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June 14th, 2016

Getty Files Copyright Suit over Stolen Photo Scheme on Facebook

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members traded illegally in stolen images. (Image taken from court papers.)

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members allegedly traded in stolen images. (Image taken from court papers.)

Getty Images has filed copyright infringement and other claims against an Ohio man who allegedly downloaded as many as 3,400 high resolution images from Getty’s servers without authorization, and then sold them illegally to unidentified buyers through a private Facebook group.

Getty says in its claim against Walter A. Kowalczuk, filed June 8 in US District Court in Cleveland, that he and other members of the group allegedly bought and sold images using euphemisms for the sources of those images, such as “Spaghetti” for Getty and “Apples” for Associated Press. Getty says one of its licensing partners reported the Facebook group activity in March.

That licensing partner provided copies of posts to the group that were made by Kowalczuk, Getty says in court papers. One post said, “Spaghetti and Apples served all day at the lowest prices around.” In another post, shown above, Kowalczuk allegedly offered the images for as little as 75 cents. Getty alleges that Kowalczuk made “dozens of posts” between late 2015 and spring 2016, inviting group members to contact him by private message to make purchasing arrangements.

According to the lawsuit, an employee of Photo File, which is a Getty distribution partner, contacted Kowalczuk in March about purchasing six images. (Photo File and Getty both license a photograph of a Chicago Blackhawks hockey player that Kowalczuk had offered for sale.) Kowalczuk allegedly told the Photo File employee that the source of the images was Getty, and “gave specific instructions for ordering the images, directing that each image be identified by the catalog number assigned by Getty Images,” according to court papers.

The Photo File employee complied with the instructions to purchase the images, and Kowalczuk sent a link to the images, which he had uploaded to a file transfer website.

Getty subsequently purchased 29 other images from Kowalczuk on three different occasions—March 29, April 1, and April 29—and each time, the process was the same. Kowalczuk gave instructions, Getty identified the images it wanted to purchase by its own catalog numbers, then Kowlaczuk  allegedly delivered them through a file transfer website.

Getty says Kowalczuk had downloaded the images illegally from its website using using login credentials of two unidentified Getty customers. In both cases, the customers “confirmed that Kowalczuk was neither an employee…nor authorized to use its login credentials,” Getty says. It is unclear how Kowalczuk obtained the passwords.

Most of the images that Kowalczuk downloaded and offered for sale “consisted of sports imagery,” including images from NHL, MLB, NBA and NFL games, according to Getty. The stock photo agency alleges that Kowalczuk sold the images to sports memorabilia companies. Getty is trying to identify those buyers so it can name them as additional defendants in the lawsuit.

Meanwhile, Getty is seeking damages from Kowalczuk for willful copyright infringement, contributory infringement (i.e., aiding and abetting copyright infringement by those he illegally sold images to), computer fraud, and Digital Millennium Copyright Act violations.

Kowalczuk has not yet filed a response to Getty’s claims, and efforts to locate him for comment were not immediately successful.

June 8th, 2016

Getty Jumps into Virtual Reality Market

SamsungVR

Getty is jumping deeper into virtual reality.

The company announced this week that it’s new Getty Images Virtual Reality Group is now live with over 12,000 360 images. It also includes high resolution gigapixel content from key events and venues. High quality VR production is also being offered through Getty Images Assignments.

The roll out of 360-degree imaging started four years ago at the 2012 London Olympics. At this year’s Rio Games, every Getty photographer will have a 360-degree camera, the company said.

“The technology is still in its infancy – as are the business models addressing how to use it – but we can expect to see VR become a leading tool for visual storytelling. It is anticipated that over 14 million consoles will sell this year alone  and we are only on the cusp of what will be a tectonic plate shift in VR” said Dawn Airey, Chief Executive Officer of Getty Images, in a statement announcing the initiative.

Last month, Getty Images said it was supplying hi-res VR content from current events around the world for Google Expeditions. Last year, Getty paired with Oculus Rift to provide 360 imagery available for users of the Oculus platform.

While it’s still early days, the market for VR content, including education, social experiences, movies, gaming and adult entertainment is expected to reach $5.4 billion in revenue, according to Piper Jaffray’s estimates. Google’s Cardboard app has been downloaded over 10 million times and there are over 1.3 million subscribers to YouTube’s 360 channel.

Read More:

The Gear You Need to Make VR Now

Popular Mechanics’ Photo Editor on VR

Should Photographers Jump on VR Bandwagon? (Subscribers)

Inside Story of World’s Best VR Camera

May 24th, 2016

4 Images for 99 Cents: Getty Signs Deal with ListaPost Social Media App

@ ListaPost

© ListaPost

Getty Images has signed an agreement to allow users of the ListaPost social media app to share and repost news, entertainment and sports images on social media for prices starting at $0.99 cents for four images, according to a press release from ListaPost. The ListaPost app lets users search Instagram for photos, save them to customized lists (without making screenshots), and turn them into slideshows for “publishing back into the social media landscape,” according to ListaPost’s statement.

