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Archive 2013 · Finally AFP goes down. Photographer wins one.
  
 
TT1000
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p.1 #1 · Finally AFP goes down. Photographer wins one.


AFP loses on it's (idiotic) reading of the (then) Twitter TOS to defend it's taking D. Morel's photos off TwitPic.

The AFP reading of the Twitter TOS to grant the entire world a license to use content posted to Twitter was rejected over 2 years ago (the second Judge in the case put the nail in the coffin with a summary judgement ruling a few days ago), so one wonders why AFP dragged it out for another 2 years of legal fees and expenses ?

The case isn't over if AFP presses it; a Jury still has to decide on "willfulness" and the amount of damages. And Getty still has some live defenses. But it's over for AFP and Washington Post on the issue of infringement. The only issue for them is how large a check they will be writing to Morel.

Chalk one up for the little guy.

The court's ruling may be found at this link:

https://docs.google.com/viewer?url=http://blogs.nppa.org/advocacy/files/2013/01/AFP-Morel-Decision-01-14-13.pdf



Jan 18, 2013 at 09:57 AM
RustyBug
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p.1 #2 · Finally AFP goes down. Photographer wins one.


Hopefully we'll begin to see a few more come along this way as well, and things can begin to have some teeth. Maybe it'll be a big enough check (not greediness, per se) to send a message that it will be obvious to others that they might want to think about how many images could they have actually licensed instead for the amount of money they spent on legal fees and the award ... i.e. no fear = no deterrent.

Thanks for the link.

BTW, I'm still waiting to find out about Harvard ... they haven't made the final notifications yet.



Jan 18, 2013 at 11:44 AM
Littleguy
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p.1 #3 · Finally AFP goes down. Photographer wins one.


I wouldn't bet too much money on that.

Twitter has already changed their TOS due to this case. So don't expect the same judgement if this happens to you.




Jan 18, 2013 at 01:28 PM
TT1000
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p.1 #4 · Finally AFP goes down. Photographer wins one.


More cases ? Is there some practice of major news organizations lifting photos off TwitPic and reusing them ? Who has been doing this after this widely reported case made the news 2+ years ago ?

The defendants are going to be paying. Two have been found liable for infringement by the Judge. The Judge discussed facts with which a jury can find wilfulness which ups the max end of damage award by 5x (the possibility of which enhances ones ability to extract a favorable settlement).

As for Getty, while the Judge didn't dismiss the defense, the Judge doesn't sound too impressed with Getty's "safe-harbor" defense. Getty is arguing that it isn't responsible for infringing content provided by users to it's computer system such as the photos provided by AFP. Just like FredMiranda wouldn't be responsible if you or I uploaded infringing content to this site. Alas, Getty is in the business of licensing copyrighted content not simply providing a place online for others to share it. Getty's still alive though because but it's for a Jury to consider whether Getty is entitled to the DMCA "safe-harbor. But if Getty wants to roll the dice with a trial it could also be found to be infringing.

And damages are apart from what have to be at this point very large legal bills. And the Judge can make defendants pay Morel's as well.

If statutory damages and legal fees aren't "teeth" what do you want a public stoning ?




Jan 18, 2013 at 01:29 PM
TT1000
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p.1 #5 · Finally AFP goes down. Photographer wins one.


"Twitter has already changed their TOS due to this case. So don't expect the same judgement if this happens to you."

I haven't read it but I would guess if there were changes it was to make the TOS even clearer than they were to this Judge that you can't take content and reuse it outside of the Twitter "eco-system" unless you are Twitter itself or a Twitter "partner." Not to relax that prohibition. So, yes, I would expect not only the same result but without 2+ years of legal wrangling.

How was my guess ? Anyone read the latest TOS ?



Jan 18, 2013 at 01:35 PM
RustyBug
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p.1 #6 · Finally AFP goes down. Photographer wins one.


When I said more cases ... I meant more cases where "propriety" wins. When I said "teeth" ... I meant sufficient that it begins to take hold in the public perception that images aren't a "free for all" after all, where nobody has to take any responsibility for the wild west of photo theft.

