This chunk of the TERMS seems more geared toward a SM user who has someone elses copywritten images on their site, not a SM user being wronged.
As for the magazine, its a huge international publication, not just here in the US if I remember correctly. Have been in the RC world for a bit and tat particular mag has been around for a very long time. I also believe that it is just one of many magazines that the publishers puts out each month. THey for sure know what copyright is and would go after you tooth and nail if the roles were reversed.
I did not say anything about Smugmug owning the copyright.
Smugmug acts like a retailer selling images on behalf of its member photographers and it was Smugmug's site from which the image was stolen. It would have been Smugmug that would have conducted the sale of the image so it would seem appropriate they might have an interest in this.
And since you've linked to the "terms" why not read this?:
copyright complaints
SmugMug respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact SmugMug's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at copyrightagent@smugmug.com or Copyright Agent, SmugMug, 3347 Shady Spring, Mountain View, CA 94040. Please provide our Agent with the following Notice:
Identify the copyrighted work or other intellectual property that you claim has been infringed;
Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
Your address, telephone number, and email address; and
Your physical or electronic signature.
SmugMug's Agent will forward this information to the alleged infringer.
I don't think so and don't see how you've reached that conclusion.
* I think you mean copyrighted
Yep, copyrighted material...sorry spent way too much time today correcting the horrendous grammar and spelling of a client, it rubbed off.
Anyway, my conclusion comes from the simply stated item No. 2 in the list you posted:
Identify the copyrighted work or other intellectual property that you claim has been infringed;
Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
Your address, telephone number, and email address; and
Your physical or electronic signature.
That statement is asking for the offended to identify images/work on a SmugMug site that is infringing. Why is that? Probably because legally the only servers that anyone at SmugMug has content control over are the ones they own.
This is simple basic Copyright 101 here. SmugMug can and will remove items from a client site on THEIR servers that is found to contain copyrighted material that is not properly credited or illegally used.
I used to do a very similar job for the newspaper I worked for so I do have a bit of experience on this one. My few minutes of usefullness for the day.
I think I will go the route of sending a strongly worded letter and see what happens.
This would be a mistake. If you send them a strongly worded letter, you are essentially counting on their decency to get them to compensate you. Clearly, they aren't those types of folks, or they wouldn't have stolen the image in the first place. Let us not forget here that the salient issue is theft of intellectual property. It is in fact real property- they may as well have stolen your stereo. Or my car, which costs significantly les than $2500.
Also consider the bureaucratic response to such a letter. How do they respond? Do they offer to pay you? How much? Who, within the organization, do they go to in order to authorize such a thing (a person to whom they will have to admit their theft and exposure of the company to litigation.)
Sending an invoice has a high probability of success. It easily flows into an established procedure they have for paying suppliers. It establishes a firm basis for you, if they do not respond, to begin your legal action (if no invoice is sent they wil very likely hoist you on your own petard and offer $400 in small claims court, or something like that). The probability of you getting paid without resort to lawyers is highest if this course of action is followed. There is also a bit of an intimidation factor here. If they get an invoice and a legally worded notice, they will likely realize they have stolen from someone who A) makes a living off their photography, is well aware of copyright law, has them dead to rights and knows it, and C) is prepared to take this issue forward to an unhappy resolution for them. A "I'm pissed of at you letter" will likely get as much attention as the last letter I sent to my congressman indicating my displeasure with his performance did- not much.
Don't get heavy or pissed off in the letter that accompanies the invoice. Stay cool, colleced and brief. Just the facts ma'am.
If they don't pony up the cash. Nail them to them to the wall with a dull and rusty railroad spike.
by strongly worded letter I just meant a letter illustrating the facts and also intended to include an invoice.
I am not a lawyer, but this is my take on this:
When you are deciding how much to invoice them for you should keep in mind that your $400 digital download price grants them a non-exclusive license to the image, and according to an earlier post you made their standard terms state that published images become their property, meaning that you have lost your rights to make additional income from the image. From your earlier post it seems like you get this, but several of the other posters seem to be glazing over this fact. If you sent them a fairly generic invoice, that could be interpreted as accepting their standard terms in exchange for whatever you invoice them for (say $400 + 100% penalty for failure to obtain rights prior to publication.) If on the other had the invoice clearly states "Non-Exclusive license to publish Image-XXX in one issue of Magazine YYY" and they pay you what you invoice them for this should be interpreted as their acceptance of the terms in the invoice.
