My photos submitted for evidence in a trial without consent or subpoena

I'll try to keep this concise.

A friend is in a legal battle with her insurance company. She was injured in a car accident. The insurance company is fighting to not pay her medical bills.

She's a performer in a stage troupe, for which I have taken photos and posted on my website.

The insurance company's lawyer swiped photos of my friend off my website, and is using those photos against her medical claims, insisting that if she's still performing, she could not possibly have ever been injured.

The photos are not registered with the copyright office, though obviously they are still my intellectual property.

The trial was supposed to be this week, but has been postponed until October. I plan to register everything as soon as I can.

Questions:
1- Does the lawyer have the right to use my photos as evidence without my knowledge?
2- Should the lawyer have gotten a subpoena to copy and display them?
3- Can I forbid the lawyer to reproduce my images without a usage license or a subpoena?
4- Can I send the lawyer a bill for usage?
5- If I register the photos now, before the trial, and the lawyer still attempts to use them without a subpoena, can I bill for damages as well as usage?


Any statutes or case law would be appreciated. My friend's lawyer is not well versed in IP, though I think she has someone on staff who is.

[edit] I found this from Carolyn Wright, which may indicate that a subpoena/warrant is needed. However, I was not compelled to provide the images; they were on display on my website, and have already been copied without knowledge or permission.
http://www.photoattorn​ey.com …your-photos-are-evidence/

Real legal issues require real lawyers. Go straight to a real IP attorney in your area. You don't want to make mistakes or compromise your case by talking about legal issues here with amateurs.

While I agree with sspellman, I think that this is an interesting discussion.

I would not think that use as evidence would be a copyright infringing use. They did not need to compel you to provide the photos, you freely placed them on your website.

The discussion on Carolyn Wright's blog is about a case where an agency requested/compelled photographers to provide copies of photos for their use. I don't think it is as applicable here as you would like.

I would be interested in anyone who had actual evidence on this topic.

Not sure what you hope to gain; the cat is already out of the bag. Do you think if you object on grounds of infringement they won't just turn around and subpoena the images they've already seen, and possibly much, much more?

BTW, this is very common practice among insurance companies. They all have investigative departments that mine information on social media and other sites they claimant might frequent as part of their profession or known interests. Although I'm not involved in the investigation or litigation itself, my position allows me to see requests for investigations to access websites that are otherwise prohibited by our company.

nathancarter wrote in post #16884545
I'll try to keep this concise.

A friend is in a legal battle with her insurance company. She was injured in a car accident. The insurance company is fighting to not pay her medical bills.

She's a performer in a stage troupe, for which I have taken photos and posted on my website.

The insurance company's lawyer swiped photos of my friend off my website, and is using those photos against her medical claims, insisting that if she's still performing, she could not possibly have ever been injured.

The photos are not registered with the copyright office, though obviously they are still my intellectual property.

The trial was supposed to be this week, but has been postponed until October. I plan to register everything as soon as I can.

Questions:
1- Does the lawyer have the right to use my photos as evidence without my knowledge?
2- Should the lawyer have gotten a subpoena to copy and display them?
3- Can I forbid the lawyer to reproduce my images without a usage license or a subpoena?
4- Can I send the lawyer a bill for usage?
5- If I register the photos now, before the trial, and the lawyer still attempts to use them without a subpoena, can I bill for damages as well as usage?


Any statutes or case law would be appreciated. My friend's lawyer is not well versed in IP, though I think she has someone on staff who is.

[edit] I found this from Carolyn Wright, which may indicate that a subpoena/warrant is needed. However, I was not compelled to provide the images; they were on display on my website, and have already been copied without knowledge or permission.
http://www.photoattorn​ey.com …your-photos-are-evidence/

IANAL - but I'll give my free opinion (you get what you pay for).

The insurance company can use your images IN COURT without telling you or compensating you.

Registering the images now will make no difference to you, your friend, the courts or the insurance company.

WHAT YOUR FRIEND'S ATTORNEY CAN DO is subpoena you to provide the ORIGINAL, unaltered images to extract EXIF data and perhaps conduct a deposition prior to litigation.

