«

»

Jun 02

Have Getty Images and McCormack Intellectual Property Law PS Crossed the Extortion Line?

Their Business Model

Timothy B McCormack

A Message to Getty Images and McCormack Intellectual Property Law PS

After reviewing the latest batch of complaints filed with the Washington state Attorney  General’s office against Getty Images and McCormack Intellectual Property Law PS it is becoming clearer and clearer how unethical these businesses are behaving. Getty Images uses Pic-Scout to scour the Internet looking for images believed to match ones in their database. Once an image is located and no license agreement can be found Getty will send a settlement demand letter for many hundreds or thousands of dollars.

Getty Images and McCormack Intellectual Property Law PS’s demand letters are designed to instill fear in the recipient. The Getty letters use artificial deadlines, threats of escalation with legal action and a general bullying tone trying to intimidate the recipient into paying. Letters from McCormack Intellectual Property Law PS office owned by Timothy B McCormack are even worse as they are designed to look like the veiled threats of legal action have actually taken place, and a lawsuit has been filed. McCormack’s letters start off like this…

Re:       Getty Images v. Company or Individual’s Name

            Case No. XXXXXXXX

            Reference No. XXXXXXXX

            Demand Amount: $X,XXX.XX

 

The McCormack letters also contain statements such as:

YOUR COMPANY HAS COMMITTED COPYRIGHT INFRINGEMENT

Why your company’s actions are illegal;

….and more. Pretty bold statements considering this is a claim which has not yet gone to trial. I believe that if the statements were made in a court of law, some serious objections would be raised.

 

Getty and McCormack appear to be using the settlement demand letters as a business model to make money rather than actually trying to protect artist’s rights as they claim. I will explain.

 

Their Dirty Little Secret – It’s Just about the Money

 

Corruption

Getty Images and McCormack Intellectual Property Law PS want confidentiality agreements signed if you settle so you won’t tell others what they are doing.

If after receiving their settlement demand letter, the letter recipient does not immediately run  for their checkbook and sign their confidentiality agreement promising never to discuss any details of the claim or amounts paid, Getty Images and McCormack Intellectual Property Law PS become more aggressive in their tone and veiled threats.

Even worse, if the letter recipient has the audacity to ask Getty Images to provide proof of claim to facilitate settlement negotiation, they are usually met with this standard answer followed by another demand for immediate payment.

“The requested proof that we represent the copyright owner would be made apparent through discovery, should the matter reach the court.”

Read that statement again if necessary, Getty is telling the letter recipient that the proof Getty has the legal right to collect on behalf of the artist will only be provided when they are sued. I can understand why Getty Images is so hesitant to provide proof when requested after their Getty v. Advernet debacle.  Getty actually won this case by default.  Getty sued Advernet for the use of 35 images yet even though the Getty won, the court ruled that they were not entitled to collect any money do to a long list of mistakes on Getty’s part.

McCormack Intellectual Property Law PS’s response to the request for proof is usually either a short statement saying that Getty Images has already provided you with the proof, or they will include a screenshot of the image on the Getty website claiming this constitutes proof.

 

In my opinion, this is starting to sound a lot like legalized extortion.

 

Wikipedia defines extortion as….

Extortion (also called shakedown, outwresting, and exaction) is a criminal offense of obtaining money, property, or services from a person, entity, or institution, through coercion.”

An online legal dictionary defines extortion as….

“The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

 

If the letter recipient complains to the authorities or public protection agencies that Getty is trying to extort money from them Getty’s response is usually….

 

“The Complainant characterizes our attempts to settle our copyright infringement claims as “extortion.” However, our communications with them do not in any way constitute “wrongful threats” within the meaning of extortion statutes. On the contrary, demand for payment in satisfaction of a legal claim is not wrongful conduct.

 

We understand that copyright law can be confusing; however, the campaign to file complaints against us is misguided and misdirected. We encourage review of the license compliance information provided on our web site at: httpss://company.gettyimages.com/license-compliance/.

As noted above, Getty Images has acted appropriately and in good faith, and we are well within our legal rights to seek damages for unauthorized use of our images.”

 

While I agree with Getty’s statement that demand for payment and satisfaction of a legal claim is not wrongful conduct, I do strongly disagree with the practice of demanding more than an image is worth or they could expect to win in court. I also disagree with the absolute refusal to provide documentation proving that Getty Images has the legal right to collect on behalf of the artist. So I say that demanding payment, refusing to provide proof of claim and then threatening legal action qualifies as and meets the definition as a form of extortion.

 

 

Crossing the Line?

While reviewing all of the Washington state Attorney General complaints filed against Getty Images and McCormack Intellectual Property Law PS in 2013, I saw many many complaints stating Getty’s refusal to provide proof of claim was one of if not the main reason for the complaint. One however stood out above all the other complaints. It is complaint number 160 on the Index of Complaints list on my Scribd account.

 

This complaint was filed by a web design company on behalf of his client whom Getty Images had sent one of their settlement demand letters. The images were placed on the client’s website without the knowledge of the web developer or the client by a third party. The web developer was trying his best to do the right thing and take care of his client by engaging Getty himself. Through a multiple email exchange available in the complaint you can see the efforts he went through to try to resolve the matter amicably so Getty would not harass his client. Throughout the exchange he requested several times Getty provide proof of claim that they had the legal right to collect on behalf of the artist.

 

He tried offering Getty $500 which of course they refused. Here is what leaves me shaking my head and asking how this could not be considered extortion. He then offered to PAY THE AMOUNT GETTY WAS REQUESTING IN FULL if they would just provide the proof requested or he still offered $500 no questions asked to make the claim go away and leave his client alone. Unbelievably, or maybe not so unbelievably Getty refused the full amount they were asking and told the web developer that he should consult an attorney knowledgeable with copyright issues and that they were going to start harassingworking directly with your client moving forward”. I would love to see that one explained in court….Yes your Honor, we refused the full amount we requested because the person who took responsibility and was trying to settle the claim wanted us to show we had the right to collect on behalf of the artist before paying everything we asked for.

 

This is a copy of the final email which did not appear in the original complaint but was sent to me when I reached out to the web developer asking him about the situation. I know the wording is a little funny but it was copied and pasted and is the same as the original email, I will be adding this complete email exchange to the complaint as an appendix and will be Complaint 160A.

Getty Images Jonathan Klein

What do you call a company that refuses to accept FULL payment of their demands and to get it only have to show proof they can legally collect on behalf of the artist?

“My suggestion at this point would be for you to review our claim with an attorney who is familiar with copyright law. Getty Images has made the decision to work directly with your client moving forward. Thank you for your time to date.

 

Best regards,

 

D. Bieker

Copyright Compliance Specialist

Getty Images

licensecompliance@gettyimages.com

Getty Images Headquarters

605 5th Avenue S., Suite 400

Seattle, WA 98104 USA

Direct 206.925.7622

Toll Free: 800.972.4170 ext 7622

Fax: 206.925.5001

For more information about the Getty Images License Compliance Program, please visit

httpss://company.gettyimages.com/license-compliance

 

I am very familiar with Mr. Bieker as he was my Getty Images license compliance pen pal as well. I find it interesting as well as amusing that Mr. Bieker states that he is protecting the rights and livelihood of the photographers by refusing to accept payment in full.

 

In my case when Mr. Bieker and Getty images refused to provide the same proof requested I had my lawyer send Mr. Bieker a letter stating that we would both sign confidentiality agreements if that is what it took to get the proof requested so that we could move on with negotiations. Mr. Bieker replied back to my lawyer stating that they would only provide the proof requested when they sued me and besides it would take additional time and costs to send me the information.

 

Follow-Up

Again it is my opinion that the current business model of Getty Images and McCormack Intellectual Property Law PS meet the definitions above of extortion. I have decided to follow up with many of the individuals and businesses who filed complaints with the Washington State Attorney General’s office and see what additional information I can find.

 

I will add any information I can glean to that currently available and will be sending copies of my findings to state agencies, government agencies and congressional committees again asking that the current business model of these companies and individuals be investigated.

 

I am also hoping later in the year to provide copies of all of the information I have collected  during the last 2 ½ years along with recommendations for changes to the current copyright law to a congressional committee for review. I firmly believe that artist’s rights should be protected and they should be compensated for their works. I also believe that the penalties should be just as severe for artists, lawyers and companies who make a living through the abuse of settlement demand letters as they are for infringers. These companies know full well what they are doing, continue to do it, and show no signs of remorse or stopping, I feel the penalties should be equivalent to the “willful” penalties for infringers.

 

McCormack Intellectual Property Law PS’s

Copyright Cow Behind Bars

Remember, in the meantime, until we can get the laws changed should you receive one of the settlement demand letters and the company refuses to provide proof when you are legitimately trying to negotiate the claim and they harass, intimidate or bully you with threats of litigation and artificial deadlines, you are well within your rights to let the Attorney General, Better Business Bureau, Bar Association’s and other agencies know about it. The only way these agencies will know there is a serious problem that needs to be addressed is if we let them know. Do not file a complaint just because you’re trying to get out of paying, these complaints are serious matters and should not be done lightly.

 

Hopefully it will not be too much longer until a tipping point is reached and these agencies will look into this issue, there is already a long list of complaints against them. If found that these practices cross the line, the companies and individuals will be hopefully held accountable.  I know where I would like to see the Jonathan Klein and his copyright compliance team along with Timothy McCormack a.k.a the Copyright Cow and his staff end up if found guilty.

 

Keep checking back for more updates as I hear back from other letter recipients.

 

Note:  While McCormack Intellectual Property Law PS was not involved in the complaint 160 talked about above, the law firm is included in this article because they have the same business model as their Client Getty Images.  I have yet to see any example of McCormack Intellectual Property Law PS providing any proof of claim what so ever when requested.  As mentioned above I have only seen letters stating that Getty has already provided the information or he will include a screen capture of the image on Getty’s site stating this is proof.

27 comments

Skip to comment form

  1. Joh

    Greg –
    I know from reading your posts that you do not like Getty, but get a little education on the law before you start looking for a boogeyman every time you hear their name. It dilutes your argument.

    By law the developer cannot absolve the end user of the financial burden encountered with a company. The end user must pay then go after the developer. This is why none of the “copyright trolls” as you so kindly put it do not accept anything from the developer.

    This is well known in the legal field, the reason, the letter of infringement/settlement goes to the end user, the end user must agree to the terms and conditions contained in said letter and abide by the agreement to settle, no one else can do that for the end user. This is required should there be a problem and it must go to court. This pertains to any settlement of any debt that someone sues over.

    I doubt if you believe me but I have been in the copyright industry for twenty years, feel free to check this with your attorney of choice.