One option I would consider if I was in your shoes would be to send two invoices with the letter, one for $400 + 100% penalty for failure to obtain rights prior to publication with the above verbiage about non-exclusivity and one issue, and one for $2500 + 100 % penalty for failure to obtain rights prior to publication with verbiage stating their rights are as described in the magazine submission policy.
by strongly worded letter I just meant a letter illustrating the facts and also intended to include an invoice.
Dear Copyright Violater:
Enclosed is my invoice for the Image in the amount of "Cars at the Races" used in your magazine. I am honored that you chose my image, however, I want to point out to you that you violated my copyright in using that image without my permission to do so. Enclosed is a copy of the image as used in your publication.(enclose a copy of the piece)
As a publisher, I am sure you are aware of copyright law as stated by Federal Law. (Insert Copyright Law information here - which I did not have handy or I would do that).
I am certain that you do not want this to escalate into a legal issue which would, without any doubt, incur addtional costs including legal fees and punitive damages, to you above my cost for that image.
It seems clear the answer is to send them an invoice.
What isn't clear is for how much. The concept that since they stole an image of yours enables them to claim exclusive copyrights to it is downright ludicrous.
Seems to me the real answer of is
A (what you would have charged for an exclusive right to the photo had they negotiated upfront)
+
B (civil damages for being a thief).
= invoice.
I would do some research and get an idea for the damages actually awarded by courts for this type of infringement, then offer a settlement based on that. You don't necessarily have to spell that out for them, but at least you have a verified starting point. If courts are just slapping folks on the hand, they may call your bluff. On the other hand, if a magazine was fined $100,000 last year for a similar infraction, they may write you a check for $?,000 in a heartbeat.
Just my free legal advice from a non-lawyer. Curious to see how this one pans out!
I have been reading this for a few days, and I guess I am forced to post again.
First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".
Basically there are two approaches you can take here.
1. Assume they are bad nasty people who have deliberately violated your copy rights. Go in with guns blazing. Threaten them, pounf your chest, and demand a ridiculous amount of money to be paid yesterday while bowing, and scraping.
2. Make no assumptions: Go in explaining the copyright violation, and that you would like to resolve this issue.
Likely results: In the first scenario I doubt you will get any response at all, and you have limited yourself to an adversarial resolution process. You are not going to intimidate a magazine with threats of sicking a lawyer on them. Estimate 95% to 99% you will need to get an attorney.
In the second scenario while no one can predict what the results will be, you have not voiced any assumptions with regard to intentional copyright, or mistaken copyright violations, and left the door open for an honest open resolution process. Now that said, if they are in fact nasty bad people, etc. You have not eliminated the option of hiring an attorney you have just position that option as number 2.
The second option provides an opportunity for a fast, amiable, and fair resolution. The first limits you to combat.
I have been reading this for a few days, and I guess I am forced to post again.
First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".
Sam: agree with your recommendation. However, I am no lawyer, but I disagree with your assertion that copyright infringement is not theft. Now I am not capable of teasing apart the meaning of theft but I take it to mean it is not covered by criminal court. In fact, until the passage of the NET law, copyright was only a civil court matter. Since 1997, however, copyright violation is indeed a CRIMINAL act in the US, and can result in jail time:
"The United States No Electronic Theft Act (NET Act), a federal law passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%.
Prior to the enactment of the NET Act in 1997, copyright infringement for a noncommercial purpose was apparently not punishable by criminal prosecution, although noncommercial infringers could be sued in a civil action by the copyright holder to recover damages."
I have been reading this for a few days, and I guess I am forced to post again.
First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".
I disagree. A copyright is intellectual property, which is property. Appropriating or deriving income from the unauthorized use of anothers property is, well, theft.