Under its new content partnership with Getty, ListaPost users can browse and copy Getty’s more than 20 million editorial images into those slideshows. “Users have the option to share these slideshows externally via text, email, embeddable HTML pages and through a range of popular social media platforms.” In the press release, ListaPost co-founder Matthew Murray says users sharing Getty Images content can include individuals as well as “agencies, brands and social media influencers.”

Peter Orlowsky, Getty Images Vice President of Business Development is quoted in the press release saying that Getty is “excited to see how the market responds to ListaPost’s unique offering to Instagram users.”

Two years ago, Getty announced it was making its archive available free of charge to non-commercial users, as long as images were copied using an embed tool that collected data on the user, allowing Getty to push ads through the embed viewer without compensation to the user.

At the time, Getty seemed to be exploring a new source of revenue through advertising, while sidestepping the burden of pursuing online copyright violations by non-commercial users of its images. This latest business venture may be Getty’s attempt to reap fees for the use of its images on social media—by both commercial and non-commercial users. However, at a time when brands are hungry for new content for their social media feeds Getty seems to be selling its content at volume discounts.

Related Articles
Getty’s Free Image Program: New Revenue Model, or a Surrender to Copyright Infringement?

What Should Photographers Charge for Social Media Use?

What Federal Trade Commission Guides Mean for Instagram Influencers

What’s Next for Instagram: Facebook-Style Pay-for-Pay

Getty to Distribute Corbis Images for New Corbis Owner

March 22nd, 2016

500px Guts Royalty Rate on Non-Exclusive Images

500px_logo_dark_large

Photographers can expect to earn less money from 500px going forward. The company is preparing to substantially lower its royalty rate on non-exclusive images effective April 4, bringing the commission from 70 percent to 30 percent. Images that are exclusive to 500px will also get a haircut, albeit smaller, dropping from 70 to 60 percent commission.

The online marketplace defended the move as a capitulation to the “reality of running a stock marketplace” and the need to fund further growth.

500px has been emailing its customers in advance of the change. The full text was reproduced here. The pricing shift won’t be abrupt and will be tested over the course of several months, 500px said.

The service also plans to unbundling Multi-Seat and Unlimited Print license add-ons from the standard license that applies to both Core and Prime collections. There are also new license add-ons and an increase in the size of the Web Ready license from 1500 pixels to 1800 pixels on the longest side.

Photographers with exclusive images on 500px should begin marking those images as such to ensure they earn the highest rate possible.

October 27th, 2015

Model Wins Defamation Claim over HIV Awareness Ad

© NY State Division of Human Rights

The model whose likeness appeared in the ad has won her defamation suit. © NY State Division of Human Rights

A model who was falsely identified as being infected with HIV in a 2013 public service advertisement is entitled to damages for defamation, according to a report in New York Law Journal.

State court judge Thomas Scuccimarra said in his ruling that falsely identifying the model in a stock photo as HIV positive was defamatory because “from the perspective of the average person, [it] clearly subjects her to public contempt, ridicule, aversion or disgrace.”

The model, Avril Nolan, sued for defamation after her likeness appeared without her permission in an ad by the New York State Division of Human Rights. The ad featured a photo licensed from Getty Images and headlines that said “I am positive (+)” and “I have rights.” The ad copy said, “People who are HIV positive are protected by the New York State human rights law” and provided information for contacting the state’s Division of Human Rights.

Nolan does not have HIV. But the photo, which was licensed from Getty Images, appeared with no disclaimer stating that Nolan was a non-infected model posing for a stock image.

Judge Scuccimarra said in his ruling that it was “self-evident” that the state’s use of the model’s likeness was defamatory, according to the New York Law Journal report. The standards for defamation, he explained in the ruling, are the “sensibilities of society as to what disease bears a pejorative stamp.”

The judge noted that the New York State Division of Human Rights ignored warnings provided by Getty with the image license not to use the photo in any way that might be considered pornographic, defamatory, unflattering or controversial to a reasonable viewer.

The judge rejected out of hand the state’s argument that it didn’t violate Nolan’s rights under the state’s Civil Rights laws because the ad was a public service announcement, rather than a commercial advertisement.

A trial date for damages has not been set.

Nolan also sued Getty for unauthorized use of the photo, claiming she had never authorized its use for commercial purposes. That claim was settled out of court earlier this year, according to New York Law Journal.

— David Walker

Related Articles

Model Release Lawsuit Survives Getty’s Challenge

What Photographers Need to Know About Model Releases

September 21st, 2015

Can Software Judge the Esthetic Merits of a Photograph?

