Copyright Protection

[kevin_delson]

<p>Received an email question today that I do not have a answer for.</p>

<p>Many of us (Including myself) operate within PN under fictitious names.</p>

<p>If a image is registered with the U.S copyright office © under my legal name (not Kevin Delson); and then taken from PN and sold, is there recourse.</p>

<p>EX: Someone sells a photo they took from Kevin Delson's portfolio here on PN.<br>

Kevin Delson has not registered this photo as © 2010 kevindelson, but can prove it is his photo as registered under a different name. Hmmmm?</p>

<p> </p>

[bobcossar]

<p>Anonymity has its price,"Kevin"....Robert</p>

[Spearhead]

<p>There's recourse, but it's going to be a lot harder to track down usage.</p>

[joshroot]

<p>That's one of those things that I keep meaning to track down an actual legal opinion on. There are good reasons for both using you real name and using a pseudonym on the internet. And I think everyone should know both sides before they decide to do one or the other.</p>

<p>Perhaps I will look into sending a few emails out next week and see what I can come up with.</p>

[michael j hoffman]

<p>That's why I always use my real name.</p>

<p>Regards,<br>

David</p>

[sarah_fox]

<p>I've filed a DBA ("doing business as") form that establishes an equivalency between my proper name and my business name for legal purposes. Maybe you could do that?</p>

[kevin_delson]

<p>Thanks Josh if you can look into it.<br>

I don't post any registered images here on PN, so it's kinda' moot for me; but I thought it was a good<br>

question from the email I received.</p>

<p>I agree Jeff, at first look, it would seem this would be a uphill (albeit) expensive legal battle if it ever came to that.</p>

[jpo3136b]

<p>A big part of the practical matter of proving the protection will go back to possession of the original. That is, if you possess the original, and have released only a partial copy (cropped or compressed version of the photo), then you will have effectively retained some kind of proof of ownership. The copy should jigsaw puzzle right into your original. </p>

<p>Copyright.gov has a FAQ in which they mention this method as a form of supporting a protection claim with basic controlled releases of an image. </p>

<p>Pseudonym would be unimportant; as long as you disclosed your real name to the copyright office, and did not deceive a buyer about your identity your pseudonym wouldn't have much bearing. I know back in the early 90s I read a pamphlet from the Library of Congress which addressed this in part; surely they have a reference which covers it today. </p>

<p>If it's yours because you built it and didn't give it to anyone else, then it's yours. People shouldn't be taking it from you and claiming it was theirs to begin with. The concept of copyright from the moment of creation has nothing to do with what you tell everyone your name is. From inception, the creator has first crack at owning the image. For hire is another matter; yet, this kind of question of who owns it from the beginning is, too, covered by references over at copyright.gov. It goes back to the Bern Treaty and its revisions. </p>

<p>There are some nations which do not agree about who owns an idea; one of the chief objections is a religious belief that mankind is but an actor and God owns the ideas; therefore mankind cannot own an idea. Internationally, this can make ownership of ideas and artworks a real problem to solve. </p>

<p>Anytime you get down to issues of defining identity, it's going to get as hairy as the discussions of Plato's table. What's obvious and observed to one man will be rejected by another as non-standard or poorly defined.</p>

[kevin_delson]

<p>Thanks Sarah, but what you suggest is illegal.<br>

(Mr. X dba Mr. Y) is fraudulent.</p>

<p>So I can not indicate (© 2010 Kevin Delson dba: "My Real Name")</p>

<p>I understand what you were thinking.<br>

I broached this years ago with my attorney prior to setting up my biz structure.<br>

My biz is set up as a LLC entity and dba..In other words (Joe Blow Photography L.L.C, dba: Cool pics)</p>

<p>A person can not be a business entity under another person's fictitous name.<br>

The existance of such a company (person) must be proven, unless the laws have changed.</p>

<p> </p>

[kevin_delson]

<blockquote>

<p>If it's yours because you built it and didn't give it to anyone else, then it's yours. People shouldn't be taking it from you and claiming it was theirs to begin with</p>

 

</blockquote>

<p>Thanks John,</p>

<p>But. Isn't there always a "but"?</p>

<p>can not the person taking the photo claim they did their "due diligence" and found no such person as Kevin Delson with a registered ©? It seems to me, even if it did go to a court, the infracting party would claim they acted on good faith; therefore the (real) owner can not claim willfull or intentional mis-appropriation, thereby limiting my monetary clam?</p>

[mbh]

<p>This link (updated May 2009) does not strictly answer the question. But it does provide guidance from the US Copyright office:</p>

<p><a href="http://www.copyright.gov/fls/fl101.html">http://www.copyright.gov/fls/fl101.html</a></p>

