Why Are We Surprised When Infringers Lie?

Snowy Owl on Rock - Copyright Carolyn E. Wright

Putting salt in the wound, photographers and other creatives often are even more frustrated when infringers don’t make things right when accused. Such was the case for a Alison Green at www.askamanager.org when she discovered someone copied her reader’s resume cover letter from Alison’s website. Alison explains what happened next, including receiving a barrage of excuses and accusations.

When someone infringes your copyright, the infringer usually offers some excuse to try to avoid liability. Many of these excuses appear compelling on the surface, but they don’t stand up to the law. Check this article on Excuses, Excuses that identifies some of the more popular excuses and what copyright law provides to counter them.

Some of the infringer’s excuses are completely fabricated, causing even more frustration for the copyright owner. But why are we surprised when infringers lie? They stole your work in the first place. Why would they do something right after being caught?

But sometimes infringers do the right thing, as reported by Alan Wexelblat at www.copyfight.corante.com. Even though John Green (no known relation to Alison, but be sure to watch his great video) didn’t mean to steal the quote, he determined how much he owed and made things right in awesome ways, including paying the originator for it.

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Congressional Hearings re Copyright on Thursday, February 26, 2015

On February 26, 2015, the Congress will hold two separate hearings relating to the functions and funding of the U.S. Copyright Office. Both hearings will begin at 1:30 pm and will be streamed through the respective Committee websites.

The full House Judiciary Committee will hear testimony from external witnesses regarding a variety of questions, including current and future statutory responsibilities, Constitutional issues, technology, fees, and appropriations. This hearing is part of the Committee’s commitment to review the copyright law to assess how well it is working in the digital age. The 113th Congress held nearly twenty hearings in 2013 and 2014 under the leadership of the House Subcommittee responsible for intellectual property.

The House Appropriations Committee will hold its annual hearing on the fiscal year 2016 appropriations request of the Library of Congress, which includes the Copyright Office budget. Librarian of Congress James H. Billington will testify. As always, the Register has submitted a written statement to the Committee, which will be posted tomorrow on the Copyright Office website, and will assist the Librarian with Copyright Office questions. Please note that this hearing follows the appropriations hearing on the Architect of the Capitol and the start time may therefore shift.

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Take Action-Remind The 114th Congress That Copyright Is Vital to Creatives

From the Copyright Alliance:

As the new Congress convenes in D.C. and takes up important copyright issues, please sign this letter reminding Congress of the vital role that copyright, free expression, creativity and innovation continue to play in our lives.

“There is no “left” or “right” when it comes to respecting copyright. The creative community stands united in support of a copyright system that has made and continues to make the United States the global leader in the creative arts and the global paradigm for free expression. Our copyright system is not perfect but, like democracy, it is better than the alternatives. It works. We urge Congress to resist attempts to erode the right of creatives to determine when and how they share their works in the global marketplace.”

Read the letter and sign it via the Copyright Alliance Take Action Now Tool today. 

Make your voice heard on this important matter. 

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U.S. Copyright Office Releases Report on Technical Upgrades Project

Jack Stare

The Register of Copyrights has released a report from the Special Projects Team responsible for studying technology issues and business improvements related to the Copyright Office’s services. The report was delivered to the Register by the Copyright Office Chief Information Officer Doug Ament, who chaired the multi-year analysis. The effort was one of 10 areas of focus publicly announced by the Office in Priorities and Special Projects of the United States Copyright Office: 2011-2013.

The Office’s technology infrastructure impacts all of the Office’s key services, and is the single greatest factor in its ability to administer copyright registration, recordation services, and statutory licenses effectively. The report thus provides a number of recommendations that, if adopted, could significantly improve the Office’s operations and interactions with the public.

“I am grateful to the project team members and the stakeholders who responded to their inquiries, said Maria A. Pallante, Register of Copyrights. This report will be of great help as we work with the Congress, the Library and the public to create a twenty-first century Copyright Office.”

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No Copyright Infringement Intended?

No Copyright Infringement Intended

Some people claim that they don’t intend to infringe other’s copyrights when they reproduce, display, distribute, or create derivative works of copyrighted works. But will that make a difference as to their liability? Probably not.

Several courts have addressed this issue by holding that a “person doesn’t have to have the ‘specific intent’ to violate the copyright protection to be liable for infringement. Coogan v. Avnet, Inc., 2005 WL 2789311 (D. Ariz. 2005), quoting Atlantic Recording Corp. v. Chan, 94 Fed. Appx. 531, 533 (9th Cir. 2004). Neither does a plaintiff need to demonstrate the defendant’s intent to infringe the copyright to prove copyright infringement. Educational Testing Service v. Simon, 95 F.Supp.2d 1081, 1087 (C.D.Cal.1999) (copyright infringement “is a strict liability tort”).

Professor Paul Goldstein of Stanford Law School explained in his renowned four-volume treatise on U.S. copyright law that:

The strict liability rule should discipline an infringer, who might otherwise mistakenly conclude that his copying will not infringe the copyrighted work, to evaluate the legal consequences of his conduct more carefully.

See P. GOLDSTEIN, COPYRIGHT § 9.4 at 162 (1989).

In addition, courts have long held that “a court need not find that an infringer acted maliciously to find willful infringement.” Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110 (2d Cir. 1986) (explaining that “[i]t is plain that ‘willfully’ infringing and ‘innocent intent’ are not the converse of one another”).  Rather, the statute allows a finding of willful infringement if the infringer acted with a willful disregard for the copyright owner’s rights. N.A.S. Import, Corp. v. Chenson Enterprises, Inc., 968 F.2d 250 (2d Cir., 1992) (holding that “reckless disregard of the copyright holder’s rights (rather than actual knowledge of infringement) suffices to warrant the award of enhanced damages”)). In sum, the law suggests that that willful infringement can be something much less than intentional, deliberate action.

In the above example and for any case, does the infringer’s acknowledgement that the work is or may be protected by copyright affect the damages to be awarded? Only a judge or jury can decide. But it will be a great day when all people respect a copyright owner’s rights.

Thanks to Howard Kier for suggesting this topic.

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Photo Attorney Blog Celebrates TEN YEARS!

African Bird2

Today is the 10th Anniversary

of the Photo Attorney® blog!

Thank you for your continued support! 

This blog is full of helpful information for the photographer’s legal needs. With hundreds of blog entries on a variety of legal subjects that affect photographers, the best way to find information is to use the search tool located at the top right hand corner of the page or check the Posts by Topic at the bottom of the right hand column. Subscribe to the RSS feed to easily get new posts. Also follow Photo Attorney on Twitter for other links and quick updates on the law. Learn even more with the Photographer’s Legal Guide and get photography forms to help your business.

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ASMP Atlanta/SE Presentation on Contracts, Copyrights, & Releases

Evan A. Andersen

Join Evan Andersen of Photo Attorney® and the
ASMP Atlanta/Southeast Chapter as he speaks about Contracts, Copyrights & Releases

Details and Registration: http://asmp.org/education/event/info?id=988

Tuesday, January 27, 2015
6:30 PM to 9:00 PM
Social time starts at 6:30 PM

Creative Circus
812 Lambert Dr
Atlanta, GA

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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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