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Archive 2008 · Image used without permission!!!

Benchernif
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p.4 #1 · 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.4 #2 · 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.4 #3 · 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.4 #4 · 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.4 #5 · 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.4 #6 · 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.4 #7 · 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.4 #8 · 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.4 #9 · 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.4 #10 · 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.4 #11 · 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.4 #12 · Image used without permission!!!

haha.

Apr 17, 2008 at 04:15 PM

Brian Mullins
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p.4 #13 · 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.4 #14 · 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.4 #15 · 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

mdude85
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p.4 #16 · Image used without permission!!!

granitepoint wrote:
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. Any lawyers out there that want to jump in on this?

I'm not a lawyer but I know the answer to this. "Court" is an awfully broad term to be throwing around. IF the work is not registered, the "court" can file injunction against defendant to pay perhaps court costs and losses. IF work is registered, injunction can be filed - and - plaintiff can take defendent to "court" and seek [statutory] damages.

Losses = what you lose in profits from having your copyright work stolen for a period of time, i.e. per copy
Damages = some order of magnitude greater than the price the defendent would have paid to obtain the right to legally use the copyrighted work, i.e. per work.

USCL Tit. 17

Edited on Apr 17, 2008 at 10:19 PM

Apr 17, 2008 at 10:17 PM

Craig Gillette
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p.4 #17 · Image used without permission!!!

§ 411. Registration and infringement actions10
(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 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.

From the copyright law - not the complete section. (106A(a) deals with attribution and integrity.)

So that's where the requirement to register before "going to court" - in simple terms comes from.

Edited on Apr 18, 2008 at 02:05 AM

Apr 18, 2008 at 01:58 AM

mdude85
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p.4 #18 · Image used without permission!!!

Craig Gillette wrote:
§ 411. Registration and infringement actions10
(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 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.

From the copyright law - not the complete section. (106A(a) deals with attribution and integrity.)

So that's where the requirement to register before "going to court" - in simple terms comes from.

The statute is reciting a requirement to register before seeking damages fees for infringement, infringement being punishable by the recompense of statutory damages + attorney fees outside the scope of those covered by unauthorized copyright use.

It is still possible to bring a copyright to suit even if it not registered, through a judge-ordered injunction, the judge being considered part of a "court." As I said, "court" is an extremely broad way of describing any forum to settle disputes on the basis of laws.

Check out 17 USC 501 for more info.

Edited on Apr 18, 2008 at 02:50 AM

Apr 18, 2008 at 02:48 AM

Craig Gillette
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p.4 #19 · Image used without permission!!!

501 has nothing to do with injunctions. 502 deals with injunctions.

§ 502. Remedies for infringement: Injunctions
(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

The initial step (burden) in an action is to file suit. Injunctions can't be ordered without there being an action. The registration is prima facie evidence of ownership. Injunctive relief may be sought during the course of the lawsuit after establishing ownership and infringement liability to restrain copying during the lawsuit.

http://www.tms.org/pubs/journals/JOM/matters/matters-9805.html

Apr 18, 2008 at 05:16 AM

Lennyd
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p.4 #20 · Image used without permission!!!

I want to know how this turns out.

Apr 20, 2008 at 11:04 AM

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