Advice needed on photo theft.
/forum/topic/1153656/0

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Brandon Mizar
Registered: Jan 06, 2003
Total Posts: 1552
Country: United States

I shot a concert at the Hard Rock Cafe in Las Vegas earlier this year and posted a small gallery of my photos on my Facebook business page. Each photo had my logo and business name on them.

I then found out the House of Blues in San Diego was using one of the concert photos to promote a show the same band was going to have at their venue. They cropped the photo down to remove my logo. Several people contacted me and told me about it. Several photographers also went on their Facebook page letting the know how they feel about them stealing my photo. The House of Blues response was sorry we got the photo off of Google and then stopped using it. I screen captured their response and all the comments everyone made on this. The band did not provide them the photo or give them permission to use it.

Where do I go from here? What are my rights on this? I am nbeyond pissed them stole my hardwork to use for their own gain.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

How long ago did you first post the image on your Facebook business page? Is the image registered? These two questions will come into play @ "how much" is involved ... but not IF you were wronged. The wronged part is incredibly clear.

Here's the link to my initiation into such issues.
http://www.fredmiranda.com/forum/topic/905375/0?keyword=copyright#8533496

Carolyn Wright or Ed Greenberg.
photoattorney@gmail.com for Carolyn. I just got an email from her the other day. She might still be traveling, but I'd email her.


Here's a link to other threads with sub-links as well.


http://www.fredmiranda.com/forum/topic/1142460/0?keyword=carolyn,wright#10907149
http://www.fredmiranda.com/forum/topic/1144559



Brandon Mizar
Registered: Jan 06, 2003
Total Posts: 1552
Country: United States

They were posted in March and they started using the photos in August. I have never gone through the process of registering my photos.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

That changes the $$$ amount involved, but not the wronged part. For timely registered images, the willful infringement could be awarded up to $150,000. For non-timely registered images, the limits of damages are less.

Link to Carolyn's website
http://www.photoattorney.com/

Link to Carolyn's chart below:
http://www.photoattorney.com/?p=3627



gschlact
Registered: Jun 04, 2011
Total Posts: 802
Country: United States

Hopefully you got a sceen shot showing that they were used. If not, try to find it in google cache.

Either way, House of Blues owes you for their ignorance, they commercially used them, they pay you for it.

Good luck.

Guy



Brandon Mizar
Registered: Jan 06, 2003
Total Posts: 1552
Country: United States

I have screen captures of all of it including all photographers responses bagging on them for stealing my photo.



Micky Bill
Registered: Nov 25, 2006
Total Posts: 2635
Country: N/A

Brandon Mizar wrote:
I have screen captures of all of it including all photographers responses bagging on them for stealing my photo.


The screen caps of their site using the picture, their admission of using the images is what you need, the photo graphers bagging on them makes you feel good.
If you can decide how much you want and or think how much the infringement usage is worth and bill them. X three. Their law department will tell them to pay it, they have insurance for this kind of stuff. Im 98% sure you will get paid what you bill them for....



JimboCin
Registered: Aug 21, 2005
Total Posts: 1114
Country: United States

I am interested in knowing what others think the Facebook "Statement of Rights and Responsibilities" means.

Read it here.

Specifically see section 2.4, which states:

"When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)."

It would seem to me that by posting an image on Facebook you are giving others the right to use that image as they want. Am I reading this correctly?



alohadave
Registered: Jul 26, 2005
Total Posts: 843
Country: United States

RustyBug wrote:
That changes the $$$ amount involved, but not the wronged part. For timely registered images, the willful infringement could be awarded up to $150,000. For non-timely registered images, the limits of damages are less.

Link to Carolyn's website
http://www.photoattorney.com/

Link to Carolyn's chart below:
http://www.photoattorney.com/?p=3627



Suing the House of Blues in Federal Court is a bit extreme don't you think? Sure the OP is pissed, but to retain a lawyer and try to get money out of them for the usage is a bit silly. Issue a DMCA takedown and have the pictures removed.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

alohadave wrote:
Suing the House of Blues in Federal Court is a bit extreme don't you think? Sure the OP is pissed, but to retain a lawyer and try to get money out of them for the usage is a bit silly. Issue a DMCA takedown and have the pictures removed.


It may sound "silly" and "extreme" at first thought, but consider this:


Going DMCA and takedown only sends a message LOUD & CLEAR ...

