Friday, June 10, 2016

Getty Images v. Walter A. Kowalczuk

Getty Images today notified contributors that on June 8th, 2016 it filed a lawsuit against Walter A. Kowalczuk because they allege he "downloaded thousands of images without authorization from Getty Images and profited from those downloads.  In addition, Getty Images believes that Mr. Kowalczuk was not acting alone, and the company is actively pursuing other possible infringers."

Getty Images has been the subject of many criticisms online for their aggressive handling of copyright infringement claims, and just two days ago Geekwire published "Getty Images rights claim against Seattle startup raises ‘phishing scam’ concerns", however, the article notes that the infringer (Aaron Bird) in this case "...will end up paying the settlement fee..."because, well, he infringed. Bird's concern centered around the question of a phishing scam and not whether or not he actually infringed on the work.

It is obvious that, with a reported 80,000,000 images in their archives, even a one-tenth-of-one-percent (.01%) number of infringements in a year that's still 8,000 copyright infringement cases. As such there has to be a system to handle that many infringements.  In 2013, in an effort to resolve what was likely massive infringement issues with Pinterest, Getty entered a deal with Pinterest, which PBN reported on here - Deception? Getty Images & The Pinterest Deal (12/13/13) and again PBN reported here - Monetizing Getty's 35M Image Archive via FREE Editorial Uses - about Getty offering a solution to reduce infringements through free use of the work they represent. While PBN wrote critically about both undertakings, and questions remain about the success of each, the question remains as to whether or not Getty Images contributors are receiving a portion of the revenue from these efforts, however, Getty is trying to find ways to reduce infringement and monetize the content they represent.

Getty Images should continue to aggressively pursue any theft of the intellectual property that they own wholly, or which they are charged with protecting on behalf of their contributors.

The Getty 2011 Contributor Agreement specifies:
1.11 Right to Control Claims. Getty Images shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Getty Images and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to Getty Images and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. Getty Images will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. Getty Images will pay you Royalties on any settlements it receives from Claims. If Getty Images elects not to pursue a Claim, you will have the right to pursue it.
Infringers don't like getting caught stealing, and so many claim innocence or ignorance, or attempt to fall back on a faulty fair-use claim. When those don't work, they begin to try to characterize Getty's efforts - wrongfully - as "extortion".  "The Art Law Journal" is a blog that is masquerading as a storied institution of art law journalism, but is nothing more than a facade - a week attempt by it's parent company, Orangenius, to appear to be supportive of creators and their rights. Their article "How to Respond to a Getty Images Extortion Letter"  includes the characterization that Getty "has created an entire business around sending letters to suspected copyright infringers and demanding exorbitant payments in return for not being dues [sic]." What Getty's business is built around, is the lawful licensing of intellectual property, so the author is flawed in his characterization of Getty's "entire business".  The author offers the defense of his writings by noting of his tips on how to respond to Getty "This response letter is not designed to alleviate anyone’s responsibility if they are infringing on Getty Images copyrights." It's pretty clear, if you downloaded an image and did not obtain permission to use the image in a non-fair-use situation and you did not pay a fee for said use, you're infringing. 

In August of 2009, PBN published a post titled Obama Image Copyright Infringement Issues  where Getty was also pursing the infringer of works Getty was representing.

The case is not currently listed in the online records database, which can sometimes take several days to update. When it does, we will update the story with the case number and formal "plaintiff v. defendant" title.

(entire statement after the jump)

Statement from Getty Images regarding the Kowalczuk case

As you know, we take copyright infringement and the protection of your rights very seriously and work hard to ensure that your work is properly licensed. Getty Images is continually pursuing a high number of copyright infringements, usually with the aim of turning individual infringers into customers. 

However, we want to let you know about an unusually serious and organized infringement case which you may see reported by the press [as it is in the public domain].

Getty Images has taken action against a serious copyright infringer who was discovered to have improperly accessed, downloaded and distributed Getty Images content through social media. 

In early March 2016, Getty Images received a report from one of its customers alerting us to suspected copyright infringements that were taking place via a private group hosted on Facebook.  

The ensuing investigation revealed the Facebook group was being used by some members as a forum for unlawfully trading and/or selling sports photographic imagery owned by or exclusively licensed to Getty Images.  As alleged in the lawsuit filed on June 8th 2016, defendant Walter A. Kowalczuk was an active member of this forum and used it to offer for sale, high resolution Getty Images images, and images belonging to other photo companies, for as little as $0.75 per image, using code names to hide the true source of content and to conceal his unauthorized sales.

While Getty Images’ investigation thus far has revealed significant infringement, it believes that further investigation will reveal that Mr. Kowalczuk downloaded thousands of images without authorization from Getty Images and profited from those downloads.  In addition, Getty Images believes that Mr. Kowalczuk was not acting alone, and the company is actively pursuing other possible infringers.  Getty Images filed a complaint against Mr. Kowalczuk for copyright infringement, violations of the Digital Millennium Copyright Act, and other claims.  That complaint was filed in the United States District Court in Cleveland, Ohio.

Getty Images strongly supports a robust and fair industry that recognizes and remunerates our contributors whose expertise, time and livelihood is adversely affected by copyright infringements such as those incurred by Mr. Kowalczuk. 

We intend to hold Mr. Kowalczuk and any others involved in this illegal marketplace accountable for their infringements.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

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