That being said, it is often not considered theft due to the fact that, ebing intellectual property, it isn't necessarily a unique tangible object. The fact that these dudes used his photo doesn't mean that, for instance, he can't continue to use the photo as well' unlike the fact that whoever is currently using my old iPod has deprived me of its use in a more classic case of theft. It may be less egregious theft, perhaps, but it's still theft. US copyright law conforms with most provisions of the Berne convention, which holds that "copyrights for creative works are automatically in force at creation, without being asserted or declared." He created the work, and even went so far as, by offering usufruct (Excellent, I have always wanted to use that word in a sentence legitimately!) of the copyrighted material for a fee through the smugmug website from which it was obtained, asserted ownership of the copyright to the work and its status as being copyrighted. I think he is in a good position here.
That being said, your point about going in all combative is correct. There is no need to ratchet up to that level at this point. I think it is important to allow the magazine the opportunity to resolve the issue amicably. But if they refuse, Foosion definitely has grounds for legal action- provided he is willing to go through the giant pain in the ass that action will inevitably be.
Also, I am hoping that Foosions use of "dear copyright violater" is a joke. I think his letter will be taken more seriously if it is presented in a non hostile and detached, professional manner. Think Abe Vigoda in the Godfather here. It's just business.
That said, I think you're right that there's no need to go in fighting. An invoice, a letter explaining the purpose of the invoice is all that is necessary to start with. If they don't respond with a check, then it's time to ratchet it up a notch. But I would not assume malice on their part from the start.
Just curious - how did they get a copy large enough to publish? Do you have the right-click protection enabled? If so, do you allow extra large previews of your photos or even the original size and maybe they took a screenshot to snag your photo?
Just curious. If you've got right-click protection turned on and not so large previews, then that worries me a little
I will stand on my statement that a copyright violation is not theft until proven other wise.
Seriously if I am wrong, I will NOT eat worms.
I'll think of some harsh penance.
Send me a list of proposed penance, and prove to me that the courts have ruled copyright infringement is theft, and I will perform on the penance, and photograph the act.
Sounds like moral values vs. the courts. I don't doubt Sam is probably correct on this.
This doesn't change the fact though that if someone takes my images. It's copyrite infringement and I'll say they stole from me regardless of what the court says.
I will stand on my statement that a copyright violation is not theft until proven other wise.
Seriously if I am wrong, I will NOT eat worms.
I'll think of some harsh penance.
Send me a list of proposed penance, and prove to me that the courts have ruled copyright infringement is theft, and I will perform on the penance, and photograph the act.
Sam
Sam, I used the word "usufruct." therefore it is theft. the awesome power of that word is undeniable. My proposed penance- you announce publicly that California isn't as cool as New York.
If the use of usufruct wasn't enough, here is some US case law:
1884 Burrow-Giles Lithographic Co. vs. Sarony- Extended copyright protection to photography
Not so good for my argument:
1985 Dowling vs. The United States; The supreme court finds that copies of copyrighted material cannot be considered stolen property when
courts consider the transportation of such material across state lines.
the NET act criminalizes what was previously only actionable in civil cases. That means that electronic pilfering has moved from infringement, to actual theft. Sam was right, before 1997, but alas, it is now 2008.
BTW, foosion, you might want to value your work at slightly above $2,500 and include an actual copy of the NET act, which includes this chilling codocil:
"Any person who commits an offense under subsection (a) of this section section 506(a)(1) of title 17--
1. shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, with a which have a total retail value of more than $2,500;
2. shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
3. shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case. "
ASMP - American Society of Media Photograpers is a great organization that stands up for the rights of photographers and provides legal assistance. They've helped me out several times. If you really want to recover damages for copyright infringement, your photos have to be registered with the copyright office. That is much easier now with on-line registration. Hope this helps.
Sounds like moral values vs. the courts. I don't doubt Sam is probably correct on this.
This doesn't change the fact though that if someone takes my images. It's copyrite infringement and I'll say they stole from me regardless of what the court says.
Agreed!
To me if someone takes something from me without my permission, then it has been stolen from me and is theft. Period. What the courts call it is just semantics IMHO... I do agree with Sam that leaving the lawyers as the second option is probably for the best. It won't put them immediatley on the defensive.