Go ahead and continue to steal from people ... AND ... IF ... you get caught with your hand in the cookie jar, it won't cost your a dime. So, go ahead and continue to steal images, you've got nothing to lose and everything to gain. The worst you'll have to do is say "I'm sorry".


If that is the message that you want to send, sure you can do that. In the meantime, that gives The House of Blues, etc. opportunity to avoid paying anyone in the industry for the work that was performed.

I realize there are two camps on this issue ... one that says "make it right" and the other that says "let it slide".

I get the "win the battle" vs. "lose the war" ... but I think that there comes a point when you have to stand up and be counted. This is of course going to be a personal decision that everyone will have to make for themselves ... but, I think that far too many people simply "give in" because they don't know how they've been wronged ... and in certain such cases, attorney's fees are part of the award against the offender. THAT ALONE ... makes it worth the HoB paying an invoice rather than risking the fines and OP's attorney's fees.

If I'm HoB's attorney's I tell them to offer $5,000 to the OP ... and HOPE that he takes it. The minimum award is $2,500 and they have violated AT LEAST two aspects of the DMCA. Tack on attorney's fees and the possibility that each violation could be significantly higher than the minimum ... $5,000 is a bargain. They could offer less, but since they know that the world of photographers is aware, they should be afraid that the OP will take it in to court. A properly filed suit lets them know that you are to be taken seriously.

Then there's this: HoB protects their own venue performances with the same genre (i.e. copyright) of laws that they are violating. There is no way I want to be HoB and try to explain to a judge why the law should work for them when they want it to, but not be held accountable to the same when the Big Guy steals from the Little Guy. Not only is this a case of willful theft, willful copyright removal, willful misrepresentation of copyright ... BUT ... THEY ABSOLUTELY KNOW BETTER, as they use the law for their own purposes.

Mickey Bill "gets it" with regard to "battle vs war" in business ... the House of Blues totally knows they are in the wrong. But, until you show them that you've got them cornered, they will try to get off easy. If they get presented with sufficient evidence (including the belief that the OP has sufficient legal knowledge/support) then they will try to "settle up". The invoice (as I've suggested elsewhere @ other instances) is an efficient route as long as they know you've got firepower behind you and that they are better off paying the invoice.

JimboCin wrote:
I am interested in knowing what others think the Facebook "Statement of Rights and Responsibilities" means.

Read it here.

Specifically see section 2.4, which states:

"When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)."

It would seem to me that by posting an image on Facebook you are giving others the right to use that image as they want. Am I reading this correctly?



The KEY POINT at Facebook's statement is "and to associate it with you". The House of Blues did NOT do that. the removal of the OP's information is in violation of Facebook's policy and the statues that Facebook is CYA'ing themselves from in the DMCA 17 USC 1202 (b).

Just because Facebook includes policy that indicates that they can't stop others from lifting images from Facebook ... that doesn't mean that the HoB didin't violate federal law. Whoever removed the copyright information is in violation of one section of the law, using it (allowing others to think it was theirs/not yours) is in violation of another section of the law.

Going along with what the OP has presented ... HoB (et al) has violated multiple aspects of the DMCA. The "TAKE DOWN" part of DMCA is but ONE aspect available in the possible remedies for such violations. It is not the only, but it sure is the one that sends the message of go ahead and keep on stealing, nobody's going to do anything about it.

Note also ... that in section 1203, reference is made that for REPEAT offenders (within a 3 period of judgment against them) can have fines TRIPLED. Of course, they must have had a judgment against them (i.e .must have been through the court) the first time. If no one ever takes an offender to court (i.e. take down notice only), then they never get found as a REPEAT offender.


Straight from 17 USC 1202:
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title17/html/USCODE-2011-title17-chap12-sec1202.htm
1202. Integrity of copyright management information

(a) False Copyright Management Information.—No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement—

(1) provide copyright management information that is false, or

(2) distribute or import for distribution copyright management information that is false.

(b) Removal or Alteration of Copyright Management Information.—No person shall, without the authority of the copyright owner or the law—

(1) intentionally remove or alter any copyright management information,


(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.


