Copyright violation

[sparkin]

I recently discovered that a photograph I took in about 1995 has been used without my permission in a textbook. The author of the textbook is a former colleague, but I have had no contact with him for years. I severed all ties with this person in 2002, after I found out he had stolen some of my scientific data. This photograph is a separate matter, and I believe I have the negative somewhere.

Question: Is there anything I can do about this ?

EDIT (19th April): I found the original, and it's a slide not a negative. It is date stamped 'Feb 97'.

[CW Jones]

Try and contact him first?? No contract and it was used without your permission while you have received no compensation. Seems like a pretty solid case. I am no lawyer tho...

[Tarzanman]

Don't bother contacting the person. Contact the textbook publisher. Your argument is with them. Prove to them that you own the photo, get paid and let the publisher recoup their funds from your former colleague.

[sapearl]

Ditto + . If you go straight to the old colleague first I think that will only raise your blood pressure and make matters worse.

Convince the publisher you are the copyright owner - prove to them you have the negative (hopefully) - and they should sort things out. You may have to resort to an attorney if you want to go that route..... but hold off for a while before escalating the issue. Try to get as much accompished with the least amount of ammunition. You can always roll out the big guns later if need be.

Don't bother contacting the person. Contact the textbook publisher. Your argument is with them. Prove to them that you own the photo, get paid and let the publisher recoup their funds from your former colleague.

[TTk]

Don't bother contacting the person. Contact the textbook publisher. Your argument is with them. Prove to them that you own the photo, get paid and let the publisher recoup their funds from your former colleague.



+1..:D

[sparkin]

Thanks guys - and so quick to help as well - what a great resource POTN is.

Contacting my former colleague would not have been an option. So far as I am concerned he does not exist anymore.

I'll root around for the negative - I'm sure I have it somewhere, and then contact the publisher.

[sapearl]

Understood - I can't tell you how much POTN helped me in making the transition from analog to digital :D..... it's the least we can do to return the favor.;)

And certainly no point in reopenning old wounds. The publisher should handle things in a calm and business like manner, and hopefully you can gain a reasonable licensing, or "use" fee from your original work.

Btw - very interesting panorama's of that Kentucky ice storm. You're a man after my own heart:

http://pearlphoto.blogspot.com/2010/01/alien-ice-cleveland-deep-freeze.html

Thanks guys - and so quick to help as well - what a great resource POTN is.

Contacting my former colleague would not have been an option. So far as I am concerned he does not exist anymore.

I'll root around for the negative - I'm sure I have it somewhere, and then contact the publisher.

[jacuff]

In addition to copyright infringement you're also dealing with academic dishonestly, right? You can contact the publisher of the book and notify them of the infringement of your copyright. Given that most people writing textbooks are active faculty at a university/college, you may also want to notify the Department Head or Dean of the college he teaches at.

However, another thing to consider is do you actually own the copyright to the photo? Was the photo taken as part of some funded research? If so, the copyright may actually lie with the agency that provided the grant money (or the university may claim ownership) and not with yourself.

[sparkin]

Hi Justin!

In addition to copyright infringement you're also dealing with academic dishonestly, right? You can contact the publisher of the book and notify them of the infringement of your copyright. Given that most people writing textbooks are active faculty at a university/college, you may also want to notify the Department Head or Dean of the college he teaches at.

However, another thing to consider is do you actually own the copyright to the photo? Was the photo taken as part of some funded research? If so, the copyright may actually lie with the agency that provided the grant money (or the university may claim ownership) and not with yourself.

The academic dishonesty (theft of data) was dealt with to my satisfaction years ago, and I don't consider it a factor in this, other than it establishes that he's a dishonest charlatan! He's not active faculty anywhere now (and never was, it was not a university). In any event, he was squeezed out of the place where we worked a few years ago, and now runs a small company. This was not externally funded work, and it was taken with my own camera, but you make a good point.

[photoguy6405]

Interesting. Step 1: Find the slide/negative... but you've already mentioned that. Good luck.

[sue.t]

Can you not also request the publisher to demonstrate the photo is NOT yours?
What was given to them for the print run? A digital copy, a print, a negative?
Was the publisher just the printer, or did they also format/typeset/desktop publish the book?