    1. Greg Troy

      Thank you for taking the time to leave your comments. I do realize that the end-user is ultimately responsible for what is on their website. The issue that I have with Getty and McCormack is their absolute lack of willingness to negotiate and/or provide proof of claim even to the end user.

      Let’s take the example case in the above article to start with and play it out both ways. The first way is Getty has the web developer who is admitting hiring a third party who placed the image on the client’s website without either party’s knowledge. To settle the matter completely the web developer offers Getty the entire amount asked for and the only thing he requests is just proof that Getty truly has the legal right to collect on behalf of the artist. Getty refuses and starts going after the end-user.

      This is as much information as I have on the story currently unless the end-user response to my inquiries for information. Let’s say that the end-user refuses to pay for any number of reasons including but not limited to Getty’s refusal to provide any proof of claim whatsoever. Now Getty feels their only option is to take the case to court. In court we have the end-user able to show they had no knowledge the image was not on their website legally. The case could clearly be made that this was an innocent infringement. We also have the web developer stating the image was placed on the site by a third party he hired without his knowledge but he offered to pay the full amount requested which Getty refused. As you have stated the end-user is liable since this is a statutory offense but quite often as I am sure you are aware of for this type of case if courts make a judgment it is generally for the $200 per image range.

      I site Masterfile v. Martin Gale as an example of the innocent infringement ruling. In this case Masterfile went after the Gale’s who used images on their real estate website that were included with real estate software they purchased for their site. Masterfile was seeking close to $1 million in fines, damages, attorney fees and court costs. It was shown that the Gale’s thought their images were safe to use since they paid for them with the CD purchase just as the end-user in the example above believe there image was safe to use since they paid a web developer to design their site. The courts ruled and Masterfile finally admitted this was a case of innocent infringement in the Gale’s believe the images on their website were safe to use. The courts awarded masterfile $200 per image. Of course you never know what the courts will do but there is a lot of case history supporting the $200 minimum if the case is not dismissed outright. So in this example we have Getty refusing full payment and losing out big time.

      The next way it could play out would be Getty accepts the web developer’s apology and payment in full. If for some reason Getty does not want to accept payment from the person taking responsibility because of the law you mentioned above it would be very easy for them to suggest mailing the amount to the end-user to pay Getty.

      While I may cringe a little when I hear Getty’s name and I definitely read anything about them with an open mind but carefully, I look for the facts. One fact my research has shown me is that Getty images as a company has a long history of questionable business practices from the top down CEO Jonathan Klein and top officers backdating stock options when they were a public company. Class-action lawsuits from stockholders and SEC investigations for the same. Class-action lawsuits filed against them by their own contributors, the Getty v Advernet case mentioned above to the recent AFP v Daniel Morel case just to name a few.

      Again, I do thank you for your comments and feel free to share any others you have as I do read them with an open mind.

  2. Joh

    Greg –

    There is no shortcut in the law, by the law Getty or whomever can ONLY deal with the end user period.

    Getty or whomever must as a matter of LAW deal with the end user, they have the option of letting it go or going after the infringer or anything in between they do not have any proof that the developer was the infringing party, (and the developer saying they did is inadmissible). Hence why they, by law, are required to deal with whomever they have proof has the image.

    The Masterfile case is interesting and upholds my argument, yes someone that uses an image supplied to them from a developer is generally considered an “innocent infringer”, but the law does not allow for Masterfile to go after the developer only the end user. Or, Masterfile would have done just that and gone after the developer and dragged them into court. I read a lot on that case seems the developer was nowhere to be found when the shit hit the fan.

    In the posted example that started this I will ask only this, why would a developer offer to pay the full amount if there is a legitimate license on the board? He would be protected, and so would his client. In my state if a developer misuses an image without permission and sells it or his work containing said image he will be liable for all costs and judgments borne by the end user, but again it will require a lawsuit.

    Of course the only way to find out is to sue, I have not seen one developer who took an image without permission willingly admit to it, they would be stupid to do so. Any decent IP attorney would counsel against it for one and make the other side jump through hoops to get that information while doing everything to obscure/hide it.

    As to providing a valid copyright, think of this, you are a big company and have bought up some small outfits rights to all their images and the owner never filed their copyrights because, “copyright resides with the creator at the moment of creation”, (and he thought incorrectly that, that was good enough), and now you as the big company own those rights are you then precluded from enforcing them? Why do you think that the numbers in the letters are as low as they are and Getty is willing to get anything as a payment for the use? Remember this, courts use the 2 to 5x’s multiplier for an infringement award if the copyrights are filed, and no one seems to remember DMCA.

    I know that you think that copyright infringement is wrong, or am I incorrect on that? If copyright is wrong what difference does it make if it is a small photographer like Morel or a big company like Getty? Wrong is Wrong. You may not like Getty’s model but I can assure you that the small guy is generally more vicious than Getty, look at Morel, they have a lot more on the line.

    To many people these days think that if it is on the internet it SHOULD be free or at least it is not worth that much. Nothing is further from the truth. (I have read your story, I think you are lucky it was Getty and not someone like Morel). Getty by sheer size will be infringed upon more than any other photographer or stock house out there. 1.2 billion images, that is their library, that does not include movie clips or vector art. Now don’t get me wrong, I do not work for Getty nor do I have ANY business dealings one way or the other with them, I just look at numbers. I do not see you complaining about the Hells Angels, by court records they are the most litigious copyright enforcer in the U.S., or National Geographic, they file more copyright lawsuits than Getty, with most settled out of court.

    Understand this, you have stated that copyright law must change because you do not like how Getty, Masterfile, et al. does business, well you end up lumping quite a few people in that group like writers, musicians, artists, photographers, poets and many more who will rise up in great numbers to defend their rights in a much louder voice than you have.

    As an aside how do you like being on the side of GOOGLE and Facebook and all the search engine companies and social media companies that are probably the biggest violators of copyrights out there?

    I will close with this, I predict that within the next couple of years there will be a change in how copyright infringements are dealt with, I predict the congress will adopt the recommendations from the copyright office for a copyright small claims court, if you do not like thing now wait until that begins, it will be much more difficult and costly on the folks that take without permission.

  3. Oscar Michelen

    Greg: great article. Joh – While I agree that Getty has a right to pursue the end user and that normally the end user must agree to the settlement terms, the situation is different when the developer is offering to pay the full amount Getty is seeking. If the copyright holder is made whole by a third party, there damages have been addressed. If the end user re-uses the image(s) then a new infringement claim arises. Also the developer never stated that he would not get the end user’s signature on any agreement. So to me once a party has been offered to be made whole they have been made whole. Getty refusing to show proof during settlement discussions especially in light of an offer of full payment in return is unfair and not a good-faith negotiation. They can have the requester enter into a non-disclosure agreement prior to issuing the proof if that concern is exposure of their agreements. All other parts of the agreement can be redacted if necessary as well. Imagine if you drove into the back of my car while I was stopped at a red light but you only scratched my bumper slightly. Now there’s no question you are in the wrong and have to pay my damages. I tell you over the phone that the repair costs $1500.00. What do you do? You say – “Show me the estimate” If I tell you I’ll show you the estimate in court when I sue you am I negotiating in good faith? No. You can’t assess what is a fair settlement value without assessing the claim itself. Asking for proof that Getty has the legal right to bring the claim is about the most basic information necessary. Its step 1. Getty refusing to offer it is simply unreasonable.

  4. Jerry Witt

    Jon says: “As to providing a valid copyright, think of this, you are a big company and have bought up some small outfits rights to all their images and the owner never filed their copyrights because, “copyright resides with the creator at the moment of creation”, (and he thought incorrectly that, that was good enough), and now you as the big company own those rights are you then precluded from enforcing them?’

    I have to say, a legitimate company would be willing and able to provide proof of claim. The whole “we will only provide proof that we have the right to represent this image in court” is pure B.S. LEGITIMATE companies are able to provide cue sheets (for music) and chain of title (for film clips). They are ready, willing, and able to provide this information because they charge a premium for their media. Getty also charges a premium for their images. They want $800 for a “rights managed” picture of a sprinkler head when a similar image can be purchased from Pond5 for a few dollars. Whoever is being asked to pay this huge premium SHOULD be provided with this paperwork.

    A LEGITIMATE company would sort out these issues prior to threatening to take someone to court. JON is right, there will likely be changes to copyright law in the future. However I expect they will make it more difficult to run a racket on the small businesses, bloggers, and non-profits that do not have an in-house legal team.

  5. Joh

    Oscar –

    You are an attorney, and you know the law says that end user is whom Getty must start with. As to this scenario, we are all relying on someone’s word as to what has transpired and Greg’s paraphrase of the events. I for one will usually await all the facts before making a pronouncement. As an attorney you know facts matter, and for this exercise lets agree that the letters contain the facts. The facts state that a third party placed images on the website and the developer and web-site owner had/have no knowledge of where the images came from. I will reiterate my previous question and point out you did not address it and include a second question regarding why the developer would be willing to pay Getty’s requested amount $2450.00 in full, (not contained in any letter). Now another fact contained in the letters is that Getty agreed to accept a lesser amount $1,750.00 to settle, (see letter 1386498 – Stacy Perkins, LCPC Ltd CRM:014111634), now with these facts someone is not telling the truth I will not say whom but something stinks here.

    I will add this if you have a website that allows someone to post wouldn’t you take the precaution of a DMCA Safe-Harbor? With those facts why would anyone, developer or site owner want to pay ANY amount for not doing anything legally wrong?

    Nowhere has the developer said he would sign or agree to anything, that is an assumption and not contained in any of the facts that have been placed on the table. Here is another set of facts from the letter of the developer, “I’ll remind you that my company is not legally responsible for this claim”, and that nowhere in any of the letters posted does he agree to pay the full amount, only the $500.00.

    Under your scenario there would be an agreement required between the third party and Getty, now put your lawyer cap on and answer this, would you allow your client to do that? Open themselves up to to a lawsuit by admitting that they took the image in question used it in a commercial manner and profited from it? I don’t think you would, and I don’t think that Getty would accept an agreement that restricted their rights in going after the developer for full blown copyright infringement, (if the fact was that he placed those images there). If you were Getty’s lawyer would you counsel them to accept a contract like that when there is a greater chance when in discovery you will learn that this is not the only place the developer has done this?

    As to your analogy, it is not the same as this case. You have an accident between two people, in the above case there are at least three separate entities, for your scenario to work it would require the addition of a mechanic or car dealer or some third party that I purchased a defective vehicle from, (and they are responsible for the defect), and they are offering to take the fall when I have been identified as the party that is at fault. Opens up a whole new can of worms when the third party is brought in.

