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Archive 2010 · Photo Use Infringment ... ?? copywrite copyright
  
 
TT1000
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p.4 #1 · p.4 #1 · Photo Use Infringment ... ?? copywrite copyright


Go back in the thread; I posted the rule in response to someone else butchering it. I don't think you will find it complicated.

Yes, most believe posting to a public website constitutes "publication" for purposes of the Copyright Act.

I don't follow you: " Talk about a license to steal and an erosion to the marketplace. "

If flickr posting were not "publication" then you would not have the three month grace period. How would that help you ?

You must register prior to the infringement but they give you a three month grace period from publication. This is to help, not hurt people, who have to publish soon after creation.

Here you did not register prior to the infringement. And since you put it up in 2008 you're beyond the three month grace period.

I think what is bothering you is the practical necessity of registering work that you want to protect. But the point is Congress wants to encourage speedy registration of works. You don't have to register. Or you can take your sweet time. But if you register within the time limits mentioned you get an extra prize, to wit, you can request statutory damages and attorney fees. [There are other benefits as well.]

Practically given both the expense of litigation and the actual amount of damages often involved, not having these remedies available may make it uneconomical to sue.

If you register tomorrow, you won't have this problem with future infringement of that photo.

If you are a photographer then you should really consider protecting your work. $140/year seems like a good deal. Register all your work once per quarter, at $35 a pop.


-- response from another attorney




Jun 07, 2010 at 07:33 PM
TT1000
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p.4 #2 · p.4 #2 · Photo Use Infringment ... ?? copywrite copyright


PS, nothing I post should be construed as legal advice. As I said earlier, hire an attorney who will evaluate your specific facts and circumstances and in light of any relevant local law. What I post is for discussion purposes only.


Jun 07, 2010 at 07:35 PM
RustyBug
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p.4 #3 · p.4 #3 · Photo Use Infringment ... ?? copywrite copyright


TT1000 ...

If Flickr does not constitue publication ... then the first publication would be the 'stolen' imagery being published in the magazine / online. I'm still within the 90 days of THAT publication date ... not my initial date of storing some of my pics in Flickr and letting others look at them. Then, I'll still be able to register them within the 90 days grace period. Although, I would still think that if an item is STOLEN without having ever been published (by definition) it shouldn't matter when the offender published it.

FYI ... I don't have a problem with the cost of registering or the act of doing so. I just never would have considered storing some of my pics in Flickr as 'publication' ...

You're suggestion of quarterly strategy sounds VERY REASONABLE (and would safeguard you for the 90 day rule consistently) ... clever thinking.



Jun 07, 2010 at 07:42 PM
RustyBug
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p.4 #4 · p.4 #4 · Photo Use Infringment ... ?? copywrite copyright


Understood that ALL of this is discussion only. NONE of this is construed as Legal Advice.

FYI ... I am actively seeking appropriate Legal Counsel. The enlightening discussion is highly appreciated while I continue to do so.



Jun 07, 2010 at 07:46 PM
Craig Gillette
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p.4 #5 · p.4 #5 · Photo Use Infringment ... ?? copywrite copyright


Given the nature of legal fees and costs and "actual" versus "statutory" damages, an amateur who doesn't usually sell pictures probably has little in the way of actual damages to show.

For an amateur and "unpublished" works, quarterly registration may simply open another window of opportunity where (part of section 412 of the US copyright law) may hurt you if you put it on line before registering:

"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"

The procedures also vary for the submission and registration of published versus unpublished works so being clear about whether posting an image on line equals "publication" is important, even if you didn't actively offer it for sale or transfer, etc.



Jun 07, 2010 at 09:06 PM
Craig Gillette
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p.4 #6 · p.4 #6 · Photo Use Infringment ... ?? copywrite copyright


I'd expect due to the nature of the infringing party, any attorney may need more than a cursory examination of the specifics to determine the potential viability of any case.


Jun 07, 2010 at 09:08 PM
RustyBug
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p.4 #7 · p.4 #7 · Photo Use Infringment ... ?? copywrite copyright


So, then does that mean that even if Flickr (or other online hosting/display) isn't considered published, that no statutory award / atty fees is possible even if someone steals it anyway prior to registration?? ... which puts us back to post nothing until after it has been registered, including FM posts ?? because if someone lifts it from here ... too bad so sad, no matter if it was here for critique and discussion and not for publication/distribution.

Kinds sounds like a free-for-all claim jumper scenario of the wild, wild west


more specifics, such as ??



Jun 07, 2010 at 09:29 PM
mdude85
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p.4 #8 · p.4 #8 · Photo Use Infringment ... ?? copywrite copyright


TT1000 wrote:
"Which section of the copyright laws makes it pretty clear that a written agreement is necessary to copy the work? "

No section because it's not in there.

Nonexclusive licenses do not have to be in writing.

