OT: A Personal Case of Copyright Infringement

Discussion in '35mm Cameras' started by Eric Miller, Jun 9, 2005.

  1. Eric Miller

    Eric Miller Guest

    Ah, yet another usenet idiot. See, one of the burdens that you have to bear
    when you are a lawyer is that you have to know the subject, prepare, study
    and otherwise know what you are talking about when you do your job. It isn't
    as easy as the TV shows make it look. Nevertheless, I made it extremely easy
    for you, including pointing out that the photo was used in an advertisement
    for an upcoming edition of the newspaper (which, by the way, is apparently
    unrelated to anything local), that the race organizers didn't give
    permission for its use (in fact, the people to whom I granted permission for
    its use are the ones who alerted me to the unauthorized use by the local
    newspaper) and you still can't get the facts straight. You should sit back,
    reflect with your complete and apparent lack of knowledge on this subject
    and then read you little senseless diatribe again.

    Thank you for the well wishes on the lawsuit, but I doubt one will be
    necessary.

    Costs? Well what do you know about court costs? Obviously nothing. There is
    a filing fee, so if I had to sue, I would have to pay that, pay to obtain
    service and other associated costs. But, I suppose, you wouldn't really
    learn from any explanation related to costs given your failure to read the
    entirety of the original post, so I won't bother explaining further. And in
    any event, I have only to prove that it is my work and that I didn't give
    permission for its use. That will be child's play with my negative.

    Do you work for a newspaper? Is it routine practice to download images from
    other's websites and reprint them as if they are your stock photos?

    The other burden of course is that some people bear hatred for lawyers. We
    catch the blame for everything that ails modern society. Are you one of
    those? It sure would explain your silly rant.

    Eric Miller
     
    Eric Miller, Jun 10, 2005
    #21
    1. Advertisements

  2. Eric Miller

    Eric Miller Guest

    Thanks for pointing that out. It really doesn't matter anyway. It will be a
    lot less expensive for them to just pay my demand than it will to answer my
    discovery. The disgorgement measure of damages remains as does the costs and
    attorney fee provisions.

    Eric Miller
     
    Eric Miller, Jun 10, 2005
    #22
    1. Advertisements

  3. Only partially right. You are entitled to the greater of your actual
    damages or the newspaper's profits attributable to the infringement
    under 504, but the same provision, 12 USC 412, explicitly excludes
    recovery of attorney's fees. The court may use its discretion with
    regard to costs.

    As always, advice or statements of law from internet randoms typically
    isn't worth reading. You can safely assume I am an internet random.
     
    Michael Benveniste, Jun 10, 2005
    #23
  4. Technically you are the copyright holder and can sue them for misuse.
    However, if you did not file your images with the copyright office along
    with the proper forms and fees, you can't really inforce your copyright
    in court.
    Since the cost of pursuing this legally will probably exceed anything
    you can collect, your best bet is to write them a polite letter and
    state what you would like as recompense.
    The bad publicity that you might generate might be enough for them to
    settle fairly.
     
    Robert Feinman, Jun 10, 2005
    #24
  5. Eric Miller

    Paul Furman Guest


    "Work for hire" is the term in the US iirc. I believe it applies to
    employee relationship, not consulting and less likely pro-bono assignments.
     
    Paul Furman, Jun 10, 2005
    #25
  6. Noting that this comment comes from Australia, and the original posting
    comes through an ISP in the USA, I would like to point out that I believe
    that this statement is not true in the USA.

    I think that in the USA, the photographer owns the copyright unless the
    photographer is an employee of the organizers (merely having a contract with
    them it not sufficient--the photographer actually has to be on their
    payroll, get income taxes withheld, and get a W-2 form rather than a 1099
    form at the end of the year), or there is a written agreement assigning
    copyright to the organizers. If there is a written agreement that says
    nothing about ownership, then the photographer owns the copyright, and all
    the organizer gets is the right to use the material in ways consistent with
    the contract.

    I am not a lawyer, and I am not 100% certain of the above. However, I have
    had occasion to talk to a number of lawyers about such issues, and I believe
    that the foregoing is an accurate distillation of what they told me and what
    I have learned from other sources.
     
    Andrew Koenig, Jun 10, 2005
    #26
  7. I agree. In particular, I believe it applies only to W-2 employment, and
    then only to work done within the scope of the employment.
     
    Andrew Koenig, Jun 10, 2005
    #27
  8. I think that is no longer true -- that you can register it up until the time
    you file suit.
     
    Andrew Koenig, Jun 10, 2005
    #28
  9. Ah, good. Then perhaps you can tell me if my beliefs about the current
    state of copyright law (as expressed in my earlier posting) are correct.
     