Sam, I used the word "usufruct." therefore it is theft. the awesome power of that word is undeniable. My proposed penance- you announce publicly that California isn't as cool as New York.
I see no corrilation bewteen the meaning of "usufruct", and theft.
But thanks for the edgication! Who know that was a word? I didn't.
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
Registration establishes a public record of the copyright claim.
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on “Intellectual Property Rights.”
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.
Sorry Tina, I think you are wrong on that, you do not have to register at all, your copyright is assured as soon as you produce the work.
Of course your copyright is assured as soon as you press the shutter. What is not assured is that a lawyer will take your case if that right is infringed. If you read the tutorial, you'll find out that lawyers will not accept copyright infringement cases and courts will refuse to hear the case unless the photos have been registered with the copyright office. That is true in the USA but not other countries. If you are a photographer based in the USA, it is a no-brainer to register all of your work routinely.
right-click protection is not enabled on my gallery and the largest size is XL.
As far as if they are evil and doing it intentionally or not, the part that bugs me is how they were sure to crop out the watermark just right... it's hard to argue that they didn't knowingly do something wrong at that point.
I've been surfing around sites looking for more information on actual fines imposed in similar cases..not much luck finding anything concrete but I saw this on one site:
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in additionto attorneys' fees and any damages for the infringement.
It's from photoattorney.com, lots of interesting blog posts.
I've been surfing around sites looking for more information on actual fines imposed in similar cases..not much luck finding anything concrete but I saw this on one site:
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in additionto attorneys' fees and any damages for the infringement.
It's from photoattorney.com, lots of interesting blog posts.
Dear Copyright Violator
Yes, that part was intended to be tongue in cheek. The letter I wrote was where I might have started, however, I would have done the research to find the actual publishers names and written the letter to him. I was just giving a starting place to actually writing the letter.
BTW - if you were a member of PPA, you would have access to an attorney to write this letter and deal with the violator (Thief to some)for you included in your membership.
In a wild coincidence, I was in a bookstore in Toronto two nights ago and saw this photo in the magazine. My GF was looking at some magazines nearby, I was loitering, and had an RC buggy about eighteen years ago. Small world...
I have no direct experience with this sort of case, but my business of photography instructor uses the technique of sending an invoice. For the full amount of the maximum fine for copyright infringement. Per use. If nothing else, it will make for an interesting response.
IIRC, John Harrington's blog had a write-up of a case where the judge's final damages award was based on the amount that the photographer had placed in the initial "You may already be an infringer" invoice. Personally, I'd be sending them a bill for $20,000. That's what out of court settlements are for, right?
f00sion, I really don't understand why you are confused or not sure what to do. If this happened to me the first action by me would be to get a lawyer who understands these matters. I read through this post rather quickly but can't recall if someone posted their own personal experiance relating to this and how it turned out. That being said their situation would still differ from yours and again I say only a lawyer who has real experiance can help you. Maybe you are conflicted about taking recourse at all and maybe you just don't want the confrontation. That's a personal choice you have to make. My choice would be to get a lawyer as I said. If the lawyer asked me what I want out of it I would say justice of course, whatever the legal recourse is. I don't know if its theft but the lawyer will. I feel like it is, I mean someone took something of yours without out asking is now profiting from it. I think the world and all of the readers of this magazine should know how they go about their business but then you might be getting into legal trouble there if you start going around saying stuff about this magazine. The fact is they did it. The fact is it was wrong. The fact is they should atone for that somehow. I wish you well and hope this turns out well for you but let's not forget about the next photographer they do this to. You might be doing justice for the rest of us by getting a lawyer and exposing them in a legal way. Like I said though it's a personal choice. Shay.
I would like to suggest that the magazine is not necessarily the one at fault. They may have received the photo from a third party who claimed to be the owner of the photograph, and how would the magazine know otherwise? Now if you send an invoice claiming to be the rightful owner of the photograph, how will they respond?
As already suggested by others, I would suggest getting the services of a lawyer who is experienced with this subject to get some advice on your possible courses of action.
Comments
As for the magazine, its a huge international publication, not just here in the US if I remember correctly. Have been in the RC world for a bit and tat particular mag has been around for a very long time. I also believe that it is just one of many magazines that the publishers puts out each month. THey for sure know what copyright is and would go after you tooth and nail if the roles were reversed.
