Friday, January 30, 2009

Everett Collection Infringed Copyrights


I'm not clear who it was that the Everett Collection sought counsel from when they decided to sell/license/rent the intellectual property of others (as shown above), without their permission, or conveyance of monies from those transactions, but, well, they lost that battle.

In a press release from one of the infringed, photographer Michael Grecco reports on the opinion of Judge Colleen McMahon of the United States District Court for the Southern District of New York (Case #1:2007cv08171). In that 21 page opinion, issued on December 9, 2008, were the following: 1. The Everett Collection's copying of the images was not "de minimis" and was in fact actionable. 2. Everett infringed on Grecco's copyright by distributing the images to others. 3. That the mere posting of images on the website, even if they were not distributed to others, was an infringement and created liability for Everett. 4. Although not sought by Grecco, the court found that he was entitled to summary judgement as a matter of law with respect to 9 images. 5. Whether copyright infringement has in fact taken place is not determined by the amount of money received by the infringer. Among several notable aspects of the case, the court upheld the concept that an infringer's failure to profit on its infringement is no defense.

(Continued after the Jump)

As a result, the court directed the matter go to trial with respect to damages on certain images, and that pre-trial discovery continue with respect to the balance of the images. This case, filed by Grecco against The Everett Collection, Inc. was, plain and simple, an allegation (now substantiated) for copyright infringement. Everett maintains a website archive at www.everettcollection.com which contains publicity materials that principally related to the entertainment industry. Grecco had alleged that Everett infringed on 23 of his copyrighted images of celebrities including Christina Applegate from "Married with Children," David Duchovny and Gillian Anderson from "The X-Files," Luke Perry from "Beverly Hills 90210," Parker Posey and Lucy Lawless - "Xena." The suit claims that without his authorization or consent, The Everett Collection posted Grecco's images on it's website and offered to "rent" them to third parties. Everett represented on its website that it "is not the copyright holder of the images" but nevertheless offered the images to third-parties in exchange for an "access fee" or "rental fee."

Everett moved to dismiss the complaint claiming, among other things, that although it admitted to posting the images, its unauthorized copying and offering of images was "de minimis," and therefore not actionable. Everett also claimed that the monies realized by it were "negligible;" and that Grecco did not have the right to bring a copyright action, such right being held by Grecco's clients and not Grecco.

So, it remains to be seen what the trial will determine damages will be. Further, and of greater importance to the industry as a whole, is what Everett Collection continues to do with copyrighted material. At one time, they had a distribution agreement with Fox, but that has apparently gone away, and unless they have distribution agreements with other studios (and that remains in question, to date), they are distributing images for which they have no right.

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10 comments:

Anonymous said...

I'll have to quote Cher on this one.

"Thieves, Thieves, Tramps and Thieves"

Anonymous said...

Wow. Seems to be on the far side of stupidity.

northern virginia photographer said...

Justice at last! Lock 'em up like the perversions they are. Nice to know that profit isn't the decider as I have this guy.....

Anonymous said...

unbelievable that the Everett Collection, like the Kobal collection, has been able, all these years, to license images for which they have absolutely no rights. It is beyond me why these studio companies or major broadcast companies do not sue them for the millions of US dollars they have been stealing over the years. Keep a track on this story, John, as I am sure it is not finished...

Anonymous said...

I went for a job interview at the Everett Collection, years ago. When I got there, they showed me where to hang up my coat and handbag. I thought the handbag part was weird, so I kept my bag with me.

I was then told I had to hang it up on the hook. Stupidly I did, and went in for the interview.

After I left, I stopped off at a market on my way home. When I went to pay, all my cash was gone. They had stolen ALL the cash from my wallet. Fortunately, I wasn't carrying any credit cards with me.

I never found out if it was a problem with a rouge staffer, or if this was a scam they were running on interviewees. Either way, I was not upset that I didn't get the job.

Anonymous said...

~「朵語‧,最一件事,就。好,你西中瀟灑獨行。

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mhdrucker said...

Everett addressed these issues in its motion to reconsider, which explained the information adduced during discovery; namely, that the networks and Mr. Grecco himself believed the studios had the rights to the Images for longer than a year. The Court found that Grecco’s testimony contradicted the language in his form contract which rendered the contract ambiguous.

The Everett Collection is now presented with the opportunity to reargue its position that Michael Grecco Photography, Inc. does not own the exclusive rights to the photographs taken for USA Networks and that its decades old service of offering publishers and the media copies of publicity stills for editorial use is non-infringing.

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