Getty Images / Pinsent Masons - Copyright Claim
- Thread starter The Dancer
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Deleted member 59730
Dear OWG
We have been through this many times. The images were on the website and he did not have a licence to use them. Just how can you claim innocence?
If Ben didn't know he couldn't steal will he know enough to understand 'definitive documentary evidence of rights to claim payment' ? I have a letter by my side at the moment which shows that a solicitor, not an IP specialist, doesn't understand the concept.
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Nala
It is always possible that the initial finder of these images was the photographer themselves ( using Tineye or similar ), they then checked records back and found no notification of the sale, and as they are exclusive to Getty ( meaning these images can be bought from nowhere else ) they asked Getty to check if they had any notification of the sale on their system. Finding none, the only course of action is an invoice which would include charges for unlicensed use, and Getty are the ones who follow it up on the photographers behalf as they have entered into an exclusive contract to only sell through Getty and no other way.
But what ever way it was found, then if it is an exclusive contract, Getty will be the ones following it up as an unpaid and unauthorised usage. It's up to the person who got them to provide an invoice and licence to show they can use them.
Not wishing to get into any fight about it however
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Indeed we have been through this many times, but you see the WHOLE CASE rests on whether or not GETYY have the rights to these images and can prove that. Until such time are we supposed to take their word, and hope that no-one else claims the images to be theirs?
It is always possible that the initial finder of these images was the photographer themselves ( using Tineye or similar ), they then checked records back and found no notification of the sale, and as they are exclusive to Getty ( meaning these images could can be bought from nowhere else ) they asked Getty to check if they had any notification of the sale on their system. Finding none, the only course of action is an invoice which would include charges for unlicensed use, and Getty are the ones who follow it up on the photographers behalf as they have entered into an exclusive contract to only sell through Getty and no other way.
But what ever way it was found, then if it is an exclusive contract, Getty will be the ones following it up as an unpaid and unauthorised usage. It's up to the person who got them to provide an invoice and licence to show they can use them.
Not wishing to get into any fight about it however
Again the key word there is IF there is an axclusive contract.
I don't think it unreasonable to request confirmation that Getty hold the exclusive rights to the image and that they will indemnify the company should any furrther action result from the use of the image. getty however appear to be refusing to do this. So what they are saying is
We want you to pay us for the use of image(s)
We will not prove we have the rights to the image(s)
We will not indemnify you should anyone else claim to have the rights.
Who in their right mind would pay up without confirmation of indemnity?
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Nala
The last person above ( screwedbygetty) said they had not spoken to Getty yet, so they have not refused, they have so far ignored the letters sent to them by Getty ( I have not read the rest of the thread - sorry it's too long). They could of course ask them to clarify the point.
However, providing an invoice and a licence is still the best way out of this, I'm sure you will agree?
Regards
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Sorry but Getty don't accept retrospective licencing. Also getty have repeatedly been asked to provide proof of sole rights, and also to agree to indemnify, they refuse on both points, simply saying 'we will prove this if we have to take you to court'
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Nala
What I meant was that they could produce an invoice and licence showing that they had legally bought them for their usage and Getty were in the wrong - and I said I have not read the rest of the thread, only this case.
And I'm sure IPTC data would have been mentioned before, the images most certainly include within this field that it is copyrighted and Getty are the contact.
Regards ( still not wishing to get into a fight
)
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Not fighting at all
Getty track down their images using picscout, so them tracking it down isn't an issue. The guy admits to grabbing them from Google, again not an issue. What is an issue is whether or not Getty have a legal right to bring this claim.
I misunderstood your statement about having a legitimate receipt. Yes of course if they have an invoice then there is no case to answer
Getty track down their images using picscout, so them tracking it down isn't an issue. The guy admits to grabbing them from Google, again not an issue. What is an issue is whether or not Getty have a legal right to bring this claim.
I misunderstood your statement about having a legitimate receipt. Yes of course if they have an invoice then there is no case to answer
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Nala
Not fighting at all
Getty track down their images using picscout, so them tracking it down isn't an issue. The guy admits to grabbing them from Google, again not an issue. What is an issue is whether or not Getty have a legal right to bring this claim.
