Notification of Case Escalation

[SoylentGreen]

I agree with you Katrina.  Again, just my opinion... but I've read the "law".  The law is pretty specific.
For the most part, nothing ever comes of these things.  People paint, and nothing happens most times.

However, when somebody creates something (like a painting) and makes a lot of money from it, opportunists will attempt to "cash in", even if it's only over some photo that looks "similar".
The tactics of copyright trolls are aimed at simply forcing a settlement that's more economical for the victim than fighting in court.
When this tactic works, and the painter pays a "settlement", it doesn't matter what the law states, or whether the painter is "in the right" or not, as the troll gets what he/she wants.

On the other hand, it's quite difficult to "win" an infringement case over a "concept" as shown in the cases below:

Gentieu vs Getty:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00135

Diodato vs Spade:
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20050927_0001342.SNY.htm/qx

S.G.

[Katerina]

That link with Obama picture is interesting.... What if the painter just draw the portrait of  Obama? Of course he would look alike as in the picture.... Or what if that painter saw that press over TV, put on pause, and then draw? There could be everything....May be I am not right, but drawing is a drawing, and photo is a photo.....Well, anyway, if it is settled down...

[Katerina]

SoylentGreen, I read the copyright law too I couldn't find anything there about this topic, that's why I asked. Anyway, if I am drawing a picture.... I am creating my own art with my own hands, but not use the same digital image....I can find the the same flower, but I can like the IDEA of composition, or how it is set on the photo, etc....and use it in my drawing. The IDEA cannot be copyrighted. That's the law.
But yes, you are right, if copyright trolls see the opportunity of fast and easy cash - they will do that.  Anyway - hard to prove anything.
I haven't visited this forum for a long time, since that issue of my husband with Masterfile. Now, it is amazing how many new copyright trolls appeared to make money on that. But I wasn't surprised, btw. It is just ridiculous. Thanks God, judges uses common sense in these cases.
Now, it looks that you can infringe even if you watch some videos or photos online.... Not me to teach, but when you watch video or a picture, basically you download this to the "cache folder" on your computer.... right? This is how the internet works. I don't think that they will ever stop "infringement"....

[Robert Krausankas (BuddhaPi)]

don't confuse "watching" something online, which may or may not be cached, with "downloading" a movie or something from a bit-torrent site, 2 completely separate beasties

[Robert Krausankas (BuddhaPi)]

BTW what was your husbands outcome with Masterfile? Just curious...

[Katerina]

Yes, I do understand the difference between "watching" and using bit torrent.
As for my my husband's issue (now ex-husband), he settled it down with McDougal of Masterfile. I cannot give the details of settlement though, as he signed the confidentiality agreement upon settlement.

[Robert Krausankas (BuddhaPi)]

Thats to bad, he settled...for what it's worth and I don't really care, you can share that info, because it was "he" that signed the agreement not you...they reallylike to try to cover their tracks..if it were me ( I would never settle) and was going to settled I would never sign a confidentiality agreement, as I want to share with the world..

Yes, I do understand the difference between "watching" and using bit torrent.
As for my my husband's issue (now ex-husband), he settled it down with McDougal of Masterfile. I cannot give the details of settlement though, as he signed the confidentiality agreement upon settlement.

[Katerina]

well, I just couldn't handle all this considering what was happening afterwards. Though, he is happy with settlement. That's fine then. But I have been visiting this forum from time to time, getting some updates on the whole situation with these copyright trolls, for the purpose of education. Again, I was impressed by the number of new companies who try to get fast and easy cash.

[RPY]

This seems to have gotten a little off topic..... Since there is no real way to prove the origin of the image, I am looking for a little advice on how to proceed. I have been reading as much as I can so that I do not ask the same questions twice.

After doing more research I have found the template I used on a page that states the images may be used under the Creative Commons license. It still seems as if the GI image is actually using a portion of the image from the free template site. Does this have any effect on anything, or will they just continue to hound us about it? If I respond from the company, then they are officially linked to the site.

Option 2 is to respond to them stating the web page is not owned, operated, or endorsed by the company. This is a true statement as I do not work for the company, did not get paid in any way, and I personally paid for the hosting/registration.

Option 3 is to ignore the letter until forced to address it. (the LLC may not exist much longer due to financial issues, so this is not totally out of the question.

I know the easy way to handle this is to just join the program, but at this point it is really not an option for me.

Any advice is greatly appreciated.

[Robert Krausankas (BuddhaPi)]

Thats the problem with "FREE template sites, no one know where anything came from and if in fact the creative commons license even matters.. so a couple of question, so I can better give you answers..

was the letter addressed to you or your LLC ( I'm assuming it was addressed to you)
Is the domain name registered with your name or the name of the LLC? ( I will also assume it has your name on it)

If my assumptions are correct, then replying from the company will serve no purpose as you own the domain, so it's your site.

