Congratulations to the Winners of the SearchMyImages.com Packages!

Congratulations to the Photo Attorney® blog readers who won free packages from Search My Images:

1st Place – Kalliope Amorphous

Butterfly - Copyright Kalliope Amorphous

Butterfly – Copyright Kalliope Amorphous

2nd Place – Ron Schmidt

Biscuit - Copyright Ron Schmidt

Biscuit – Copyright Ron Schmidt

3rd Place – David Oppenheimer

Trey - Copyright David Oppenheimer

Trey – Copyright David Oppenheimer

Thanks to all who participated and thanks to Search My Images for the prize packages!

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Save that Infringement Evidence Now!

San Juan Mountains Storm with Fall Color - Copyright Carolyn E. Wright

Once an infringer realizes that you have discovered the infringement, the infringer will try to get rid of its evidence. You likely will need that information later. Fortunately, you can take several steps to gather evidence of the infringement.

Check the tips at Using Internet Tools to Gather Evidence of an Infringement, Part 1, and Using Internet Tools to Gather Evidence of an Infringement – Part 2 for a list of ways to collect the evidence.

As mentioned in Part 1 of the blog posts above, the WayBack Machine at archive.org may have archived the infringer’s web page where the infringer posted your image. But if it hasn’t, you now can request that the WayBack Machine:

“Capture a web page as it appears now for use as a trusted citation in the future.”

Specifically, go to www.archive.org/web.  In the bottom right hand of the page, enter the url that you want to save in the box provided:

Save Page Now

Note that the WayBack Machine can’t grab a webpage that doesn’t allow web crawlers.

Thanks to archive.org for providing another way to gather evidence of infringements!

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Win a Free Package from SearchMyImages.com

Beaver Swimming - Copy/right Carolyn E. Wright

Want to know who is using your images online? Now there is an easy way to check.

Search My Images is an image tracking service that keeps copyright owners informed about where and how their images are being used online. Now you can stop your images from being used without permission or get credit where it is due without wasting your valuable time searching for infringements.

Knowing where your images are being used is the first step needed for copyright owners to protect their rights. Whether your photography collection consists of a few hundred images or tens of thousands, Search My Images’ software keeps you informed about where any of them have been used online.

Search My Images is offering free packages to a select number of Photo Attorney® blog readers. To win:

Register for an account using the coupon: “SEARCHMYIMAGES”

– Upload 5 of your most popular images

The photographer with the most matches of those 5 images will win:

1st prize: Premium Package for 12 months, which allows protection of 1000-3000 images

The 2 photographers with the 2nd and 3rd most matches of those 5 images will win:

2nd and 3rd prize: Professional package for 12 months which allows protection of up to 1000 images.

The contest will run for 10 days, with the winners being announced here on January 24, 2015.  (Note that the winners must be able to prove that the images belong to them.)

Good luck!

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Diary of a Copyright Infringement Lawsuit – 13 (Alternative Dispute Resolution)

African Wild Dog after Kill - Copyright Carolyn E. Wright

African Wild Dog After Kill – Copyright Carolyn E. Wright

Once you have filed a lawsuit, some federal courts will require the parties to select a method of Alternative Dispute Resolution (“ADR”) to try to settle the case without going to trial. For example, in the Central District of California (“CACD”), the Local Rule states:

Policy Re Settlement & ADR. It is the policy of the Court to encourage disposition of civil litigation by settlement when such is in the best interest of the parties. The Court favors any reasonable means to accomplish this goal. Nothing in this rule shall be construed to the contrary. The parties are urged first to discuss and to attempt to reach settlement among themselves without resort to these procedures. It is also the policy of the Court that unless an Alternative Dispute Resolution (ADR) Procedure is selected by the parties, the judge assigned to preside over the civil case (the trial judge) may participate in facilitating settlement.

L.R. 16-15

ADR usually is mandatory for each CACD case and must be completed no later than 45 days before the Final Pretrial Conference that occurs shortly before trial starts. In the CACD, the alternative ADR methods available are:

ADR PROCEDURE NO. 1 – The parties shall appear before the district judge or magistrate judge assigned to the case for such settlement proceedings as the judge may conduct or direct.
ADR PROCEDURE NO. 2 – The parties shall appear before a neutral selected from the Court’s Mediation Panel.
ADR PROCEDURE NO. 3 – The parties shall participate in a private dispute resolution proceeding.

L.R. 16-15.4

Many CACD judges will presumptively refer a case for option 2 or 3. Under General Order 11-10 §3.8 for option 2, the Panel Mediator volunteers his or her preparation time and the first three hours of the mediation session. Thereafter, if the parties choose to continue the mediation, the Mediator may charge his or her market rate. You may select a mediator by specialty, including copyright law. For option 3, the parties must make any necessary arrangements directly with a private mediator, usually paying out of pocket for all of the mediator’s time.

