Getty Images / Pinsent Masons - Copyright Claim

[Deleted member 59730]

My guess is that Getty and Corbis have been going after certain people. The reason we don't see these cases in court is because they pay as soon as they talk to a proper IP lawyer. The types of cases are likely to be the ones like the one CopyrightAction quotes; where the web designer goes public and says he will fight the case. In the event they, the infringers, wouldn't let him.

I know of a photographer who got $4,200 via Getty over one infringement. At 30/70% split in Getty's favour that makes a very big settlement.

 

[bdw]

I know of a photographer

One photographer? I know of many thousands who have effectively told them to eff off and they did nothing about it - nothing. Statistically what does that prove?

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[Deleted member 59730]

One photographer? I know of many thousands who have effectively told them to eff off and they did nothing about it - nothing. Statistically what does that prove?
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I know very few Getty photographers. Of the ones I have been able to contact via photographer forums I found that 14 of them had been asked for legal affidavits prior to legal papers being served on infringers. The one I quoted was one who provided a concrete figure. If I scale up my very small sample to the total number of Getty photographers there must have been many hundreds, if not thousands, of photographers involved.

Why would any infringer want to risk thousands of pounds by going to court? The most likely explanation is that they pay up.

If you know many thousands who told them to eff off you must have many more friends than I.

What I have noticed is that many who make a lot of noise on forums never come back to admit the outcome. They just disappear.

 

[OldWelshGuy]

In most cases they disappear because nothing has happened since the last time they shouted.

Hopefully within the next 12 months this whole speculative invoicing system will bbe outlawed, and the Imaging companies can fall into line with the rest of the law and either put up or shut up. Alleged infringers can be contacted about the breach, they can make an offer to settle, and then if they don't, the IP rights holder (or their agent such as Getty etc) can issue proceedings.

 

[bdw]

Why would any infringer want to risk thousands of pounds by going to court? The most likely explanation is that they pay up.

Many of them cannot afford to pay and did not pay. Had any of them being taken to court we would have heard about it.

If you know many thousands who told them to eff off you must have many more friends than I. What I have noticed is that many who make a lot of noise on forums never come back to admit the outcome. They just disappear

OK I do not know them personally but I have communicated with thousands of people in forums. If there was an outcome from any of them who had refused to pay then I think I would have been made aware of it even off the record.

Apart from the JC Coles case (which had other issues) there have been no cases where Getty have taken the action they threaten. I have said this so often and no one has ever given me a plausible reason. Please understand that. There has not been a single case of anyone losing a case in court.

Can I ask you for your opinion on the following? The imaging companies have been issuing threats of court action using terms like "final 7 or 14 days" before action, etc. Do you honestly believe that all of the people who have received these threats have paid up? Well actually we can forget that one because we can already confirm that many of them have not.

So can you give me one good reason why the imaging companies despite their threats (and all the weight of the legislation that they tell us they have behind them) have never actually carried out their threat? Why wouldn't they when they have such a rock solid case. Is it because they don't want the money?

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[Deleted member 59730]

There has not been a single case of anyone losing a case in court.

The big problem is that there is so little copyright case law. However the reason is quite simple. It is so cut and dried that most people would settle rather than have a futile and expensive court case.

So can you give me one good reason why the imaging companies despite their threats (and all the weight of the legislation that they tell us they have behind them) have never actually carried out their threat? Why wouldn't they when they have such a rock solid case. Is it because they don't want the money?

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Getty never wanted do do this in the 1st place. It was their photographers who pressurised them into it. Getty have already said they don't want to take people to court. Its their option to maximise income for themselves. Without knowing anything about it I'd say that Getty are laughing all the way to the bank; the majority of people pay up, the majority don't do it again, many now buy from iStock and other cheap Getty brands, many are learning about copyright without ever thinking they needed to. For Getty its win, win, win, win.

 

[bdw]

the majority of people pay up

You don't know that and neither do I but I would say that it is highly unlikely. The majority of people are perfectly capable of finding their way on to one of the many forums like this one where the true facts are being discussed.

I would think you would have to be daft to pay anything after becoming aware of the facts.

