The Reality Of Infringement Claims

<p>While I am a strong advocate for registering our creative works with the U.S Copyright Office; suing in federal court is often not practical from a financial stand point.</p>

<p>Most of us will never find ourselves in federal court protecting our copyright.<br>

Most of us will never have an image stolen by IBM, microsoft, Nike or Mr. Big Bucks.</p>

<p>Three months ago I found an image of mine displayed on a web site.<br>

The website was nothing special, not even commercial in nature.</p>

<p>It was quite simple to find out the name of the individual who owned and administrated the site.</p>

<p>I sent two letters to the individual (certified mail), clearly stating the image was my property and copyrighted with the U.S Copyright Office. I requested the image be removed from the website immediately.</p>

<p>I received an email from this individual essentially telling me to "Go $$%^# myself."</p>

<p>There were a few choices I had.</p>

<p>1) File a infringement claim with the Federal Court.<br>

2) File a small claim against the individual<br>

3) Pursue a takedown notice via DMCA<br>

4) Do nothing</p>

<p>I chose # (2)</p>

<p>I filed in small claims; claiming <strong>"Wrongfully Attained Property."</strong><br>

My filing cost me a whopping $65<strong><br /></strong></p>

<p>The court found in my favor and I received a $5,000 award. (My state has a maximum of $6,000.)</p>

<p>I'm sure because I make my living in photography, the magistrate weighed this component heavily.<br>

Also, in my letter to the website owner, I clearly indicated I am a professional photographer earning my living with images similar to the one taken. Further, the clear disregard to my request from the website owner in the email communication was as close to a admission of guilt as one could come.</p>

<p>So why did I choose this course of action?</p>

<p>The realities here are simple.</p>

<p>1) The website owner could never come up with the legal maximum had I prevailed in federal court. (blood from a turnip syndrome)<br>

2) There are no guarantees I would have prevailed in federal court.<br>

3) <strong>The cost of such a claim in federal court is prohibitive at best.</strong><br>

4) The time from filing to execution of judgement would be quite lengthy.</p>

<p>So there ya' go.<br>

Again, I strongly advocate registering our works; but don't believe for a second you will be suing in federal court every time we find our images taken and used w/o our consent.</p>

<p>While DMCA is nice recourse available to photographers; I prefer the offender pay for their blatant acts in some way, thereby giving pause to the next person who thinks they can simply take our work for free.</p>

<p>Good for you! It's time for these photo leeches to get what's coming to them.</p>

<p>I fully concur.<br>

I've resolved infringements out of court but only because I made it known that the images were registered. In all three instances their lawyers had them pursue immediate resolutions. Without the registration I doubt the response would have been the same.</p>

<p>All in all, you probably did as well or better than you would have if you had gotten an attorney involved. A letter from an attorney would have gotten this yahoo's attention and you probably would have settled for a $1000-2000 at best, from which you would have paid your attorney's fees.</p>

<p>If your image was registered, there is no doubt you would have won in Federal Court and this person suggestion that you attempt procreation with yourself would not have been looked upon kindly by the court--and even jerks have assets and such---he would have settled before court, if not as soon as he heard from your attorney.</p>

<p>I was more afraid here that you might have laid down on this, but I am glad you pursued it. Until these people find out that there are consequences from these actions they will continue to do it with more frequency and more boldly. Great Job!</p>

<p>The infringer could have refused to pay, which is still ok in my book as that would have resulted in a collection judgment on their credit report.</p>

<p>DMCA while offering recourse does nothing to give pause to would be offenders.<br>

Hitting such offenders in the wallet is a bigger dog on the porch.</p>

<p>While my scenario may not speak to other situations among photographers; it is certainly far more viable and practical than federal court.</p>

<p>Well done Kevin. Thanks for sharing, these are important points and should bring it home to people why it indeed is important to register your copyright. I take it that the infringer actually paid up?</p>

<p>Yes, they paid; more accurately the young man's parents paid in this case.</p>

<p>As a aside, the younng man was 22 yrs old; his parents appeared with him at small claims.<br>

