Getty images infringed my copyright

[gerth]

I am a UK based amateur photographer.

I had a contract with EyeEm which I terminated in Feb 2018 due to their poor business practices (not paying royalties for photographs for many months). EyeEm partnered with Getty Images, who then sold my photographs, and gave me a percentage of the proceeds. This was all within the legal asepcts of the EyeEm contract.

However, my termination of the contract with EyeEM, stopped EyeEm partners (including Getty Images) from being able to sell my photographs after the 9th April 2018 (60 days post termination of contract).

Google Image search and Pixsy identified that Getty Images were selling one of my photographs on all of their domains at the end of May 2018. (They had removed the other photographs from their domains worldwide)

I sent Getty a letter demanding a settlement payment for attempting to sell my photograph, without any contract, on all of their worldwide domains, and to forward any proceeds related to the photograph to me. They removed the photograph, but have not responded to my emails, despite multiple requests over the last 2 months.

How would you proceed? Any tips? Can Getty be made to pay for copyright infringement where they are trying to make money from my photograph without any way of paying me?

Meanwhile, EyeEm contacted me (on behalf of Getty Images - their partner) and have admitted that Getty Images wherein breach of copyright due to a technical problem between the companies. They claim on Getty's behalf that no licences were sold so there is no damages to claim for. Should I chase Getty further??

[DavidVGoliath]

The short answer is yes, you need to chase this further; are you resident in the UK? I ask only because you're posting in the UK section of these forums, so I want to be sure before offering up options on what you could do next.

[gerth]

Yes. UK resident/passport holder.
Any tips or straight to intellectual property lawyer?
Thanks
Ivo

[DavidVGoliath]

If you can hang fire until Monday, I can offer you up some of the pros/cons of taking on a solicitor vs. self-representation. The latter is actually quite easy in the UK courts, because Copyright claims can fall under the small claims process, which amply allows for self-representation. That aside, let me know if you live a reasonable distance from central London, as an IPEC (intellectual Property and Enterprise Court) filing may be even better for you - and again, they have a 'fast track' for small claims, and allow self-representation in those cases.

[gerth]

Of course, I can hang on till Monday. Thanks for the help. Living in Plymouth, which is a fair way from London. Any advice appreciated.

[gerth]

Any updates would be most appreciated?
What are the pros and cons for proceeding with solicitor vs self-representation?

Ivo

[aot]

Hi Ivo, curious why you terminated your contract with Getty? You mentioned poor business practice citing lack or delay in payments? Did you also use Getty to file lawsuits or send demand letters for copyright infringement?

[gerth]

Hi Ivo, curious why you terminated your contract with Getty?

I had a contract with EyeEm, who partner with Getty Images.

You mentioned poor business practice citing lack or delay in payments?

The situation started when a Google Image search and Pixsy search showed my photo in use globally by Kayak.com. I had not received any payment for the photograph. I contacted Kayak.com who after a delay said that they had purchased the photograph from EyeEm. EyeEm had not confirmed sale with me or processed any payment for the photograph. They then confirmed a sale and processed it some 2 months after the photograph was in use. The EyeEm contributor contract meant that EyeEm could sell any contributors photograph for any amount they decide with a partner as long as the contributor received 50% of the royalties. This meant that the licensing fees advertised for contributors on the website were not what you would typically receive as they had separate agreements with partner websites. These partner agreements are not declared at any point to contributors or even after raising a concern (as in my case). EyeEm did not want to reveal anything regarding their agreement with Kayak.com despite this poor business practice and lack of payment prior to global use. As EyeEm did not reassure me regarding their business practices or licensing agreements with their partner Kayak, and did not want to explain how my payment was 'delayed' (after extensive correspondence), I decided to terminate my contract with EyeEm and take control back of all of my photographs.

Did you also use Getty to file lawsuits or send demand letters for copyright infringement?

I have never used Getty Images to file lawsuits and have never had a contract with Getty Images. I have sent demand letters for copyright infringement of my photographs. However, only to companies who are using my photographs illegally for profit.

I did contact Getty Images to ask whether they want to continue selling my photographs (which they had chosen from EyeEm) after my EyeEm contract terminated. They simply referred me to their contributor upload site which requires you to upload 10 photographs for evaluation (clearly they had already evaluated my photographs and sold them on behalf of the EyeEm contract). I declined to resubmit.

I now use Picfair which allow you to price your own photographs and take 80% of the overall royalties.

[victim2]

This case is not as simple as it would seem. Agency law is very complicated, much more so than just copyright law.

If I understand it, you allowed EyeEm to be your agent with the ability to sub licence through other agents. They have done this through Getty so Getty had a valid licence to sell the images.

Unfortunately my limited understanding of agency law is that terminating the contract with EyeEm does not automatically terminate the contract with Getty. Getty need to be informed and therefore to go after Getty, you need to show they knew the contract had been terminated. I assume this would be difficult to prove. You could go after EyeEm if you can show they were still selling either themselves or through sub agents, after you terminated the contract. Beware of terms and conditions you may have agreed to allowing them to resell after termination.

I would be very wary of handing such a complex case to a lawyer. In the worst case, if you loose, you could be handed the legal bill for both sides.. perhaps 20,000 per side. Simply maths say that risk is not worth while give the likely level of damages.

If you decide to litigate , then perhaps it would be better to do it yourself in the small claims track of the Intellectual Property Enterprise Court. For that there is a snag as I see EyeEm is located in Berlin. Germany does not have a small claims track. The EUCJ confirmed in Pez Hejduk. v. EnergieAgentur.NRW GmbH UK photographers have the right to claim , in the UK, against any copyright infringers in any EU member state where the images are visible on the web from within the UK. Unfortunately I know of no claimant who has been successful this in the IPEC SCT. The only claim I am aware of has, I think, probably failed, due to insurmountable problems with the bureaucracy.

While I would like to offer hope and help in finding a legal path to get you damages, in this case I don't think I would resort to litigation. That doesn't mean you shouldn't kick up a fuss and most certainly, you should inform all agents involved that they have no rights to continue distributing your work. That way if Getty does it again, you would have a much stronger case.

If your sufficiently annoyed that you are willing to take a risk with legal costs, then you should talk to an expert IP lawyer. If your going for EyEm in Germany then you could discuss it with an IP specialist such as  www.recht-hat.de

The one thing you case illustrates is why many top photographers are now moving to selling direct. In your case,  you only have an agent and sub agent, however I have come across chains building up where each agent has passed the images to other agents so that you have sub sub sub agents, all competing with each other to be the cheapest. When any makes a sale then theoretically 50% ( or sometimes rather less ) is passed up the chain and so if a royalty eventually reaches the photographer, it is only a fraction of the selling price. Fortunately in some cases the royalty doesn't seem to find its way back to the photographer at all. These chains also seem to persist for years after the photographer cancelled his contract with the first in the chain.

[gerth]

Thanks victim2. In summary, I have proof that Getty knew the contract had ended as I wrote to them. EyeEm, through their legal counsel, claimed retrospectively that it was down to a 'technical problem'.

I have now had problems with licensing with 500px, EyeEm and Getty and feel that Shutterstock and Alamy do not offer enough money for image licensing to make it worthwhile chasing down any copyright infringement. Picfair seems to be the best of the current market. Although I have no sales with PicFair and maybe Stocksy is better.