Matthew Chan's First 10 Questions For Glen Carner

[Matthew Chan]

Since Glen Carner, CEO of Hawaiian Art Network & Copyright Services International has decided bravely step into the ELI Forums, I have some starter questions for him. He obviously can answer or not. In the absence of answer, the ELI community will continue to find answers on its own through its collective efforts.

1. Who "owns" Hawaiian Art Network (HAN) and Copyright Services International (CSI)? We believe you are the sole principal and owner.

2.  What is the difference in the roles between HAN and CSI?

3. How many employees / staff members do you have working for HAN and CSI?

4. Why have you chosen this time and the ELI Forums to "come out" and speak out?  Don't you feel it is a bit risky for you to come in to this audience to share your thoughts and ideas vs. your own website?

5. Why are you filing lawsuits now when the larger firms like Getty Images are being more cautious? Do you think this works in your favor or not?

6. How do you interpret U.S. Copyright Law vs. how ELI interprets it?  Specifically, do you actually think you most cases are willful infringement whereby your photographers would deserve more than $200 per image?

7. How do you justify the extravagant settlement amounts that have been revealed vs. the actual market value of the images?  How do you determine market value?

8. What are the actual split percentages of a typical settlement?  ELI has estimated a 60/40 split whereby 60% goes to the stock photo agency and 40% to the collection lawyer.  Out of "your" portion, how much goes to HAN, the photographer, PicScout, and any other parties you distribute proceeds to?

9. What percentage of your revenues come from straight sales and licensing vs. infringement settlements?

10. What would you like to accomplish by being here on the ELI Forums? Is your participation being supported by your peers at the other stock photo agencies?

I could ask many more questions but these 10 is a good start.

[Glen Carner]

I am going to do a few each login.

#1 - Correct, I am the sole member of both companies.

#2 - Hawaiian Art Network llc sells and licenses fine art and stock photography for Hawaii based artists.  The company was founded for the purpose of supporting and representing local artists which we have done since 2004.  Copyright Services International llc performs copyright related services on behalf of photographers, authors, and agencies including copyright registrations, content tracking (we use both automated and human powered systems), data gathering, internal account collections, and DMCA Takedowns.

#3 - Hawaiian Art Network is just that, a network.  Our residential fine art sales are fullfilled by the artists themselves exept for commercial projects.  Each artist plays a roll in service towards the customer.  We also have a bookkeeper, a call / order center, and like you had mentioned previously are "virtual" in nature.  Copyright Services International has a dedicated registration specialist, account director, two researchers, and two tracking specialists.

#4 - There are many reasons to be on the ELI forums at this time:

• First and formost, I want CSI to develop new solutions for collecting revenue retroactvily that dosent require copyright law.  Is the threat of copyright penalties and accusations of "stealing" the only way to deal with these matters?  I hope not.  The USCO is also trying to address this issue http://www.copyright.gov/docs/regstat032906.html.  I don't know of anyone in the stock photo industry including myself who entered into this business looking foward to the day when pursuing copyright infringements would become standard practice.  Its uncomfortable, inefficient, and contentious work.
• The issues are not black and white and the majority of users on ELI speak with one voice.  Either that or those of us listening in have "one ear."
• I hope to dispell the myths about my companies which have been created at ELI.
• I can give accurate information and have no entrenched position on copyright law or the industry.
• I know the answers to questions like "Why are the ceast and desist letter amounts this much?"  "Who dictates what's in those letters anyway?" "How can this be stealing?" and "I found this image on Google so it must be 'fair use' right?" I make no judgment on any of these things but will provide the facts as I understand them.

#5 - I dident know Getty was being more "cautious."  Are you sure this is the case?  I dont assume to know what Getty thinks but these decisions (like any case) are based on it being worthwhile to the company and the principals of the matter.  I dont know if HAN filing on cases "works" or what "works" means but we have every intention of following up with companies that are using our photographer's images for profit.  Each company was offered the opportunity to resolve the matter prior to any court filing.  What should our response be when we try and resolve a matter in a way which the law outlines and our effort gets ignored or thrown back at us?  At HAN, we take our attorney's advice which may mean filing a complaint.

#6 - Im not sure how ELI feels about willful infringement but the law as stated in Lowry’s Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):  “[W]illfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights."  Readers should also know that under the law "willfulness" as a concept appears to lean more towards "you should have known better and ignorance is not bliss" then one might commonly assume as it pertains to copyright.

What you or I think is fair is not necessarily what the law states or how it operates.  Concepts like "deserve" and "I think" don't enter into it when dealing with IP attorneys because they operate in a totally different framework.  Take C & D letters for example and why they are written the way they are.  The attorneys are not manufacturing those points and amounts, they are following the template of the law.  This is why you see "new" lawyers indicating higher amounts and damages.  They are trained to do what the law stipulates and what is best for their client.  That appears to be to pull and fight as hard as they can, with the expectation that the other side will do the same, best we die bloody and battered in the middle of the courtroom where the truth be found along with the adulation our clients.  Really?  That's the only way human beings have come up with to deal with the unlicensed use of a stock photograph?  As long as the use of images without license is seen as a civil or criminal issue, it will be handled in a way that is consistent with the law.  Ironically, it's the more seasoned attorneys who drift away from the "letter" of the law.

Do I agree with the law?  There must be some responsibility on the part of a business who uses other peoples work especially when the use is for profit.  Where that line is drawn is a matter for the courts to determine (as long as the only solution remains a legal one).

#7 - Market value of our rights-managed images is provided by FotoQuote software (which nationally samples prices), the photographers themselves, and an evaluation of other agencies.

#8/9 - Unfortunately I cant comment on this.  Sorry.