Possibly approach the publisher with more of a query and a concern about the image. In your text, indicate that you appreciate their diligence for ensuring proper credit is provided to professionals. Then seek their advice/guidance about clarification of copyright on that image, and ask if they can assist you by providing proof that the image was used appropriately.

If they respond with due concern, then you're well on your way to resolving the issue. If they brush you off, then escalate your 'concern'.

[sapearl]

I forgot to ask Sean - how long ago was the book published?

[sparkin]

I forgot to ask Sean - how long ago was the book published?

Thanks again to everyone for the advice. The book was just published, in 2010.

[amfoto1]

How did he get hold of the image to use it? Was it published somewhere else, previously?

[IndyJeff]

The big question here is was the image registered with the copyright office? If it was you are in pretty good shape otherwise, pursuing it for payment will probably be a lost cause. Chances are the publisher is not going to be willing to just write you a check unless you can prove ownership and have documentation of copyright registry. Knowing the consequences of copyright violation of a registered image will motivate the publisher to cut a check a little quicker rather than face legal costs, stautory & punitive damages as well as your attorney fees.

[jacuff]

The big question here is was the image registered with the copyright office? If it was you are in pretty good shape otherwise, pursuing it for payment will probably be a lost cause. Chances are the publisher is not going to be willing to just write you a check unless you can prove ownership and have documentation of copyright registry. Knowing the consequences of copyright violation of a registered image will motivate the publisher to cut a check a little quicker rather than face legal costs, stautory & punitive damages as well as your attorney fees.

Since the book was published in 2010... there is a chance he might still be in the 90 day registration window.

[rushhour]

Sparkin, you certainly have grounds to ask for payment or other recourse for wrongful use of your photo. It's well established that you DO NOT need to register a work with the Copyright Office for you to retain copyright on it.

From the official website (http://www.copyright.gov/help/faq/faq-general.html#mywork):

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

Also from the same website (http://www.copyright.gov/help/faq/faq-fairuse.html):

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph.

Take a read through the site, you'll find it very useful.

[photoguy6405]

Disclaimer: I am not a lawyer, nor do I play one on television.

It is my lay understand that you do not need a file with the copyright office to sue, but it does make it easier to seek redress, if necessary. It is also my understanding that you increase the potential settlement by filing.

So, on to my Devil's Advocate question...

If someone steals your digital work and files it with the copyright office before you do, do they then own it?

[theextremist04]

From my minimal experience I would say no unless you were under contract for them.

[T2000]

"It is my lay understand that you do not need a file with the copyright office to sue,"

That isn't right. You need to register your copyright to sue.

It's in Section 411(a) of the Copyright Act:

http://www.copyright.gov/title17/92chap4.html#411

The issue a few courts disagree on is whether (1) you have to have received an actual registration certificate or a rejection at the time you start your suit or (2) merely having made the application with the copyright office is sufficient. The bulk take the first view.

If you need a certificate quicker (it can take months) they have an expedited process but they charge you more money. :p

[T2000]

"If someone steals your digital work and files it with the copyright office before you do, do they then own it?"

Registration doesn't create copyright ownership. The author of a work owns the copyright the moment the work is fixed in a tangible form. It's that "fixing" act that creates ownership not filing a registration.

And while the filing of a registration within a certain time frame will create a legal presumption that the whomever filed the registration is the owner, that presumption can be overcome.

As for filing a false registration statement, check out "criminal offenses" section 506(e).

http://www.copyright.gov/title17/92chap5.html#506

[photoguy6405]

That isn't right. You need to register your copyright to sue.
I stand corrected. I mis-interpreted previous information. Sorry about that.

So, now this begs the question... If you are "protected", but cannot sue... how meaningful is said "protection"?

[IndyJeff]

Let me clear a little something up here. Yes you can sue if the image isn't registered but, you probably won't be able to find an attorney willing to take the case as IP lawsuits in general run about $40-$50,000. If the image isn't registered you can ONLY COLLECT ACTUAL DAMAGES. Which in general would leave you thousands of dollars short of the cost of the lawsuit. If you contact someone and the image isn't registered and they ask to see a copy of the certificate, which you can't produce, they will likely just laugh at you and tell you to go pound sand.

