Getty Threatens The Wrong IP Law Firm In Its Copyright Trolling Efforts

from the this-won't-end-well dept

Image licensing giant Getty Images has quite a reputation for being something of a copyright maximalist and occasional copyright troll. The company has been known to blast out threat letters and lawsuits not unlike some more notorious copyright trolls. And that's true even as the company just recently lost a copyright infringement suit in which Getty helped in the infringement. A few months ago, we had told you about Getty starting a new program in which it was making many of its images free to embed, saying that it was "better to compete" that way on the internet, rather than trying to license everything. We actually just tried embedding some Getty images ourselves recently.

However, it appears that this new program has not dampened the company's enthusiasm for copyright trolling. Nor has the recent lawsuit loss convinced Getty to be any more careful in how it goes about that trolling. The company may soon regret sending a troll letter to Florida-based intellectual property law firm Schneider Rothman, claiming that the company had engaged in copyright infringement by posting images to its site and demanding $380 (while threatening a lawsuit). The lawyers at Schneider Rothman know better than to make use of infringing images, so they scoured their site to figure out what the issue was. And they quickly figured out the problem -- and it appears to be with the sloppy way in which Getty sends out these demand letters:

There was a problem, however. We never copied or displayed the Getty image referred to in Getty’s letter.

We looked more closely at what Getty was doing and were shocked to discover what was really going on.

You see, Getty is apparently using an image recognition system to generate its letters to accused infringers. Getty’s system identified a thumbnail image on our website here. Getty matched the thumbnail to an image more than six times the size on Getty’s site.

We are not responsible for the thumbnail. The thumbnail is displayed on our website because we use the Zemanta plug-in for WordPress. Zemanta put it there, something that should have been obvious to Getty.

But Getty did not bother to look. If it had, Getty would have seen that we are simply employing web-feed syndication, a common and generally accepted Internet publishing and search engine optimization practice.

So, instead, the law firm has gone to court, filing for a declaratory judgment that it does not infringe. It's interesting to note that the lawyers didn't just include Getty as a defendant here, but Zemanta as well (seeking, at the very least, indemnification, on the off chance that Zemanta did not actually license the image). They note that Zemanta appears to have properly licensed the image, and to then try to shake down their law firm for using Zemanta's properly licensed use of the image is quite problematic. Plus, since the use is just a thumbnail and (thank you Perfect 10!) the use of thumbnails is fair use, Getty should have quite obviously known that its threat letter and demands for payment were bogus.

The lawyers at Schneider Rothman don't mince words:

Getty’s unfair and deceptive practice has caused actual damages to SRIPLAW by requiring SRIPLAW to expend time and money to bring an action to obtain a declaratory judgment that SRIPLAW did not infringe Getty’s copyright.

Getty’s unfair and deceptive practice has damaged other individuals and businesses similarly situated to SRIPLAW who received letters from Getty that falsely claimed copyright violations and, because these other individuals and businesses lack the technical or legal knowledge and/or funds necessary to defend themselves from Getty false claims, have instead paid extortion money to Getty that Getty was not entitled to.

Unless enjoined, Getty’s unfair and deceptive practice will damage other individuals and businesses who receive letters from Getty that falsely claim copyright violations and demand settlement payments to resolve such false claims.

While it's fun to watch the lawsuits with the small-time copyright trolls like Prenda, it will be interesting to see what happens here, though my guess is that Getty will look to quickly settle this matter...

Filed Under: copyright, copyright trolls, images, shakedown, threats, thumbnails, trolling
Companies: getty, getty images, schneider rothman

Getty Images Decides It's Mostly Better To Compete Than Sue, Frees Up Millions Of Images

from the a-step-in-the-right-direction dept

Getty Images has something of a reputation as a copyright maximalist. The company's representatives have testified before Congress and pushed for copyright expansion in the past. It's also well known for filing copyright lawsuits on those it claims illegally used its images. Hell, just a few weeks ago, some were debating if Getty should be described as a copyright troll after filing a flurry of copyright infringement lawsuits.