A nonexclusive license is explicitly an exception to the must be in writing requirement in section 204. So it is negatively implied that it doesn't have to be in writing. In fact, courts will routinely find an implied license from conduct alone.



Thank you, "no section" was the answer I was looking for.


Edited on Jun 07, 2010 at 10:22 PM · View previous versions



Jun 07, 2010 at 10:12 PM
mdude85
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p.4 #9 · p.4 #9 · Photo Use Infringment ... ?? copywrite copyright


RustyBug wrote:
Response from an attorney ...

"The rules about whether you are entitled to statutory damages are complicated. Since your photo was infringed prior to registering it and you posted it on Flicker in 2008, it appears that you would not be eligible for statutory damages for this infringement. Therefore, I cannot take your case on a contingency."

... despite all the cheerleading.

Flickr constitutes 'publication' ?? ... no wonder Getty was interested in it. Talk about a license to steal and an erosion to the marketplace.

So are well all self-inflicting stabs to our own hearts when we post anything on the web, unless
...Show more

I don't know about "self-inflicting stabs," but there is some risk involved in posting an image on the web. There are certain steps that can be taken to reduce the chance an image will be used without your permission, but there is no way to eliminate the risk completely unless the image is not posted to the web at all.

Reserving the right to use your photo as you see fit (all rights reserved) is different from granting rights and restrictions to others. Next time you meet with your counsel ask him or her to explain to you what is meant by rights reservation.





Jun 07, 2010 at 10:20 PM
glort
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p.4 #10 · p.4 #10 · Photo Use Infringment ... ?? copywrite copyright



SO......
It looks like I was right all along and the litigation happy mentality that so many fourmites endlessly go on with is the load of bollocks I thought it to be, even in Lawyer happy USA. The laws may be different there but not so much that reality and financial considerations are at odds with what they are here.

I was only moments ago reading a thread on another site where someone asked about doing something for purely personal use that to the letter of the law MAY infringe a company's copyright and there was a flood of the usual " You'll get sued" BS that every question on a forum seems to get.
I doubt said company is firstly going to come checking what everyone with PS and a printer gave grandma for Christmas and then sue the kids that made it for her for copyright breach. Of course going by forum responses, thats exactly what one would expect after reading them!
Reality alert!!!

I can't figure out how some people take the risk of driving their cars into town the way they go on!

The other thing I don't understand is why these sites like flickermug are so popular?
It's so easy to get your own site and put software on it that does the same thing. Sure, it may require some effort and a modicum more time, but there is certainly less fees and royalties to pay, ( as I understand them) your not risking your rights in anywhere near the same manner, and as far as print sales go, it seems to me the majority of people are not making so many sales with a little effort they couldn't handle them themselves.

From what I understand of one guy here that would be doing more than anyone else, he runs all his own site and does his own sales and distribution. If he can do it at his level, I genuinely don't know what problems other people run into.

I tend to agree, if you don't want it stolen, don't put it on the web.
I know I don't!



Jun 07, 2010 at 11:30 PM
 

Search in Used Dept. 



RustyBug
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p.4 #11 · p.4 #11 · Photo Use Infringment ... ?? copywrite copyright



if you don't want it stolen, don't put it on the web.


I always thought the registration process was largely to be able to prove it was yours first. In my case, the offender corroborates that it is mine and was mine before they used it. I would like to think that 'stolen' is stolen and if you can prove it is yours, then you should have recourse and the offender should be awarded punishment ... but that would make too much sense.

I understand that without the registration process, it would be normally be difficult to prove ownership and first creation, but in a scenario where both are well established ... I just have trouble seeing how stolen can be allowed in the face of irrefutable evidence, including admission from the offender.



Jun 08, 2010 at 12:34 AM
TT1000
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p.4 #12 · p.4 #12 · Photo Use Infringment ... ?? copywrite copyright


"I always thought the registration process was largely to be able to prove it was yours first."

No.

Copyright registration does not prove ownership. Think of it more as a public notice system where people claim rights in works. What proves ownership are the facts surrounding creation of the work. To deter false claims there are penalties if you lie on an application for registration.

That said, if you register within 5 years of first publication then the facts in the registration statement including ownership are considered by the court to be true and its up to the defense to rebut them. In contrast, the burden is usually on the plaintiff to prove each element of its case.












Jun 08, 2010 at 01:35 AM
JohnR84740
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p.4 #13 · p.4 #13 · Photo Use Infringment ... ?? copywrite copyright


Rusty,

I'd suggest that it's not the kids' use that is of concern. Like many "Non-Profits" these days, this group appears to be a very well funded activity of a major corporation. Both Bayer International and the World Wildlife fund know what it means to pay for photography. If they are going to go about the buisness of education, then they really need to educate the young people to do the right thing; after all, thier website leads off withthe quote "We should not be afraid to fight for what we believe is right."