#10 - See #4.  I was disheartened to see that CSI's attempts at trying internal collections that moved away from formal notices, legal citations, penalty fees, and attorney involvement with the potential of follow-up action were met with suspicion on ELI.  Our account director has been specifically trained to try and avoid words like "copyright" "infringer" "stealing" theft" or other accusatory language because it is so hostile and unproductive. Nothing would please me more then for CSI to be successful with our new approach at least at first contact.  ELI be proud, it was previous comments you made about acceptable practice that inspired this.

HAN like ELI is made up of people too.  As are the attorneys we hire, the people using the images, the photographers, etc.  Each of us is trying to do the best we can to feed our families and keep the world from falling apart around us.  We follow the law which in the case of copyright is very inflammatory.  So inflammatory that even companies that CSI contacts with an attempt at a business to business resolution  with zero penalties, no mention of attorneys, accusations of theft, and discounted license fees sometimes respond through law firms because they are so distressed when discussing copyright.  Both sides continue to do this and I don't see anyone saying "here is another way that is supported by both the industry and people using the images" to resolve this quickly, reasonably, and efficiently.  It may not even feel fair to both parties but for smaller claims especially, any alternative should be considered and tried.  That's why I am here.

See you around the forums.

[stinger]

Mr. Carner, I am not sure why you can't answer questions 8 and 9.  They don't seem to be asking for any proprietary information.

Let me try to attack the heart of the questions from a different direction.

If a company makes more money in the courts or through the threat of court action, than it does in its' normal business operations, might this not be an indication that taking advantage of the legal system has become that company's business?

Is this the kind of legal system, we should want as a society?  Wouldn't this lead to company strategies like "baiting" the market to entrap unsuspecting individuals in order to grow revenue?

Should our judicial system be allowed to be turned into a profit center for this type of business?

[Moe Hacken]

Stinger, HAN is under ongoing litigation. He will be at more liberty to answer those questions after they're done with that.

To be fair we should give Mr. Carnen the benefit of the doubt. In dubio pro reo.

[Robert Krausankas (BuddhaPi)]

#2 - Hawaiian Art Network llc sells and licenses fine art and stock photography for Hawaii based artists.  The company was founded for the purpose of supporting and representing local artists which we have done since 2004.  Copyright Services International llc performs copyright related services on behalf of photographers, authors, and agencies including copyright registrations, content tracking (we use both automated and human powered systems), data gathering, internal account collections, and DMCA Takedowns.


When exactly did the lightbulb come on, and you realized you can "work" the law to your advantage to fill your pockets with other peoples money.. After all Hawaiian Art Network does make 50% of it money thru copyright trolling, as you have been quoted.
So it'safe to assume that Glen Carner makes money of both artwork and extorting money out of unsuspecting victims? Double dipping as it were.
<Automated = Picscout & Human powered - to verify the alledged infringement>
< internal account collections = the nasty-gram extortion letters>
DMCA Takedowns...How's that working out for you, as we see there are multiple sites which still host VK Tylors' images, many of which are hosted in the states I don't suppose you'd care to share these notices would you?

#3 - Hawaiian Art Network is just that, a network.  Our residential fine art sales are fullfilled by the artists themselves exept for commercial projects.  Each artist plays a roll in service towards the customer.  We also have a bookkeeper, a call / order center, and like you had mentioned previously are "virtual" in nature.  Copyright Services International has a dedicated registration specialist, account director, two researchers, and two tracking specialists.

Try as you might to make Copyright Services International look good in the public eye, but it is still a trolling operation no matter how sanitized you attempt to make it appear.
What do your other artist's think about what you are doing? We can't help but notice every letter we have seen is in regards to Vincent K Tylor. I would imagine some of them must have some morals, and not be to thrilled to be associated with Hawaiin Art Network at this point.

#4 - There are many reasons to be on the ELI forums at this time:
First and formost, I want CSI to develop new solutions for collecting revenue retroactvily that dosent require copyright law.  Is the threat of copyright penalties and accusations of "stealing" the only way to deal with these matters?  I hope not.  The USCO is also trying to address this issue http://www.copyright.gov/docs/regstat032906.html.  I don't know of anyone in the stock photo industry including myself who entered into this business looking foward to the day when pursuing copyright infringements would become standard practice.  Its uncomfortable, inefficient, and contentious work.
The issues are not black and white and the majority of users on ELI speak with one voice.  Either that or those of us listening in have "one ear."
I hope to dispell the myths about my companies which have been created at ELI.
I can give accurate information and have no entrenched position on copyright law or the industry.
I know the answers to questions like "Why are the ceast and desist letter amounts this much?"  "Who dictates what's in those letters anyway?" "How can this be stealing?" and "I found this image on Google so it must be 'fair use' right?" I make no judgment on any of these things but will provide the facts as I understand them.

First and foremost it looks to me as if you are attempting to do some damage control, CSI ( Copyright Services International ) is looking to "collect revenue" by any means possible.
I will agree with you on the fact that you and other copyright trolls did not enter the business to take advantage of people, but when you realized you could, you quickly jumped on the bandwagon, after all you are in a slowly withering industry and this apparently seemed like a way to keep a sinking ship afloat.
There are plenty of other options available to you, but once again if those options don't fill your pockets, they don't appear to be valid options for copyright trolls
I disagree with the statement that we at ELI speak with one voice, in over 3 years of being active here I have yet to see one person whom did not respect copyright, we plainly and clearly do, once again it is your methods and "price structure"..$678.00 for one image even after the so called "discount" is simply absurd. Most of os on ELI would agree that after a C & D was ignored and the image remained, it becomes more of a "willful" infringent, and those that choose to go this route deserve what ever comes their way. So yes you're listening with one ear.
ELI has created no myths about you Glen Carner, Vincent K Tylor, Hawaiian Art Network, or Copyright Services International, we call it as we see it. Is trying to extort $10,000.00 for one lousy image and having your attorney Brandon Sand threaten jail time a myth? Is the fact that YOUR name is plainly visable on the brothersoft site, there are FREE V.K. Tylor images to download a myth? We did not create the letters that sit in our document library, we did not share VK Tylor images on hundreds of wallpaper sites, we did not upload his images to webshots who subsequently released a cd of said images.
You state: "I make no judgment on any of these things but will provide the facts as I understand them." I'll go out on a limb here and make my own judgment.. Hawaiian Art Network, Copyright Services Internatiuonal, Vincent K. Tylor and Glen Carner, along with a host of other copyright trolls appear to be taking advantage of the system, to line your pockets plain and simple.

