Photograph Copyright Trolls and You

NOTE: NOTHING IN THIS POST IS LEGAL ADVICE. THIS IS GENERAL INFORMATION FOR THE PURPOSES OF LEGAL EDUCATION.

From time to time, someone contacts me because they got a letter from a lawyer alleging that they put someone’s photograph on their website without permission and now they must pay a settlement fee or risk being sued. (I’ve even gotten one from an associate of the notorious Richard Liebowitz, which I consider a badge of honor.) They usually come from the US but I’ve seen them from France and Germany as well.

Here’s the thing: while they can and do make mistakes (and there are a few literal con artists out there doing this) by and large they usually did see the photo on your website. Maybe you thought it was in the public domain. Maybe you hired a web designer and the web designer just Googles their photo content. (Seen it. More than once.) And you probably didn’t get a license. Doesn’t make you a bad person, but technically, you’ve probably violated copyright law and infringed their copyright.

Now, to be clear: If you didn’t do it, or they’re lying, or they’ve got the wrong person, then you deal with that differently. You should get all the evidence together you can, and then either hire an attorney (HIGHLY RECOMMENDED) or write them a calm, clear, letter explaining why they’re wrong and bidding them good day. I said Good Day, Sir!

But assuming you did do it, well, don’t ignore them, or they may go to court and get a default judgment against you and you do not want to deal with that, trust me on this one. The problem must be addressed.

Here’s where the troll part comes in: they will claim they have a registered copyright, and are therefore entitled to statutory damages and attorney’s fees, and there will usually be some extremely scary numbers in there.

Those numbers are bunk.

However, like I said, if you let them go to court and get a default judgment, that bunk will be enforced by a judge, and again, you do not want to deal with that.

So the first thing you might want to think about doing is taking the photo down, assuming it’s still up. Don’t delete it: screenshot/backup the web page it’s on, make a note of the date, and then remove it from the live/public-facing page. Hang on to the original file for right now: now it’s evidence, and you want to keep it so you can establish what exactly you did.

Then you have a couple of options.

Option one, which is MUCH PREFERRED, is to hire an attorney who has dealt with this kind of thing before. Like, say, your humble blogger. But if not me, then somebody. These people are literally part of an industry, a copyright infringement monetization industry, and they have lawyers who do this all the time (often badly, but still.) Normal people don’t do well trying to lawyer. After you hire a lawyer, listen to them and do what they say. They can often negotiate a very small settlement by making clear that you have counsel and won’t be pushed into nonsense.

Option two is to tell them you can’t/won’t pay. This rarely works. They don’t care. They will just sue you and get a default and sell it to a collections agency. And then you will be hounded. Forever.

Option three is to try to negotiate a settlement. I can’t really tell you how much to offer because the variables are infinite. However, one standard approach is to try to find a similar photo on a stock website (or better yet the photographer’s own website) find out what the license would have cost, and then offer them that plus something for their legal fees. If you’re comfortable haggling, then haggle. If you’re not, reconsider Option One.

I feel like this post has a lot less actionable information than some I have made, and for that I apologize, but like I said: the variables are infinite. So, takeaways:

  1. NEVER IGNORE THESE LETTERS.
  2. You really should think about hiring a lawyer.
  3. The numbers are bunk, offer a reasonable settlement.

As always, questions are welcome. Thanks for reading!

Marc

Commissioned Art: Copyright Threat, or Copyright Menace?

Standard Disclaimer: I am an attorney, but I am probably not your attorney. Nothing in this post is legal advice and nothing in it should be applied to the facts of any real-world dispute. Copyright law is heavily fact-dependent. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.

I am in the market for some artwork to use on the cover of a book I wrote. Being a good Internet citizen and neighbor, I have been trying to find an artist who is a member of one or more of the communities I am part of, or at least adjacent to (shut up, @boozybadger) on the Internet to provide said art, in exchange for which I propose to provide cold hard cash, or at least the digital equivalent thereof. I have done this before: for instance, the logo I use for my law firm, I commissioned from a student who makes logos to earn money for school. Cool, huh?

