IPA - Gentieu Litigation Shows Brute Force of the Courts


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Gentieu Litigation Shows Brute Force of the Courts

by Stephen Filler, Esq.

Although we like to think of our legal system as a fair forum that grants majestic justice from on high, for Penny Gentieu in her recent litigation with Getty Images it was more like a back alley extortionist that threatened to crack her knees unless she dropped her claims and walked away.

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For nearly twenty years, Gentieu has been a successful photographer known for her stylish and distinctive images of babies floating above white backgrounds. Although Gentieu had a successful relationship in the 1990’s with stock agent Tony Stone Images, the relationship soured when Getty acquired Stone, and Gentieu refused to sign Getty’s new and more onerous contract (including a reduction in royalty from 50 to 40%).† Around the same time, Getty solicited other photographers -- with contracts more favorable to Getty -- to shoot baby images similar to Gentieu’s, which Getty then licensed.† Gentieu’s royalties declined substantially in 1998, 1999, and 2000.†

In January 2000, Gentieu sued Getty, claiming that Getty owed Gentieu royalties eventually totaling more than $100,000.† Gentieu also claimed that Getty’s solicitation, creation and licensing of the competing images was a breach of contract and fiduciary duty.† Finally, Gentieu claimed that many of the resulting images were substantially similar to her images and infringed her copyright.

In March, 2003, Judge Milton Shadur of the United States District Court for the Northern District of Illinois granted summary judgment for Getty.† Gentieu v. Tony Stone Images/Chicago Inc. et al,† 255 F. Supp. 2d 838 (N.D. Ill, 2003).† The judge believed -- even accepting the evidence in a light most favorable to Gentieu -- that no reasonable jury could find in Gentieu’s favor. As a result, Gentieu got no trial and no jury.

Although the Court found that Gentieu’s and the allegedly infringing images were similar, the similar elements were not protected by copyright.† The Court paid lip service to the black letter law that copyright in photographs includes composition, lighting, shading, camera angle, background and perspective, but then denied Gentieu protection in those elements of her work.† Gentieu’s copyright, the Court stated, could not include “the idea of photographing naked or diapered babies or in any elements of expression that are intrinsic to that unprotected idea.” Gentieu’s use of focus, camera angle and “high white” background, were unprotected, the Court concluded, because they were “scenes a faire,” that is, elements that “are as a practical matter indispensable, or at least standard, in the treatment of [photographing babies].”† As a result, the court dismissed Gentieu’s copyright claims.

Similarly, the court dismissed Gentieu’s claims of breach of contract and fiduciary duty. Shortly before the summary judgment motion was argued, Getty paid Gentieu for past royalty fees in the amount of $111,045.71. The remaining issue concerned the important question of what are an agent’s obligations to a principal -- in this case a photographer -- when the agent represents numerous principals.† In particular, was Getty liable “when it actively . . . commission[ed] images from other photographers to replace images that it had . . . from Gentieu”?

Even though there was little precedent on this issue and without the benefit of a trial, the Court held that Getty’s obligations were minimal, summarily concluding that “the very nature of the stock photography business requires that the stock agency solicit images on the same subject so that it can offer clients a menu of images to choose from.”†

Gentieu filed a notice of appeal and still had reason to be hopeful.† Complicated matters are commonly reversed on appeal, especially copyright cases concerning which elements of a photograph are protectable, an issue that has been notoriously difficult for judges.

But what Judge Shadur did next made it virtually certain that Gentieu would have no trial and that no appeals court would review his decision.† In August, 2003, the Judge granted Getty’s motion for attorneys’ fees in the amount of† $728.308.23 -- an extraordinary amount, especially given that there had been no trial and that it took nearly three years for Getty to acknowledge and pay over $100,000 in undisputed royalty fees.† What’s more, even though the appeal was fully briefed and oral argument was set for October, 2003, the Court ordered that the attorneys’ fee judgment be paid by September 12.

Getty quickly sought to execute the judgment -- which would have happened before the appeal took place unless Gentieu was able to post a substantial bond (she wasn’t). Gentieu suddenly faced the real prospect of losing not just her tangible assets, but also all rights to her entire image collection.

Getty, too, apparently didn’t want the case to be heard on appeal and quickly made Gentieu an offer she could not refuse.† If Gentieu would drop her appeal and her claims, Getty would drop any claim to attorneys’ fees.† Additionally, Getty agreed to pay $40,000 in attorneys’ fees to Gentieu’s lawyer. After a four year fight and facing the possibility of losing everything, Gentieu accepted the offer.

This conclusion, and indeed the entire litigation, is a tragedy of the legal system. Gentieu had substantial copyright and contract claims that were important not just to her, but that raised important questions about copyright and the duties that an agent owes to a principal.

Instead of providing a forum where these important disputes could be fairly resolved, Judge Shadur complained about the “imposition to have been compelled to parse all of the photographs presented in this record,” and showed personal disdain for Gentieu and her attorneys, claiming their arguments were “absurd,” “frivolous” and “obviously ascribable to an over exaggerated sense of self importance.”†

The Judge even seemed to relish in what he did to Gentieu, finding that her claims had been “torpedoed,” that she was “dead to rights,” and in spite of her “attempts to squirm,” she “was a dead-bang loser.”† Unfortunately, Judge Shadur’s strong-arm tactics not only denied Gentieu a fair forum to fully litigate her dispute, but will likely discourage other artists from protecting their rights against the entertainment media.

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Copyright © 2004 Stephen Filler.† Stephen Filler is an attorney ( http://www.nylawline.com ) whose practice includes intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law.† His office is located at 303 South Broadway, Suite 222, Tarrytown, New York, 10591, 914-332-4114, sfiller@nylawline.com. This column is to be used for informational purposes only and is not legal advice. For legal advice, please consult an attorney.