#5 - I dident know Getty was being more "cautious."  Are you sure this is the case?  I dont assume to know what Getty thinks but these decisions (like any case) are based on it being worthwhile to the company and the principals of the matter.  I dont know if HAN filing on cases "works" or what "works" means but we have every intention of following up with companies that are using our photographer's images for profit.  Each company was offered the opportunity to resolve the matter prior to any court filing.  What should our response be when we try and resolve a matter in a way which the law outlines and our effort gets ignored or thrown back at us?  At HAN, we take our attorney's advice which may mean filing a complaint.

I'm not so sure I would have used the word "cautious" perhaps "smarter" would have worked better, Getty realizes most if not all of their cases are weak, they also realize that any judge in their right mind would not award such high amounts for an "innocent infringement" where the site was developed by a third party or was just a small mom & pop operation with little to no traffic or revenue. I guess we'll be seeing how "worthwhile" it is now that you have someone fighting back.

#6 - Im not sure how ELI feels about willful infringement but the law as stated in Lowry’s Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):  “[W]illfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights."  Readers should also know that under the law "willfulness" as a concept appears to lean more towards "you should have known better and ignorance is not bliss" then one might commonly assume as it pertains to copyright.

I won't speak for the entire ELI community about willful infringement, but I will give you my thoughts on the matter. I respect copyright and artists have a right to protect their IP, if someone gets a notice of possible infringement, chooses to ignore it, leaves the image up, they certainly deserve to learn a lesson. What I think you missing here is that in most if not all of these cases, they have not been willful infringements, when people see images with a "download" now button, some even with a creative commons license or no terms whatsoever, naturally people will feel they can use them.. It would be like me walking down the street in Hawaii and I come across a box of cocnuts, with a sign that say "Free Coconuts" I take one and promptly get arrested for theft, because I did not read the fine print stating they were only free if I made a donation..

What you or I think is fair is not necessarily what the law states or how it operates.  Concepts like "deserve" and "I think" don't enter into it when dealing with IP attorneys because they operate in a totally different framework.  Take C & D letters for example and why they are written the way they are.  The attorneys are not manufacturing those points and amounts, they are following the template of the law.  This is why you see "new" lawyers indicating higher amounts and damages.  They are trained to do what the law stipulates and what is best for their client.  That appears to be to pull and fight as hard as they can, with the expectation that the other side will do the same, best we die bloody and battered in the middle of the courtroom where the truth be found along with the adulation our clients.  Really?  That's the only way human beings have come up with to deal with the unlicensed use of a stock photograph?  As long as the use of images without license is seen as a civil or criminal issue, it will be handled in a way that is consistent with the law.  Ironically, it's the more seasoned attorneys who drift away from the "letter" of the law.

Do I agree with the law?  There must be some responsibility on the part of a business who uses other peoples work especially when the use is for profit.  Where that line is drawn is a matter for the courts to determine (as long as the only solution remains a legal one).


You state: "Ironically, it's the more seasoned attorneys who drift away from the "letter" of the law." Sorry this is complete BS, Oscar Michelen is a very well seasoned attorney in the area of IP, I have yet to see him drift away from the letter of the law, but he shows morals and ethics, whereas  Attorney Brandon Sand your very own "new lawyer" actually threatened jail time over a civil matter, and you were okay with this? Or did you the client not recieve a copy of this communication??

#7 - Market value of our rights-managed images is provided by FotoQuote software (which nationally samples prices), the photographers themselves, and an evaluation of other agencies.

How can V.K. Tylors images be "Rights Managed" when they appear on hundreds of sites, again why is there a brothersoft account with your name on it offering these "Rights managed" images?? Glen you know full well that these prices are crazy and no one would be willing to pay what your demanding to license one of these images, again I think you're attempting to keep a sinking ship afloat.


#8/9 - Unfortunately I cant comment on this.  Sorry.
To refresh your memeory in case you forgot:"Hawaiian Art Network has experienced strong revenue recovery. Recovered revenue now accounts for about 50% of Hawaiian Art Network's income" This is not a myth nor did I make it up..

#10 - See #4.  I was disheartened to see that CSI's attempts at trying internal collections that moved away from formal notices, legal citations, penalty fees, and attorney involvement with the potential of follow-up action were met with suspicion on ELI.  Our account director has been specifically trained to try and avoid words like "copyright" "infringer" "stealing" theft" or other accusatory language because it is so hostile and unproductive. Nothing would please me more then for CSI to be successful with our new approach at least at first contact.  ELI be proud, it was previous comments you made about acceptable practice that inspired this.

Really? "disheartened" because you decided to change tactics while hoping for the same outcome?? We are proud, but again I think you're missing the point, our world does not revolve around money as yours appaarently does IMHO, our world revolves about doing what's right regardless of what the law states..