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[Deleted member 59730]

You don't know that and neither do I but I would say that it is highly unlikely. The majority of people are perfectly capable of finding their way on to one of the many forums like this one where the true facts are being discussed.

I would think you would have to be daft to pay anything after becoming aware of the facts. .

Facts? The various forums I've seen, including this one, are mostly full of myths which are about as believable as faeries at the bottom of my garden.

Getty are still sending original letters. According to you they are getting no response. Why, then, are they still sending them?

 

[bdw]

Sorry? When did I say that they were getting no response?

 

[mgduncan]

I havn't read through all 25 pages of responses so i apologise if im repeating what anyone else has said.

The point has been made that ignorance is no defense which is right, however Im 95% sure that the copyright violation is committed by the creator of the works - the person who designed your website, regardless of weather they are still trading or not. Do you have a copy of your contract with them?

Remove the image, reply to their letter explaining the circumstances and see how you get on.

Someone suggested shutup shop and start again - very bad idea please dont do this.

 

[bdw]

The point has been made that ignorance is no defense which is right, however Im 95% sure that the copyright violation is committed by the creator of the works - the person who designed your website, regardless of weather they are still trading or not.

The website owner is solely responsible for the website content. He or she would have to take a separate action against the designer if the designer had infringed anyone's content.

Remove the image, reply to their letter explaining the circumstances and see how you get on.

This case has been going on for years and this has been done many, many times in the past. The imaging companies ignore it and persist with their demands in all cases that I am aware of.

 

[OldWelshGuy]

As mentioned above, the Intellectual property laws are not as black and white as some feel.

YES the designer is the one responsible
YES the designer is the one who should ultimately pay for the damage he has caused (or his professional indemnity insurance etc)

The problem is (as pointed out by BDW) The site owner is the one who is breaching IP rights, and as such is the one the IP rights holder (or representative) will need to chase after. Certainly the Site owner can haul the designer into court co-named on the suit, but that might not help as there are 2 different cases here.

Honestly, as BDW says, some of us have been around this for a long time, and I don't think there is a single sane person who has been involved, that does not recognise that the rights of the IP holder have been breached, that could never be disputed, because their itmes are being used without their permission.

What HAS been disputed is a raft of other points, such as due process, tactics, costings, PROOF of ownership etc.

 

[The Resolver]

Re: the exchanges a few pages back between OWG and VeryMark on court jurisdiction and procedure, the announcement two week's ago by Ken Clarke that the Jackson Review on Costs recommendations are being accepted in full means that IP claims less than £5,000 (which covers most Getty claims) will be heard at small claims track level with no cost liablity for the defendants.

This is hugely important for a number of reasons:-

1. Getty will know that the legal cost they will incur (whichin many cases will be greater than the amount sought) if they sue will not be recoverable hence there will be a greater need to resolve without litigation (whilst retaining the right to sue the worst infringers to send out a message) .

2. Clarke also announced that the small claims track limit will increase anyway to £15,000 so even more Getty claims will be sct'd.

3. Clarke also announced that they are introducing compulsory mediation for sct cases.

For those who are convinced that Getty is all threat and no action, whilst the irrecoverability of costs may deter issuing, the compulsory mediation will be a counter-balancing factor, since issuing will no longer mean having to face any legal challenges in court. SC mediation - which is free- has been highly successful, although they will need training in IP or maybe a specialist mediation panel will be used. I suspect the outcome will be Getty issuing without representation in simple cases.

 

[OldWelshGuy]

Thanks Graham, this is what I was getting at, it is good news all round really as it means the people benefiting will be those meant to benefit, and not lawyers.

 

[ORDERED WEB]

i can see all sides of this

On the one hand Site owners need to ensure the provanance of all of the aspects of the site - that is code, modules, plugins, images etc - my experience is most people cant be asked

On the other hand designers need to ensure they are using licensed images and code correctly, and furnishing the end client the correct details

On the other, the photographers sending images to an image library need to be careful not to have already used the image elsewhere, and sold the image elsewhere

On the other, the image libraries really need to be more careful with how they release the small images to designers to make up mock-ups - they really should be watermarked

There are a lot of very innocent scenario's where the end user lands up with a heavy handed letter, and wonders why

 

[globalee]

Re: the exchanges a few pages back between OWG and VeryMark on court jurisdiction and procedure, the announcement two week's ago by Ken Clarke that the Jackson Review on Costs recommendations are being accepted in full means that IP claims less than £5,000 (which covers most Getty claims) will be heard at small claims track level with no cost liablity for the defendants.

