Advice needed on photo theft.
/forum/topic/1153656/1

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RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

@mdude85

The violation is in CHAPTER 12 ... the REMOVAL of copyright information. I totally get the 3 months after publication vs. timely registration for statutory damages in Chapter 4 & 5. This is a Chapter 12 violation that was presented. THEY REMOVED HIS ASSOCIATION (logo, etc.) from the image in an attempt to CONCEAL the infringement (not the same as the infringement itself) ... different violation, different rules. Chapter 4 & 5 deal with the "theft". Chapter 12 deals with the "fraud to cover up" the theft.

I don't see anything in 1202 that mentions a 3 month requirement for timely registration pertinent to actual vs. statutory damages. Neither does 1203 make reference to a 3 month timeline requirement in the remedies.

Hence ... the referral to actual attorney.



§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.

(c) Definition.—As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of a work.

(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.

(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or links to such information.

(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.



mdude85
Registered: Apr 12, 2004
Total Posts: 4396
Country: United States

@RustyBug. As I understand it, the conditions set forth under 14 USC 412 to extend to "any action under [Title 17]". Maybe someone like Arka can comment on this.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

mdude85 wrote:
However, the prosecuting counsel will usually seek to determine what the actual damages are, so as to elect the maximum award for the client.


Even if "actual damages" are ZERO ... 1203 provides for an election to the $2,500-$25,000 statutory award. The complaining party can CHOOSE between actual damages OR statutory damages (prior to final judgment) in accordance with 1203 ... this DIFFERENT from Chapters 4 & 5 regarding infringement.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

mdude85 wrote:
@RustyBug. As I understand it, the conditions set forth under 14 USC 412 to extend to "any action under [Title 17]". Maybe someone like Arka can comment on this.


I can see how one might think that 412 applies to all of Title 17 as a prerequisite ... but it is moreover saying that except for a few other places, nothing else in Title 17 "trumps" 504 & 505 in the matter of "infringement" (which is not the same as circumvention of copyright protection systems). This is not the same as saying that 412, 504 & 505 trump all other areas of Title 17 in all other matters, i.e. Chapter 12.

"any action under [Title 17]" ... followed by lots of commas ... winds up addressing other areas of Title 17 as it pertains to sections 504 & 505. It doesn't say that 412 is a prerequisite to all of Title 17. If that were the case, then 1203 need to make reference to either 412, 504 or 505.

Also, it that were the case, the 1201 wouldn't include the separate language indicating its non-affect regarding infringement.

(c) Other Rights, Etc., Not Affected.—(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

Imo ... circumvention of copyright protection systems vs. infringement are two distinctly different issues, clearly separated by each having its own set of Chapters assigned to the issue, while contained within Title 17 ... each with their own definitions, laws and remedies. If 412 truly is a prerequisite to all of Title 17, it would have been included in Chapter 1, not Chapter 4.

BTW ... if you refer back to Carolyn's "flow chart" ... you'll notice that she also has them as separate entities.





pr4photos
Registered: Sep 17, 2008
Total Posts: 1077
Country: United Kingdom

I was chatting to a solicitor about Facebook today, and the upshot is that Facebook reserve the right to do what they like with any photos posted on their site and he advised me as a professional photographer to stop posting images.
With that in mind I won't be posting any more photos without a large semi transparent copyright sign in the middle of the image.
I have yet to find out whether linking to my blog or webpage from Facebook also gives Facebook rights on those images as I would would like to post a link to see the decent image on my own site



Littlebike
Registered: Oct 11, 2003
Total Posts: 1773
Country: United States

I have not read this entire thread so my post may be redundant. When I shot at House of Blues with an all access pass/photo pass I had to sign paperwork which basically stated House of Blues could use the images for future promotions etc.

I really did not care because I was really only there to visit with a friend who is a tour manager for one of the bands - the photo pass was more or less for fun.



jeraldcook
Registered: Dec 29, 2009
Total Posts: 524
Country: United States

RustyBug wrote:
Even if "actual damages" are ZERO ... 1203 provides for an election to the $2,500-$25,000 statutory award. The complaining party can CHOOSE between actual damages OR statutory damages (prior to final judgment) in accordance with 1203 ... this DIFFERENT from Chapters 4 & 5 regarding infringement.



<----- Attorney who happens to be married to an intellectual property attorney.

As previously stated, statutory damages are only applicable if the photograph is registered. No registration, no statutory damages. The above provision is therefore inapplicable to the OP.