{edit} According to new laws indeed you must first register an image before filing an infringment lawsuit. Under the prior stautes you could still file but only collect actual damages. Congress has acted to insure that only those who register can now file and it must be done within certain parameters. Glad I did some checking up after I originally posted my response.{end edit}

Yes as someone said earlier the image is copyrighted and you own it at the moment of creation, unless it is a work for hire at which point the person paying is the owner. The unregistered copyright however is of very little value since you have almost no recourse for infringments.

Some legal websites even say you can't file a lawuit unless the image is registered but, I think this is more because of the cost vs benefit.

[T2000]

"Yes you can sue if the image isn't registered"

Nope.
Out of curiosity, did you find my first post unclear or did you think it incorrect?

"If the image isn't registered you can ONLY COLLECT ACTUAL DAMAGES."

That isn't incorrect as well.

What would be correct is that if you register prior to the infringement or, in the case of published work, prior to the infringement or within 90 days of first publication you can request statutory damages and recovery of attorney fees.

If you register but don't meet those time frames you can only recover actual damages. Actual damages, as you point out, may make a lawsuit not feasible.

[T2000]

"That isn't incorrect as well"

Nice English. It should have said "That is incorrect as well.":p

[T2000]

"If you are "protected", but cannot sue... how meaningful is said "protection"?"

You have all the rights of a copyright owner.

Flip it around. If I don't have the copyright until I register, how can I enter into license agreements with my customers. Well you couldn't. But you have all your section 106 rights as a copyright owner. And even if you choose not to pursue infringers by using a lawsuit you could take other action. For example, you could pursue web infringement by utilizing a DMCA take-down notice.

[IndyJeff]

"Yes you can sue if the image isn't registered"

Nope.
Out of curiosity, did you find my first post unclear or did you think it incorrect?

"If the image isn't registered you can ONLY COLLECT ACTUAL DAMAGES."


Until last year you could file a suit without registering the image however, as I stated in my {edit} post. Before the change in the law it was still possible to file but only collect actual damages. Congress made it easier for complaintants by easing the burden of proof of ownership by requiring registration. I think somewhere in the back of my mind I knew about the changes because after I originally posted I did some searching and found the changes in the code and then posted the edit for correction.
So, out of curiosity did you not read the edit added or just think it incorrect? LOL

[Luminodio]

Don't bother contacting the person. Contact the textbook publisher. Your argument is with them. Prove to them that you own the photo, get paid and let the publisher recoup their funds from your former colleague.
This.

Don't get that unoriginal heel the benefit of a head's up; let his publisher send him the bill.

[IndyJeff]

LOL T2000 I guess we both agree on the fact that you should register your work.

[Mike R]

LOL T2000 I guess we both agree on the fact that you should register your work.

Just when I was about to suggest that you two take your disagreement outside to the playground. :lol:

[sparkin]

How did he get hold of the image to use it? Was it published somewhere else, previously?

Probably scanned it years ago (along with a bazillion other things no doubt) while we still worked in the same place. A couple of my lab. notebooks from about the same time period are also missing.

I have not found the negative or original slide yet, but I have been using this picture in conference and workshop presentations (a half dozen or so times) since 2001. There's a chance I first used it in 1997, but I haven't found the box of slides I used back then to check. I doubt that this would constitute 'prior publication', but it clearly establishes that I was using my image a decade ago.

[sparkin]

I just found the original slide, and it is date stamped "Feb 97M01", but I'm not sure what the "M01" bit means. It also occurred to me that my former colleague or his publisher may have registered my photograph - I wonder what happens in that case? Either way, I guess I should register it myself along with all related images before I write to the publisher.

[RDKirk]

I just found the original slide, and it is date stamped "Feb 97M01", but I'm not sure what the "M01" bit means. It also occurred to me that my former colleague or his publisher may have registered my photograph - I wonder what happens in that case? Either way, I guess I should register it myself along with all related images before I write to the publisher.

