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Author Topic: Your photos are my photos now...  (Read 526 times)

plugsnpixels

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Eric Myrvaagnes

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Re: Your photos are my photos now...
« Reply #1 on: July 05, 2018, 08:33:57 AM »

That is frightening.
The first step toward a cure seems to be plastering your copyright across the image in a highly obtrusive watermark.
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Ken Bennett

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Re: Your photos are my photos now...
« Reply #2 on: July 05, 2018, 03:47:44 PM »

Reading the comments on that article make me despair.
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Chris Kern

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Re: Your photos are my photos now...
« Reply #3 on: July 05, 2018, 03:58:10 PM »

A few observations about this case:

First, it is a decision by a trial court judge, not an appellate court ruling, and therefore has essentially no value as a precedent (except, maybe, in the same federal district where the litigation took place).

Second, the decision was rendered on a motion for summary judgment: the court decided, as a matter of law, that the photographer plaintiff had failed to state a claim which raised factual issues that would have justified a full trial.

Third, the alleged infringement took place before the photographer registered the copyright, so statutory damages were not available, and the court found that the photographer did not make a plausible claim that the market for the photo had been adversely affected.

Fourth, the owner of the website immediately removed the photograph after being notified by the photographer that it was subject to copyright.

Finally, the court found that the website owner's purpose was "informational" rather that commercial.  I'm not entirely persuaded by the court's summary finding on this point, but assuming for the sake of argument that it was correct, the publication of the photograph without permission would seem to fall within the scope of the U.S. fair use doctrine.

Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #4 on: July 06, 2018, 04:24:07 AM »

Chris, you make sensible observations. It's plain that this was a phenomenally weak case, badly argued and justifiably not allowed to continue. I think it would be unwise to conclude that it has any significance to anyone other than the parties involved.

Jeremy
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plugsnpixels

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Re: Your photos are my photos now...
« Reply #5 on: July 06, 2018, 05:04:55 AM »

In researching this further I read of an unpleasant reality in which a corporate entity will steal your stuff then turn around and claim you are infringing upon them by posting it!

Google Pixel movie (Adam Sandler) for more info.

Rob C

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Re: Your photos are my photos now...
« Reply #6 on: July 06, 2018, 08:51:36 AM »

Legal niceties aside,  the solution to all of these apparently "innocent" uses of photos that happen is simple: no picture not your own should ever be used by you without written permission.

Yes, there is massive potential for exploitation (and fees) slumbering in the shadowlands of morality, but I'm afraid that even if the author of the work is untraceable - or dead - use should not be allowed without the documentation that permits it.

No goddam company needs to use that specific image of whatever; they should damned well either commission what they require or use a stock library. At a stroke, the law would be simplified and rights protected. But obviously, as I pointed out, grey areas make money for somebody else, and usually not for the victim of the process.

But hey, it's more fun and more lucrative backing the big boys than any damned "artist"...

Rob

David Eichler

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Re: Your photos are my photos now...
« Reply #7 on: July 06, 2018, 03:03:29 PM »

A few observations about this case:

First, it is a decision by a trial court judge, not an appellate court ruling, and therefore has essentially no value as a precedent (except, maybe, in the same federal district where the litigation took place).

Second, the decision was rendered on a motion for summary judgment: the court decided, as a matter of law, that the photographer plaintiff had failed to state a claim which raised factual issues that would have justified a full trial.

Third, the alleged infringement took place before the photographer registered the copyright, so statutory damages were not available, and the court found that the photographer did not make a plausible claim that the market for the photo had been adversely affected.

Fourth, the owner of the website immediately removed the photograph after being notified by the photographer that it was subject to copyright.

Finally, the court found that the website owner's purpose was "informational" rather that commercial.  I'm not entirely persuaded by the court's summary finding on this point, but assuming for the sake of argument that it was correct, the publication of the photograph without permission would seem to fall within the scope of the U.S. fair use doctrine.

While the case might not set a legal precedent, it might nevertheless set a bad precent in the public, who might take this decision as license to use photos freely, without permission of the copyright holder.
I don't think the fact that the judge granted the motion for summary judgement is conclusive here. I think this judge used very poor judgement in this case all around. And where did you see the reason the judge gave for the summary judgement anyway? I have not seen it mentioned in the articles I read, nor does the the memorandum opinion of the court mention this. The reason for a summary judgement may be that the judge agreed with a motion that there were no more useful facts that would be brought out with a full trial, but I am not sure that means that the plaintiff had an inherently weak case. I would be curious to know the ratio wins versus losses for the plaintiffs in copyright cases decided with a summary judgement.

When the photographer registered the copyright should be irrelevant to the case, as long is it was done before filing the lawsuit.

The fact that the defendant ceased usage of the photo should also be irrelevant. They should still be liable for their past usage.

In my view, the usage of the photo in question was in a promotional context. As such, I consider the usage to effectively be promotional, which does not
fall under fair use.

As far as the market for the photo being effected, it is most certainly affected if people feel that they can use the photo freely in a promotional context and claim fair use in order to
not have to pay for usage.

In short, I think that judge is either an idiot or was lazy.

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Chris Kern

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Re: Your photos are my photos now...
« Reply #8 on: July 06, 2018, 03:45:51 PM »

In my view, the usage of the photo in question was in a promotional context. As such, I consider the usage to effectively be promotional, which does not
fall under fair use.

I'm also skeptical of the court's conclusion on that point, as I mentioned in my earlier post.  That arguably is an issue that should have been brought before a fact-finder.  As such, it may constitute grounds for appeal.
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