infringement right there (assuming these are twenty different photographs and not twenty copies of one photograph); that you would be selling them for profit would leave the door open for a willful infringement claim.

Could't I argue that those pictures are not copyright protected and therefore there can't be an infringement?

You can argue that white is black, up is down, left is right... or that you think that the images aren't protected by copyright. Your opinions will not necessarily be backed up by evidence, facts or law

Surely, it took some skill to take these photos, but creativity? If I see photographers taking pictures at these big events it's all about taking as many pictures as possible and then sorting out those who are sellable. I do understand that some argue that what is worth copying is worth protecting, but I'm missing the creativity requirement in that approach.

I've worked high-profile red carpet events with A-list attendees and you need both skill and creativity. Skill comes in knowing how to set your gear to capture the moment. Creativity comes in the selection of variables to craft a particular aesthetic including, but not limited to, your choice of camera, lens, aperture setting, focal length, ISO, shutter speed... then there's whether you're using on-camera flash, remotely triggered flash, ambient light or some combination of the three. There's the choice on how to frame your subject, the merits of distance-to-subject as regards depth of field and background separation, and a dozen other on-the-fly variables that you have to adjust on account of reacting to an event as opposed to being in a controlled studio environment.

And something else came to my mind: Let's assume those 20 pictures look all more or less the same and were all taken by one photographer.

... we're back at twenty counts of infringement, as this suggests you're selling twenty different posters (or thinking about it)

On the other hand: Let's assume those 20 pictures look all more or less the same and were taken by 20 photographers. Could that open the field for some arguments against protection?

Nope

Could I, for example, say that they all look the same so only one picture can be protected?

Nope

Or could I, for example, say that 19 photographers violated the copyright of the guy who took the first photograph?

Nope, x19.

I have been elbow-to-elbow with other photographers at red carpet events. The chances of anyone using exactly the same creative choices as I am, at the exact same moment, are so minuscule so as to be practically non-existent. I've looked at the resultant work of some photographers and, in some instances where we have captured almost exactly the same moment, there are noticeable differences in the frames when you look at them.... and that, right there, is what the courts term 'originality' as pertaining to copyright.

Would it make a difference if the 19 photographers knew how that first picture looked like or didn't know how it looked like?

Trust me. If I'm photographer #1 in this scenario, I really am not thinking or caring about what the other nineteen photographers captured (or didn't capture). My priority is getting images to my client as fast as possible, ensuring they are correctly captioned and have all relevant metadata embedded.
We'll all joke with each other whilst waiting around but, come go time, it's a professional work environment.

93

Getty Images Letter Forum / Re: First Sale rights question

« on: December 17, 2016, 08:14:07 AM »

I just did some research on first sale rights but I'm still unclear as to the ramifications of it and photogs/Copyright trolls trying to get over on people for pics they've already sold.

The First Sale doctrine would not apply to creative works because - even if a photographer would outright "sell" their work to a third party, all that happens is that they transfer all their rights to the work to the buyer... who would then have the full remit of copyright protection under law per the transferred work.

However, the majority of photographers who supply their work to outlets such as newspapers do so by granting them a license that permits the publication to make use of photograph(s) for in a specified manner and duration in return for an agreed fee. This is certainly how I work with my clients.

Also, as Robert has already pointed out, "Fair Use" is not a blanket argument that you can use to absolve yourself of a claim of infringement. If you wish to lodge a defense of Fair Use during trial proceedings, then it would be up to the judge/jury to decide if the use was fair, and the factors to decide it are weighed on a case-by-case basis for each individual image in dispute.

If you were to look at the case known as Cariou vs. Prince (use Google) you'll note that, on appeal, a court found twenty-five of the thirty images in that action were deemed to have met the standards for a Fair Use defence; however, the court remanded the outstanding five images that were not decided on back to a lower court for further consideration; however, before this happened, it was announced that the claim on the remaining images had been settled on undisclosed terms.

I suspect that Prince made an offer to Cariou for those remaining images that was agreeable to both sides, insofar that it would have avoided the need for all parties to endure further time and expense in another round of court proceedings.

94

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

« on: December 15, 2016, 08:24:33 AM »

I'll respond to each point in turn, with the caveat that I am a photographer and have taken legal action in the US courts to defend my own images.