    Andrew Koenig, Jun 10, 2005
    #29
  10. You can register up until the time you file suit. In fact, if you
    are a U.S. citizen, you _must_ register before you can file suit
    (17 USC 411). However, unless you register within three months of
    publication, you can recover neither statutory damages nor attorney's
    fees for infringement which occurred before registration.

    Once you register, any _subsequent_ infringement is no longer subject
    to the same restrictions.

    Here's a link to the actual language of the statute:
    http://www4.law.cornell.edu/uscode/17/412.html
     
    Michael Benveniste, Jun 10, 2005
    #30
  11. Eric Miller

    Gordon Moat Guest

    You can almost stop right there. If you read through Copyright Law, you will
    find a mention of "pro bono" work. Unfortunately, you have very little to no
    protection in such a situation.

    In the future, even if you are being very generous, make it clear that you want
    at least a little compensation. You could charge for the CD-Rs, if you want to
    keep it low cost. Charging anything, even expenses, removes it from being
    considered "pro bono".
    Editorial usage is covered under Fair Use Provisions of Copyright Law. However,
    the usage of an image to advertise for the newspaper is a grey area, and might
    not fall under Fair Use. Unfortunately, the real possibility that this is "pro
    bono" work means that the image might have been fair game for the newspaper to
    use.

    Another thing is that your original permissions letter (contract) with the race
    organizers would become your primary evidence in a civil case. If you did not
    exclude certain uses in writing, then you have little to make your case.
    This is the other issue. If you had that image filed with the Copyright Office,
    you might be able to argue punitive damages. Without that copyright, you can
    only go after actual damages. Then the issue would be how do you prove those,
    or find an amount.
    Okay, if it makes you mad, then see a lawyer who specializes in Copyright Law.
    You could also try arbitration, which can sometimes be easier.
    My suggestion is to ask the paper if they can give you photo credit for the
    image. That would at least help you a little; you could list it as a publishing
    history, which can sometimes help to get more work. I doubt you could ever get
    much of any money out of this, at least not something that might match the
    effort needed to litigate. Unfortunate, though I hope you can find a solution
    you will be happy achieving.

    Best of luck.
     
    Gordon Moat, Jun 10, 2005
    #31
  12. Eric Miller

    Gordon Moat Guest

    I though Australia was part of the Berne Convention?

    Copyright needs to be transferred in writing. The originating "artist"
    (creator) originated the copyright, and must transfer that right to another in
    order to allow for usage. If there is any doubt, read the Berne Convention.
    Under Berne Convention rules, this only can happen if you sign an "All Rights"
    agreement, work as an employee, or sign a "Work for Hire" agreement. These are
    unfortunately very common aspects, but the paper contract is what defines this
    happening. I am surprised that this can happen in Australia.
    It is not a myth, it is the law in countries that signed the Berne Convention
    agreement on international copyrights. This law is slightly different than the
    laws of other countries, some of which have their own copyright code. However,
    part of a country accepting the Berne Convention, and now the Madrid Protocol,
    is that the national copyright laws comply with the primary aspects. Countries
    are allowed to be more restrictive, but not more open.
    This is the employee situation. If you are an employee in this type of a
    situation, then you are eligible for any other benefits that any other type of
    employee in your country would provide. Such a situation would mean that you
    would not need any liability insurance, since as an employee that aspect would
    be the responsibility of your employer (master).
    Do you have a link to Australian Copyright Law? It really amazes me that
    Australia could be that backwards. If I read it myself, then maybe it would
    make more sense. It would surprise me if Australia is not in line with
    international copyright laws.
     
    Gordon Moat, Jun 10, 2005
    #32
  13. Tell me what you think Gordon...

    You go to a local business which specialises in fabrication of steel things.
    You ask the guy to make you a revolving stand for backdrops. You describe
    how it should work and roughly what size it should be. Basically you provide
    the working parameters like a father would when asking you to shoot his
    daughter's wedding. No written contract, just verbal yes, I can make it.

    A few days later the fabricator rings you and say it's finished. You pay him
    $2000 for it and take it back to your studio. Next day Alan Browne (or me -
    God forbid - both of us together!) come for a visit and we are so impressed
    with this stand, we just gotta have one each.

    Only problem is... the fabricator who you gave instructions to now says the
    Berne Convention gives him copyright over the thing and he wants $5000 each
    for reproductions and threatens to sue you, if you so much as attempt to get
    it copied. Would that stand up in a US court?

    Only some Photographers can honestly call themselves artists. (you are one
    of them by my opinion). Any original works you create, just as a painter or
    sculptor creates, are your's alone to own the copyright over. That is
    undisputable.

    What I am saying is when a person asks you to work for them I.E. shoot their
    wedding, you then become the servant in a servant/master relationship and
    whatever you make whilst in that relationship belongs to the master unless a
    clear and precise agreement exists that the master will pay you to do the
    work and also hand over ownership of that work after the relationship ends.