Micky Bill
Registered: Nov 25, 2006
Total Posts: 2635
Country: N/A

alohadave wrote:
RustyBug wrote:
That changes the $$$ amount involved, but not the wronged part. For timely registered images, the willful infringement could be awarded up to $150,000. For non-timely registered images, the limits of damages are less.

Link to Carolyn's website
http://www.photoattorney.com/

Link to Carolyn's chart below:
http://www.photoattorney.com/?p=3627



Suing the House of Blues in Federal Court is a bit extreme don't you think? Sure the OP is pissed, but to retain a lawyer and try to get money out of them for the usage is a bit silly. Issue a DMCA takedown and have the pictures removed.



Look at it as an error on H of B's part. Like my mom used to say when ne of kids would get all upset, "don't make a federal case out of everything". First of all, unless you are or are related to lawyer it'll take $10-$15k to get a case rolling in federal court.
Don't be pissed, be happy. You caught a giant corp that should know better using your image, they will pay you. It might take a few contacts with higher ups as they pass the buck but eventually you will be asked for a W9 and a mailing address.
A takedown request doesn't get you paid, I'd rather be paid.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

Micky Bill wrote:
You caught a giant corp that should know better using your image, they will pay you.


+1 @ rather be paid.

As long as they don't think they can "roll" over you because of your ignorance of why/how they committed the wrongs and the cost (to both parties) to rectify it.

+1 @ cost of attorney ... that's what "scares off" most people and what offenders are "banking on". Which is why it is important to know the difference between the various infringements that include awards for attorney's fee's vs. those that don't. That's why it is important to arm yourself with information or align yourself with someone. It gives you the ability to prevent being steamrolled / bluffed by the offender. So, even if it does cost 10K to file, HoB knows that they can be "on the hook" for it if they force someone to go down that road, hence a willingness to avoid it.

Just like negotiating a price for anything, it is important to understand the costs involved associated with various possibilities. It is that knowledge that affords you better negotiating/bargaining/positioning potential ... even if it doesn't go the "federal case" route. It is the knowledge of the strength of your position that gives you the mettle to proceed toward acceptable restitution ... whatever form that may be.

There is more than one way to proceed (invoice, settle, suit, etc.) ... but, imo, there is no reason to accept a token resolution of "take it down" from someone who has made a practice of stealing. I don't buy into the "got it from Google" as being innocent ... it was intentional, and is prevalently fraught with the notion that they'll only have to say "I'm sorry" and take it down because most people won't do squat to hold them accountable.

Again, each person and each case will have to make their own decisions at how to proceed in the realm of "battle vs. war" ... but I simply espouse these things such that people don't think their only/best recourse is limited to an apology and a "take down" when you've been wronged this obviously. Can you play it to your advantage for future business ... maybe, maybe not ... your call, but the prospect of future business is a highly debatable subject in its own realm.

Restitution is a VERY personal thing.
What sits well with one person, isn't necessarily good for someone else ... and that can range from "let it slide" to "federal case" ... your business, your call.

HTH & GL to all,




Brandon Mizar
Registered: Jan 06, 2003
Total Posts: 1552
Country: United States

So you think I should just send them an email and invoice for what I feel the photo is worth and let them know I will get my attorney involved if the invoice is paid in full?

As far as just letting it slide and telling them to take it down is the last thing I am going to do. If I stole something from a corporation as large as theirs and posted it on my website you can guarantee they would be coming after me.



Micky Bill
Registered: Nov 25, 2006
Total Posts: 2635
Country: N/A

Yes, I do. Ive done it in the past with other companies. It may take some legwork to get onthe right desktop but once the Creative / Marketing department head sees the invoice and the screen shots they will say wtf and who t f did this? Most likely they will blame a freelancer, but that's not your problem.

Keep track of all emails and be nice at the start, tell them there seems to be an un authorized use of your photo. Be confident and professional and don't take it personally. A strong lawyer letter might come handy for step number two...



JimboCin
Registered: Aug 21, 2005
Total Posts: 1114
Country: United States

JimboCin wrote:
I am interested in knowing what others think the Facebook "Statement of Rights and Responsibilities" means.

Read it here.

Specifically see section 2.4, which states:

"When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture)."

It would seem to me that by posting an image on Facebook you are giving others the right to use that image as they want. Am I reading this correctly?