1. Should we respond ourselves and see what happens, or just bite the bullet and get a lawyer to write a letter? (Not sure if the Letter Writing program on this site applies to non-Getty cases?)
e.g. we could respond stating: (a) no intent to infringe (b) we downloaded from a CC0 site (c) we have removed the image immediately (d) (still debating whether to include something like this - thoughts?) offer to settle for license fee of $9.95 + 200% penalty or approx $30 which seems fair.
If they continue to send letters, we would respond asking for all kinds of information as suggested in some of the other forum threads.

As much as I am a working photographer who earns my full income from image licensing and assignments, it behooves me to say that Mr. Youngson's methods of enforcing his rights make it seem that he is operating a honeytrap, insofar that he appears to be reliant on users lack of knowledge of the CC-BY-SA 3.0 license terms to claim infringement. It certainly seems to be a very scummy play that borders on a scam. That's my opinion, and it would certainly colour my approach as far as responding to a claim goes.

2. It looks like even if we can't prove we downloaded from a CC0 site (we are still trying to find records), the infringement is for not having attribution. We have not modified the image. Does this help us in any way?

No: a copyright = the right permit another entity to make/use a copy of your work. An unmodified copy is still a copy and, without permission to make that copy and use it, there's a breach of rights.

With that said, the grey area lies in Youngson's ability to bring a claim solely on lack of attribution. I personally have never heard of such a claim being brought.  Certainly, Youngson's images are being offered without charge via Creative Common's licensing, and I do not know of any United States case law precedents where claims have been brought for what is tantamount to a breach of licensing terms, even though 17 USC 106(a) does have a clause citing lack of attribution as being an infringement of rights.

3. The copyright they stated is for a set of image(s). I have written to the copyright office to get info on which images are included. Is there anything else to do to figure out if he explicitly has copyright on this image?

Not currently, and this is a bugbear for artists as much as those facing infringement claims. I'd welcome the Copyright Office having a searchable database of actual images contained within a deposit. It would certainly speed things up as regards verifying claims for all parties. I'm sure you're already aware of the current process as described at https://www.copyright.gov/circs/circ06.pdf

4. Nick Youngson and his company seem to be registered in the UK, not the US. Does this affect anything?
Thanks!

Nope. Treaties such as WIPO and the preceding Berne Convention allow citizens of signatory nations/states to protect their copyrights in other signatory territories. As both the UK and USA are treaty nations, Youngson is free to file a suit in the US if he wants to.

95

UK Getty Images Letter Forum / Re: UK Copyright infringement Letter using Getty but not Getty

« on: December 02, 2016, 03:47:50 AM »

Thank you very much for this, how can they prove they sent it though?

Well there's a paradox for you: though first class post is commonly accepted as a method of legal communication, there's no way to actually prove a letter was sent or received in this manner; it's presumed to have been delivered on account of the way in which Royal Mail (as a statutory corporation) is mandated to operate.

If a claimant wanted to absolutely prove that a document was sent, then using a signed-for service would offer an additional layer of confirmation - it's certainly the way that I do business for important matters, but it's not a legal requirement.

96

UK Getty Images Letter Forum / Re: UK Copyright infringement Letter using Getty but not Getty

« on: December 01, 2016, 04:50:26 AM »

Also is it reasonable to suggest that if a letter does not come addressed to an individual or is not sent registered then it is safe to ignore/bin it?

Nope; first-class post is quite a valid method of communication, and it's even deemed appropriate for the service of letters pertaining to court proceedings - just see https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06 for clarification.

97

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

« on: November 23, 2016, 02:00:21 PM »

Someone who can prove this stands to do quite well in the courtroom, methinks.

The trick to doing that lies in the trap: most of the websites that offer the work of Youngson do so via a Creative Commons CC BY-SA 3.0 license, which mandates the following

You are free to:

Share — copy and redistribute the material in any medium or format

Adapt — remix, transform, and build upon the material

for any purpose, even commercially.

The licensor cannot revoke these freedoms as long as you follow the license terms.

Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.

ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.

I've italicized the text regarding attribution because it seems that Youngson is relying on non-attributed uses to claim breach of license and, by extension, infringement of copyright.

