Advice on copyright infringement

J

JudeIscariot

Senior Member
If this was an important image/one I was paid for, I would handle this on my own or with a lawyer friend because it'd be worth the time and effort. However, this is an old photo that I don't really care about and while I'm not too interested in the fact that it's being used on a bunch of LARPing sites on the web, I'm pretty pissed off that it is being used on this page:

LARP Shirts & Clothing : ToBeAPirate.com (top left one of people fighting in the rain)

Should I send them a take-down notice? Is it worth the hassle? Should I take it beyond that if they don't comply?

The only reason I care is because they are using it to help advertise their business, and that doesn't sit well with me.

(Background: It was available on flickr from 2009-2011 where it was marked as COPYRIGHTED, ALL RIGHTS RESERVED)
 
wev

wev

Senior Member
Contributor
Yes, yes, or just send them an invoice for several thousand. Sue them when they don't pay and buy a new lens or two.
 
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480sparky

Senior Member
Send 'em a DMCA take-down notice first.

Problem is, if you never registered the image with the USCO, that's about all you can do.
 
wev

wev

Senior Member
Contributor
480sparky said:
Send 'em a DMCA take-down notice first.

Problem is, if you never registered the image with the USCO, that's about all you can do.
Click to expand...

Actually, no. Registration is valid if done any time prior to suing. In the US, even that is not necessary; his incontestable copyright was vested in the image the moment he clicked the shutter.
 
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480sparky

Senior Member
wev said:
Actually, no. Registration is valid if done any time prior to suing. In the US, even that is not necessary; his incontestable copyright was vested in the image the moment he clicked the shutter.
Click to expand...

Legal action can only be taken in federal court. There is no local, city, county or state copyright laws. And to sue in federal court, you must have the image registered.

As for "incontestable" copyright, how do you do that without prior registration with the USCO?
 
D

Dave_W

The Dude
480sparky said:
Legal action can only be taken in federal court. There is no local, city, county or state copyright laws. And to sue in federal court, you must have the image registered.

As for "incontestable" copyright, how do you do that without prior registration with the USCO?
Click to expand...

The law in the US states that the moment you create something, you own the copyright whether or not you register it. Simply proving you created it is all you need.
 
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480sparky

Senior Member
Dave_W said:
The law in the US states that the moment you create something, you own the copyright whether or not you register it. Simply proving you created it is all you need.
Click to expand...

You'd never be able to hire a lawyer with that alone.

In order to sue for copyright infringment, you MUST have the image registered. This is part of the law, it's written right into it. Just saying you have the original won't cut it.

Section 411, if you want to look it up.
 
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D

Dave_W

The Dude
480sparky said:
You'd never be able to hire a lawyer with that alone.

In order to sue for copyright infringment, you MUST have the image registered. This is part of the law, it's written right into it. Just saying you have the original won't cut it.
Click to expand...
I'm sorry Sparky, that simply is not true. You own the copyright just as much as if you registered it with every known agency. Look it up, it's a fact.
 
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480sparky

Senior Member
Dave_W said:
The bottom line is this - you OWN the copyright the minute you make the photo....period
Click to expand...

I'm not disagreeing with you on that.


But perhaps you can explain why I'm misunderstaing this:

(a) Except for an action brought for a violation of the rights of the author un-
der section 106(a), and subject to the provisions of subsection (b), no civil action
for infringement of the copyright in any United States work shall be instituted
until preregistration or registration of the copyright claim has been made in ac-
cordance with this title.
Click to expand...

Again, you MUST register your images in order to pursue legal action in federal court.
 
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D

Dave_W

The Dude
Q: Who owns the copyright in a photograph once it is taken?
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
 
D

Dave_W

The Dude
Q: If I don’t register my copyright, do I still own the copyright to my photos?
Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.
 
BackdoorArts

BackdoorArts

Senior Member
My question is, are you simply annoyed that they did this and want them to deal with it, or are you just looking for a bit of recognition? If it's the former, the take down notice and a threat of legal action is the way to go. If it's the latter, start a dialogue, ask why it was that they felt they didn't need to contact you, and ask for a "Photo By" credit with a link to any professional page in return, along with a Pirate shirt of your choice for your troubles. If your taste in shots runs parallel with their taste in advertising perhaps this is an opportunity for both of you? Don't shove a lawsuit threat into a gift horse's mouth, or something like that.
 
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480sparky

Senior Member
One









last










Time














a) Except for an action brought for a violation of the rights of the author un-
der section 106(a), and subject to the provisions of subsection (b), no civil action
for infringement of the copyright in any United States work shall be instituted
until preregistration or registration of the copyright claim has been made in ac-
cordance with this title.
​
Click to expand...



Pretty cut and dried if you ask me.

With this, I'm done here.


.
​
 
D

Dave_W

The Dude
When Should I Register My Photo’s Copyright?

You should register your photo’s copyright once you intend to sue for copyright infringement. Every country that adheres to the Berne convention has an office that keeps track of copyrights for legal purposes. Most of them require you to send the photo electronically, pay a few fees, and fill out a form.
I wouldn’t advise doing this until your attorney has decided it’s a good idea to sue for copyright infringement. It can be pretty easy to get angry about fair use and go overboard. Make sure you’re going to make money from the lawsuit before you start paying filing fees. Consult an attorney if you aren’t certain.

 
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