Messages

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Getty Images Letter Forum / Re: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit

« on: September 26, 2014, 06:36:32 PM »

Getty Images has filed a motion to dismiss the SRIPLAW complaint in this case: http://www.scribd.com/doc/241112937/Getty-Images-Motion-to-Dismiss


The motion is based upon the Noerr-Pennington Doctrine. 

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Getty Images Letter Forum / Re: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit

« on: September 15, 2014, 09:07:28 PM »

Please promote us on Reddit!  http://www.reddit.com/r/business/comments/2gb8in/getty_images_notorious_copyright_troll_is_finally/

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Getty Images Letter Forum / Re: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit

« on: September 15, 2014, 09:05:42 PM »

New development.  Getty's attorneys have made an appearance.  This is the firm: http://woodbury-santiago.com/ 


Robert Santiago, the attorney who filed the notice of appearance, was involved in a long running copyright infringement case that is somewhat famous (and infamous) in Florida involving a yacht multiple listing service.  Here are some decisions from that saga: http://dockets.justia.com/docket/florida/flsdce/0:2002cv60772/9482/


I don't know Mr. Santiago.  I have never heard of his firm before.  We will see what transpires.

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 13, 2014, 07:27:49 PM »

17 USC 107, the fair use statute, says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As to factor 1, the purpose and character of the use is for criticism and in this regard I would consider what you have done to be transformative, and so this favors you.   

The question of fair use does not turn simply on whether the photographs themselves were unaltered. Rather, as the relevant jurisprudence makes clear, the salient inquiry is whether the use of the photos, in the specific context used, was transformative. See Perfect 10, Inc., 508 F.3d at 1164 ("a search engine puts images 'in a different context' so that they are 'transformed into a new creation.'") (emphasis added). In that regard, the Ninth Circuit has consistently held that "making an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]" Id. (image originally used for entertainment or aesthetic purposes was transformed where defendant used the same image to facilitate use of an internet browser to locate information on the web); Kelly v. Arriba Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003)  [14] ("exact replication" of protected images was fair use where used in a different context from the original); Mattel, 353 F.3d at 802 (photographs of Barbie dolls "in various absurd and often sexualized positions" parodied "Barbie's influence on gender roles and the position of women in society" and hence was transformative); see also Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 22 (1st Cir. 2000) (holding that use of unaltered pictures in conjunction with editorial commentary gave them "new meaning" sufficient to transform the works into a "newsworthy" use); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 115 n.3 (2d Cir. 1998) (application of the fair use doctrine is particularly apropos where the use of the work disparages the original).

See Sedgwick Claims Management Services, Inc. v. Delsman, No. C 09-1468 SBA, July 17, 2009  See also Katz v Chelvaldina
Factor 2 is not really relevant.  Factor 3 favors Getty.  Factor 4 favors you.
Score: You 2, Getty 1. 

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Getty Images Letter Forum / Re: Getty Images sues Microsoft for 'massive' infringement over image search tool

« on: September 13, 2014, 03:44:39 PM »

Can someone please post a link to the complaint?

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Getty Images Letter Forum / Re: Fair Use Question

« on: September 13, 2014, 03:42:14 PM »

I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.

I too encourage you to share the link.  However, if you are uncomfortable doing so, please feel free to send me a PM or email.

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Getty Images Letter Forum / Re: Schneider Rothman IP Law v. Getty Images & Zemanta Lawsuit

« on: September 13, 2014, 03:39:58 PM »

He might have been engaged in hyperbole.

Attorney Rothman says,

“If I had sent a letter like the one they sent to me, the bar would have my license.”

You asked for it, and you got it.  Here's how it goes:

The Florida Bar RULES OF PROFESSIONAL CONDUCT Provide:

RULE 4-4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 4-1.6.

The ABA has a very good paper on ethics in the settlement negotiation context here: http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/settlementnegotiations.authcheckdam.pdf

Section 4 discusses the rule that a lawyer negotiating a settlement (such as by sending a settlement demand letter) may not "knowingly make a false statement of material fact (or law) to a third person."  It goes on to say that "The Model Rules define “knowledge” as “actual knowledge of the fact in question,” but such knowledge “may be inferred from circumstances.”

I read these requirements as prohibiting me from sending a settlement demand letter to someone demanding money and falsely accusing them of committing copyright infringement when either I know they did not or the circumstances are such that I should know they did not. 

In my statement that if I did that the Bar would have my license, I was putting myself in Getty's shoes.  In Getty's shoes, Getty's use of the Picscout Bot puts them in the best position to know whether I am committing infringement or not.  In fact, Getty's knowledge is arguably better than that of the average blogger, facebook poster or company owner who has no idea how photos get on the internet or what copyright laws prohibit.

Now, an attorney representing Getty might simply accept his client's facts about the infringement without investigating them further.  That could provide an element of plausible deniability since that means the attorney lacks actual knowledge that the client's facts amount to a false accusation of infringement. 

My answer to that is two fold.  First, if the lawyer knows from past experience that the client's facts have not supported an infringement claim, the lawyer could be guilty of failing to investigate further because he knows, from the circumstances, that the client's facts sometimes do not support a claim.

Second, Federal Court jurisdiction is exclusive for Copyright Infringement.  When an attorney files suit in federal court he is subject to Rule 11 which requires the attorney, prior to filing a complaint, to make "an inquiry reasonable under the circumstances."  If after making such an inquiry, the attorney files a complaint that contains legal contentions that are not warranted by existing law or which contains factual contentions that lack evidentiary support then that lawyer subjects himself and his client to sanctions and his case will be dismissed. See: http://www.law.cornell.edu/rules/frcp/rule_11

In my view, if you are going to send a letter accusing a person of copyright infringement you must be prepared to make the same claims in the letter in court.  But that is probably just my view.  I have not seen a decision that says that.