    Oscar I understand that you believe that it should be the law that you need to show proof before bringing the claim, but is it not true by the law that is not required? Is it also not true that you don’t have to send a take down notice? Is it also not true that a lawsuit can be filed on any person for any reason at any time with no notice? What one believes should be the law and what the law actually is, is of course two separate things. An article posted and the facts contained in the letters are also two separate things and pillorying a company on an assumption dilutes the argument when the facts belie the assumption.

    Your business model and Greg’s business model work for the two of you but it is not what works for other folks and I am sure that there are people out there that do not agree with either of your models so should we start a movement to restrict how either of the two of you do business because we don’t like your business model?

    I will close with this, facts are stubborn things.

  6. Joh

    Jerry –

    Are you implying that unless a company does business according to your model they are not legitimate? The copyright world is rife with companies not providing “proof” until discovery, that is a result of attorneys. In your description you are referring to a “before infringement”.

    The reason ALL PARTIES send letters is to avoid going to court, that is what the court expects but it is not required, and are you saying that unless Getty provides no proof until the court filing that the claim is bogus? I know that is what you seem to state but please if that is the case state it out loud. Because if that is so anybody that makes films, writes songs, takes pictures, writes novels or creates any kind of art would be required to provide proof when the law states that is not required. (see above questions/remarks to Oscar).

    Are you also stating that Nat Geo is not legitimate? Are you saying that Time is not legitimate? Are you stating that Daniel Morel is not legitimate? All of these and more initiated lawsuits without providing proof until discovery. Are you also stating that the Hells Angels who routinely file law suits , more than any one else in the country for copyright infringement, and whom spend little if any time on a notice are not legitimate? By the way did you know that the Hells Angels are also incorporated?

    Look just because you don’t like the business model and don’t agree with it does not make it illegitimate. If you continue to proceed down that path eventually your business model will be the next ox gored.

    I could dissect your reply with all the legal arguments about what is law and was is not but I will let Oscar educate you on that one.

  7. lucia

    JoH

    As to providing a valid copyright, think of this, you are a big company and have bought up some small outfits rights to all their images and the owner never filed their copyrights because, “copyright resides with the creator at the moment of creation”, (and he thought incorrectly that, that was good enough), and now you as the big company own those rights are you then precluded from enforcing them?

    First: This is a silly question. No one suggested the large company is precluded from enforcing they claim. They only suggested the large company should show proof that they have a right to enforce the copyright.

    Second: I’m puzzled by your hypothetical. The fact that the original creator did not file a copyright before selling the rights to the big company doesn’t prevent the large company from filing a copyright. They can do so indicating they gained ownership through a sale from the creator. The large company should then be able to show their copyright registration. This should not be remotely difficult for the large company.

    Why do you think that the numbers in the letters are as low as they are and Getty is willing to get anything as a payment for the use?

    On what basis do you claim thousands of dollars for displaying an image is low? It’s pretty high relative to many images.

    Remember this, courts use the 2 to 5x’s multiplier for an infringement award if the copyrights are filed, and no one seems to remember DMCA.

    Where do you get the 2 to 5x multiplier? And beyond that 5*$10 would be fifty dollars. Depending on the image $10 could be a generous amount to pay for the right to display.

    What do you think anyone is forgetting about DMCA? Getty doesn’t seem inclined to use it. If they did, they could send a DMCA request the image be removed rather than sending the monetary demands. They prefer to send the monetary demands.

  8. lucia

    I used the price calculator at getty. The price for 1 month use on the web appears to be $55
    httpss://www.gettyimages.com/pricecalculator/10181259

  9. Joh

    Lucia –

    First, copyrights if they are to be transferred must be assigned, the copyright office requires that in writing if it is to an entity other than your own business. While I agree my hypothetical was incomplete assume that the rights acquired were from someone that has passed away. Any rights that are gained will come after the 90 day time frame for the complete set of protections of copyright law allowing the infringed upon party statutory damages and only leave them with actual damages which is most cases is very low.

    As to proof as I have stated multiple times it is not required under the law to provide proof prior to filing your case, proof is only required to file. While we are on this subject if you “extort” money with a false claim, that is a felony in most states and since there have been no felony cases brought against Getty and there have been numerous complaints would it not stand to reason that when they are asked to verify, Getty has been able to provide to States Attorney Generals that they have whatever necessary?

    Second you chose to use my response without context so the question is not silly and it has been stated that without proof of ownership that Getty et al do not own the copyrights. I am only responding to what has been stated.

    Third where do I get thousands of dollars? When you go to court you do not get to use what a license would have been if it was applied for before the infringement, rather the infringing party gets to claim what their usual and customary license is. So the infringer does not get the benefit of hindsight. Secondly it seems most of you do not really understand licensing, (my apologies if I am wrong), if an image is listed as “royalty free” it does not mean that, that image does not have restrictions, quite the opposite it contains many restrictions, it just means that you pay for one license and agree to abide by the restrictions contained in that license. If you violate those restrictions you have voided the license, (at least most licenses have that language contained in them). So with all that when you find someone that has misappropriated an image you always start high expecting to end up lower, but you have to lay the ground work for the court should negotiations go sideways. Also, one image is not equal to another even if they are the same subject, the courts have held that as a standard and what is usually looked at is an average. I also agree that if you negotiate in advance you will pay a lower fee but when you take without permission, “katy bar the door”, you open your self up to whatever any copyright holder wants to try and claim and it is up to you to get educated.

    Taken directly from a magistrates ruling in the Second District of New York, “Under these provisions, the court has broad discretion to direct compensation without a precise showing of the injured party’s losses or the wrongdoer’s profits”. “(“[A]n award of statutory damages will not depend upon a rigorous showing by a plaintiff of the extent of the defendant “s profits. Nonetheless, courts have broad discretion in determining the size of an award, and may require plaintiffs to offer evidence that sheds light on the facts pertinent to such an award.”) (internal citations omitted)
    In determining the amount of statutory damages, the court must assess a variety of factors. The blameworthiness of the defendant, including both the willfulness of the infringement and the degree to which the defendant cooperates in discovery during the infringement action, may justify an increase in the amount of such damages. ” additional factors the court should take into account include the defendant’s profits and expenses saved, the plaintiff’s losses, the value of the copyright, and the prospective deterrent effect of the statutory award.”

    I can provide more than this but this should suffice. As to the 2 -5x’s multiplier it is used all the time by attorneys when calculating the damages in the case, I am sure if I am that incorrect Oscar will gladly correct me.

    DMCA, It is not required to send a take down notice unless you have registered a safe harbor with the copyright office, this seems to get a lot of people, everyone seems to think that you are required to send a take down notice before you send a demand for payment letter, it might be friendly or courteous to do so but it is not required. Getty may be including that in the price calculation when they send the infringement letter, I cannot answer for sure, (I do not write or calculate for Getty), but it seems likely, that is why I brought it up.

    As to your use of Getty’s calculator since I have no idea what type of license you have chosen, size of image, type of display etc., (I know you said web but did you use commercial, editorial, non-profit……, and other factors), I cannot comment on the license you chose or the cost.

    Now for my questions, I have been remarking on the post that started this whole thing, I have read all the letters that transpired between Getty and the developer and no one has responded to my questions, or the fact that what was represented as the developer offering to pay the full amount is not contained in any of the correspondence that was sent to WA State Attorney General and that seemed to get this started. Also no one has offered up any kind of explanation as to why either a business/personal website or a developer would even entertain paying for something they claim they did not do, nor had knowledge of occurring, I can guarantee you any attorney worth their salt would offer the advice to not pay a thing and the legal reasons behind it for free, and I can think of a few that would offer to defend that pro bono, it is an easy win case, and a quick payday from Getty.

  10. Greg Troy

    Joh,

    You said:

    “Now for my questions, I have been remarking on the post that started this whole thing, I have read all the letters that transpired between Getty and the developer and no one has responded to my questions, or the fact that what was represented as the developer offering to pay the full amount is not contained in any of the correspondence that was sent to WA State Attorney General and that seemed to get this started. Also no one has offered up any kind of explanation as to why either a business/personal website or a developer would even entertain paying for something they claim they did not do, nor had knowledge of occurring, I can guarantee you any attorney worth their salt would offer the advice to not pay a thing and the legal reasons behind it for free, and I can think of a few that would offer to defend that pro bono, it is an easy win case, and a quick payday from Getty.”

    In complaint 160 Getty images states:

    “The full liability of this infringement rests with Stacy Perkins LCPC Ltd. if you are interested in settling this matter on behalf of Stacy Perkins LCPC Ltd., Getty Images would expect full payment of $1750.00 to be postmarked by August 26, 2013. If we are unable to reach settlement by this deadline Getty images will continue to pursue Stacy Perkins LCPC Ltd. directly.

    In complaint 160 the last email, the developer states:

    “ Simply put if you can demonstrate your claim, all quickly and quietly settle for the amount you requested. If you are unwilling to do so, I will happily honor my offer of $500 to compensate the photographers for this mistake. I have several hundred photographs published myself, and I believe that photographers deserve to be compensated for their hard work.”

    Here we have Getty asking for FULL payment and we have the developer offering to pay the amount requested with proof of claim. Hence the developer offered to pay the full amount if proof was provided and Getty refused as I stated in the article.

    The email exchange was still continuing when this complaint was filed with the AG. A response was received after the complaint was sent in, I have been in contact with the developer and received the missing emails. The full email correspondence is in document 160A. As for why he offered to pay, it was because his customer was very upset about receiving this letter for something they did not do. Knowing that the end-user was ultimately responsible and the developer had hired the third-party to work on the website he was trying to make things right and take care of his customer. Ultimately Getty’s refusal to accept his payment for the amount Getty was requesting and starting to pursue the end-user cost him his customer. I learned the last bit in email correspondence that I had with him.

    In an earlier response to me you stated:

    “There is no shortcut in the law, by the law Getty or whomever can ONLY deal with the end user period.

    Getty or whomever must as a matter of LAW deal with the end user, they have the option of letting it go or going after the infringer or anything in between they do not have any proof that the developer was the infringing party, (and the developer saying they did is inadmissible). Hence why they, by law, are required to deal with whomever they have proof has the image.”

    So either Oscar statement was correct and the developers offer would make Getty whole and is acceptable or according to you Getty is breaking the law by stating they will accept payment in full from the developer on behalf of his client.

  11. Jerry Witt

    Joh, you use examples that do not even come close to Getty’s practices. The Hell’s Angels cases I can find are to protect their logo and brand from being appropriated.

    Daniel Morel sued Getty because they were selling his images. This is significantly different than a mom and pop shop mistakenly placing an image on a blog post.

