Moral of the story: don't give credit where credit is due
Ain't that the truth! I guarantee there are others who have pictures of her work posted that never even gave her credit!
I think in the future I am sticking to nature shots and portraits (with proper signed releases for public view). Forget all this other stuff. I don't need the hassle.
Having just read the last 7 pages of this thread, I'm frankly appalled at some of the incredibly poor advice given by people who obviously know nothing at all about the law in this area. I'm not a lawyer either, nor have I been actively involved in copyright lawsuits in any way, but the only advice I have to give is general.
First, the one and only person on dgrin whose opinion on this subject would carry any weight with me is professional photojournalist and Artist in Residence B. D. Colen. Unfortunately he has not commented here. I suggest you send him a PM briefly explaining the situation and linking to this thread so that he can get all the details.
Second, I do think you need to consult a lawyer. If possible, it really should be someone with experience in copyright law (or more generally, intellectual property law), but that may not be feasible for you for a variety of reasons.
Third, I strongly advise you not to respond to the letter or to contact the artist in any way. At least talk to a lawyer first, and if you hire the lawyer, let them handle any contact with the other side.
I can't say for certain, but I would be very surprised if taking a picture of a sculpture at a public event in a public park could reasonably be considered a copyright violation. If you were a photographer for a local newspaper and your photos had been printed in the paper, I very much doubt the artist would be trying to sue. That would be editorial use, but offering your photos for sale seems to me (thought again I could be wrong) like fine art use, which as I understand it is treated similarly to editorial use by the law.
While it's hard to say what motivates someone you have never met and know very little about, I disagree with those who have suggested that the artist is honestly trying to protect her work or that she is being frightened into threatening you by a money-hungry lawyer. I am inclined to think this is a conscious and intentional scam by the artist herself. For all we know the "law firm" may not even exist. In any case, the artist is responsible for what is done in her name by her representatives. If I were in your place, then once this matter was resolved to my satisfaction, I would make sure the entire art community in my town became aware of what this artist has done. She deserves to be publicly shamed for this.
I do think you need to consult a lawyer. If possible, it really should be someone with experience in copyright law (or more generally, intellectual property law), but that may not be feasible for you for a variety of reasons.
I have put some calls in to several lawyers, but no responses thus far. This really stinks, as I am not financially in the position to afford a lawyer, but I will do what I have to do.
Third, I strongly advise you not to respond to the letter or to contact the artist in any way. At least talk to a lawyer first, and if you hire the lawyer, let them handle any contact with the other side.
Have not intention of. I am smart enough to know not to contact her directly!
I can't say for certain, but I would be very surprised if taking a picture of a sculpture at a public event in a public park could reasonably be considered a copyright violation. If you were a photographer for a local newspaper and your photos had been printed in the paper, I very much doubt the artist would be trying to sue. That would be editorial use, but offering your photos for sale seems to me (thought again I could be wrong) like fine art use, which as I understand it is treated similarly to editorial use by the law.
I know from an internet search when this came about, that MANY people have pictures of her work posted on blogs, new sites, etc. Not just me. I wonder if they are going after ALL of them too, or just me because my website had the "buy" button turned on, which I set globally?
The pictures were simply snapshots in a gallery of shots that included other artists work, pictures of the crowds at the Art Festival, vendors booths, etc. You know they type of pictures you would take when visiting an event. Obviously not an outright theft of someone elses work in order to sell it as my own for a profit. I never sold any (or intended to), and they were right click protected (an option that is easy to turn on with SmugMug), so no one could have "stolen" them from my site.
The lawyer is acting like I am some sort of COPYRIGHT GURU because I had the automatic copyright protections, afforded us by SM, like right click protect and our watermark put on the photos automatically in place, as well as copyright verbiage. The only stuff I know about copyright is what I have learned on these boards and from local photographers I network with.
I could care less about her shots and had someone tried to purchase them, would, frankly, have been shocked by it! I know I could get into a whole legal issues about "fair use" and such, but I am not looking to do that, because pictures from a local art show mean nothing to me, which is why I had no problem taking them down, and would have done so if the artist had called and asked me to. No problem at all. I can respect if she didn't want them on my site. Of course, I mistakenly, thought that I was doing her a FAVOR by linking to her site and crediting her under each one. I think that right there is what caused this whole string of events!
While it's hard to say what motivates someone you have never met and know very little about, I disagree with those who have suggested that the artist is honestly trying to protect her work or that she is being frightened into threatening you by a money-hungry lawyer. I am inclined to think this is a conscious and intentional scam by the artist herself. For all we know the "law firm" may not even exist. In any case, the artist is responsible for what is done in her name by her representatives. If I were in your place, then once this matter was resolved to my satisfaction, I would make sure the entire art community in my town became aware of what this artist has done. She deserves to be publicly shamed for this.
