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.
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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