HAN like ELI is made up of people too.  As are the attorneys we hire, the people using the images, the photographers, etc.  Each of us is trying to do the best we can to feed our families and keep the world from falling apart around us.  We follow the law which in the case of copyright is very inflammatory.  So inflammatory that even companies that CSI contacts with an attempt at a business to business resolution  with zero penalties, no mention of attorneys, accusations of theft, and discounted license fees sometimes respond through law firms because they are so distressed when discussing copyright.  Both sides continue to do this and I don't see anyone saying "here is another way that is supported by both the industry and people using the images" to resolve this quickly, reasonably, and efficiently.  It may not even feel fair to both parties but for smaller claims especially, any alternative should be considered and tried.  That's why I am here.

So I guess because others in the "indusrty" are doing it makes it okay? I'd much rather be a leader than a lowly follower, my business is doing rather well and I don't subscribe to following the industry standards, thats what sets me apart from the rest. Hope you continue to read thru the posts and reply,  just maybe you'll have another lightbulb moment.. Until then you can feel free to continue on your PR campaign, and ELI will continue to do what we do.

[Moe Hacken]

Regarding Question 8 specifically, the statement was made here, posted on the PicScout website:

http://www.picscout.com/customers/case-studies.html

I believe that may be a couple of years old. I'm curious to hear if 50% is still the rule after two more years of the royalty recovery program, but unfortunately Mr. Carner has already stated that he can't comment on this subject at present.

[Jerry Witt (mcfilms)]

Wow buddahapi, that was a carefully reasoned summery of the issues ELI has with the business practices used by HAN. Nice work.

I'd like to see Glen stick around. But in the face of the 100% accurate facts you have stacked up and hard questions you have asked, I will be surprised if he continues to post.

[Matthew Chan]

If Buddhapi can generate all that with only 10 relatively light questions and answers, what is Buddhapi going to write with another set of 10 questions and answers?  LOL.

We can definitely say that he sometimes puts me to shame in the anger and passion department.

If Glen leaves because of this one thread, that doesn't say much for him or his position.

I'd like to see Glen stick around. But in the face of the 100% accurate facts you have stacked up and hard questions you have asked, I will be surprised if he continues to post.

[Peeved]

BRAVO to Budd! We are totally sympatico on this one!

The only thing that I would add is something that Oscar wrote that is also very disturbing to me....

"With respect to HAN and CSI Glenn, as you likely know, I have been able to reach an amicable settlement several times with your respective lawyer(s) when a calm, rational, law-based discussion is had between us. For example, despite the sometimes rancorous flak that Peter Holt received on here a little while ago, recently he and I were able to quickly resolve a claim he was handling for HAN to everyone's mutual satisfaction. So it makes me a bit angry when I see that despite these positive interactions., HAN and CSI continue to pound people with the same exorbitant, threatening demands. You know what these images are worth and the various defenses to serious damages that can be raised yet you continue on the same path." 

This pretty much says it all IMHO. You have no intention of "changing" your operations.

[Glen Carner]

Wow buddahapi, that was a carefully reasoned summery of the issues ELI has with the business practices used by HAN. Nice work.

I'd like to see Glen stick around. But in the face of the 100% accurate facts you have stacked up and hard questions you have asked, I will be surprised if he continues to post.

I'm here and don't be surprised if I stick around.  We have different opinions but I don't think any are invalid.  There is no "right" answer obviously.   Give me a moment.  I may post on other sections of the site as well.

Let me get to some of Buddha's points.  First off the "trolling" issue.  Whatever the mechanism that leads to the artist getting paid for the use of his work is a priority for us obviously.  Call it trolling, collections, whatever, this is the only method currently being used by the stock photo industry to collect money on images that are being used without license.  Have another suggestions?  I would like to hear them which is why I came to ELI in the first place.  The biggest assumption you make is that stock photo agencies are embarrassed of doing this.  That's simply not true.  I recognize that there needs to be some method of reimbursing the artist.  I'm not saying its perfect but you say nothing about the business owner who uses the image having any responsibility what so ever.  Its always on the content creator who is at fault here and that's simply not correct or fair.

Is it immoral to call up a business and say "hello, we see that you are using our image to sell your business services and we would like to work our a fee for past use?"  I think not.  If you have problems with the law, damages or otherwise, know that CSI is trying to use less of that language and more "person to person" communications that users on ELI seem to appreciate.

Regarding DMCA Takedowns.  We have sent out thousands for our artists.  CSI even developed a special script to run them in bulk.   

As for taking advantage of the system.  What system?  You mean the law that we follow in the recovery of money for our agency and artists.  You mean Federal Law?  That system?  Do you expect artists to abandon their collections because of the unauthorized distribution?  That's not realistic.

Regarding innocent infringement.  Where does the responsibility of the business owner to pay for the images he uses on his business website lie?  Do you feel there should be any responsibility at all?  It sounds like you feel that there should be none.  Is that true?

Here's something you may not know.  When a stock photo agency hires an attorney, it is under the attorneys guidance as to what goes into the letter.  Its not the stock photo agency that dictates that but the attorney.  We hire them under the assumption that they know the law best.  It seems that a big problem you have about using the law as its written is attorneys stating the damages and penalties as they are written.  Why is this the attorneys fault?  They look at the law and say this applies, this applies, and that applies.  The receiving party can refute that if they feel its unfair.  You are beating up the attorney for following the law as they feel it is best implemented.

We review pricing often.  What is the value of an image when its being used to sell a products and service worth hundreds of dollars online repeatedly or in the promotion of a business?  The only mechanism a website has to sell its products or services is its images and text.  Should another business make a profit off our photographers images with no compensation even though they used it in their promotion?  We are not talking about someone printing a picture out and hanging it on their wall for personal use or downloading a song.  There is a HUGE distinction to me between for profit use and personal use.  The stock photo industry has never pursued individuals that used our products unless they were being used for profit. 