RustyBug wrote:
The KEY POINT at Facebook's statement is "and to associate it with you". The House of Blues did NOT do that. the removal of the OP's information is in violation of Facebook's policy and the statues that Facebook is CYA'ing themselves from in the DMCA 17 USC 1202 (b).

Just because Facebook includes policy that indicates that they can't stop others from lifting images from Facebook ... that doesn't mean that the HoB didin't violate federal law. Whoever removed the copyright information is in violation of one section of the law, using it (allowing others to think it was theirs/not yours) is in violation of another section of the law.


RustyBug: Thanks for sharing your perspective on this!

I am not an attorney, and don't play one on TV either - but reading the Facebook statement I get a different understanding than you do. The way I read the Facebook statement is that by posting an image on Facebook you are giving others the right to use that image, and separately they can if they would like associate your image with you (your name and profile picture). It does not say that the user of the images needs to associate the image with the person who posted it, just that they may do so. At least that is how I understand it.

And it does seem to me that Facebook can have a statement that essentially says that people who use Facebook are giving up at least part of their copywrite if they use and post to Facebook. Submissions to many magazines and newspapers have similar statements. If you don't want to abide by the rules of the organization you have choices - not to submit /post your images, not to use the organization.

An interesting discussion. Perhaps I will contact my IP attorney and ask him for his understanding of this, or if some of our FM readers are IP attorneys perhaps they have a perspective on this.

Jim



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

Jim,

Yes, I did not fully extrapolate (my opinion) @ Facebook's "Statement of Rights and Responsibilities" ... only 2.4's relevance to the OP's HoB scenario.

+1 @ not an attorney, but the main thing that Facebook is doing is extracting themselves from liabilities against that which they cannot prevent and garnering permission for usage. There is a certain aspect that I think is pertinent for everyone to understand.

You post online, you run the risk of someone stealing your images and there isn't a darn thing anyone can do to prevent such theft.


But just because Facebook includes a "Statement of Rights and Responsibilities" that strives to absolve themselves from any liability regarding such theft of images, it does not absolve those who take such images from the accountability to the law. For example, even if a person had a properly, timely registered image and posted it on Facebook and someone took that image, gave photo credit to associate the image to the copyright owner ... the party that took the image via Facebook would not be in violation of the copyright act, since you gave permission for them to do so via the AGREEMENT you entered into with Facebook. This would be different than the DMCA aspect of 17 USC 1202 since there had not been a copyright removal action involved as in the scenario presented by the OP with HoB.

Facebook's "Statement of Rights and Responsibilities" does not negate the offenders from complying with the law. Facebook's "Statement of Rights and Responsibilities" primarily serves TWO purposes.

1) CYA Facebook by giving them essentially unlimited rights to use (or even sell) those images as the deem (as long as they comply with DMCA by associating the images to the copyright owner)
2) Alert others that they are engaging in "risky" behavior when they post images online

Facebook can't control the actions of the world anymore than SmugMug can keep people from taking screen shots to capture images, even if the "right click" is disabled. Just because Facebook has a policy that replicates aspects of the law does not negate the validity of the law.

HOWEVER ... it should be noted: There is a vast legal difference between a "policy" or "Statement of Rights and Responsibilities" and an "agreement". The very top of the page reads:


"This agreement was written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls. Please note that Section 17 contains certain changes to the general terms for users outside the United States."



Jim, you made reference specifically to 2.4 ... it is 2.1 that (imo) is most problematic. 2.4 merely explains that in order for 2.1 to be done in compliance with DMCA, an association to you must be made by those using your images.


In reading item 1) below of the AGREEMENT:

People who submit to this AGREEMENT are extending transferable rights to Facebook and others (which is why you'll never see me post an image on Facebook). It is this AGREEMENT that is going to "cook your goose" when it comes to someone using your images that they took from Facebook. I'd be rather certain that others (Flickr, Google, YaHoo, etc.) have similar agreements once you read their "fine print".

As long as when they use the taken images, they associate it to you ... then they are not in violation of your copyrights because you AGREED to allow them royalty free permission to do so via your AGREEMENT with Facebook. In that regard, no violation of the law has occurred. If however, they remove your copyright information (i.e. associates to you), then they ARE in violation of DMCA. The AGREEMENT entered into with Facebook does NOT indicate you are giving permission for people to remove your copyright information. As such, usage of copyrighted (registered/unregistered) materials and DMCA (copyright information) removal issues are separate (highly related) aspects of the law.