Definitely a "real" law firm here in my state. Interestingly, however, the firm was just established three months ago (February 2010), from what I can tell with press releases and such online, and specializes in intellectual property rights, copyrights, and trademarks. God help the photographers in my area, especially those who take photos for fun and never make a profit on them. I know lots of people who have websites where they put their photos up. Some have "sales buttons" as well. Few have ever made any type of sale from them. They are hoping they have one good shot that someone is interested in and will contact them about. God help them when taking pictures in public places around here now.
Whew...all this talk and I was starting to wonder did I link back to her site or not? It was so long ago and I removed them right away when I got the letter, not even thinking to check and make sure. Was unable to pull up cached pages of them with the waybackmachine.com, but did a google seach of her name and my name, and the links to my pages are still there, although it doesn't take you to any photos by her, just the general gallery for the event, and I did indeed give credit to her and a link to her site...whew! I just hated to keep saying I had done that, and started second guessing myself. I am not thinking clearly because of all this now.
Now I am getting tired of this. Your are making more of this than it really is.
Again I will say in my opinion you shouldn't attempt to advocate for yourself.
If it were me I would go more along the lines of Kdog's advice. I would contact the artist. In your case perhaps a close friend could intercede on your behalf.
The lawyer can not act without the approval of their client.
Again in my opinion it costs nothing to talk to the artist, and then you won't have to speculate on motives or intentions.
I would start with the least costly approach I believe will yield a positive result and then move on the the more costly options as needed.
You said others have posted photos of her work and you wondered if they also had received a cease and desist letter.
Call them!!!! Stop endlessly speculating. get data.
I think this could have been over and done with by now.
I skipped a few pages, so if this has already been touched on, then disregard..
This is a fishing expedition so if it were me, I wouldn't even reply at all. However if you insist on replying, your letter was way too long and drawn out.
Simply write back as such:
Dear Sir or Madame:
I am in receipt of your letter dated XXXXX.
While every photo in my online gallery is clearly within the bounds of the Fair Use Doctrine, out of respect for the request of the Artist, I have removed her photos.
The sole intention of this online gallery was to share my experience at the XXXXXXXXX Art Show with my friends and family. I did not, and do not, have any intention whatsoever of selling the images.
Your letter references a "Buy" button on the gallery. The "buy" setting is a default setting of my galleries, and was overlooked when uploading the gallery. I apologize for this oversight.
Sincerely.....
I say don't sweat it - nothing's going to happen.
Las Vegas Wedding, Family, and Special Event Photographers.
Canon 7d
2 Canon 40d
70-200 f2.8L IS, 50mm f1.4, 50mm f1.8, 28mm f1.8, Tamron 17-55 f2.8, ProOptic 8mm Fisheye
And a bunch of other stuff
destroy all negs (there are nine), destroy digital files
They can not legally force you to destroy your property.
By the way, I attended an Art Wolfe workshop yesterday and thought of you while he was discussing editorial versus commercial use...
Based on what you describe your photos are editorial use, and you CAN sell them as editorial use without permission of the people or other items in the images. You don't even need a model or property release for editorial use. This is exactly the same as what your local newspaper does, in fact you can most likely call up your local newspaper and PURCHASE any photo that they own (photos taken by their staff photographers). Many newspapers even have a BUY button on their website for photos that appear in the articles.
Remember YOU own the copyright on your photo--which has nothing to do with copyright status of various items that may appear in your photo.
<o:p></o:p> Now I am getting tired of this. Your are making more of this than it really is.<o:p></o:p> <o:p></o:p> Again I will say in my opinion you shouldn't attempt to advocate for yourself.<o:p></o:p> <o:p></o:p> If it were me I would go more along the lines of Kdog's advice. I would contact the artist. In your case perhaps a close friend could intercede on your behalf.<o:p></o:p> <o:p></o:p> The lawyer can not act without the approval of their client. <o:p></o:p> <o:p></o:p> Again in my opinion it costs nothing to talk to the artist, and then you won't have to speculate on motives or intentions. <o:p></o:p> <o:p></o:p> I would start with the least costly approach I believe will yield a positive result and then move on the the more costly options as needed.<o:p></o:p> <o:p></o:p> You said others have posted photos of her work and you wondered if they also had received a cease and desist letter. <o:p></o:p> <o:p></o:p> Call them!!!! Stop endlessly speculating. get data.<o:p></o:p> <o:p></o:p> I think this could have been over and done with by now.<o:p></o:p> <o:p></o:p> Sam