While, you & I know that the legal fees are $$$$, the general public doesn't make that equation. They take notice of the award when it is $$$$$$$$$. An award of $$, and other potential/future offenders, see it as a lesser deterrent.

I haven't checked out Twitter's TOS (before or after) ... but wondering if FB is going to adjust/proceed with their TOS in the wake.

Smaller companies / organizations / individuals do it with regularity, and all too often people don't fight back sufficiently. Another part of the "teeth" is to generate a stronghold of propriety into the mindset of others who've been wronged that fortifies their will to do so.

Not that every case should be a multi-year legal battle ... but the tide needs to start to turn regarding the societal perception regarding image theft as being no big deal. How many times have we heard something like "If you don't want to accept my lowball offer of 'I'll give you photo credit' for your work ... I'll just go online and grab someone else's." The current perception for far too many is that it is okay to do so (without any real regard for when it actually is vs. isn't).

Twitter being a highly recognizable organization for the public ... it they receive a $$ fine, the public will continue to perceive it as "no big deal". If they receive a $$$$$$$ fine, the public will take more notice to the impropriety of image theft.





Jan 18, 2013 at 04:13 PM
Littleguy
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p.1 #7 · Finally AFP goes down. Photographer wins one.


Interesting points to me:

- Mr. Suero, the original copyright violator is no-where to be found in the suit (deep pockets doctrine at work here)

- Not sure it Mr. Suero or Mr. Moral got payment for having the images licenses out commercially.

- If AFP had just partnered with Twitter – it could have sucked up all the Images it wanted for free – just look at Twitter’s TOS for details

- Damages still to be assessed but looks like it will be based on the number of images infringed x statutory amount (varies depending ($750 – $150,000) depends on if there was willful intent to violate or not – will be determined by jury if it goes to trial) and not number of downloads x images x statutory amount.

- It appears to me that if the Washington Post had gone directly to twitter and printed a screen print of twitter and the photos in question – it may have avoided being dragged into this suit.



Jan 18, 2013 at 07:45 PM
TT1000
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p.1 #8 · Finally AFP goes down. Photographer wins one.


@littleguy

"- If AFP had just partnered with Twitter – it could have sucked up all the Images it wanted for free – just look at Twitter’s TOS for details"

Yes, that would have stopped this case in its tracks. No need to refer to TOS, you can infer it from the decision. Twitter gets to do what it wants with your content. You can make a deal with twitter or with the copyright owner. But you can't take content out of the twitter system without one of those two agreeing.

"- Damages still to be assessed but ..."

AFPs reading of the TOS was rejected way back by the first Judge in the case so one wonders why they dragged it out. Maybe this is why they couldn't agree to settle 2 years earlier. Maybe Morel wouldn't let go the "x number of downloads" part.

"- It appears to me that if the Washington Post had gone directly to twitter and printed a screen print of twitter and the photos in question – it may have avoided being dragged into this suit."

Doubtful. Removing content from Twitter (even using a screen print to keep photos and tweet text together) and reusing out of the Twitter "eco-system" by publishing directly in the WaPo would have been problematic.



Jan 18, 2013 at 11:54 PM
BluesWest
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p.1 #9 · Finally AFP goes down. Photographer wins one.


I've been following this story since it first broke, and I'm really rooting for Morel. In particular, I hope Getty takes it in the shorts. Their behavior is just as reprehensible as that of AFP.

John



Jan 19, 2013 at 05:05 AM
TT1000
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p.1 #10 · Finally AFP goes down. Photographer wins one.


I think you may get your wish.

I think Getty's DMCA "safe-harbor" theory is a load of cr$p. Or to put it more delicately, I get why the Judge is bothered by it. And even if you accept that Getty is entitled to assert the defense, the Judge laid out plenty of facts a Jury could find that would mean Getty doesn't satisfy the "safe-harbor."



Jan 19, 2013 at 05:32 AM
 

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p.1 #11 · Finally AFP goes down. Photographer wins one.


BluesWest wrote:
I've been following this story since it first broke, and I'm really rooting for Morel. In particular, I hope Getty takes it in the shorts. Their behavior is just as reprehensible as that of AFP.

John


+100



Jan 19, 2013 at 06:25 AM
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p.1 #12 · Finally AFP goes down. Photographer wins one.