This is where it gets fuzzy: I do not know if there are any case precedents whereby any entity has sued for a breach of 17 USC 106(a) alone.... because the photographs as offered on jphotostyle.com, thebluediamondgallery.com, and picserver.org, all state variations of the following text

"The images on this web site have been created by photographer Nicholas (Nick) Youngson of NYPhotographic.com and are offered for free use, even commercial use, under a Creative Commons Attribution-ShareAlike license"

I think most people read as far as the 'free to use' part and pay zero attention to the minutiae of  the CC license requirements.

Unless someone can point to a case precedent where a violation of 106(a) was the sole basis for an infringement claim (and certainly 501(a) - as written - seems to allow claims to be made on that basis), then it's going to take someone actually fighting this at court to establish the scale of damages for such an act.

That person will also need to subpoena the actual owner-of-record information for the websites jphotostyle.com, thebluediamondgallery.com, and picserver.org, because my gut tells me that Mr. Youngson is the owner of all these sites and (in a very roundabout manner that appears to be on the razor's edge of legality) is relying on people's negligence of the CC licenses on these sites to snare them into an infringement claim.

98

UK Getty Images Letter Forum / Re: Image copywright infringement - stockfood.co.uk

« on: November 16, 2016, 01:23:42 PM »

Initial disclosure: I work as a photographer and licensing my images is how I earn my living, so my perspective will differ in some ways from other contributors here.

With that said, because you are dealing with UK law, there a few facts and precedents which are relevant regardless of opinion; firstly, you should have a read over this primer on how copyright works with respect to photographs in the UK

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf

Secondly, you need to know there are no time limits as to when court actions could be taken regarding copyright infringements in the UK; this was established in case law back in 2009

http://www.bailii.org/uk/cases/UKHL/2009/41.html

Thirdly, whether your wife profited from using the photograph is generally not taken into consideration in the courts, nor would consideration usually be lent to your claim that her website is not a money-making enterprise; case law exists that establishes a correct measure of damages during proceedings is ordinarily the lost revenues of the claimant.

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

I should state that a claimant does have leave to request an accounting of profits if there was evidence that unlicensed use of a copyright work was for commercial gain e.g. as part of an advertisment, or a product that is sold either publicly or privately.

Damages assessments can also allow for uplifts for willfulness and other factors

http://www.epuk.org/news/aerial-photographer-s-damages-claim-achieves-record-height

So, a claimant offering settlement for the sum of £850 if settled promptly might, at first blush, appear to be unreasonable, but there are factors to be weighed as to whether this is really the case.

The size (pixels) of the image as used by your wife, as well as the nature of use (commercial, editorial or advertising) and duration will all factor into what fee stockfood.co.uk would have otherwise offered the photograph in question to your wife. That sets the starting point.

If they can argue / prove that your wife in any way has knowledge of copyright law, or reasonably should have known about it (via her education or employment), then the door is open for willfulness uplifts.

You should use stockfood.co.uk's own license calculators to find out what it would have cost your wife to legitimately license the photograph in question from them - it looks like they offer licenses starting from £19 for editorial uses, and up several hundred pounds for other types.

You should also check that the photograph in question isn't offered for legitimate license by any other outlet; if it is offered by another outlet, then the basis for their claim becomes less clear... but do be aware that many companies syndicate their photographs to other agencies and will, in return, receive a cut of any licensing revenues from such partnerships - so finding it for sale on a different website does not automatically mean that stockphoto.co.uk have no grounds to send their letter to you.

You are always within your rights to ignore any settlement offer that is put in front of you, and you are also free to make a counter-offer if you feel that doing so would be in your own best interests.

My opinion would be that, if you can prove that your wife could have licensed the photograph from stockfood.co.uk for quite a bit less than their £850 offer, it may be worth your while offering whatever sum that is so as to settle the matter.

99

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

« on: November 07, 2016, 01:52:39 PM »

Anyway I didn't do anything and haven't heard from them in over 3 years now.

You should be aware that there are no statute of limitations for claims of Copyright Infringement in the UK courts; this has been confirmed by the case ruling Fisher v Brooker & Ors [2009] UKHL 41 (30 July 2009)

So: although the likelihood of Getty (or any other claimants) bringing a court case for infringement might diminish over time, there is certainly no bar to them doing so.

