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Author Topic: Your photos are my photos now...  (Read 1387 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.

eronald

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Re: Your photos are my photos now...
« Reply #9 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
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David Eichler

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Re: Your photos are my photos now...
« Reply #10 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?
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Doug Peterson

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Re: Your photos are my photos now...
« Reply #11 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).
« Last Edit: September 09, 2018, 08:10:07 AM by Doug Peterson »
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David Eichler

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Re: Your photos are my photos now...
« Reply #12 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.”
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Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #13 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
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David Eichler

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Re: Your photos are my photos now...
« Reply #14 on: September 10, 2018, 02:48:33 PM »

Where does that quoted text appear?

Jeremy

411. Registration and civil infringement actions
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David Eichler

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Re: Your photos are my photos now...
« Reply #15 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.
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Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #16 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
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David Eichler

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Re: Your photos are my photos now...
« Reply #17 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.
« Last Edit: September 10, 2018, 04:27:36 PM by David Eichler »
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Chris Kern

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Re: Your photos are my photos now...
« Reply #18 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:
  • Copyrights for works created in the United States cannot be enforced without registration.
  • Copyrights for works created in other Berne signatory countries can be enforced in the United States without registration with respect to actual damages.
  • Copyrights for works created in other Berne signatory countries are eligible for additional U.S. statutory remedies if they are registered in a timely manner.
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.
« Last Edit: September 10, 2018, 06:04:20 PM by Chris Kern »
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David Eichler

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Re: Your photos are my photos now...
« Reply #19 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.
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