I think the most affecting point is the "morality" issue for you and maybe others.  So what is the moral position?  You probably agree that the artist should be compensated but you don't like copyright law which is the only mechanism set up to make that happen.  What do you propose?  I am in a position to propose other solutions to artists which we are looking for.  Ill be in here often so we can get to that soon.

Thanks for your feedback and I do hear you.

Stinger and Peeved on the other thread had some great points too.  Let me do my best to jump around after this.

PS - BuddhaPi, did you actually download that Hawaii Pictures Screensaver and see whats on there? Here's a free copy http://ge.tt/5fsdTTI/v/0.   Who or what BrotherSoft is I have no idea.  Ill post about that issue on the related thread because that does need to be refuted.  I can't begin to explain the irony of you accusing VK Tylor or whoever of that because you will not meet a more aggressive protector of his copyrights who flys off the handle at the first sight of unauthorized distribution.

[Matthew Chan]

Regarding Glen's answers to my questions, I do want say that he surprised me by answering more of my questions with more thoroughness than I expected. That was helpful.

I have some inline comments.

#4 - There are many reasons to be on the ELI forums at this time:

• First and formost, I want CSI to develop new solutions for collecting revenue retroactvily that dosent require copyright law.  Is the threat of copyright penalties and accusations of "stealing" the only way to deal with these matters?  I hope not.  The USCO is also trying to address this issue http://www.copyright.gov/docs/regstat032906.html.  I don't know of anyone in the stock photo industry including myself who entered into this business looking forward to the day when pursuing copyright infringements would become standard practice.  Its uncomfortable, inefficient, and contentious work.

I am not going to give free strategy advice for what you might consider as alternatives especially for the "other side". I charge for that kind of consulting and have no incentive to offer free solutions or workarounds. Even if the industry was willing to pay, my advice would be too mind-blowing and reject my ideas. Besides, it is not our job to help the stock photo industry to survive. Every extortion letter that goes out and every dollar that is collected is one more enemy you guys make  and one more friend ELI makes but your industry is too dumb to figure that out.

I find it amusing watching the various high-powered players playing in such a small sandbox kicking sand around at the little kids in that sandbox.  If the stock photo industry wants to follow in the footsteps and demise of Righthaven, it won't bother most of us. The free hint I will give is the industry needs to get outside of itself. It is so incestuous, you guys cannot come up with new ideas. May I suggest you study the software industry (very broad area), publishing industry, and how musicians have profited from 99 cent music tracks and piracy. ELI puts into practice some of those concepts.  Oscar and I give LOTS of information away for free but it isn't entirely a charity service either.

The newspaper industry doesn't get it either and they are dying off. I will be happy to put that obsolete industry away once and for all.

• The issues are not black and white and the majority of users on ELI speak with one voice.  Either that or those of us listening in have "one ear."

You aren't reading enough then.  The agreement is the disgust, anger, and desire for retaliation.  There are actually many subtle differences in the various outspoken people.

• I hope to dispell the myths about my companies which have been created at ELI.

What "myths" do we need to dispel? Oscar and I have always invited people to correct any factual errors we might make. Almost no one has provided that. ELI tries to get it right but in the absence of information, we make educated guesses.

• I can give accurate information and have no entrenched position on copyright law or the industry.

That remains to be seen but I am listening.

• I know the answers to questions like "Why are the cease and desist letter amounts this much?"  "Who dictates what's in those letters anyway?" "How can this be stealing?" and "I found this image on Google so it must be 'fair use' right?" I make no judgment on any of these things but will provide the facts as I understand them.

Actions speak a lot louder than words here but we are listening.

#5 - I didn't know Getty was being more "cautious."  Are you sure this is the case?  I dont assume to know what Getty thinks but these decisions (like any case) are based on it being worthwhile to the company and the principals of the matter. 

I am very sure.

I dont know if HAN filing on cases "works" or what "works" means but we have every intention of following up with companies that are using our photographer's images for profit.  Each company was offered the opportunity to resolve the matter prior to any court filing.  What should our response be when we try and resolve a matter in a way which the law outlines and our effort gets ignored or thrown back at us?  At HAN, we take our attorney's advice which may mean filing a complaint.

That's part of your problem. You and your peers still don't get the massive changes happening with media. Get the blinders off. The trends affect and impact way larger than all the media companies put together. The laws will always be behind the curve.

If you blindly listen to lawyers, that is part of your problem. To you and all the lawyers, this is a legal and copyright issue. But the issue is much larger than that. Certainly, I have the good fortune of having Oscar as a legal advisor but he would be the first to tell you, I keep my own counsel on how I do things.  I am just one guy who didn't put much money into this to fight back. It spawned into required reading by your peers. If I had more money and more time to devote to ELI, the stock photo industry would be hurting even more than it already is by our efforts.

How is that countersuit against HAN working for you? That is what happens when you blindly listen to lawyers. Most smart lawyers should have warned you the possibility of a countersuit. Did no one tell you about legal precedents?  Is your lawyer not following Righthaven or the P2P/Bitttorrent lawsuits? I guess not. You go keep listening to your lawyer for business decisions.

What should you do? Way too long to get into but I already dropped clues. Get the blinders off and change your mindset. Personally, I don't care because I already have a good idea how this well end a few years down the road.


#6 - Im not sure how ELI feels about willful infringement but the law as stated in Lowry’s Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):  “[W]illfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights."  Readers should also know that under the law "willfulness" as a concept appears to lean more towards "you should have known better and ignorance is not bliss" then one might commonly assume as it pertains to copyright.

The fact that you want to quote the legal case still means you still don't get it when it comes to "willfulness". Let me give you another hint. "Win the battle, lose the war." Long-time ELI readers know better.