You don't need the actual original. In this digital age, "original" doesn't mean much--even a raw file can have multiple exact duplicates in many hands.

Register what you've got right now. Go to copyright.gov and learn how to register the image online for $35.

The issue a few courts disagree on is whether (1) you have to have received an actual registration certificate or a rejection at the time you start your suit or (2) merely having made the application with the copyright office is sufficient. The bulk take the first view.

That's not what my reading indicates--it might be months to a year after you've submitted before you get the registration certificate. I know of several successful litigations made before the photographer received the certificate, and never heard of one denied for that reason.

[sparkin]

You don't need the actual original. In this digital age, "original" doesn't mean much--even a raw file can have multiple exact duplicates in many hands.

Understood, but that's not the case for a slide. The physical bit of film in the cardboard slide mount was actually in the camera when I took the picture. There is no "physical" duplicate, there are only scanned copies. Surely the fact that I can establish a provenance carries a good deal of weight, right ?

[RDKirk]

Understood, but that's not the case for a slide. The physical bit of film in the cardboard slide mount was actually in the camera when I took the picture. There is no "physical" duplicate, there are only scanned copies. Surely the fact that I can establish a provenance carries a good deal of weight, right ?

Only if the other guy has already registered for copyright and it becomes disputed.

[sfaust]

{edit} According to new laws indeed you must first register an image before filing an infringment lawsuit. Under the prior stautes you could still file but only collect actual damages. Congress has acted to insure that only those who register can now file and it must be done within certain parameters. Glad I did some checking up after I originally posted my response.{end edit}

Until last year you could file a suit without registering the image however, as I stated in my {edit} post. Before the change in the law it was still possible to file but only collect actual damages. Congress made it easier for complaintants by easing the burden of proof of ownership by requiring registration. I think somewhere in the back of my mind I knew about the changes because after I originally posted I did some searching and found the changes in the code and then posted the edit for correction.
So, out of curiosity did you not read the edit added or just think it incorrect? LOL

Can you refer us to the new statues you are referring to? From everything I understand, Federal courts would not accept a copyright lawsuit until the image was registered. It wasn't up to the attorneys, but was a requirement by the federal court system prior to filing a copyright lawsuit. This isn't anything new from what I understand.

With that said, it didn't matter to the court if you registered just before you filed suit regardless of the creation or infringement date, only that it was registered before they would take the filing of the lawsuit. The delta between the infringement and registration dates come into play in the settlement as pointed out, which is different than the requirement for registration to file the lawsuit.

There could be some confusion thought because you don't need any sort of registration to file a civil lawsuit such as small claims, in state courts, etc. The above only refers to the federal courts which handle copyright infringements.

If you have references to a statute that states differently, I'm very interested in seeing as I've seen nothing about this to date.

[RDKirk]

Can you refer us to the new statues you are referring to? From everything I understand, Federal courts would not accept a copyright lawsuit until the image was registered. It wasn't up to the attorneys, but was a requirement by the federal court system prior to filing a copyright lawsuit. This isn't anything new from what I understand.

It is also my understanding that this is a longstanding situation.

With that said, it didn't matter to the court if you registered just before you filed suit regardless of the creation or infringement date, only that it was registered before they would take the filing of the lawsuit. The delta between the infringement and registration dates come into play in the settlement as pointed out, which is different than the requirement for registration to file the lawsuit.

My understanding as well.

There could be some confusion thought because you don't need any sort of registration to file a civil lawsuit such as small claims, in state courts, etc. The above only refers to the federal courts which handle copyright infringements.

To emphasize, if it's a copyright infringement case, a small claims court will not hear it. Copyright infringements are wholly and exclusively in federal jurisdiction. A small claims court will hear a license violation case, which is a contract dispute.

[sparkin]

Well I've just filled out all the registration forms, paid the reg. fee etc., and uploaded the image in question and all similar or related images I've taken. Time to pen a letter to the publisher now. I'm guessing that typed on letterhead via snail mail is better than an e-mail for this.