Market-landing-page-desktop-mockup-bgThe past year has seen a big spike in automatic photo-tagging, with Lightroom, Flickr and EyeFi all rolling out software that scans images and applies tags based on the image’s contents. Even though auto-tagging has had its share of missteps, EyeEm has an even more ambitious agenda. Its software not only scans and tags images based on content, but passes esthetic judgement on photos as well.

EyeEm’s judgement passing algorithm, dubbed EyeVision, isn’t new, but as of today it’s seen a significant overhaul. Jackie Dove at The Next Web has a nice piece exploring EyeVision’s capabilities.

EyeEm runs a stock photo market and, like all stock photo markets, wants to surface the best images whenever a prospective customer is searching for something. The new EyeVision software update purports to do just that–it can find images by tag but also pass judgement on which photos are more esthetically pleasing than others in its archive. Photographers take note: humans are no longer the sole arbiters of taste.

According to EyeEm’s CTO Ramsi Rizk, EyeVision can detect not simply what’s in a photo, but emotions and abstract contents. As Dove explains, “EyeVision recognizes 20,000 objects (hat, shirt, man, sun), photographic concepts (rule of thirds, vanishing point, symmetry, negative space) and abstract concepts (surreal, sadness, emotional, alone, carefree, exciting, tradition) and is constantly learning.”

It’s not just software crunching numbers, but software informed by the judgement of human photographers. Rizk told Dove that the esthetic judgements “comes from hundreds of thousands of photos that have been painstakingly curated by our community by professional photographers and our team…” This one-two punch of software guided by expert human input is what EyeEm hopes will be a critical differentiator as companies like Adobe, Google and others seek to tackle the same problem.

But EyeEm’s ambitions raise an interesting question about the future of photography in a software-driven world. Can we trust algorithms to pass judgement on what constitutes a “beautiful” image or is that criteria so subjective that it doesn’t really matter who (or what) is judging?

November 13th, 2014

Cowboy Lifestyle Photographer David Stoecklein Dies, 65

Idaho cowboy coverPhotographer David Stoecklein, who built a small publishing empire on his photographs of cowboys, horses, and western lifestyle and landscapes, died November 10 at the age of 65, according to a report in the Idaho Mountain Express. The newspaper gave no details about the cause of death.

Based in Ketchum, Idaho, Stoecklein began his career as an outdoor lifestyle photographer shooting advertising assignments for clients including Coca Cola, L.L. Bean, Reebok, Timberland and others. According to his website, his passion for the ranching heritage of the American West led him to focus on that subject, which led to assignments from Stetson-Roper USA, Wrangler, Agri Beef, Eddie Bauer, Chevrolet, Ford, Marlboro, and numerous others. He also contributed to numerous magazines including Western Horseman, Farm and Ranch Magazine, Cowboys and Indians, and Working Ranch magazine.

In addition to his assignment work, Stoecklein published at least 28 books, among them titles such as The Cowboy Boot, Dude Ranches of the American West, The Cowboy Horse, and The Idaho Cowboy. Along with the many books, he sold cards, calendars, posters, and prints through his website.  Stoecklein also ran frequent photo workshops at his ranch in Mackay, Idaho

He is survived by his wife, Mary, and three sons.

August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor’s note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

March 20th, 2014

Appeals Court Says Streamlined Photo Copyright Registration Procedures Are Legal

A federal appeals court has re-instated stock photo agency Alaska Stock’s copyright infringement claim against textbook publisher Houghton Mifflin, reversing  a lower court decision to dismiss the case on the grounds that the stock agency had registered its images improperly.

The decision means that Alaska Stock now gets the opportunity to try its copyright claims in court.

The case is a also victory for photographers and other copyright owners because it upholds a streamlined process for registering images in bulk as a collected work. Specifically, the court affirmed the authority of the US Copyright Office “to grant registration to individual stock photographs within a collection where the names of each of the photographers, and titles for each of the photographs, were not provided on the registration forms.”

“The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the [copyright] statue,” the US Court of Appeals for the Ninth Circuit said in its decision. “Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust.”

The ruling came in the case of Alaska Stock v. Houghton Mifflin Harcourt, which began in 2009 when Alaska Stock sued the publisher for using Alaska Stock images well beyond the scope of the original usage license. In particular, the publisher “greatly exceeded” the print run limit of the license it had paid for.

Houghton Mifflin challenged the claim on the grounds that Alaska Stock had improperly registered the images in question. (Federal law requires valid registration of any copyrighted work that is the subject of a federal copyright claim.)

Alaska Stock had registered the images in bulk, as a catalogue, listing names of only three photographers, and describing the images in general, but not listing a title for each photograph.