<o:p></o:p> <o:p></o:p> Sam, I agree that Nora has gotten more upset over this than it warranted, but I strongly disagree with your advice that she contact the artist directly.<o:p></o:p> <o:p></o:p> Lawyers are involved. Once that happens, the most dangerous thing you can do is to try to bypass the lawyers and "act as your own advocate," as you put it.<o:p></o:p> <o:p></o:p> Contacting the artist directly opens Nora up to all sorts of legal machinations and false accusations from the artist and the artist's lawyers. Since they have already engaged in what, IMHO, amounts to extortion by sending her a threatening letter demanding money, they are obviously people of low ethical standards and are probably not above falsely accusing Nora of all sorts of nasty stuff like harassment or attempted coercion.<o:p></o:p> <o:p></o:p> They could also portray such contacts as a tacit admission of guilt, or falsely attribute any statement they wish to her during that contact, i.e., "She called me and said she was going to kill me if I didn't drop the matter!"<o:p></o:p> <o:p></o:p> Any attempt to contact other photographers in the area, to see if they have also received letters from the artist's lawyers, could be falsely portrayed as character defamation or restraint of trade by the lawyers. "She's been calling all over town bashing my professional and personal reputations! She's ruining my good name and my business!"<o:p></o:p> <o:p></o:p> I have a sneaking suspicion that, if Nora does nothing and makes no reply of any kind, neither the law firm nor the artist will pursue the matter. But it would be just as foolish to stick her head in the sand and hope it blows over, as it would to take some action that plays directly into the lawyers' hands.<o:p></o:p> <o:p></o:p> The letter sounds like a fishing expedition to me; a reputable law firm would not make a monetary demand in a cease and desist letter, nor would they send a form letter to someone. A reputable law firm would have carefully crafted a letter specific to the situation and the recipient, in which case Nora's letter would not have included references to negatives or prints, and would have included references to the specific areas of copyright law that they are accusing her of violating, including dates and times, and probably printouts of the web page. IMHO, it's a blatant attempt at extortion.<o:p></o:p>
<o:p></o:p>
What I said when I saw the Grand Canyon for the first time: "The wide ain't wide enough and the zoom don't zoom enough!"
I am stunned that they drafted the letter on the 14th, giving me one week to reply (the 21st) and I got it on the 19th by certified mail.
Here is a portion of the letter:
they go on the state all this must be received by Friday, April 22nd. My bad, I thought it was the 21st. But still....
Hmm, note that they state over and over "commercial use" of the photos. Nothing about editorial use. As I learned yesterday, you can sell or license those photos for editorial use (to be printed in a newspaper article about the event, etc.) without permission of the people or items in the images.
They can not legally force you to destroy your property.
By the way, I attended an Art Wolfe workshop yesterday and thought of you while he was discussing editorial versus commercial use...
Based on what you describe your photos are editorial use, and you CAN sell them as editorial use without permission of the people or other items in the images. You don't even need a model or property release for editorial use. This is exactly the same as what your local newspaper does, in fact you can most likely call up your local newspaper and PURCHASE any photo that they own (photos taken by their staff photographers). Many newspapers even have a BUY button on their website for photos that appear in the articles.
Remember YOU own the copyright on your photo--which has nothing to do with copyright status of various items that may appear in your photo.
Any attempt to contact other photographers in the area, to see if they have also received letters from the artist's lawyers, could be falsely portrayed as character defamation or restraint of trade by the lawyers. "She's been calling all over town bashing my professional and personal reputations! She's ruining my good name and my business!"<o:p></o:p>
Precisely why I have not used the sculptor's name, or the name of her attorneys, in anything I have posted here!
The letter sounds like a fishing expedition to me; a reputable law firm would not make a monetary demand in a cease and desist letter, nor would they send a form letter to someone. A reputable law firm would have carefully crafted a letter specific to the situation and the recipient, in which case Nora's letter would not have included references to negatives or prints, and would have included references to the specific areas of copyright law that they are accusing her of violating, including dates and times, and probably printouts of the web page. IMHO, it's a blatant attempt at extortion.<o:p></o:p>
I have looked at LOTS of cease and desist letters online, these past two days, and NONE have any mention of paying lawyers fees!
I would say the letter is a form letter, however in all fairness, the wording of the letter does show that they visited my website, etc. They did cite specific references to copyright law, however there were no attachments of web pages or anything.
Now that I finally got caught up on reading this thread, I would have to agree with others that:
1) The artist recently decided to copyright her work.
2) As part of the copyright process, the law firm did a search of her name on the Internet and sent this form letter to everyone they could find with pictures of her work posted.
We can speculate all day about why she decided to copyright the works and why the attorneys are asking for $1000, but I think the two items above are very clear now.
Fair use is a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560 (1985). Because “the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Id. at 560 (citation omitted). Section 107 requires courts to consider four nonexclusive factors when evaluating fair use:
Yes, I have come across this several times in the last couple of days. I would hope that common sense would reign if a case like what I am talking about ever came up in a court of law. I mean come on:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
This is the one that bothers me. The fact that I had the "buy" button turned on globally for all my galleries, including this one, plays against me. Although I never intended to sell the photos from the art festival commercially, let's face it they aren't exactly commercial quality photos, the option was there if someone wanted them. I guess it's good that my work isn't that awesome.
