Luminous Landscape Forum

Equipment & Techniques => Pro Business Discussion => Topic started by: plugsnpixels on July 05, 2018, 05:13:35 am

Title: Your photos are my photos now...
Post by: plugsnpixels on July 05, 2018, 05:13:35 am
Or so it seems, according to the courts:

https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/
Title: Re: Your photos are my photos now...
Post by: Eric Myrvaagnes 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.
Title: Re: Your photos are my photos now...
Post by: Ken Bennett on July 05, 2018, 03:47:44 pm
Reading the comments on that article make me despair.
Title: Re: Your photos are my photos now...
Post by: Chris Kern 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.
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak 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
Title: Re: Your photos are my photos now...
Post by: plugsnpixels 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.
Title: Re: Your photos are my photos now...
Post by: Rob C 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
Title: Re: Your photos are my photos now...
Post by: David Eichler 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.

Title: Re: Your photos are my photos now...
Post by: Chris Kern 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.
Title: Re: Your photos are my photos now...
Post by: eronald on September 05, 2018, 08:30:51 pm
AFAIK if you have an image or illustration appear in a US publication, and it has not been registered with the Library of Congress, then even if you win a case against that publication the damages awarded will be just what the publication would have paid in the first place. If the image is registered the damages are x3. You want to protect your images, register them.

Edmund
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 05, 2018, 10:07:20 pm
AFAIK if you have an image or illustration appear in a US publication, and it has not been registered with the Library of Congress, then even if you win a case against that publication the damages awarded will be just what the publication would have paid in the first place. If the image is registered the damages are x3. You want to protect your images, register them.

Edmund

You can only sue for copyright infringement in the US if you have registered the images, and your opinions about damages are incorrect. Easy to find the US copyright law online. Why not read it before you try to offer opinions?
Title: Re: Your photos are my photos now...
Post by: Doug Peterson on September 09, 2018, 08:05:58 am
You can only sue for copyright infringement in the US if you have registered the images, and your opinions about damages are incorrect. Easy to find the US copyright law online. Why not read it before you try to offer opinions?

That is not correct. You own copyright at the moment of creation and can sue regardless of registration.

Registering improves the quantity of damages and the ease of a favorable settlement without going to trial. That also means registration improves the chance of a contingency lawyer taking up your case or that you’ll be able to hire a non-contingency lawyer at a rate lower than the resulting damages collected.

In other words registration is a huge benefit, but not a requirement, to suing.

Source: I’m not an expert, but I did marry one (my wife is a practicing IP lawyer specializing in soft IP such as copyright).
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 09, 2018, 06:07:41 pm
That is not correct. You own copyright at the moment of creation and can sue regardless of registration.

Registering improves the quantity of damages and the ease of a favorable settlement without going to trial. That also means registration improves the chance of a contingency lawyer taking up your case or that you’ll be able to hire a non-contingency lawyer at a rate lower than the resulting damages collected.

In other words registration is a huge benefit, but not a requirement, to suing.

Source: I’m not an expert, but I did marry one (my wife is a practicing IP lawyer specializing in soft IP such as copyright).

From the US copyright law: “...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak on September 10, 2018, 02:11:37 pm
From the US copyright law: “...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”

Where does that quoted text appear?

Jeremy
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 10, 2018, 02:48:33 pm
Where does that quoted text appear?

Jeremy

411. Registration and civil infringement actions
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 10, 2018, 03:04:04 pm
And, just in case the actual words of the US copyright law are not good enough for some of you, here is a quote from an experienced IP lawyer:   "Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement." This quote is part of her discussion of the legal remedies for copyright infringement of US works in the US.

This quote comes from Option 6 in this article:https://www.photoattorney.com/help-ive-been-infringed/

At this point, I really don't know how to make it any clearer: you must register your work in order to file a copyright infringement lawsuit in the US. I seem to recall reading about someone who brought a copyright infringement matter to small claims court and prevailed, but that is an outlier and not any sort of precedent. Copyright infringement cases in the US are only supposed to be heard in Federal court. In cases where the infringing party is a client of yours, and uses the photos beyond the agreed-upon terms, I suppose there is the possibility of bringing the matter to court as a breach of contract, rather than copyright infringement; however, that might limit the amount of award, relative to suing for copyright infringement.
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak on September 10, 2018, 03:16:52 pm
And, just in case the actual words of the US copyright law are not good enough for some of you, here is a quote from an experienced IP lawyer:   "Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement." This quote is part of her discussion of the legal remedies for copyright infringement of US works in the US.

