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Mike Pipes
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p.3 #1 · Image used without permission!!!

Baldur,

Technically, as TT states, the US has adopted the same laws.

In practice however, in order to get the maximum allowable statutory damages which are in 6 figures, the work must be registered. If it's not registered, the creator is entitled only to their typical license fee for the offending use. Depending what that fee is, the attorney either won't take the case or the creator will be spending way more money than he will receive in court.

Mar 22, 2008 at 05:50 AM

HinduG
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p.3 #2 · Image used without permission!!!

Mitchel107 wrote:
Hindu, seriously....

you took the guys court case and threw it to the public.

I, as well, am glad that you and I are not friends or collegues.

You mean, like, posting it on an internet forum for anyone to read?

http://www.google.com/search?hl=en&suggon=0&safe=off&sa=X&oi=spell&resnum=0&ct=result&cd=1&q=ferradas+image+used+without+permission&spell=1

Check out the first two links, then check out the next two links...

OH MY GAWD!!! U GAVE AWAI MAI CASE ON THE INTERNETS!!!!

Perhaps my judgment was off. My intent was to get pressure from the Kotaku staff who have direct contacts with pretty much everyone in the gaming industry. Most of their posts that expose this sort of nonsense carry a lot of weight, which in turn brings about a positive result (THQ contacting the OP and trying to get this matter resolved ASAP), as Kotaku is widely read, and generally well respected in the gaming world.

Now that we've gotten this straightened out...I'm flattered that you would consider being my friend--even though you ultimately had to have someone else make that decision for you, but I have to confess: I don't befriend people who aren't clever enough to come up with their own personal insults.

Edited by HinduG on Mar 22, 2008 at 06:12 AM GMT

Edited on Mar 22, 2008 at 06:12 AM

Mar 22, 2008 at 05:54 AM

TT1000
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p.3 #3 · Image used without permission!!!

Relying on 15 year old information with respect to legal matters is probably not prudent.

You don't have to register or place a notice on your work to establish a copyright in the US (though there are other reasons to do both).

Copyright in the US is a statutory creation and requires no action by the author of the work.

The Copyright Act states in Section 102(a) "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression..."

Bingo !

The real beef might be directed to the fact that it's expensive to bring a lawsuit in a federal district court and that is the only place you can bring a claim in the US relating to copyright. But it's offset somewhat by the fact that if you register (which you have to before using the court to sue) you can get statutory damages (you don't have to prove the amount of damages to request up to $30,000 per non-willful infringement or $150,000 per willful) and recover attorney fees.

Those are some pretty big numbers. And may allow even the weakest litigant to go after the largest, strongest defendant. Though it equally allows the strong (see, e.g., RIAA) to go after the weak (some kid downloading and distributing a song) for similar amounts.

Mar 22, 2008 at 05:59 AM

TT1000
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p.3 #4 · Image used without permission!!!

I should have said if you "timely register" not just register. Also, I wouldn't advise the internet as a good source for legal information....

Mar 22, 2008 at 06:01 AM

runner301
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p.3 #5 · Image used without permission!!!

Copyright legislation is biased towards the benefit of the offender.

Imagine: Steal a car; get caught; your fine is the depreciation incurred while the car was in your possession. Steal the Mona Lisa; your fine is the amount that the Louvre lost in ticket sales due to a decline in ticket sales to people that specifically wanted to see the Mona Lisa while you had it. Steal your your neighbor's old TV; if you only use it to show the technology of the 70s to college kids, you won't even get fined.

Basically, if you don't register your images within 90 days, you are entitled only to what the thief should have paid you in the first place. Pretty neat deal for a crook.

Edited on Mar 22, 2008 at 09:14 AM

Mar 22, 2008 at 09:12 AM

Baldur
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p.3 #6 · Image used without permission!!!

I actually tried the "So I go to your house and steal your car while you sleep" argument on the oppositions lawyer in december.

Total and abolute blank.......

He made no connection to the images the company he was working for and their unlawful use of my images, a total and absolute intellectual dead end.

