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Archive 2013 · Finally AFP goes down. Photographer wins one.
  
 
RustyBug
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p.2 #1 · p.2 #1 · Finally AFP goes down. Photographer wins one.


+1 @ obscure

If you have published it four months prior to the infringment, and find the infringement on day 1 of the infringment ... then try to register it ... OOOOPS, no go @ punitive, nor attorney fees. You did not register it within 3 months of FIRST published.

You can certainly (and should) still register it. But it does not mean that you have up to three months after noticing the infringement or 3 months following the infringing publication ... EXCEPT when the infringing publication IS the FIRST publication.



Nov 25, 2013 at 06:38 PM
Jeff Donald
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p.2 #2 · p.2 #2 · Finally AFP goes down. Photographer wins one.


So here is an example. You (the photographer and copyright holder) shoot a wedding and upload files to a SmugMug gallery/album that requires a password to view the images. Your client uses the password you provided to view the images and download the files. You discover two months after uploading to SmugMug, that your client has downloaded the images and printed them, making several albums and enlargements for family and friends. Can you now register your images with the US Copyright Office and then sue for compensatory damages and attorney fees?

I say you can. The use of a private album/gallery on SmugMug meets the US Copyright Office's position that a private area with password restriction is not publication. You then can register you images within three months of discovery of the violation and then sue the client for damages and attorney fees.



Nov 25, 2013 at 07:16 PM
TT1000
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p.2 #3 · p.2 #3 · Finally AFP goes down. Photographer wins one.


Jeff, you've demonstrated twice now that registration is not simple, I guess.

Reread my post. It's a (hopefully plain English) summary of 17 U.S.C. 412, which tells you when you must register to be eligible to seek statutory damages and/or recovery of attorney fees.

You're confusion I guess is tied to this incorrect statement:

"Date of first publication in the case of infringed works is considered the date the copyright holder discovers the infringement."

And the 3 month grace period granted to copyright owners doesn't help infringers at all. Instead it allows copyright owners to publish first and register up to 3 months later and still be entitled to seek enhanced remedies. Finally, not sure why you quoted four irrelevant to the question of when you must register paragraphs of what "effective date of registration means."






Nov 25, 2013 at 07:21 PM
Jeff Donald
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p.2 #4 · p.2 #4 · Finally AFP goes down. Photographer wins one.


Registration is simple, but when you register and what your protections and rights are will be affected by the date of publication and the date of registration. I just looked up 17 USC § 412. It appears that there is a one month period to register, once the copyright holder learns of the infringement and still be able to sue for statutory damages and attorney fees.

17 USC § 412 - Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.




Nov 25, 2013 at 07:44 PM
TT1000
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p.2 #5 · p.2 #5 · Finally AFP goes down. Photographer wins one.


Jeff Donald wrote:
Registration is simple,


It may be simple for some not for others but you're now 0 and 3 on registration related issues.

Try reading 412 again. The one month has nothing to do with REGISTRATION of copyright but is related to PREREGISTRATION under 17 U.S.C. 408(f). I won't go into the point or purpose of preregistration it's not relevant to photographers. If you intend to go into the movie business, however, ring me and we can get into preregistration and why you may want to do it. Or if you want the lay persons explanation, try this:

http://copyright.gov/prereg/






Nov 26, 2013 at 03:28 AM
TT1000
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p.2 #6 · p.2 #6 · Finally AFP goes down. Photographer wins one.


Jeff Donald wrote:
So here is an example. You (the photographer and copyright holder) shoot a wedding and upload files to a SmugMug gallery/album that requires a password to view the images. Your client uses the password you provided to view the images and download the files. You discover two months after uploading to SmugMug, that your client has downloaded the images and printed them, making several albums and enlargements for family and friends. Can you now register your images with the US Copyright Office and then sue for compensatory damages and attorney fees?

I say you can. The use of a private
...Show more

If you have not published the work which you are asserting you have not then sorry but you are outta luck as far as statutory damages and attorney fees are concerned relating to any infringement occurring prior to registration, so please don't make the argument that your password protected site constituted unpublished work -- you'll hurt yourself. It's generally not advised to take positions against yourself in a litigation. If the work has been published you have a 3 months grace period. I'm not sure how many times I can say it.

As far the CO, last time I read their pronouncements they recognize that "publication" was not drafted with the internet in mind and second they defer to Copyright Owners insofar as the registration application is concerned to determine whether online transmissions are published or not. In any case, it doesn't change the way 412 works.