BluesWest wrote:
I've been following this story since it first broke, and I'm really rooting for Morel. In particular, I hope Getty takes it in the shorts. Their behavior is just as reprehensible as that of AFP.

John


I agree completely.
The real lesson though is that to fight a giant like AFP, Twitter or Getty one needs deep pockets. Putting your work on the net really does place it in peril of being stolen.
I have had several thefts of my images that I had licensed to clients. The thieves had stripped out the metadata and were using them commercially. Fortunately, in all cases a blunt email solved the problem but had I needed to resort to legal action I would have been out real money against a small fish that was either to poor to pay or would just disappear.



Jan 19, 2013 at 05:04 PM
TT1000
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p.1 #13 · Finally AFP goes down. Photographer wins one.


"The real lesson though is that to fight a giant like AFP, Twitter or Getty one needs deep pockets. "

That is not the lesson.

Ms. Hoffman, a solo practitioner, probably took the case on contingency believing it was strong and that in addition to statutory damages she would eventually recover her fees. You need an attorney with the resources and willingness for a protracted battle but you don't necessarily need deep pockets yourself.

The lesson is register your images prior to infringement and if that is not possible, in any case, no later than 3 months following first publication. If you don't do this you can't recover your attorney fees (or seek statutory as opposed to actual damages). Morel was infringed shortly after posting to Twitter and saw an attorney who made sure he registered his images.

Lesson two might be it is better to be infringed by GiantCo then Joe Blow. GiantCo is probably easier to serve in a district to your liking (here, The Southern District of NY), will respond to legal process and has the money to pay up when losing -- and will pay up. You could spend a lot of time and money chasing Joe Blow and, well, you can't get blood from a stone.



Jan 20, 2013 at 04:33 AM
RustyBug
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p.1 #14 · Finally AFP goes down. Photographer wins one.


+1 @ lesson 1 & 2

My infringement came via Flickr, but it was an unregistered image ... so, no attorney would touch it, since attorney's fees are not recoverable with an unregistered image. The offender admitted to it, but "small potatoes" when it came to making good on it ... +1 also @ unregistered = actual damages only (i.e. no punitive/statutory).

Offenders seem to be well versed in finding unregistered images without DMCA info better than photographers are @ registering and putting DMCA info on their images. It's a game of "catch me if you can" followed in many instances by a game of "chicken" at who will bow out first. Typically, the one to cave is the one who is on the wrong side of the "registration" or DMCA issues or isn't up for a protracted confrontation.

For the "little guy" a token gesture (take down, credit, small change, etc.) from the offender far too often buys the offender a "free pass" to avoid being properly held accountable even when they are caught red-handed ... largely due to untimely registration or unwillingness to pursue (which I understand) due to the protracted effort required.



Jan 20, 2013 at 05:02 AM
TT1000
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p.1 #15 · Finally AFP goes down. Photographer wins one.


Yeh so it was reported in the popular press today that Morel was awarded $1.2 million, the maximum available for statutory damages in this case.

Don't think the Judge ruled yet on an award of attorney fees which will be a big number. Back in the summer of 2011 Morel switched to a large NY firm which represented him from that point including during this damage phase of the litigation.

Big win for photographer. Getty and AFP get hammered. WashPo along with certain other downstream infringers previously settled.

http://finance.yahoo.com/news/photographer-wins-1-2-mln-012150852.html



Nov 23, 2013 at 04:10 AM
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p.1 #16 · Finally AFP goes down. Photographer wins one.


Hooray. But I still assert that big claims will be the exception rather than the rule.
Registration of images just does not happen with the vast majority of photographers. It is not simple or fast and many haven't the slightest idea of how to even begin.

As Mr. Bug's experience showed, a small infringer has to be pursued by the photographer on his/ her own time and dime.

I actually just had such an experience and the infringer was astonishingly aggressive and consumed a lot of my time and created a lot of stress. I DID register my images and he did back down but I could not get blood from that turnip.

In truth, justice is greatest relative to the check you can write to a lawyer in most cases.



