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Author Topic: Your photos are my photos now...  (Read 1392 times)

Chris Kern

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Re: Your photos are my photos now...
« Reply #20 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.

Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #21 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
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opgr

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Re: Your photos are my photos now...
« Reply #22 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.
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David Eichler

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Re: Your photos are my photos now...
« Reply #23 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.
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Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #24 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
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David Eichler

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Re: Your photos are my photos now...
« Reply #25 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.
« Last Edit: September 11, 2018, 03:33:23 PM by David Eichler »
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David Eichler

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Re: Your photos are my photos now...
« Reply #26 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.
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Jeremy Roussak

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Re: Your photos are my photos now...
« Reply #27 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
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David Eichler

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Re: Your photos are my photos now...
« Reply #28 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.
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Chris Kern

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Re: Your photos are my photos now...
« Reply #29 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, 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, 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.

David Eichler

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Re: Your photos are my photos now...
« Reply #30 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, 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, 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.
« Last Edit: September 12, 2018, 03:27:52 PM by David Eichler »
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