This quote comes from Option 6 in this article:https://www.photoattorney.com/help-ive-been-infringed/

Selective quotation is seldom a good idea. The lawyer's article you cite continues, in the very same section:

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

At this point, I really don't know how to make it any clearer: you must register your work in order to file a copyright infringement lawsuit in the US.

On the assumption that the writer of the article is right, that's simply wrong (though it's certainly clear). You must register in order to receive statutory damages, but you have no need to register in order to receive what she terms "actual" damages.

Jeremy
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 10, 2018, 03:24:42 pm
Selective quotation is seldom a good idea. The lawyer's article you cite continues, in the very same section:

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

On the assumption that the writer of the article is right, that's simply wrong (though it's certainly clear). You must register in order to receive statutory damages, but you have no need to register in order to receive what she terms "actual" damages.

Jeremy

You are confused. I suggest you read the entirety of Carolyn Wright's article. As far as being able to receive statutory damages, it is a matter of when you register. If you don't register in a timely manner to be able to receive statutory damages and want to pursue a lawsuit to obtain actual damages, you still must register the images before proceeding with a lawsuit.

Folks, it is not that hard. The language I cited from the copyright law above is unequivocal. To be able to file a copyright infringement lawsuit for the purposes of trying to obtain any damages, statutory or actual, you must first have registered the images.
Title: Re: Your photos are my photos now...
Post by: Chris Kern on September 10, 2018, 05:14:12 pm
As far as being able to receive statutory damages, it is a matter of when you register. If you don't register in a timely manner to be able to receive statutory damages, and want to pursue a lawsuit to obtain actual damages, you still must register the images before proceeding with a lawsuit.

This is an accurate statement of the U.S. requirement for enforcing a copyright in court except for works that were created in another country that is a signatory to the Berne Convention.

So while a copyright for work created in the United States exists without the requirement for "any formality," as in other Berne signatory countries, judicial enforcement is only available after the work has been registered.  In other words, if a U.S. copyright holder discovers a presumptive infringement, the copyright must be registered prior to taking legal action to recover damages.

(There is a disagreement among the U.S. federal appellate courts about a particular aspect of the registration requirement that is not relevant here.)

If the work was created in another country, it's a little more complicated.

In the United States, treaties are typically "self-executing"—upon ratification, they become judicially enforceable as U.S. federal law.  However, when the United States belatedly joined the Berne Convention, it did so with an important qualification: the international copyright provisions would require explicit implementing legislation, which Congress enacted in 1988.

I think that's what makes the U.S. law confusing.  We follow the Berne rules with respect to copyright creation, but not with respect to copyright enforcement.

Except for works created in other Berne signatory countries.  The U.S. implementing legislation permits their owners to sue for "actual damages"—for example, lost revenue—without having to go through the formality of registration.  However, if they register within a specified time period ("not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement"), they also can collect additional damages specified in the U.S. copyright law.

To summarize:
In case it isn't obvious, the policy behind the U.S. registration requirement is to create a presumption of a valid copyright before an infringement claim winds up in court.  If the validity of the copyright is challenged in a lawsuit, the defendant has the burden of proving its invalidity.
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 10, 2018, 06:04:29 pm
This is an accurate statement of the U.S. requirement for enforcing a copyright in court except for works that were created in another country that is a signatory to the Berne Convention.

If you read the comments of mine you cite in the context of my previous comments and the court case that was the original subject of my thread, you will see that I was only addressing works created and infringed in the US.
Title: Re: Your photos are my photos now...
Post by: Chris Kern on September 10, 2018, 06:19:03 pm
If you read the comments of mine you cite in the context of my previous comments and the court case that was the original subject of my thread, you will see that I was only addressing works created and infringed in the US.

Yes, I assumed that, and your explanation of our law with respect to works created in the United States is accurate.  But since U.S. copyright law differs in this significant respect from the international standard, and since LuLa is an international forum, and since even U.S. citizens or residents may create works in other Berne signatory countries, I figured it was appropriate to explain how the U.S. copyright statute differs from the international rules that are probably more familiar to most of the participants here.
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak on September 11, 2018, 03:36:48 am
I don't dispute that registration is a good idea; I'm unconvinced, having now read not only the article you cite but also the statute, that the restriction is as tight as you claim.

Jeremy
Title: Re: Your photos are my photos now...
Post by: 32BT on September 11, 2018, 06:16:11 am
I don't dispute that registration is a good idea;

From just the userperspective or also in the grander scheme of the judicial system? I mean do they have so many frivolous cases that a separate registration system was necessary to distinguish the wheat from the chaff? It currently seems as just another layer of ownership registration that shouldn't be necessary in the first place.