Nov 23, 2013 at 07:04 AM
Jeff Donald
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p.1 #17 · Finally AFP goes down. Photographer wins one.


markd61 wrote:
Hooray. But I still assert that big claims will be the exception rather than the rule.
Registration of images just does not happen with the vast majority of photographers. It is not simple or fast and many haven't the slightest idea of how to even begin.

As Mr. Bug's experience showed, a small infringer has to be pursued by the photographer on his/ her own time and dime.

I actually just had such an experience and the infringer was astonishingly aggressive and consumed a lot of my time and created a lot of stress. I DID register my images and he did back
...Show more

Registration in the US is simple and can mostly be done online, electronically. The cost is modest and can be done after publication or before. Even after infringement.

You have 3 months to register your photo for copyright, "after discovery of infringement." If the photo is registered within time, you may collect punitive damages. Most IP lawyers will work on contingent and fees are negotiable. I won an infringement case in the '80's and the settlement was a large 5 figure amount. The lawyer got a ⅓, but I had little out of pocket fees.



Nov 24, 2013 at 05:22 AM
TT1000
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p.1 #18 · Finally AFP goes down. Photographer wins one.


"You have 3 months to register your photo for copyright, "after discovery of infringement."

The rules are as follows: You can register a copyright at any time during the term of the copyright (which in the case of individual authors extends 70 years from their death.)

However, if you want the availability of statutory damages and/or recover your attorney fees then you must, in the case of "unpublished" work, register prior to the infringement and, in the case of "published" work, you can register after the infringement so long as you do so within 3 months of the first publication of the work.

In other words, the rule for getting these so-called "enhanced remedies" is you must register before the infringement but you get a 3 month grace period for published work. Why ? Because often people have to publish shortly after creation and before they have the chance to register. So Congress recognized this and gives you 3 months to register. The 3 months is tied to the date you published and is not connected to the date you discover infringement, as you wrote.




Nov 25, 2013 at 01:05 AM
Jeff Donald
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p.1 #19 · Finally AFP goes down. Photographer wins one.


Effective Date of Registration

When the Copyright Office issues a registration certificate, it assigns as the effective date of registration the date it received all required elements—an application, a nonrefundable filing fee, and a nonreturnable deposit in acceptable form, regardless of how long it took to process the application and mail the certificate.

You do not have to receive your certificate before you publish or produce your work, nor do you need permission from the Copyright Office to place a copyright notice on your work. However, the Copyright Office must have acted on your application before you can file a suit for copyright infringement, and certain remedies, such as statutory damages and attorney’s fees, are available only for acts of infringement that occurred after the effective date of registration. If a published work was infringed before the effective date of registration, those remedies may also be available if the effective date of registration is no later than three months after the first publication of the work.

The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving and the method of application. If you apply online for copyright registration, you will receive an email notification when your application is received. If you apply on a paper form, you will not receive an acknowledgement of your application, but you can expect a certificate of registration indicating that the work has been registered; a letter or a telephone call from the Copyright Office if further information is needed; or, if the application cannot be accepted, a letter explaining why it has been rejected.

The Copyright Office cannot honor requests to make certificates available for pickup or to send them by express mail. If you want to know the date that the Copyright Office receives your paper application or your deposit, use registered or certified mail and request a return receipt.


This quoted from Circular 40 of the US Copyright office. As stated from the end of the second paragraph, you have 3 months from the date of first publication to register your work. Date of first publication in the case of infringed works is considered the date the copyright holder discovers the infringement. Congress did not intend to give thieves a three month period to publish a work and hope they don't get caught, so that there is no punishment. This is covered under 17 USC § 412, if I remember correctly. The Copyright office considers date of registration, the date they receive all the materials required for registration.




Nov 25, 2013 at 06:54 AM
obscure
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p.1 #20 · Finally AFP goes down. Photographer wins one.


Jeff Donald wrote:
......This quoted from Circular 40 of the US Copyright office. As stated from the end of the second paragraph, you have 3 months from the date of first publication to register your work. Date of first publication in the case of infringed works is considered the date the copyright holder discovers the infringement.

That is only true if the copyright holder has not themselves published the image, in which case they have three months to register it from the date they published it.



Nov 25, 2013 at 04:56 PM
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