(2) the nature of the copyrighted work;
This I think would play in my favor. I mean it is obvious from the scope of the art festival gallery that these were merely snapshots taken at a day in the park! And, I was talking to the artist when I took them as well. And she gave me her contact information. I also clearly gave the artist credit for the work. Obviously they were not taken with an intentional purpose to resell and market the work as my own.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
I did have close up photos of her work, but in most you could also see the tables they were sitting on as well, and I would think it would be obvious they were taken in a public venue based on the other photos in the same gallery.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
I would say there was absolutely none. How my stupid little photos on a barely visited website could have devalued her actual sculptures, I have no idea. From what I can tell, she has sold all of them as well.
Overall, I think the whole thing shows that I had no intent to steal her work and re-market it, but with lawyers, who knows how they will spin things!
I am telling you now however, I will NEVER take a camera (not even my phone camera) to an arts or crafts show again in my LIFE!
I actually contact an old high school friend, who is friends with me on Facebook. I haven't seen her in over 20 years, but I know she is a divorce lawyer. I asked her if she knew anyone in my area she could refer. Unfortunately, she didn't know anyone who specialized in this type of law, but she did sent me this back:
You should talk to someone who specializes in copyright infringement--however an attorney who does business law may be able to help. $1,000 is absurd.... I wouldn't pay a penny. I would be curious to know if something is copyrighted if the person holding the copyright has to make that fact known if they are displaying it in a public forum or if they have to ask the person to desist and inform them of the copywrite before filing any type of action (you may be able to find this on one of the government website). I would not spend any money on this... I would see if someone will give you a free consultation or one for a nominal fee. Not all causes of action entitle a litigant to attorney's fees and costs (which I assume is the basis of the $1,000 because this person has no real damages). You could always ignore it because no suit has been filed.
Now I am getting tired of this. Your are making more of this than it really is.
Again I will say in my opinion you shouldn't attempt to advocate for yourself.
If it were me I would go more along the lines of Kdog's advice. I would contact the artist. In your case perhaps a close friend could intercede on your behalf.
The lawyer can not act without the approval of their client.
Again in my opinion it costs nothing to talk to the artist, and then you won't have to speculate on motives or intentions.
I would start with the least costly approach I believe will yield a positive result and then move on the the more costly options as needed.
You said others have posted photos of her work and you wondered if they also had received a cease and desist letter.
Call them!!!! Stop endlessly speculating. get data.
I think this could have been over and done with by now.
Sam
Sam,
There is no speculation here. The Law firm is definitely acting on behalf of a request by a client.
And considering printergirl's statment's regarding the law Firms "new-ness' , One can imagine how hungry they are collectively, esp. in this economy.
Typically I am like you and Joel in that I believe in talking with folks. but in this case, the artist you suggest she talk to, is the Instigator.
And no, I don't believe you infringed on a copyright in intention or execution.
Nothing yet. Will keep you posted as things occur...
For what it is worth .....if she is defaming you...that is grounds for one very large law suit and may mean many years of viable income for you....as she is killing your abilty to make a living with camera or to sell any of your work locally.....it could make it very hard for you just to live there period.
GEt a good lawyer and counter sue.....I am not a sue happy person but in a case like this....oh yeah. Your good name is worth a lot....
there's an old saying... "The man who represents himself has a fool for a lawyer"
based on some of the writings herewith I dare say that might extend to advisers!!!!
there is so much information regarding copyright in the "Photographer's Resources" sticky thread at the top of the MYOB Forum and so many discussions on this subject I'm amazed so many are still misinformed on the subject, particularly the definition of "commercial use"
there's an old saying... "The man who represents himself has a fool for a lawyer"
based on some of the writings herewith I dare say that might extend to advisers!!!!
there is so much information regarding copyright in the "Photographer's Resources" sticky thread at the top of the MYOB Forum and so many discussions on this subject I'm amazed so many are still misinformed on the subject, particularly the definition of "commercial use"
And if you will note....as the first responder to this thread, I said....'You might want to get yourself a lawyer.....'
As my son, the law student says....'everyone that watches Law and Order thinks they know the law'
I am not actively practicing right now, but I am a lawyer. There is some bad advice being given in this thread, although there have been a couple of good suggestions. Intellectual Property law is a very specialized area that can be tricky. The best thing you can do is find a lawyer to advise you on what to do in this situation, to include whether or not you should respond to the initial demand letter. I have sent you a PM with some suggestions on how to find an attorney in your area. You don't want to have to spend more on attorney fees than absolutely necessary.
I would recommend not posting any further thoughts or questions in this thread, simply because it could lead to more confusion. I do think it would be helpful for you to post the final outcome so others can perhaps learn from your experience.
BTW, I know many people think poorly of the legal profession, and sometimes there are reasons to do so. But just like there are highly skilled, professional, and ethical photographers . . . there are highly skilled, professional, and ethical attorneys. Same for any profession. The best way to "fight" a person represented by a lawyer is with another lawyer on your side. The good ones will help you find the solution that makes the most sense for you and not the one that makes the most money for the lawyer.