So it's fairly big news to find out that Getty is trying to get ahead of the curve by making millions of its photos free for sites to use via an embed code -- a la YouTube, Twitter and lots of other sites. Basically, it looks like the company is admitting to reality and adapting (though, apparently freaking out photographers in the process...):

But according to Craig Peters, a business development exec at Getty Images, that ship sailed long ago. "Look, if you want to get a Getty image today, you can find it without a watermark very simply," he says. "The way you do that is you go to one of our customer sites and you right-click. Or you go to Google Image search or Bing Image Search and you get it there. And that's what's happening… Our content was everywhere already."

[....]

"Before there was iTunes, before there was Spotify, people were put in that situation where they were basically forced to do the wrong thing, sharing files," Peters says. Now, if an aspiring producer wants to leak a song to the web but keep control of it, they can drop it on Soundcloud. Any blog can embed the player, and the artist can disable it whenever they want. And as Google has proved with YouTube, it's easy to drop ads or "buy here" links into that embed. "We've seen what YouTube's done with monetizing their embed capabilities," Peters says. "I don't know if that's going to be appropriate for us or not." But as long as the images are being taken as embeds rather than free-floating files, the company will have options.

That sounds positively forward looking for an organization with a history (both long term and recent) of being anything but forward thinking. There are some caveats. It is not all of Getty's images, as the Verge article linked above implies. It appears that some of the key collections will still be fee-only. And, you can argue that Getty already has some experience in the free stock image game, seeing as it owns iStockphoto which offers up some free options. This is a little different on two fronts. First, most free stock image banks are... well, pretty crappy. The quality just isn't there. Second, while free stock photo services often let you copy and use the photos, Getty requires this embed, which has some potential issues in that you really don't know what they might do in the future with that embed -- as the quotes above make clear. That may worry some.

There's also the fact that the company claims that they're only allowing this for "non-commercial" usage. Now, as we've discussed for years the line between commercial and non-commercial is painfully blurry -- as it's possible that almost anything people do can be twisted to argue it's a commercial use. Thankfully, it appears that Getty is making it clear upfront that it's taking an extremely (surprisingly) open view on what counts as "non-commercial" noting that any use for "editorial" will be considered non-commercial, even if done by a commercial enterprise, including the NY Times and Buzzfeed:

Blogs that draw revenues from Google Ads will still be able to use the Getty Images embed player at no cost. “We would not consider this commercial use,” says Peters. “The fact today that a website is generating revenue would not limit the use of the embed. What would limit that use is if they used our imagery to promote a service, a product or their business. They would need to get a license.” A spokeswoman for Getty Images confirms to BJP that editorial websites, from The New York Times to Buzzfeed, will also be able to use the embed feature as long as images are used in an editorial context.

At the same time, the company admits that it's not dropping its lawsuit strategy, and will continue to sue those it feels go too far, which may make things a little dicey for some users. Hopefully, the company will be as explicit in its official terms that embedding for editorial purposes will always be deemed legit.

While we're a little wary of Getty given some of its past actions, the company should be applauded for actually recognizing reality, and trying to adapt accordingly, recognizing how it might better serve people who otherwise would automatically go somewhere else.

Not too long ago, we had actually explored various stock photography offerings that were out there, even talking to Getty about its program (which was insanely expensive). Instead, we decided to focus on situations where Creative Commons images and/or fair use situations would work best. However, with this move, we may take another look at Getty for our own image needs.

Filed Under: embedding, photography, stock photo
Companies: getty images

Wait, I Thought The Next Congressional Copyright Hearing Was Supposed To Be About Hearing From Creators?

from the what-happened-to-that dept

We already pointed out that it appears that the IP Subcommittee in the House Judiciary Committee is taking the exact wrong approach with its next two hearings, in which they are trying to set up a bogus framework of "creators" vs. "technologists" when it comes to copyright reform. The idea was to have one hearing where "creators" talk about how wonderful copyright is and another for technologists to talk about how wonderful innovation is (though that one's not yet scheduled). As we explained, that's a ridiculous dichotomy, because it's not "one side vs the other" here. It's about what sort of copyright policy benefits the public the most. And content creators and technologists shouldn't be opposite each other on that front. Great new innovations in technology tend to help content creators, and an overbearing copyright policy can hurt content creators. The right way to do this isn't to set it up as one vs. the other, but to bring together actual stakeholders and figure out what's the best overall policy.