I misunderstood your statement about having a legitimate receipt. Yes of course if they have an invoice then there is no case to answer
Fair enough. Kissy - kissy? Mwah - mwah
If he/she opens the images that are on his/her website with photoshop and check the IPTC field then this would be the easiest way - if it has Gettys name there they have no legs left to stand on.
Regards
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Deleted member 59730
AFAIK when Getty sends out the very first letter they send a copy of the image on their website as confirmation. Do you actually know different or are you just muddying the waters?
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SILLY ME. I mean what AM I thinking of, asking getty to confirm those simple points is SO unfair on them.
What in gods name does a screenshot have to do with anything?
Bob please if you are going to comment on what I said READ what I have said. I wrote that the fact the images were on his site are not in question.
You are the one muddying Bob, I am talking about the legal right of getty to collect payment for the images and also a written undertaking from them to indemnify the person should another party lay claim.
So answer me this.
If YOU owned exclusive rights to your images (which I know in many cases you do), and you caught me using your images, and I agreed to make the payment on the proviso that you confirm that you exclusively own the rights to that image, and that you will agree to indemnify me should any other party lay claim to rights to the image, would you do this?
if not why not?
If you are 100% certain that you own exclusive rights to an image why would anyone not agree to indemnify them?
Not muddying, a simple straight question
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wow...sorry i've stirred this topic up again. i am not saying i am in the right or wrong. what i am saying is the way getty is handling this doesn't seem fair at all.
for someone who doesn't know much about IP rights (which i presume is the majority of the public) to download a non-watermarked picture off the internet and then being told they will be fined at what seems to be a disproportionate amount without any form of warning or notification of cease and desist is just not fairplay. furthermore, when you factor in the harsh sounding mail-merged letter getty dishes out to possibly thousands of individuals and small businesses just doesn't seem morally correct.
it's a bit like finding an unattended £10 ball in the playground, played with it, and then being told by a big boy hiding in the bush that you now owe him £1000 because it's his ball, although his name wasn't on it. the big boy wouldn't be happy with you returning the ball, or paying him £10. he wants £1000 or authorities will be informed.
i wouldn't be surprised if this big boy has been simply spreading his balls in various playgrounds catching unsuspected passerbys. you can't really fault a passerby for playing with an unattended ball in a playground. if he took a security tagged ball from a shop and left without paying, he is definitely stealing. picking up an unmarked photo from the public domain shouldn't be classed as the same thing.
for someone who doesn't know much about IP rights (which i presume is the majority of the public) to download a non-watermarked picture off the internet and then being told they will be fined at what seems to be a disproportionate amount without any form of warning or notification of cease and desist is just not fairplay. furthermore, when you factor in the harsh sounding mail-merged letter getty dishes out to possibly thousands of individuals and small businesses just doesn't seem morally correct.
it's a bit like finding an unattended £10 ball in the playground, played with it, and then being told by a big boy hiding in the bush that you now owe him £1000 because it's his ball, although his name wasn't on it. the big boy wouldn't be happy with you returning the ball, or paying him £10. he wants £1000 or authorities will be informed.
i wouldn't be surprised if this big boy has been simply spreading his balls in various playgrounds catching unsuspected passerbys. you can't really fault a passerby for playing with an unattended ball in a playground. if he took a security tagged ball from a shop and left without paying, he is definitely stealing. picking up an unmarked photo from the public domain shouldn't be classed as the same thing.
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Deleted member 59730
My answer would be simple. No. If you are in the wrong you have no right to make unreasonable demands unless you are willing to pay for them. Period.
It is what I do in fact with image thieves who play silly buggers and mess me about. One image thief is currently learning to his cost that using a country solicitor who knew sod all about copyright and who made stupid demands instead of answering the points in my claim is not a good approach.