It kind of indicates two levels of ownership inducing unequality and elitism which is exactly the achillesheel of the judicial system in the first place, i.e. it doesn't protect the poor who can't afford to register and/or defend (or the naive who don't know it's necessary) even though the amount of effort during creation can be considered equal.
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 11, 2018, 01:06:21 pm
From just the userperspective or also in the grander scheme of the judicial system? I mean do they have so many frivolous cases that a separate registration system was necessary to distinguish the wheat from the chaff? It currently seems as just another layer of ownership registration that shouldn't be necessary in the first place.

It kind of indicates two levels of ownership inducing unequality and elitism which is exactly the achillesheel of the judicial system in the first place, i.e. it doesn't protect the poor who can't afford to register and/or defend (or the naive who don't know it's necessary) even though the amount of effort during creation can be considered equal.

Among all the countries that are signatories to the Berne Convention, it appears that the US  is the only one that requires registration to sue for damages (except for US infringements of foreign works when only suing for actual damages, as Chris notes). It is also the only country that offers the possibility of obtaining statutory damages, which can be much greater than actual damages, as well as to obtain payment of court costs and legal fees if you prevail and the judge awards them to you. For that reason, timely registration can be worth the effort. Btw, the overt reason that the US wants to encourage registration is to provide content for the US Library of Congress.
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak on September 11, 2018, 02:23:09 pm
From just the userperspective or also in the grander scheme of the judicial system? I mean do they have so many frivolous cases that a separate registration system was necessary to distinguish the wheat from the chaff? It currently seems as just another layer of ownership registration that shouldn't be necessary in the first place.

It kind of indicates two levels of ownership inducing unequality and elitism which is exactly the achillesheel of the judicial system in the first place, i.e. it doesn't protect the poor who can't afford to register and/or defend (or the naive who don't know it's necessary) even though the amount of effort during creation can be considered equal.

That wasn't my point. I was conceding that, given the state of US copyright law, it is a good idea to register your photographs. Whether the scheme of registration is a Good Thing is a different question, beyond the scope of my interest.

411 contains an exemption from the prohibition on litigation over breaches of copyright on non-registered images for works covered by 106A. A quick glance suggests that photographs may well fall within that exemption, which would fit with the lawyer's view that I quoted earlier. But I can't be bothered to read the rather wordy 106A in sufficient detail to reach a concluded view; I spend too much time at work bothering with that kind of language.

Jeremy
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 11, 2018, 02:57:48 pm
That wasn't my point. I was conceding that, given the state of US copyright law, it is a good idea to register your photographs. Whether the scheme of registration is a Good Thing is a different question, beyond the scope of my interest.

411 contains an exemption from the prohibition on litigation over breaches of copyright on non-registered images for works covered by 106A. A quick glance suggests that photographs may well fall within that exemption, which would fit with the lawyer's view that I quoted earlier. But I can't be bothered to read the rather wordy 106A in sufficient detail to reach a concluded view; I spend too much time at work bothering with that kind of language.

Jeremy

Look, don't just take the word of someone you don't know and is not a legal expert. Read the opinions of US legal experts such as Carolyn Wright, which are readily available online, who all support what Chris and I have been saying.  As for the section 106A, that is not lengthy and does not have any bearing on suing for damages in the US.
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 11, 2018, 03:35:39 pm
This is what Jeremy can't be bothered to read and can't understand.

106a. Rights of certain authors to attribution and integrity39
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

(b) Scope and Exercise of Rights.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.

(c) Exceptions.—(1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.—(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver.—(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
Title: Re: Your photos are my photos now...
Post by: Jeremy Roussak on September 12, 2018, 03:28:40 am
This is what Jeremy can't be bothered to read and can't understand.

I didn't say I couldn't understand it; I merely said that I couldn't be bothered to read it. It's perfectly easy to comprehend. Learn some manners, Eichler, and engage with what I quoted from your cited article without throwing around accusations.

Jeremy
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 12, 2018, 01:02:44 pm
I didn't say I couldn't understand it; I merely said that I couldn't be bothered to read it. It's perfectly easy to comprehend. Learn some manners, Eichler, and engage with what I quoted from your cited article without throwing around accusations.

Jeremy

Well, you cannot be bothered to spend a few minutes reading a relatively short section of the law in its entirety, yet you feel you have read enough of it to conclude that there is a "suggestion" that it has a bearing upon whether or not registration is a requirement for suing, despite the opinion of a legal expert that I have offered. Therefore, I believe it is accurate to say that you do not understand. The exception you cite has no bearing upon obtaining monetary damages, which is the subject of this discussion, since that is what the lawsuit cited was all about and that is overwhelmingly the primary concern of photographers when their copyright has been infringed. Yes, there are some circumstances where you may be able to sue without first registering, but you must register in order to sue for monetary damages.

