Photo Use Infringment ... ?? copywrite copyright
/forum/topic/905375/2

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RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States



Ask the kid to take the PDF down, and let it go at that.



It just donned on me that with the cover shot of the magazine being from 20th Century Fox, they certainly got permission (paid or donated). So they really have little excuse in the matter of willingness vs unknowingly ... they definitely knew ... and if they didn't, I'm quite sure 20th Century Fox would have something to say about it as well.



Craig Gillette
Registered: Feb 15, 2005
Total Posts: 3414
Country: United States

With a "class," the number of people involved may be large enough to make legal action worthwhile. However, in the US, one must have registered the copyright before initiating legal actions. "Late" registration, whether out of innocence or lack of interest, could result in reduced availability of damages, providing even less incentive to pursue legal action. By allowing the incorporation of unregistered copyright owners in the class, the pool could potentially be of a size that makes legal actions worthwhile.



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

Lawyers may find it economic to sue if they can put together a large enough class ? That's the point ?

That isn't much solace if I'm a photographer with an unregistered work that is being infringed. Getting $5 for my work is still only $5.

The Reed Elsevier settlement payouts (cap of $18 million):

Category A claims (works registered in time to be eligible for statutory damages): $875 - $1500 per work.

Category B claims (works registered before Dec 31 2002 but not in time to be eligible for statutory damages): greater of $150 or 12.5% of the original sale price of the work

Category C claims (all other works, including registered after Dec 31 2002 or not registered, whether foreign or US): $5 to $60 per work.

Cat C was estimated at 99% of the claims.

So if you are in category C you waited going on 9 years now for $5 to $60 per work. Wohoo!





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

"I believe that poster was referring to being allowed up to 90 days after publication of the infringing work to register one's images."

mdude, yes, I think he may have meant that too. So he was wrong. You can register whenever you want. You have three months from first publication if you want enhanced remedies.



RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

The request came on March 26 (not sure of actual publication date), so I've still got at least 3 weeks (assuming published after request) to get registered in the 3 month post publish timeframe.



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

RustyBug, that case and that formula doesn't have anything to do with you or your situation or registration generally ! Please contact a lawyer if you have questions about copyright or your situation.

Sorry if I went off in another direction with CG and confused you. Most of my comments had nothing to do with your situation.

Gillete, I actually painted a somewhat rosier picture for Cat C claims. Because of the $18 million cap, the amounts are subject to reduction. Guess who get's reduced first ?



E-Vener
Registered: Jun 18, 2009
Total Posts: 4260
Country: United States

It's always much more fun to whine than to take action. The only thing dumber than getting legal advice from a random bunch of photographers is getting it from wikipedia.



cbrandt
Registered: Aug 03, 2006
Total Posts: 1486
Country: United States

I put photos on flickr that I could care less about - those I want to show but try and protect, I put on my website. I don't have any at this time that I'm going to spend time and money legally copyrighting, and if I did would never put them on the net !!

Congrats on having a photo published. lesson learned.



RDKirk
Registered: Apr 11, 2004
Total Posts: 8976
Country: United States

I don't have any at this time that I'm going to spend time and money legally copyrighting,

Just for the record, you can register your copyright in the US fully online, and you can register as many hundreds of images (in small JPEG format) as you can stay awake uploading in a session for only $35.



mdude85
Registered: Apr 12, 2004
Total Posts: 4402
Country: United States

E-Vener wrote:
It's always much more fun to whine than to take action. The only thing dumber than getting legal advice from a random bunch of photographers is getting it from wikipedia.


Given some of the advice appearing on this thread, I'd say Wikipedia is not the dumber move.



RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

E-Vener wrote:
It's always much more fun to whine than to take action. The only thing dumber than getting legal advice from a random bunch of photographers is getting it from wikipedia.


I've already taken initial action of emailing Carolyn, I couldn't find an email for Ed ... will continue to look & will register images this week (ACTION IN MOTION).

I was looking at Wikipedia for a simple expanation of statutory damages to help explain it to someone else, when I happened to notice the differentiation between "willful" and "not aware". It just made a 'neat & easy' way to show a correlation about the number of $15,000 that you commented about earlier had some basis (1/2 of the $30,000), rather than some 'pie in the sky' / fairly tale made up number. It's not that I expect to get anything like that necessarily, but it does show the seriousness and magnitude to which the violation is valued by the legal system.

The Wikipedia article refers to the U.S. code, which I'll study up on while I'm trying to make contact with Ed & Carolyn ... just thought it would give a bit of credibility to your earlier comment.

