Upload & Sell: On
Suing the House of Blues in Federal Court is a bit extreme don't you think? Sure the OP is pissed, but to retain a lawyer and try to get money out of them for the usage is a bit silly. Issue a DMCA takedown and have the pictures removed.
It may sound "silly" and "extreme" at first thought, but consider this:
Going DMCA and takedown only sends a message LOUD & CLEAR ...
Go ahead and continue to steal from people ... AND ... IF ... you get caught with your hand in the cookie jar, it won't cost your a dime. So, go ahead and continue to steal images, you've got nothing to lose and everything to gain. The worst you'll have to do is say "I'm sorry".
If that is the message that you want to send, sure you can do that. In the meantime, that gives The House of Blues, etc. opportunity to avoid paying anyone in the industry for the work that was performed.
I realize there are two camps on this issue ... one that says "make it right" and the other that says "let it slide".
I get the "win the battle" vs. "lose the war" ... but I think that there comes a point when you have to stand up and be counted. This is of course going to be a personal decision that everyone will have to make for themselves ... but, I think that far too many people simply "give in" because they don't know how they've been wronged ... and in certain such cases, attorney's fees are part of the award against the offender. THAT ALONE ... makes it worth the HoB paying an invoice rather than risking the fines and OP's attorney's fees.
If I'm HoB's attorney's I tell them to offer $5,000 to the OP ... and HOPE that he takes it. The minimum award is $2,500 and they have violated AT LEAST two aspects of the DMCA. Tack on attorney's fees and the possibility that each violation could be significantly higher than the minimum ... $5,000 is a bargain. They could offer less, but since they know that the world of photographers is aware, they should be afraid that the OP will take it in to court. A properly filed suit lets them know that you are to be taken seriously.
Then there's this: HoB protects their own venue performances with the same genre (i.e. copyright) of laws that they are violating. There is no way I want to be HoB and try to explain to a judge why the law should work for them when they want it to, but not be held accountable to the same when the Big Guy steals from the Little Guy. Not only is this a case of willful theft, willful copyright removal, willful misrepresentation of copyright ... BUT ... THEY ABSOLUTELY KNOW BETTER, as they use the law for their own purposes.
Mickey Bill "gets it" with regard to "battle vs war" in business ... the House of Blues totally knows they are in the wrong. But, until you show them that you've got them cornered, they will try to get off easy. If they get presented with sufficient evidence (including the belief that the OP has sufficient legal knowledge/support) then they will try to "settle up". The invoice (as I've suggested elsewhere @ other instances) is an efficient route as long as they know you've got firepower behind you and that they are better off paying the invoice.
I am interested in knowing what others think the Facebook "Statement of Rights and Responsibilities" means.
Read it here.
Specifically see section 2.4, which states:
"When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)."
It would seem to me that by posting an image on Facebook you are giving others the right to use that image as they want. Am I reading this correctly?
The KEY POINT at Facebook's statement is "and to associate it with you". The House of Blues did NOT do that. the removal of the OP's information is in violation of Facebook's policy and the statues that Facebook is CYA'ing themselves from in the DMCA 17 USC 1202 (b).
Just because Facebook includes policy that indicates that they can't stop others from lifting images from Facebook ... that doesn't mean that the HoB didin't violate federal law. Whoever removed the copyright information is in violation of one section of the law, using it (allowing others to think it was theirs/not yours) is in violation of another section of the law.
Going along with what the OP has presented ... HoB (et al) has violated multiple aspects of the DMCA. The "TAKE DOWN" part of DMCA is but ONE aspect available in the possible remedies for such violations. It is not the only, but it sure is the one that sends the message of go ahead and keep on stealing, nobody's going to do anything about it.
Note also ... that in section 1203, reference is made that for REPEAT offenders (within a 3 period of judgment against them) can have fines TRIPLED. Of course, they must have had a judgment against them (i.e .must have been through the court) the first time. If no one ever takes an offender to court (i.e. take down notice only), then they never get found as a REPEAT offender.
Straight from 17 USC 1202:
1202. Integrity of copyright management information
(a) False Copyright Management Information.—No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement—
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information that is false.
(b) Removal or Alteration of Copyright Management Information.—No person shall, without the authority of the copyright owner or the law—
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.