If they are indeed going to fight for what they believe to be right, they neeed to play by the rules, and if these kids are going to end up doing this professionally, better that they learn now. I'm sure the kids thought they were doing the right thing by crediting the photos, but the onus of responsibility is on the publisher if it is anything more than a school report.

All that being said, I agree with the earlier posts that you will not likely be compensated any where near enough to justify hiring a lawyer. However, register your photo and contact the oganization to find out what thier publishing standards are. You might start a trend of responsible usage that DOES get a photographer a paycheck!



Jun 08, 2010 at 09:03 PM
mdude85
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p.4 #14 · p.4 #14 · Photo Use Infringment ... ?? copywrite copyright


JohnR84740 wrote:
Rusty,

I'd suggest that it's not the kids' use that is of concern. Like many "Non-Profits" these days, this group appears to be a very well funded activity of a major corporation. Both Bayer International and the World Wildlife fund know what it means to pay for photography.


The World Wildlife Fund is not a major corporation - it is a not-for-profit conservation organization. The United Nations Environmental Programme is not "a well funded activity of a major corporation", although it is well-funded. UNEP's funding breakdown is 5% from the UN regular budget, 50% contributons to the UN Environment Fund from governments including the United States, Europe and Japan, 30% private contributions to trust funds, and 15% in earmarked contributions from other governments and not-for-profit organizations.



Jun 09, 2010 at 03:23 PM
infocusinc
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p.4 #15 · p.4 #15 · Photo Use Infringment ... ?? copywrite copyright


mdude85 wrote:
The World Wildlife Fund is not a major corporation - it is a not-for-profit conservation organization. The United Nations Environmental Programme is not "a well funded activity of a major corporation", although it is well-funded. UNEP's funding breakdown is 5% from the UN regular budget, 50% contributons to the UN Environment Fund from governments including the United States, Europe and Japan, 30% private contributions to trust funds, and 15% in earmarked contributions from other governments and not-for-profit organizations.



2008 financial report...

The CEO makes $500k

They don't need to rip off photographers...

http://www.worldwildlife.org/who/financialinfo/WWFBinaryitem15348.PDF



Jun 09, 2010 at 05:39 PM
mdude85
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p.4 #16 · p.4 #16 · Photo Use Infringment ... ?? copywrite copyright


infocusinc wrote:
2008 financial report...

The CEO makes $500k

They don't need to rip off photographers...

http://www.worldwildlife.org/who/financialinfo/WWFBinaryitem15348.PDF


OK, for the record, the WWF and the UNEP are not the same organization. Neither organization is a major funding source of the other. How exactly did we get on this tangent?



Jun 09, 2010 at 06:15 PM
infocusinc
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p.4 #17 · p.4 #17 · Photo Use Infringment ... ?? copywrite copyright


mdude85 wrote:
OK, for the record, the WWF and the UNEP are not the same organization. Neither organization is a major funding source of the other. How exactly did we get on this tangent?



Just adding information to the mix. They can afford the usage fee. In fact I might just send my first request for payment directly to the CEO....



Jun 09, 2010 at 07:24 PM
RustyBug
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p.4 #18 · p.4 #18 · Photo Use Infringment ... ?? copywrite copyright


I spoke with Ed today ... a true "New Yorker" (for those who know what THAT means)

btw, while he is not so keen on photographers giving legal advice (because it's too often errant), I did let him know that I came to FM'ers to point my way to proper legal advice ... THAT, he respects and appreciates.

I have my 'marching orders' from Ed (undisclosed for obvious reasons) ... time to get busy.

Thanks ... I still enjoy the discussion / conversation on the matter (no substitute for proper legal advice).

Preachin' to the choir probably, but ... do develop a registration strategy.

Although, I have "All Rights Reserved" on my Flickr Pro Account (not Creative Commons) ... I think I want to find a more secure place to host my images (backups, not public display) that is not a worldwide feeding ground for theft ... any recommendations ?? (Will post new thread, also.)



Jun 09, 2010 at 07:39 PM
Craig Gillette
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p.4 #19 · p.4 #19 · Photo Use Infringment ... ?? copywrite copyright


Any place you post that is visible to the general searching public is a place that someone can copy from. The more you label in the way of captions or titles, the more an image can eventually end up in search engine indexes.


Jun 10, 2010 at 02:01 AM
RustyBug
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p.4 #20 · p.4 #20 · Photo Use Infringment ... ?? copywrite copyright


+1

I greatly reduced tagging & captioning most everything a year or so ago. Much of my posted stuff has no tags, no captions and no titles, except for test shots with aperture notes maybe when shooting manual glass. Cumbersome for me to find things sometimes, but I figured it was a bit 'safer' ... ooops, I forgot to go back and 'untag' some of my earlier stuff ... made it a sitting duck, or in this case a nesting turtle.



Jun 10, 2010 at 03:05 AM
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