Imo, the AGREEMENT that people enter into with Facebook extends "carte blance" usage rights. It does NOT negate copyright information removal violations per DMCA.

My whole gig about STOLEN ... is taken WITHOUT your permission.


If you submitted to Facebook's AGREEMENT ... you ARE giving permission ... it is in BLACK & WHITE.

However, that still does not give the person/entity that acquires (notice I did not say STOLEN this time, subsequent to the AGREEMENT extending permission, they are only acquired) your images from Facebook the right to remove your copyright information, or to use it as "their own", or to distribute it to others without associating it to you (i.e. photo credit/copyright marked/etc.). The various aspects of copyright law, DMCA statutes and the AGREEMENT you enter into with Facebook interrelate with each other. Facebook's AGREEMENT (imo) says that you are giving permission for others to use your images ... as long as they retain association to you as the copyright owner (in accordance with DMCA).

The clause about "subject to your privacy and application settings" could have additional merit if you chose a non-public ... but I'm not going to venture into trying to split hairs down that path. Simply that when you enter into an AGREEMENT ... you have AGREED to the terms of that AGREEMENT. In the case of Facebook, you are giving PERMISSION for Facebook and others to use your work for the duration of your images being posted on Facebook (more legal @ lingering backup copies) and/or you having an account with Facebook.



From the Facebook AGREEMENT
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
3. When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Use Policy and Platform Page.)
4. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

Post it online in sharing websites and it is highly likely that you have given permission via the agreement you entered into ... just depends on the terms of the agreement ... terms matter.

HTH

... I need one after that.


mdude85
Registered: Apr 12, 2004
Total Posts: 4398
Country: United States

You could send an invoice to them, but remember, they are under no contractual obligation to pay you.

You could hire a lawyer to take legal action against the company for copyright infringement or DCMA violation (I would stay away from using words like "theft" since no physical object has actually been taken away from your possession), but speculating damages is going to be rather difficult as the poster was used for promotional value and was not, itself, being sold. In addition, you will probably be responsible for significant legal fees related to your action unless you settle (in which case, attorneys fees would still eat up a significant chunk of your settlement), not to mention a significant time investment. So it's important to weigh what you can do against what you should do or what is in your best interest to do.

As I understand it, the HoB apologized and then stopped using your photo. What else are you looking for? What is the estimated amount of monetary compensation you would seek?



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

From 1203.

(c) Award of Damages.—

(1) In general.—Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either—

(A) the actual damages and any additional profits of the violator, as provided in paragraph (2), or

(B) statutory damages, as provided in paragraph (3).

(2) Actual damages.—The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.

(3) Statutory damages.—(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

According to 1203.B.3.B ... actual damages do not need to be established as the complaining party has the option (may elect) to an award for either (A) actual damages or (B) statutory damages for EACH violation of 1202 (minimum of $2,500 per violation).

The 17 USC Chapter 12 rules are DIFFERENT than the 17 USC Chapter 5 rules.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12852
Country: United States

mdude85 wrote:
What is the estimated amount of monetary compensation you would seek?


You really don't expect him to answer that do you?

+1 @ weigh "can" vs. "should" vs. "best interest" etc.
But before one can diligently make that determination, they need to understand what "can" is in the realm of options. IMO, "can" includes the $2,500-$25,000 per violation of 1202 (without the need to establish damages or timely registration). "Can" also includes "let it slide" and let it "eat at you" for the rest of your life.

Obviously, this is a very personal decision that everyone must come to for themselves, based on a multitude of factors. If someone wants to "let it slide" or just do a "take down", that's fine as it is their decision. I just aspire to provide some perspective that may otherwise be left buried from consideration ... IT SUCKS to learn about your options AFTER you've made a decision based on limited info.



mdude85
Registered: Apr 12, 2004
Total Posts: 4398
Country: United States

@RustyBug. Registration prior to infringement, or up to 3 months after publication, is a precondition for recovery of statutory damages. 17 USC 412. According to the OP's account, neither of these conditions were satisfied.

Practically speaking, the law allows a complaining party to "take a gamble" and recover a limited award of statutory damages in the event that it is unclear what the award for actual damages would be. However, the prosecuting counsel will usually seek to determine what the actual damages are, so as to elect the maximum award for the client.



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