Notification of Case Escalation

[RPY]

Here is my story...
I am not at all a web page designer, I just have very basic skills.
I set up a 4 page static site for my brothers LLC a while back. He has a one-man LLC and needed something on the net. The site was based on the usual "Free Template". Earlier this year he received a letter from GI, but ignored it thinking it was a scam. Then this week he received the "Notification of Case Escalation" and I started researching GI. They are asking for $1225 for an image used in the background.
Now here is the questionable part:
1) The image is "Highly" modified. Only about 20% looks similar.
2) The address is only similar to the registered name of the LLC
3) The site is actually registered in my name.
Does any of this have an affect?
Any advice is greatly appreciated.

[Jerry Witt (mcfilms)]

For number 1 I guess people would have to see the two images to determine if it was really as heavily reworked so that only 20% remained. There _might_ be a reasonable "fair use" of the original if it was more for reference than actual content. I don't know what you are asking in #2. If it is mailing to the wrong address and he is still somehow getting it, I guess you could ignore it. But they will eventually send a Fed Ex to that same address and I presume someone will sign for it.

And for #3 if you could get your brother to play along he could simply reply that an outside marketing individual (you) took it upon themselves to create the site. He could point out that the site is not registered by the LLC and suggest they contact you.

I don't know where you'd want to take it from there. I can visualize a scenario where you refer the copyright troll back and forth for a while until they buzz off.

[RPY]

This afternoon I have been able to do a little more research, specifically into the artist.
The image is listed by GI as a "High-Res Photograph". The majority of the GI image actually is a photo while the rest is an illustration. The portion of the image that is the similar to the template I used and the GI image is the illustration.
Now the interesting part... the artist listed on GI only takes photographs. His portfolio only shows photographs and his bio only mentions film and video. There is not a single illustration on his page.
From the way it looks, the image from the template is actually the original.
Could GI actually be infringing on copyright of someone else?...

[RPY]

For number 1 I guess people would have to see the two images to determine if it was really as heavily reworked so that only 20% remained. There _might_ be a reasonable "fair use" of the original if it was more for reference than actual content. I don't know what you are asking in #2. If it is mailing to the wrong address and he is still somehow getting it, I guess you could ignore it. But they will eventually send a Fed Ex to that same address and I presume someone will sign for it.

And for #3 if you could get your brother to play along he could simply reply that an outside marketing individual (you) took it upon themselves to create the site. He could point out that the site is not registered by the LLC and suggest they contact you.

I don't know where you'd want to take it from there. I can visualize a scenario where you refer the copyright troll back and forth for a while until they buzz off.

In response:

2) I actually meant the letter is technically addressed to a company that does not exist.

Is this not true extortion if they are addressing these to a company that the website is not registered to, or is a phone number an email address enough to link the company to the site?

[Matthew Chan]

I have discussed "fair use" with Oscar a few times. I think I am finally understanding what he is saying to me and I am understanding where the line might be.  People are confusing derivative work with fair use.

On ELI, we "get away" with a lot simply because ELI is a commentary, critiquing, editorial, reporting website.  We don't simply post other people's content and material for the heck of it.  We do so for very specific reasons.

For others, ss far as I am concerned, even if there is no fair use argument available, as a practical matter, courts will take a moderate view.  I simply don't believe people will be financially devastated even if you "lose".

Even if someone commits copyright infringement (1-4 images arena), the copyright trolls will have you believe you committed this criminal act where the penalty is tens of thousands of dollars.  To me, I would equate more of a speeding ticket.  Certainly very inconvenient to get one and deal with but not the end of the world. Unfortunately, newbies take extremes.  They either ignore it or they become melodramatic about it.

Oscar Michelen Says:

Fair use is an affirmative defense to copyright infringement and has very limited applications. Most people seem to think that it means that if I am not making any money off the use I can use it.  That is not true.  It must be for a strictly educational purpose or for critique or commentary or to make fun of the copyrighted work (parody). That's it.

Some folks also believe that there is some rule that if you change it by 70% or so that's fair use because you've made it different. This is a complete fiction and the copyright holder usually also owns the rights to make  'derivatives" of his copyrighted material. 

[Jerry Witt (mcfilms)]

I understand that, and I guess my use of the term "fair use' was incorrect. But like "fair use" there is a bit of a blurry line between infringement and inspiration. If I see your picture of a kitty with a slice of bread around his head and I crop this image and put it in a collage of other kitty's, I have infringed. If I see this kitty and it gives me the idea to paint a cat between two slices of bread, I have not.