Edited on Nov 26, 2013 at 05:47 AM · View previous versions



Nov 26, 2013 at 03:42 AM
TT1000
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p.2 #7 · p.2 #7 · Finally AFP goes down. Photographer wins one.


RustyBug wrote:
EXCEPT when the infringing publication IS the FIRST publication.


Well for discussion purposes only and you are a guy that likes to discuss this stuff, right:

It would be bizarre to allow copyright owners to toll the effective period to register until 3 months from when the infringing party "publishes" (assuming infringing parties can "publish"). I could just sit on my butt and wait until someone infringes and then register within 3 months of the infringement which could be years after creation. Not at all what Congress intended 412 to do which was to encourage early registration and give two carrots for copyright owners willing to do it. Two carrots so sweet that most attorneys would regard them as necessary in the vast majority of cases to make copyright litigation economic for the copyright owner because w/o them you are stuck proving actual damages which are often both low relative to the cost of litigation and speculative making them difficult to prove.

In any case, "publication" requires authorization of the copyright owner. You can't publish my work by infringing it. A "publication" requires a "distribution" and a distribution is one of the exclusive rights of a copyright owner.

But let's not lose sight of the thread. Which is not copyright minutiae it's that photos are valuable despite some noise you hear otherwise. Morel actually got more than $1.2m I believe, because of all the DMCA violations. And the fact that he settled with downstream infringers along the way to the final judgement against Getty/AFP.



Nov 26, 2013 at 04:05 AM
Paul Mo
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p.2 #8 · p.2 #8 · Finally AFP goes down. Photographer wins one.


Only a lawyer specialising in copyright law can put everyone straight.

Beware of speculation.



Nov 26, 2013 at 10:12 AM
 

Search in Used Dept. 



TT1000
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p.2 #9 · p.2 #9 · Finally AFP goes down. Photographer wins one.


You don't need a lawyer that specializes in copyright anytime you have a potential copyright infringement claim or a copyright question.

I suppose there are cutting edge cases where you really want such a lawyer. This was not it. And Morel did not use a copyright specialist (he switched to a general commercial litigator with experience litigating copyright infringement -- this guy: http://www.willkie.com/JosephBaio).






Nov 26, 2013 at 10:47 AM
Paul Mo
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p.2 #10 · p.2 #10 · Finally AFP goes down. Photographer wins one.


I was referring to knowing the law v.s. information on photo forums. If you are serious about copyrighting your work make sure you do it properly.


Nov 26, 2013 at 01:09 PM
RustyBug
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p.2 #11 · p.2 #11 · Finally AFP goes down. Photographer wins one.


TT1000 wrote:
If the work has been published you have a 3 months grace period. I'm not sure how many times I can say it.


+1 @ Short, sweet and safe. Can't go wrong here. ^ ^


Everything after this becomes a convoluted / debatable position re: what constitutes published vs. not published. The moment you put it out there for others to see ... someone, somewhere (i.e. your adversary) is going to claim that to constitute "published" whether or not you have it password protected. As it turns out in the previous story of a "password protected" scenario, an argument could be made that it was published to an intended audience of one. The fact remains that even if it was only intended for an audience of one ... you had still voluntarily (you could have required them to come to your office/studio for viewing and it was a voluntary contract that you had entered into with a client) subjected it to being out of your control (the person you granted the password to now has the ability to copy) ... which is really the essence (my perspective, i.e. not necessarily legal definition) of something being published ... i.e. you voluntarily relinquished control.

Once you have voluntarily removed it from the security of your care and "unlocked" the door to it (even to an audience of one, who could then share it with two, four, infinity) ... you have subjected yourself to it being available to be infringed, i.e you voluntarily gave the keys to other(s) or tossed away your security. IF we consider (again, opinion/perspective not necessarily legal definition) our voluntary utilization in a manner that makes it accessible for infringement as our guideline for what constitutes "published" ... it pretty much takes us back to we've only got three months from the time we "put it out there" for others to see (no matter how few the intent is/was).

The registration is for our protection while sharing it with others. It should be protected BEFORE we share if possible. While this is not always pragmatic on an individualized image basis, that is why the three month grace period is afforded. The moment you share it with others (even just one), you have voluntarily reduced your level of protection by extending the ability for it to be copied by others (not the same as granting permission) and you have three months to instill the additional protection of registration. Your call at whether or not you choose to do so in the timely manner indicated.