(Taking your crazy attitude to another scenario......... If a policeman stops you for speeding would you stand in the road and demand a piece of paper that proves he is a policemen even though he is wearing a police uniform and driving a police car and writing the ticket in a police notebook?)
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Deleted member 59730
But the images are not in the Public Domain. They are someones property worth hundreds of pounds.
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So getty now wear police uniforms do they?
Bob you are saying (because I want to get this crystal clear) That if you sent me an invoice, and I wrote back saying that I agree to make the payment requested, on the proviso that you confirm in writing that you have 100% sole rights to this image, and that you agree to indemnify me should your claim be unture. That you are NOT willing to give such an undertaking?
I think you are being somewhat economical with the truth here.
WHY would you refuse to confirm you own 100% of the rights? as you well know if you took me to court as a result of that refusal, you would not be able to claim a farthing in costs post your refusal, as you are being unreasonable.
Asking for confirmation of ownership is hardly 'playing silly beggars' is it?
Finally please explain what is 'my crazy attitude' in asking for written confirmation that you do indeed hold the 100% exclusive rights to an image?
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Esk247
but they are in the public domain, you can right click and save as in google images.
is it right to do this? no
can you do it? yes
is there a warning when you download that it may be copyright? no
also, if getty chase you for using an image, they are not just saying 'hey mate, could you pay the £100 fee for that please, we're sure you didn't know it was stealing but it's actually a licensed product..cheers'...instead of that they slam a 4k invoice in your letterbox...4k? really? is that the cost of the license? i really don't think so!
there are those who steal images deliberately and there are those who didn't know it was stealing. the amount of times i've had someone say 'download it from google images, i did that on my last website' ... they just didn't know!
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Deleted member 59730
You are being obtuse. It doesn't matter if I do not have sole rights. All that matters is if I have rights to chase infringements. One major stock agency does not pursue infringers but does not stop their contributors from chasing infringements. Many of them do. ( I no longer have any work with that agency but when I did they sold a web licence to a national newspaper. Several infringers have now stolen the image from that website and there is nothing to stop me going after them.)
You can pay your £450 per hour copyright lawyers to draft an acceptable letter and I would then consider signing it. What I will not do is pay my lawyers to satisfy your unreasonable demands.
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Deleted member 59730
All I can say is if you believe this you deserve a big fat bill.
I've just searched Google images and it has this wording.
- Full-size image - Same size
What part of THIS IMAGE MAY BE SUBJECT TO COPYRIGHT do you not understand?
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Thanks for the heads up on the IP court, wonder if it's for us photographers as the press release mentions up to 150 companies could benefit.
I know loads of photographers (myself included, I've currently around 11 infringements with an IP lawyer and 2 going through court) who have there images used without permission and are looking for a quick and easy way to chase for payment.
The rest of us haven't go the funds like Getty.
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Bob it isn't an unreasnable demand. as you are well aware, it is not legal to issue a unilateral invoice. what is being sent is 'an offer to settle', now for a contract to be formed, I would want to know what i am in fact buying, after all by law a contract must be fair to all parties.
Thankfully this issue doesn't affect me, and, unlike yourself I don't have any vested interested in debating it.
My guess is you are between a rock and a hard place. I believe you would issue such anb assurance, I mean why would you not, if you knew 100% that the image was yours, and that my making payment would end the matter. I fear the reason you are not forthcoming is because it will fly in the face of how Getty are behaving.
Anyhow I am done for the moment with this roundabout, you keep firing those bullets at people to make sure they pay
Thankfully this issue doesn't affect me, and, unlike yourself I don't have any vested interested in debating it.
My guess is you are between a rock and a hard place. I believe you would issue such anb assurance, I mean why would you not, if you knew 100% that the image was yours, and that my making payment would end the matter. I fear the reason you are not forthcoming is because it will fly in the face of how Getty are behaving.