[IndyJeff]

sfaust I spoke with the attorney with whom I have had contact with and used in the past. I misunderstood what he had told me. You are correct that there is no new statue which only allows suit if registered. I haven't been involved in any copyright issues for a few years and I guess when you start getting old the mind remembers things a little differently than what they really are.
My apologies for any misunderstandings I may have instigated with my incorrect information.

Thanks for seting me straight on this tho.

[sfaust]

Not a problem at all. I do try to follow copyright issues, and just hadn't heard anything new, which doesn't mean things haven't changed and I just wasn't aware. If I was going to recite the same info, I at least want to verify its correct before doing so. Thanks for taking the time to check and re-post.

[T2000]

"I know of several successful litigations made before the photographer received the certificate,"

Capt RDKirk, If you don't have a certificate, you'd have to demonstrate by other means that the registration has been made. That registration has been made is most often evidenced by producing the certificate.

For those courts taking this majority view, a mere application for registration won't cut it.





============
Don't rely on me. Please go ask your lawyer.

[T2000]

Kirk, you will find this an interesting read:

http://www.gonzagaip.org/blog/?p=149

[RDKirk]

"I know of several successful litigations made before the photographer received the certificate,"

Capt RDKirk, If you don't have a certificate, you'd have to demonstrate by other means that the registration has been made. That registration has been made is most often evidenced by producing the certificate.

For those courts taking this majority view, a mere application for registration won't cut it.

I have talked to a lawyer about this. All you need is evidence that you have filed an application and that it has been received. It can take well over a year before you get the actual certificate. You do NOT have to wait until you get the actual certificate before you file suit.

http://photography-on-the.net/forum/newreply.php?do=newreply&p=10026414
How can I know when my submission for registration is received by the Copyright Office?

If you apply for copyright registration online, you will receive an email stating that your application has been received. Otherwise, the Copyright Office does not provide a confirmation of receipt. Currently, if you use a commercial carrier (such as Federal Express, Airborne Express, DHL Worldwide Express, or United Parcel Service), that company may be able to provide an acknowledgment of receipt by the Copyright Office. Due to the mail disruption, an acknowledgment of receipt for mail sent via the U.S. Postal Service, e.g., certified, registered and overnight delivery, may take several weeks or longer to receive. Claims to copyright may also be hand-delivered to the Copyright Office. See About the Office for hours and location.

Please note that our mail service is severely disrupted. (Read more details).

How long does the registration process take, and when will I receive my certificate?
The time the Copyright Office requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current processing times are:

Processing Time for e-Filing: Most online filers should receive a certificate within nine months. Many will receive their certificates earlier.

Processing Time for Form CO and Paper Forms: Most of those who file on these forms should receive a certificate within 22 months of submission. Many will receive their certificates earlier.

Note: Whatever time is needed to issue a certificate, the effective date of registration is the day the Copyright Office receives a complete submission in acceptable form. You do not need to wait for a certificate to proceed with publication.

[RDKirk]

Kirk, you will find this an interesting read:

http://www.gonzagaip.org/blog/?p=149

There is absolutely nothing in that post to imply that a majority of districts lean one way or the other. The lawyer I spoke to--an extremely experienced lawyer who does nothing but IP law--says: Register and file suit.

[sparkin]

Capt RDKirk, If you don't have a certificate, you'd have to demonstrate by other means that the registration has been made. That registration has been made is most often evidenced by producing the certificate.

The US Copyright Office e-mails you right back with a confirmation of the application and a receipt that they've taken your money.

[T2000]

Kirk, your statements are at odds. If your attorney is correct then the article is flat out wrong. But you object not that the article is wrong but incomplete for your purposes ? (doesn't mention which is the majority rule. There is no majority/minority rule as far as you're concerned, remember ?)

In any event, the courts split despite what your attorney told you.

Also your quotes from the Copyright Office are irrelevant to the issue.

And this statement "Register and file suit." leads me to think you may not understand the issue. Filing the application for registration does not equal "register". That's the point. The Copyright Office has to either register your claim or reject it.

[RDKirk]

In any event, the courts split despite what your attorney told you.

My lawyer tells me to register and sue, so I register and file suit.

Possibility One: My lawyer shows the registration receipt to their lawyer and they settle out of court, so I win.