    The real winner is National Geographic. Here is their advise at: httpss://help.nationalgeographic.com/customer/portal/articles/1107630-are-my-photos-safe-

    “If you find your photo being used without your permission elsewhere online, you should submit a Digital Millennium Copyright Act (DMCA) Notice Of Infringement (copyright) with the website or service.” I would tend to believe they use their own advice.

    Whether or not a business practice is legitimate is not determined by just me. But beyond the letter of the law, there are societal conventions. When a company bucks those conventions, people tend to push back. There must be a reason why there are 20 sites bitching about Getty and why the Washington D.A. and BBB has received so many complaints about Getty images and why so many people I speak to are familiar with the Getty Image demand letter scheme.

    In closing, I’d love to hear you elaborate on this: “Look just because you don’t like the business model and don’t agree with it does not make it illegitimate. If you continue to proceed down that path eventually your business model will be the next ox gored.”

    What the heck do you mean by that?

  12. lucia

    Joh

    First, copyrights if they are to be transferred must be assigned, the copyright office requires that in writing if it is to an entity other than your own business.

    Saying “first” sure makes it sound like you think you are making some sort of important point, but I’m not sure what point you are trying to make. Of course copyright must be assigned in writing if they are purchased. And if they were assigned in writing, the big company could show the signed paper work. This should be easy-peasy for the ‘big company’– provided the signed paper work exist. If it does not, then the big company (a) does not own the copyright and (b) has no right to demand payment on the basis of their own ownership.

    In your hypothetical, you stipulated

    you are a big company and have bought up some small outfits rights to all their images and the owner never filed their copyrights because

    What you stipulated only makes sense if big company bought the rights from the copyright owner. If they did, the owner could assign the rights. Presumbaly a “big company” would have personel who made sure they actually bought things from the actual owner and make sure the owner transferred the rights by writing. If the owner did not do this, then the “big company” would have no rights to enforce the copyright. In such a case, whoever they went in a demand letter would be justified in requesting proof of ownership because, as it happened, the “big company” having no right to enforce the copyright shouldn’t be attempting to do so. (And moreover, if the “big company” took such a case to court, they would lose because they don’t own the copyright.)

    While I agree my hypothetical was incomplete assume that the rights acquired were from someone that has passed away.

    I don’t see how this makes any difference to your hypothetical. In your hypothetical, the ‘big company’ is– presumably– buying from the owner who would — also presumablyeither be a living person or a corporation or company of some sort. On death, the copyright passes to an heir. In which case, the heir can assign by writing. If the “big company” did not properly identify the heir and bought it from the wrong person, or did not get a transfer in writing from the proper heir, the “big company” would not own the copyright. In which case, they ought not to be going after anyone to demand payment.

    As to proof as I have stated multiple times it is not required under the law to provide proof prior to filing your case, proof is only required to file.

    No one ha claimed that proof prior to filing a suit is required by law. If you think anyone has claimed this you are not paying attention to what they are actually saying.

    Second you chose to use my response without context so the question is not silly

    What context have I left out of what question?

    and it has been stated that without proof of ownership that Getty et al do not own the copyrights. I am only responding to what has been stated.

    No one said that without proof of ownership, Getty do not own the copyrights. If you are responding to that, then you are responding to a claim that has not been made.

    Rather, what has been said is that when negotiating a settlement in good faith Getty should demonstrate that they have standing to demand a settlement on the part of whoever does own the copyright. (Note: in reality, Getty does not own the copyright for most the images it licenses and does not claim to own them. They claim to be acting as the agent of the copyright owner. This is a minor point– but generally Getty Images does not buy the copyright from anyone. They enter into a contractual relationship with the owner and license on behalf of the owner. This is legit providing the relationship actually exists, is proper and other factors are met.)

    Third where do I get thousands of dollars? When you go to court you do not get to use what a license would have been if it was applied for before the infringement, rather the infringing party gets to claim what their usual and customary license is.

    Where do you get the notion that the ” their usual and customary license” was thousands of dollars? The getty estimating tools suggests the customary fee for that specific image was $55. I gave the link to that estimator tool– at getty images. What’s your basis for thousands? (Feel free to use the link yourself. It’s there. I’m sure you can pull down menus with the best of them.)

    Secondly it seems most of you do not really understand licensing, (my apologies if I am wrong), if an image is listed as “royalty free” it does not mean that, that image does not have restrictions,

    Interesting accusation about who doesn’t really understand licensing. Who in the world has suggested that “royalty free” means the images does not have restrictions? I haven’t seen any such claim anywhere.

    Also, one image is not equal to another even if they are the same subject,

    No one has claimed one images is equal to another– even if they are the same subject. I asked you where you got thousands of dollars. After asking you, I read the document, googled for the specific images and found the fee is $55. It may be that some other image on the same subject is worth skillions, but this one doesn’t seem to be.

    I also agree that if you negotiate in advance you will pay a lower fee but when you take without permission, “katy bar the door”, you open your self up to whatever any copyright holder wants to try and claim and it is up to you to get educated.

    Of course they can try to claim whatever they like. That doesn’t mean any judge anywhere is going to accept that this image miraculously becomes worth skillions when — ordinarily– Getty licenses it to be used on the web for $55. Getty refusing to negotiate or prove they have a right to license doesn’t make it worth more and isn’t likely to convince a judge their damages are more than $55.

    “(“[A]n award of statutory damages will not depend upon a rigorous showing by a plaintiff of the extent of the defendant “s profits. Nonetheless, courts have broad discretion in determining the size of an award, and may require plaintiffs to offer evidence that sheds light on the facts pertinent to such an award.”) (internal citations omitted)
    In determining the amount of statutory damages, the court must assess a variety of factors. The blameworthiness of the defendant, including both the willfulness of the infringement and the degree to which the defendant cooperates in discovery during the infringement action, may justify an increase in the amount of such damages. ”

    Sure. Which only means that if the court finds the defendant has nearly no blame (as seems plausible here) and they cooperate during discovery (which as far as we can tell, they will as they cooperated pre-discovery) then judge could also decide to aware the statutory minimum. This could be quite low– certainly less than thousands of dollars.

    additional factors the court should take into account include the defendant’s profits and expenses saved, the plaintiff’s losses, the value of the copyright, and the prospective deterrent effect of the statutory award.”

    What ‘profits and expenses saved’ do you imagine exist in the case of this woman holding her head in a cafe which ordinarily licenses for $55?

    I can provide more than this but this should suffice. As to the 2 -5x’s multiplier

    Maybe the multiplier of 2-5x is common, or maybe it’s not. But if we use getty images customary licensing fee for this image, we discover 5* $55 is only $220, not the thousands Getty Images requested. (Though later whining that people don’t answer your questions, you haven’t justified the implied claim that Getty Images request for thousands is “low”.)

    In anycase, if this multiplier is common, that’s no reason why Getty Image ought not to justify their demand. They could show how they estimated the base level, and explain why a judge would multiply by 2 to 5x. Instead, Getty Images simply refuses to provide even a base level. (Possibly because the base level in this case is $55 and so 5*$55 would result in so much less than the amount demanded that they think it wiser to just keep repeating the demand for thousands.)

    DMCA, It is not required to send a take down notice unless you have registered a safe harbor with the copyright office, this seems to get a lot of people, everyone seems to think that you are required to send a take down notice before you send a demand for payment letter, it might be friendly or courteous to do so but it is not required. Getty may be including that in the price calculation when they send the infringement letter, I cannot answer for sure, (I do not write or calculate for Getty), but it seems likely, that is why I brought it up.

    It’s possible “everyone” somewhere on some planet claim this. However, no one has made any such claim here.

    You brought up DMCA as your issue without specifying what you think the issue is. If this was the issue you had in mind: you are arguing with phantoms in your head not with anyone here.

    As for Getty somehow “including” the idea that everyone somewhere holds this odd notion into Getty’ price calculations— uhmm… huh? How in the world should “everyone’s” (whose?) misconception about DMCA (which in no way binds Getty to anything and which notion Getty does not comply with anyway) affect the price Getty demands for their images? I can’t imagine any judge would buy a plaintiffs argument that because some fictional person somewhere might misundersatnd DMCA that means Getty gets to demand some inflated price for their images!

    As to your use of Getty’s calculator since I have no idea what type of license you have chosen, size of image, type of display etc., (I know you said web but did you use commercial, editorial, non-profit……, and other factors), I cannot comment on the license you chose or the cost.

    Ok. But you still haven’t justified the claim that Getty Images demand is somehow “llow”.

    I asked you your basis claiming thousands was low. After doing that, I googled and found their estimator. I read the letter discussing the use. You could very well click the link, read the letter and come up with your own estimate of a value for an image posted on the web on a page that less than 100 views. Go ahead and use the calculator: tell us what you get and how you would justify a demand for thousands of dollars. Think about whether a judge would buy that claim given the context of the facts as stipulated in the letters at Greg’s links.

    no one has responded to my questions

    Which questions? You seem to have riddled your post with rhetorical questions. I answered “now you as the big company own those rights are you then precluded from enforcing them?” If you recall, my answer was that no one suggested the big company was precluded.

    I also engaged “Why do you think that the numbers in the letters are as low as they are and Getty is willing to get anything as a payment for the use?”. My method of engaging was pointing out this question has a “false premise” — that is you assume the payment is low when in fact it seem ridiculously high. But you don’t seem willing to click the link to the estimator tool to back up the implied claim the numbers are low . The link is there, you can use the pull down menus and see what you get.

    I could answer a few more. As for this question you asked:

    As an aside how do you like being on the side of GOOGLE and Facebook and all the search engine companies and social media companies that are probably the biggest violators of copyrights out there?

    It’s difficult to believe you really intended us to answer that. As far as I can see, this question represents an attempt to change the subject from the issue at hand (the use of this particular getty images image) to some other topic you might consider fascinating. I don’t see any particularly good reason why people should indulge you in changing the subject to “what Google and Facebook do”, merely because you try to create the diversion by asking a question that takes us off on a tangent.

    On these two questions of yours:

    I will add this if you have a website that allows someone to post wouldn’t you take the precaution of a DMCA Safe-Harbor? With those facts why would anyone, developer or site owner want to pay ANY amount for not doing anything legally wrong?

    Like the previous question, the first appears to be nothing more than an attempt to change the subject. But as it happens: lots of people don’t take the precaution of taking out DMCA safe-harbors for a variety of reasons including naivetee and ignorance. I hope that answers your question.