Anyhow I am done for the moment with this roundabout, you keep firing those bullets at people to make sure they pay
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Getty are the authorized agent. As part of the contract they will have terms allowing them to enforce copyright if they whish and pay over to the photographer when they recieve payment. Furthermore, if Getty have licenced the image exclusively to one of their bona fide paying clients, then it is very much part of their job to ensure that this use remains exclusive, so they will take what ever action necessary to stop any infringer. Not to do so would be failing in their responsibility to their paying clients, and they will always be more important than any fly by night internet thief who pays nothing.
All you are doing is trying to find excuses for not paying for items you have had the benefit of. Lets be honest, you are a web designer (according to your sign off). Copying of websites does happen from time to time. If everyone started copying your existing sites and as a result you didn't get any more jobs to design a new one for them because they had just made copies with out asking (and more importantly paying), would that be good for your business, and would you do something about it?
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Oh I should add that I have always stated that if someone has taken an image then they should pay1 My only gripe is with those who have in good faith paid someone to provide the site in the first place, and are unknowingly in breach.
In fact getty regonised this with Template Monster when they settled on the basis that they would not persue individuals who in good faith, had bought from TPM
In fact getty regonised this with Template Monster when they settled on the basis that they would not persue individuals who in good faith, had bought from TPM
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I think it is right that people should pay for images or any other copyrighted material. For people to say that they did not know that photos they took off the web belonged to someone else is just stupid. How do they think these photos get taken? Theft is theft.
However, what getty are doing also seems like a case of attempted theft.
I do not get how Getty or anyone else can demand such high fees for an image that would otherwise be sold out at a fraction of that price? Nor do i see why they do not show proof of ownership.
Surely a court of law would not award getty with £2000 for an image worth £100 or less!
If getty are in the right then I could start up tomorrow going round and finding images i think may not have been paid for, sending letters to those people who have used them and claim crazy fees? What's to stop me doing this if i don't have to prove that i actually own them? Surely i'll get at least some to pay up after a few threats of court action and if the others decide to hold off to the court date i can just drop the case!
Just to be clear, i've no intention of doing that but what's to stop me if i did and use the getty model?
Again, i am not siding with those that take images that do not belong to them or claim ignorance. Afterall photographers, writers, artists etc. need to get paid so that they can live and continue the creative work they do. But please, can someone justify the crazy fees that getty impose on stolen images? What determines that fee and why is it so inflated from the origional image price tag?
However, what getty are doing also seems like a case of attempted theft.
I do not get how Getty or anyone else can demand such high fees for an image that would otherwise be sold out at a fraction of that price? Nor do i see why they do not show proof of ownership.
Surely a court of law would not award getty with £2000 for an image worth £100 or less!
If getty are in the right then I could start up tomorrow going round and finding images i think may not have been paid for, sending letters to those people who have used them and claim crazy fees? What's to stop me doing this if i don't have to prove that i actually own them? Surely i'll get at least some to pay up after a few threats of court action and if the others decide to hold off to the court date i can just drop the case!
Just to be clear, i've no intention of doing that but what's to stop me if i did and use the getty model?
Again, i am not siding with those that take images that do not belong to them or claim ignorance. Afterall photographers, writers, artists etc. need to get paid so that they can live and continue the creative work they do. But please, can someone justify the crazy fees that getty impose on stolen images? What determines that fee and why is it so inflated from the origional image price tag?
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Getty's fee will include the legal costs of following up on the infringement. It will also include a deterrent element. This will be in place as a disincentive to encourage people to licence the images properly instead of winging it by fishing things off the internet and hoping they don't get caught. It has to be more expensive to infringe than to lisence through the correct channels, otherwise there is no compulsion to lisence propery. You also have the consequent damage to reputation, since other legitimate licensees may have tried to lisence the image exclusively in good faith, only to find that someone else is using it. This in the long term damages the business model of Getty/the photographer because people are less likely to licence exclusive rights managed images since there may be infringing copies all over the place. Why should the regular client (who does things properly) pay for these costs? Let infringers pay for the problems they create.
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Deleted member 59730
I have now asked others including a solicitor and 2 copyright experts and the advice is roughly this:
Both sides need to behave in a reasonable manner. Much is made of the word reasonable.