Regards,
GEWB

gewb wrote in post #16884825
IANAL - but I'll give my free opinion (you get what you pay for).

The insurance company can use your images IN COURT without telling you or compensating you.

Registering the images now will make no difference to you, your friend, the courts or the insurance company.

WHAT YOUR FRIEND'S ATTORNEY CAN DO is subpoena you to provide the ORIGINAL, unaltered images to extract EXIF data and perhaps conduct a deposition prior to litigation.

Regards,
GEWB

Yes I agree with this: I would let them use it and not do anything. All the attorney has to do is file a request to get all of your info and the court can make you provide it if they rule in their favor.

Do you really want to get involved in this?
It's more than you having to provide exif and info:

Do you want to have to sit there and testify while they ask you questions? B/c if you took the pics you were there as a witness: "Did you photograph betty performing in this event?" "Did she appear injured?" "So she really didnt have any problems performing compared to prior performances then did she?" "She didnt take any breaks or require any assistance?"

Even if you try to be a-hole and ban them from using your images they know darn well you took them, do you want them to subpoena you and ask you about the pictures you took and the circumstances surrounding them?

Do you want that?

I bet not!

abbypanda wrote in post #16884899
.....Do you really want to get involved in this? .....

You have nothing to gain by speaking up.... Keep your head down, and hope no one calls you.

Interesting situation. Without the EXIF data, the photographs would be useless as evidence and the images would need to be unaltered (ie Photoshopped). The original date stamp would be required to tell exactly when the photo was taken. Any modifications (ie converting from RAW to Jpeg) could render the photo invalid.

seres wrote in post #16884923
You have nothing to gain by speaking up.... Keep your head down, and hope no one calls you.

I get your point but I think in this case it's best OP does "keep his head down". I get that as photographers we want "rights" and don't want to be "infringed upon". However I don't know many photographers who seek their living suing lawyers using their photos as evidence.

As several users have said: the courts can compel him to provide the photos.

In addition to (what it sounds) photographing his friend who claimed to be injured and putting it on a website (which he admits here)… he subsequently went on a forum and asked about the legality of it and more or less "how can I stop them from using these pics against my friend". Sounds really sketchy.

It's probably better they don't call him in and actually question him about watching her and her group perform. IF (NOTE IF) his friend really was performing after said accident it's probably better they don't call on him b/c I don't see how his testimony will help her in any shape or fashion. Even if she is injured the attorney will make it sound like she wasn't simply by being there performing. For the sake of his friendship I'd simply not get involved.

As far as needing EXIF and no photoshopping… again depends. What is the nature of the event and what do the photos show? If there are other documents (newspaper, ads) promoting the event his pictures are merely icing on the cake, depending on what they contain in the background and identifying marks. Legal situations are complicated and not always straight forward and this is why I recommended (again b/c a friend is involved) simply "staying out". I'm not sure she'll be really happy with him if he gets on the stand and has to answer truthfully when they ask him loaded questions about her performances and make her look like a liar/ cheat. My answer might be slightly different if this wasn't a "friend", but who knows really.

nathancarter wrote in post #16884545
I'll try to keep this concise.

A friend is in a legal battle with her insurance company. She was injured in a car accident. The insurance company is fighting to not pay her medical bills.

She's a performer in a stage troupe, for which I have taken photos and posted on my website.

The insurance company's lawyer swiped photos of my friend off my website, and is using those photos against her medical claims, insisting that if she's still performing, she could not possibly have ever been injured.

The photos are not registered with the copyright office, though obviously they are still my intellectual property.

The trial was supposed to be this week, but has been postponed until October. I plan to register everything as soon as I can.

Questions:
1- Does the lawyer have the right to use my photos as evidence without my knowledge?
2- Should the lawyer have gotten a subpoena to copy and display them?
3- Can I forbid the lawyer to reproduce my images without a usage license or a subpoena?
4- Can I send the lawyer a bill for usage?
5- If I register the photos now, before the trial, and the lawyer still attempts to use them without a subpoena, can I bill for damages as well as usage?