    As for the second question, I don’t know what the “with those facts” bit is supposed to mean.But the answer to “why would anyone, developer or site owner want to pay ANY amount for not doing anything legally wrong?” is simple. Time is money and court case are costly. Sometimes people are willing to pay to make nuisance suites go away even if those creating the nuisance by threatening to sue are 100% in the wrong. This happens lots of place– including dry cleaner, ice skating rinks and all sorts of other small businesses. You may be unaware of this, but that’s your naivetee, not ours. I hope this too answers your question.

    Also no one has offered up any kind of explanation as to why either a business/personal website or a developer would even entertain paying for something they claim they did not do, nor had knowledge of occurring, I can guarantee you any attorney worth their salt would offer the advice to not pay a thing and the legal reasons behind it for free,

    I think I guest did.

    As for your claim of a guarantee: if you really believe you can make such a guarantee, you need to get out more. My husband worked at an ice skating rink in highschool and attorneys and insurance companies regularly advised settling out of court even when a claim appeared to be nothing more than a nuisance suit where the rink owner would win if he went to court. The reason for this is it was often cheaper to settle than go to court. If you don’t know this, you must still be in highschool or be a member of a cloistered convent! The fact is: lots of smart attorneys know that court fights cost a lot of money both in direct court costs and in time consuming distractions that can imperil other more important business activities. And this is the risk even if you win.

    I can think of a few that would offer to defend that pro bono, it is an easy win case, and a quick payday from Getty.

    Oh? My grandpa was a lawyer. My brother in law is a lawyer. Both took (or take) pro-bono cases. But seriously, few lawyers are going to step forward to defend a small business on this sort of issue pro-bono particularly not if they can persuade someone to just suck it up and fork over $2000 even if they aren’t in the wrong. Lawyers need to make a living, this sort of nuisance suit is their bread and butter. Few really want to devote numerous otherwise billable hours to nuisance cases that could be settled— even if the settlement falls somewhat short of ideal justice.

    Next you’ll be telling us that tons lawyers routinely step forward to do divorces and wills for wealthy clients pro-bono just because they think some wealthy clients are somehow deserving of free services . But if you know a lawyer licensed to argue cases in copyright court who would take such a case pro-bono, give us their name. We can contact them.

  13. lucia

    Greg,

    So either Oscar statement was correct and the developers offer would make Getty whole and is acceptable or according to you Getty is breaking the law by stating they will accept payment in full from the developer on behalf of his client.

    On point. If Getty thinks they are barred from dealing with the developer, their responses should simply be that they can’t discuss this with the developer. Instead, they seem entirely willing to negotiate with the developer. So either their attorneys are giving them advice that differs dramatically from Joh’s learned legal advice or they aren’t following their own attorney’s advice!

  14. Joh

    Greg –

    Please read Oscars post, it would require the end user entering into an agreement with Getty and the developer to end the matter. Oscar – “While I agree that Getty has a right to pursue the end user and that normally the end user must agree to the settlement terms, the situation is different when the developer is offering to pay the full amount Getty is seeking. If the copyright holder is made whole by a third party, there[sic] damages have been addressed. If the end user re-uses the image(s) then a new infringement claim arises. Also the developer never stated that he would not get the end user’s signature on any agreement.” Please note the language, “the end user must agree”, he does not clarify why the situation is different, and does not offer an explanation other than, Oscar – “So to me once a party has been offered to be made whole they have been made whole.” If the attorneys agree than of course but if it goes sideways Oscars opinion is not admissible in court.

    Please do not put words in my mouth, that is not worthy of this discussion, I never said Getty would be breaking the law or any law I said multiple times that the discussion and negotiations must start with the end user and Oscar basically agreed with me. If the developer wants to insert himself and the other two parties wish to accept than all parties can negotiate. Now what was stopping the developer from writing a check to the end user for the agreed upon amount? No one would be the wiser and the developer would get what he wants Getty gets what it wants and the end user gets what they want. My apologies for missing the last group of correspondence but I really did not see that there initially.

    The $1750.00 was the amount discounted from $2450.00 in the initial letter and what was Getty’s response after receiving the letter from the developer. to answer your question Getty’s choice, they can chose to walk away from a sure thing or they can chose to gamble or punt. You may not like it and you may not understand it but their business model is their business model.

    I will ask you this one last question it is very clear that the case was a clear violation of copyright law,
    Developer – “Additionally, I have terminated the employment of the employee responsible for outsourcing her work, initiated an audit for other clients to ensure that there are no further violations, and reaffirmed our policy on stock images to the rest of our team. Any further violation will result in immediate termination.” This is a clear admission of copyright infringement . Since the developer has admitted one of his employees has violated the law, (no further violations), do you think that the developer should be excused for what would be considered a pretty strong case. If one of your employees damaged or injured something or someone while working for you would you expect to have to face the full extent of the law for their negligence if the other party chose to go down that path?

    Copyright law is simple yet complex and unless you make your living in it, it can be both confusing and infuriating. Things that seem like they should be one way are not and others make no sense at all but it was never meant to be that way. It was always meant to protect the creators and share the information or creations, the digital age blew all that up and there are way to many people that chose to be ignorant rather than get educated, some chose to be ignorant to avoid the ramifications of their actions others attempt to be ignorant knowing full well what they are doing, from experience a lot of those are developers and large corperations.

    Read what I posted from the decision not as big as Morel but for two images it was a $40,000.00+ decision for the photographer against an online magazine that used many of the arguments that the developer used in your 160, and no I am not the photographer.

  15. Joh

    Lucia –

    As to “First” you assume way to much I am not trying to make it appear that I am making some important point.
    “What you stipulated only makes sense if big company bought the rights from the copyright owner” – Not entirely true small company X bought photographer Y out, big company A buys up small company X, happened quite a lot in the early 90’s a lot of smaller stock houses sold to bigger houses or lost in a takeover. Copyrights in some cases are very muddy.

    Lucia “Rather, what has been said is that when negotiating a settlement in good faith”, – Getty or anyone is not required to negotiate in good faith and who decides what is “good faith”. You don’t like what Getty does I get it but WHO is the arbiter of “good faith”?

    Lucia “Where do you get the notion that the ” their usual and customary license” was thousands of dollars? –
    I come up with $240.00 for one month web social one time usage U.S. market NO Commercial use. Like I said without the exact choices you used the another person will come up with a different number. Now if the image is used in a commercial manner with one month 1/4 page that fee increases to $1030.00 per image. I can get a more expensive license for that image if you like using the drop down menu.

    Lucia – “Interesting accusation about who doesn’t really understand licensing. Who in the world has suggested that “royalty free” means the images does not have restrictions? I haven’t seen any such claim anywhere” maybe not here in this discussion but it has been stated.

    The language you chose ““(“[A]n award of statutory damages will not depend upon a rigorous showing by a plaintiff of the extent of the defendant “s profits. Nonetheless, courts have broad discretion in determining the size of an award, and may require plaintiffs to offer evidence that sheds light on the facts pertinent to such an award.”) (internal citations omitted)
    In determining the amount of statutory damages, the court must assess a variety of factors. The blameworthiness of the defendant, including both the willfulness of the infringement and the degree to which the defendant cooperates in discovery during the infringement action, may justify an increase in the amount of such damages. ” was directly from the judge in the case not my imagination nor a paraphrase it was complete context and in order, and your interpretation is entirely incorrect the Judge found for the plaintiff on all counts and was specifically admonishing the defense for not providing the necessary response or removing the images when informed of the infringing action. The plaintiff was awarded $40,000.00+ and all attorneys fees for 2 images.

    The second part which you only printed a partial was the Judge describing how he was arriving at his decision. Again $40,000.00+ for two images plus all attorneys fees which included over $10,000.00 for DMCA.

    Lucia – “But if we use getty images customary licensing fee for this image, we discover 5* $55 is only $220, not the thousands Getty Images requested.” – again arguable since I was able to come up with two different fees, (using the Getty drop down), for a license and could spend all night coming up with many more.

    Lucia – It’s possible “everyone” somewhere on some planet claim this.” – My bad I used a generality and should have been more specific. It has been said to me on multiple times by multiple people to identify their mistaken belief of DMCA

    Lucia – “You brought up DMCA as your issue without specifying what you think the issue is. If this was the issue you had in mind: you are arguing with phantoms in your head not with anyone here”. I agree I did in the context of attempting to include that as possible explanation for the higher number that Getty asks for, I won’t do it again. Sorry it upsets you.

    Lucia – “As for Getty somehow “including” the idea that everyone somewhere holds this odd notion into Getty’ price calculations— uhmm… huh? How in the world should “everyone’s” (whose?) misconception about DMCA (which in no way binds Getty to anything and which notion Getty does not comply with anyway) affect the price Getty demands for their images? I can’t imagine any judge would buy a plaintiffs argument that because some fictional person somewhere might misundersatnd DMCA that means Getty gets to demand some inflated price for their images!” – I have no idea how you came to this conclusion and your interpretation is a little baffling to me it was not what I was saying, see above.

    Lucia – “Ok. But you still haven’t justified the claim that Getty Images demand is somehow “llow”. – Done it don’t want to belabor a point. I will only say when you chose the drop down menus without actually knowing how the image was actually going to be used the license option that you come up with or I come up with is only a best guess. But since the end user is commercial I believe that a commercial use license is more on point.

    Lucia – “I also engaged “Why do you think that the numbers in the letters are as low as they are and Getty is willing to get anything as a payment for the use?”. My method of engaging was pointing out this question has a “false premise” — that is you assume the payment is low when in fact it seem ridiculously high. But you don’t seem willing to click the link to the estimator tool to back up the implied claim the numbers are low . The link is there, you can use the pull down menus and see what you get. Did it and came up with much higher numbers than you did, as I said before I do not want to continue to belabor a point we shall to agree to disagree.

    Lucia – “It’s difficult to believe you really intended us to answer that. As far as I can see, this question represents an attempt to change the subject from the issue at hand (the use of this particular getty images image) to some other topic you might consider fascinating. – No diversion, you can bash on Getty until the cows come home but I have read Greg’s wish to change copyright law, that is what and where that question was directed and the side the Greg takes is very specifically, whether intentional or not what Google Facebook et al have advocated. You can choose to answer or not.

    Lucia – “As for the second question, I don’t know what the “with those facts” bit is supposed to mean.But the answer to “why would anyone, developer or site owner want to pay ANY amount for not doing anything legally wrong?” is simple. Time is money and court case are costly. Sometimes people are willing to pay to make nuisance suites go away even if those creating the nuisance by threatening to sue are 100% in the wrong. This happens lots of place– including dry cleaner, ice skating rinks and all sorts of other small businesses. You may be unaware of this, but that’s your naivetee, not ours. I hope this too answers your question. – And yet the party in this case pleads poverty, a financial burden and requests the amount be lowered while admitting that his employee actually took the images without permission and used them without permission and the end user is a commercial entity. (just in case I am being to vague being commercial removes the argument of “innocent infringement”).

