Getty Images Tries To Copyright Troll 2600 Magazine Over Content It Has No Copyright Over
from the total-failure dept
So, we were just discussing Getty Images' latest foray into ridiculous copyright trolling (something the company has a long history with), by demanding money for a meme image used on a blog. Today, we have another example of Getty Images copyright trolling that is even worse. It's so bad, that Getty Images doesn't even have a legitimate copyright claim here at all, let alone abusing a legitimate copyright to shakedown someone. The target? The famed hacker publication 2600, which a Getty subsidiary, Trunk Archive, claimed was infringing on one of its images. The cover is actually from 2600's Spring 2012 issue, which you can see below:But, the story is even worse than that. Because Getty doesn't hold the copyright (or represent the copyright holder) for those splotches. That's because the artist who created 2600's cover kept track of how that image was created, and noted that he was actually using this splotch painting from a Finnish artist who goes by the username Loadus on Deviant Art -- and it appears that whoever took the photograph of that dude standing in front of a painting was using that same image. In other words, whatever copyright there is in those splotches belongs to that Finnish artist Loadus, and not the photographer who took the image of some dude standing in front of it. Here, 2600 has overlaid the situation on the full painting:
So not only is Trunk Archive trying to scare people into paying them for images, but they're apparently doing this for images they have absolutely no connection to. This insanity needs to end. In the first place, our use of such an image easily qualifies as a transformative work under the fair use doctrine. The absurdly minimal amount of the image used also would qualify it for protection. And then there's the little fact that they have no right to be telling anyone what to do with this image in the first place since they don't even own it. By their own rules, they ought to be cutting a sizable check to Loadus for what are undoubtedly countless uses of his art.So that's twice this week that we're seeing Getty Images act not just like a typical copyright troll, but one that is so drunk with shakedown power that it's not even bothering to understand just what the fuck it's doing. But, of course, the company can get away with this kind of stuff because (1) there's no punishment for abusing the law in this manner and (2) many sites will probably just pay up rather than deal with the legal threats. It's legalized extortion, and Getty is profiting from it at the expense of actual creators. In yesterday's post, Getty gave some bullshit answer about protecting the rights of the artist. What's its excuse going to be this time?
It's indeed impressive that Trunk Archive managed to match these little ink splotches. That's where the coolness factor ends. We cannot tolerate artists being threatened for creating derivative or transformative works. If this were to stand consistently, all forms of art would soon grind to a halt as none could be created without constantly paying off these people. Most others aren't like us - they aren't lucky enough to have lots of people defending them and spreading the word. What happens in their cases is that they are forced to either pay up, be hounded, or hire an attorney that will wind up costing more than the settlement being demanded. If we allow that to happen, creative expression will suffer across the board.
For now, calling attention to these abuses is what's needed. Joining with existing legal action or beginning new challenges to stop this sort of thing in the future is essential. We intend to continue with all of this. We thank Trunk Archive for opening our eyes to this abuse and helping to get us actively involved.
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Filed Under: 2600, copyright, copyright troll, shakedown
Companies: 2600, getty images, trunk archive
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Typical
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BUSTED
has hosted the entire lot of these sicne they became available YEARS AND YEARS AGO
the owners are the publisher of the magazine
and if law changes to tpp rights then as copyright exists at time of creation in canada / publication then we own said rights in perpetuity until said time as the orphaned owner proves they are his or hers....
ta ta on anyone else trying this crap ive 3300 actual members not paying dues...if i need a lawyer i might have to ask for a lil....i'll get it.
AND in case your real stupid we exist in 64 countries with internet access around the world.
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Stay tuned for more tomorrow?
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Criminal or Civil Fraud, Anyone?
Hey, what would happen if I sent Getty Images the same letter? One kind of justice, right?
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This is why we need . . .
And per bogus DMCA takedown.
If the pro-copyright crowd is really trying to protect their artists (yeah right), then they would know exactly what work the artist had created, and how it was misused. In this case the artist (eg photographer) would know that the background was not his own work, but was from another source.
This kind of thing needs to BITE WITH REAL TEETH trolls like Getty who make such false claims. If they are going to claim you have stolen something, they have a duty to be really sure.
Copyright maximallists seem to think it everyone else's duty to be really sure of the copyright provenance of everything everyone else uses. Why don't they have the same duty when they make a claim?
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Re: This is why we need . . .
Because copyright lasts so long that the necessary records are missing; along with the problem that they have not got used to the idea that people can publish without giving them the copyright. Also note that they hate permissive licenses because they might not have exclusive rights over a work that they publish.
