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Infringement And Getty


dcstep

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I've got around 200-images listed with Getty and I'm in the process of building that up, with a goal of 2,000-images in mind. I've had some nice sales, to the likes of Travel & Leisure, The Boston Globe, Huffington Post, etc.

 

One thing about images getting published in widely read publications is that the chances of them being stolen goes up exponentially. I've got an attorney that works on retainer on my infringement claims. With my images that are listed with Getty, I'm required to notify them of potential infringements. If they decide to pursue a claim, then I'm paid at my going rate with them. If they decide to not pursue a claim, then I'm free to engage my own attorney to pursue a claim.

 

My problem is that Getty is not responding to my notifications of potential infringement. I feel like, as my agent, they either owe me a defense against infringements, or the right to protect my copyrights by pursuing my own claims. Their unresponsiveness is a problem.

 

Has anyone else dealt with this and found a solution?

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I too am with Getty and only partially understand your comments. Getty is in the business of selling images, not providing legal services. On rare occasions, they'll go after big infringements, but I never got the impression that it was something they were interested in. On the other hand, they seem far more aggressive than Alamy. Have you ever seen anybody complain about a letter from the Alamy legal department?

 

As for a solution, it sounds like you've got one.

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I too am with Getty and only partially understand your comments. Getty is in the business of selling images, not providing legal services. On rare occasions, they'll go after big infringements, but I never got the impression that it was something they were interested in. On the other hand, they seem far more aggressive than Alamy. Have you ever seen anybody complain about a letter from the Alamy legal department?

 

As for a solution, it sounds like you've got one.

 

Getty is our Agent, for selling and protecting our copyrighted material from infringement. Our contract with them requires them to give notice of potential infringement and then they have the right to bring a claim, or decide not to pursue a claim, which frees you to do it on your own behalf. Instead of considering our potential infringement claims and either pursuing them, or notifying us that they will not pursue, they are sitting on the potential claims and not giving us notice. If we pursue a claim without their acknowledgement, then we open ourselves up to a suit by them against us.

 

If I've got a solution, I'm not seeing it. What have I missed? I feel like my hands are tied at the moment, because Getty simply does not respond to my queries, in this regard.

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On rare occasions, they'll go after big infringements, but I never got the impression that it was something they were interested in.
My personal impression (as a law school dropout getting pulled into legal stuff, not as a photographer marketing work) was different. They had a very eager lawyer going after homepage owners in Germany between 2009 and 2012 (according to traces on the Internet). - I have no clue if and when their policy changed.
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  • 3 weeks later...

I would say... As a Photographer who thinks that Getty Images is your agent, that's a mistake. None of these image farms are anyones agent. Stop referring to Getty as being your agent. All of these image farms… are really FACILITATORS —Not agents!

 

They, the image farms really feel as though Photographers are just business partners. That’s it! The image buyer is their customer, not the Photographer. They see Photographers as beneficiaries of their fabulous marketing efforts. Frankly, I don’t trust image farms to take a Photographer’s best interest at hart.

 

If you wish to find a good agent, your best bet is groom a college kid to be your agent and rep. Start them with a small salary plus commissions to get you assignments. That’s what real agents do. Agents get Photographers assignments.

 

As far as your legal retainer, I’m not sure you really need one. Here in NYC you can present your infringement case to an independent lawyer. If the lawyer feels confident in your claim, they will represent you on a case by case basis. Just be sure to state what you are owed and arrange for the lawyer to mark up at the standard 30% for legal fees.

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I would say... As a Photographer who thinks that Getty Images is your agent, that's a mistake. None of these image farms are anyones agent. Stop referring to Getty as being your agent. All of these image farms… are really FACILITATORS —Not agents!

 

They, the image farms really feel as though Photographers are just business partners. That’s it! The image buyer is their customer, not the Photographer. They see Photographers as beneficiaries of their fabulous marketing efforts. Frankly, I don’t trust image farms to take a Photographer’s best interest at hart.

 

If you wish to find a good agent, your best bet is groom a college kid to be your agent and rep. Start them with a small salary plus commissions to get you assignments. That’s what real agents do. Agents get Photographers assignments.

 

As far as your legal retainer, I’m not sure you really need one. Here in NYC you can present your infringement case to an independent lawyer. If the lawyer feels confident in your claim, they will represent you on a case by case basis. Just be sure to state what you are owed and arrange for the lawyer to mark up at the standard 30% for legal fees.

 

When I say Agent, I mean so in the legal sense. If you read the Getty Contributor Agreement, they offer my images for sale, collect a fee, keep the lion's share for themselves and remit an agreed fee to me, which varies depending on the type of license. Also, my agreement says that, regarding infringements, that they will consider taking legal action first and if they decide not to, then, and only then, I may pursue on my own behalf. Under the law, they are my Agent with regard to the images that I've given them a license to sale. If they paid me up front, regardless of whether the images sold, then they would not be my Agent; however, since they take on responsibility for marketing, collecting, remitting and, at their option, pursuing infringement claims on my behalf, they are my Agent. As Agent to me, by contract, they have an obligation to let me know if they intend to pursue infringement cases on the images that they've accepted from me.

 

As my attorney and I have discussed, Getty's Agency relationship with me is what gives them an obligation to respond in a timely manner when I give them notice of a potential infringement. We're working 0n a strategy to give legal notice, where we specify a time period for them to respond. If they don't respond in the specified time period, say 60-days, then we will take that as Acquiesce and I will pursue my Infringement claim. It'll be a few months, but I'll let the forum know how it works.

 

I've got a lawyer. I pay him a Contingency Fee for Infringement claims and an hourly fee for contract and other general legal work. If I asked him to pursue a infringement claim that he was unwilling to take on an contingency basis, then I would pay him a Retainer. No magic, just like any attorney/client relationship.

