Simon Muirhead and Burton demand on behalf of Getty

[Robert Krausankas (BuddhaPi)]

have a look through this thread...

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-for-sale/15/

[geezer123]

Excellent Example of Getty selling images they do not have the rights too.

http://www.gettyimages.co.uk/license/113493550

https://commons.wikimedia.org/wiki/File:Lyndon_B._Johnson_taking_the_oath_of_office,_November_1963.jpg

Shame we cannot post images here or hotlink to them.....  I suspect that is for a reason....

[Robert Krausankas (BuddhaPi)]

doesn't get much better than that!

[John Walmsley]

So, if Getty takes in an image which is already in the public domain, puts in time and trouble ingesting it into their systems, I can see they would feel justified in charging an admin fee, but not a fee in exchange for the right to use, when a client downloads it for use.  Similarly, if someone were to copy and use the image either from Getty directly or from a use which Getty had supplied, then I can see Getty would feel they were due a fee.  Had Getty not put in the time and trouble to make the image available, the picture user would not have had the opportunity to copy and use it (from that source).  But, even in those circumstances, would it be an infringement of IP.  If not, under what law could Getty make the claim? 

But, if anyone were to find a copy elsewhere, so not from Getty, then I see no basis for Getty charging them any kind of fee.  What would the fee be for?  No service had been provided by Getty.

If the situation really is that Getty are (knowingly?) making a significant number of unfounded claims against picture users, what can be done about it?  Is it illegal?  If so, what law(s) does it break?  I think ELI has an associated attorney?  I guess he/she has already looked at this and found there's  nothing can be done? 

I think it's time for me to leave the group.  I've learned quite a bit and I hope one or two things I've contributed just might be useful to one or two members at some stage.  I thank you for your politeness to me, the guy from 'the other side'.  I have no connection with Getty but I would like to leave you with the thought that we self-employed one-man-band photographers are not a litigious lot and pursue claims only when we have plenty of evidence to support them.  I wish you all the best.

John Walmsley

[John Walmsley]

... but, before I go, one issue still perplexes me.  In several posts, people have said a claimant must be the exclusive agent in order to bring a claim.  That, if a photo is available from more than one source, no claim can be brought.  If I've understood that correctly, I don't see how it can be true, at least, in the UK.  Here, in the Intellectual Property & Enterprise Court (where our smaller claims of IP infringement are heard, and is part of the High Court), judges routinely hear cases where an image is definitely available from more than one source and they are happy to do so.  Yesterday, I discussed this with a self-employed photographer who has several years' experience of pursuing the unauthorised use of his work and he confirmed that, when a photo of his is properly offered for licencing by two separate libraries (as well as from himself) and an infringement is found, all three entities have a contractual right to pursue the infringer.  Of course, only one should, so they decide amongst themselves which one it would be.  Whichever one it is, they are not the exclusive agent for that photo and, as I say, the court is aware of that position and does not see it as a problem.

I Googled the term 'exclusive agent' and the only relevant link was to the Copyright, Designs & Patents Act 1988.  The only line in there I could find about 'exclusivity' was this one:

Rights subsisting in copyright works.
2.(1)   The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.'

The owner is free to assign any rights to another entity.  Usually, this happens when the photo is placed with a library, like Getty, under whatever contractual terms they agree.  From the Getty contracts I've seen, an individual photographer is required to agree exclusivity terms with Getty.  But, if a smaller library places the work they hold with Getty, they are not required to agree exclusivity.  So, it does happen that Getty could make infringement claims for work which they represent on an exclusive basis and also for other work which is not exclusive.

So, I have a question which I think would best be answered by the ELI associated legal counsel.  It is, where does the notion that, in order to bring a claim, the claimant must be the exclusive agent, come from, please?  Is there something in US law which we don't have in the UK?  Could you identify exactly which piece of law it is based on?

Thanks,

John Walmsley

[Robert Krausankas (BuddhaPi)]

ok so from a "users" standpoint, you don't have an issue with the followin scenario?:

photographer licenses image with getty, and agrees to their terms of exclusivity, meaning the image cnnot be offered elsewhere.

same photographer then licenses same image with say pond5, thus ignoring, forgetting or whatever,the terms they agreed to with getty.

I come along purchase and use the image from pond5.com ( because frankly Getty sucksgoat balls and is way over priced)..

Getty finds said image and comes after me for infringement..

