Click Official ELI Links
Get Help With Your Extortion Letter | ELI Phone Support | ELI Legal Representation Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.

Author Topic: Pixsy Letter (photographer has history of suing)  (Read 17079 times)

Ethan Seven

  • Full Member
  • ***
  • Posts: 115
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #30 on: August 23, 2018, 01:13:01 PM »
There are lots of reasons that these court cases never go through a complete trial.   

First, the outcomes are predictable.  This predictability comes from the fact that 99% of photo infringement cases are straight forward.   Typically, the only real question is the award amount.    This predicabiliy greatly increases the chance for settlement as there is very little reason for one party to think the outcome will be wildly different than the other party.   As long as one party is not drastically over reaching, they settle. 

Second and equally important is the fact that almost all copyright cases involving photos can be resolved with a good motion for summary judgment.   It is very rare that there are issues of fact that need to be determined at trial by a judge or jury in a photo copyright case.

Third, many judges require that the parties go to court sponsored mediation before trial.  The mediators, who are either retired judges or experienced litigators, are very good at getting parties to settle the claims.
« Last Edit: August 23, 2018, 01:29:53 PM by Ethan Seven »
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #31 on: September 08, 2018, 04:49:34 PM »
As a side note to set the record straight, It wasn't "Matthew Chan" who won it by himself.  It was really "Matthew Chan's" team who did it. The team consisted of bloggers, reporters, friends, readers, donors, lawyers, and legal allies who came together for the cause of protecting the First Amendment and Section 230 in Georgia.

Getty used to send letters threatening lawsuits, if they got no reply, they would have off the case to their "lawyer" Timothy McCormack, would then send letters threatening a lawsuit and upping the demand amount..layer #2 of the fear factor...how many times did Timothy McCormack appear on court on behalf of getty images?? ZERO....hell he may have only been in court one time in his career when he made the mistake of going up against Matthew Chan in the Georgia Supreme Court, where he made himself and his client look like fools..as a side note our old buddy Timmy now grows pot for a living.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #32 on: September 08, 2018, 05:32:15 PM »
My answer is pretty basic.  It is just easier and more practical for both parties to settle than for either side have a protracted battle. It is the rare bird who will battle it out of principle.

Back in 2008 with my squabble with Getty Images, I seriously considered settling because they offered $500 to settle. But I was pretty pissed about the situation and the circumstances surrounding it because I felt totally blindsided by ignorant actions taken by an overseas graphic artist who got me in hot water.

I kept doing research and the more I dug into Google, the more pissed I got and what I fell into which is why I started the ELI website, which in turn, attracted more information and insights.

I thought to myself, fine, I might lose but I was not just going to hand over the money. I would muddle my way through the federal court system and fight tooth and nail the best I could. I figured I would just stumble my way through the federal court system and probably lose but I would learn a shitload from the entire experience. I viewed it as "tuition" for a front row seat at a "live seminar experience".  Without having to pay legal fees, I figured I had a lot more room to maneuver and wasn't as constrained.

I was emboldened when I found how much opposing lawyers HATED dealing with pro se defendants. As a backup measure, I won't go into specifics but let's say I was going to exercise my lawful First Amendment rights in a very big way because ELI has already been launched and I had a growing platform.

I figured if I was going to lose, I wouldn't go down without inflicting some scorched earth along the way. This is one of these situations where I tell people NOT to follow what I did. I was (and probably still am to a degree) a bit irrational.  (Do as I say, don't do as I did which was fraught with unknown risk.)  I was never quite sure why Getty stopped pursuing me after only 3 or 4 go-arounds. My case was surprisingly not escalated to anyone.

The point being is that one never really knows for sure why certain cases go forward to lawsuit and others don't go anywhere. But I have a good idea who are more likely targets than others and who are more likely to receive lawsuits than others. But my opinions are grounded in life experience/insight and personal/professional observations than any empirical evidence.

I tend to believe in executing a STRONG strategy to encourage a highly-motivated settlement. The downside to that is that MOST people don't have the knowledge or have the internal fortitude to do so.


There are lots of reasons that these court cases never go through a complete trial.   

First, the outcomes are predictable.  This predictability comes from the fact that 99% of photo infringement cases are straight forward.   Typically, the only real question is the award amount.    This predicabiliy greatly increases the chance for settlement as there is very little reason for one party to think the outcome will be wildly different than the other party.   As long as one party is not drastically over reaching, they settle. 