What you or I think is fair is not necessarily what the law states or how it operates.  Concepts like "deserve" and "I think" don't enter into it when dealing with IP attorneys because they operate in a totally different framework.  Take C & D letters for example and why they are written the way they are.  The attorneys are not manufacturing those points and amounts, they are following the template of the law.  This is why you see "new" lawyers indicating higher amounts and damages.  They are trained to do what the law stipulates and what is best for their client. 

Good thing most of ELI community aren't lawyers then. That is your interpretation, not mine. How many of your "new" lawyers have been "whipped" over this? Go talk to Lisa Willmer at Getty Images and Timothy McCormack.  You don't like my opinion? Go ask Oscar Michelen what he teaches his students. Maybe you have crappy counsel, have you considered that?  Oscar is an experienced practicing attorney, teaches law students, a business manager, online and media savvy, etc. If you pay Oscar enough, he might share his wisdom and insights with you that I get for free. Please don't make us recite all the HAN lawyers that we have tangled with. I think most of them don't want us referring to their names again. It upsets them and I hear a few have disassociated themselves from the industry. It wasn't worth it to them.

That appears to be to pull and fight as hard as they can, with the expectation that the other side will do the same, best we die bloody and battered in the middle of the courtroom where the truth be found along with the adulation our clients.  Really?  That's the only way human beings have come up with to deal with the unlicensed use of a stock photograph?  As long as the use of images without license is seen as a civil or criminal issue, it will be handled in a way that is consistent with the law.  Ironically, it's the more seasoned attorneys who drift away from the "letter" of the law.

Actually, your side won't do much to fight for free. See how many lawyers believe in the cause so much to work for free or perhaps even a steeply discounted rate as Oscar does. If they are working "for free", I don't see anyone lining up publicly to say anything on your industry's behalf.  The ELI Community fights for free. Oscar and I are the only ones who gets financial compensation for what we do. Oh, did I mention what fuels them?  Anger, disgust, and retaliation.

Your industry has no idea what you are up against.  They still think it is a copyright law issue, copyright registration issue, etc. These are only talking points. There are much larger forces at work here.

Do I agree with the law?  There must be some responsibility on the part of a business who uses other peoples work especially when the use is for profit.  Where that line is drawn is a matter for the courts to determine (as long as the only solution remains a legal one).

Do you even know I am in the publishing and media business? Do you know there are others like me? Many of us would disagree with you.  If I became a photographer, I have a good idea how I would operate. I wouldn't operate like Vincent Tylor. He lives in a small world and small-minded and doesn't get the big picture.

#7 - Market value of our rights-managed images is provided by FotoQuote software (which nationally samples prices), the photographers themselves, and an evaluation of other agencies.

Maybe, maybe not. I have some experience in determining market values in my real estate business, my publishing business, and selling many other products online over the years.  It rarely matters what we want, the market does what it wants.  Don't believe this?  Talk to Facebook this week.  No one cares what FB thinks the value should be. The market does what it wants.  The independent market sets market prices, not what photographers agree they will sell for. A listed price with little or no sales is NOT a market price.

#8/9 - Unfortunately I cant comment on this.  Sorry.

No problem, we will run with what we have. Sorry if you don't like the "mythology" ELI creates then in the absence of information.

#10 - See #4.  I was disheartened to see that CSI's attempts at trying internal collections that moved away from formal notices, legal citations, penalty fees, and attorney involvement with the potential of follow-up action were met with suspicion on ELI.  Our account director has been specifically trained to try and avoid words like "copyright" "infringer" "stealing" theft" or other accusatory language because it is so hostile and unproductive. Nothing would please me more then for CSI to be successful with our new approach at least at first contact.  ELI be proud, it was previous comments you made about acceptable practice that inspired this.

No one has an axe to grind with Lynne per se. It is WHO and WHAT she is associated with that initiated this.  Guilty until proven innocent. Does that sound a bit familiar? Glen, you have a lot of work to do to turn your image around.

HAN like ELI is made up of people too.  As are the attorneys we hire, the people using the images, the photographers, etc.  Each of us is trying to do the best we can to feed our families and keep the world from falling apart around us. 

I don't buy it. No one holds a gun to the attorneys head to take a case. Regarding "feeding families", tell that to people in the newspaper industry, Blackberry makers, factory workers, and other dying industries. Sometimes, in life, you have to make a career or business change. Me and many real estate investors around the world got our asses handed to us. I never signed up for it but here I am bruised and scarred.  Others lost their homes and real estate entirely due to forces outside of their own. Let us not get into the "feeding the family" issue. No one is going to feel sorry for Vincent Tylor lost income over photos he took 10-20 years ago.  No one would feel sorry for me that books I wrote 7-9 years don't make as much money now in the recession than it did in high-flying times.

We follow the law which in the case of copyright is very inflammatory.  So inflammatory that even companies that CSI contacts with an attempt at a business to business resolution with zero penalties, no mention of attorneys, accusations of theft, and discounted license fees sometimes respond through law firms because they are so distressed when discussing copyright.  Both sides continue to do this and I don't see anyone saying "here is another way that is supported by both the industry and people using the images" to resolve this quickly, reasonably, and efficiently.  It may not even feel fair to both parties but for smaller claims especially, any alternative should be considered and tried.  That's why I am here.

I have plenty of ideas that I would do for myself if I was in your biz. I have no incentive to provide my ideas to your situation them because it isn't my job. I don't waste my time to support or help people that don't listen. I recently shut down a project where I was freely advocating for a high-profile entertainment blogger. But he was too blind to see the merits of what we were doing and proposing for him. We even offered our phone numbers and provided emails. Still nothing. Just someone who desperately clings to the hope it will all work out in the end.  Dumb and just doesn't get it when someone tries to tell him point-blank. He is the one racking up tens of thousands of dollars in legal fees defending a stupid position that doesn't need defending.

