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Archive 2014 · Unusual copyright question - involving parody, my real job, etc...

  
 
KaBudokan
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p.2 #1 · p.2 #1 · Unusual copyright question - involving parody, my real job, etc...


Quick follow up - I sent a DMCA takedown notice to the web host yesterday. They responded today saying they had contacted the site's owner and to check back within 48 hours.

Within about 2 hours, the site had removed the picture. (Even more interesting - the link to the site was removed from the district/board's site before this happened. It seems it's the work of one or two "rogue" members. lol)

Fairly insignificant, but at least slightly soul satisfying.

Thanks for all the help and feedback.



Apr 03, 2014 at 02:03 PM
Mr Joe
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p.2 #2 · p.2 #2 · Unusual copyright question - involving parody, my real job, etc...


Glad this got resolved quickly for you!


Apr 03, 2014 at 03:14 PM
obscure
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p.2 #3 · p.2 #3 · Unusual copyright question - involving parody, my real job, etc...


unclemikey wrote:
.......I got a call from the doctor I work for asking me if I sold that photo to them. Of course I didn't. I also do forensic photography for a couple of criminal lawyers here in Richmond. I asked one of them about this and they offered to go after the ad agency. There was no registration of the photograph only my copyright and information in the meta data. That didn't seem to be a problem for either of the lawyers.

Unclemikey, you got lucky. You had a lawyer who wasn't an IP lawyer offer to help and an infringer who realised their mistake up front and was willing to settle quickly. Had the infringer been stupid or adversarial you would quickly have found that Mr Joe is correct and that the non-IP lawyers wouldn't have been much help. Sadly not everyone who is a victim of infringement is as lucky as you.

US Copyright law grants the author copyright at the moment of creation, without any registration. However they can't take legal action for copyright infringement unless the copyright has been registered.

http://www.copyright.gov/title17/92chap4.html#411
§ 411 . Registration and civil infringement actions11

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil
...Show more

So, while you can negotiate with an infringer and get them to settle you can't sue unless you first register the copyright. Further more the damages available are severely limited if you did not register the copyright prior to the infringement or within 90 days of first publication (whichever is the latter).

If registration took place prior to infringement/90 days of first publication you can claim statutory damages (without any need to prove actual damage) of between $750 and $30,000 with the upper limit increasing to $150,000 per work infringed if you can show that the infringement was wilful. In addition you can apply for legal costs. If registration took place after the infringement and more than 90 days after first publication then you can sue but only for actual damages (which you would need to prove). No statutory damages and no legal costs.

The legal costs issue is important. Intellectual Property law is a specialised field and practitioners are expensive. Pursuing a copyright infringement case can easily top $100k in fees. If you have registered copyright in time you will be able to get an IP lawyer to take your case on contingency as they know they can apply for fees and a substantial settlement of statutory damages without any requirement to prove actual damage. However, if your registration was not filed in time they will not be able to do this and will instead require that you pay them up front. So the case becomes much more expensive for you to pursue, harder; because you need to prove actual damages and with a much lower likely remedy.



Apr 06, 2014 at 09:31 PM
unclemikey
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p.2 #4 · p.2 #4 · Unusual copyright question - involving parody, my real job, etc...


obscure wrote:
Unclemikey, you got lucky. You had a lawyer who wasn't an IP lawyer offer to help and an infringer who realised their mistake up front and was willing to settle quickly. Had the infringer been stupid or adversarial you would quickly have found that Mr Joe is correct and that the non-IP lawyers wouldn't have been much help. Sadly not everyone who is a victim of infringement is as lucky as you.

US Copyright law grants the author copyright at the moment of creation, without any registration. However they can't take legal action for copyright infringement unless the copyright has been
...Show more

Yes, I think I made it clear to Mr. Joe that I agreed with him. Indeed, we did get lucky. Frankly, I had never been through something like this before. I think the real key to settling this affair was the non threatening manor with which the attorney approached the ad agency.

Anyway, as an edit to something I wrote in a previous post where I said I would NEVER work for this agency, well they called me the other day and asked if I did product photography. All I could do is laugh. The art director asked me what was so funny and I told him that I never thought his agency would give me a second look. He admitted that the other art director make a mistake, that was settled and would I like to do some work form them. I did and now they have another project which is not ready but I might be asked to photograph. Sometimes things work out for the best from the strangest circumstances.



Apr 07, 2014 at 09:13 AM
TT1000
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p.2 #5 · p.2 #5 · Unusual copyright question - involving parody, my real job, etc...


obscure:

Three months not 90 days. 17 USC 412(b)

You're mixing up costs and attorney fees:

You can always seek an award of costs irrespective of when you register. 17 USC 505

It's specifically attorney fees that a prevailing plaintiff can't recover unless registration occurs within 412 time limits.





Apr 07, 2014 at 05:35 PM
Daniel Smith
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p.2 #6 · p.2 #6 · Unusual copyright question - involving parody, my real job, etc...


Do a DMCA takedown notice.
Registration withing 90 days of publication may still be OK. Check with the copyright office on this.

Either way - nail them to the wall. They are stealing your image.



Apr 15, 2014 at 02:10 AM
nolaguy
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p.2 #7 · p.2 #7 · Unusual copyright question - involving parody, my real job, etc...


JakeB17 wrote:
...They aren't seeing any commercial gain from the use of the image, so you would be wasting time and money pursuing it much further.


All academic at this point, but I wonder if the fact that this is all over a contract dispute, presumably involving money, could it be argued that this was indeed a deliberate infringement toward very specific financial gain.





Apr 21, 2014 at 09:50 PM
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