So when someone says "only 20% of the image remains" I wonder how different it really is. I mean you'd have to completly change the animal, not just the bread. (I also wonder how picscout picked it up.)



By the way this image is for educational purposes and is from the original article at http://www.tntmagazine.com/news/weird/cat-breading-putting-your-cats-head-in-bread-trend

[RPY]

I guess in this instance the issue of "fair use" is moot as I cannot provide the original artist's information, and GI probably will not provide any ownership info. If the GI picture is infringing on someone elses copyright, im sure they will not provide anything. I understand I can ask for ownership information as a delay tactic, But this may not be the best strategy.
What opinions are there about writing a letter stating the website listed on the demand letter is not owned or operated by my brother's company and leave it at that?

[Lettered]

I guess in this instance the issue of "fair use" is moot as I cannot provide the original artist's information, and GI probably will not provide any ownership info. If the GI picture is infringing on someone elses copyright, im sure they will not provide anything. I understand I can ask for ownership information as a delay tactic, But this may not be the best strategy.
What opinions are there about writing a letter stating the website listed on the demand letter is not owned or operated by my brother's company and leave it at that?

personally I really like timtime's approach shown here:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/my-proposed-getty-letter-response-and-settlement-offer/msg6480/#msg6480

I think the letter in the above link has all the elements I would want in the unlikely event I landed in court over one image:  a well thought out offer, no admission of guilt, demand for proof.

Of course, I wouldn't copy that letter, rather I would use it as a guide for a customized response.

just my 2 cents ... keep the change

[Moe Hacken]

PicScout and TinEye use pixel matching algorithms to detect even a very small portion of an image coming directly from another image. If the pixels match exactly even on a 72x72 pixel sample, they can make a case that it's nearly impossible it didn't come from the same image. The extent of manipulation of an image is a very vague notion out there, almost myth-like. If you used any portion of the image in question and it can be "recognized by the artist" (albeit only by using very sophisticated software), then they feel the can come after you.

I'll give you an example of an image that was being given away explicitly as a free background seamless tile by a person who remembers pulling the original image from a royalty-free stock photography CD-ROM you could buy anywhere. She remembers this happening about 10 years ago. She used cloning and stamping techniques to create a sort of collage image tapestry:

http://silviahartmann.com/background-tile/images/island-paradise-tile.jpg

Now here's the image in question, a work claimed by Vincent Khoury Tylor and Hawaiian Art Network LLC:

http://photo.net/photodb/photo?photo_id=1181042&size=md

In my mind there's little question that this VLK image was the source used for the seamless tile. Would you say it's been altered 20%? 50%? 75%? Mister Tylor feels he has been ripped off to the tune of over $8,000 in spite of the fact that he sell a 4x6 print of the very same image for $10.00:

http://www.hawaiianphotos.net/detail.aspx?ID=2

So while I agree that in fact his image was used (if you use photoshop layers, you can see the pixel match on the palms and waves), I have to question a couple of things. First, did Mister Tylor sell his images away to some stock clearinghouse company way back in 2002, maybe one by the name of Webshots, and then turned around in 2009 and registered a large batch of images under his name?

The specific title is not in the copyright.gov records, it's included in a batch registration titled "Hawaii 2000" and registered under the name of a person who appears to be Mister Tylor's wife.

The TinEye archive shows a cached image of the photo in question which had been posted on Webshots.com. Mr. Tylor is a member in good standing and if I don't remember wrong, this image was still posted on webshots only a few days ago. I clicked on the link and got an "under maintenance" page instead of the image. See if that's what you get:

http://www.webshots.com/pro/photo/3158696

This image is present in so many "innocent infringement" scenarios, it's not even funny. It could be Mister Tylor's image was pulled out of the stock CD virtually everywhere in the free world where you could buy it, and anyone who had paid for the CD was "seeding" the internets with this image.