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Getty Images Letter Forum / Re: Techdirt Reports Getty Images Sued for Sending Extortion Letter to IP Law Firm!

« on: August 23, 2014, 02:16:11 PM »

Funny thing is, most if not all of us active members here are content creators of some form or another...

Robert, you make a very important point. We are not against content.


For example, my firm and attorney Darren Quinn of San Diego recently filed a case against CoreLogic.  You can read the Complaint here.


In the case of CoreLogic, the company has been systematically removing metadata from photographs (e.g. in EXIF) uploaded to CoreLogic's real estate multiple listing service (MLS) platforms.  CoreLogic then offers MLS organizations a chance to make extra revenue by adding the photographs in their databases to proprietary CoreLogic subscription databases like RealQuest where the photographer is unable to identify infringement because the metadata has been removed, and where CoreLogic makes a profit from using photographs without compensating the copyright owner.  Not to mention that most real estate agents treat their local MLS systems as free image databases they may dip into with impunity. 


So, again, we are not against content. And as for what we are in favor of, I would say we are for fairness.

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Getty Images Letter Forum / Re: Techdirt Reports Getty Images Sued for Sending Extortion Letter to IP Law Firm!

« on: August 23, 2014, 01:25:24 PM »

Steve and Joel, you guys rock!

I know you guys need to keep your case focused and to the point.  But, if you determine that you need any particular kinds of examples of things that Getty or their close partners, McCormack IP Law, are or have been doing to targets, this is the place to ask.

Stinger, thank you for the kind words, and for your offer of assistance.


There will likely be a need for us to take you up on it.  That need may come quickly since we are assigned to Judge Middlebrooks who runs a "rocket docket" in the Southern District of Florida.  I promise to keep you updated.   

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Getty Images Letter Forum / Re: Techdirt Reports Getty Images Sued for Sending Extortion Letter to IP Law Firm!

« on: August 23, 2014, 01:19:36 PM »

We've seen letters of images that were hotlinked ( as in your case) letters with images in the public domain, letters with images where the photographer has severed ties with Getty, letters where the images were licensed in good faith (as in my case), and even a letter form a US war veteran that was collecting cigarettes to pass out to other veterans.. Getty and their ilk need to be stopped.

I routinely represent photographers, illustrators, artists, writers, and architects in copyright infringement matters.  If I routinely did to alleged infringers what Getty did to me, the bar would have my license.

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Getty Images Letter Forum / Re: Techdirt Reports Getty Images Sued for Sending Extortion Letter to IP Law Firm!

« on: August 23, 2014, 11:41:29 AM »

Hi everyone.  Joel Rothman here.  Partner in Schneider Rothman Intellectual Property Law Group PLLC.  http://www.sriplaw.com 

We are the plaintiff in the case filed this past week against Getty Images, Inc.  I have visited ELI previously, but did not realize there were forums here.  I do now after speaking yesterday with Oscar Michelin. There seems to be a wealth of valuable information here and I commend everyone who is contributing productively to increase awareness and understanding about copyright and the law.

When we filed suit on Wednesday, 8/20/2014, I posted this on our website http://www.sriplaw.com/sued-getty-images/.  Let me go into a bit more detail about our legal strategy (Getty's attorneys, please pay attention).

The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) broadly declares that “Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. See s. 501.204, Unlawful acts and practices here:http://goo.gl/fi4PPa

We have alleged in our Complaint here http://www.scribd.com/doc/237328425/Getty-Complaint that the practice of sending letters "utilizing a computerized image matching system that searches the internet and identifies Getty images, including thumbnail sized images, on an individual’s or  business’ website, and then automatically sending the individuals or businesses identified by Getty’s system a form letter alleging infringement, threatening lawsuits and demanding settlement payments," is an unfair or deceptive act or practice that violates FDUTPA, "because a significant number of the individuals and businesses who receive Getty’s letters (i) are not violating any of Getty’s exclusive rights under 17 U.S.C. § 106; (ii) are entitled to the statutory defense of fair use  pursuant to 17 U.S.C. § 107; and/or (iii) are entitled to DMCA safe harbor pursuant to 17 U.S.C. § 512, and therefore have not committed infringement and are not liable to Getty."

We intend to demonstrate this to the Court. 

If we are successful, then FDUPTA provides for the following remedies:
501.211 Other individual remedies.—
(1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part. See: Fla. Stat. Ch. 501.211 Other individual remedies, here: http://goo.gl/ntlMvl

See also, Wyndham Vacation Resorts, Inc. v. Timeshares Direct, Inc., 123 So. 3d 1149 (Fla. 5th DCA 2012)(Section 501.211(1), Florida Statutes, permits a claim for injunctive relief by “anyone aggrieved” by an unfair or deceptive act, which has occurred, is now occurring, or is likely to occur in the future. Accordingly, regardless of whether an aggrieved party can recover “actual damages” under section 501.211(2), it may obtain injunctive relief under section 501.211(1)). Case here: http://www.5dca.org/Opinions/Opin2012/090312/5D11-1577.op.pdf

We believe that Getty's past conduct demonstrates that the unfair or deceptive act it committed against our firm, has occurred, is occurring, and is likely to occur in the future and, therefore, Getty must be enjoined from further commission of said act in the future.

It is just that simple.

Comments? Questions?