Good luck with it!!!
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I don't think so and don't see how you've reached that conclusion.
* I think you mean copyrighted
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
Yep, copyrighted material...sorry spent way too much time today correcting the horrendous grammar and spelling of a client, it rubbed off.
Anyway, my conclusion comes from the simply stated item No. 2 in the list you posted:
That statement is asking for the offended to identify images/work on a SmugMug site that is infringing. Why is that? Probably because legally the only servers that anyone at SmugMug has content control over are the ones they own.
This is simple basic Copyright 101 here. SmugMug can and will remove items from a client site on THEIR servers that is found to contain copyrighted material that is not properly credited or illegally used.
I used to do a very similar job for the newspaper I worked for so I do have a bit of experience on this one. My few minutes of usefullness for the day.
DeNic Photography | Portfolio | Group Blog
Canon 50D | 50 1.8 | 17-50 2.8 | 70-200 4L
This would be a mistake. If you send them a strongly worded letter, you are essentially counting on their decency to get them to compensate you. Clearly, they aren't those types of folks, or they wouldn't have stolen the image in the first place. Let us not forget here that the salient issue is theft of intellectual property. It is in fact real property- they may as well have stolen your stereo. Or my car, which costs significantly les than $2500.
Also consider the bureaucratic response to such a letter. How do they respond? Do they offer to pay you? How much? Who, within the organization, do they go to in order to authorize such a thing (a person to whom they will have to admit their theft and exposure of the company to litigation.)
Sending an invoice has a high probability of success. It easily flows into an established procedure they have for paying suppliers. It establishes a firm basis for you, if they do not respond, to begin your legal action (if no invoice is sent they wil very likely hoist you on your own petard and offer $400 in small claims court, or something like that). The probability of you getting paid without resort to lawyers is highest if this course of action is followed. There is also a bit of an intimidation factor here. If they get an invoice and a legally worded notice, they will likely realize they have stolen from someone who A) makes a living off their photography,
Don't get heavy or pissed off in the letter that accompanies the invoice. Stay cool, colleced and brief. Just the facts ma'am.
If they don't pony up the cash. Nail them to them to the wall with a dull and rusty railroad spike.
I am not a lawyer, but this is my take on this:
When you are deciding how much to invoice them for you should keep in mind that your $400 digital download price grants them a non-exclusive license to the image, and according to an earlier post you made their standard terms state that published images become their property, meaning that you have lost your rights to make additional income from the image. From your earlier post it seems like you get this, but several of the other posters seem to be glazing over this fact. If you sent them a fairly generic invoice, that could be interpreted as accepting their standard terms in exchange for whatever you invoice them for (say $400 + 100% penalty for failure to obtain rights prior to publication.) If on the other had the invoice clearly states "Non-Exclusive license to publish Image-XXX in one issue of Magazine YYY" and they pay you what you invoice them for this should be interpreted as their acceptance of the terms in the invoice.
One option I would consider if I was in your shoes would be to send two invoices with the letter, one for $400 + 100% penalty for failure to obtain rights prior to publication with the above verbiage about non-exclusivity and one issue, and one for $2500 + 100 % penalty for failure to obtain rights prior to publication with verbiage stating their rights are as described in the magazine submission policy.
Dear Copyright Violater:
Enclosed is my invoice for the Image in the amount of "Cars at the Races" used in your magazine. I am honored that you chose my image, however, I want to point out to you that you violated my copyright in using that image without my permission to do so. Enclosed is a copy of the image as used in your publication.(enclose a copy of the piece)
As a publisher, I am sure you are aware of copyright law as stated by Federal Law. (Insert Copyright Law information here - which I did not have handy or I would do that).
I am certain that you do not want this to escalate into a legal issue which would, without any doubt, incur addtional costs including legal fees and punitive damages, to you above my cost for that image.
Sincerely,
Wronged Photographer and Image Owner
Flash Frozen Photography, Inc.
http://flashfrozenphotography.com
What isn't clear is for how much. The concept that since they stole an image of yours enables them to claim exclusive copyrights to it is downright ludicrous.
