Tuesday, November 11, 2008

Update on Getty Images

Getty Images is still threatening people, so it seems from comments that continue to come in on my earlier posting on Watching Getty Images Watching Canadians.

Here's an update to November 11, 2008.

To date, Getty Images has still launched only one copyright infringement action in the Federal Court in Canada, according to the Federal Court’s website as of November 11, 2008. That was on March 28, 2008. It is possible that it has sued in one or more provincial courts, but this would not make a lot of sense if it is planning a cookie cutter approach.

Masterfile, another stock photo company, has filed several actions in the Federal Court, many of them discontinued, which suggests that there may have been a settlement in such instances. I haven’t actually looked at any of the files, since details are not available online. Masterfile filed several statements of claim on January 22, 2008. As of November 11, 2008 there is nothing more recent on the Federal Court website.

An American law firm has posted a couple of comments on my blog looking for business from recipients of letters from Getty.

I have taken these posts down because Canadians may not be aware that an American law firm cannot act for them in a Canadian court. Furthermore, Canadian and American copyright law differ in many respects.

Canadians who are looking for advice should contact David Fewer at the wonderful Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) at the University of Ottawa

His phone number is 613-562-5800 ext. 2558.

Canadians should be aware of the provisions regarding statutory minimum damages. These can range as high as $20,000 per infringed image. But more importantly, a judge can lower the amount to as little as $200 per infringed image, or even less if there are multiple images involved. Here’s the provision in the Copyright Act:

Statutory damages

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.

Where defendant unaware of infringement

(2) Where a copyright owner has made an election under subsection (1) and the defendant satisfies the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award to less than $500, but not less than $200.

Special case

(3) Where

(a) there is more than one work or other subject-matter in a single medium, and

(b) the awarding of even the minimum amount referred to in subsection (1) or (2) would result in a total award that, in the court's opinion, is grossly out of proportion to the infringement, the court may award, with respect to each work or other subject-matter, such lower amount than $500 or $200, as the case may be, as the court considers just.


1 comment:

  1. Hi!
    We had a small company wich ceased to do buisness a few years ago but the website stayed online until we received a first letter from Getty saying we should be paying 1000$ for each of the two photos they say where wrongfully used. We ignored it.
    We received a second letter saying that if we don't pay, they will escalate it to court.

    We are from Quebec, if they'd sue, which court would they file suit? Superior Court?