One of my photos was appropriated (maybe)

[rdenney]

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?

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney

[GPS]

I think Afreak was making a different point - he was talking about the case where the artist makes a photo/painting of the pyramids, and a second artist steals the first artists' painting or photo and uses it as his own.

You're talking about a different case, where two artists make a painting/photo of the same scenery of the pyramids. In that case neither artist is infringing on the other. ...

If that were the case then his point had nothing to do with Richard's case. The painter did not steal Richard's photo to use it as his own. He made a painting that resembles Richard's photo, partially... Did he make it from the photo or from the scene? Who knows.
And no, I was talking about a painting done with a photo used as a model of the painting. As the scene is public and thousands see it and take pics of it their pictures (or paintings) are similar. Go and sue them because your picture of pyramids/Moon over sea line/Sun reflected in water etc. looks like yours...
The common sense is the first thing that must be used here. And that's also Richard's dilemma - will he use it or will ha fall victim to a vision of paragraphs used in "his" famous case?

[cyrus]

If that were the case then his point had nothing to do with Richard's case. The painter did not steal Richard's photo to use it as his own. He made a painting that resembles Richard's photo, partially... Did he make it from the photo or from the scene? Who knows.

No, I believe that Richard is under the suspicion that the fellow used his photo as a model, not that they both used the same scenery as a model. I may be wrong though but that's what I got from reading the thread thus far. Afreak's point was about that case too.

[cyrus]

No they wouldn't as the only way to infringe the copyright of a building is to produce a copy i.e. an identical (or very similar) building, not a picture of a building.


Steve.

This is true in ANY sort of copyright violation - the copy has to have some degree of similarity with the original. If the "copy" is not similar to the original then there is no infringement.
But yuo're right -- buildings are a bad example because there are specific laws applicable there that make an exception to copyrighs (There is a “photographer's exception” to a building's copyright owner's rights ) so instead lets say that we're talking about a sculpture instead: someone who paints or photographs a sculpture and sells them is indeed infringing on the rights of the scupltor.

However none of this is relevant to Richard's case because the original creator of the scene that he photographed is not the only who is crying foul. As I understand it in Richard's case, he believes third party - a painter - used one of his photos as a model for a painting.

[cyrus]

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney

If you have registered your work, you are entitled to statutory damages. That's one of the benefits of copyright registration. If you have registered your work, proving the actual amount of damages becomes irrelevant.

[Steve Smith]

I mentioned a photograph of a building not being an infringement of the architects copyright as there have been recent cases of building owners trying to stop people photographing their buildings from public places claiming that it is an infringement of the copyright of the building (which they probably don't own anyway).


Steve.

[Jay DeFehr]

Rick,

That's a fine looking tuba, and you look like you'd fit right in with Goran Bregovich, or Fanfare Ciocarlia. I agree the ebayer's use of your image is dodgy, at best, and I see how you could be offended by it, but not damaged. Is the ebayer cutting into your sales of that image by selling it himself? I don't agree with the ebayer's usage of your photo, but I don't think I'd lose any sleep over it, either. If you feel strongly enough about it to defend the principle of your copyright, you certainly have every right to do so, but if it were me, since there is really nothing more at stake than the principle, I'd let it go, and have a laugh. But then, the principle of a copyright is not very dear to me. In the interest of full disclosure, no one has ever appropriated one of my images, for any reason, as far as I know, so I can't say with absolute certainty how I'd feel about it if someone did. I agree that cropping off your copyright notice was chickenshit.

Rick, I think you're a very reasonable and thoughtful guy, and it's always a pleasure to debate and discuss with you.

[rdenney]

If you have registered your work, you are entitled to statutory damages. That's one of the benefits of copyright registration. If you have registered your work, proving the actual amount of damages becomes irrelevant.

Not the way I read the case law (though I am reading that as a non-lawyer, and I certainly have not read everything that might be relevant). My reading suggests that without registration, it is up to me to prove willful infringement to obtain statutory damages. With registration, willful infringement is assumed and it is up to the infringer to prove that the infringement was not willful.

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

To Jay: they not only copied the photo, but also a big chunk of the article I wrote that goes with it. It came to my attention because a stranger asked if I was endorsing that seller. That affects my reputation. Also, if I do nothing, I may lose the rights to the article for lack of willingness to assert them. I may write a book about tubas someday, and this material, brief though it is, would be key content. I need a record showing my claim. That principle applies to Richard, too.

The tuba is not mine, alas. I like mine just as well, but it certainly is not as pretty.

Rick "who will be able to prove willful infringement if they don't respond to the C&D demand" Denney

[Jay DeFehr]

Good luck with your case, Rick. Reputation is important, and I wouldn't be very happy to have my endorsement falsified. I hope you get satisfaction.

[akfreak]

Given that the fellow plagiarized my text as well as my pictures, and given that I have written articles for magazines and been paid to do so, the answer is plausibly yes. The article in question is on my web site and available for free, but it establishes an expertise on my part that has in the past been commercially valuable.

It's gotten me riled up again. I've just written a cease-and-desist letter to send by certified mail.

Would I pay a lawyer to sue them? The damages I could show wouldn't be enough. But we should remember that copyrights are not merely civil matters, they are also criminal matters, and in cases of willful infringement can bring statutory damages greater than actual damages, in addition to legal costs. But at each step I, like Richard, can decide whether to continue to pursue it or not. The certified cease-and-desist letter is a next step, in any case. It serves as proof that I notified eBay of the infringement. If they ignore it now like they did my online complaints, I can then claim willfil infringement if I decide to take it further. My guess is they'll (finally) remove the infringing material and tell me to pound sand on the license fee I've demanded.

Rick "not expecting much" Denney

It is NEVER a civil mater it is a federal matter and you can sue for attorys fees, It is a free roll. To sue someone for CR infringment is easy speak to a IP lawyer and see if you have a case, if you registetred the image you have him by the short hairs.
I personnaly would never myself write a cease-and-desist letter, I would let a lawyer write a letter, they have a way of getting people motovated to act. They can also act as a mediator and make deals that you could not get done. Here is a great part, Ebay has the article still online and they are using such articcles to drive business to thier site in the hope of generating revenue. Since it is thier site they are resposible for third party actions, you may have a case against Ebay as well.

I would never attempt to contact anyone directly if my image is registered. Why would you ever do that, You are intitled attorneys fees as part of damages, a lawyer wont take a case that isnt clearly infringement. So why bother to do anything. If you want to talk to my lawyer (who does this every day all day) pm me.


I have been there and done that, now I just pray a big store like lowes or ebay infringes one of my images again. Lastly, have you ever used digimark?