If you think it is disrespectful to say you couldn't understand, think of how disrespectful it is to me and some others to suggest that we may be wrong when you can't even be bothered to fully address the law or bring some expert opinion to the discussion that would contradict what I have said. I brought an expert to the table to support my view, and have said that you will find similar opinions on the websites of other IP lawyers, yet you continue to suggest there is some doubt.

I wouldn't be getting quite so contentious about this if you were just another person on LuLa, but you are moderator of the forum.
Title: Re: Your photos are my photos now...
Post by: Chris Kern on September 12, 2018, 02:03:20 pm
I wouldn't be getting quite so contentious about this if you were just another person on LuLa, but you are moderator of the forum.

Jeremy can speak for himself, but it was my impression his comments in this thread were as a subscriber, not a moderator.

Also, note that he is a lawyer (a litigator, known in British legal practice as a barrister), and as such it's understandable that he is skeptical about simply accepting online documents written for non-lawyers as conclusive—even when the source is a specialist such as Carolyn Wright, who you quoted—nor would I.  (I'm also a lawyer, but not a practicing one.)  And when he says he doesn't want to take the time to research U.S. copyright law, I can hardly blame him.  In addition to the lengthy, complex statute (https://www.law.cornell.edu/uscode/text/17), since the United States is a common law jurisdiction you can't read the statutory language in isolation: you also need to review the appellate cases that interpret it.  Even if he had a personal stake in the U.S. law—e.g., if he was concerned that one of his copyrights had been or was likely to be infringed—I suspect he would do what I would do in that situation: retain an expert such as Wright to represent him.

Having said that, I will again assert that you are correct.  With the exception that I described in my earlier post in this thread (https://forum.luminous-landscape.com/index.php?topic=125685.msg1067302#msg1067302), in the United States you must register a copyright before commencing a lawsuit to enforce it against an infringer.  You can do that at any time, but if you do it within the window specified in the law, you are eligible to collect special statutory damages in addition to any actual monetary loss that you can prove.

And having said that, my personal if not professional opinion is that we have litigated this issue quite enough.
Title: Re: Your photos are my photos now...
Post by: David Eichler on September 12, 2018, 02:25:38 pm
Jeremy can speak for himself, but it was my impression his comments in this thread were as a subscriber, not a moderator.

Also, note that he is a lawyer (a litigator, known in British legal practice as a barrister), and as such it's understandable that he is skeptical about simply accepting online documents written for non-lawyers as conclusive—even when the source is a specialist such as Carolyn Wright, who you quoted—nor would I.  (I'm also a lawyer, but not a practicing one.)  And when he says he doesn't want to take the time to research U.S. copyright law, I can hardly blame him.  In addition to the lengthy, complex statute (https://www.law.cornell.edu/uscode/text/17), since the United States is a common law jurisdiction you can't read the statutory language in isolation: you also need to review the appellate cases that interpret it.  Even if he had a personal stake in the U.S. law—e.g., if he was concerned that one of his copyrights had been or was likely to be infringed—I suspect he would do what I would do in that situation: retain an expert such as Wright to represent him.

Having said that, I will again assert that you are correct.  With the exception that I described in my earlier post in this thread (https://forum.luminous-landscape.com/index.php?topic=125685.msg1067302#msg1067302), in the United States you must register a copyright before commencing a lawsuit to enforce it against an infringer.  You can do that at any time, but if you do it within the window specified in the law, you are eligible to collect special statutory damages in addition to any actual monetary loss that you can prove.

And having said that, my personal if not professional opinion is that we have litigated this issue quite enough.

Below Jeremy's name on his posts, it describes him as Global Moderator. I did not know Jeremy is a lawyer. That just makes me more irritated with his comments. He could have mentioned that early on, since the subject here is the law. Furthermore, I think it is irresponsible of him, considering his profession, to be so casual about this matter. More than anyone, he should have the ability to read the relevant sections of the law and understand them. In any case, in my view, this law is not that hard to understand as laws go, even for the layman, and it seems to me that the sections of the law that are relevant to the discussion at hand are "black letter law", not requiring interpretation. There really isn't much research to do here, at least now that I have provided the relevant sections of the law. If Jeremy thinks that is not the case and does not wish to offer what some might construe as a legal opinion, then I think he should just say that and not try to opine at all. What he ends up doing is opining in a sort of back-handed way.