Possibility Two: I get the certificate before the case comes to court, so I win.

Possibility Three: I go to court with only the receipt, but this is one of the districts that accepts the receipt as evidence, so I win.

Possibility Four: We don't win the hearing in that district, but file an appeal--by which time I will certainly have the certificate--so I win.

Registering and suing, sooner or later I win. What does your lawyer tell you? Does he tell you not to register? Or does he tell you not to sue? How are you going to win either way?

What does your lawyer tell you?

The Copyright Office has to either register your claim or reject it.

You didn't read it closely. A rejection is as good in court to prove infringement as an acceptance (presuming they have neither certificate or receipt themselves).

[sfaust]

It's even more simple that that....

. If you register, eventually you'll have your day in court.

. If you don't register, the court wont even take your case.

Regardless of which way the court is split, that only happens after registration. So yea, register then file suit is the only alternative I see.

[IndyJeff]

Seems you can still sue in small claims court if someone steals your image and refuses payment


http://www.nytimes.com/2010/04/23/us/23sfmetro.html

[RDKirk]

Seems you can still sue in small claims court if someone steals your image and refuses payment


http://www.nytimes.com/2010/04/23/us/23sfmetro.html

Current TV did not pay. Mr. Light, an outspoken advocate for fair compensation for journalists, sued in small-claims court, accusing Current TV of unfair business practices. His argument: his future business prospects were hurt because the photograph was not attributed to him. In February he won the small-claims case and was awarded $500, plus court costs of $88.

The charge was not copyright violation, but "unfair business practices." I suspect Mr Light had not registered his copyright. In federal copyright court, he would have been eligible for thousands of dollars in statutory damages...but he would have to registered it first.

[IndyJeff]

The charge was not copyright violation, but "unfair business practices." I suspect Mr Light had not registered his copyright. In federal copyright court, he would have been eligible for thousands of dollars in statutory damages...but he would have to registered it first.

Oh yeah he would have had em by the short hairs and could have hit a big payday. Whether he would have won or not, who knows.

[RDKirk]

Oh yeah he would have had em by the short hairs and could have hit a big payday. Whether he would have won or not, who knows.

If it even went to court. Likely, they'd have settled for a tidy sum.

[sparkin]

The US Copyright Office was a lot speedier with my registration request than I expected. I just received the registration document today. In the meantime, I had contacted the publisher, who claimed that the picture could be "used freely". After a bit of back and forth, this publisher suggested I contact the lab. where I worked at the time. In fact I had already been in contact with the people who run the image repository at that lab. They did not have a copy of my picture in their archives, and why would they - it was not taken there, nor was it taken for use there. The General Counsel of the lab. seemed to be under the impression that the lab. may possibly be able to claim ownership of the image, but he wasn't completely sure because it was taken so long ago. Either way, the GC did state categorically that the image could not be "used freely" as had been claimed by the book publisher. I take this to mean that the publisher should have sought permission, and the fact that they didn't means that they did infringe on the copyright, irrespective of actual copyright ownership. When I informed the publisher of this fact they did not respond. Perhaps it is time to consult a lawyer. Has anybody been in a situation remotely like this before ?

[Luminodio]

The US Copyright Office was a lot speedier with my registration request than I expected. I just received the registration document today. In the meantime, I had contacted the publisher, who claimed that the picture could be "used freely". After a bit of back and forth, this publisher suggested I contact the lab. where I worked at the time. In fact I had already been in contact with the people who run the image repository at that lab. They did not have a copy of my picture in their archives, and why would they - it was not taken there, nor was it taken for use there. The General Counsel of the lab. seemed to be under the impression that the lab. may possibly be able to claim ownership of the image, but he wasn't completely sure because it was taken so long ago. Either way, the GC did state categorically that the image could not be "used freely" as had been claimed by the book publisher. I take this to mean that the publisher should have sought permission, and the fact that they didn't means that they did infringe on the copyright, irrespective of actual copyright ownership. When I informed the publisher of this fact they did not respond. Perhaps it is time to consult a lawyer. Has anybody been in a situation remotely like this before ?
Document all of this and get a consultation from a reputable lawyer.

Let us know how it pans out.