Following the magistrates finding in my favor, the kids parents approached me and said they felt this was an extreme measure. My response was "What; coming to small claims or the $5K?" They said "both".</p>

<p>My response to that was "I earn my living with photography. Would you like me to come to your workplace and take money from you or cause a condition that may cause you to lose income? Would you like it if I came into your home and stole your property? Your son stole my property and would not return it at my request"</p>

<p>I followed with "You want extreme? Here is a copy of U.S law concerning copyright infringement. You are quite fortunate I did not take this to federal court"</p>

<p>The magistrates admonishment to the young man AND his parents was none too kind.</p>

<p>My entire reason for posting my story was for others who may find themselves in a similar situation where filing is federal court is not a viable, practical or financial solution. Human nature does not respond well to kind requests that eventually escalate to threats. They respond very well when there is a real price to pay.</p>

<p>Very true Kevin. Sad, but true.</p>

<blockquote>

<p>" ...You are quite fortunate I did not take this to federal court."</p>

</blockquote>

<p>Actually they were fortunate but they and the judge didn't know it.</p>

<p>See Copyright Act section 301 and accompanying House Historical and Revision Note No. 94-1476. The intent is to pre-empt and abolish <strong>any rights</strong> iinvolving state infringement type claims that come within the scope of the federal copyright law and are "stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation" of its intent in this area.</p>

<p>The "reality" is that this case, and occasional others, slipped by. Congratulations.</p>

 

This reminds me of ...

 

http://www.photoattorney.com/2009/08/photographer-awarded-1000-for.html

 

... and Christopher B happened to post here too ...

 

http://www.photo.net/business-photography-forum/00UD3R

<p>John, I think the clever thing here was that there was no charge of copyright infringement. This was more a notion of theft of property. As such, possibly this does circumvent the federal cause of action.</p>

<p>The best part of this is that if it is something that would hold up in other states, it circumvents the need to register a claim with the Copyright office, which too many do not do, on a timely basis to get some teeth into your action against a person who steals an image. If that is your only recourse, to file with a copyright claim that was not registered on a timely basis, you have little or no chance of actually having it pay off--most likely your own legal bills will eat up anything you might recover.</p>

<p>John,</p>

<p>Thank you for your input and the citation.<br>

I read sec 301 and the revisions.</p>

<p>I can not however see the application in my action in small claims as I did NOT<br>

bring a case of "Copyright infringement."..Rather my basis was as stated (Wrongfully Attained Property),<br>

where the burden of proof fell to me to prove damages occurred.</p>

<p>Page 11 in the Small Claims manual <a href="http://www.in.gov/judiciary/pubs/handbooks/small-claims-manual%282005%29.pdf">LINK</a></p>

 

<blockquote>

<p>I did NOT bring a case of "Copyright infringement."..Rather my basis was as stated (Wrongfully Attained Property)</p>

</blockquote>

<p>They are one in the same according to Copyright Act and, as I explained, the Act expressly pre-empts that exact state based action.</p>

<blockquote>

<p>the clever thing here was that there was no charge of copyright infringement. This was more a notion of theft of property.</p>

</blockquote>

<p>The Copyright Act makes the image property. The Act, legislative history and the accompanying commentary makes it absolutely clear that the act pre-empts and nullifies state law that create a cause of action for improper exploitation, theft or other unauthorized use of the Copyright Act created property. That's the exact type of claim that made here.</p>

<p>Now, contrast that situation with the concept in the photoattorney.com link above where there is discussion <em>about breach of contract</em>. If someone uses an image, exceeding the scope of a contract that allowed the use of an image, a state claim can be made on breach of contract. Its not pre-empted because the claim is about a agreement being breached. Its not <strong>about property</strong> per se because its actually <em>about an agreement</em>. That is so whether or not it involved tangible property, intellectual property (pre-empted kinds or not) or involving no property of any kind. In a breach of contract the property, if any is even involved, is merely incidental. Its not about the property. Its <em>about the agreement</em> that was violated. Of course there was no contract in the case here.</p>