But, even given this false dichotomy, it seems like Congress is still doing it wrong. They've now released the names of those testifying at the first hearing, the one that's supposed to represent creators, and I'm baffled because there are almost no actual creators -- and there's no one who appears to have any significant experience with using modern technology to enhance creativity. Rather there are only representatives of legacy content industries.

Of the listed speakers, Eurgene Mopsik is an actual photographer. William Sherak, Tor Hansen and John Lapham all work for or own companies that help creators -- a movie production house, a record label/distributor and a stock image company -- but that's different from being a content creator themselves. In fact, you could just as easily include tech company representatives here. If you have movie studios, why not someone from YouTube? If you have a record label, why not someone from Kickstarter or TopSpin? And, finally, you have Sandra Aistars, who is a lobbyist for the Copyright Alliance (a front group for the RIAA and MPAA) which was set up by anti-union lobbyists (hardly the sort of organization that is actually interested in creators).

So, I'm confused. Why isn't the hearing including real creators? It could include folks like Zoe Keating, Jonathan Coulton, Alex Day or many, many other massively successful new artists who recognize that their ability to have a career in music today exists because of the internet. It could include content creators who have lived in both the old world and the new: filmmakers like Ed Burns, musicians like Hank Shocklee, authors like Barry Eisler. Hell, they could even have included a few more content creators who insist that copyright is the most important thing in their lives -- and it would still at least be about actual content creators.

But, as it's set up now, nearly all the people on the panel represent businesses that were set up solely to exploit existing copyright law, rather than to seek out the best ways to promote the progress and to create new content. Why not get actual content creators whose businesses were built up in the last few years under the reality of the internet, rather than these folks who built up businesses, not as content creators themselves, but in funding and managing other content creators under the older rules, and who are now seeking to keep those rules in place, rather than try to adapt to the modern market?

Filed Under: congress, content creators, hearings, ip subcommittee, judiciary committee, legacy industries, lobbyists, sandra aistars
Companies: copyright alliance, getty images, stereo d

Photographer Sues Desmond Howard For Infringement; Howard Counters With 'Publicity Rights'

from the desmond-howard-heisman-trophy-pose-feat.-desmond-howard's-trophy-pose dept

This has the potential to be loooooong story but I'll try to keep it short. It involves multiple counts of alleged copyright infringement by some pretty big names in the business, but the real story is someone striking after the iron has spent 20 years cooling.

Brian Masck is a photographer whose claim to fame is the iconic photo of Desmond Howard striking the "Heisman pose" after scoring a touchdown for Michigan. Twenty-two years later, Desmond Howard, along with Sports Illustrated, Getty Images, Fathead, Nissan and a host of others, are being sued for copyright infringement by Masck.

There's a pretty lengthy (and inadvertently comical) filing included. If you're tired of reading boring legal filings filled with boring legal language, you'll find plenty to enjoy in Masck's lawsuit, which spends more than 60 paragraphs recounting the story of this photo. Much of it reads like a painfully earnest biography and includes plenty of extraneous details rarely found in lawsuits, including the photographer's years as a college student and relevant darkroom experience.

Masck, who had already learned to take his camera with him everywhere, was the only photographer on site when Kelly was arrested. And that is why he was able to sell his photograph to the national media...

When Brian refused to stop taking pictures of the incident, he was arrested, along with the Daily's editor, who was protesting Brian's arrest. All charges were eventually dropped, but you could say Brian, who had just turned 20 years old, was earning his photojournalism credentials...

Little did either of them anticipate before the game that the foresight, perceptive planning and skill of one of them would facilitate the creation of a college football icon, let alone a broader cultural touchstone.

And so on.

That's just a couple of the filing's finer moments. There's plenty more where that came from, as well as some color photos to break up the wall of biographic text.

Here's a few of the details actually relevant to the case at hand.

- Masck didn't actually register the copyright on the photo until 20 years after he took it. He blames this on some bad legal advice from "his counsel at the time," who told him that SI's publishing of the photo (along with crediting the source) was as good as registering the copyright. It obviously isn't and this puts Masck in the position of proving actual damages and prevents him from collecting statutory damages.