Best Regards,
Lauren Blackwell
"But ask the animals, and they will teach you." (Job 12:7)
I am not actively practicing right now, but I am a lawyer. There is some bad advice being given in this thread, although there have been a couple of good suggestions. Intellectual Property law is a very specialized area that can be tricky. The best thing you can do is find a lawyer to advise you on what to do in this situation, to include whether or not you should respond to the initial demand letter. I have sent you a PM with some suggestions on how to find an attorney in your area. You don't want to have to spend more on attorney fees than absolutely necessary.
I would recommend not posting any further thoughts or questions in this thread, simply because it could lead to more confusion. I do think it would be helpful for you to post the final outcome so others can perhaps learn from your experience.
BTW, I know many people think poorly of the legal profession, and sometimes there are reasons to do so. But just like there are highly skilled, professional, and ethical photographers . . . there are highly skilled, professional, and ethical attorneys. Same for any profession. The best way to "fight" a person represented by a lawyer is with another lawyer on your side. The good ones will help you find the solution that makes the most sense for you and not the one that makes the most money for the lawyer.
I am not actively practicing right now, but I am a lawyer. There is some bad advice being given in this thread, although there have been a couple of good suggestions. Intellectual Property law is a very specialized area that can be tricky. The best thing you can do is find a lawyer to advise you on what to do in this situation, to include whether or not you should respond to the initial demand letter. I have sent you a PM with some suggestions on how to find an attorney in your area. You don't want to have to spend more on attorney fees than absolutely necessary.
I would recommend not posting any further thoughts or questions in this thread, simply because it could lead to more confusion. I do think it would be helpful for you to post the final outcome so others can perhaps learn from your experience.
BTW, I know many people think poorly of the legal profession, and sometimes there are reasons to do so. But just like there are highly skilled, professional, and ethical photographers . . . there are highly skilled, professional, and ethical attorneys. Same for any profession. The best way to "fight" a person represented by a lawyer is with another lawyer on your side. The good ones will help you find the solution that makes the most sense for you and not the one that makes the most money for the lawyer.
I am not actively practicing right now, but I am a lawyer. There is some bad advice being given in this thread, although there have been a couple of good suggestions. Intellectual Property law is a very specialized area that can be tricky. The best thing you can do is find a lawyer to advise you on what to do in this situation, to include whether or not you should respond to the initial demand letter. I have sent you a PM with some suggestions on how to find an attorney in your area. You don't want to have to spend more on attorney fees than absolutely necessary.
I would recommend not posting any further thoughts or questions in this thread, simply because it could lead to more confusion. I do think it would be helpful for you to post the final outcome so others can perhaps learn from your experience.
BTW, I know many people think poorly of the legal profession, and sometimes there are reasons to do so. But just like there are highly skilled, professional, and ethical photographers . . . there are highly skilled, professional, and ethical attorneys. Same for any profession. The best way to "fight" a person represented by a lawyer is with another lawyer on your side. The good ones will help you find the solution that makes the most sense for you and not the one that makes the most money for the lawyer.
Best Regards,
Lauren Blackwell
The primary problem with consulting a lawyer in a case like this is the cost. Certainly if money weren't an issue I'd rather spend $1000 on my own lawyer than $1000 on someone else's. However, when the cost of legal advice is prohibitive, simply saying "hire a lawyer" is less useful. If getting legal avice is really the only answer here, then do you have suggestions for keeping the cost down? Say someone had a $100 budget for handling the issue. How would that money be best spent?
I doubt a jury would convict you. This 'artist' sounds like a complete a-hole. Personally, I wouldn't buy anything from someone that used this type of tactics. Can you share the name of the artist?
I don't want to go too far afield, but I do think the question by LiquidAir merits a reply. I do realize that "hire a lawyer" is not that easy when one is on a budget. Educating oneself is always a good idea in my opinion; if someone does end up needing a lawyer, it can help to have done some reading and have a list of pertinent questions to ask. (I would just caution people to pay attention to where the information comes from. Lots of states and the US Govt have information on their web sites about a lot of legal issues and those are kept very current.)
Most local and state bar associations have a lawyer referral service; the numbers are usually in the phone book or easily found on line. In exchange for receiving referrals via the service, lawyers agree to charge no fee or reduced fees for the initial client meeting. If you live near a law school, you might find a legal aid clinic where law students--supervised by licensed attorneys--will help people who can't afford lawyers. Copyright law would not be the type of issue I'd expect to be handled by a law school clinic, but it wouldn't hurt to ask. There might be a professor on the faculty who could help or who might know a lawyer who could help. Young lawyers who are just starting out might be less expensive. Whether or not that is the best choice really depends on the type of case. Sometimes, you have to pay more to get the experience you need. Big firms, and sometimes the smaller ones too, usually have pro bono programs where they do legal work for free. Again, I'm not sure if IP defense would typically be handled in a pro bono program but it is possible. The best source for information about pro bono programs would again be the local bar association; alternatively, you could call the largest law firms in your city and ask what type of pro bono program they have.
