SWEDEN: Letter from a law firm recieved!

[lagamba]

After recieved the fisrt and second demand letter from Getty (uk) in december and january I now have recieved a letter from a Swedish law firm that represents Getty. It says about the same as the Getty images letters, that I need to pay the 2600usd for the 2pics I used on my companys website or I will risk being sued.

I haven't responded to neither the getty letters or this one. Considering now to do so on this one..but what should I write..?? Any ideas?

[scraggy]

I am not a lawyer anywhere, yet alone in Sweden, and this is only my opinion.
I know nothing about Swedish law.

But the principles may be the same.

Getty Images USA ( I stress USA ) may indeed have a legal right to sue you for copyright violation. Getty USA may indeed have contracts with photographers, in which the photographers grant Getty USA an exclusive license and right to sue you.

But have Getty USA ever sued in Sweden ? It must be extremely inconvenient for them to sue in Sweden! Is it worth their while suing you? How much will it cost them? What is a local Swedish judge likely to award them ( if anything ? )? They would likely have to translate documents into Swedish, add the photographer to the lawsuit, and fly in representatives. The lawyers can't do it alone! The costs would be high, and any Swedish judge may not be overly sympathetic to a huge American corporation that he may feel is bullying the little guy.

The lawyers can threaten alone! I am sure many people pay up! My feeling however is that Getty USA is statistically unlikely to sue over 1 image in a foreign country.  This doesn't mean that they wont, but the mathematical risk of not settling, and waiting for a lawsuit seems more statistically logical than paying up! In a worst case scenario, you can settle after they sue!

Oh.....and Getty UK, in my opinion, and based on the information available online, is not the same as Getty USA. So would Getty UK, or "Getty Images International" based in Ireland, even have a legal right to sue? After all, the contracts I have seen are between photographers and Getty USA.

[DavidVGoliath]

Getty UK would send out letters for photographers whom work with their own local office; Getty does have offices in Stockholm, Sweden - so they absolutely could litigate in that country if they wanted to.

Remember also that no formal registration of images is required anywhere in the EU to enjoy the protection of copyright. The Swedish government has made a handy primer on how the law works in their country via this PDF

http://www.government.se/content/1/c6/05/67/65/ac3af6b4.pdf

[scraggy]

Getty UK would send out letters for photographers whom work with their own local office; Getty does have offices in Stockholm, Sweden - so they absolutely could litigate in that country if they wanted to.

Firstly, "lagamba" can easily tell us if the photographer is from the UK by checking the image details on Getty's website. Statistically, I doubt it ! My guess is that the Swedish lawyers send out the same letters we have all seen, and the images are from Getty's database with photographers from all over the world ( whose contracts are with Getty USA ).

Second, according to Getty's own license agreement from February 2013 for rights managed images , it does not have an official Getty office in Sweden. See clause 11.9

http://www.gettyimages.com/Corporate/LicenseAgreements.aspx#RM

However, there are contact details for a Swedish office on Getty's website:

Getty Images Sverige
Gamla Brogatan 17-21
SE-111 20 Stockholm
Tel: 0200 88 75 14
[email protected]
www.gettyimages.se
Country Manager: [email protected]

[Beanpole]

Oh.....and Getty UK, in my opinion, and based on the information available online, is not the same as Getty USA. So would Getty UK, or "Getty Images International" based in Ireland, even have a legal right to sue?

That's something I've wondered about: if Getty Images, Inc is the "exclusive licensee" of the images, and only the exclusive licensee can bring a copyright action (in the UK, presumably elsewhere too), where does Getty Images Ltd (UK) or Getty Images Sverige figure in the whole thing? Surely these companies are not in a position to take court action, so the "extortion letters" actually are extortive?

Does anyone know? Perhaps that's another reason they'll never supply proof -- because it would be proof that some other company is actually the licensee.

[DavidVGoliath]

That's something I've wondered about: if Getty Images, Inc is the "exclusive licensee" of the images, and only the exclusive licensee can bring a copyright action (in the UK, presumably elsewhere too), where does Getty Images Ltd (UK) or Getty Images Sverige figure in the whole thing? Surely these companies are not in a position to take court action, so the "extortion letters" actually are extortive?

It entirely depends on the contract or agreement which the photographer, who shot and supplied the images to Getty, signed with them.