The district court agreed with Houghton Mifflin that Alaska Stock’s registration was “defective” because the agency had not provided the names of each of the photographers and the titles of each of the photographs in its registration application, as required “unambiguously” by law, according to the district court decision.

But the appeals court overturned that decision because it conflicted with a long-standing practice by the Register of Copyrights, undercut the legal authority of the Register of Copyrights to establish procedures of copyright registration–and amounted to a misreading of copyright law by the district court.

The appeals court noted that for more than 30 years, owners of collected works–notably magazines and newspaper publishers–have been legally registering both the collected work and the individual underlying works with one application, without listing all the authors or titles of the individual works. To do otherwise would put an undue burden on applicants and the Register of Copyrights, the court noted

The one caveat to that practice is that applicants for registration must own copyright to the collected work and all the underlying works, the appeals court noted.

In its decision, the appeals court also validated a 1995 letter from the Register of Copyright to the Picture Agency Council of America (PACA) prescribing a method for registering large catalogues of images. “The Register agreed that a stock agency could register both a catalog of images and the individual photographs in the catalog in one application if the photographers temporarily transferred their copyright to the stock agency for the purposes of registration,” the appeals court said in its ruling.

Alaska Stock did exactly that, asking its photographers to transfer copyrights to the agency for the purpose of registering the images in bulk, and then filing a registration application for a CD catalogue of images. (The agency arranged to transfer copyrights back to the photographers after the registration was completed.)

In reviewing the registration requirements spelled out under copyright law, the appeals court said the law requires only that copyright owners provide a title of the collected work and a description (not titles) of the underlying works. Alaska Stock met that requirement, the appeals court said, by registering the images as a collected work called “Alaska Stock CD catalog 4,” and by identifying the underlying works as “CD catalog of stock photos” on its registration form.

The appeals court said the statue requires the name of the author of “the work”–ie, the collected work, not every author of the the individual works. The stock agency met the requirement by listing itself [Alaska Stock] as the author of the collective work, the appeals court said.

The appeals court noted that Houghton Mifflin’s arguments have prevailed in several district court decisions in other similar cases, “but we do not agree with them,” the appeals court added.

In those cases, the courts threw out copyright claims because the registrations were “defective,” i.e., they did not list all the image authors and image titles.

Three of those cases were filed in the Ninth Circuit. One case was settled; two others are under appeal, and will probably be re-instated because of the Alaska Stock decision. “Judges in the Ninth Circuit have to follow the ruling of the court of appeals” in that circuit, says Maurice Harmon, who represents the plaintiffs in all the cases, including the Alaska Stock case.

A fourth case is on appeal in New York, which is in the Second Circuit. Judges there are not bound by the Ninth Circuit decision in the Alaska Stock case. But Harmon believes judges in other circuits “will take it into consideration.

“We think that at the court of appeals level, we’re starting to get momentum for all of these cases,” he adds.

Harmon also says, “It galls me that these [textbook] publishers, who use compilation registrations [to protect their own works], would turn their backs on the very thing they rely on to win a technical victory to take the courthouse keys away from photographers.

“But they know that once a photographer gets in the door of the courthouse, the publishers are not going to get away with this copyright infringement.”

Related:
After Flouting Print Run Limits, Publisher Faces Dozens of Lawsuits

March 12th, 2014

Model Release Lawsuit Survives Getty’s Challenge

A New York state judge has cleared the way for a lawsuit by a model who is accusing Getty Images of commercial use of her likeness without a model release.

State supreme court judge Ancil C. Singh rejected last week a request from Getty to throw out model Avril Nolan’s claim on First Amendment and other grounds.

Nolan sued Getty last September after her picture appeared in a public service ad promoting services for HIV-positive people. The ad, published in a free daily called AM NY, showed a picture of Nolan with the headline “I am positive (+) and I have rights.”

The ad was placed by the New York State Division of Human Rights, which licensed the image of Nolan from Getty. The photograph was shot by Getty contributor Jena Cumbo, according to court documents.

Nolan alleges that she didn’t sign a model release for the image, so Getty was in violation of New York’s right of publicity law not only for licensing the image for use in the HIV ad, but also for displaying the image on its web site.

New York state law prohibits use of a person’s likeness for advertising or trade purposes without written consent, i.e., a model release.

Getty countered in its motion for dismissal that displaying the images on its web site for licensing to third parties does not constitute advertising or trade use under the state’s right of publicity law. The agency also claimed a First Amendment right to display images for license to third parties. And it argued that Nolan should sue the State of New York, not Getty, since it was the state that used the image for advertising purposes, allegedly without consent.

But the judge concluded that Getty’s defenses are questions for a jury to decide.

The ruling was against Getty’s motion to dismiss the lawsuit, and not a ruling on the merits of Nolan’s claims.