<p>As to the Page 11 cite (it was pdf page 11, not the manual's page 11) that's irrelevant to what I am discussing because, as mentioned, it relates to damages which exists in all cases except where equitable relief is applicable (a discussion for another day). Pre-emption, the issue I raised, goes to jurisdiction meaning whether the case should have been in that court in the first place. But often enough small claims judges don't know this area of the law and unrepresented parties don't usually have the knowledge to make arguments about it. (Even you guys didn't fully understand it, as shown above, and you know more than most people) If I were defending this kind of action in my state I would have exercised (as allowed here) an automatic right to remove the case to the regular trial court with its more learned judges, complicated procedures, mechanisms for legal argument and appeal rights and, on summary judgment argument, it would be dead in the water. But not everyone is going to know how to do these kind of things (according to the whatever procedures their state has) or have the funds to pay a lawyer so we have situations like this case.</p>

<p>As to my personal opinion, I believe the Act should be amended to allow claims under a certain amount to alleviate the problem discussed at the beginning of the thread. Pre-emtion under the Act was implemented to have a uniform law across the nation for these kind of intellectual property claims and makes some sense but it had unintended consequences, namely, making it difficult for small business and individual to assert these intellectual property claims. This case was based on the luck of ignorance so I wouldn't tell people that pursuing small claims cases is the "reality". Even if we hear about successful ones now and then.</p>

<p>It doesn't matter if you didn't call it copyright infringement, the federal law is plenty clear enough that it intends to pre-empt any state claim.</p>

<p>"all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by <a href="http://www.copyright.gov/title17/92chap1.html#106">section 106</a> in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by <a href="http://www.copyright.gov/title17/92chap1.html#102">sections 102</a> and <a href="http://www.copyright.gov/title17/92chap1.html#103">103,</a> whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."</p>

<p>"106 (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and"</p>

<p>"I sent two letters to the individual (certified mail), clearly stating the image was my property and copyrighted with the U.S Copyright Office. I requested the image be removed from the website immediately." Then you introduced the federal copyright law in court. </p>

<p>You are unbelievably lucky that you had both a magistrate and an infringer who were clueless about the copyright laws. Shpould there be an appeals process to small claims in your area, and/or they feel motivated by a $5000 judgement to seek legal representation, you may find that this evaporates quite quickly. Certainly no one should expect any sort of coutr to apply any kind of precedence to this kind of thing.</p>

<p>Whether for good or ill, there's a "scam" going on out of Las Vegas ("abuse of process" might be a nicer term" where a local newspaper is selling copyrights to a local lawyer(or law firm?) who then attempts to extort payments, etc., from people who out of naivete, etc., have copied articles from the paper on their sites. While ignorance of the law is no excuse, I'd expect this will move towards a fair amount of publicity and increase general knowledge about the workings of the copyright laws.</p>

<p>Craig & I were apparently writing at the same time and on the same figurative page and even used the same word "luck". In any event, this quote of mine from the earlier thread, also linked above, applies here as well...</p>

<blockquote>

<p><em>the copyright office provided commentary to congress discussing how difficult it is for most photographers to be able to bring an action such as yours..."Although state court systems offer small claims courts, which handle claims of up to a few thousand dollars and are more congenial to pro se litigation, the federal courts offer no such alternative. As a result, because authors and <strong>copyright owners</strong>, unlike most other litigants, <strong>have no choice but to pursue their claims in federal court,</strong> the costs of federal litigation may weigh more heavily on them than on most others." It could not make this comment i<strong>f actions </strong>like yours<strong> were generally allowed bases </strong></em>[sic] <em><strong>on 'seperate' property claims</strong>. If they could, <strong>everybody would be doing it</strong>... ...You got by and hopefully your defendant won't see this thread.</em></p>

</blockquote>

<p>This is fascinating reading, first because it's wonderful to read of Kevin's success in obtaining damages for the unauthorized use of an image he produced, and second because that success was based on an erroneous application of law.</p>

<p>Kevin: I wonder if you might want to ask the moderators to remove this thread.</p>

<p>You did well indeed. I would add another course of action, in the case one would not be ready to sue but would simply want the copyright respected: contact the blogger's provider.<br>