I've detailed in another thread that there are three key ways in which a photographer can work with an agency such as Getty

1. Contributor: photographer submits work which Getty licenses on their behalf. Getty splits the licensing revenue with the photographer (percentage determined in contract) and the photographer retains all copyrights in their own work. If you infringed on the work of a contributor, only they can bring a copyright action against you.

2. Stringer: photographer submits work which Getty then wholly owns. Getty pays the photographer a one-time flat fee for the supply of their images, which also transfers to Getty the copyrights of the shots supplied. Getty will be able to pursue you directly for any infringements.

3. Staff: pretty much self-explanatory; Getty's own photographers whom effectively create works-for-hire i.e. creations made during the course of their employment, which Getty would own the rights to automatically.

So in two out of the three instances, Getty absolutely would have the rights to pursue infringements and - depending on the specifics of the contract they have with a specific photographer per case #1 - they might even have been granted the rights to pursue infringements for contributors too.

Does anyone know? Perhaps that's another reason they'll never supply proof -- because it would be proof that some other company is actually the licensee.

I reckon the core reason that they don't supply "proof" is because, up until the matter escalates to formal actions at court, they don't have to - especially contracts, which often contain confidential information or third-party details which Getty couldn't disclose without consent, and therefore would only be supplied if legally compelled to do so. Just my €0.02 worth.

[Robert Krausankas (BuddhaPi)]

or maybe they don't supply proof, because they simply don't have it, or if they do, they don't have everything in order..when ask in court, by a judge a question regarding signatures, Getty fumbled and had no answer.. a contract is worthless ( unless you want to use it to wipe your ass) if it is not signed by BOTH party's..

""Wojtczak testified that the Getty Images Contributor Agreement did “not have signatures. It is a digitally accepted agreement. The contributor signed via our online contributor contract portal.” The following ensued:

THE COURT: And where, if anywhere, does a representative form Getty execute, sign the document, digitally or otherwise?

THE WITNESS: You know, I'm not entirely familiar with where in the process that happens"


In other words...it doesn't

[stinger]

But I think Beanpole is referring to something different.  Let's suppose the images in question were taken by a "stringer" or "staff" of Getty U.S.  Getty U.S. is likely a different legal entity than Getty Sweden. 

Can both legal entities hold the right to sue over copyright infringement?

[scraggy]

I am not a lawyer although I think I am fairly knowledgeable about copyright laws. However, I know absolutely nothing about International corporate law! Nonetheless, this is my opinion! It is only that! I could be wrong!

An exclusive license can only belong to one person or body. If it belonged to two separate bodies, it couldn’t logically be exclusive to either! In my opinion, there cannot be overlapping exclusive licenses. If Getty Images ( US ) Inc is granted a “worldwide exclusive license” by photographers (see the Getty images contributor agreement, (http://www.aphotoeditor.com/wp-content/uploads/2011/04/2011-contributor-agreement-v.4.0-d-sample-english.pdf )  clause 1.1 -   “You grant Getty Images a worldwide, exclusive right" ) , then ONLY Getty Images ( US ) Inc. has the right to sue.

If a Getty office abroad has been set up as an official part of Getty Images USA, then I assume such an office would also have the right to sue. After all, they are also Getty Images USA.

However, my very non-legal opinion is, that if the foreign office is set up as a completely different subsidiary company, with a local company registration and VAT number, then they are not Getty USA, even though they may be subsidiaries, and may even have VERY similar names.

So here’s what I have found online.

There is a UK company based in London called “Getty Images Devco UK Limited”  - Company Number: 05573785


Details can be found here: https://www.duedil.com/company/05573785/getty-images-devco-uk-limited


The above page states that they have a parent company called “Getty Images International” – registered in Ireland - Company Number: IE905461, ( incorporated in the Cayman Islands) .

All their details appear here - https://www.duedil.com/company/IE905461/getty-images-international

On this page, the company is listed as a subsidiary of Abe Investment Lp and Abe Investments Lp belongs to Abe Investment Holdings Inc .

Remember the car freshener lawsuit against Getty (http://www.gpo.gov/fdsys/granule/USCOURTS-nynd-7_09-cv-01252/USCOURTS-nynd-7_09-cv-01252-2/content-detail.html ) ?  Abe Investment Lp and Abe Investment Holdings Inc were joint defendants with Getty.