That $100 won't go far at all in the legal system, I'm afraid. But if you want to convince a lawyer that you can't afford to pay much for his/her services, then don't walk in and talk about the photos you took with your Canon Mk III!
"But ask the animals, and they will teach you." (Job 12:7)
Comments
Ain't that the truth! I guarantee there are others who have pictures of her work posted that never even gave her credit!
I think in the future I am sticking to nature shots and portraits (with proper signed releases for public view). Forget all this other stuff. I don't need the hassle.
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First, the one and only person on dgrin whose opinion on this subject would carry any weight with me is professional photojournalist and Artist in Residence B. D. Colen. Unfortunately he has not commented here. I suggest you send him a PM briefly explaining the situation and linking to this thread so that he can get all the details.
Second, I do think you need to consult a lawyer. If possible, it really should be someone with experience in copyright law (or more generally, intellectual property law), but that may not be feasible for you for a variety of reasons.
Third, I strongly advise you not to respond to the letter or to contact the artist in any way. At least talk to a lawyer first, and if you hire the lawyer, let them handle any contact with the other side.
I can't say for certain, but I would be very surprised if taking a picture of a sculpture at a public event in a public park could reasonably be considered a copyright violation. If you were a photographer for a local newspaper and your photos had been printed in the paper, I very much doubt the artist would be trying to sue. That would be editorial use, but offering your photos for sale seems to me (thought again I could be wrong) like fine art use, which as I understand it is treated similarly to editorial use by the law.
While it's hard to say what motivates someone you have never met and know very little about, I disagree with those who have suggested that the artist is honestly trying to protect her work or that she is being frightened into threatening you by a money-hungry lawyer. I am inclined to think this is a conscious and intentional scam by the artist herself. For all we know the "law firm" may not even exist. In any case, the artist is responsible for what is done in her name by her representatives. If I were in your place, then once this matter was resolved to my satisfaction, I would make sure the entire art community in my town became aware of what this artist has done. She deserves to be publicly shamed for this.
Got bored with digital and went back to film.
I have put some calls in to several lawyers, but no responses thus far.
Have not intention of. I am smart enough to know not to contact her directly!
I know from an internet search when this came about, that MANY people have pictures of her work posted on blogs, new sites, etc. Not just me.
The pictures were simply snapshots in a gallery of shots that included other artists work, pictures of the crowds at the Art Festival, vendors booths, etc. You know they type of pictures you would take when visiting an event. Obviously not an outright theft of someone elses work in order to sell it as my own for a profit. I never sold any (or intended to), and they were right click protected (an option that is easy to turn on with SmugMug), so no one could have "stolen" them from my site.
The lawyer is acting like I am some sort of COPYRIGHT GURU because I had the automatic copyright protections, afforded us by SM, like right click protect and our watermark put on the photos automatically in place, as well as copyright verbiage. The only stuff I know about copyright is what I have learned on these boards and from local photographers I network with.
I could care less about her shots and had someone tried to purchase them, would, frankly, have been shocked by it! I know I could get into a whole legal issues about "fair use" and such, but I am not looking to do that, because pictures from a local art show mean nothing to me, which is why I had no problem taking them down, and would have done so if the artist had called and asked me to. No problem at all. I can respect if she didn't want them on my site. Of course, I mistakenly, thought that I was doing her a FAVOR by linking to her site and crediting her under each one. I think that right there is what caused this whole string of events!
Definitely a "real" law firm here in my state. Interestingly, however, the firm was just established three months ago (February 2010), from what I can tell with press releases and such online, and specializes in intellectual property rights, copyrights, and trademarks. God help the photographers in my area, especially those who take photos for fun and never make a profit on them. I know lots of people who have websites where they put their photos up. Some have "sales buttons" as well. Few have ever made any type of sale from them. They are hoping they have one good shot that someone is interested in and will contact them about. God help them when taking pictures in public places around here now.
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Now I am getting tired of this. Your are making more of this than it really is.
Again I will say in my opinion you shouldn't attempt to advocate for yourself.
If it were me I would go more along the lines of Kdog's advice. I would contact the artist. In your case perhaps a close friend could intercede on your behalf.
The lawyer can not act without the approval of their client.
Again in my opinion it costs nothing to talk to the artist, and then you won't have to speculate on motives or intentions.
I would start with the least costly approach I believe will yield a positive result and then move on the the more costly options as needed.
You said others have posted photos of her work and you wondered if they also had received a cease and desist letter.
Call them!!!! Stop endlessly speculating. get data.
I think this could have been over and done with by now.