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I don't. In fact, I think 2600 hundred would be a lot better off arguing that they and Trunk/Getty each have a non-exclusive licence. After all, as Loadus states under the image in question: Free for non-commercial/commercial use. Feel free to post on your blogs etc.
Crediting is not required, but would be nice.
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No it does not qualify the image use under Fair Use. EVER.
Part of the problem people have over Fair Use is they don't understand it.
Even if all 4 points of guideline were met, it's no guarantee infringement claim would be waived.
That's why Fair Use is a case by case system, where the results of one case has absolutely nothing to do with another, because, you know, "civil" vs. "criminal".
So yeah, while Getty is stretching it due to other measures, let's stop pretending Fair Use has a claim here. It doesn't and never will until the law is changed to make Fair Use absolute, not a goddamn set of guidelines.
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Getty pwns it all
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Re: Re: This is why we need . . .
If I want exclusive rights over something I publish, like source code, then I will make sure all my copyright ducks are in a row. All i's dotted, t's crossed. If I use other source code that is under permissive licenses, then I will make sure I comply fully with those licenses to the letter. Every single line of code must be either (1) something I write myself, or (2) something that I absolutely have a proper license for. (Not something from GitHub which has no license, or something out of a magazine article.) And item 2, licensed code, can just as well mean commercial licensed code that is license compatible with everything else I may be using.
Why should it be any different for copyright trolls to fully document the copyright on every pixel in their photograph, just as I would do for every line of code?
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Succession of Trolls
Prenda
Getty
Did I miss any trolls? It seems like some performance rights organizations or collection societies would qualify.
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Wisdom
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Re: Succession of Trolls
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The penalty for any unsupported copyright claim should be as much as the copyright penalty would have been if it was supported.
False million dollar copyright claim? You pay $1M. False claim of $150K for a music copyright violation? You pay $150K.
Problem solved.
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Re: Re: Re: This is why we need . . .
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Re:
While Fair Use has the four statutory factors to consider and requires generally a case by case application, prior fair use decisions can be a guide to how those factors are applied because judicial precedent is used in civil cases too.
Fair use has been interpreted in the US (wrongly, I think) to be a defense to copyright infringement. In pre-litigation communication, you can certainly make your case for fair use and let the purported copyright holder take it into consideration before getting into a protracted legal battle.
An educated legal mind can certainly say, after considering the four factors and the relevant case law, that something is likely to qualify as fair use.
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Other people, not as familiar with the statutory text, may misinterpret what you were trying to say.
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Trunk Archive not a Getty Images subsidiary AFAICT
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Bored Legal Departments
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Does Loadus have a slander-of-title action in either Washington or New York?
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About a year ago I started using only my own photos and artwork, no matter how safe I think an image is. Unless I created it personally, I don't use it on my blogs.
Now that I use only my own work, I can focus on what a blogger really does: piss people off using lots of words. Because First Amendment.
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Re: Wisdom
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Re: BUSTED
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Re: Re: Re: Re: This is why we need . . .
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Re: Re: Wisdom
The SCO Group?
Unfortunately, no. I don't think anyone even involved in the SCO fiasco even learned anything. I believe Darl McBride left on a golden parachute and the principles of the company went through bankruptcy and the company was bought at pennies by another company (UnXis, I believe.)
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First the claimant has to explicitly state the amount they think they should be compensated. That then becomes the absolute upper limit and cannot be changed during the course of the case (although they can be awarded less...).
The defendant should be able to counter-sue for willful or negligent copyright fraud. Heck, in the case where a warning letter is sent it should be required to state this claimed amount, and that should be the limit thereafter. Plus if such a demand letter is sent, the recipient should be able to sue for willful or negligent copyright fraud. If the copyright fraud is proven in court, the award should be an automatic 10 times the amount that the copyfraud demanded.
Let's give the accused some control of the legal process and make abuse really cost unless the abuser asks of miniscule amounts (in which case it will not be profitable for trolls to pursue...).
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Re: Succession of Trolls
He is wearing a leather jacket —and mirror shades.
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Oh, Getty, Getty, Getty...
It'd be hilarious if someone managed to point PicScout's bots at their own C2, though. (ops.picscout.com)
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"No it does not qualify the image use under Fair Use. EVER."
He said protection, not fair use. I would think this would qualify for de minimis protection, though IANAL.
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Getty's version of ContentID on the internet?
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That letter very clearly anticipates a lawsuit. It demands $714, or in the alternative, promises a copyright infringement action.
Looking at 2600's published response, we can all see that they say that they have a license to use the elements they copied from the original work. License is a defense to copyright infringement.