- After registering the photo, Masck subtly altered his original in order to track its unauthorized use. (You can see a MS Painted version of the photo pointing out the changes on p. 32 of the filing.) He removed the logo from one glove and slightly extended the lettering on the football. He found this altered version posted at Desmond Howard's website and among the products being sold by Fathead.

- Masck registered "thetrophypose.com" in 2011. If you're looking for anything related to this specific "iconic shot," Masck probably has it for sale. It's a very singular website that caters exclusively to Desmond Howard fans who are looking to decorate their home with various Desmond Howard "trophy pose" merchandise. Unfortunately, this probably limits his potential audience to Desmond Howard, who has his own website dedicated to all things Desmond Howard. (There's more to this story as well, but we're getting to that.)

- Masck also drags the Lanham Act (something usually associated with trademark violations) into the lawsuit, claiming "unfair competition." Jake McGowan (writing for Eric Goldman's blog) finds these claims questionable.

Masck also brings unfair competition claims alleging that the defendants caused confusion as to the origin of the Heisman Pose photo. The problem with these claims is that they are effectively trying to emulate copyright protection by stretching the language of the Lanham Act.

In Dastar v. Twentieth Century Fox, the Supreme Court struck down such an attempt:

[The phrase “origin of goods”] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods . . . To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright, which Congress may not do.

The Court stressed that the “creative talent” embodied in the work was not left without any protection--if it had qualified, it could still have been protected by copyright. This same reasoning should also apply to Masck’s work, because his claims are based on the defendants copying his photograph, not passing off his physical copies of the photograph as their own.

Masck filed his suit in January. McGowan's coverage of the filing in February contains this prescient note:

See the photo in question, and the plaintiff's attempts to merchandise it, at his "store." (Check out the number of times the site stuffs the phrase "Desmond Howard"--I could see why this might raise some issues of its own).

That's exactly what it's done. The name "Desmond Howard" is used liberally throughout Masck's site. Desmond Howard isn't too happy with this, especially as he's been named in a lawsuit concerning a photo of himself.

It turns out that Howard is a bit upset that he's be sued over his own likeness — especially since he claims that he has never sold the photo or made any money off of it. So Howard and his lawyers have decided to file a massive countersuit against Masck, claiming that the photographer unlawfully used his image by selling merchandise featuring it online.

Howard is referring specifically to Masck’s website TheTrophyPose, which sells everything from life-sized cutouts to framed prints of the famed photograph. Howard also cites Masck’s facebook page “Desmond Howard’s ‘Trophy Pose’ 1991 Photo by Brian Masck,” which the lawsuit claims uses Howards name, likeness and photo, all without permission.

According to Masck's lawsuit, he discussed a partnership with Desmond Howard on more than one occasion. Howard apparently decided to go his own way (his personal site has a shop advertised on the front page but there's no live link yet), but he did post Masck's photo (the one with the telltale alterations) on his site, hence the copyright infringement allegations.

Howard seems amazed that Masck is attempting to run a business predicated on one photo of Desmond Howard. Masck feels Howard shafted him -- both on the business deal and with the unlicensed publication of his photo. Sports Illustrated and Nissan have both backed Howard's counterclaim and asked for the lawsuit to be dropped.

So far, no decisions have been made. The original lawsuit is still "live" and it appears Masck and the subject of his iconic photo will be squaring off in court to determine who gets to profit from this (20 years belated) enterprise. Frankly, I'm not seeing a huge upside in terms of sales, no matter which party the court decides for. It's very possible that potential profits will be outweighed by court costs. A few quick settlements would make Masck happy but Desmond Howard has kind of screwed up what seemed to be a rather straightforward (not counting the glowing biography/filing) infringement case.

