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Author Topic: photoattorney.com / Carolyn Wright  (Read 3497 times)

Robert Krausankas (BuddhaPi)

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photoattorney.com / Carolyn Wright
« on: May 25, 2012, 02:45:47 PM »
Interesting interview with Carolyn Wright the "photo attorney" from this blog:

http://blog.kenkaminesky.com/photography-copyright-and-the-law/

The question posed:
"Q: What happens when a copyrighted photo is used without permission?"

and a snippet of her answer:

"You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement."

and
"Option # 2 – Request a Photo Credit
 If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others."

(for some reason I don't see PhotoAttorneycom  Carolyn Wright doing this..another case of "do as i say, not as I do")

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
 When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

( or just go balls to the walls and demand 100x or more right out of the gate!)

"There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

... this last bolded sentence is interesting and could possibly be used by recipients of letters. The complaint against Timothy B McCormack comes to mind, the recipient clearly had permission to use the image from the wholesaler ( although they may not have owned the image in question) she could have fired first and forced Getty / McCormack to come to her (Alabama) and fight on her terms..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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Mulligan

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Re: photoattorney.com / Carolyn Wright
« Reply #1 on: May 25, 2012, 04:40:01 PM »
Another excellent find today, Buddhapi. You're firing on all cylinders this Friday! Thanks for tracking this down. These folks sure know how to talk out of both sides of their mouths, don't they?

Robert Krausankas (BuddhaPi)

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Re: photoattorney.com / Carolyn Wright
« Reply #2 on: May 25, 2012, 04:49:06 PM »
I'm taking no prisoners, just leaving carnage where it is deserved. Yes they manage to to both talk out of both sides of theirs mouths as well as somewhere else at the same time..

Another excellent find today, Buddhapi. You're firing on all cylinders this Friday! Thanks for tracking this down. These folks sure know how to talk out of both sides of their mouths, don't they?
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

Robert Krausankas (BuddhaPi)

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Re: photoattorney.com / Carolyn Wright
« Reply #3 on: May 26, 2012, 04:18:24 PM »
I'd like to here comments form some others regarding this snippet from Carolyn Wright.

""There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Specifically in regards to the request for declaratory judgement. Am I understanding it correctly??

So I get a letter from Timothy B. McCormack from Seattle, I'm located in Florida, could I upon receipt of said letter file a request for declaratory judgement in Florida , thus forcing his hand to appear in Florida to address this request? That would sure be inconvenient to say the least and costly.. I guess I'm reading this as similar to a "counter-claim" but me firing across his bow first..a premptive strike as it were..thoughts?? opinions?? am I totally not "getting" this?
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

SoylentGreen

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Re: photoattorney.com / Carolyn Wright
« Reply #4 on: May 26, 2012, 04:37:14 PM »
Interesting snippet.  I'm just a novice.  But, my understanding is that:

When one is faced with a potential lawsuit over an infringement (a demand letter threatens such), then the alleged infringer may file his/her own lawsuit first.
The strategy is to cause a great inconvenience (travel and lodging) to the alleged copyright holder and its counsel, or to ensure that it's answered in a court located near the alleged infringer which could save a great deal of effort and money for the infringer.
Furthermore, I would imagine that one could also use this procedure to ensure that the case is filed in a court circuit that is most favorable to the alleged infringer (for example if a court precedent already exists in that circuit).

Like this quote from wikipedia: "Sometimes a lawsuit is filed, but not served, before sending such a notice, to preserve a jurisdiction advantage without engaging the judicial process fully."

Of course the alleged infringer could also seek various damages related to a faulty or fraudulent claim made by the alleged copyright holder. 

Neat.

S.G.

Mulligan

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Re: photoattorney.com / Carolyn Wright
« Reply #5 on: May 26, 2012, 05:05:18 PM »
So I get a letter from Timothy B. McCormack from Seattle, I'm located in Florida, could I upon receipt of said letter file a request for declaratory judgement in Florida , thus forcing his hand to appear in Florida to address this request? That would sure be inconvenient to say the least and costly.. I guess I'm reading this as similar to a "counter-claim" but me firing across his bow first..a pre-emptive strike as it were..thoughts?? opinions?? am I totally not "getting" this?

This is an option I'm considering if McCormack continues to harass me, though I need to do more research about just what's involved. A declaratory judgment seems to me from what I've learned so far to be a viable option if one wants to take the offensive. But it costs $350 to file, and I don't yet know if winning a declaratory judgment could potentially earn me that $350 back as well as an aggravation settlement equal to what McCormack has demanded as well as payment for the hours I've put into learning all this.

I suspect filing one of these would result in a quick settlement offer from McCormack, most likely a statement that Getty is no longer pursuing this matter as well as a signed confidentiality agreement. If I go this route, however, it's going to take more than a "no longer pursuing" statement and the chances of ever getting me to sign a confidentiality agreement are nil. I'd like nothing better than to get McCormack to pay me the outrageous settlement figure he's trying to extract from me and then to make the whole deal public with all the paperwork here on ELI. Talk about poetic justice!

One site I've found useful involves a Colorado couple who have apparently used the filing of declaratory judgments against major corporations by doing the legal work themselves. Here's the page where they discuss what they did and how they used the filing of a declaratory judgment against Disney to get Disney to back off:

http://www.tabberone.com/Trademarks/DisneyLawsuit/DisneyLawsuit.shtml
« Last Edit: May 26, 2012, 05:09:52 PM by Mulligan »

 

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