Sam
This is a fishing expedition so if it were me, I wouldn't even reply at all. However if you insist on replying, your letter was way too long and drawn out.
Simply write back as such:
Dear Sir or Madame:
I am in receipt of your letter dated XXXXX.
While every photo in my online gallery is clearly within the bounds of the Fair Use Doctrine, out of respect for the request of the Artist, I have removed her photos.
The sole intention of this online gallery was to share my experience at the XXXXXXXXX Art Show with my friends and family. I did not, and do not, have any intention whatsoever of selling the images.
Your letter references a "Buy" button on the gallery. The "buy" setting is a default setting of my galleries, and was overlooked when uploading the gallery. I apologize for this oversight.
Sincerely.....
I say don't sweat it - nothing's going to happen.
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And a bunch of other stuff
Yup, that is my nature.
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They can not legally force you to destroy your property.
By the way, I attended an Art Wolfe workshop yesterday and thought of you while he was discussing editorial versus commercial use...
Based on what you describe your photos are editorial use, and you CAN sell them as editorial use without permission of the people or other items in the images. You don't even need a model or property release for editorial use. This is exactly the same as what your local newspaper does, in fact you can most likely call up your local newspaper and PURCHASE any photo that they own (photos taken by their staff photographers). Many newspapers even have a BUY button on their website for photos that appear in the articles.
Remember YOU own the copyright on your photo--which has nothing to do with copyright status of various items that may appear in your photo.
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Sam, I agree that Nora has gotten more upset over this than it warranted, but I strongly disagree with your advice that she contact the artist directly.<o:p></o:p>
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Lawyers are involved. Once that happens, the most dangerous thing you can do is to try to bypass the lawyers and "act as your own advocate," as you put it.<o:p></o:p>
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Contacting the artist directly opens Nora up to all sorts of legal machinations and false accusations from the artist and the artist's lawyers. Since they have already engaged in what, IMHO, amounts to extortion by sending her a threatening letter demanding money, they are obviously people of low ethical standards and are probably not above falsely accusing Nora of all sorts of nasty stuff like harassment or attempted coercion.<o:p></o:p>
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They could also portray such contacts as a tacit admission of guilt, or falsely attribute any statement they wish to her during that contact, i.e., "She called me and said she was going to kill me if I didn't drop the matter!"<o:p></o:p>
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Any attempt to contact other photographers in the area, to see if they have also received letters from the artist's lawyers, could be falsely portrayed as character defamation or restraint of trade by the lawyers. "She's been calling all over town bashing my professional and personal reputations! She's ruining my good name and my business!"<o:p></o:p>
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I have a sneaking suspicion that, if Nora does nothing and makes no reply of any kind, neither the law firm nor the artist will pursue the matter. But it would be just as foolish to stick her head in the sand and hope it blows over, as it would to take some action that plays directly into the lawyers' hands.<o:p></o:p>
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The letter sounds like a fishing expedition to me; a reputable law firm would not make a monetary demand in a cease and desist letter, nor would they send a form letter to someone. A reputable law firm would have carefully crafted a letter specific to the situation and the recipient, in which case Nora's letter would not have included references to negatives or prints, and would have included references to the specific areas of copyright law that they are accusing her of violating, including dates and times, and probably printouts of the web page. IMHO, it's a blatant attempt at extortion.<o:p></o:p>
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Hmm, note that they state over and over "commercial use" of the photos. Nothing about editorial use. As I learned yesterday, you can sell or license those photos for editorial use (to be printed in a newspaper article about the event, etc.) without permission of the people or items in the images.
Ah, but what about the Hipple/Mackie suit? http://bit.ly/9Fe2wv
This is quite interesting and something I never knew about until two days ago. Interested to see how it turns out.
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Precisely why I have not used the sculptor's name, or the name of her attorneys, in anything I have posted here!
I have looked at LOTS of cease and desist letters online, these past two days, and NONE have any mention of paying lawyers fees!
I would say the letter is a form letter, however in all fairness, the wording of the letter does show that they visited my website, etc. They did cite specific references to copyright law, however there were no attachments of web pages or anything.
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1) The artist recently decided to copyright her work.
2) As part of the copyright process, the law firm did a search of her name on the Internet and sent this form letter to everyone they could find with pictures of her work posted.
We can speculate all day about why she decided to copyright the works and why the attorneys are asking for $1000, but I think the two items above are very clear now.
I haven't read beyond the first paragraph, but "stock photo" would be commercial use.
http://www.photoattorney.com/?p=1158
GreyLeaf PhotoGraphy
Yes, I have come across this several times in the last couple of days. I would hope that common sense would reign if a case like what I am talking about ever came up in a court of law. I mean come on:
This is the one that bothers me. The fact that I had the "buy" button turned on globally for all my galleries, including this one, plays against me. Although I never intended to sell the photos from the art festival commercially, let's face it they aren't exactly commercial quality photos, the option was there if someone wanted them. I guess it's good that my work isn't that awesome.
