More Copyright Infringement
Last Friday night, I found myself chatting online with some other photographers that I knew. They discovered a number of their own images being used on a web site without their consent or any licensing agreement. Some believed the photos were taken from Flickr. However, the photos didn't offer any attribution by the web site or link back to Flickr. Both of those are required by the Flickr API and Terms of Service. Instead, the web site had copied the photos and hosted them on their own servers. In some cases, the photographer's watermark was clearly visible. In others, the web site had put its own watermark on the images. As you can guess, the photographers were pissed off. Flickr's API also requires any service that collects the images to respect the owner's rights. Some people place their images in Creative Commons under attributions that may allow them to be used like this. However, our groups all seemed to have their accounts set to All Rights Reserved, meaning that they did not authorize a license for publication elsewhere.
One person found at least 17 of his images used by the site. Another had previously dealt with the site last year, only to find his images stolen once again and posted without attribution, link, license or payment. I sympathized with my fellow photographers, as I found myself in this predicament recently. Then, I found one of my own photos on the site. Rather than sympathizing, I discovered I'm a victim of copyright infringement, too.
What Can You Do?
The resolutions bounced around. Some wrote DMCA takedown notices, others spoke of sending invoices, etc. My own thoughts were a bit stronger. In some late night bluster, I decided I'm gonna sue their ass. No more Mr. Nice Guy. Why bother with a DMCA Takedown Notice with a repeat offender? It's easy to get worked up like that when you're commiserating with people in shared circumstances.
A couple of nights later, I'm thinking more clearly now. Rather than just thinking of suing them, I'm thinking of how I'm going to go about suing them. Details are important, of course. Here are some of my details:
- The image was available on my Flickr account and on this web site – both are marked with copyright notices.
- No license was given or implied that the photo was available for use elsewhere. In fact, I've taken steps to prohibit some forms of copying.
- My photo was registered with the U.S. Copyright Office and I have the certificate.
- The offender is based in the U.S., which means I don't have to deal with International law.
From what I have read of copyright infringement issues, I've taken the necessary steps to take this case before a federal court in an infringement case. Copyright law provides up to $30,000 for an infringement, plus attorney's fees. The award may go up to $150,000 if the court determines the violation was willful. One member of our group considered sending an invoice for $100 per photo. However, I've read on Carolyn E. Wright's excellent blog that such an initial offer may limit your potential for damages later if the case goes to trial, as you've effectively set the value of the infringement. There are details and nuances here that I don't understand, so I feel the need to find an experienced attorney before taking action.
Of course, there's always the possibility that you can lose in court. I've heard of two defenses the website may use, though there could be others.
- Fair Use – This is the defense my last infringer claimed, but I don't think they met the criteria for it. I expect the current infringer may make the same claim, so I need to be prepared for that possibility.
- Invalidate My Registration – They could look for technicalities, such as inaccurate information on my registration, to invalidate it and get off the hook.
Let's Get It Started
Today, I called the wife of a friend I've known since high school, as she's a local attorney. It wasn't that I planned on hiring her – she specializes in divorce an criminal law (former Deputy). Instead, I wanted to ask for references or tips on hiring an attorney. White she didn't know anyone in that field, she did offer to check on some local attorneys to see their standing with the Florida Bar.
Those of you who are NAPP members may have read the past two articles on how to select a lawyer in Photoshop User magazine. It's good information, but I wanted to know more. My friend said she would check with the Florida Bar to see if anyone locally specializing in Intellectual Property law had a good history over the last ten years. She advised dismissing anyone who had violations recorded with the bar (seems sensible), but also wanted to look at how long they've been practicing. There are some websites that rate attorneys, though I'm not sure I want to trust such a decision to a Legal version of Yelp. Most people don't know a good burger from a bad one, so they may not be qualified to help me select an attorney.
At this stage, I want someone who can advise me if the case is worth pursuing, potentially negotiate a settlement, but not be afraid to litigate if it comes to a trial. I expect I'll learn more as I investigate further. We'll see what happens from here.