Legal Inspiration Logo!

However, this is not a request for quotes on artwork, this is a post about the legal questions related to commissioning artwork. Mostly, the copyright question. And it’s a doozy.

Read The Rest

“Own The Rights:” Say What Now?

“We need to own the rights.”

That phrase gets thrown around a LOT in the creative industries. And it gets misused quite a bit of the time. What does it mean to “own” rights? What is it worth? Why is it necessary?

A personal story:

I used to be a photographer. I was pretty good, too. One day a friend of mine tells me his daughter’s boyfriend is managing a model, and she needs some portfolio pics, and could I do it? I said, “Sure.” So I go and take some pictures and everybody’s happy. Then Daughter’s Boyfriend calls me and says, “Hey, I manage a new band, they needs some album and promo pics, can you help me out?

I said, “Sure. What are you looking for, and what are you looking to spend?”

He says, “Well, I figured I’d pay you $200.00 and you’d just give me the film.”

Not pointing out that I shoot digital, I politely respond, “Yes, but what rights do you need?”

“Well I figured we’d own the pics and just pay you for your time.”

Fortunately, I know my friend doesn’t actually like Daughter’s Boyfriend, so I don’t have to be nice to him

Read The Rest

But What About The Memes??? (Interview on CheckpointXP Radio)

I love doing media interviews and it’s always a blast talking to the folks at CheckpointXP Radio. I was on the show yesterday (April 2, 2019 for those of you visiting FROM THE FUTURE!) to talk about The Article Formerly Known As Article 13, namely Article 17 of the Directive on Copyright in the Digital Single Market. And while of course everybody was up for a brief legal scholarship session, we did get to the most crucial question of our day:

WHAT ABOUT THE MEMES? ARE OUR MEMES SAFE???

If this issue concerns you – and I literally can’t imagine that it doesn’t – here’s a link!

https://checkpointxp.com/2019/04/02/checkpoint-xp-daily-tuesday-april-2nd-2019-feat-march-whipple-on-article-13/

Copyright: The Alpha and Omega(verse)

UPDATE 03/15/2019: One of the parties has created a website about the litigation, which posts additional information and some court documents I didn’t have when I wrote this post. I am adding another post as this one is already quite long. See: Not Walking Away From Omegaverse.

As sometimes happens, I was wandering the wilds of Twitter and started running across references to a legal spat between two authors. In this case, two romance authors who both write in the “Omegaverse,” an “alternate universe” or AU, which is used by a large number of writers, both commercial and amateur, as a setting for romance novels of various kinds and levels of explicitness. So be warned: both the case documents (which I’ll be discussing) and the setting and subject matter of the works will produce some very not-safe-for-work results if you search for them. Here, there be monsters. Some literal, as a common element of Omegaverse fiction is werewolves and other shapeshifters.

This spat involves DMCA notices, but as of this writing (3/14/2019,) does not involve a lawsuit for copyright infringement. Instead, the copyright part is a much less common and (to laypeople) much less well-known type of copyright lawsuit called a Declaratory Judgment action. How that works is that someone accuses someone else, not in a lawsuit but just in direct or public communication, of infringing their copyright, and the accused goes to court and files a lawsuit asking the court to rule pre-emptively that their work does not infringe the accuser’s work.

In this case, an author who goes by “Addison Cain,” published by a publisher known as Blushing Books Publishing, accused an author who goes by “Zoey Ellis,” published by Quill Ink Books Limited, both of plagiarizing, and outright infringing on the copyright of, her Omegaverse-setting romance novels. Cain allegedly set some of her fans after Ellis, including inciting them to post bad reviews for Ellis’s books. She (and/or her publisher Blushing Books) also filed Digital Millennium Copyright Act takedown notices (click here for a discussion of the DMCA) against some of the books, allegedly including one which hadn’t even been published yet. As I said in the linked post above, the DMCA is not a Weapon for Great Justice, and trying to use it as one is a Stupid Legal Trick which can backfire on you if you don’t do it appropriately.

Read The Rest

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