And of course a disclaimer: The above is for informational purposes only and should in no way be construed as my legal opinion on the OP legal issue. The OP should seek the advice of independent counsel to discuss the facts and circumstances of his particular issue to ascertain his legal rights regarding any copyright infringement.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

So ... as an attorney married to an IP attorney ... what makes you think (from the statutes) that Chapter 4 & 5 (dealing with usage infringement) applies to Chapter 12 (dealing with copyright information removal)?

Are you suggesting that for "unregistered" images the law allows for copyright information removal, but for "registered" images it does not? Whereas Chapters 4 & 5 make for such distinction, Chapter 12 makes no such distinction between the action of copyright removal relative to "registered vs. unregistered" images.

The removal of copyright information is a violation with regard to any copyrighted materials, and the statutes of Chapter 12 apply to copyrighted materials, regardless of registration status. The subsequently defined awards (specifically addressed in Chapter 12) likewise are independent of registration status. Otherwise they would have been so stipulated as dependent upon such distinction ... similarly as they were stipulated in the matter of infringement as seen in Chapters 4 & 5. No such distinction, nor reference is made in Chapter 12 to the matter of registered vs. unregistered as being applicable to either the violation of copyright information removal (not to be confused with usage infringement of Chapters 4 & 5), nor the award options for violation of copyright information removal.

I see no reference to or indication of registration status pertinence mentioned anywhere in Chapter 12, nor any reference back to Chapters 4 & 5. If you see something in Chapter 12 that tells us that the issues of registration are applicable to Chapter 12, I'd be most interested to be shown where I've overlooked it.

Please present your case counselor.

jeraldcook wrote:
The OP should seek the advice of independent counsel to discuss the facts and circumstances of his particular issue to ascertain his legal rights regarding any copyright infringement.


+1 ... hence the earlier references to Carolyn Wright and Ed Greenberg.

But, it should also be pointed out that it appears as though you are trying to apply copyright INFRINGEMENT statues to copyright information REMOVAL violations. Both are copyright issues, but they are different violations, with different statutes.

The charges include a violation of copyright information removal, not solely infringement ... and YES, the award for the infringement violation relative to an unregistered image is limited to actual damages. No one is disputing that aspect ... rather pointing out that the OP has presented where the HoB has ADDITIONALLY, beyond the infringement violations as written in Chapters 4 & 5, violated the statutes of Chapter 12 ... to which Chapter 12 applies, not solely restricted by Chapters 4 & 5 ... else, why would Chapter 12 even mention a different award structure if it were truly superseded by Chapters 4 & 5?



jeraldcook
Registered: Dec 29, 2009
Total Posts: 524
Country: United States

RustyBug wrote:
Please present your case counselor.


Looks like this thread is a good lesson on why I should read the whole thread before posting. Upon my cursory review of the thread, I failed to take sufficient notice that you brought up the second issue of removal of copyright management information (his logo). It does appear that Chapter 12 does have its own statutory award of damages, separate from Chapters 4 and 5, and does not appear to have a registration requirement.



mdude85
Registered: Apr 12, 2004
Total Posts: 4396
Country: United States

@Jeraldcook Thank you!



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

mdude85 wrote:
@Jeraldcook Thank you!


+1

jeraldcook wrote:
RustyBug wrote:
Please present your case counselor.


Looks like this thread is a good lesson on why I should read the whole thread before posting. Upon my cursory review of the thread, I failed to take sufficient notice that you brought up the second issue of removal of copyright management information (his logo). It does appear that Chapter 12 does have its own statutory award of damages, separate from Chapters 4 and 5, and does not appear to have a registration requirement.



I think it also makes for a good lesson @ why legal matters are best served by trained and experienced lawyers, rather than layperson who have had a legal experience ... they aren't the same thing. My biggest objective in such things isn't to suggest that I can replace a lawyer or that we should all be DIY lawyers ... but rather, if you go solely by what you are told on the internet regarding copyright law (or any law for that matter) ... you could be misguided by well-meaning folks. Instead you either need to understand the statutes themselves, or find a lawyer who does.

I'd like to think I can do a fair job of understanding how to read the statutes (former OSHA inspector responsible for, and trained in, interpreting & enforcing statutes) ... at least enough to have the conviction to take it to an attorney and present a case for the case. Of course, I'd get my butt kicked for lack of process knowledge and/or case law research, if I tried to do the DIY thing in legal proceedings ... something about a fool doing things he has no business doing. BUT, that is not the same thing as being held hostage by ignorance of the law (which I advocate against), rather being wise enough to know when to get proper assistance instead of "rolling over" to be a perpetual victim.