Seems to me the real answer of is
A (what you would have charged for an exclusive right to the photo had they negotiated upfront)
+
B (civil damages for being a thief).
= invoice.
I would do some research and get an idea for the damages actually awarded by courts for this type of infringement, then offer a settlement based on that. You don't necessarily have to spell that out for them, but at least you have a verified starting point. If courts are just slapping folks on the hand, they may call your bluff. On the other hand, if a magazine was fined $100,000 last year for a similar infraction, they may write you a check for $?,000 in a heartbeat.
Just my free legal advice from a non-lawyer. Curious to see how this one pans out!
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First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".
Basically there are two approaches you can take here.
1. Assume they are bad nasty people who have deliberately violated your copy rights. Go in with guns blazing. Threaten them, pounf your chest, and demand a ridiculous amount of money to be paid yesterday while bowing, and scraping.
2. Make no assumptions: Go in explaining the copyright violation, and that you would like to resolve this issue.
Likely results: In the first scenario I doubt you will get any response at all, and you have limited yourself to an adversarial resolution process. You are not going to intimidate a magazine with threats of sicking a lawyer on them. Estimate 95% to 99% you will need to get an attorney.
In the second scenario while no one can predict what the results will be, you have not voiced any assumptions with regard to intentional copyright, or mistaken copyright violations, and left the door open for an honest open resolution process. Now that said, if they are in fact nasty bad people, etc. You have not eliminated the option of hiring an attorney you have just position that option as number 2.
The second option provides an opportunity for a fast, amiable, and fair resolution. The first limits you to combat.
It's your choice.
Sam
Sam: agree with your recommendation. However, I am no lawyer, but I disagree with your assertion that copyright infringement is not theft. Now I am not capable of teasing apart the meaning of theft but I take it to mean it is not covered by criminal court. In fact, until the passage of the NET law, copyright was only a civil court matter. Since 1997, however, copyright violation is indeed a CRIMINAL act in the US, and can result in jail time:
"The United States No Electronic Theft Act (NET Act), a federal law passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%.
Prior to the enactment of the NET Act in 1997, copyright infringement for a noncommercial purpose was apparently not punishable by criminal prosecution, although noncommercial infringers could be sued in a civil action by the copyright holder to recover damages."
source: Wikipedia
I disagree. A copyright is intellectual property, which is property. Appropriating or deriving income from the unauthorized use of anothers property is, well, theft.
That being said, it is often not considered theft due to the fact that, ebing intellectual property, it isn't necessarily a unique tangible object. The fact that these dudes used his photo doesn't mean that, for instance, he can't continue to use the photo as well' unlike the fact that whoever is currently using my old iPod has deprived me of its use in a more classic case of theft. It may be less egregious theft, perhaps, but it's still theft. US copyright law conforms with most provisions of the Berne convention, which holds that "copyrights for creative works are automatically in force at creation, without being asserted or declared." He created the work, and even went so far as, by offering usufruct (Excellent, I have always wanted to use that word in a sentence legitimately!) of the copyrighted material for a fee through the smugmug website from which it was obtained, asserted ownership of the copyright to the work and its status as being copyrighted. I think he is in a good position here.
That being said, your point about going in all combative is correct. There is no need to ratchet up to that level at this point. I think it is important to allow the magazine the opportunity to resolve the issue amicably. But if they refuse, Foosion definitely has grounds for legal action- provided he is willing to go through the giant pain in the ass that action will inevitably be.
Also, I am hoping that Foosions use of "dear copyright violater" is a joke. I think his letter will be taken more seriously if it is presented in a non hostile and detached, professional manner. Think Abe Vigoda in the Godfather here. It's just business.
That said, I think you're right that there's no need to go in fighting. An invoice, a letter explaining the purpose of the invoice is all that is necessary to start with. If they don't respond with a check, then it's time to ratchet it up a notch. But I would not assume malice on their part from the start.
Dgrin FAQ | Me | Workshops
Just curious. If you've got right-click protection turned on and not so large previews, then that worries me a little
Seriously if I am wrong, I will NOT eat worms.
I'll think of some harsh penance.