 

No college kid, with no experience and no contacts, could never be a good Marketing Agent. The reason that you hire a marketing agent is to gain contacts and credibility that you don't have with prospects. It takes most people decades to establish such contacts.

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Well, you are certainly taking a sustainable approach towards managing your legal matters. I assume you will be prospecting fortune 500 clients. For me, I'm a bit cavilair because I write my own contracts. My current market is B2C and B2B with fledging startups. While lawyers are assuring, they also tend to frighten the heck out of customers with their legal jargon. I've experienced clients who begin to have second thoughts after reviewing contracts that are written by lawyers. I feel confident in my ability to write a concise and straight forward contract that isn't intimidating. I applaud and agree with your approach. I'm just sharing my experience for knowledge sake.

 

Good luck to ya!

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Well, you are certainly taking a sustainable approach towards managing your legal matters. I assume you will be prospecting fortune 500 clients. For me, I'm a bit cavilair because I write my own contracts. My current market is B2C and B2B with fledging startups. While lawyers are assuring, they also tend to frighten the heck out of customers with their legal jargon. I've experienced clients who begin to have second thoughts after reviewing contracts that are written by lawyers. I feel confident in my ability to write a concise and straight forward contract that isn't intimidating. I applaud and agree with your approach. I'm just sharing my experience for knowledge sake.

 

Good luck to ya!

 

Thanks Mac.

 

I was a former senior executive in a NYSE company, so I know all about attorneys. You can't ever let them take charge, or they'll screw things up.

 

Like you, I draft my own contracts. I paid for an enhancement when a client wanted to use images of mine with identifiable individuals where I didn't have model releases. The client was the Publisher, so I needed some hold-harmless language and a specific acknowledgement from the client. I never even mentioned it to the client and it only required an additional sentence. It did cost me $150, but I consider it an insurance premium. I ate up 100% of the revenue from two prints.

 

I have a well paid full-time job as a financial risk manager, so, at the moment, I don't have time to prospect potential clients, so that's why I'm with Getty, for now. I can't take assignments without conflicting with my "real job", so I just work at photography when I have time.

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If I've got a solution, I'm not seeing it. What have I missed? I feel like my hands are tied at the moment, because Getty simply does not respond to my queries, in this regard.

royal1688

 

If you have a strong claim that an attorney is willing to take on a contingency basis, then you need to have the attorney give formal Notice, to the Getty legal department. That Notice will need to describe the potential Claim and give Getty a deadline to respond (say 60-days) and state that a non-response will be considered acquiescence by Getty and that you will pursue the Claim yourself, if they don't respond.

 

Here's some things that will make the claim not worth pursuing, at least in your attorney's opinion:

 

  • The infringer is not a "Commercial" site. So, if some dweeb puts your stuff up on Google+, then just send a takedown notice, yourself. (BTW, non-profits can be Commercial, if they're selling advertising and doing things to make money from their site).
  • The infringer is in Pakistan, Ukraine, Nigeria, etc., etc. So far as copyright law, many countries are lawless and your attorney has no standing there.
  • The infringement is a "deep link". Even if the site is Commercial, the courts are ambiguous about whether a site linking to your host is illegal. I've stopped a few myself, simply by changing the URL of the image. That breaks the link and the infringing site will say something like, "Image No Longer Available". It's always great fun for me to break a few links and then go back the next day to see broken links all over some -sshole's site.
  • You've given away your image multiple times before the Infringement. You still may have a case, but it clouds the waters.
  • I avoid this, but there can be trouble with uploading your images to certain sites, where the act of uploading gives the host broad rights to your images. Those vary widely, depending on the particular sites. So, even here, I link to my images on Flickr, rather than upload them here. Same for Facebook and other "Sharing" places.

I'm no attorney, but I've had lots of experience the last couple of years. If you want to PM me and describe your infringement, then I might can help you evaluate the potential Claim.

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I've stopped a few myself, simply by changing the URL of the image. That breaks the link and the infringing site will say something like, "Image No Longer Available". It's always great fun for me to break a few links and then go back the next day to see broken links all over some -sshole's site

 

On a slightly different note it might be fun to overwrite your actual image with an image of whatever message you might want to post. So rather than broken links perhaps it might be advertising for you or some cause that you support. (I'm not gonna suggest anything beyond that, but the imagination can run free.)

Edited by Bill C
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On a slightly different note it might be fun to overwrite your actual image with an image of whatever message you might want to post. So rather than broken links perhaps it might be advertising for you or some cause that you support. (I'm not gonna suggest anything beyond that, but the imagination can run free.)

 

If you're hosting your own images, you could certainly have some fun.

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Getty maybe an agent, only they more like real estate agent, they are in business make commissions, for legal staff there are lawyers, and they tend to be more expensive than photographers.

 

Yes, real estate agents enter a classic agent relationship with their clients, just like Getty. Besides selling our images, Getty says that they want first right of refusal to protect us from infringement. That's the part of the agency agreement that this thread is trying to deal with.

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Yes, real estate agents enter a classic agent relationship with their clients, just like Getty. Besides selling our images, Getty says that they want first right of refusal to protect us from infringement. That's the part of the agency agreement that this thread is trying to deal with.

Real estate agents also supposed to put clients interests before commissions, had you seen it in real life?

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Real estate agents also supposed to put clients interests before commissions, had you seen it in real life?

 

In the USA, every state has regulations dealing with real estate agents, because of the sorry state of affairs, where agents routinely work against their cliets' interests. Unfortunately, Getty is not subject to such regulation and routinely bullies their clients and gets away with it.

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