One of my photos was appropriated (maybe)

[akfreak]

The main consideration should be: Have you suffered any loss to make it worthwhile and is any settlement likely to be large enough to cover a lawyer's fees?


Steve.

As stated before, copyright infringment is a federal matter, if you have a case an IP lawyer will take it in a second (if you have paperwork in hand). The lawyer fees mean nothing,you never pay any, they lawyer takes the case if you have been infringed, if not they dont. So it's like going to a casino and playing with thier money.

Here is the catch your images must be registered, again Must! If not you may as well go thow your money in a toilet because a lawyer will never ever take the case. The reason why is the judge will send you packing as soon as you present your case. A IP lawyer would never go to court unless your images are registerted (at the CO).

Simple stuff guys.

[Chuck Kimmerle]

Here is the catch your images must be registered, again Must!

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

[Ronan87]

12 pages... most over the weekend... seriously guys?...

[BrianShaw]

You see it with your own eyes. What are you doubting?

[cyrus]

I have not read anything from a court decision that implies that registration confers new rights.

Oh it most certainly does! That's why people register their work! However you have to register with a certain time period from date of "publication" (as the term is legally defined) to obtain these benefits:

1- If you register your copyright within 5 years of publication, you become the presumed owner of the work - no need to prove that you created it.

2- If you register your copyright within 3 months of publishing, or before an infringement occurs, are entitled to statutory damages and attorney's fees in an infringement lawsuit. You dont need to prove actual damages.

Statutory damages can be between $750 to $30,000 for each instance of the infringement, as determined by the judge, even if there were no actual damages. If the copyright owner proves that infringement was willful, the court may award statutory damages of up to $150,000 per infringement.

Needless to say, a cease-and-desist letter will be much more scary if you have these things on your side.

And yes, you do have to register your copyright to sue for infringment, or at lease show that you tried to register but were denied by the Copyright Office. You can of course register right before you file the lawsuit, so don't assume that if you haven't registered you work yet then you can never sue for infringement, however if you wait too long from the date of publication before you register, you lose the advantages outlined above. These advantages are not available to those who file for a registration after an act of infringement has occurred.

None of this constitutes legal advice, if you need legal advice consult a duly qualified attorney, yada yada yada...

[akfreak]

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

OK you can go to court and sue anyone for anything. Yes this is true, right or wrong you can sue and take someone to court.
'
Now, since the copyright is under the constitution it is a federal matter, and also if you do not have your work registered (submited to the Copy Right Office, Fees paid to the Treasuery Dept. and the paperwork filed and archived at the library of congress). The moment you step into court the judge is going to ask to see the registration paperwork for claim, if you cannot produce it the judge will order you gone.

Your copyrigt begins at moment of creation, however without registration it isnt worth a bucket of spit. You have no recourse, as a matter of fact you cant even file a case in federal court without registration.

In a nutshell without registration anyones work may be clearly violated but the cost would be so great to persue the case it just isnt worth it unless you have deep pockets.

However is you do register your work you have, basiclly a coat of armor. Read,google, ask a IP lawyer that knows Google Ed Greenberk go to his blog, this is all the man does. He is my lawyer and IMO the very best at it. Dont take my word for anything Ask Ed!!!!!

[cyrus]

Not true. Registration does make image ownership easier to prove, but it is by no means mandatory for taking a copyright claim to court.

Yes, registration is mandatory if you want to sue. That doesn't mean that you can't register it right before your file your lawsuit, of course. However you can't sue for infringement until/unless the work has been registered, or you can show that you attempted to register but were denied. If you do file suit without registration, your case will be dismissed.

The important thing here to note: You can register your copyright at any time: minutes, days, years after you create a work. If you register EARLY, AND BEFORE someone infringes, you get additional benefits when/if it comes time to sue (benefits such as a presumption of validity and attorney's fees.)

[goamules]

Easy: go to his exhibition. Carefully position yourself in front of the painting, and take a picture of it.

Seriously, if this is a spot that is publicly accessible, it's sour grapes. How many paintings have been done by sitting at the same overlook that a photographer has used? How many paintings have been done of someone looking at another painting? Can someone walk into a gallery, gaze at Whistler's Mother for an hour, then go outside and paint a replica from memory? It just seems very difficult to inforce.

It also seems like since the painting is a different media from the photograph, it's fairly "removed" from a copy right. Sort of like someone whittling a wooden replica of a really cool new car design parked in front of their building.

This is a landscape right? I skipped the last few pages, did you ever post the two here so we can see how bad it is? I'm not saying it wasn't a cheap, lazy shot, but the world is FULL of those people. Why do you think the labels and packaging of every product at the grocery store are similar? Every box of Slamburger Helper will look just like the box of real Hamburger Helper beside it.

I would just call the guy and briefly tell him what you feel he's done, and ask him not to again. He'll of course move on to something in the open collective commons or something.

[rdenney]

It also seems like since the painting is a different media from the photograph, it's fairly "removed" from a copy right.