Send me a list of proposed penance, and prove to me that the courts have ruled copyright infringement is theft, and I will perform on the penance, and photograph the act.
Sam
This doesn't change the fact though that if someone takes my images. It's copyrite infringement and I'll say they stole from me regardless of what the court says.
Sam, I used the word "usufruct." therefore it is theft. the awesome power of that word is undeniable. My proposed penance- you announce publicly that California isn't as cool as New York.
If the use of usufruct wasn't enough, here is some US case law:
1884 Burrow-Giles Lithographic Co. vs. Sarony- Extended copyright protection to photography
Not so good for my argument:
1985 Dowling vs. The United States; The supreme court finds that copies of copyrighted material cannot be considered stolen property when
courts consider the transportation of such material across state lines.
"Ouch" Looks like a solid blow by Sam!
But then, it's the KO!
1997, the NET (no electronic theft) Act (see http://www.usdoj.gov/criminal/cybercrime/17-18red.htm)
the NET act criminalizes what was previously only actionable in civil cases. That means that electronic pilfering has moved from infringement, to actual theft. Sam was right, before 1997, but alas, it is now 2008.
BTW, foosion, you might want to value your work at slightly above $2,500 and include an actual copy of the NET act, which includes this chilling codocil:
"Any person who commits an offense under subsection (a) of this section section 506(a)(1) of title 17--
1. shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, with a which have a total retail value of more than $2,500;
2. shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
3. shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case. "
http://www.asmp.org/commerce/legal/copyright/index.php
The section on what to do if your rights are infringed is here:
http://www.asmp.org/commerce/legal/copyright/protect.php
ASMP - American Society of Media Photograpers is a great organization that stands up for the rights of photographers and provides legal assistance. They've helped me out several times. If you really want to recover damages for copyright infringement, your photos have to be registered with the copyright office. That is much easier now with on-line registration. Hope this helps.
Tina Manley
ASMP, EP, NPPA
www.tinamanley.com
www.tinamanley.com
Agreed!
To me if someone takes something from me without my permission, then it has been stolen from me and is theft. Period. What the courts call it is just semantics IMHO... I do agree with Sam that leaving the lawyers as the second option is probably for the best. It won't put them immediatley on the defensive.
I see no corrilation bewteen the meaning of "usufruct", and theft.
But thanks for the edgication! Who know that was a word? I didn't.
Lerned somptin new.
Sam
Sorry Tina, I think you are wrong on that, you do not have to register at all, your copyright is assured as soon as you produce the work.
From US Copyright Office: http://www.copyright.gov/circs/circ1.html#cr
Copyright Registration
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
- Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on “Intellectual Property Rights.”
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.www.tinamanley.com
As far as if they are evil and doing it intentionally or not, the part that bugs me is how they were sure to crop out the watermark just right... it's hard to argue that they didn't knowingly do something wrong at that point.
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement.
It's from photoattorney.com, lots of interesting blog posts.
You have a lot of good info here - keep us all in the loop so we can learn from your actual issue and hope we never have to duplicate you efforts.
Michael
Yes, that part was intended to be tongue in cheek. The letter I wrote was where I might have started, however, I would have done the research to find the actual publishers names and written the letter to him. I was just giving a starting place to actually writing the letter.
BTW - if you were a member of PPA, you would have access to an attorney to write this letter and deal with the violator (Thief to some)for you included in your membership.
Flash Frozen Photography, Inc.
http://flashfrozenphotography.com
At the risk of stating the obvious I'd like to say that this has become one highly useful thread. Ton's of very useful info!
A round of applause for all involved!!
I have no direct experience with this sort of case, but my business of photography instructor uses the technique of sending an invoice. For the full amount of the maximum fine for copyright infringement. Per use. If nothing else, it will make for an interesting response.
IIRC, John Harrington's blog had a write-up of a case where the judge's final damages award was based on the amount that the photographer had placed in the initial "You may already be an infringer" invoice. Personally, I'd be sending them a bill for $20,000. That's what out of court settlements are for, right?
As already suggested by others, I would suggest getting the services of a lawyer who is experienced with this subject to get some advice on your possible courses of action.
Good luck with your situation.
Mike