There's an old adage:

"When you NEED a doctor, get a good one ... when you NEED a lawyer, get a good one."
(Same goes for when you NEED a photographer, get a GOOD one.)

IMO, the OP's case NEEDS for him to get a GOOD one ... and if he's found a GOOD one, it could be that we won't hear from him again on this matter for quite some time.



jeraldcook
Registered: Dec 29, 2009
Total Posts: 524
Country: United States

RustyBug wrote:

I think it also makes for a good lesson @ why legal matters are best served by trained and experienced lawyers, rather than layperson who have had a legal experience ... they aren't the same thing.


I'd add a trained and experienced IP lawyer.

RustyBug wrote:
There's an old adage:

"When you NEED a doctor, get a good one ... when you NEED a lawyer, get a good one. (Same goes for when you NEED a photographer, get a GOOD one.)

IMO, the OP's case NEEDS for him to get a GOOD one.


^ Absolutely. The story I always relay to people is the time an opposing party chose to fire a very competent trust attorney because he was too expensive only to replace him with a significantly cheaper general practice attorney with no prior knowledge of trust law. The opposing party actually told my client (they were brother and sister after all) that her attorney "may not be any good but he's cheap." She lost the lawsuit to the tune of $1,200,000 when a decent attorney would have easily been able to reduce the damages to $600,000. I doubt she feels the $10,000 saved by hiring a cheaper attorney was in retrospect a good trade.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

+1 @ IP (etc.) attorney.

I needed an attorney several years ago and while most that I spoke to were @ 33% ... and suggesting to settle (or not even wanting to take the case) for a similar amount, I found an attorney that was around 40% and highly specialized in the matter.

Despite still never going to trial (although fully preparing for trial), the NET difference was around 10X what the 33% attorneys were suggesting I should settle for. Granted, it was a fight, and it took a few years of patience ... but having the right person advocating for you is crucial ... not just for the monetary value, but also for championing and safeguarding your sanity and assisting you to understand what it means to be "made whole" again ... i.e. kick that victim feeling to the curb (when you've been wronged).



TT1000
Registered: Sep 16, 2007
Total Posts: 364
Country: N/A

To my husband is an IP lawyer,

the anti-circumvention provisions are silent on whether one even has to register to bring an action let alone within the time frame set forth in 412 to request stat damages.

If Congress intended 412 to apply to section 12 actions they could have amended 412 which by its terms only proscribes stat damages otherwise made available under 504/505.

So unless you can find an actual case in which the court (wrongly. ;-)) reads the section 412 timing requirement into Article 12 I'd say you need not timely file. In fact, as mentioned above it's not clear (Article 12 is silent) that you even have to register to pursue your Article 12 action. 411(a) applies only to actions for "copyright infringement". Though you would expect the 1202 action to be tacked on to an infringement action and not brought by itself so I would speculate that this question has not been addressed.

Rusty I think the problem is more that despite the trend to read what CMI means broadly the section 1202 case is not that straightforward. Infringement is strict liability and you argue over mental state when it comes to damages. Not so 1202 cases. So even though you may think it easy to prove the required mental state it will cost. It's nice to have another hammer available to threaten with but its hardly some magical legal elixir.

I'm not your lawyer and the above isn't legal advice.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

+1 @ cost ... but fortunately attorney's fees are specified in Chapter 12 awards for

+1 @ case law

+1 @ magical elixir.

I'm not sure I follow why you feel that proving a required mental state is necessary for removal of copyright information associated with Chapter 12. Chapters 4 & 5 have award structures that address mental state, but I don't see it in Chapter 12.

Whereas Chapters 4&5 seem to have more conditional and interpretive parameters involved, Chapter 12 seems to be very direct ... it is wrong to remove copyright information and here are the penalty ranges for it ... your choice at actual vs. statutory (minimum @ $2500), no conditions attached. Oh, and btw ... you owe for the attorney's fees also.

I think the thing that makes Ch. 12 different from 4&5 is that 4&5 allow for the possibility of ignorance/innocence by the offender ... particularly as people get "confused" by "fair use". Ch. 12 however, seems to me to be saying ... there is no aspect of this that in anyway could the offender have not been willful in intentionally violated the law when removing copyright information.

Therefore, CH. 12 is much more straightforward ... you removed it, you were wrong, you pay for it ... complainants choice (once proven) @ actual or statutory.