This is hugely important for a number of reasons:-

1. Getty will know that the legal cost they will incur (whichin many cases will be greater than the amount sought) if they sue will not be recoverable hence there will be a greater need to resolve without litigation (whilst retaining the right to sue the worst infringers to send out a message) .

2. Clarke also announced that the small claims track limit will increase anyway to £15,000 so even more Getty claims will be sct'd.

3. Clarke also announced that they are introducing compulsory mediation for sct cases.

For those who are convinced that Getty is all threat and no action, whilst the irrecoverability of costs may deter issuing, the compulsory mediation will be a counter-balancing factor, since issuing will no longer mean having to face any legal challenges in court. SC mediation - which is free- has been highly successful, although they will need training in IP or maybe a specialist mediation panel will be used. I suspect the outcome will be Getty issuing without representation in simple cases.

has this been passed as Uk Law??

 

[The Resolver]

has this been passed as Uk Law??

Not yet. The Government only announced two weeks ago that it was going to swallow Jackson whole. Lawyer groups are threatening a bit of a protest but somehow I do not see marches/riots/solicitor invasion of Hammicks legal booksllers or kettling of barristers in Lincolns Inn Fields. Then again the complaints are not focused at those items I have highlighted.

 

[globalee]

thanks for getting back to me so quickly, they are really stressing me out with all their (i)-legal posturing and harassment. I can really understand how people snap in such circumstances.

 

[OldWelshGuy]

how are they harassing you? are they telephoning you?
You have the right in law to tell people how and when they are allowed to speak to you. You have the right to demand written format only. if they break the rules, you can bring the law crashing down on them.

 

[lovewow]

Therefore it would appear that although I do not think at can be disputed that in these unfortunate situations, damages are claimable by Getty, it is my non-legally trained opinion that the damages are limited to what it would have cost to purchase the licence in the first place and not the extortionate amount that Getty Images and Pinsent Masons try to scare and bully people into paying.

 

[JimMc]

How is Jackson going to effect Scotland

 

[Jonathanus]

I am not sure of their entity as they were not uk based.

 

[VeryMark]

The effect of the Jackson Review in Scotland is an interesting question I think.

Primary legislation concerning copyright and other intellectual property rights applies to the whole of the UK but Scotland has its own practice and procedures as to the conduct of legal proceedings.

 

[bdw]

The effect of the Jackson Review in Scotland is an interesting question I think.

:| I'll bet it is. Can someone let us in on the secret? :|

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[Beardeye11]

I also received letters (and a phone call) from Getty's "Copyright Manager" a couple of years ago. They were duly ignored and the issue seemed to have passed, but I have now received a letter stating that the issue is being passed to their solicitors- Simons Muirhead and Burton. They are claiming something like 13k.

The background is that an independent website designer, who has since moved abroad, uploaded the images to the site. When the first Getty letter was received the images were immediately removed. As with many others I was totally unaware that Getty's copyright was infringed, but i have no recourse with the web designer now.

I would be grateful for advice that anyone can pass my way. I did speak to IP solicitors originally but do not want to pay their fees for fighting this, so would prefer to do so alone, if possible.

I have read the whole thread and see that there are differing views as to whether "ignore" or "respond". As the matter has now been sent to solicitors i am inclined to negotiate and finalise the issue, as the amount claimed is pretty distressing.

I am also happy to share information/chat with others in a similar situation.

 

[bdw]

Yes, it can be very distressing, especially when you are not really guilty of any offence other than trusting the designer to do things properly.

Firstly I have to say that it has to be your decision whether or not to pay up. All we can say is that there is NO evidence to suggest that Getty or their agents are going to carry out their threats. In actual fact there is more recent evidence to suggest that the courts are taking a dim view of company's using these tactics. This case is in the USA but there is nothing to suggest that they would be treated any more sympathetically here in the UK. Here's a similar decision from a UK court.