Your industry has intelligent people that work in them but too small-minded and too blind to see the larger forces at work. Too incestuous and industry with very few new ideas.  You can use the ELI platform to argue your case but I firmly believe that the stock photo industry will eventually go the declining path of the newspaper and large publishing houses.

[Glen Carner]

BRAVO to Budd! We are totally sympatico on this one!

The only thing that I would add is something that Oscar wrote that is also very disturbing to me....

"With respect to HAN and CSI Glenn, as you likely know, I have been able to reach an amicable settlement several times with your respective lawyer(s) when a calm, rational, law-based discussion is had between us. For example, despite the sometimes rancorous flak that Peter Holt received on here a little while ago, recently he and I were able to quickly resolve a claim he was handling for HAN to everyone's mutual satisfaction. So it makes me a bit angry when I see that despite these positive interactions., HAN and CSI continue to pound people with the same exorbitant, threatening demands. You know what these images are worth and the various defenses to serious damages that can be raised yet you continue on the same path." 

This pretty much says it all IMHO. You have no intention of "changing" your operations.

Peeved, you had a good point on the other thread which I missed but hope to get soon.  Standards of practice for the C & D letters was actually a thread that I hope to build on here one day.  Its not enough to tell the attorneys, "Hey, I think your letter is this or that."  In all honesty, I don't think you guys dislike the attorneys, I think you dislike their letters which absolutely can be harsh.  I think we can shape the conversation for IP attorneys in general as what are best practices should be in dealing with these matters when sending a letter.  What should be contained and what shouldn't be.  What gets them posted on the ELI forums and what doesn't?  What does the bar say as being excessive or inappropriate?  It's easy to complain but you have the forum here to help shape that conversation.  Hopefully ELI has not spent so much time thinking about whats wrong with these actions that they cant come up with a list of what's right.  It would be great to point new attorneys to a constructive ELI thread or post and say, "this seems to be reasonable practice for a C & D letter regarding photographic infringement."  Where are Oscar's letters?  Can we see one?

[Matthew Chan]

More inline comments.

I'm here and don't be surprised if I stick around.  We have different opinions but I don't think any are invalid.  There is no "right" answer obviously.   Give me a moment.  I may post on other sections of the site as well.

No problem. Go for it.  In many ways, you may drive more traffic to the ELI Forums.

Let me get to some of Buddha's points.  First off the "trolling" issue.  Whatever the mechanism that leads to the artist getting paid for the use of his work is a priority for us obviously.  Call it trolling, collections, whatever, this is the only method currently being used by the stock photo industry to collect money on images that are being used without license.  Have another suggestions?  I would like to hear them which is why I came to ELI in the first place. 

I do have suggestions but you won't like them and I am not going to offer them. No incentive to. Sorry but like so many others, I believe in karma. Suggestions have been offered in the past but you might have to dig for them.

The biggest assumption you make is that stock photo agencies are embarrassed of doing this.  That's simply not true.  I recognize that there needs to be some method of reimbursing the artist.  I'm not saying its perfect but you say nothing about the business owner who uses the image having any responsibility what so ever.  Its always on the content creator who is at fault here and that's simply not correct or fair.

Well, that doesn't help you case. If they are NOT embarrassed by it, then I would say be prepared for the fiery reaction. I would also like to say you guys don't have the corner on content creation.  I create plenty of content.  Some of it paid, some of it free. I have had content plagiarized from me. I never had to send an extortion letter.  Oh, to clarify a point.  A C&D letter is NOT a C&D letter when it comes with a money demand.  How do I know?  I have written C&D letters and they work.

Is it immoral to call up a business and say "hello, we see that you are using our image to sell your business services and we would like to work our a fee for past use?"  I think not.  If you have problems with the law, damages or otherwise, know that CSI is trying to use less of that language and more "person to person" communications that users on ELI seem to appreciate.

Not immoral. Feel free to make phone calls. But just expect the next step which I already know.  For every move, there is a countermove. The biggest problem you have is that HAN and you have a terrible reputation right now because of your legal hounds.

Regarding DMCA Takedowns.  We have sent out thousands for our artists.  CSI even developed a special script to run them in bulk.

Really?  Show us some. We are interested.

As for taking advantage of the system.  What system?  You mean the law that we follow in the recovery of money for our agency and artists.  You mean Federal Law?  That system?  Do you expect artists to abandon their collections because of the unauthorized distribution?  That's not realistic.

Not that. Taking advantage of people's legal ignorance in getting higher dollar amounts than could normally be recovered or far above market values. But we have that covered through our ongoing educational campaign.  In many ways, if your industry keeps sending out extortion letters, it's good for ELI.  Keep it up.

Regarding "artists", most are business-ignorant. That is why the term "starving artists" exists. Again, check out software developers, publishers, and musicians for are doing innovative stuff. For some reason, artists feel entitled that things should never change. Things are changing whether they get it or not. Personally, it doesn't matter to me.  If was a photographer, I know what strategy I would use. It wouldn't be this hate-mongering campaign they have to endure.

Regarding innocent infringement.  Where does the responsibility of the business owner to pay for the images he uses on his business website lie?  Do you feel there should be any responsibility at all?  It sounds like you feel that there should be none.  Is that true?

More people would pay settlements if they were lower.

Here's something you may not know.  When a stock photo agency hires an attorney, it is under the attorneys guidance as to what goes into the letter.  Its not the stock photo agency that dictates that but the attorney.  We hire them under the assumption that they know the law best. 

I disagree. I have hired and worked with lawyers. If the person doing the hiring is too dumb or have enough conviction, of course the lawyer will do what they want.