He did settle two months later but he never mentioned his car though. Maybe I should have dragged up my sleeves and let the tattoos peek out while I mentioned his car...... who knows

Mar 22, 2008 at 04:16 PM

Benchernif
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p.3 #7 · Image used without permission!!!

My Grandpa was the original inventor of the Baby Bouncer (called the Comfy-Babe ).

Like this:

This image is copyrighted by the owner

A corporation started to produce the same product my Gpa protected through copyright. 3 years in court. Grandpa finally won with $28,000 compensation (think in the 1950's now...)

Though...court and lawyer costs were exactly 28k as well. Made nothing to justify the right.

Now, I'm not telling you to NOT go after him -- do so, and justify yourself -- but think about overall costs. Big companies are tricky in court...

Best of luck...

Ben

Mar 22, 2008 at 11:29 PM

MaxiKana
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p.3 #8 · Image used without permission!!!

But doesn't the loser pay the winners court and lawyer fees? That's how it is over here at least...

Mar 23, 2008 at 06:03 PM

runner301
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p.3 #9 · Image used without permission!!!

MaxiKana wrote:
But doesn't the loser pay the winners court and lawyer fees? That's how it is over here at least...

Only if you had registered within 90 days of pressing the shutter

Mar 24, 2008 at 12:53 PM

TeamSK jay
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p.3 #10 · Image used without permission!!!

runner301 wrote:
MaxiKana wrote:
But doesn't the loser pay the winners court and lawyer fees? That's how it is over here at least...

Only if you had registered within 90 days of pressing the shutter

90 days of publication

Mar 25, 2008 at 04:07 AM

Benchernif
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p.3 #11 · Image used without permission!!!

MaxiKana wrote:
But doesn't the loser pay the winners court and lawyer fees? That's how it is over here at least...

In small claims court, yes. But different courts have different rules. Also note that my grandpa's case was nearly 50 years ago; things were quite different I'm sure...

Ben

Mar 25, 2008 at 03:46 PM

granitepoint
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p.3 #12 · Image used without permission!!!

Mike Pipes wrote:
If it's not registered, the creator is entitled only to their typical license fee for the offending use. Depending what that fee is, the attorney either won't take the case or the creator will be spending way more money than he will receive in court.

I am not a lawyer but according to the Copyright Office Web Site:

http://www.copyright.gov/circs/circ1.html#cr

"Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Another link with this same basic info is;
http://www.plagiarismtoday.com/2007/07/06/using-cmi-to-sue-for-unregistered-works/

According to this site without a registered copyright all you can do is send a DMCA notice or a letter tp cease and desist.

DMCA Notice of Copyright Infringement sample letter:
http://futurequest.net/Services/TOS/DMCA/DMCANotice.php

info on DMCA
http://www.plagiarismtoday.com/2006/04/26/cmi-copyright-managent-information/

Mar 25, 2008 at 05:34 PM

MaxiKana
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p.3 #13 · Image used without permission!!!

Hah, glad I live over here then, where we don't have to register, we get it immediately.

Mar 25, 2008 at 11:35 PM

John Patrick
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p.3 #14 · Image used without permission!!!

In the US, you own the copyright as soon as you trip the shutter. The issue of registration comes up with regards to statutory damages.

John

Mar 26, 2008 at 12:21 AM

granitepoint
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p.3 #15 · Image used without permission!!!

John Patrick wrote:
In the US, you own the copyright as soon as you trip the shutter. The issue of registration comes up with regards to statutory damages.

John

Just wondering John, but have you or anyone else on the forum (here in the US) ever taken to court an infringement on copyright that was not registered ? Not small claims court. If so what was the outcome?

You do own the copyright as soon as you click the shutter but what good is a US copyright that is not registered if you cannot take court action?

Edited on Mar 26, 2008 at 01:53 AM

Mar 26, 2008 at 01:49 AM

John Patrick
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p.3 #16 · Image used without permission!!!