    Jerry – “Daniel Morel sued Getty because they were selling his images. This is significantly different than a mom and pop shop mistakenly placing an image on a blog post”. – Your assumption is that the case at hand is a mom and pop blog but LCPC LTD has the meaning of Licensed Clinical Professional Counselor and the site in question is a commercial site not a blog post and offering up all matter of professional services. Now I will agree with you she is not offering up the image for sale at the same time anyone can take the image off of her site and perpetuate further infringements.

    Jerry – “Whether or not a business practice is legitimate is not determined by just me. But beyond the letter of the law, there are societal conventions. When a company bucks those conventions, people tend to push back”. -I agree, and for as many folks as you bring forward I can bring just as many that applaud Getty and wish them all the success in their endeavors, it all depends on which side of the copyright coin you fall on, the user or the creator. I will point out that there are just as many small to medium mom and pop photography businesses that are filing cases in court right now, most against mom and pop businesses for infringement. I will also say this there are many of those same mom and pop photographers that hate Getty and all the large stock houses because they have destroyed the photography industry in a race to the bottom, Getty et al have absolutely driven the price of average photography into the tank.

    Jerry – “In closing, I’d love to hear you elaborate on this: “Look just because you don’t like the business model and don’t agree with it does not make it illegitimate. If you continue to proceed down that path eventually your business model will be the next ox gored.” What the heck do you mean by that? – Do you mean this a rhetorical question? If not here is the requested explanation – once you succeed in stopping what you determine is an illegitimate business practice the next group that comes along may look at your business practice as illegitimate and then organize their like minded individuals to end yours.

    You all seem to think that I agree with Getty, I do not, but in this country they are entitled to do business in the manner that they see fit as long as they abide by the law. No legal entity or authority in all of the years that Getty has been doing what it does has determined that their business practice is illegal, or it would have been shut down with the volume of complaints received. Since their business practice is not illegal and no legal authority Is making a move to shut it down all I am doing is pointing out some of the flaws in your arguments. In the post for example that started this thread it is now known that the developer did violate copyright law by his own admission the end user was a commercial site therefore using the images in a commercial manner. Lucia used a license that was inappropriate for the actual use on the site, Jerry used a mom and pop analogy when the site was actually commercial. Whether Getty wants to forego a quick payday from the developer and go after the end user is Getty’s RIGHT you may not like it, you may not agree with it but IT IS THEIR RIGHT until the laws change. I do not think that either party, the developer or the end user has heard the end of this. Getty has an admission from the developer.

  16. lucia

    Joh

    “What you stipulated only makes sense if big company bought the rights from the copyright owner” – Not entirely true small company X bought photographer Y out, big company A buys up small company X, happened quite a lot in the early 90′s a lot of smaller stock houses sold to bigger houses or lost in a takeover. Copyrights in some cases are very muddy.

    By muddy, I assume you mean the large company might not even own the copyright. In such a case, the person they approach for a demand has every right to request proof of ownership and to refuse to pay. In any case, if the big company does somehow “own” this copyright (or imagines they own it), but through bad business practices cannot get their proof of ownership together, they would lose the case if they filed in court.

    I come up with $240.00 for one month web social one time usage U.S. market NO Commercial use.

    Like I said without the exact choices you used the another person will come up with a different number. Now if the image is used in a commercial manner with one month 1/4 page that fee increases to $1030.00 per image. I can get a more expensive license for that image if you like using the drop down menu.

    It wasn’t used on ‘social media’ like Twitter or Facebook. It was used on a blog. I chose, “publishing/editorial”, Editorial-Electronic. Circulation: up to 55,000, Distribution: Web. Duration 1 month. United states. That’s $55. The letters and details we have are consistent with the images use being non commercial. It was not placed in an ad, used to sell anything or so on. So, my choices seem to match the case at hand. You’ve got nothing to suggest otherwise– and Getty Images certainly supplied nothing to suggest otherwise.

    But beyond that, the fact that different prices can be obtained form the tool cuts against any argument that Getty can just demand an amount while withholding details on how they calculated their claim. And what people here are saying is Getty should justify it’s claim. If Getty thinks the use was commercial, they should say so during negotiations.

    On Facebook and Google: No. I’m not interested in a discussion about them. It’s not relevant to this post and your proposal to change the subject doesn’t interesting me.

    And yet the party in this case pleads poverty, a financial burden and requests the amount be lowered while admitting that his employee actually took the images without permission and used them without permission and the end user is a commercial entity. (just in case I am being to vague being commercial removes the argument of “innocent infringement”).

    So what? You asked why someone would be willing to settle a claim. I gave a reason. Greg has given another. There are numerous reasons one might be willing to settle a claim.

    As for just being commercial removing the argument of “innocent infringement”: bunk. I don’t know what cracker jack box you got your legal-creds from, but that’s not true.

    You all seem to think that I agree with Getty, I do not, but in this country they are entitled to do business in the manner that they see fit as long as they abide by the law.

    Sure. And others — like Jerry or Greg, have a right to criticize their business practices even if they fall inside some letter of the law.

    Lucia used a license that was inappropriate for the actual use on the site,

    Huh? Do you mean my choices were inappropriate when I got the $55 estimate. I think my choices were entirely appropriate given the text of the letter. You, on the other hand, picked a price that would be suitable for use on a broadcast medium like Twitter which doesn’t match the situation at hand. Moreover, if you (or Getty) thinks there is some debate over the base price, that only serves to prove Greg’s point which is Getty ought to be explaining how they come up with their claim. Getty refuses to do this, so shame on Getty.

    mom and pop analogy when the site was actually commercial.

    Your arguments might be better if you didn’t torture American idioms. Idiom alert: “Mom and Pop” refers to things like grocery stores, voice teachers, dentists and small businesses. That’s precisely what this is.

    Whether Getty wants to forego a quick payday from the developer and go after the end user is Getty’s RIGHT you may not like it, you may not agree with it but IT IS THEIR RIGHT until the laws change. I do not think that either party, the developer or the end user has heard the end of this. Getty has an admission from the developer.

    Of course Getty has a RIGHT to refuse to accept a settlement. But this RIGHT does not mean that a judge is required to consider their choice reasonable in the event they go to court. If Getty does take this to court (and likely the will not) then Getty will need to explain why they refused to accept the settlement and chose to sue instead. Most likely a judge will frown on the notion that Getty will only accept settlements if the person offering to make them whole is willing to fork over money without being provided proof Getty was injured or that Getty has a right to collect this settlement.

    Oscars’s car analogy is on point here: While a plaintiff whose care was damaged has a RIGHT to refuse a defendants offer to settle for $1,750 contingent because that settlement is contingent on being shown the repair bill from the body shop, and the plaintiff can sue instead, the judge is not likely to approve of the plaintiff’s unwillingness to show the defendant the bill for repairs. This might make little difference in a car damage claim– if the bill really was $1750, the judge is likely to aware that anyway– but in the process, the bill will be presented in court. Meanwhile, everyone will have fittered away court costs, and the judge might give the plaintiff a stern lecture about wasting the courts time and informing them they should have just shown the defendant the repair bill in the first place. (You can even see these dynamics in courtTV, which is not entirely real, but shares some elements with actual court cases).

    But in copyright cases, the judge does have discretion, I think one can be pretty sure this 2x or 5x multiplier rule of thumb you have in your head would vanish. Judges aren’t required to award any multiplier, and a judge who frowns on a plaintiff for being a butt head is likely to grant them the absolute minimum that is within his discretion: that would be 1x (not 5x) any cost the judge deems reasonable. Worse for Getty: The judge even has some discretion in deciding what type of “use” matches 55 views on a mom-and-pop type site. I think they are likely to pick the $55 value– although the value will be influenced by actual sales receipts Getty can produce for the licensing. And even worse for Getty: if the copyright were “muddy” as you suggest some are, the Judge might see the copyright itself, or the contract granting Getty the right to license flawed (as some have ruled in the past). In which case, Getty would not win at all– and might be required to pay the defendants court costs.

  17. Jerry Witt

    THIS:

    and this:

    is exactly why people like Greg and Lucia are involved with this issue. Using the law to extract money from uneducated individuals, while not acting in good faith, is the very root of the problem. Please note: the name of this site is GettyImagesMustChange.com.

    Just because an image troll is operating within the letter of the law does not mean their business practices are legitimate. Just like patent trolls, you can only play “gotcha” so many times. Eventually enough people get fed up and begin to take action; pushing their elected officials, boycotting the company that is doing the trolling, and alerting others.

    I 100% support creators and right holders getting paid for their IP. However I think if you ask 100 people, including the original photographer, what is a fair price for the 55 viewers of a small image on a mom and pop site, the number is going to be much closer to what Lucia came up with than what Getty was asking for.

    Lucia (and I) bet that this will not go to court. Joh seems to think it may and I am so hopeful that it does. The fact that the developer offered to make Getty Images whole and was rejected will look fabulous to the judge.

    1. Jerry Witt

      hmmm… the two quotes above should be:

      Getty or anyone is not required to negotiate in good faith

      and

      they are entitled to do business in the manner that they see fit as long as they abide by the law.

  18. Greg Troy

    Joh,

    Please do not put words in my mouth, that is not worthy of this discussion, I never said Getty would be breaking the law or any law I said multiple times that the discussion and negotiations must start with the end user and Oscar basically agreed with me.

    My apologies if you felt I was putting words in your mouth. I took your statement….

    There is no shortcut in the law, by the law Getty or whomever can ONLY deal with the end user period.
    Getty or whomever must as a matter of LAW deal with the end user, they have the option of letting it go or going after the infringer or anything in between they do not have any proof that the developer was the infringing party, (and the developer saying they did is inadmissible). Hence why they, by law, are required to deal with whomever they have proof has the image.

    It seemed to me with wording like “There is no shortcut in the law,…… can ONLY deal with the end user period……..Hence why they, by law, are required to deal with whomever they have proof has the image.” You are saying the law only allows Getty to deal with the end user. So I see emails where Getty is negotiating with the developer and offer to accept full payment from him to make Getty whole and clear the claim they would be violating the law. My statement was a paraphrase of what your statement seemed to me to be saying. Just as I am sure as in your reply to my article you said…

    This is why none of the “copyright trolls” as you so kindly put it do not accept anything from the developer.

    I do not believe anywhere in the article I called anyone a Copyright Troll. Do I think what Getty and McCormack are doing qualifies as being a Copyright Troll? Do I think what they are doing borders extortion? Yes, but other than one article other than this one, do I remember using the term when not quoting someone else. I am working to try and get these companies to act ethically and it is hard to win someone over to your side if calling them names.