Obviously, this is all my interpretation and opinion ... totally unqualified as legal counsel. BUT, consider this ... if CH. 12 plays by the same rules as 4&5 that people are suggesting, then it will likewise remain an ineffective deterrent that perpetuates law breakers to continue doing so at will, with no concern for being held accountable for their intentionally wrong actions.

I'd like to see the OP and a GOOD attorney take this to an outcome that provides case law for the future. I understand that everyone has to make their own decisions regarding legal matters. But, I obviously have expressed a strong perspective on the issue. Most are likely to dissent, citing the history of 4&5 ... but I do not believe that 4&5 have any direct bearing on 12 ... it stands on its own, and was written directly to do just that.

The reason it is "silent" on registration is because registration has no bearing on it ... not because the authors were "too chicken" or "too wishy-washy" to incorporate it. It was left out because it has no bearing on whether or not it is wrong to remove copyright information ... i.e. IT IS ALWAYS WRONG.

Again, these are my interpretations & opinions offered for consideration. To me it is such a simple thing ... you stole it and you took my name off it. You might be able to argue that you only "borrowed it" or that I gave you "permission" because I published it and failed to register it. BUT ... you CANNOT argue that you didn't use it with my name removed from it, because the evidence is tangibly obvious that you did ... hence, the directness of 12 vs. the conditions of 4&5.

Will be interesting to see what the future holds in such legal realms of the powers to be ... hopefully they take CH. 12 @ face value rather than try to apply 4&5 case law to CH. 12.



TT1000
Registered: Sep 16, 2007
Total Posts: 364
Country: N/A

Separate liability and damages. Liability for copyright infringement is strict. No proof of mental state required. At the damage phase mental state matters.

Liability for violations of DMCA 1202 is not strict. Unlike for copyright infringement, Congress intended to limit the scope of the statute by requiring scienter for liability. For damages it matters as well as there is a provision to deal with innocent violations.

I don't want a plus one for "case law." I'll stick with statute. 1202 by its terms doesn't require timely registration and 412 doesn't apply to the DMCA. If the other poster wants to read a statute contrary to its plain meaning then its on her to find a court that went off the rails.





RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

TT1000 wrote:

I don't want a plus one for "case law."



I should clarify ... I meant that I would like to see some crystal clear CASE LAW to substantiate CH. 12 as being independent of 4&5, and in perfect harmony with CH 12 statute as written. It would be nice to for once have it be simple ... it says don't do it, you did it, you pay for it ... simple.



TT1000
Registered: Sep 16, 2007
Total Posts: 364
Country: N/A

You're inventing a problem of statutory interpretation and then saying you'd like a court to clear it up.

I don't want to put words into your mouth but all I hear is that you think it odd that the Copyright Act require a timely copyright registration for the plaintiff to recover attorney fees and stat damages when the anti-circumvention provisions allow for fees and stat damages without a timely registration. Each law had its own history and purposes so why is it surprising ?

And while you might find your own rule "don't do it, you did it, you pay for it " superior it's not what 1202 says. At the risk of boring with repetition, 1202 is not strict liability; instead the trier of fact must look into mental state. Congress wanted to limit the scope of the rule and they explicitly rejected your idea "if you did it you pay."

As for harmonizing the Copyright Act and DMCA. I'm unclear precisely what that means other than as mentioned before you seem to be flummoxed that two laws could have similar remedies but different requirements for their availability.













RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

You are very badly misunderstanding (my bad if I worded something poorly) what I've been saying if you thing I'm trying to harmonize infringement (4&5) with copyright information removal (12).

As to the case law ... you are again badly misunderstanding what I'm saying (my bad for truncating the explanation). I am in full support of statutes of 12. I'M NOT suggesting that a court clear it up ... but case law is part of what others will use to argue against the statutes. If 100% of the cases that go before courts have the same outcome, then there is strong case law to support the statutes. Realistically, I don't expect every case & every court to yield the same outcomes. BUT ... I hope that sufficient case law will develop strongly enough to put "teeth" into CH 12.

I'm sorry if my "+1 @ case law" was misinterpreted as contradictory to what I've been espousing. I think I've been quite adamant at the separation of 4&5 vs. 12 iaw with the statutes as written. I'm not quite sure what it is that I said that makes you think I find the differences "odd" as if I was confused by them ... I've never suggested anything of the kind. I have simply made a point of distinguishing those differences to illustrate how the registration issues of 4&5 do not apply to 12.