I had an image stolen by two different blogs last month. In one case I had to contact the legal service of the provider (Overblog). Their cooperation was immediate because they take copyright matters very seriously.<br>

Roger</p>

<blockquote>

<p>While I am a strong advocate for registering our creative works with the U.S Copyright Office; suing in federal court is often not practical from a financial stand point.</p>

</blockquote>

<p>The owner of this site had learned his lesson about copyright infringement a long time ago, and had come to the same conclusion as yours. Scroll down to "A personal approach to copyright" on this page to learn what he had to say.</p>

<p>http://philip.greenspun.com/panda/images</p>

<p>The best he could do is to list the offenders:</p>

<p>http://philip.greenspun.com/copyright/hall-of-shame</p>

<p>Copyrights work best for those who understand and respect them, but not so well for those who don't. Attorneys can do nothing without them. It is to their vested interest to advocate registering copyrights.</p>

<blockquote>

<p>But often enough small claims judges don't know this area of the law and unrepresented parties don't usually have the knowledge to make arguments about it.</p>

 

</blockquote>

<p>John; appreciate that..and yes; it appears I did "luck out."</p>

<p>I have no fear of appeal as there is none as far as I know in my state for small claims.<br>

As far as the suggestion that the thread be removed? Why? We are all entitled to make the attempt, if the error of law was on the magistrates side, then so be it.</p>

<p>What a shame the law is what it is in this situation giving teeth to those who wish to pursue a infringement case, yet the inability to get the teeth serviced from the dentist because of prohibitive costs involved.</p>

<p>Perhaps an argument another day for the rights of individual states to assume jurisdiction in cases like this with perhaps a <strong>(either/or</strong>) clause..either Federal Court or lower courts to hear the case; not both..Let the party bringing the action make the decision.</p>

<blockquote>

<p>so I wouldn't tell people that pursuing small claims cases is the "reality".</p>

 

</blockquote>

<p>Agreed.<br>

The reality as stated is that (most) photographers will never see the inside of a fed courtroom bringing their infringement case.</p>

<blockquote>

<p>I filed in small claims; claiming <strong>"Wrongfully Attained Property."</strong><br /> My filing cost me a whopping $65<strong><br /></strong><br>

The court found in my favor and I received a $5,000 award.</p>

</blockquote>

<p>Good for you! But as I understand, even when the court's decision is in your favor, it is up to you to collect the award. That can turn out to be challenging and costly.</p>

<p>BTW, I assume that the offender is local to you. Otherwise, I'm not sure if the small claims court or the collection will work.</p>

<p>Kevin,</p>

<p>I only suggested asking to have the thread deleted (which photo.net rarely does anyway) if there were a risk that the defendant could appeal You filed and won your case in good faith, and you don't need to help the defendant escape his responsibility for stealing your work.</p>

<p>As someone mentioned, collecting the money is another matter. I once got a judgment in small claims court, only to have the defendant not pay. Went back to the same judge, who sent the Sheriff to collect. That was actually more fun than winning in the first place.</p>

<p><em>Most of us will never have an image stolen by IBM, microsoft, Nike or Mr. Big Bucks.</em></p>

<p>You would be surprised how often that happens but isn’t discovered.</p>

<p>We had a video clip used out of license by FOX News while I was out of town and would never have known about it except for a friend of mine called me up and told me he saw the video.</p>

<p>Wayne</p>

<p>I'm having a simmilar issue.</p>

<p>I've found a website that has taken one of my photos from my flickr account. While they do give me credit for the image I have stated on my flickr account that I reserve all rights. What makes things complicated is that I am from Finland and afaik the site in question is hosted and operated in the US. How would I go about filing a small claims?<br>

I'd go the DMCA route but as stated, doesn't really make the site stop...<br>

In finland common practice with regards to unlawful use is to send a bill for at least 3x the normal amount to the company that used your photo without permission, then letting the bill get paid or stay unpaid before taking it to our version of "small claims court" and having the company pay the bill, whatever legal costs +damages if any can be proven.</p>