100

Getty Images Letter Forum / Re: Letter received from LCS

« on: October 31, 2016, 10:13:08 AM »

I'm an adult teacher and write tips about color and style etc. and assumed it was Fair Use as not for commercial gain.

The exceptions to copyright infringement per 17 USC 107 under US law do not exist in the UK; the nearest neighbour in terms of legislation is Fair Dealing exemptions, which are not as wide in scope as the related US laws. See https://www.gov.uk/guidance/exceptions-to-copyright#fair-dealing

My question to this forum is : do I send a letter apologizing, saying it's taken down etc., claiming Fair Use or just leave it and hope it goes away.

Whether a use qualifies as Fair Dealing under UK law is a matter that is decided by a judge during trial proceedings; if you are aware of the scope of Fair Dealing and can put forth a fact-based argument that would show your use of the image(s) might be considered Fair Dealing, then the claimant may or may not accept that argument... but it's a very widespread misconception on the internet that folk believe one can simply say "Fair Use!" and not face liability for their actions.

101

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

« on: October 31, 2016, 08:23:05 AM »

I'll agree that, at first blush, this appears to be some blatant scumfuckery; the website jphotostyle.com only has images by Nick Youngson. What sets my alarm bells ringing is that the WHOIS for jphotostyle.com is cloaked by a privacy service and was purchased via GoDaddy in Montenegro.

As working photographer, I'm absolutely f'n appalled by what appears to indeed be a blatant attempt at entrapment; I'm going to focus on just one particular image which implies this. Take a look at the picture at the following URL

http://stock-photos.nyphotographic.com/food-drink/instant-coffee02/

A javascript query of the server file above cites that the image file was last modified on March 11 of 2015.

The very first published use of this photograph that I can find is at http://3stylelife.com/hello-world, and a query of the server returns that the relevant image was last modified on 12 December of 2014, though the article that uses it cites a date of publication of September 9 of 2013.

Youngson's earliest copyright registered certificate is a group registration titled still-images-13-08-24 under certificate VAu-1-149-100, with an effective date of registration being August 26, 2013; this appears to be the only of Youngson's certificates that predates the published use of the coffee bean picture as on 3lifestyle.com

Now I wanted to see if there were any published uses of this specific photograph that predated either the published use on 3stylelife.com and/or the registration certificate... and I got one hit: a Russian language website called finska.ru, on a page with URL http://finska.ru/category_20.html; Google had indexed the page back on 12 October of 2010 and reported the image on that site.

Now, this isn't a smoking gun as the indexing pointed to the following file

http://finska.ru/data/images/stati/luchshiy-rastvorimyy-kofe/1.png

The reported date/time this image was last modified was on 9 September of 2015.

Regardless, one of the other things that has my alarm bells ringing is that all images on the website 3lifestyle.com are only from NYPhotographic; I can't wrap my head around as to why this would be, but one might suppose that Mr. Youngson created the website 3lifestyle.com so that his own business - nyphotographic.com - would show backlinks and start to rise up search engine rankings.

Now my alarm bells ring extra-loud for two more reasons: there's a robots.txt file on 3stylelife.com that doesn't allow archival indexing, and the WHOIS data for the site is obfuscated via DomainsByProxy.

Lastly, Mr. Youngson appears to have a very narrow oeuvre of images that also appear to be of very low quality (from a sharpness, lighting & compositional sense). It just strikes me as odd that someone would go to the trouble of registering a body of work with the Copyright Office and then offering it up for both Creative Commons uses and also paid licensing.

It's odder still when you look at the following archived snapshot of jphotostyle.com

http://web.archive.org/web/20140104041339/http://jphotostyle.com

I believe in strong copyrights, and I absolutely believe in the right of creators to seek fair compensation for unlicensed uses of their work - and that sometimes litigation is the only route to that end... but I equally believe that the laws, as written, should not be abused, and anyone who appears to be doing so absolutely should be called out for it.