Unless you have done something blatant and outrageous with regard to copyright infringement then it would seem that you have no more chance of being taken to court than the many thousands of others who have refused to pay. From what you have told us your case does not seem blatant.

I am not a lawyer (and the following has been said many times before) but the smart money is on Getty's agents being unwilling to test this in court. If they do there is every chance that the judge will treat it the same as that in the links above and the gravy train will be derailed forever. Meanwhile they are happy to pick the tidy sums that they are getting from those who have been frightened into paying. So basically it is your call.

No doubt a few members of the photographic community will be along here soon to add to the scaremongering. If they do come along ask them to disprove anything that has been said above.

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[OldWelshGuy]

No doubt a few members of the photographic community will be along here soon to add to the scaremongering. If they do come along ask them to disprove anything that has been said above.

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YOU CAN BET ON THE ABOVE if form is anything to go by

Tis a mess, and of course with ACS law going bankrupt as a result of their 'speculative invoicing' practices and mishandling of the situation, it is safe to say that there will be no 'speculative court cases' from getty etc.

My guess is that they will, every now and again, take to court someone who the KNOW will settle, so they can get a rubber stamp (as per JA Cole) but i don't think we will now see wholesale litigation, in fact i think the opposite might well be true, with a class action for harrassment being taken out.

 

[Beardeye11]

Thanks for the replies guys. The ACS case is interesting and should increase bargaining power if we do respond.

 

[MASSEY]

If you respond you are probably going to just get spammed even more by them asking you for money.

 

[The Resolver]

As the matter has now been sent to solicitors i am inclined to negotiate and finalise the issue, as the amount claimed is pretty distressing.

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers. PM me if you want to add your case.

 

[bdw]

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers.

Interesting. Perhaps you could ask them why they are harassing people by issuing threats they have no intention of carrying out?

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[UKSBD]

Interesting. Perhaps you could ask them why they are harassing people by issuing threats they have no intention of carrying out?

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Jobs for the boys?
http://www.lawgazette.co.uk/news/unemployment-rate-among-solicitors-climbs-400

 

[OldWelshGuy]

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers. PM me if you want to add your case.

When you say 'Getty's lawyers' are you referring to multiple companies or one of their lawyers, as it appears getty have moved away from Pincent Mason to a new bunch (according to the post above).

BDW makes a point above, and it is something that i have also stated many times. They are issuing threats, and by law they are not allowed to issue a threat of action, then not take that action, but take another action.

I think that what people should now start doing is STOP talking to them, and START complaining to the law society with regard harrassment. After all making a threat of action, and not following it up but taking DIFFERENT action IS harrassment and not allowed

 

[The Resolver]

Yes, OWG, I meant PM - don't know they have withdrawn from them.

What would be unlawful is repeatedly threatening to issue proceedings that have absolutely no basis in law in order to support a demand. It cannot be unlawful to not issue proceedings that have some basis of argument in their favour.

Don't forget those who settle will not be visiting UKBF so we may see a somewhat skewed perspective here. I have previously mentioned here that any first instance proceedings will not be published. So absence of evidence (of proceedings or settlements) is not evidence of absence.

 

[bdw]

I have previously mentioned here that any first instance proceedings will not be published. So absence of evidence (of proceedings or settlements) is not evidence of absence.

Yes Graham and I have previously mentioned that in the age of the Internet and with the high profile that this case has, there is no way (IMO) that this would or could be kept hidden. I would also think that it would be in the imaging companies best interests to publicise these events to frighten more people into paying.

There are also other photographic forums on the Internet that would love to be able to cite cases like this.

 

[bdw]

It cannot be unlawful to not issue proceedings that have some basis of argument in their favour.

I am not so sure because the UK Harassment Act clearly states ...

(1) Any person who sends to another person
(a) a letter, electronic communication or article of any description which conveys
(i) a message which is indecent or grossly offensive
(ii) a threat or
(iii) information which is false and known or believed to be false by the sender or
(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

In the vast majority of cases they are not issuing proceedings. They are issuing threats and if it can be proven that they have no intention of carrying out these threats (plenty of evidence of this) then would this not be harassment as defined above?