The point that TT1000 made regarding giving the "other side" a basis for arguing against you is really only mitigated it you stay within the three months of first published. Imo, better to consider first published as the first time you put it out there for anyone else to see (no matter how few), than to risk an argument that you could lose from a debatable position (i.e. what constitutes published), rather than an absolute position. You just never know who is going to be judging and/or presenting the arguments. Better safe than sorry. Debating a given point here in cyber world might be fun to think we've won, but better to follow TT1000's point at the top and truly secure your position, i.e. really protect yourself rather than risk ineffective protection ... that IS what it is really about isn't it.

The diff between actual damages vs. punitive damages & attorney's fee's hinges on the timeliness of the registration. Why play with fire and relinquish the strength of your position by convoluting it with arguable merits for others to use against you. Keep it simple @ three months ... period. If you ever need it, you'll be glad you did. The one time you don't, it's very easy to be sorry you didn't ... i.e. just try to get a lawyer to take your case without a timely registration. Since good attorneys already know that attorney's fees and punitive awards are not going to be awarded without a clear-cut, absolute timely, registration, good luck with that. And as to the convoluted scenario arguing when first published starts the clock ... they know that it is a risky proposition there too. Again, good luck with them wanting to take that case too.

Establish your position such that your attorney will want to take the case ... punitive damages & attorneys fees awardable, with as little argument as possible, based on an irrefutable timely registration (hence a 4/year strategy). Otherwise, you better have a really strong case for your actual damages and be ready to pay your attorney up front. But even there, good luck finding a (good) attorney to go down that road with you. If your case isn't strong enough to convince a good attorney to take it ... what makes you think it'll be strong enough to convince a judge to rule in your favor over your adversary's arguments otherwise. First things first ... you gotta convince your attorney and that is STRONGLY rooted in having an irrefutable timely registration. Thinking anything other than that is folly, imo.

TT1000 is much more versed in the proper legal aspect than I am ... heed his simple words. My perspective has come from being on the losing side (i.e. no punitive damages, no attorney's fees) despite a clear cut (and even admitted) infringement and an extended effort to study the law and understand the pragmatic rationale of why what happens, happens when you don't register in a timely manner.

GL to all.



BTW ... yeah, kinda silly to suggest that the infringement could actually be the first published if you think it through, even if it was stolen prior to your publication (say a stolen laptop with unpublished images).



Nov 26, 2013 at 01:22 PM
RustyBug
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p.2 #12 · p.2 #12 · Finally AFP goes down. Photographer wins one.


Paul Mo wrote:
I was referring to knowing the law v.s. information on photo forums. If you are serious about copyrighting your work make sure you do it properly.


I think you mean registering your copyrighted works ... copyright comes @ inception/creation (iirc), registration doesn't.



Nov 26, 2013 at 02:52 PM
TT1000
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p.2 #13 · p.2 #13 · Finally AFP goes down. Photographer wins one.


Paul Mo wrote:
I was referring to knowing the law v.s. information on photo forums. If you are serious about copyrighting your work make sure you do it properly.


I got that.



Nov 26, 2013 at 07:47 PM
Michael White
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p.2 #14 · p.2 #14 · Finally AFP goes down. Photographer wins one.


What constitutes published works? Post to a web site?


Nov 28, 2013 at 07:36 AM
RustyBug
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p.2 #15 · p.2 #15 · Finally AFP goes down. Photographer wins one.


Michael White wrote:
What constitutes published works? Post to a web site?


Some would argue yes, some would argue no. I'm not sure what the legal definition (or case law) is, atm. But when you consider that as soon as you post it to a web site, it has become voluntarily unsecured and is susceptible to "fair use" and to those who allege fair use improperly. ... do you want to consider it "not published" only to have someone successfully argue that is was published?

That's where the strategy of 4/year updating those images taken within the previous three months serves to mitigate the question or debatable aspect of that very question. If it is registered within three months of being created (copyright @ inception) ... it must also be registered timely relative to publication, regardless of the definition of "published".

In my case, posting to Flickr was considered by two different attorneys as published and I had allowed more than three months pass prior to the infringement. I learned of the infringement and proceeded very timely, but without a timely registration ... attorney's wanted nothing to do with it (i.e. not punitive damages, no attorney's fee's).



Nov 29, 2013 at 04:17 AM
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