But nowhere does Trunk Archive claim that they have any license. You're the person who suggested 2600 should argue that Trunk Archive has a non-exclusive license. But your suggested argument is plainly inconsistent with Trunk Archive's demand letter. It's not what they're saying.
Trunk Archive certainly knows: That's just very basic.
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Re: Re: Re: Wisdom
Didn't anyone learn anything at all? The crowd dispersed —entertained— but just as ignorant?
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Actually, no I didn't. I suggested that 2600 should point to the wording on the original work and use it to state that both parties (not just Trunk) have a non-exclusive licence which the plaintiff is abusing. Additionally, it was an AC who made the comment to which I replied, not Mike Masnick. Again, read carefully. The ability to do so is just very basic.
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Sure, 2600 pleads license as their defense to Trunk's statement that 2600 infringes Trunk's exclusive rights in the original work. That's fine. But why would 2600 say that Trunk has any kind of license at all? They don't know that. And those two parties don't look like they're on very friendly terms at the moment.
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You should read what you wrote, you're calling someone out on comprehension whilst getting your own facts in a muddle and contradicting yourself.
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But why would 2600 say that Trunk has any kind of license at all? They don't know that.
Right, the phrase Free for non-commercial/commercial use that Loadus posted under his work is absolutely no clue as to another party's licence status when using it at all. (-_Q)(-_Q)
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Generally, unilateral license grants are revocable upon notice. It is true that a licensee who acts within the scope of a license, detrimentally relying on a unilateral grant, may sometimes hold the licensor to the terms of the license. But, in general, unilateral licenses are revocable at will.
In this case, 2600 does not know whether Loadus has provided actual or constructive notice to Trunk Archive. How would 2600 be expected to know whether Trunk Archive has received notice from Loadus?
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I would expect 2600 will raise not only a defense of license, but also to point out that they have placed substantial reliance on that license, to their detriment. If they had received timely notice that exclusive rights might be claimed in the original work, they would undoubtedly have used different cover art.
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When Trunk Archive is clearly not relying on a unilateral license grant, why again would 2600 believe that Trunk must be relying on that grant? It's common for a copyright owner to offer one set of terms to the general public, but to also be open to other licensing or transfer arangements with specific parties.
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If I write code, and publish it with a Gnu GPLv2 notice, I can still turn around and assign ownership to the FSF. In that case, I'd expect the FSF would readily agree that my assignment would be based on their promise to continue licensing the work under the GPLv2 or later. Further, in that hypothetical set of circumstances, the FSF would provide me with a license-back to the code I wrote, so that I could continue publishing it under GPLv2 or later terms.
If Loadus has assigned, mortgaged, exclusively licensed, or in any other way conveyed, alienated, or hypothecated his copyright to Trunk Archive, they may have agreed to a license-back provision, so that he might continue to publish the original work with his original notice. Of course, we haven't seen anything that takes that possibility out of the realm of pure speculation.
What we do know is that Trunk Archive states their ownership of the original work at issue.
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Under what legal system can someone withdraw a license once granted?
Under any sensible legal system, while they can change the license under which the continue to offer a a work so long as they respect license already issued. An ability to unilaterally changes license terms post an (implied) grant of a license would destroy most commerce, as nobody could rely on the terms of a license.
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Trunk Archive, through their licensing agent, states their entitlement to seek compensation for infringement under Title 17.
That's a clear statement of exclusive ownership, right there in Trunk Archive's demand letter.
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Halfway through the game, something comes up, and I say, “Sorry, everyone's got to leave.”
Does that mean you're entitled to stay at my place —watching my TV— —drinking my beer— until the game's over? Or does it mean that if you don't leave, then you're trespassing, and I can call the cops to have thrown out of my living room.
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Defamatory???
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Re: Defamatory???
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Keeping up
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Re: Keeping up
If they only represent the work, then they have no more right to sue over it than I do.
They have no idea about Loadus.
Well, the person who made the photograph with the ink splatters certainly has an idea of the work they borrowed from, if not its creator.
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Re: Re: Keeping up
They have a right to sue on behalf, that's what representation is.
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When a copyright owner's exclusive rights are not implicated at all, then there's no need for any license or permission. Merely playing a CD is generally not illegal. Never has been.
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'Collection Societies' branch out
And just like ASCAP & BMI, Getty Images offers a wide variety of license agreements and payment plans to fit most any type of business.
Incidentally, Getty Images has been nudging into ASCAP & BMI's home turf, the music publishing business. It remains to be seen if ASCAP and BMI will retaliate in kind and start licensing pictures.
If so, then print publications and websites may have two more mouths to feed to stay out of legal hot water.
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