There are a ton of people who will 'cheerlead' the cause ... but I hope that the Wikipedia article would show at least a little bit of the 'legal-ease' behind the cheerleading. For me, I found this tidbit of information (no substitute for legal counsel or reading the U.S. Code itself) VERY EMPOWERING to realize that the legal system has provisions that are ...

WAY BEYOND ACTUAL DAMAGES


Not being able to quantify or answer the question of what 'actual damages' have I incurred is probably what renders most people to say 'what's the point', my actual damages aren't worth the fight.
Realizing that statutory damages are very real and very possible, makes the fight worthy. It goes beyond the rhetorical cheerleading of 'you can't let them get away with this'. I just thought others might be SURPRISED by the level of support for statutory damages and the 5 fold increase it may award for willful violations ... WOW, powerful information (even if needing to be corroborated and requires legal counsel assistance).

BTW ... all you RANDOM PHOTOGRAPHERS have been very helpful in enlightening me on the matter, not legal advice ... but en-light-ening none the less ... WAY COOL !! As usual FM ROCKS !!!

NOTE: I edited the title to include copyright / copywrite spellings to assist others who might be future searching for subject matter (semi-sticky).


RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

cbrandt wrote:
Congrats on having a photo published. lesson learned.


Thanks. It is a nice feeling to see something of yours in print for the first time ... pity that it is a bit 'tainted' by all this ... and not even my name in the photo credit.



RDKirk
Registered: Apr 11, 2004
Total Posts: 8976
Country: United States

Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.

Inasmuch as copyright law makes it pretty clear that if you are not the author of a work, you have no license to copy without a written agreement, it should be difficult for any commercial publication to claim it did not know they were infringing on someone's copyright.

If/when the Orphaned Works bill gets signed into law, that could change.



mdude85
Registered: Apr 12, 2004
Total Posts: 4402
Country: United States

RDKirk wrote:
Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.

Inasmuch as copyright law makes it pretty clear that if you are not the author of a work, you have no license to copy without a written agreement, it should be difficult for any commercial publication to claim it did not know they were infringing on someone's copyright.

If/when the Orphaned Works bill gets signed into law, that could change.


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



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


"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.







glort
Registered: Aug 03, 2009
Total Posts: 868
Country: Australia

If you were asking about using a pic without permission, all the righteous defenders of good and justice would rant and rave about getting sued.

Seeing the shoe is on the other foot, what are you waiting for?

The US seems to have a litigation crazy mentality with forum participants at least but I still reckon if you try to take the wrong doers to court you are going to get a real reality check on the difference between ranting about it and actually getting a judgment that goes near justifying the time, stress, worry and over all viability of the exercise.

I could be very wrong but I would like to see if all the ranting and raving I have read has any credibility or is just what I think it is. Seeing your on the side of good and in the right, go to a QUALIFIED legal practitioner and find out the realities of recouping your loss and please let us know what they say and the ultimate outcome.

It would be good to know either way and if you do come out with worthwhile bux in your pocket, then you may come to have a change of mind like I did when a guy ran into my car and the payout I got was much more than it was worth so I went from mad to thinking he did me a favour in the end.

Good luck with it!



RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

please let us know what they say and the ultimate outcome.


Most certainly.



RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

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 we register everything??

I consider that since I pay for Flickr as "MY ACCOUNT" and have it marked as "All Rights Reserved" that wouldn't be considered publicly available just for the taking, but rather my Flickr account is for MY USE so that I can conveniently access MY PICTURES from anywhere the www will allow me access to MY ACCOUNT. Allowing people to LOOK/VIEW my pictures is the same as having them on display in a storefront window ... they are still mine. I'm allowing you to look at them ... if you want them, you have to come in and ask and you have to pay for them (even charitable entities still have to have my permission).

That's no different than putting my money in "MY ACCOUNT" at the bank and saying that it's fair game because the bank is open to the public and I didn't register the serial numbers on the dollar bills with the Federal Reserve. Then again, maybe it is ... sounds a bit like the 'run on the banks' back in the Depression, where they gave away people's money to whoever demanded it first, until it ran out ... sucked to be last.



Craig Gillette
Registered: Feb 15, 2005
Total Posts: 3414
Country: United States

This is the definition of "publication" in the US copyright law.

"“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."



RustyBug
Registered: Feb 02, 2009
Total Posts: 13383
Country: United States

Craig,

Thanks. I'll put the Samurai sword back in its case now.

Well, that was "ONE" attorney's take on things ... wonder how others will regard it.



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