They will continue to hound you if you ignore, or if you respond to it. Bottom line is they want your money. Eventually it will go the route of many others, couple of letters from Getty Images, then escalted to NCS Recovery ( which you will then need to spend time throwing it back to Getty), then letters ( not so nice ones ) will come from Timothy McCormack and they will probably demand more at that point.. Same story different recipient, they will not go away unless you can show then an invoice and license to use the image. If you can't deal with, or have the stomach to deal with this for the next 3 years, hire Oscar, they are then bound by law to contact only him, and will not bother you anymore..

[RPY]

The letter is addressed to the LLC. The name it is addressed to is close to, but not the correct name of the company. Just as well, the domain name is only a portion of the LLC's registered name.

The website is registered in my name.

[Robert Krausankas (BuddhaPi)]

If the LLC is closing down shortly, might as well wait it out, I would probably edit the domain info to reflect your name and the LLC, once the LLC is gone they are dead in the water, and being it's an LLC they can't come after your personal assets. This may not get them off your back, but they could sue a company that doesn't exist, at which time I would let them know that if they continue to badger you , you will have no choice to take action and file complaint with the State Attorney General, and you get a letter from their attorney McCormack you can also complain to the bar assc....depends on how far you want to go with it..

[SoylentGreen]

Nice to see that Katerina is still following the posts here, and contributing again.
Sorry to hear about your divorce, Katerina, however, I'm happy to hear that you've put that infringement issue behind you.

As copyright laws don't go into great depth about "derivative works" and "fair use" in those terms, I think that judges use recent precedents to help guide their decisions.

Readers of the forum may be interested in "The Professional Photographers Legal Handbook"
Don't ask me why it's available online like this; but that's not my concern.  Read it online, don't save it to disk, and you haven't "infringed".
http://images.mescasa.multiply.multiplycontent.com/attachment/0/Sec60AoKCCUAAEnPbSg1/The%20Professional%20Photographers%20Legal%20Handbook.pdf?key=mescasa:journal:63&nmid=231756627

Refer to page 79 "Parody as Fair Use".
In Rogers vs Koons, Koons made a sculpture of the subject matter of Roger's photo, then took a photograph of that sculpture.
Koons lost the infringement case, because the court determined that the photo of the sculpture, while "adapted in a different medium, photographs of the sculpture could harm the original photographer’s market."
My interpretation of this would be that while a painting or sculpture based on a photograph created by another artist might be permissible, the sales of photographic copies of the painting or sculpture might harm the original photographer's market, and therefore be an infringement.

The book makes a further reference to a case against Koon, in which he prevailed (based on fair use) on page 81.
In Blanch vs Koon, Koon had created a painting based on a collage made from a photograph taken by Blanch.
The court found that Koon's use of Blanch's material was "transformative"; that is "he used Blanch’s image for a 'sharply different' purpose than Blanch’s purpose in creating the image."
Additionally, the court found that Blanch's use of the photo was for a glossy magazine inclusion, but Koon's use was intended for an art gallery exhibit.
Furthermore, Blanch hadn't used or licensed her photo for use after that first magazine publication, and therefore Koon's use did not “cause any harm to her career or upset any plans” that she had for the photograph.

The book points out that the courts have begun to take greater note of the "purpose of the person making it (the transformation)", rather than the actual "nature of the transformation" (artistic medium and percentage of the original work used for example).

Again, more often than not, these sorts of things are settled out of court.
Here's a link explaining a lawsuit over a graffiti mural that appeared for a second or two in a Chrysler commercial:
http://www.partridgeiplaw.com/graffiti-and-law-copyright-%E2%80%93-framed-jennifer-lopez%E2%80%99s-fiat-commercial

Another graffiti artist has lost an infringement case against him based on a stencil "copy" of a RUN-DMC photo:
http://www.petapixel.com/2011/06/10/photographer-victorious-in-copyright-lawsuit-against-graffiti-artist/
Some analysis of the above:
http://www.streetartnews.net/2011/01/thierry-guetta-aka-mr-brainwash-sued.html

Clearly, the most uncertain (and therefore the most risky) court cases are those that "the law" really doesn't cover.
One cannot be sure of who will actually prevail in such circumstances.

S.G.

[RPY]

It's not guaranteed that he will close down, it's just not in the best shape right now. If it was going out for sure, I wouldn't worry about it.  This is why I am having trouble with how to approach the issue.

Can the LLC be legally "connected" to the site since it benefits from its existence? If it is, my best option seems to be to send them a response letter from the company stating the creative commons license, then waiting for them to respond, then asking for proof of copyright.....And so on...

If they cannot be legally connected, I may write the letter from the LLC stating it is not associated with the site. This could have the possibility of leading them to begin harassing me personally.

I am still a little unclear on what defines "ownership" of a site?

[Robert Krausankas (BuddhaPi)]

Generally speaking the "Registrant" name on the domain is the "owner" of the site.. what I do since I handle many domains for clients is use their comapny name as the registrant, my name and company name as the administrative and technical contact, therby making them the "owner", but I still have control over the domain.

As far as connecting the 2 , I guess it would depend on the what the site contains, if it contains the company name, then yes they can be connected ( obviously).. Getty may get tired of dealing with one or the other and switch targets as well