Second and equally important is the fact that almost all copyright cases involving photos can be resolved with a good motion for summary judgment.   It is very rare that there are issues of fact that need to be determined at trial by a judge or jury in a photo copyright case.

Third, many judges require that the parties go to court sponsored mediation before trial.  The mediators, who are either retired judges or experienced litigators, are very good at getting parties to settle the claims.
« Last Edit: September 08, 2018, 05:34:37 PM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #33 on: September 08, 2018, 05:50:58 PM »
I can't speak broadly but Oscar and I have expressed our opinions on the matter of single-image lawsuits. It doesn't happen because it is generally not worthwhile. From the Getty Images perspective, they had probably hundreds of cases at any given time. They couldn't easily file lawsuits on EVERYONE.

We believe Masterfile tried the same thing 5-6 years ago with an onslaught of lawsuits but they abruptly stopped. They didn't stop to suddenly become good Samaritans. I think they stopped because the risk/reward/return ratios were ultimately not good.

I think a lot of the cases Masterfile pursued were not collectible or that the legal fees incurred were too great for the time, money, and energy expended.

There were also a couple of setback cases where the court didn't overly favor plaintiffs over "clear cut" infringements.

And please point me to small time cases involving small parties that come anywhere close to $150K. And even then, how many small time cases would actually pay the full 6-figure amount?

I can say as a fact there are MANY people who cannot pay any 6-figure judgment even if they wanted to. People, even under legal threats, cannot even pay student loans they clearly used, benefited, and owe for far less. Same with medical debt. There are a lot of worthless paper in the world. That is why much of it are bought and sold at pennies on the dollar.

Copyright judgments rank pretty low in the big scheme of potential debt and judgments. I say they can stand in line for a long time or take a reasonable settlement.

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.


I think the reason that you haven't seen single-image lawsuits go all the way to a jury trial is that defendants will want to minimise their risk of being slapped with a hefty judgement against them. In the event that a plaintiff can prove wilful infringement, damages can be as high as $150,000, and that's before any provable DMCA violations are factored for.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

aot

  • Jr. Member
  • **
  • Posts: 25
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #34 on: September 27, 2018, 04:16:16 PM »
Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)

In the off chance he actually sues and in the off chance he actually wins a judgment....  who cares?  Just don't pay it.  It's very hard to get money from someone who doesn't want to pay anything, even with a judgment.

DavidVGoliath

  • Full Member
  • ***
  • Posts: 221
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #35 on: September 27, 2018, 05:51:01 PM »
Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)

Enemies? Ha!  ;D

You've only posted twice here, so I can't speak to your opinions on creators/artists who pro-actively guard against the unlicensed uses of their work, but I'll say this: copyrights, as a property right, gives everyone the ability to decide the what/when/how/where their works are used.

If I want to make use of your property, then you can rightly set whatever conditions you please prior to my using it. If I make use of your property without your consent, then I (rightly) should expect consequences for my actions.

FYI, my choice of screen name is derived from the fact that the majority of entities who have taken the liberty of using my work without paying are large companies (think: annual revenues of seven figures or more), often with budgets for using editorial/commercial images.

Copyright laws have protected me from their unscrupulous and sometimes predatory behaviours; the law can be a great leveler in situations where a much smaller fighter takes on a far larger opponent, allowing them to "punch above their weight"

I believe in the fair application of law, where justified, to aid in righting wrongs, and I think that most people on ELI would echo that sentiment, even if we differ on the details.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #36 on: September 27, 2018, 07:49:46 PM »
DvG is fine. I don't consider him an enemy.  We certainly disagree on a few things but I think he has done an admirable job on ELI integrating himself here with his perspectives. It ain't easy being a photographer on the ELI forums!  :)

Mr. Goliath is in a wrong forum. That said, it is good to have your enemies close. :)
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

aot

  • Jr. Member
  • **
  • Posts: 25
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #37 on: September 30, 2018, 11:30:03 AM »
Matthew,
We are preparing for a potential court case by Pixsy/Mr. Marco Verch (photographer) and we don't have money to hire a lawyer. Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

We are not paying a penny as we firmly believe our use was innocent and it may also fall under 'fair use' in an informational tweet. Our account has made 11,400 tweets, mostly with our own photos and as well as public domain and copyleft content. And, now there is this one image where someone wants us to now pay $750 for retro-licensing for prior unauthorized use! We said, sorry for the oversight (our mistake), and deleted the tweet.

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.

DavidVGoliath

  • Full Member
  • ***
  • Posts: 221
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #38 on: September 30, 2018, 01:47:34 PM »
Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

The short version? Yes.