This I think would play in my favor. I mean it is obvious from the scope of the art festival gallery that these were merely snapshots taken at a day in the park! And, I was talking to the artist when I took them as well. And she gave me her contact information. I also clearly gave the artist credit for the work. Obviously they were not taken with an intentional purpose to resell and market the work as my own.
I did have close up photos of her work, but in most you could also see the tables they were sitting on as well, and I would think it would be obvious they were taken in a public venue based on the other photos in the same gallery.
I would say there was absolutely none. How my stupid little photos on a barely visited website could have devalued her actual sculptures, I have no idea. From what I can tell, she has sold all of them as well.
Overall, I think the whole thing shows that I had no intent to steal her work and re-market it, but with lawyers, who knows how they will spin things!
I am telling you now however, I will NEVER take a camera (not even my phone camera) to an arts or crafts show again in my LIFE!
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Sam,
There is no speculation here. The Law firm is definitely acting on behalf of a request by a client.
And considering printergirl's statment's regarding the law Firms "new-ness' , One can imagine how hungry they are collectively, esp. in this economy.
Typically I am like you and Joel in that I believe in talking with folks. but in this case, the artist you suggest she talk to, is the Instigator.
And no, I don't believe you infringed on a copyright in intention or execution.
cheers,
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For what it is worth .....if she is defaming you...that is grounds for one very large law suit and may mean many years of viable income for you....as she is killing your abilty to make a living with camera or to sell any of your work locally.....it could make it very hard for you just to live there period.
GEt a good lawyer and counter sue.....I am not a sue happy person but in a case like this....oh yeah. Your good name is worth a lot....
based on some of the writings herewith I dare say that might extend to advisers!!!!
there is so much information regarding copyright in the "Photographer's Resources" sticky thread at the top of the MYOB Forum and so many discussions on this subject I'm amazed so many are still misinformed on the subject, particularly the definition of "commercial use"
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And if you will note....as the first responder to this thread, I said....'You might want to get yourself a lawyer.....'
As my son, the law student says....'everyone that watches Law and Order thinks they know the law'
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I am not actively practicing right now, but I am a lawyer. There is some bad advice being given in this thread, although there have been a couple of good suggestions. Intellectual Property law is a very specialized area that can be tricky. The best thing you can do is find a lawyer to advise you on what to do in this situation, to include whether or not you should respond to the initial demand letter. I have sent you a PM with some suggestions on how to find an attorney in your area. You don't want to have to spend more on attorney fees than absolutely necessary.
I would recommend not posting any further thoughts or questions in this thread, simply because it could lead to more confusion. I do think it would be helpful for you to post the final outcome so others can perhaps learn from your experience.
BTW, I know many people think poorly of the legal profession, and sometimes there are reasons to do so. But just like there are highly skilled, professional, and ethical photographers . . . there are highly skilled, professional, and ethical attorneys. Same for any profession. The best way to "fight" a person represented by a lawyer is with another lawyer on your side. The good ones will help you find the solution that makes the most sense for you and not the one that makes the most money for the lawyer.
Best Regards,
Lauren Blackwell
Lauren Blackwell
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http://nikonic1.smugmug.com/
THANK YOU!!!!!!!!!!
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
The primary problem with consulting a lawyer in a case like this is the cost. Certainly if money weren't an issue I'd rather spend $1000 on my own lawyer than $1000 on someone else's. However, when the cost of legal advice is prohibitive, simply saying "hire a lawyer" is less useful. If getting legal avice is really the only answer here, then do you have suggestions for keeping the cost down? Say someone had a $100 budget for handling the issue. How would that money be best spent?
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Most local and state bar associations have a lawyer referral service; the numbers are usually in the phone book or easily found on line. In exchange for receiving referrals via the service, lawyers agree to charge no fee or reduced fees for the initial client meeting. If you live near a law school, you might find a legal aid clinic where law students--supervised by licensed attorneys--will help people who can't afford lawyers. Copyright law would not be the type of issue I'd expect to be handled by a law school clinic, but it wouldn't hurt to ask. There might be a professor on the faculty who could help or who might know a lawyer who could help. Young lawyers who are just starting out might be less expensive. Whether or not that is the best choice really depends on the type of case. Sometimes, you have to pay more to get the experience you need. Big firms, and sometimes the smaller ones too, usually have pro bono programs where they do legal work for free. Again, I'm not sure if IP defense would typically be handled in a pro bono program but it is possible. The best source for information about pro bono programs would again be the local bar association; alternatively, you could call the largest law firms in your city and ask what type of pro bono program they have.
That $100 won't go far at all in the legal system, I'm afraid. But if you want to convince a lawyer that you can't afford to pay much for his/her services, then don't walk in and talk about the photos you took with your Canon Mk III!
Lauren Blackwell
www.redleashphoto.com