If in the first letter I make clear my authorship and rights to the image in question I will have behaved reasonably. If the infringer then makes a reasonable offer he has behaved reasonably. The offer should be at least what I would have charged had the image been bought properly in the first place. I, and many other photographers, have a two tier pricing structure described in our T&Cs. (Mine is £250 for a limited period licence with the condition that the image keeps the IPTC data intact and that I am credited as the photographer. Without credit my fee is £500 for a one year licence.) As most infringers strip the IPTC data and give no credit their fee is at least £500. For very high profile uses I will charge more.
When the infringer has agreed to pay £500 per image they can then reasonably ask for an affidavit confirming my exclusive rights to deal with the matter. They can ask their lawyer to prepare a form of words which will satisfy them and I will sign it.
It is unreasonable for the infringer to make demands before agreeing to settle for a reasonable and acceptable sum.
According to one of the experts there is no legal requirement to go to extra proof beyond the first letter until court proceedings. If the infringer wants to 'play poker' with the case its up to him.
If the infringer has knowledge that I am not the legitimate rights holder they must act reasonably and inform me of their evidence straight away. This is why I always include the line "Should I, or any of my agents, have granted a licence to use this image can you please provide me with a copy of your licence agreement." I do this even when I am 100% certain that the image in question has never been with an agent. Believe it or not some infringers believe that Google Images are an agent for free images!
I have described my approach which as far as I know is the correct legal path to follow. I do not think we have had a statement from anyone who settled in full with Getty that they, Getty, would NOT sign a document saying they had exclusive rights. I do know that Corbis and Getty do ask photographers to sign an affidavit over and above the exclusive contract terms.
This is not legal advice. I am not a lawyer.
Both sides need to behave in a reasonable manner. Much is made of the word reasonable.
If in the first letter I make clear my authorship and rights to the image in question I will have behaved reasonably. If the infringer then makes a reasonable offer he has behaved reasonably. The offer should be at least what I would have charged had the image been bought properly in the first place. I, and many other photographers, have a two tier pricing structure described in our T&Cs. (Mine is £250 for a limited period licence with the condition that the image keeps the IPTC data intact and that I am credited as the photographer. Without credit my fee is £500 for a one year licence.) As most infringers strip the IPTC data and give no credit their fee is at least £500. For very high profile uses I will charge more.
When the infringer has agreed to pay £500 per image they can then reasonably ask for an affidavit confirming my exclusive rights to deal with the matter. They can ask their lawyer to prepare a form of words which will satisfy them and I will sign it.
It is unreasonable for the infringer to make demands before agreeing to settle for a reasonable and acceptable sum.
According to one of the experts there is no legal requirement to go to extra proof beyond the first letter until court proceedings. If the infringer wants to 'play poker' with the case its up to him.
If the infringer has knowledge that I am not the legitimate rights holder they must act reasonably and inform me of their evidence straight away. This is why I always include the line "Should I, or any of my agents, have granted a licence to use this image can you please provide me with a copy of your licence agreement." I do this even when I am 100% certain that the image in question has never been with an agent. Believe it or not some infringers believe that Google Images are an agent for free images!
I have described my approach which as far as I know is the correct legal path to follow. I do not think we have had a statement from anyone who settled in full with Getty that they, Getty, would NOT sign a document saying they had exclusive rights. I do know that Corbis and Getty do ask photographers to sign an affidavit over and above the exclusive contract terms.
This is not legal advice. I am not a lawyer.
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Deleted member 59730
Dear Edward
It won't help those whose fee structure is low. I doubt it will work for demands under £100 because the fee is rumoured to be £80.
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Deleted member 59730
What is an image worth? In one case a photographer allowed a newspaper FREE use of an image of a very sensitive subject on the condition that he controlled the wording of the story to treat the subject of the photo with respect. Another paper in the same group used the image without asking for a licence. It reputedly had to settle after a court case for £50,000 plus their very hefty legal costs.
So the answer is that the courts would award a photographer a high fee.
