The fact is, it's one school with a minor conference that nobody's paying attention to. And Jeff is wrong about one thing - if Alain took it to court, he wouldn't wind up owning the school. There'd be a jury and a lot of excuses and hung heads, and the jury would award Alain $250 but they would NOT award him attorney's fees, because they'd have more sympathy for the school ("It was just done by a kid") than for some fruity artist from the Southwest, and so, in my opinion, Alain would have wound up losing his shirt over a minor manner.
True if Alain's copyright was unregistered at the time of the infringement, not true if the school infringed on a registered copyright. There is, in the US a HUGE difference. The author is granted copyright at the moment of creation.
However, the full protection of the Copyright laws and the ability to sue in Federal Court is predicated on the copyright being registered. If the infringement is prior to registration, the first thing the author has to do is register the copyright with the Library of Congress. These days, depending on how you submit, it can takes weeks/months for a work to even be be registered and get a copyright registration number. You can't get in court without that registration number.That's the first of many hurdles the author must make it over.
The second hurdle is that a pre-registered copyright infringement makes it the sole responsibility of the author to prove copyright ownership. If the infringement occurs AFTER registration, the court accepts, at face value, the author's ownership of the copyright and the author does NOT have to prove in the court he is the owner. That is a considerable burden because rules of evidence puts the onus upon the author to prove beyond a reasonable doubt that he owned the copyright BEFORE the infringement. That's why registration prior to infringement is critical.
The next hurdle the author must establish is actual damages...not what you might have charged for the use or some pie in the sky number but actual damages to the author because of the infringement. I agree, the odds of getting a settlement amounting to more than a hill of beans in this case is zero. But here again, infringement of a registered copyright becomes something even more critical. If the infringement is against a registered copyright, the plaintive (the author) can also sue for reasonable attorney's plus damages (same burden of proof regarding damages as an unregistered infringement) and statutory damages which is decided by the court. This is one of the main reasons that suing is so difficult. If you are trying to sue over an unregistered infringement, the plaintive is solely responsible for all court costs and attorney's fees–with no chance of recovery in a successful suit. No reasonable attorney would take that case on a contingency basis. Many would (if the case was good enough) in the case of a suit against an infringer whose infringement came AFTER the registration.
Would the court rule in favor of the author with a large sum for statutory damages (up to $50K per infringement) in Alain's case? Ok, I'll admit it's not likely...unless Alain can prove willful infringement. The court takes a very dim view of infringers knowingly infringing on the work of an author...the student removing the copyright notice (which BTW is not a US Copyright requirement, it's more of an international requirement according to the
Berne Convention and is almost obsolete) is an example of willful infringement. Is it worth $50K? Unlikely...
The US Copyright laws are actually pretty unique in that they grant the right of exploitation of an intellectual property exclusively to the creator. It's actually the first "Right" mentioned in the US Constitution. The "Bill of Rights" was actually 10 separate amendments to the original Constitution and came much later. I'm pretty sure it was James Madison along with the other writers of the Constitution that wrote the original phrase: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This was as important for "writings" as it was "inventions" (which now falls under a different sort of IP law for patents). Hence the Library of Congress' Copyright Office being in charge of all this.
No, I am not an attorney...but I have studied Copyright law extensively during my time spent on behalf of photographic trade organizations. Another friend who is also well versed in Copyright law is Seth Resnick. I find it incredible that many photographers either are ignorant of the laws or chose to ignore them. I for one would never violate the copyrights of other authors...I don't infringe on other photographers, I don't use unlicensed software, I don't copy music nor even something as mild as fonts (which are copyrighted).
We recently taped the LR4 video tutorial and I wanted music (Scottish bagpipe music, you'll hear it when that section is posted). I went through bloody HELL trying to find access to bagpipe music that sounded right and was the correct length. Sure, there was a LOT to choose from that would have amounted to a direct infringement, but Mike, Chris and I are are sticklers for this sort of thing. We legally licensed the bagpipe music to include in the section we did where we used it. It didn't cost "a lot" but we secured the right and have a license.
Alain is a really nice guy, a talented photographer but he, like a lot of photographers doesn't really "
Grok" the full impact (and limitations) of US Copyright laws...and when you start talking Canada, the UK and Europe, all bets are off...it's kinda like the Wild West out there. And don't get me started on China, Japan, Korea or Russia...all of these places have institutionalized infringement. When Adobe did the first regionalized release of Photoshop for China, it was immediately pirated and Adobe didn't even recover the cost of the translation into Chinese in their sales. I think that has changed somewhat because of the much higher activation security Adobe has had to adopt...
John, if you are a published author you should know this stuff, unless your agent handles all this stuff for you and the publisher–and I absolutely guarantee your publisher has legal staff just wating for the chance to pounce on any infringement of your work, my publisher does :~)
Copyright Law in the US is really designed to help the "little people" if only those people could understand it. It's usually the publishers who know this stuff inside and out and use it against us "little people", unfortunately...
(Edited to add clarity and the last line)