102

UK Getty Images Letter Forum / Re: Science Photo Library

« on: May 22, 2015, 11:31:05 AM »

Well said, Mulligan.  But I do understand DavidVGoliath's situation.  We usually take the side of the innocent or unknowing infringer, but what about the side of the innocent photographer.

Pretty much every photographer I know simply wants to do good work, get published and do their level best to earn an honest income from doing so. I will not dispute that there may be a minority who look to game the laws to their advantage.

If someone were to take one of DavidVGoliath's images that is registered and posts it on a Creative Commons website, and then you or I use it thinking it was legitimately posted, DavidVGoliath has been damaged as well.

Luckily this hasn't happened to me (yet) but I know someone who is going through this very process right now. One of their shots wound up on a Wikipedia page, uploaded by someone in the Philippines and it was tagged with the usual CC license etc. Wikipedia are point-blank refusing to take the image down despite being sent a perfectly valid DMCA notice, and the manner in which they've refused to act means they're going to lose their safe harbor status and be liable for a substantial sum.

And the laws, as they are written(and truly broken), allow him to go after both parties.

The laws are mostly fine as they are, though they do need to better reflect the realities of the present-day, especially with respect to the internet. Egregious abuses of current laws are perpetrated by both creators and infringers alike - toss in the lobbying by pro and anti-copyright fields, and it's a mess alright.

We need to get after Congress to fix these laws.  This is something photogs should be behind as well.

And most photographers are behind it -but it's not just the laws themselves that need tweaking, it's the larger legal system. If your work is unregistered, the recovery process is prohibitively expensive and thus favours rampant infringement.

If it *is* registered, then the cost of representation means that defendants face the threat of damages in multiple thousands of dollars, plus fees - which favours those with the ability to litigate. Without a middle ground, an "option C", then the polarizing effect of the current options will continue.

103

UK Getty Images Letter Forum / Re: Science Photo Library

« on: May 18, 2015, 07:02:52 AM »

Hold all your f'n horses a minute.

Within a few moments of reading this message, I was able to trace the original image, as shot by Peter Tuffy for the University of Edinburgh

https://licensing.eri.ed.ac.uk/i/copyright/peter-higgs-image.html

Whoever "Hans G" is (per the flickr / wikimedia info page) - he's not the copyright holder and had no fucking business uploading it to either flickr or wikimedia under a Creative Commons license.

I hope this illustrates the absolute bullshit that Creative Commons is; their system is fundamentally broken because people who lack morals or ethics will share material which they know to be protected by copyright, thus creating a ball-ache for everyone esle

Oh, and timault... you better be prepared to argue and prove that you performed a diligent search prior to using the photograph; like I said, it took me less than a few minutes to trace the original copyright file

104

Getty Images Letter Forum / Re: Masterfile v. Law Firm of Jerry Joseph Settled

« on: March 20, 2015, 04:58:34 AM »

Tinfoil hat much, Jerry?

The most likely reason these cases settled at those particular junctures would be a combination of

a) Defendants, although attorneys, not having specialist knowledge of 17 USC
b) Lack of specialist knowledge resulting in a flawed defence strategy or ignorance of their true liability
c) The prospect of "professional suicide" if found guilty at trial

Yes, the general expectation is that attorneys should know better - and that applies with orders of magnitude to any attorney whose practice is even tangentially related to IP law.  In the eyes of a common jury, there's not much difference between patents, trademarks and copyrights; heck, people often get them mixed around in general conversation about the topics (e.g. thinking you have to actively defend your copyrights or you'll lose the protections, which is a hallmark of trademark laws)

That's really what this boils down to: when all possibilities are considered, it is usually the least complex one that will be correct . Your theory of a nudge-nudge, wink-wink arrangement between the plaintiffs and defendants stretches credulity to near breaking point. It's not that hard to believe that an attorney was simply guilty of an infringement and ultimately decided to settle rather than take a chance on a jury trial.

105

UK Getty Images Letter Forum / Re: Come to Join the Club

« on: September 23, 2014, 12:22:14 PM »

You're looking at a case that's playing out in the US, using very specific legislation in the state of Florida as the target vector for the law firm's complaint against Getty. To the best of my knowledge, even if their claim is successful, it would only affect Getty's current business in Florida and, even then, it may just mean they alter their collection efforts so as to comply with whatever the court decides.