It seems that a big problem you have about using the law as its written is attorneys stating the damages and penalties as they are written.  Why is this the attorneys fault?  They look at the law and say this applies, this applies, and that applies.  The receiving party can refute that if they feel its unfair.  You are beating up the attorney for following the law as they feel it is best implemented.

That is THEIR opinion but some of it is just BS and over the top. If they felt so right in their position, we wouldn't be seeing so many letters becoming more tamer and sanitized.  And yes, I condone going after the attorney in every legal way possible if I felt they were being in appropriate or being extortionate. (There is that word again...) Attorney's want to get paid to fight, well they should be prepared to get beat on.  Lawyers won't do it because they look at it as their jobs.  But us non-lawyers know they can choose or not choose to do the case. And if they can't take it, they should stop being lawyers or start doing other things like contracts.

We review pricing often.  What is the value of an image when its being used to sell a products and service worth hundreds of dollars online repeatedly or in the promotion of a business?  The only mechanism a website has to sell its products or services is its images and text.

That is BS. Videos are also used and most are free in the selling process. I also sell books, manuals, and audio programs from $10 to $200 on real estate management and real estate financing. They don't buy it because they like me.  They do it to make or save a lot of money. I have charged for my seminars but I don't get a piece of what they do for profit.  Does that mean if they do a multi-million dollar deal and make a ton of money, I get a piece of that?  There is royalty free music and photos also.  They don't get a piece of the action. Every content creator can dictate their terms but if they think the general public will stomach getting them getting a piece of their action, forget it.  Even Getty Images bought iStockphoto for a reason. They know that more and more people want simple use for no strings attached, profit or not.


Should another business make a profit off our photographers images with no compensation even though they used it in their promotion?  We are not talking about someone printing a picture out and hanging it on their wall for personal use or downloading a song.  There is a HUGE distinction to me between for profit use and personal use.  The stock photo industry has never pursued individuals that used our products unless they were being used for profit.

I disagree.  There are no shortage of extortion letters to small-time bloggers, mom-and-pops, non-profits, and other smaller concerns.

I think the most affecting point is the "morality" issue for you and maybe others.  So what is the moral position?  You probably agree that the artist should be compensated but you don't like copyright law which is the only mechanism set up to make that happen.  What do you propose?  I am in a position to propose other solutions to artists which we are looking for.  Ill be in here often so we can get to that soon.

Already answered this elsewhere on the monetization issue.

[Peeved]

BRAVO to Budd! We are totally sympatico on this one!

The only thing that I would add is something that Oscar wrote that is also very disturbing to me....

"With respect to HAN and CSI Glenn, as you likely know, I have been able to reach an amicable settlement several times with your respective lawyer(s) when a calm, rational, law-based discussion is had between us. For example, despite the sometimes rancorous flak that Peter Holt received on here a little while ago, recently he and I were able to quickly resolve a claim he was handling for HAN to everyone's mutual satisfaction. So it makes me a bit angry when I see that despite these positive interactions., HAN and CSI continue to pound people with the same exorbitant, threatening demands. You know what these images are worth and the various defenses to serious damages that can be raised yet you continue on the same path." 

This pretty much says it all IMHO. You have no intention of "changing" your operations.

Peeved, you had a good point on the other thread which I missed but hope to get soon.  Standards of practice for the C & D letters was actually a thread that I hope to build on here one day.  Its not enough to tell the attorneys, "Hey, I think your letter is this or that."  In all honesty, I don't think you guys dislike the attorneys, I think you dislike their letters which absolutely can be harsh.  I think we can shape the conversation for IP attorneys in general as what are best practices should be in dealing with these matters when sending a letter.  What should be contained and what shouldn't be.  What gets them posted on the ELI forums and what doesn't?  What does the bar say as being excessive or inappropriate?  It's easy to complain but you have the forum here to help shape that conversation.  Hopefully ELI has not spent so much time thinking about whats wrong with these actions that they cant come up with a list of what's right.  It would be great to point new attorneys to a constructive ELI thread or post and say, "this seems to be reasonable practice for a C & D letter regarding photographic infringement."  Where are Oscar's letters?  Can we see one?

So if I understand your post correctly, your sole purpose here is to figure out what letter recipients feel is "appropriate dialog" for a demand letter? This of course in turn would lesson the amount of State Bar and Attorney General complaints.

[Matthew Chan]

 Standards of practice for the C & D letters was actually a thread that I hope to build on here one day.  Its not enough to tell the attorneys, "Hey, I think your letter is this or that."  In all honesty, I don't think you guys dislike the attorneys, I think you dislike their letters which absolutely can be harsh. 

That is an understatement. Many are extortionate.

I think we can shape the conversation for IP attorneys in general as what are best practices should be in dealing with these matters when sending a letter.  What should be contained and what shouldn't be. 

You are a little late to the party. It's already happening. Go to our ELI Documents Library. Quite a few examples of lawyers adjusting their ways. They read between the lines and they follow ELI also.

What gets them posted on the ELI forums and what doesn't?

Anything I haven't seen before and have permission from the letter recipient gets posted.  We report on this subject so we post almost anything new we get.

What does the bar say as being excessive or inappropriate? 

They don't have to say anything. Anyone can file a complaint if they feel they are being wronged. The bar can disregard it if they disagree with the complaint.

It's easy to complain but you have the forum here to help shape that conversation.  Hopefully ELI has not spent so much time thinking about whats wrong with these actions that they cant come up with a list of what's right.  It would be great to point new attorneys to a constructive ELI thread or post and say, "this seems to be reasonable practice for a C & D letter regarding photographic infringement." 

Sorry, I don't think it's my job to do that. It is something you would have to pay me for. I don't give free advice like that.

Where are Oscar's letters?  Can we see one?

You might have to hire Oscar for that. I can't see him giving one for free especially if it's going to "the other side".