By comparison, the District Court for the Southern District of New York does not order the parties to mediate, but gives them the option to do so. Specifically, pursuant to Local Civil Rule 83.9 and the Mediation Program Procedures, the assigned District Judge or Magistrate Judge may determine that a case is appropriate for mediation and may order that case to mediation, with or without the consent of the parties, at any time. Alternatively, the parties may notify the assigned Judge at any time of their desire to mediate.

Each district court in the United States handles ADR differently. When you file a lawsuit, research your ADR options for possible ways to resolve your matter more quickly and usually less expensively.

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U.S. Copyright Office Releases Report on Document Recordation

Short Earred Owl in Grass-Copyright Carolyn E. Wright

The U.S. Copyright Office has released a report on recordation of copyright-related documents prepared by Professor Robert Brauneis of George Washington University Law School. While on sabbatical leave in 2013–14, Brauneis served as the Copyright Office’s first Abraham L. Kaminstein Scholar in Residence.

Each year, authors, heirs, copyright owners, and others submit thousands of documents concerning hundreds of thousands of works to the Copyright Office for public recordation. Since 2011, the Office has been taking steps to reengineer its documents recordation system, which remains a paper-driven process. Professor Brauneis researched best practices in documents recordation and oversaw a public inquiry involving solicitation of comments, followed by roundtables in California and New York.

The report Professor Brauneis submitted to the Register of Copyrights advises the Copyright Office to build an electronic recordation system to parallel its registration system, a process that has already begun. To inform development of electronic recordation, the report analyzes issues such as how to allocate responsibility for providing document cataloging information, how best to store and make available electronic documents, and how to accept and authenticate electronic signatures. The report also analyzes historical trends in document recordation, including increased use of security interests in copyrights in financial transactions.

The report is available on the Copyright Office’s website at http://copyright.gov/docs/recordation/.

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Photographer and Stock Agency Each Awarded Six Figures in Copyright Infringement Damages

Tahoe Rainbow - Copyright Carolyn E. Wright

Check the report here: http://blog.pacaoffice.org/?p=2387

Grant Heilman was awarded a total of $127,087, which included profits and actual damages.

Check the Panoramic Images v John Wiley Judgment for $403,500.00, for which 5 of the 6 images at issue were eligible for statutory damages, 4 of those infringements were found to be willful, with the jury awarding maximum damages of $150,000 for 1 of those infringements.

Congrats!

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Determining Hypothetical License Fees When You Wouldn’t Have Licensed the Use

Tallac in Clouds - Copyright Carolyn E. Wright

Many infringers argue that they don’t owe, even at minimum, a license fee for a infringing use because the copyright owner wouldn’t have licensed the use, even if asked for permission in the first place. But that’s not correct. Instead, as the Court of Appeals for the Ninth Circuit recently held in Oracle v SAP, 12-16944, U.S. Court of Appeals for the Ninth Circuit (San Francisco):

We have never required a plaintiff in a copyright infringement case to show that it would have licensed the infringed material. We decline to impose such a requirement now. A copyright holder has the right to refuse to license its work and should not be penalized for exercising that right. See Stewart v. Abend, 495 U.S. 207, 228–29 (1990). If we were to require a copyright holder to demonstrate that it would have been willing to grant a license as a condition for recovering damages based on the fair market value of the license, the perverse result would be that some of the most assiduously protective copyright holders would be unable to recover the fair market value of their wrongfully appropriated copyrighted property.

Some would argue this is contrary to copyright goals, but the U.S. Supreme Court explained in Stewart:

“. . . [A]lthough dissemination of creative works is a goal of the Copyright Act, the Act creates a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works. The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist’s labors. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429(1984) (the limited monopoly conferred by the Copyright Act “is intended to motivate creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired”). But nothing in the copyright statutes would [495 U.S. 207, 229]   prevent an author from hoarding all of his works during the term of the copyright. In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932).

So, if a copyright owner wouldn’t have licensed a work, what should a court award as a license fee if statutory damages aren’t available for an infringement? In Oracle, the court looked for “hypothetical-license damages.” It stated:

An award of hypothetical-license damages is appropriate “provided the amount is not based on ‘undue speculation.’” Polar Bear Prods., 384 F.3d at 709 (quoting McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003)). The touchstone for hypothetical-license damages is “the range of [the license’s] reasonable market value.” Id. “The question,” therefore, “is not what the owner would have charged, but rather what is the fair market value.” Jarvis v. K2 Inc., 486 F.3d 526, 534 (9th Cir. 2007) (quoting On Davis, 246 F.3d at 166). Thus, we do not ask what the owner would like to have charged if unconstrained by reality, but what a willing owner actually would have charged after negotiation with the buyer. That is, fair market value is based on “‘an objective, not a subjective, analysis.’” Jarvis, 486 F.3d at 534 (quoting Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002)).

But the plaintiff/copyright owner still has a burden to proving what that hypothetical license fee might be, such as by showing past license fees charged or offered for similar uses by the copyright owner or others, expert testimony, or any other methodology and evidence that might make sense to a court for the situation. Whatever method you use, don’t let the infringer off the hook by claiming that you wouldn’t have granted a license for the infringing use.

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