As to me being "flummoxed" by the differences ... not even remotely close ... I've been pointing them out, not expressing my confusion by them. It may be that you've misinterpreted me raising a question for others to consider, as me being flummoxed by its content. Again, If I poorly worded something ... my bad.



RustyBug
Registered: Feb 02, 2009
Total Posts: 12559
Country: United States

HoB ... and likely all other offenders ... are going to argue essentially the exact opposite of what I've been saying. They are going to try and use registration, fair use, case law, inapplicable statutes or any other thing they can to escape being held accountable by the statutes. They will be doing their best to convince a court that the statutes do not require them to pay for the wrong(s) they have committed. They'll pull out any "trick in the book" that they can get away with. Your side will need to be on guard to how to "call their bluff" and prove them to be wrong, not only in their actions, but also in their application of the statutes. It's always been that way, always will be that way.

There will be those times when a court is persuaded by the talent, knowledge, experience and approach of one side being more convincing in their argument of the statutes than the other side. Historically, the most compelling arguments that offenders have used against infringement issues are "fair use" and when that hasn't worked, then "registration" as a way of mitigating the extent of the damages to be awarded ... which has a profound way of creating the "battle vs. war" dilemma @ $$$ needed for the fight ... particularly since the registration issue in 4&5 makes a significant difference between attorney fees vs. no attorney fees. This has effectively ended many fights long before they even started.

My point to all of this is that here in the OP's case with regard to the removal of copyright information, the defense arguments of "fair use" and "registration" are NOT part of Ch 12 ... and that will need to be argued well as others will try to still apply CH 4&5 that has been historically very successful for them to dissuade appropriate justice efforts.

I mean, if you think about it ... many of us have been arguing that CH 4&5 supersede CH 12. If we believe that 4&5 supersede CH 12 ... good grief, then we are agreeing with those who are trying to escape CH 12. It is important to recognize that we will have to oppose those who are trying to escape CH 12. As such, if we are not strong in our understanding of how/why CH 4&5 does not apply to CH 12 ... it isn't me who will be "flummoxed" ... it is the court who will be confused by why we have such a weak argument to substantiate our position that we were wronged and are due appropriate awards indicated by CH 12.

Just because the statute states it, doesn't automatically mean the court will "get it right" ... we will have to be prepared to argue & defend the statute more persuasively than those who will be trying to escape it. There has been no shortage of reference to the need for a GOOD attorney to advocate for us.

Let me be crystal clear ... I have NOT been advocating that we should be DIY attorneys. But I have been advocating that not only does the statute provide for distinction between 4&5 vs. 12, but that it is important for us to understand how/why that is ... this is to strengthen our conviction to not only have we been wronged in such cases, but that the statutes have a mechanism in place that is different in CH 12 than it is in CH 4&5 ... lest we lose our conviction to restoration due to being led astray by tenets that are not applicable.

There will always be those who disagree and those who dissent ... choose your position and prepare your mind to defend it. Your opposition has ... so should you (i.e. you and your choice of attorney). The law is there (for both sides to use), but there is an aspect of it that relies on how well it is argued/presented ... it is not automatically applied correctly. Even though I espouse it is simple in philosophy/concept ... it still requires one to dig in their heels and fight (nothing simple/easy about that), for that is exactly what the other side will be doing. And to a large degree ... they strategically rely on others not being prepared or willing to incur the effort/time/cost to do so.

Part of the distinction between CH4&5 vs. CH 12 pertains to the cost/attorney fees ... likely one of the most compelling reasons why the fight is often over before it begins and the "battle vs. war" becomes so applicable for many of us. It may not seem "right" that we should have to fight so hard to defend what is so obviously wrong. Often times people accept only a token offering (believing they cannot win), much like agreeing to "pay off" an extortionist so that they don't incur even more damage. The "battle vs. war" decision will always be in play ... that's the reality.


When you are surrounded by marauders, who raid, pillage and plunder ...
you must be prepared to defend,
or you will continue to be raided, pillaged and plundered.


Until they begin to feel the sting of $$$ awards, they will remain undeterred marauders ... relying on us to feel as though it is always a losing proposition to fight. We all have to "pick our battles" and often times reconcile the "battle vs. war" in our decision making. But for those who might be interested in something other than remaining in the position of feeling as a perpetually hapless victim ... I simply offer these things to help prepare a mindset for defending oneself against their opposition. Whether it is in the form of a small scale skirmish, or a full on war ... the better one has prepared, the better their chances for victory and/or amicable reconciliation/restitution.

As always, I HTH ...



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