The longer version, with pertinent information, is here: uscfc.uscourts.gov/pro-se-information

Ethan Seven

  • Full Member
  • ***
  • Posts: 115
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #39 on: September 30, 2018, 10:35:24 PM »
What makes you think a German company with no real presence in the US is going to sue you???    They are not a law firm. 

Yes, you can represent yourself, but it is usually a bad idea if you want to mount a substantive defense.   Federal Court is not the People’s Court, missed deadlines and missteps can lead to request for sanctions.  It is not impossible, but if the otherwise knows what they are doing and you do not, it can get ugly for you.
« Last Edit: October 01, 2018, 12:12:18 PM by Ethan Seven »
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

A Lawyer

  • Newbie
  • *
  • Posts: 24
    • View Profile
Re: Pixsy Letter (photographer has history of suing)
« Reply #40 on: October 01, 2018, 01:59:31 PM »

Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?
« Last Edit: October 02, 2018, 07:43:10 PM by A Lawyer »

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #41 on: November 03, 2018, 03:59:26 PM »
Yes, people can represent themselves if they don't have a lawyer. But people who represent themselves "pro se" in court have to be VERY mindful that is going to very difficult to outlawyer the other side. It is also fraught with risks. Your chances of losing are very high if one tries to simply and purely "argue the law". There are pro se benefits in that opposing counsel and even the judge will be frustrated because they will have to be extra careful with you and give you extra benefit of the doubt to be fair and not be accused of taking unfair advantage. They absolutely hate dealing with pro se defendants because there are so many pitfalls. There is the appearance that it is not a fair fight. That is why opposing lawyers often PREFER you lawyer up so they don't get accused of improprieties which is a larger headaches than the case they are working. Those potential accusations can cause lots of administrative headaches. 

There is a also a degree of tenacity, toughness, and attitude one has to have to do so. That is not something everyone has. A few people I know (including myself) have been successful in representing themselves but it ain't because we became super-lawyers overnight. It is the toughness to push forward and fight for your position even when you are out of your element. Positive outcomes often occur when the opposing side sees uncertainty, unintended consequences, or when they realize that their efforts are not "worth the grief".


Matthew,
We are preparing for a potential court case by Pixsy/Mr. Marco Verch (photographer) and we don't have money to hire a lawyer. Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

And most people tell me they settle because of the legal fees to hire a lawyer to defend, not the fear of the actual judgment itself.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #42 on: November 03, 2018, 04:03:39 PM »
I would like to add that an "organization" whose only assets are their desk, computer, printer, and a corporate checking account, don't generally have much to fear from a default judgment. Unless someone really has an axe to grind, it is hard to see any lawyer expending the energy and resources to try to extract funds from such a small-time scenario.

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Matthew Chan

  • ELI Founder, "Admin-on-Hiatus"
  • Administrator
  • Hero Member
  • *****
  • Posts: 2763
  • 1st Amendment & Section 230 CDA Advocate
    • View Profile
    • Defiantly
Re: Pixsy Letter (photographer has history of suing)
« Reply #43 on: November 03, 2018, 04:10:39 PM »
I agree on all points.  However, the thing I would add to this is that in that a few pro se cases I have communicated with, it appeared to have help secure a favorable settlement than if they just rolled over.  I would like to point out that this is only anecdotal and what was relayed to me. Pro se or not, most of these types of cases, the plaintiffs want a settlement. They don't want to expend the resources to "go all the way." The willingness to be pro se shows a certain amount of grit. There is also the leverage and dynamic of one side expending $400/hour and the pro se person not expending any resources beyond their time and energy.

But I definitely agree people have to ready to assume the many risks of going "pro se". But I have to root for the underdog and also say there are some "unconventional opportunities" that can open up if one plays to them.

What makes you think a German company with no real presence in the US is going to sue you???    They are not a law firm. 

Yes, you can represent yourself, but it is usually a bad idea if you want to mount a substantive defense.   Federal Court is not the People’s Court, missed deadlines and missteps can lead to request for sanctions.  It is not impossible, but if the otherwise knows what they are doing and you do not, it can get ugly for you.
« Last Edit: November 03, 2018, 04:12:56 PM by Matthew Chan »
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

Official ELI Help Options
Get Help With Your Extortion Letter | ELI Phone Support Call | ELI Defense Letter Program
Show your support of the ELI website & ELI Forums through a PayPal Contribution. Thank you for supporting the ongoing fight and reporting of Extortion Settlement Demand Letters.