Abe Investment Lp purchased Getty USA back in 2008
http://plc.practicallaw.com/6-381-7425

OK! So here is my two cents worth. Subsidiaries, although owned by parent companies, are not the same as those parent companies. If Getty Images ( US ) Inc. owns the exclusive license, then “Getty Images Devco UK Limited” or “Getty Images International” do not! In my opinion (and I could be wrong!) all three companies cannot sue for the same exclusive license. Only the company that has the signed agreement with the photographer can do that, and that would be Getty Images ( US ) Inc.

What does this mean? In my opinion, I think this means that worldwide, in Sweden, Israel or wherever, ONLY Getty Images ( US ) Inc has the legal right to sue.

[Beanpole]

But I think Beanpole is referring to something different.  [...] Getty U.S. is likely a different legal entity than Getty Sweden.  Can both legal entities hold the right to sue over copyright infringement?

Yep, that's exactly what I was referring to.

However, my very non-legal opinion is, that if the foreign office is set up as a completely different subsidiary company, with a local company registration and VAT number, then they are not Getty USA, even though they may be subsidiaries, and may even have VERY similar names.

And it's notable that Getty's UK letters include no company registration number, no country of registration and (in some cases I've heard of) no registered company address, and therefore breach the Companies Act 2006. I've reported this to Trading Standards and Companies House (among others) -- these letters are not legal. (They also contain no VAT registration number, nor the applicable VAT rate, so they're probably in breach of the Value Added Tax Act 1994 too.)

Could it be that Getty Images Ltd is deliberately trying to disguise the fact that it's a separate entity from the actual copyright owner/licensee by not identifying itself in its letters, even though that flagrantly breaches UK law.

(BTW, sorry to bring all this into the U.S. thread where it has little relevance! But I think this has HUGE implications for UK recipients and others like 'lagamba' in Sweden.)

Edit: I'll make a post on this to the UK thread.

[scraggy]

The following is only MY OPINION! I am NOT a lawyer!

Take a look at this document. It shines some light on the situation ( but not too much! )

http://www.scribd.com/doc/97024522/Mar-ot-Image-Limited-Authorization-Letter-from-Getty-Images-Israel

It's the letter of authorization that Getty Images International ( based in Ireland ) gave to Marot Image of Israel to supposedly give them the right  to sue ( a right that doesn't exist under Israeli law! ). It is signed by one Marek Wystepek, who recently departed from Getty Images International after a long stay! October 2005 – March 2013 (7 years 6 months) I wonder why he left!

http://www.linkedin.com/pub/marek-wystepek/6/b15/970

It states that Getty Images International is a member of the  Getty Images group of companies. This may indeed be so, but , in my opinion, it doesn't mean that Getty Images International owns the exclusive license granted to its parent company - Getty Images ( US ) Inc.

Look at the bottom of the page. The company is "incorporated in the Cayman Islands" Could that be for tax purposes?

[stinger]

I wonder what Oscar's legal opinion on all this would be?

[Oscar Michelen]

The transfer of "just the right to sue" was what undid Righthaven.  Getty likely has some internal agreement between its companies and subsidiaries that makes them co-holders of the copyright given to which ever Getty company a photog signs up with.  I would certainly demand from the Swedish law firm proof of the right to bring the claim.

[stinger]

Thanks Oscar!  I find it interesting that Getty can do that.  After all, if copyright law says that only one entity can hold the copyright, and all those firms are separate legal entities.  I guess the lines get blurred when the name is the same, but the stock is different, or when a company in one country holds a good deal of the stock in a company in another country.

[Beanpole]

The transfer of "just the right to sue" was what undid Righthaven.  Getty likely has some internal agreement between its companies and subsidiaries that makes them co-holders of the copyright

I thought only the copyright owner (i.e. the photog) could transfer rights? I'm hazy on some of this, but I thought the exclusive licensee couldn't sue without the copyright owner as co-claimant, and the licensee couldn't assign his rights to a third party. (If he can, and does, surely he wouldn't then be an 'exclusive' licensee and therefore couldn't bring a claim for infringement anyway).

If rights are being passed around or shared between the various Getty companies, there's a loophole in this 'exclusive licensee' business that I'm a long way from understanding.