Are you telling me you're okay with this?...Please also keep in mind, even though Getty would have no case, they would certainly lose, Getty rarely files lawsuits , they just continue targeting low hanging fruit that have no legal knowledge, and are likely to cough up cash to make it go away

[John Walmsley]

I would definitely have an issue with the scenario Robert posed.  If the photographer had contracted to Getty on an exclusive basis, then he had no right to also place it with Pond5 or anyone else.  Agreed. 

But that is not the scenario I described nor the question I was asking.  I would like the attorney associated with ELI to give his view on the legal basis that a claimant must be the exclusive rights holder.  It's an important issue which seems to affect several cases discussed on ELI and, I think, is worth getting to the bottom of.  I'm asking that the attorney answers so we have a view from a legally qualified source.  One possible explanation might be that, in legal terms, the photographer was and has remained the exclusive rights holder but has contractually agreed with two libraries that each can market the photo and each could pursue infringements.  So, he would still be the exclusive rights holder and could pursue infringements through either of his agents (the two libraries) with the agants having been given the right to pursue them on his behalf.  That would make sense to me.  But I'd like to hear the attorney's view.

The scenario I described in my question, in which a photo can end up being available from three sources, one of which is Getty, is real, contractually sound and quite common.  The view put forward on ELI is that, because it is available from more than one source, no-one could make an IP infringement claim.  From other photographers' real world experience that does not seem to be the case.

John Walmsley

[stinger]

I am not an attorney, but I believe any attorney familiar with digital image law will tell you that under U.S. law, only one party may hold the rights to pursue copyright infringement over any image.  That right may not be exercised by more than one party.  The copyright holder has the ability to contractually transfer that right to one, and only one, party.

[John Walmsley]

I am not an attorney, but I believe any attorney familiar with digital image law will tell you that under U.S. law, only one party may hold the rights to pursue copyright infringement over any image.  That right may not be exercised by more than one party.  The copyright holder has the ability to contractually transfer that right to one, and only one, party.

Thanks, 'Stinger'
But I think we still need to hear from the ELI associated attorney on this.  His view would be more reliable than any non-attorney's (yours, mine or anyone else's) as he would have so much more knowledge of (US) copyright law and other relevant laws.

If what you say is exactly right in all details, then US law is different to UK law and it would be useful to establish that.

That right may not be exercised by more than one party.
To me, that makes perfect sense but it does not, of itself, preclude that right being held by more than one entity.

Let's hear from the attorney, please.

John Walmsley

[Oscar Michelen]

More than one person can own a copyright - you can actually have joint authors of the work or the copyright registration can just list more than person as being the owner. Each of those persons then has all the right of a full owner - they can license the work without the consent of the other and they can pursue infringement claims without the consent of the other as they both have exclusive rights.  Their only obligation would be to fully account to and properly compensate the other owner. However, if only one of them licenses the work to another party that party would only have a non-exclusive right (as the one owner cannot cut off the other's rights) and that party CANNOT sue. Under US law (specifically 501(b) of the Copyright Act  - you must have an exclusive right to be able to sue - having  a non-exclusive right does not give you standing to sue. Here endeth the lesson

[John Walmsley]

Thank you, Oscar.  But, I wonder if you have answered a different question?  You have dealt with the situation where more than one person owns the copyright.

We were dealing with the situation where only one person owns the copyright (and, may or may not have registered with the US Copyright Office) but has granted two entities the right to market the photo.  My understanding is that they both have rights to market it but none of them owns the copyright.  Or, am I misunderstanding what you have written?

Oscar said.
Under US law (specifically 501(b) of the Copyright Act  - you must have an exclusive right to be able to sue - having  a non-exclusive right does not give you standing to sue. Here endeth the lesson.


From the US Copyright Act
p.158
Copyright Law of the United States

Ԥ501. Infringement of copyright

(b) The legal or beneficial owner of an exclusive right under a copyright is
entitled, subject to the requirements of section 411, to institute an action for any
infringement of that particular right committed while he or she is the owner
of it. The court may require such owner to serve written notice of the action
with a copy of the complaint upon any person shown, by the records of the
Copyright Office or otherwise, to have or claim an interest in the copyright, and
shall require that such notice be served upon any person whose interest is likely
to be affected by a decision in the case. The court may require the joinder, and
shall permit the intervention, of any person having or claiming an interest in
the copyright.’


To look at this extract from the above.

‘The legal or beneficial owner of an exclusive right under a copyright is
Entitled …..  to institute an action for any infringement of that particular right committed while he or she is the owner
of it’


My reading of this is that the exclusive copyright holder is entitled to institute the action.  It does not limit how he may do this.  He could do it himself or, to my mind, he could employ someone else to do it on his behalf.