    Wherever you got the notion you could charge someone to do their work and
    then take it home after getting paid ...with you having ownership of that
    work, is what is backward, not Australia's (or Canada's) laws.

    A business taking photographs they sell randomly, the way your fine art is
    created and sold has copyright over those images. A business working to
    instructions from a client, does not, unless a clear and specific contract
    assigning copyright to the photographer exists before the job commences. If
    US laws allow the scenario in the first 2 paragraphs, then you are right and
    I am extremely glad I don't live in the USA.

    The Westminster system is used by many countries who peacefully separated
    from British rule... Unlike the USA which separated violently and set about
    creating it's own unique set of rules, laws, measurements and standards.
    Some without any logical basis, almost as if to spite the Westminster system
    that spawned the nation in the first place.

    Either way, your assertion that you can take money to work to someone's
    instructions and reserve the right to literally hold them to ransom when
    they choose to use whatever you took money to make for them in the first
    place, is a rather evil concept... Now that I think about it, that fits into
    Microsoft's business model. Maybe it is possible in the land of the free,
    home of the brave after all, eh?

    Douglas
     
    [email protected], Jun 10, 2005
    #33
  14. Interesting attitude you have here Eric...
    Does it get you many successful results in law?
    You have been less than clear about a few critical points in this scenario
    so one is left with presumption and assumption. When I assume (based on the
    remainder of your drivel) you get into the personal insult routine so
    prevalent in these groups.

    For example, you didn't say how you got to do this shoot. Did the organiser
    ask you to do it - is a critical point which would influence any comment on
    the remainder of your post. The fact you didn't charge them for the images
    means they had no value yet now you seek to assign value to them. Newspapers
    can quite legally pull images from the Internet under some circumstances and
    use them in the pages of the newspaper without infringing copyright. You
    didn't say if thehalf an image was used in an advertisment or a feature... I
    very critical point.

    For a lawyer... You certainly are quite naive. Go ahead and shoot the
    messenger, Nero, he only had bad news for you anyway.

    Douglas
     
    [email protected], Jun 10, 2005
    #34
  15. Yes....When I do things like this, I give the event people the unprocessed
    film, and thereby wash my hands of the whole affair. They process the film,
    and use the pictures they get out of it any way they want, and I never even
    get to see them.....IOW, all I am reduced to is the status of camera
    operator, and I lay no claim to the photographs at all........For some
    reason, in this case, the OP kept the negatives, so perhaps he feels that he
    has some claim to the photos......But he might want to ask himself why, now
    that a newspaper published one of the pictures, does he suddenly have this
    burning desire to want money for them, when he didn't have any expectation
    of getting any money for the pictures to begin with?
     
    William Graham, Jun 11, 2005
    #35
  16. In my opinion, this would be true if the fabricator kept your drawings and
    instructions. But if he returned the drawings and instructions to you with
    the finished machine, then he no longer has any claim to it, and you can
    sell it to someone else if you want. After all it was your initial design.
    All the builder did was follow your instructions, which have now been
    returned to you.
     
    William Graham, Jun 11, 2005
    #36
  17. At one time I understood that there were two parts to any lawsuit. First,
    who was at fault. And second, how much money was it worth. In this case, it
    is obvious that the newspaper incorrectly used your photo without your
    permission, so they are at fault. But how much is it worth? As far as I can
    see it didn't cost you or anyone else, anything. You had no intention of
    earning any money with this photo. So, why wouldn't the court say, yes, you
    are right, but you get nothing?
     
    William Graham, Jun 11, 2005
    #37
  18. hold on here,
    so 2 years later some paper published a race that no one remembers?
    It's like the Daily News publishing a photo of a Yankees vs. White Sox
    game from 2003.
    WHY?
    if you signed away your rights, then move on.
    Remember, when Madonna was 19, she had nude photos done, which were
    published 16 years later without her permission.
     
    Mr.Bolshoy Huy, Jun 11, 2005
    #38
  19. Eric Miller

    McLeod Guest

    Canada does not have the same laws as the US either. There is a push
    on to try and change them but as it stands right now if you were
    commissioned to create an image and don't have a contract that
    specifically awards you the rights to the images, you as the
    photographer don't own the rights to them.
     
    McLeod, Jun 11, 2005
    #39
  20. Eric Miller

    Mike Guest

    Generally this would hold true in the US also, whether an image or something
    else.
     
    Mike, Jun 11, 2005
    #40
    1. Advertisements

Ask a Question

Want to reply to this thread or ask your own question?

You'll need to choose a username for the site, which only take a couple of moments (here). After that, you can post your question and our members will help you out.