It seems to me that photographers are on the forefront of demanding that photography is a bona fide art on equal footing with painting, but then when the question of copyright comes up, we lose faith in our own assertions.

Assuming the guy painted his painting while looking at the photograph, which is, of course, merely an unproved assumption, then he copied it, fair and square. It is no less a copy than if I photograph his painting.

One could photograph a small portion of his painting for a study on his brush technique, or to show in a critical review of his work. Or, one could post the small snapshot in a way that is not usable or marketable as part of that review. Or, one can make low-resolution copies to pass out to the students in the art class that one teaches. Those are examples of fair use.

If a painter makes a painting of another painting, then it is a copy. Try it, and then see if the original painter has a complaint. Of course, all paintings made before 1923 are in the public domain in the U.S., and can be copied without hindrance.

Doing an abstract expression of the original is an example of a transformative work, which are not considered copies in that they do not compete with the original nor do they undermine its value in the market.

But let's turn this around. Let's say that Richard has a gallery show, and by happenstance, another corner of the same gallery is showing the painter's copy. It could easily be assumed that Richard was the one copying the painter's work, and could still possibly cost him a sale. Other potential buyers might think, "I'm not buying a photograph from a guy who copies the ideas of painters." This reaction would fit with the general stereotype of photography as a lesser art than painting, a stereotype all art photographers strive to overcome. It would confuse the market, which is one of the principles when deciding whether a copy is transformative. If the painting really is transformative, nobody will be confused. The outcome is that Richard has lost control of his work, and to prevent that confusion, he might well not be able to show that work in that venue.

Now let's say that Richard made a photograph of the painting, but hides the fact that it is a copy by running it through the "watercolor" filter in Photoshop. Nobody would argue that this is a copy. Photography, with the indexical connection between the camera and the subject, makes it clear what is and is not being copied. Painting doesn't have that clarity, which is why there are those principles built into the law, including the likelihood of market confusion, etc.

But now let's remove the indexical link that would make a photograph of the painting an obvious copy. What if someone painted a still life or some other subject entirely set up by the artist. Now, the photographer sees the painting, and then sets up the exact same scene for his camera. Is that a copy? It's a different medium, so is it automatically transformative in the way a painted copy of a photograph is automatically transformative (as implied by the quoted statement)? Again, let's put both works in the same gallery and see if the painter has a complaint.

In every case, the art works themselves have to tell the tale. I have not seen the works Richard is discussing, so I have no opinion. But having painted copies of photographs, and having painted copies of other paintings (for private educational study in both cases), I cannot escape the conclusion that painting and photography are not so far removed that a painting cannot be a copy of a photograph by mere virtue of being a painting.

Now, let's say that the artist had put the following statement with the painting about which Richard is concerned: "This painting was inspired by the remarkable photograph of this subject by Richard Wasserman, whose work can be found here, and with whose permission I made this work." Or, maybe he titles the work "An Homage to Richard Wasserman." I'm betting that Richard would have granted that permission, because the artist's statement or title would promote Richard's sales rather than potentially undermining them. To those of you who think Richard should be flattered: This is how flattery is done when it is intended to be flattery.

If it turns out that the guy just happened to paint the same subject as Richard, then there is no infringement, either legally or morally. If the paintings appeared in the same gallery, the gallery owner might put a statement next to each saying so, to prevent confusiong. Without that fact being established, however, the gallery owner has nothing (factual) to say if the question comes up. One writes letters and asserts rights precisely to extract those facts.

Rick "pointing out possibilities" Denney

[Marko]

I have not seen the works Richard is discussing, so I have no opinion.

I agree with most all you said. But I do have an opinion, based solely on Richard's opening description:

The composition is identical as well as the aspect ratio. The painting depicts the scene at a different time of day, and he added part of a tree where in reality none could be. My image is black and white, his is in color.

My opinion, in the absence of direct visual comparison, is that the composition and aspect ratio (which is really a part of composition) alone do not constitute infringement, especially when it comes to landscapes and other independently existing and arranged subjects.

The painter could have as easily and concievably:

1. Created his painting independently, looking at the same scenery on the spot
2. Created his painting by looking at Richard's photograph
3. Created his painting by looking at someone else's photograph
4. Created his painting by looking at someone else's painting

But even if he did use Richard's photograph as either a model or inspiration, there are sufficient differences introduced by changing time of day, adding elements (a tree) and introducing color, all in a different medium, for it to be a truly transformative work. Or at the very least to enable making a solid argument in favor of it, as Richard admitted himself later in the thread.

Without that fact being established, however, the gallery owner has nothing (factual) to say if the question comes up. One writes letters and asserts rights precisely to extract those facts.

Aside from being poor form, accusations of theft are also very poor method of extracting facts, especially when they are NOT based on facts themselves.

I asked this question above but got no answer: if a good argument can indeed be made that the painting in question is transformative, where is the copyright abuse and what is the purpose of the letter?