You can take court action (I haven't had to take any copyright infringement action yet), but you're limited to actual losses if you haven't registered. So, if someone steals a shot of yours from your website and then uses it in a billboard campaign, expect to only get reasonable usage rates (see FotoQuote or something similar).

And you can't take a copyright infringement case to small claims, as copyright is a federal law, and therefore must be taken to federal court. So for small infringements, you're going to be limited to a settlement out of court at best, as it's not worth the money to take it to court. Now, if you registered the work, it's different.

John

Mar 26, 2008 at 03:28 AM

granitepoint
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p.3 #17 · Image used without permission!!!

wonder why so many sites state that :
"Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin." I have seen this on the USCO and several law related sites. Is that bogus?

Sounds like someone is mistaken. I am wondering which is correct. Do you have any references that would validate your statement? I am not doubting you or wanting to be a troll, just want to get the facts. Without registration how do you prove in court that you own the copyright? You know with the rules of edvidence and such. The USCO site clearly states that if a copyright was registered within 5 years you can file suit but only get actual losses. If it is registered within 90 days you can get legal fees and statutory damages. All 3 of these statements would indicate that one does have to register first. I know that law is not just black or white but these statements do sound that way. (yes I know this is the internet and maybe not the best source for legal advice...)
Any lawyers out there that want to jump in on this?

Edited on Mar 26, 2008 at 12:58 PM

Mar 26, 2008 at 12:55 PM

Duncan Staples
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p.3 #18 · Image used without permission!!!

Granite - you don't need to have filed prior to litigation but because not filing reduces any judgment to actual damages and not punitive, court costs, or attorney fees, one is much less likely to find an attorney to take the case.

Duncan

Edited on Mar 27, 2008 at 03:33 AM

Mar 27, 2008 at 03:31 AM

mauriceramirez
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p.3 #19 · Image used without permission!!!

Hey Paul, just to chime in that photographers can and DO win cases like this. Sometimes for real money. It looks like you have a fairly solid case (with some holes) but it's probably just a matter of time and follow-up and finding a competent IP attorney who is hungry. Not all court fees will be covered of course so some contingency arrangement would have be negotiated. Contact the APA office for some help on this.

Oh and I just shot with your current OMP portfolio cover model. She's hard to miss with all those tats. =)

-m

Edited on Mar 27, 2008 at 05:52 AM

Mar 27, 2008 at 05:47 AM

ferradas
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p.3 #20 · Image used without permission!!!

Hi everyone, sorry it's been a while. i don't get notifications of new posts so i though this thread had died. I did see an IP lawyer and he sent the letter to THQ. We received a response from them and they are looking over the matter. I don't want to go into any more detail than that but i will let you guys know how it turns out.

Thanks for all the advise.

Maurice, Jade is a hard one to please, she's picky!

Apr 17, 2008 at 12:10 AM

Dan No
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p.3 #21 · Image used without permission!!!

That juxtaposition of that great model shot with that cluttered background deserves a separate lawsuit.

Apr 17, 2008 at 06:43 AM

khguitar098
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p.3 #22 · Image used without permission!!!

haha.

Apr 17, 2008 at 04:15 PM

Brian Mullins
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p.3 #23 · Image used without permission!!!

Thanks for the update. Definitely keep this thread updated as much as you can (I know you won't be able to divulge much until the case is settled).

Apr 17, 2008 at 06:28 PM

mdude85
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p.3 #24 · Image used without permission!!!

jojosung wrote:

Send THQ - gam maker the invoice, from both of you via certified mail
registered the image and a letter from an IP lawyer.

, that is such a passive aggressive response without any sort of correspondence beforehand. They are just going to throw it away. Why even waste your time. Just have the IP lawyer call or send letter on behalf of firm. Besides, lawyer will probably not even allow you to send invoice with his official correspondence.

Apr 17, 2008 at 10:08 PM

mdude85
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p.3 #25 · Image used without permission!!!

MaxiKana wrote:
But doesn't the loser pay the winners court and lawyer fees? That's how it is over here at least...

If specified in suit

Apr 17, 2008 at 10:10 PM


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