Filed Under: brian masck, desmond howard, heisman pose
Companies: fathead, getty images, nissan, sports illustrated

AFP Back To Claiming That Twitter's Terms Of Service Allow It To Take And Sell Anyone's Twitpic Photos

from the they-can't-be-serious dept

Two years ago, we wrote about one of the most bizarre copyright lawsuits we've ever heard of. News giant AFP (Agence France Presse) -- for reasons that I still cannot begin to comprehend -- decided to proactively sue a photographer, Daniel Morel, after it (AFP) had taken his photos (of the earthquake in Haiti) from TwitPic without permission, and distributed them for sale via Getty Images. So why did AFP sue? Because Morel contacted them upon discovering this, demanding lots of money. And what was AFP's reasoning? Well, it tried to claim that Twitter's terms of service allowed this. There were all sorts of problems with that idea. First of all, the photo was on Twitpic, not Twitter, and the two are different companies. But, more importantly, neither of the terms of service from Twitter nor Twitpic (AFP eventually figured out the difference) allowed AFP to do what it claims. The AFP appeared to deliberately misinterpret the terms of service, which simply give Twitpic the right to make use of the images -- but that does not extend to third parties automatically, which is what AFP implied.

Oh, and did we mention that AFP itself has a history of copyright maximalism, including suing Google for merely linking to AFP stories, with AFP's headline showing in Google News?

And, while a judge eviscerated AFP's claims about TwitPic's license, it appears that AFP is back to relying on that as the crux of its legal argument.

And, it gets even worse. During discovery, Morel seems to have received a bunch of pretty damning evidence from AFP suggesting that the company knew all along what it was doing. There was the fact that AFP's director of photography for North and South America reached out to Morel prior to downloading the images. The same guy apparently copies other images from other sites. Multiple people seemed to suggest from the very beginning that they shouldn't use these photos -- including the Director of Photography at Getty, who pointed out that Morel regularly used rival photo agency Corbis. There was also some other damning evidence, including editing the copyright management info, and uploading the image under multiple names, and only issuing a kill notice on one name.

Oh yeah, and then there was the fact that someone inside the AFP sent an email saying:

Anyway, AFP got caught with a hand in the cookie jar and will have to pay.

And this was before AFP decided to sue Morel. Perhaps the company should have just paid up in the first place.

Filed Under: licensing, photography, tos
Companies: afp, getty images, twitpic, twitter

Do You Need Permission To Take A Photo With A Chair In It? You Might In France...

from the exactly-wrong dept

The British Journal of Photography (BJP) brings us yet another story of aggressive assertion of copyright wreaking harm on artists -- the very people it allegedly empowers. It concerns some photos in Getty Images' stock library that have chairs in them. Because a few of those chairs are "famous" in the sense that they were produced by a couple of designers that worked with the architect Le Corbusier, the heirs of those designers, together with the Le Corbusier Foundation, have sued Getty Images in France for copyright infringement -- and won:

"Basically, there are two notions of copyright going against each other in this particular case," says [the plaintiffs' lawyer] de Leusse. "Photographers' copyright, and the designers' rights. Very much like a photographer needs the authorisation of people featured in their photos before selling them, they also need the authorisation of the intellectual property rights' holders when it comes to works of art such as these objects."

That, of course, raises the question: when is a chair -- or any other object -- a work of art? Because the logic of the court's decision would seem to be that before you can take a photo of any "work of art", you must get permission from the rights holder -- but knowing when that is necessary is difficult.

Getty Images is apparently trying to push that problem on to its contributing photographers, judging by an email sent to them, and reported in the BJP article quoted above:

You are responsible under your agreements with us to submit only content for which you have the necessary rights. Using this case as an example, while you may hold a copyright in a particular image or clip, if it contains even a fraction of a Le Corbusier piece then you may not have all the necessary rights under French law to provide that content and therefore may be liable for copyright infringement under French law in respect of the furniture featured.

This ruling will surely lead to an escalation of claims in France against photographers for daring to "infringe" on the rights of someone by including "even a fraction" of an object in their photos -- perhaps unwittingly. Which, in its turn, will inevitably have a chilling effect on photographers' spontaneity and choice of subject-matter, as they try to avoid getting sued by shooting only the most generic of objects, and under tightly-controlled conditions.

And so, once again, the assertion of an intellectual monopoly will lead to an overall reduction in creativity, with both artists and society losing out -- exactly the opposite of what it is supposed to happen.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: chairs, copyright, france
Companies: getty images, le corbusier