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Creative Commons Photos on Facebook, Twitter, etc.

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DavidVGoliath:

--- Quote from: aot on September 30, 2018, 11:21:12 AM ---If you want to see positive change, there are two ways to tackle this --
1. Seek criminal actions against copyright trolls (Getty, Pixsy, et. al. as well as photographers who have made more money from litigation than selling their photos.
--- End quote ---

You're getting a bit tinfoil-hat there... the ability to seek redress for civil grievances is one of your First Amendments rights. Laws exist to serve as mechanisms to right wrongs, but also to deter (not prevent) acts from occurring in the first place. With respect to copyrights, there is sufficient case law to support this view

"[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)"


--- Quote from: aot on September 30, 2018, 11:21:12 AM ---2. Seek to push for amends to copyright laws.
--- End quote ---

A sound proposition and this very thing is playing out right now - see https://judiciary.house.gov/press-release/judiciary-committee-to-hold-hearing-on-copyright-small-claims-legislation

aot:

--- Quote from: DavidVGoliath on September 30, 2018, 02:46:27 PM ---..the ability to seek redress for civil grievances is one of your First Amendments rights. Laws exist to serve as mechanisms to right wrongs, but also to deter (not prevent) acts from occurring in the first place.
--- End quote ---

Nice try. You are covering half of the perspectives here. The other half you are missing is systemic abuse, intimidation, and extortion.

I have read your earlier posts in other threads and I am aware that the photographers are the ones pulling the litigation shot. You have a three way evil conspiray here:

* Software companies like Pixsey, PicRights, etc. advertising make money from your couch
* Photogarhers (lazy customers who are pathetic but wants money because everybody got bills)
* Lawyers (the ones having the last laugh calling the victims imbecile)

--- Quote ---"[The infringer] cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law.”, Iowa State Univ. Res. Found., Inc. v. Am. Broad. Cos., 475 F.Supp. 78, 83 (S.D.N.Y.1979) aff'd, 621 F.2d 57 (2d Cir.1980)"
--- End quote ---

Agree. (plus that's obvious, for example, parking tickets could be $25 for a $2.50 parking meter).


--- Quote ---"...obey the copyright law.”
--- End quote ---
Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?

Most victims never wanted to buy or license that damn photo or whatever anyways. My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.

If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.

Life Lesson for all loser photographers: Making money is hard work. Directly seeking statuary damages for $750 (split between Pixsy and you) is a shameful way to buy your next camera.

Instead, become unique, get better, learn marketing, build a real business, and don't spend your days harassing other humans.

There is competition out there. May be you should NOT be a photographer. Stop bullying. Make money in ways you can proudly tell your kids.

Ethan Seven:
$750 is harsh minimum for a $10 image, especially if you are someone who is a good player who properly licenses material 99 percent of the time. 

I do get how many rights holders get frustrated with the staggering percentage of infringements and that there are substantial costs involved in detection and enforcement efforts

In this case, no law firm is involved, so the costs cannot be that high.  I would offer something north of $300 and south of $600.  If they litigate, they will have to explain why they refused a very reasonable offer.  Many judges will not award attorneys fees if the plaintiff rejected reasonable offers prior to litigation. 

All that being said, Pixsy cannot sue you.  The copyright holder would have to find a US based law firm to handle it.   You can gamble and see if it gets escalated to a law firm.  If it does not, you are off the hook.  If it does, the demand amount will probably double or triple. 

DavidVGoliath:

--- Quote from: aot on September 30, 2018, 09:39:16 PM ---Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?
--- End quote ---

A single instance of someone discovering that you breached their license terms does not automatically mean that every single other published image you have made use of is non-infringing. I'd bet good money that if you fully audited 1,000 pictures to ascertain if you are wholly compliant with their license terms (as published across all your vectors e.g. website, blog, social media etc.), you'd find far more instances where you're breaching the terms of the license.

You've said that you outsource a lot of your work to third-parties; have you laid down strict rules/terms with them in your contract? Are you confident that they are always following procedure, and have you negotiated a "hold harmless" clause, where they pick up the cost of any legal claims their actions expose your business to?

