What is the Weakness of Getty Images China’s Protection Litigation against Photo Infringement?

(By You Yunting) Recently, Getty Images China brought cases regarding copyright infringement arose from Weibo to courts. These companies sued by Getty Images China almost take a similar pattern like that: first these companies have outsourced its right of operation for their Weibo to ads enterprises, then on its Weibo ads enterprises published photos that Getty Images China owned in their thought, and finally these companies were sued by Getty Images China. Some customers asked us how to face such litigation. We will share our analysis on this question and introduce a case which Getty Images China lost its litigation in the Supreme People’s Court.

 Getty Images China is a Sino-foreign joint venture company in Beijing by U.S Getty Images Inc (NYSE.GTY) (the “GETTY”) and a domestic company. Getty Images China had legal recourse of copyright protection against photo infringement in mainland China through authorization from GETTY and started copyright litigation against infringement in China. In process of litigation, all pleading of the sued party are focused on the validity of copyright registration over GETTY’s photos because its copyright registration is in U.S, not in China. Pursuant to the Berne Convention for the Protection of Literary and Artistic Works, copyright registration in U.S shall enjoy national treatment in China which means that it also is protected by China’s laws. However, copyright registration departments in U.S does not assess whether the copyrighted works is in the period of copyright protection.

 I once asked an officer of U.S Copyright Office during my visits to its office about this problem. The officer of U.S Copyright Office said that they almost unable to find out whether the copyrighted photos are in the period of copyright protection because of their thousands of photos submission for copyright registration.

Lots of domestic courts had already notice this question. For example, although Getty Images China lost in Chongqing Higher People’s Court 2 years ago and then appealed to the Supreme People’s Court, the Supreme People’s Court modified the judgment contained by Chongqing Higher People’s Court and directly decided constituting infringement where once was introduced in our post Is a Copyright’s Creation Time Important for Deciding Copyright Infringement. Since this judgment of the Supreme People’s Court came out, it pointed out a clear attitude towards this question so that Getty Images China almost has won all litigation for copyright protection in China.

 Judgment to this question seemed, however, changed in the first half of this year because of the Supreme People’s Court judgment on the grounds of insufficient evidence Getty Images China had to prove its copyright on the infringed photo. In the author’s opinion, this latest judgment of the Supreme People’s Court would have a negative impact on Getty Images China’s copyright protection. We will introduce this case for the following.

 In 2011, Getty Images China brought a lawsuit to courts, alleging that Guizhou Quanli Real Estate Development Company and Guizhou Qiaoxin Company constituted copyright infringement due to their publication of Getty Images China’s photo (the “disputed photo”) on its brochure without permission.

 The court of first instance decided that GETTY had enjoyed copyright of the disputed photo for there is a copyright registration in U.S Copyright Office and a watermark on the disputed photo which considers as a signature of GETTY. Therefore, the court of first instance ordered the defendant constituting copyright infringement and compensating RMB 800 to Getty Images China. Dissatisfied with the judgment of first instance, Getty Images China and Guizhou Qiaoxin Company appealed.

 Guizhou Qiaoxin Company in its appeal argued that, where there is a signature of Steve Cole on the disputed photo, GETTY shall, if claimed as the owner of the disputed photo, prove a license agreement between GETTY and Steve Cole, or that this disputed photo was a service work, or a certificate of copyright registration. However, GETTY failed to prove the afore-mentioned evidence. Therefore, based on following reasoning, GETTY does not enjoy copyright for the disputed photo and cannot authorize Getty Images China to exercise its copyright.

 The court of the second instance heard the case and held that, considering digital photos does not eliminate one to own others’ works and claim for rights due to its characters, such as ease of duplication, storage and modification, in order to balance the interests between the public and the copyright holder, under the doubt of Guizhou Qiaoxin Company on its truth for copyright on the disputed photos, Getty Images China shall further provide GETTY to be the copyright holder of the disputed photo by providing more evidence, such as information of copyright registration, publication and authorization from Steve Cole. In this case, considering Getty Images China’s failure of proving GETTY to be the holder of disputed photo, therefore, the court of second instance repealed judgment of the first instance and rejected all claims of Getty Images China.

Dissatisfied with the judgment of second instance, Getty Images China applied for retrial to the Supreme People’s Court. The Supreme People’s Court affirmed the judgment of second instance and rejected all Getty Images China’s claims on the grounds of insufficient evidence Getty Images China had to prove GETTY to be right holder of the disputed photo.

 In conclusion, in the author’s opinion, in relation to GETTY who owns large amount of photos, GETTY shall be obliged to do mass submission for copyright registration in considering government efficiency. However, one cannot deny that such preferential treatment from U.S government may not reduce GETTY’s burden of proof against copyright infringement. If one doubt other’s right of the photo and provides preliminary evidence, GETTY is obliged to prove further perfection of the burden of proof to own the right of the disputed photo from legitimate sources.

Lawyer Contacts

You Yunting86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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