    I’ll give you a great example, about a year ago over on the http://www.extortionletterinfo.com (ELI) forum Glen Carner owner of Hawaiian Art Network (HAN) and Copyright Services International (CSI) stopped in and started asking a lot of question about what would make the process better and people more receptive to the settlement demand process. We were very skeptical as we were receiving a lot of complaints about his letters and tactics mostly due to VKT images. Granted at the time he and VKT had sued Aloha Plastic Surgery who immediately filed a counter suit asking a lot of tough and uncomfortable questions. Many thought Mr. Carner was there just to try and improve his image because of the lawsuit but he really was trying to find something that would work for everyone. Shortly after this letter was given to us. Note not once does it use heavy handed bullying statements, artificial deadlines or threats of escalation right out of the bag.

    I am reaching out to you from Copyright Services International LLC on behalf of the photograghers Dennis Flaherty and Willard Clay. As I mentioned on the phone, we have found a photo of Mr. Flaherty’s on the XXXXXX section of XXXXXX that does not appear to have the proper licensing. We have also found a photo of Mr. Clay’s on XXXXXXX that does not appear to have the proper licensing.

    The specific image for Mr. Flaherty that I am referring to is “DF-VA0001791662-AR0106″ (#VA0001791662)” and is the seen on httpss:XXXXX

    The specific image for Mr. Clay that I am referring to is “WC-1-750393536-50DC-135″ (#VA0001810778)” and is the seen onhttpss://XXXXXXX. To help clarify, the image URL is : httpss://XXXXXXXX

    The photos looks great on the sites; however please understand that it is our responsibility to protect the rights of the photographers, and as such we are obligated to ensure they are compensated for their professional work. I’d like to emphasize that we would like to resolve this concern in an amicable fashion. Accordingly, we are offering an opportunity to retroactively license these images and provide release to XXXXXXX and its officers from all claims related to the above stated images.

    Our standard fee for the retroactive licensing of these images as used on the above mentioned websites is $1255. This represents the market value of these images that would be due if they had been licensed from the date of first use, without any fees or penalty.

    Simply removing the images will not provide release and only though retroactive licensing can release be given. The retroactive licensing agreement does not provide for future use, however we do offer future use licensing at fair market rates should you be interested.

    In support of the validity of our concern, I have attached the registration and an affadvit from the photographer Dennis Flaherty as well as the registration from the photographer Willard Clay.

    Please contact me as soon as possible to resolve this concern. We will provide an invoice (via Pay Pal) and signed release agreement for your documentation.

    Sincerely,

    Here we have no threats, no bullying, no artificial deadlines and no threats of legal action. We do have a proof provided without having to request it. The image appeared on multiple sites and the total amount requested put it in the range of about 250.00 per image. The images were of landscapes so we are not dealing with model releases so in my opinion I think that is a very fair price. Since Mr. Carner adopted this business model, and I assume he still is using it, ELI has not received one complaint or request for help over Glen Carner Letter. This is what I am working for, the artist’s rights are protected, the infringer (who was an innocent infringer) was treated politely and professionally and in such a manner the artist may have a new customer.

    Compare this to Getty who as you say…

    Getty or anyone is not required to negotiate in good faith and who decides what is “good faith”.

    ….and is show that they do not.

    As to your last question I feel it is kind of a moot question as the developer has admitted it and has tried to make it right by offering to pay the full amount Getty was asking. I will answer the question though, in the situation you described yes I think the developer as the owner of the company would be responsible. I also feel that his response should be taken into account as well just as there is a difference between innocent and willful infringement. An infringing image was place on a site without his permission or knowledge, when made aware he:
    1) Removed the image
    2) Investigated how it happened
    3) Removed the employee who did it
    4) Made it known to the rest of the employees if you do this the same will happen
    5) Searched to make sure all other images placed on website were not infringing
    6) Offered to make full payment on behalf of the client
    He did everything he could to make it right.

    Now let’s look at the other end of the scale. Getty v Virtual Clinics. Virtual Clinics (VC) is a web developer who made veterinary websites for their clients. They took images off of the net and used them on websites. When the end users were notified by Getty they said the websites were done by VC. After several of these sites were identified Getty sent a letter to VC. VC was very belligerent and refused to remove the images. They filed complaints against Getty with the Attorney General’s office. Getty sued them and as far as I can tell it is one of the most blatant cases of willful infringement I have seen. I think the end users who did nothing wrong and paid in good faith for the websites they purchased should not be punished and VC should pay whatever Getty can get out of them as they deserve it.

    I hope that this helps to clarify my stance and what I am trying to accomplish. Like Jerry said look at the name of the site. My other site where I am working on changing the law is http://www.CopyrightAntiBullyingAct.org , again the name says it all.

    Now my question to you, after reading everything and listening to our explanations do you that Getty is acting ethically (not acting legally) and do you think they should change their business model to something more like Mr. Carner’s new model?

  19. Joh

    Greg –

    I have already stated that I DO NOT AGREE WITH GETTY, “You all seem to think that I agree with Getty, I do not” (previous post). I also researched your name with copyright infringement, Lucia’s name the same way and Jerry’s name the same way and all of you come up in Google having used the term “copyright troll” hence why I used it in quotations.

    I do not and have never agreed with Getty, that being said since I do not write the paychecks and make the decisions there I do not presume to decide what works for them in business. I don’t feel the need to make everybody the same, (very boring world), or have them march to my tune, (I do not want that responsibility). To be absolutely and brutally honest with you I truly care about legal not ethically. Nothing in this world is ethical and I have a hard time with that word, what is ethical to you is not ethical to me or 100 other people and what you feel is ethical may take away my legal rights. (“ethical” is why I made the comment to Jerry regarding, “goring your ox”, once you start down that path everyone has a right to say that your business model is not “ethical”).

    Does that answer your question? I do not agree with a lot of things in this world, and I most certainly do not try and change everything I disagree with, I have enough issues to deal with in my own life and business, that worrying about how someone else chooses to ruin their business is not my concern. If however if it begins to impact mine I will carefully examine the FACTS and review the law and choose the best course of action.

    What I have been trying to point out and apparently unsuccessfully is that one model is not universal. How you do business will not work for another person in your same field and how one company sends out letters is not how another company feels will work for them. I keep pointing to their RIGHT, it is any companies RIGHT to be stupid, ignorant, idiotic and down right moronic. It is also a their RIGHT to be just the opposite.

    I will take the idiots at Prenda as an example, they ran what was arguably the most successful extortion model and in their case, true extortion, they have lost or about to lose everything and will probably end up wearing pinstripe suits, and not the fashionable ones. DOJ has a criminal complaint open on them on RICO statues and that will be an easy case to file and win. Prenda was stupid, idiotic, arrogant and down right moronic, it has also taken less time for them to fall than Getty. All that they own will be sold to try and make their victims whole.

    Do I believe in Karama you bet your sweet ass I do and I also believe in what goes around is what comes around, will Getty trip, they already have, could Getty end up like Prenda, NO, they stay within the law. Will Getty change, probably, they are losing photographers, the backbone of the business, they are losing lawsuits and will continue to do so. A corporation of Getty’s size has time to adjust and since the CEO has a board to answer to the board will force a change but only when it feels threatened. (You might, and I emphasize might, give them heart burn but not of the magnitude to force a change).

    I understand your anger, your unhappiness ….., (pick and insert your adjective), but as I said earlier, if I feel what someone is doing will affect my business and livelihood then I will research and react, your wish to change copyright law to be less bullying, which by the way is not how the majority operate but only how a minority do, and to change how someone may enforce THEIR COPYRIGHTS is my issue. As I stated in the beginning I have been in the copyright industry for twenty years and the changes you are proposing can have and would have detrimental effects on my business, again that is my issue. To answer the impending question, do I operate like Getty, in my opinion no, but I am sure that there are others out there that will say I am worse. (Opinions are like southern body parts, everyone has one).

    Universally, to a person, everyone that I have encountered that has misused someone’s copyright all SCREAM the same thing, “I did nothing wrong”, “I only used Google Images”, “I don’t agree with the price”, “I don’t think I should have to pay” and I can go on, copyright is one of the oldest laws in the U.S. and one of the least changed and for a reason. We can hash and rehash that out until the cows come home but I do not wish to.

    The internet and what has gone on there and the FACT that people place less value on the work of a creator these days is all I care about, people in general, when asked across this nation if what is on the internet is free answer with a universal, “yes”, and when asked to place a value on the same objects, be it books or photographs or art, routinely devalue it. Partly do to ignorance and partly because of what people perceive of items place on what they believe is a free platform. (I have strayed far afield here I will bring myself back to the matter/subject at hand).

    You want a business and how copyrights may be enforced to change, in essence you want a change in the law and you have as much said so, ((yes, I read other things than just this right here), I pointed out some of my predictions early on, no one including you decided to comment on them. I stand by them, I have been involved in that testimony and talked with the politicians who are involved in those committees and feel pretty comfortable with what I predicted. The change coming is based on what we in the industry and what you as a consumer have cried out for, LOC has heard and reacted and placed the proposed changes before the legislature. I do not think it was what you have/had in mind though, it will make it easier on one hand for a small business to defend themselves if they think they did no wrong, but, (there always is), it may be harsher on the infringer, and it will be much easier for companies like Getty et al to bring an inexpensive suit against someone whom has basically infringed. (I say that with the definition in mind as defined in 17 U.S.C. 501 et seq. as well as the DMCA 1202 (a) and (b).

    For all other interested parties whom decided to do a cross on me I had fun. I never said a “mom and pop” was not a business, I used “mom and pop blog”, “blog” is a very defined term, -1. a personal website or web page on which an individual records opinions, links to other sites, etc. on a regular basis. – don’t believe me look it up. That is why I pointed out “commercial” I visited the website in question, it is a small business, it is not a “blog” as defined, it is a commercial website. Licenses for a blog are much cheaper because on a true blog there is NO COMMERCIAL GAIN. Arguably a true blog could even come under “fair use” rules, and not require a license at all.

    Have fun all

  20. lucia

    Joh

    I keep pointing to their RIGHT, it is any companies RIGHT to be stupid, ignorant, idiotic and down right moronic. It is also a their RIGHT to be just the opposite.

    Everyone agrees with you that people often have a RIGHT (all caps) to be ignorant, idiotic and moronic. It’s also our RIGHT to describe what they are doing, say that it is stupid, ignornant, idiotic, moronic and unethical. Your telling us they have a right to be morons is hardly a rebuttal to our saying they are morons.

    We also have a perfect right to say what they are doing is unethical even if you prefer not to make ethical judgements.

    your wish to change copyright law to be less bullying, which by the way is not how the majority operate but only how a minority do, and to change how someone may enforce THEIR COPYRIGHTS is my issue.