Since your business is ultimately legally liable for the actions of your employees or contractors, it's incumbent on you to perform a level of diligence and the occasional random audit too.

Lastly - and though this is rare - it will sometimes occur that third parties offer images with CreativeCommons licenses that they have not authored i.e. they find pictures elsewhere and then distribute them as CC works. Again, it's on the user to perform a due diligence and keep track of where images were sourced, and under what licensing terms.


--- Quote from: aot on September 30, 2018, 09:39:16 PM ---Most victims never wanted to buy or license that damn photo or whatever anyways.
--- End quote ---

... yet they were happy to make use of it when they thought there were no cost or consequence for doing so? Sounds a lot like "Not sorry for breaking the law, just mad at being caught"


--- Quote from: aot on September 30, 2018, 09:39:16 PM ---My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.
--- End quote ---

And this is where our opinions will differ vastly. From the creator's perspective, actively keeping track of licensed and unlicensed uses of their work is simply a necessary part of doing business in the digital age. It's not a business model in of itself, merely one of the inevitable consequences of the internet age.

Personally, I'd be quite happy if my works were only used by my paying clients, even if that meant a decrease in revenues over time and/or the eventual cessation of my business in the event my services were no longer in demand.

However, if someone makes a value judgment that my photograph fits their needs for publication, then I have a reasonable expectation to be paid for their use of my work. It is a principle that, at its foundation, is no different than any other person, whether self-employed or an employee, expecting to be paid when someone else makes use of their time or skills.


--- Quote from: aot on September 30, 2018, 09:39:16 PM ---If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.
--- End quote ---

I can't speak for other photographers, but the above is almost exactly the process I follow except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.

For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.

These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies

Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)

Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous.  With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date. "Fool me once..."

40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.

9% will cease using my work, flat-out refuse to pay, and be... let's say grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.

1% will continue using my work and again be grossly unprofessional in their replies. I litigate every single one of these rare instances, and have not lost a single claim yet.

aot:
Before I debate further, I want you to know that I am 100% in agreement on the below. And, I am a little surprised and actually happy to see this from you.

That said, if you were a slave owner, you would always see some good in owning slaves and therefore prefer laws that protected slave owners. Likewise, since you are a (professional?) photographer, you will always be biased towards photographers in general because you guys are making easy money harassing and intimidating, and threatening lawsuits on people.


--- Quote ---I can't speak for other photographers, but the above is almost exactly the process I follow except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.

For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.

These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies

Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)

Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous.  With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date. "Fool me once..."

40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.

9% will cease using my work, flat-out refuse to pay, and be... let's say grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.

1% will continue using my work and again be grossly unprofessional in their replies. I litigate every single one of these rare instances, and have not lost a single claim yet.

--- End quote ---

Now, please allow me to explain my position.

Most of the victims are mostly bloggers or small business owners (mom and pop type stores, services, etc.)

The problem is you are carefully ignoring the time and money cost of auditing each and every photo. Plus, there is also genuine negligence when it comes to what is FREE and what is Not-Free when you search on Google > free to use.

Almost 100% of small businesses are started with little or no money. This forum doesn't get Hilton and Amazon representatives fighting the injustice of copyright trolling. The people who come here are generally amateurs and first time offenders.

It will also help you to understand, first and foremost, that majority of these people are not trying to steal your photos but they might be overwhelmed and overburdened. Heck, they may be even totally ignorant. They may have broken the law without even realizing it.

A good society flourishes when people coordinate and support each other, not file civil lawsuits against each other to fight for pennies like street dogs.

Your battle should be for overall copyright reform where creativity is promoted not restricted. I stand for copyleft. I also would support any movement to limit the statuary damages reach, reduce the minimum fine, and remove the compensation for legal fees.

Then, it's a fair battle between two civilians.

For, soloprenuers/civilians vs. a large corporations, a different sets of rules should apply.

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