If you want to look it up its called the Banier Judgment and it established many pieces of legal precedent.
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bdw
Absolutely correct!
The fact that Getty and the other imaging companies have had tens (hundreds?) of thousands of these cases outstanding for years and have done nothing about it is a clear indication of the confidence they have in our courts to award in their favour. There have been other similar cases here in the UK where the judge has demonstrated his ire at the "plaintiffs" for making such unreasonable claims. This is almost certain to happen again, hence the imaging companies reluctance to test it.
I have been saying this for the last four or five years and I have yet to be proved wrong. Throughout this period our photographer friends have been warning of all sorts of catastrophes that are going to befall the infringers and they have yet to be proved right. That is an unassailable fact whatever way you cook it.
.
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david.duncan
Consult chambers and partners before you do anything: http://www.chambersandpartners.com/
The write a report eveyr year on the best law firms in the world and which ones are better in what fields.
Good luck
The write a report eveyr year on the best law firms in the world and which ones are better in what fields.
Good luck
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HI Bob, then we are in agreement, it was just my cakhandedness with phrasing that caused the issue, plus maybe your reading from a different angle. it appears we both agree then.
I posted a couple of posts above that all action has to be fair to both parties, in order for it to be legal. What I was saying was that if I said i was happy to pay with the proviso you rpovide the documentation I asked for (which you say you do, then we have a deal. is fair and reasonable. for a contract to be formed (whicjh is what settling does), the terms of the contract should be the same as your original offer to similar clients. i.e if you charge £500 for the stripped down version, and are asking £700 with £500 for the image and £200 costs, then it is not unreasonable to clarify the terms of the contract we are entering into.
At ALL times I have stated that people who just take images should pay, that is beyond question in my mind. Asking for clarification on the settlement, is also fair and reasonable.
So we are pretty much agreed on this issue.
Hopefully now we will see an end to the speculative invoicing fiasco that Getty and others have been running, because IMO it is very close to a scam and bordering on extortion (using the threat of punitive costs as a stick to force settlement), I know that in some cases Getty have ignored statements of 'take me to court of leave me alone' and there is a growing mass of people who are in a position to wipe the floor with the image houses who have ignored this and invaded the rights of individuals. *that is another story).
With regard the refusal to confirm sole rights, getty have point blank refused this, stating that they are under no legal obligation to do so until such time as they server documents to the court (which is correct).
However (there is always a however), if it later transpires that getty had easy access to this information, and simply refused to provide it, then a court would likely find that behaviour to be UN-reasonable, and that would of course not bode well for getty. if OTOH it was reasonable for them to refuse, the courts would side with getty.
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bdw
Absolutely!
People have been doing this for several years now. The fact that Getty, Corbis and the others are being allowed to make these threats without following them up amounts to harrassment in UK law. It is shocking that they have not been stopped.
What they are doing is far worse than some unwitting person who uses an image without knowing that they have no right to do so. That this is still being allowed to happen after several years is the real concern.
.
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Probably best in future to purchase the images and give them to your web design company to use, but if they are as unethical as yours seemed to be some other poor sod would probably end up getting sued as I'm sure they would re-use them. I have photos with Getty and they once contacted a forum and threatened them with legal action because I had some of my images posted there and I had to intervene..they are really hot on image piracy.
Always best to ask the design company where they sourced the photographs and whether they are licensed.
Always best to ask the design company where they sourced the photographs and whether they are licensed.
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This is the argument, getty claim exclusive rights, when often they don't have them. had you signed an exclusive deal with them for the images? I buy all of mine from Istock, if someone comes knocking i will simply send them to getty to sort out
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This is the argument, getty claim exclusive rights, when often they don't have them. had you signed an exclusive deal with them for the images? I buy all of mine from Istock, if someone comes knocking i will simply send them to getty to sort out
Yes they have exclusive rights...but once I explained to them that I want to promote my own material on forums they were ok. They are looking after my interests so I can't complain. They do have a tendency to go in with guns blazing sometimes, instead of communicating first to determine whether it's a real infringement.
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