Recent Intellectual Property Legal Issues

[Helpi]

Oscar, how about your view on 401(d) as it relates to infringement of online photos ?

Specifically, whether the copyright owner that places a proper copyright notice on her authorized online copies can use 401(d) to preclude the innocent infringer "defense" against online infringers that use an (unauthorized) copy of the photo containing no copyright notice (because the initial infringer removed the notice).  

Background for not-Oscar:  

You used to have to put a copyright notice on your work to protect it once you "published" it.  The US was at odds with most of the rest of the world in this regard. Back in 1989 the US law changed and a copyright notice was no longer required to protect any of the rights of copyright ownership.  Obviously Congress did not get the word out to most readers of this board :-)  Getty appears to be taking up the challenge.

However, Congress still saw some benefit to the copyright notice and offered a carrot to anyone placing a copyright notice. If you put a copyright notice on the work in the proper place and in the proper form that would preclude anyone from raising the innocent infringer "defense" to mitigate actual or statutory damages.

Now before you say, hey the photo I used had no copyright notice. The Texas case mentioned above involving digital music said that you don't ask whether the infringing copy had a copyright notice. You ask whether the "published" copies had notice. And published copies require authorization by the copyright owner.  And if such published copies had notice then you ask whether the infringer had "access" to the published copies. And, if they did, no "innocent infringer" defense may be raised. Here, the court found the infringer had access to the physical CDs which were the "published" copies and which contained the proper copyright notice. So infringer couldn't raise the defense.

So with photographs if you follow the logic of the Texas court you don't ask whether the copy you infringed with had notice.  You ask whether the copies "published" by the photographer or it's exclusive licensee (Getty) had copyright notice. And then you ask whether you had "access" to such copies.

[cherieoo1]

I must be missing something on the homepage.I can' find how to hire Oscar to send a letter
to Getty.

HELP!

Cherie

[Helpi]

It's on the front page:

"You can contact Oscar at his email address: xxx. Or you can call to make an appointment for a free consultation: 516-741-3222."

I have no affiliation with Oscar or this site. And please don't take my posting contact information as any sort of  recommendation.

Good luck to you.

[cherieoo1]

Thank You  but I've already sent 2 emails.  On this site it says there is
instructions on the homepage. Can't find it.

[Oscar Michelen]

Dear cherie:

You can email me at xxx or call my office at 516 741 3222

[VicB]

What a crock. I am glad I found this web site. May be the next person to contact Oscar! Received the same extortion letter. I did find the offending image and removed. I actually found this image which Getty claims owenership and copyright in the public domain without any reference to copyright. It is an honest mistake - I removed it and notified Getty Legal of such by e-mail. I even replaced it with a new Getty Image with rights properly purchased. They charge $10 for these royalty free images. A far cry from the damages they claim with inflated "settlement demand."

We'll see if the second and third extortion letters show up

[Oscar Michelen]

Good luck Vic, keep us posted!