[kevin_delson]

<p>oops..<strong>claim.</strong><br>

<strong></strong><br>

The Clam © is for high seas nautical law. LOL</p>

 

[manuel barrera houston,]

<p>I don't think what Sarah suggested is illegal, it is fairly common way to use a name that sounds or is easier to spell, etc then the one that we get at birth. I think what Sarah is suggesting is that Manuel Barrera dba kevin delson photography is not illegal. dbas are done by county in Texas, I could get a domain name as kevin delson if it is available that is not illegal either. Easy thing is if one does not want something copied don't post in the internet it will be copied, if some one likes it. I have seen a youtube video that has hundreds of thousands of hits that used images lifted from the web, the guy even states he did it.</p>

[kevin_delson]

<p>Thanks for the reference Mark.</p>

<p>Man-O-Man!<br>

I've never seen the position line for a fictitous name on the copyright forms, but then again, I wasn't looking for it.<br>

Seems a slippery slope.</p>

<p>Seemed a great question from the person who emailed me. I had no definitive answer for him.<br>

This is probably why I not only copyright in my real name, I have my collective works witnessed to in front of a notary before I file.</p>

[daniel_jones7]

<p>If you have an image copyright by Kevin Delson, than the copyright belongs to Kevin Delson, it shouldn't matter how you posted it or where they got it. Meaning as long as you can prove who you are and that you took the picture, there should be no question as to ownership. That coupled with the fact you should have the original with the EXIF info showing your camera serial no#, etc</p>

[toddr]

<p>I wonder if the Orphan Works Act would apply in a situation like this?...assuming someone did try to contact Kevin Delson. Let's say you've closed your photo.net account and are unreachable....seems like it would be fair game for the orphan works act for anyone to use it legally....<br>

in any case, probably a good idea like Daniel said to tag the EXIF info.</p>

 

[steve m smith]

<blockquote>

<p>if you possess the original, and have released only a partial copy (cropped or compressed version of the photo), then you will have effectively retained some kind of proof of ownership. The copy should jigsaw puzzle right into your original.</p>

</blockquote>

<p>That's an excellent idea which I have not thought about before.</p>

<blockquote>

<p>Thanks Sarah, but what you suggest is illegal.</p>

</blockquote>

<p>Not sure about US but in the UK it is a perfectly normal practice to state ABC trading as XYZ. We don't have an official copyright registration system like the US does either.</p>

 

[sarah_fox]

<p>You register the DBA so as NOT to commit fraud. That's so it's a matter of public record who a fictitious name belongs to. It's a solution most commonly used for sole proprietorships. In fact if Joe Blow is doing business as "Joe Blow Photography" (as a sole proprietorship), he must file a DBA for that too.</p>

[john_a5]

<p>There is no issue with posting an image under an assumed name and keeping your protection. You created it, it is yours, especially there is no question if the copyright is filed properly with the Copyright office. If there was an issue, then if a client posted the image, bought from you, and was stolen from their site, you would have a problem! We know that is not the case.</p>

<p>If you registered the image as published and the publishing was done here, under your assumed name, you might need to indicate that on the filing, but that is another issue than we are discussing here. I just remember that question on the Form you use for bulk filing published works.</p>

[kevin_delson]

<blockquote>

<p>You register the DBA so as NOT to commit fraud. That's so it's a matter of public record who a fictitious name belongs to. It's a solution most commonly used for sole proprietorships. In fact if Joe Blow is doing business as "Joe Blow Photography" (as a sole proprietorship), he must file a DBA for that too.</p>

 

</blockquote>

<p>True, but I do not believe you can for example:</p>

<p>John Doe dba: Bill Mitchell</p>

<p>I'll look into it, but I believe that would be considered an alias</p>

[jpo3136b]

<p>" . . . can not the person taking the photo claim they did their "due diligence" and found no such person as Kevin Delson with a registered ©? "<br /> They could claim the tooth fairy gave it to them; but, it doesn't mean they'd win; and, just because they took it doesn't mean the owner would notice [are you waiting for the get a lawyer disclaimer? Of course].</p>

<p>Due diligence may explain a delay of payment or negotiations, but it's not an excuse for taking something that's not yours and profiting off of it. If it's not yours; it's not yours. If it's not theirs; it's not theirs.</p>

<p>A diligent search might help someone to get out of paying interest on elapsed time or explain away some condition later, but it doesn't mean that they can claim whatever they found as theirs. And, it doesn't mean that because it's worthless when discovered later that the original owner gets nothing. [How much he gets, of course, mitigated by the practical matter of carrying out the whole I-want-my-money bit.]</p>