    If the it’s true that only a minority of businesses participate in copyright bullyng (and I believe this to be true), then the changes Greg proposes will only affect a minority of businesses. I happen to agree with Greg that certain practices should not be permitted and the law should be changed to outlaw them.

    your wish to change copyright law to be less bullying, which by the way is not how the majority operate but only how a minority do, and to change how someone may enforce THEIR COPYRIGHTS is my issue

    Changes in copyright would benefit some and harm some. That by itself might explain why some would prefer one system to another, but it doesn’t tell us which system is most just and fair. It does not tell us what the law should be.

    Unless you give details, it’s impossible to know which requested changes bother you nor to determine whether we think you are a copyright troll or whether you are standing up in a fair way.

    To answer the impending question, do I operate like Getty, in my opinion no, but I am sure that there are others out there that will say I am worse. (Opinions are like southern body parts, everyone has one).

    Unless you describe what you do, it’s impossible for me to begin to say whether I think your behavior is worse than Getty’s. Maybe it is; maybe it’s not.

    I can say that if you do things I think are worse than Getty, the I would advocate changing copyright law to prevent practices you indulge in. Since we live in a representative democracy, even if opinions are like southern body parts, opinoins still affect votes. Greg, Jerry and I would have ever right to campaign for changes and would do so no matter how often you suggested opinions are like unsavory body parts.

    Universally, to a person, everyone that I have encountered that has misused someone’s copyright all SCREAM the same thing, “I did nothing wrong”, “I only used Google Images”, “I don’t agree with the price”, “I don’t think I should have to pay” and I can go on, copyright is one of the oldest laws in the U.S. and one of the least changed and for a reason. We can hash and rehash that out until the cows come home but I do not wish to.

    Sure. And they can present these exact same points in a non-screaming point during a law suit and… guess what? The judge will listen to them and take them into account when coming up with judgments. The judge will not just grant $150,000 judgements for uses of thumbstamp sized images that appeared in obscure nearly untrafficed websites that the copyright owner did not even register prior to filing suit and so on. In fact: the judge may decide that they person who you characterize as “screaming” actually did nothing wrong. He may deem the price the plaintiff ask is ridiculous. Judges do do this.

    I happen to be of the opinion that the type of letter Getty sent me should be prohibitted. Among other flaws (that were obvious to me after research)

    1) I hyperlinked the image. This means there was no “copying” by me and so violation according to circuit court rulings. That this was hyperlinked should have been evident to Getty’s crawler which can easily be programmed to read the html of the page and load the image itself.

    2) Getty’s licensing agreement with the copyright owner — if it existed at all– was either flawed or not enforced by Getty against the copyright owner. Specifically, the heirs were distributing the image for free on their own site without any restrictions. So, in fact, the copyright owner were handing out licenses for this specific image at photo-shelter, with language that said downloads were free and stating one could use them “for personal use”. Getty can only enforce a copyright for a third party if they have an exclusive agreement to do so. The fact that the authors were granting licenses on their own means Getty did not have an exclusive license– or at least the copyright owners weren’t behaving as if they’d granted such a license.

    There may have been other problems with the request. Among those: the price requested was ridiculously high even if I had copied or Getty had been a proper representative for the owner. (Note: the price charged by the owners was — quite literally $0. 5*$0 is zero. For that matter 5,000*0 is 0.) Searches at the copyright office also strongly suggest that particular image had never been registered. While copyright does exist despite this, lack of registration meant that any suggestion of ultra-high awards to Getty based on statutory damages were mere fiction– and in this case fiction designed to scare some one into paying an unduly inflated price.

    Yet, despite these obvious flaws, Getty sent a heavy handed letter demanding lots of money and threatening stupendous levels of potential liability.

    The internet and what has gone on there and the FACT that people place less value on the work of a creator these days is all I care about

    To a large extent, copyright law isn’t going to change this. There are too many things that have changed the value of work of a creator. These include digital cameras, cameras in telephones and so on. If you go back to the 1920’s photographers product were often valuable not because of copyright per se but because (a) few people owned cameras and dark rooms, so they would hire the few people who did own them and (b) reproducing the photos was expensive. People valued having photos of their family not because of “copyright”, but because people wanted photos of their family and photographers were the only ones who could supply these.

    Many photographers who deem themselves “creative” are going to have to get used to the notion that the vast majority images are not very valuable. Given the choice of not decorating their facebook page at all and paying $5 to plaster a “cool” image on the page, most people will not plaster the image on their page. So, unless an images is extremely special to a particular individual, it’s likely worth nothing. For photographers the sad fact is most ‘pretty’ images are worth virtually nothing.

    On your idiom useages, you should be aware that people have text search tools on their browsers. You are now claiming

    I never said a “mom and pop” was not a business, I used “mom and pop blog”,

    Well, yourself defense is wrong on two counts. What you actually wrote was:

    Jerry used a mom and pop analogy when the site was actually commercial

    This sentence implies that using a “mom and pop” analogy is incorrect if the site is commercial. That’s wrong — and you did imply that “mom and pop” does not correspond to commercial operations. Also: you did not use the term “mom and pop blog” in your criticism of Jerry. (Moreover, Jerry didn’t call it a blog either. He called it a “mom and pop site”. So spew all the definitions of blogs you like, it’s a pretty lame way to try to defend your claim that you din’t say “a “mom and pop” was not a business” .

    In anyevent, the notion that blogs cannot be operated by businesses is absurd. You’ll find The New York Times blog here. The New York times is a business. Many blogs are run by businesses and are totally commercial. Heck, pro-blogger is a blog giving people advice on how to run blogs that make money. It’s a business as are many of the blogs that take Darren’s advice. If you find a dictonary definition that suggests these aren’t blogs the dictionary is mistaken.

    Licenses for a blog are much cheaper because on a true blog there is NO COMMERCIAL GAIN. Arguably a true blog could even come under “fair use” rules, and not require a license at all.

    You have seam to have a weak grasp of so many things including:
    (1) whether the definition of a ‘blog’ tells us anything about whether something is commercial. (Many hobby blogs are non commercial, but tons of blogs are commercial.)
    (2) Whether commercial gain means that fair use is not possible. Newspapers run advertisements and can make lots of money. Parody albums can make lots of money. All can copy under fair use– provided the copying meets the four factor tests. Lots and lots and lots commercial uses can be “fair use”.

    I assume when telling us you said something about your “predictions’ you are referring to your prediction about small claims for copyright as discussed at the USCopyright Office.
    httpss://www.copyright.gov/docs/smallclaims/

    You wrote

    I predict the congress will adopt the recommendations from the copyright office for a copyright small claims court, if you do not like thing now wait until that begins, it will be much more difficult and costly on the folks that take without permission.

    I’m not sure why you think any of us would object to a ‘copyright small claims”. Presumably, a copyright ‘small claims’ would be limited to “small claims”– just as normal small claims cases are. In Illinois, the upper bound for ‘small claims court’ is $10,000– not $150,000 or even higher. Many of the people being threated with the possibility of $150,000 judgements for having hotlinked a tiny nearly valueless image the owner never registered would be delighted to be hauled into small claims court to present the case to an objective third party rather than having someone like Getty keep insisting on ridiculous prices while refusing to prove they have any right to collect. The small claims avenue would mean someone like Getty would be required to back up their claim– this time by presenting evidence to a judge. Getty defending their claims by providing evidence is precisely what people are suggesting they should be requried to do.

    Meanwhile if a small claims court existed, a defendant need not worry about the nearly unlimited upper bound in damages intimated by Getty in their letters.

    Oh.. I realized I have to go back to one of your attempts at rhetorical flourshes:

    one of the least changed and for a reason

    Copyright is one of our least changed laws? The current act is httpss://www.copyright.gov/title17/ dated ‘1976’ and many changes have been made since that time. There were revisions in 1988, 1994, 1998…. and more!

    If you mean the clause in the constitution granting Congress the power to create a copyright act is unchanged, sure. But many clauses in the constitution are unchanged. For example: the commerce in the constitution hasn’t changed. But lots of laws governing commerce have changed– so have specific laws governing copyright.
    I’m not sure what point you were trying to make with that — nor what “reason” you had in mind. But these rhetorical flourishes of yours can be rather amusing.

  21. George

    Consider contacting the Attorney General for the State of Washington and filing a complaint against Mccormack:

    httpsss://fortress.wa.gov/atg/formhandler/ago/ComplaintForm.aspx

  22. Toby Barnett

    Just received our 2nd copyright infringement claim by McCormack and Corbis.

    The 1st time, they were told to fact check better before filing false claims. The website McCormack and Corbis claimed the images where being used on were owned by someone else, and not myself.

    June 8, 2015’s is the same canned letter as the previous with no facts of the file being infringed upon and where it is specifically located.

    Today I called their office requesting a call back while stating I think their tactics are extortion.

  23. Greg Troy

    Welcome to the site Toby,

    I agree and it is my opinion that the way McCormack Legal and others handle these demand letters are unethical since documented proof of claim is never provided. You will be told that proof showing that Getty has exclusive rights to the image and the legal right to collect damages on behalf of the artist will only be provided to you when you are sued. This is in no way shape or form good faith negotiating. Anyone should be willing to provide on demand proof of claim, how the amount was reached and they can legally collect on behave of the artist. If you hit someones car and said you would pay for it out of your pocket and they brought you an outrageous estimate you would not pay it without a detailed report on how the number was reached would you?

    You may wish to consider letting them know that until documented proof of claim is provided, negotiations will not proceed and any further correspondence requiring you to reply without the proof of claim being provided will result in you billing them an hourly rate of 150.00 per hour.

    You may also wish to consider filing a Bar complaint against whoever is sending the letters, if it is a paralegal then file it against McCormack as he is responsible for everything coming out of his office.

    1. Toby Barnett

      Thanks and its good to see that I’m not the only one being sent settlement letters and accused of pilfering other’s intellectual property.

      I like your idea of sending them bills reflecting my time spent on these accusations and a given rate. Last time, when I threatened legal action of my own, the letter’s form McCormack ceased yet it doesn’t appear they even think these things through.

  24. Russ

    httpss://www.latimes.com/business/hiltzik/la-fi-hiltzik-getty-copyright-20160729-snap-story.html

    httpsss://www.techdirt.com/articles/20160729/13362135105/getty-makes-nonsensical-statement-photographer-carol-highsmiths-lawsuit-falsely-claiming-copyright.shtml

    httpss://hyperallergic.com/314079/photographer-files-1-billion-suit-against-getty-for-licensing-her-public-domain-images/

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>