The situation in at least one case with the Getty letters, is that there is one photographer who owns the copyright outright.  He has contracted two libraries to market his work.  He is still the exclusive copyright holder and has merely contracted other entities to market his work and, as part of his contract with them, to pursue any infringements, on his behalf.  That seems to me to comply with the requirements of the law.  I don’t see why it would not.

It certainly is accepted by UK courts but, maybe, not by US courts.

I take your point about there being no right to sue if there are more than one copyright holder but that is not the case here.  There is only one copyright holder.

John Walmsley

[John Walmsley]

Could I ask Oscar Michelen to respond to my post, please, to clarify the position? 
Thanks, John Walmsley

[philpotts99]

This has got interesting since I last looked. we settled because we did not have the time or resource to take on the big bully boy. Given Getty want £420 (or £600 or £520 or 25 % of the last offer they made) what are you photographers getting out of this? Sounds like the only people getting rich are the Getty organisation. I wish ill on every last one of them.

My issue was never about paying but the manner in which we were dealt with by everyone associated i.e Getty, Debt collectors and their solicitors. Scandalous is the only word.

I fully support copyright but not those clowns.

I look forward to the day when someone with time and money takes them down and reveals them as the crooks they are.

[John Walmsley]

First, I have to wonder, is it wise, on a public forum, to call someone a crook?  Might be better to say that, ‘in your opinion they are crooks’?  I am not a lawyer, that’s just my opinion.

As you know, I’m a photographer and copyright holder.  My aim in being on this forum is to reduce the time and cost to both sides spent on copyright infringement cases.  I’ve learned quite a lot from the forum and intend my own inputs to help identify the issues which really are reliable facts, so we know how to proceed.

I, too, find Getty’s approach unnecessarily aggressive and cannot see how it benefits them in the long run.  We individual photographers don’t take that approach.

Coming back to facts, it is essential to establish what has happened and what the law says about it.  Many issues can be discussed here but reliable input is required from qualified experienced IP attorneys which is why I have asked Oscar Michelin to respond to my earlier post about the need for there to be a single copyright holder.  He has given his view once but, having read the section of law he referred to, I don’t see that it supports his view.  It’s an important issue which affects many cases and I would like to understand his reasoning.  Once it’s been clarified, we would all know whether, having a photo available from more than one source, removes a right to sue or not.  In the UK there’s no doubt at all that a photographer can have a photo with more than one library and any of those libraries can sue (there’s only one copyright holder but more than one library with the right to pursue cases on behalf of that copyright holder).  So, we’re trying to clarify the position only in the US.
 
If a picture user receives a letter from a copyright holder (or agent, like Getty), it is best to do some research and establish if they did use the photo in the way claimed.  If so, did they have a valid licence to do so.  If they have a valid licence, end of problem, as far as I can see.  If they haven’t, the cheapest route would be to negotiate a quick settlement in exchange for a discount.

What do we photographers get out of these settlements?  It varies but the law in the UK allows only that we are put back in the position we would have been in had the picture user requested permission and paid at the right time.  Yes, there may be uplifts allowed, either through the photographer’s own T&Cs or at the discretion of the court.  On balance, the vast majority of settlements take so long and soak up so much time, the photographer would be lucky to break even.  Big libraries can afford to engage lawyers.  We individual photographers can’t and take advice from them only on a readily available pro-bono basis. 

Why do we individual photographers pursue cases where we’d be better off ignoring them?  Because picture users (mostly professional large scale ones) seemed to have decided it was to their advantage to just go ahead and use photos without asking or paying, knowing/expecting that, if caught, all they’d have to pay would be the fee they would have paid in the beginning.  It was a win/win position for them.  We had a choice: either, give up and go fishing or fight back.  Having fought back for 4 years, we see a reduction in the cases and presume there is now a much better understanding of copyright, the law and the possible consequencies of behaving unlawfully.

‘philpotts99’ said:
‘I look forward to the day when someone with time and money takes them down …’
There’s no need really.  If the picture user can establish that Getty have a valid case, then negotiate a settlement.  Why not?  If the picture user can show there has been no infringement, send the documents to Getty.  They might huff and puff but it is most unlikely they would start legal proceedings without a firm basis.  It would be a complete waste of their time and money and the court would throw it out early on.

John Walmsley

[philpotts99]

Withdraw crook would not want to offend the tossers.