<p>For example, a man parks his car in the street and leaves. Another man walks by and wants a ride in the car. He looks around, he calls out, "Hey, is this anyone's car? I need a ride!" Maybe he has good reason for wanting a ride, maybe not. He takes the car. His "due diligence" search beforehand doesn't make the car his. Same-same with other property, like photographs.</p>

<p>Even if the US or a US-state's government seizes your property, like to cope with an emergency, "I commandeer this truck," they have to give you a receipt. This is so that you can either get your stuff back, or receive compensation. Just because someone took something from you doesn't make it theirs outright.</p>

<p>[i believe Bob Hope may have had a comedy routine based on this, but I can't remember what it was. It was in a movie. He steals a yacht, as a sailor, and writes a note. Something like, "I.O.U. one yacht. Sincerely, Uncle Sam."]</p>

<p>And the release only part of a photo: that wasn't my idea. Copyright.gov. It's in their FAQ; used to be in their printed pamphlets (I suppose they still give those out, but it might be all internet now).</p>

<p>Guess where's a good spot to go for some general facts? copyright.gov It's there or law school or a law office or a lawyer.</p>

[john_a5]

<p>Joe Blow doesn't have to file a DBA to do work as "Joe Blow Photography", but does have to file one to do work as "Blow Photography". It is only when you don't use your own first and last name that you must file a DBA. But posting work under an Alias is not the same thing, and as I said, doesn't affect the copyright ownership.</p>

[jpo3136b]

<p>One more thing, about the Internet and your copyright: where did you leave that photo, and how did it get there?</p>

<p>Nowadays, almost all of the destinations on the Internet are some form of private property. There's a hard drive or some storage device somewhere, someplace, owned by somebody. Where you put this photo, was that on your machine, or someone else's?</p>

<p>Think on it like this: transmitting info (your property, that photo) across the Internet really is like using a highway. You've got what's largely a huge, complicated public road (utility) that has many potential destinations along the way. Just like driving down the road to go to a private business. Say you drive down the road to your favorite bar. You walk in; you put your print on the bar; you have a few drinks; you leave, and you leave the print behind, sitting on the bar. You come back later, and the print is gone. Who's got it? Who owns that print?</p>

<p>You do, but proving that you own it is a whole other furball of a matter. Every day burglary detectives wrestle with this problem. Even if the owner of the property shows up and sees his stuff, it can still be a huge hassle to prove that the item he's seeing is, in fact, his. Why? Because the guy who took it gets the same presumption of innocence that everyone else has.</p>

<p>So, in order get your stuff back after you lose it, it pays to make some basic preparations for losing it while you still have it. This is why not releasing the whole photo (original) on the Internet is a bad idea. With all the variables in photo making, what's the likelihood that someone else came up with what looks exactly like the one you have missing? And, they have it when some other conditions might be present that shows they might have taken your stuff?</p>

<p>Just hang on to the family jewels. If you leave the family jewels in the bus station, then they might not be there when you get back. I'll leave you with my favorite reference for securing property from a bootlegged clip from Stanley Kubrick's <em>Full Metal Jacket</em>, The Lesson of the Jelly Donut (NSFW): http://www.youtube.com/watch?v=5DgQ7t5yVPY&feature=related</p>

<p>And http://www.copyright.gov</p>

[bobcossar]

<p>OK, "Kevin"....let's put it too a test. You post a <strong>sellable</strong> image in PN. under your alias.</p>

<p>Then, one of <strong>us</strong> will steal the image and try to sell it. Where, you ask? Not telling you.</p>

<p>Now, if it is a good image with sales potential, all you have to do is;</p>

<p>*Find out <strong>if</strong> it actually did get stolen.<br>

*Was it sold? To whom? Only a few billion places it could be, really.<br>

*How much was sold for?Enough to justify the next very costly part....<br>

* Now.....who should your lawyer be? And what might his/her fees cost you? Oh, and then there are court expenses too.</p>

<p>So, really, in what world is this a likely event? Lord knows there are enough <strong>real</strong> issues to discuss....but I think this one is plain out of legs......Robert</p><div></div>

[Ed_Ingold]

<p>Kevin,</p>

<p>If you need legal advice, find an attorney. If you wish to argue a case, do it in court, not with non-attorneys in this forum. By your own inference, nobody here knows as much as you. As a practical matter, most attorneys will tell you it costs more to defend your copyright (or nearly anything else) than you can hope to recover unless the defendent has really deep pockets. Even then, expect an extremely costly battle. In instances like you describe, you may never even identify the culprit.</p>

<p>There's always another windmill on the horizon.</p>