Heck, I even found it used as a PRINT PRODUCT! Of all things, a jigsaw puzzle being offered in the Italian version of eBay! Isn't this copyright abandonment? It's been out for years on CDs, websites, print products, etc. I could have purchased (and still can!) the 1,500 piece version of the puzzle for a mere 13.50 euros! Notice the absence of his watermark on the lower right hand corner:

http://www.ebay.it/itm/PUZZLE-1500-PZ-CLEMENTONI-73193-31937-84X59-HAWAIAN-PARADISE-CASAFASHIONITALIA-/330726338079?pt=Giochi_da_Tavolo_e_Puzzle&hash=item4d00d36e1f

There are so many different versions of this image out there that have been used by kids, nonprofits, AOL grannies, and all kinds of imaginable demographics, and it has been repurposed so many times for so many uses, I'm tempted to do a slideshow including every iteration of this image. Some of them made the coffee come out of my nose, such as:

http://photos1.hi5.com/0032/775/723/HDiLX3775723-01.jpg

http://www.lug.bg/images/tve1.jpg

Hey, it's even been on TV! I wonder how many million bucks they owe for that.

There's definitely something very strange going on with this image. Check out the TinEye database results for more information. Here's the URL for the search:

http://www.tineye.com/search/6574c84bf7c5e132b42d04ed16dca0c7e7565253/?page=1&sort=score&order=desc

One thing is for sure. This image inspired the "eye cheese" sensibilities of lots of people all over the world. Let's give respect where it's due.

[Robert Krausankas (BuddhaPi)]

Keep in mind it's not just "this image" there are dozens if not more of his oimages all over the web, and yes I strongly feel he is guilty to some degree of seeding these images and not trying to stop it...this is a very good post, the more of this we can gather the better it will be for those how go to court to fight this..A judge would be very interested to see this..Clearly this ass hat Vincent K Tylor is not making money being a faux-tographer, as he has resulted to underhanded scummy extortion tactics, he might consider rejoing the Jehovahs Witness Program, cause one day karma is going to bite him in the ass and he'll be looking for some sort of salvation...

[Moe Hacken]

Buddhapi, again you're absolutely right. This is just ONE image! We could repeat this exercise with any image in his "Hawaii 2000" set, or any of the sets and individual works registered under his name. Would we get similar results?

It's sad to see instances like little Hannah Montana collages on deviantart.com pages, a site that is very popular with high school and college kids with creative inclinations, were included in the TinEye results. Those have been taken down for the most part. One has to wonder if they squeezed the parents for a few hundred bucks in all those cases or if they were decent enough to let them go with a "cease-and-desist" request.

[Katerina]

Hello all! I have a quick question and wonder what you think, just don't know what topic it would apply to....
Let's say I saw a photo of a rose on internet, and draw a picture of this rose with my own hand (on a paper with paint and a brush). But the drawing looks very similar to that photo: the same shape of the flower, colour, position, etc., so you can easily recognize, that the drawing was made using that particular photo. Now, I take the digital photo of the drawing and use it for website design, or a greeting card for sale, or smth else like this (for business purposes). Would the copyright be applied in this case? Would the copyright holder of the digital image of that rose I made a drawing of, say - hey, they used my image to create a drawing they use for business now? Logically, it shouldn't be like this, as I draw this with my own hand and I do not use his/her particular digital image on my website? What do you think, guys?

[SoylentGreen]

Katerina, my opinion is that it doesn't meet the "strict" requirements of "infringement" under law.
However, if the author of the original photo wanted "compensation" or for the painter to "cease and desist", he/she would could to go to court to argue the case if the painter didn't comply.
Then, it's up to a judge to interpret the law... and who knows what a judge would decide?
It also depends how well one can argue their case.

You may recall this case:

http://www.wired.com/threatlevel/2011/01/hope-image-flap/

http://www.theblaze.com/stories/artist-behind-obama-hope-poster-pleads-guilty-to-criminal-contempt-in-nyc/

In the above case, an out-of-court settlement was made.  That's how many of these things end up.

So, I guess that we can all agree that making a painting of a photo is sometimes risky at best.

S.G.

[Robert Krausankas (BuddhaPi)]

Theres also an example of this concerning VK Tylor being upset someone painted one of his photos and was selling the painting without permission:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/vincent-k-tylor-tuesday!/..

In most cases I think fair use would come into play, with this Tylor sample it is pretty clear, that it was a copy of the original, which is a slippery slope...now if the artist was to use the flower itself as the subject, with a different composition / background, there would be an issue..after all it's a friggin flower, I have them in my backyard, and TYlor couldn't claim copyright..

[Katerina]

That's interesting....So, basically, if I see a photo of the rose, and draw it in a little bit different shape/size, using a little bit different shades of the colour, composition, background, etc, in this case it will be hard to say that this particular image was used to create a drawing on a piece of paper....right?