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[OldWelshGuy]

Graham the problem here is that getty have passed these cases to debt collectors, they have then passed them to solicitors who are acting as debt collectors.

We have here a crossover of multiple pieces of legislation, and added to this we have the spirit of legislation. What they are absolutely not allowed to do is behave in the way they are currently behaving.

The Administration of Justice Act 1970 S.40 makes it a Criminal Offence for a creditor or a creditor's agent (often a debt collection agency) to make demands (for money), which are aimed at causing 'alarm, distress or humiliation, because of their frequency or publicity or manner'.

Some important words bolded. ALARM, DISTRESS, FREQUENCY. interestingly frequency is used, and my understanding is that this can be taken to mean poor regularity. e.g. they send a letter that threatens court action in 7 days. then in 7 days nothing happens. Keep in mind here that by NOT replying it should be assumed that the accused has opted for court actiuon to proceed as per the contract offered within the letter. NOTHING HAPPENS. 12 months later another letter bolt from the blue, telling them that another £300 in costs has been added and that court action will be taken within 7 days. the guy WANTS to go to court he has TOLD THEM to take him to court or go away!

The above scenario has been repeated hundreds (and i mean that literally) of times.

SO. safe to say that they are breaking the above act, the only question is whether or not the act applies as no credit exists (or does it?) if getty are attempting to put in place a unilateral contract, then that would possibly be deemed as a debt. SURELY it isn't legal to harrass someone to send you money you do not owe?

Getty & PM can't have it all ways. PM (and all solicitors) MUSt adhere to the solicitors code of conduct 2007, and it is clear here that they are not, after all they have clearly in black and white stated a course of action that they will take, but then failed to take.

It isn't and hunky dory as many would have you believe, I get emails asking about this constantly (as does BDW) dfue to both our long standing involvement in the situation via forums.

I like many want to see someone grasp this nettle and deal with it. I have no part in this as i have not received a letter, and ironically enough buy my images from istock, so if I did get a letter it would be dealt with instantly.

many others want an end to it, they want it dealt with, but getty etc refuse to bring matters to a head. and I am certain that in all the cases I have liaised with, the ONLY cases closed are where they have settled. which to me indicates that it is about frightening people into settlement rather than following the law.

The above statements and citations point out where getty and its representatives are flouting the laws.

 

[OldWelshGuy]

corss posted with BDW above!

 

[davek17]

Hi there

I used to run a sports statistics website and we bought news/images through a well known sports news provider. As part of this we got images that were often from Getty's, they watermarked them digitially was what I was told which is why they can find them electronically.

We were totally legitimately paying for these images but we had an email every other month demanding payment for the use of them the whole time we used them, despite us having actually paid for them. When we emailed them, they never knew what we were on about, we were told to just take the image off the site and nothing would happen.

We then went through the same thing 2 months later and so on. So what we ended up doing was ignoring the emails and nothing ever happened in a 3 year period. We were a charity, heavily involved in funding sports charities and as such we felt we would always have had the backing of the very people in the photographs if all else failed so we thought this was OK.

I strongly believe they are using a sledgehammer to break a small nut here so I think ignoring them is fine. An email is not a g'tee anyway they have to send something to your address in hard copy before they can take it anywhere.

2 points to think about:

1. You can buy Getty images from everywhere, tonnes of people license them and resell them and tonnes of places you go to have unlimited use licenses and Getty have no idea who you might have bought or copied them from so take the image off the site and I am sure it will lie there.

2. I thought you got some grace if you unknowingly used an image. We use images all the time for our blog and 99% of the time (if the owners ever find out) they are more impressed with how we changed or edited it or actually thank us for the free advert!, the other 1% ask us to kindly remove the image within 14 days, which we of course always do.

We never knowingly use images that we feel are probably copyrighted.

3. We have no idea if an image taken from the Internet is copyrighted or not so I think there is a good argument to say this. Can you not use an image from the BBC? I am sure if our TV licenses pay for the website then we have a right to use them for non-proofit related uses?

Hope this helps in some way.

DaveK

 

[Deleted member 59730]

We never knowingly use images that we feel are probably copyrighted.
DaveK

In that case you only ever use images when you know the photographer has been dead over 70 years. Everything else is in copyright and protected automatically by law.