Any statutes or case law would be appreciated. My friend's lawyer is not well versed in IP, though I think she has someone on staff who is.

[edit] I found this from Carolyn Wright, which may indicate that a subpoena/warrant is needed. However, I was not compelled to provide the images; they were on display on my website, and have already been copied without knowledge or permission.
http://www.photoattorn​ey.com …your-photos-are-evidence/

You need to consult an attorney about this immediately. Your friend's case may depend on it!

IMHO stay away from this unless you wish to be drawn into it is as potentially-hostile "expert" witness.

Note that a hostile (involuntary) expert witness is one of the most-potent types of witness. Unlike a paid expert or one who volunteers their expertise without compensation a hostile expert has been drawn into the case over their own objection, but is still compelled to testify. If this is someone you know and (presumably) like you could quite-possibly wind up screwing her case -- hard -- by getting involved in it.

You almost-certainly do not have a copyright claim you can assert. Copyrighted material can generally be used in court as evidence without permission or compensation to the rights-holder. Whether you can carve up an exception is a question for an attorney in your (or the trial's, if different) jurisdiction but my off-the-cuff guess is "no" and if you raise your head up here and make a stink, right or wrong, you're just begging to get subpoenaed and probably will.

You cannot (generally) be compelled to produce evidence absent a subpoena, warrant or other legal process. But in this case the "evidence" was publicly displayed; you were not compelled to produce anything. You are in this instance trying to suppress evidence and that's a much, much tougher fight.

I would stay out of this and hope the insurance company does not subpoena you as should they do so your testimony is likely to be adverse to your friend's interests. If you DO get subpoenaed there is really nothing you can legally do in terms of evading providing testimony.

IANAL and before getting involved in any way in this fight I'd definitely consult with one.

Thanks for all the thoughts. For what it's worth, I'm already involved far more than I want to be, as a witness unrelated to the photos. At this point, "keeping my head down" isn't an option. I will be testifying, as truthfully as I can.

tickerguy, any statutes, case law, or precedent that you can cite?

A reasonable person would agree with you: The evidence is publicly displayed, and attempting to suppress it can come to no good. But I'm finding out that what's reasonable isn't always the same as what happens in court.

abbypanda wrote in post #16884961
As far as needing EXIF and no photoshopping… again depends. What is the nature of the event and what do the photos show? If there are other documents (newspaper, ads) promoting the event his pictures are merely icing on the cake, depending on what they contain in the background and identifying marks. Legal situations are complicated and not always straight forward and this is why I recommended (again b/c a friend is involved) simply "staying out". I'm not sure she'll be really happy with him if he gets on the stand and has to answer truthfully when they ask him loaded questions about her performances and make her look like a liar/ cheat. My answer might be slightly different if this wasn't a "friend", but who knows really.

The show is a dance and variety show - singing, dancing, comedy.

My friend has never claimed to be bedridden or unable to walk, and continued to perform only after being cleared to do limited/reduced choreography by her doctors/surgeons. Additionally, the director/choreographer is testifying as to having to change the shows and the choreography to accommodate her needs & abilities. Though there's truthfully nothing to hide, if one were to "cherry-pick" some of the photos and use them out of context, they could certainly be used to cast her in a bad light.

nathancarter wrote in post #16885800
Though there's truthfully nothing to hide, if one were to "cherry-pick" some of the photos and use them out of context, they could certainly be used to cast her in a bad light.

Geez I HATE insurance companies and their lawyers. I've had to fight them before on behalf of my wife.... good luck to you and your friend.

If your goal is trying to stop the lawyers from entering the photos into evidence, then you are out of luck. Evidentiary value pretty much trumps other considerations.

Fun topic. The original photo is not required.

Why? Because it is a photo of a specific event, rehearsal, or performance. (Well, I'm assuming it is...)

"Is this the Defendant in this picture?"
"Yes."
"What is this picture from?"
"Our Nutcracker performance."
"When was that held?"
"December 2-4, 2013."
"Was the defendant in those performances?"
"Yes."
"Your Honor, I would like the record to reflect that the event in this photograph occurred six months after the accident..."