Pro photographer + expert witness Sedlik comments on copyright infringements

[SoylentGreen]

Noted professional photographer and expert legal witness Sedlik comments on copyright infringements.

The name “Jeff Sedlik” may ring a bell to you.  If not, you should know that he’s quite well known, teaches and is a professional expert legal witness in all things copyright.
Therefore, I feel that you take what he says quite seriously.
http://www.photographyexpertwitness.com/
http://www.jazzandbluesmasters.com/Sedlik.htm


I found some comments of his on a blog that I feel will surely be of great interest to readers of the forum:
"You may not mix published and unpublished images in the same registration, so ganging up all of your images onto a single 5 times a year is a mistake that may result in the loss of the remedies gained by registration. You must also separate your published images by year of first publication, so images published in December must be separately registered from images published in the following month."

He goes on:
"If your matter proceeds to court and does not settle, expect expenses – not including your attorney’s fees – to fall into the range of $25,000 to $250,000 or more, over a 2-5 year period of discovery, trial and appeals. There is no guarantee that you will prevail, even if you are in the right. There is no guarantee that your damages will exceed your costs or that your costs will be reimbursed, even if you have a solid copyright registration. Expect that all of your income statements, estimates, invoices and licensing records will be subpoenaed by the infringer and will be used to demonstrate the value you routinely have placed on your own work over time. Not for the weak of heart."

And:
“…if more than one image is infringed from a compilation, such as a book, calendar or website, statutory damages are limited to a single award, as if only one image had been infringed, even if thousands of images were infringed.”

Sedlik also speaks of protections for photographs and states the potential penalties that infringements can result in.  I think that he’s credible, and his words have a balanced approach here.
You can read his posting on this blog (scroll down), the owner of the blog itself it quite aggressive and outspoken and I not agree with his recommended approaches:
http://www.jeremynicholl.com/blog/2011/06/13/the-10-rules-of-us-copyright-infringement/

Note that Carolyn Wright chimes in, along with a not-so-subtle plug by "Copyright Services International" who gets their facts wrong and is corrected by Sedlik.

S.G.

[Matthew Chan]

Copyright Services International is Glen Carner of HAN, not Carolyn Wright.

IT is a very good read and I am processing it in my mind before I comment too much.

[SoylentGreen]

Carolyn, and Copyright Services commented separately.
Sorry that I didn't put a comma (serial comma) between the two, which caused confusion.
You're been reading too many legal docs!  lol.

Looking forward to your comments, Matt.

S.G.

[Robert Krausankas (BuddhaPi)]

I find it interesting that both Glen Carner  of Copyright Services international/Hawaiian Art Network and Carolyn Wright of photoattorney.com both commented on the same thread...once again birds of a feather.

I'm sure SG realized these are 2 different parties, and it is indeed a good read. Carolyn Wright and other copyright trolls will continue to get "clients" by way of photographers that cannot earn a living by selling their images..after all look at what Getty Images has done to the industry and how they treat their own "contributors"...they sue them!

Also conveniently listed on this blog is a list of
"Recommended US Copyright Attorneys", which not only lists Carolyn Wright of photoattorney.com, but also Nancy Wolff whom we know from PACA ( Picture Archive Council of America)



http://www.jeremynicholl.com/blog/wp-content/uploads/2011/06/us-copyright-lawyers.pdf

[SoylentGreen]

I'm especially interested in Sedlik's comment about mixing published and unpublished images in a single registration (in a compilation) and how it "may result in the loss of the remedies gained by registration".
Does anyone else have more details on this?  This could be a great defense...

S.G.

[Robert Krausankas (BuddhaPi)]

Sorry SG I'm not qualified to add any details on your question, but i have a few comments to toss into the mix..As I understand the terms "published" this comes into being once "anyone" besides yourself sees the image..for example if I'm a pro photographer and I do a model shoot and show my client "proofs" afterward, but before I register them, they would be considered published..same goes if I upload them to a password protected directory on my web server and give you the username/password..for all intents and purposes those images have now been "published" even if not in the "public eye" How would one go about proving when something was published or not is the real question..

something else I'm interested in is this:

"You must also separate your published images by year of first publication, so images published in December must be separately registered from images published in the following month."

Has it been stated that the Tony Stone Collection of images which Getty now owns was registered in bulk as a compilation? if so I would be interested to know how it would be possible to shoot, edit, process, cull, etc 93,146 images in the same month. or is this collections split into many smaller chunks?

[SoylentGreen]

From the US Copyright Office:

Published or Unpublished? Under copyright law, publication is the distribution of copies of a work—in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. However, a public display of a photograph does not in itself constitute publication.

The definition of publication in U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.

NOTE: Published and unpublished photographs cannot be registered on the same application.

http://www.copyright.gov/fls/fl107.html

---

So, the only thing that's ambiguous is "online transmission".
To prove publication via "online transmission", a plaintiff could show a presence on an Internet archive that an image was published before a registration.  However, an argument could still be made as to what (and what does not) constitute "publication" in terms of online use.

In any case, a collection that has a mix of published and unpublished photos at the time of its registration would seem to be a faulty copyright registration.
A nice defense...

S.G.

[Moe Hacken]

"You must also separate your published images by year of first publication, so images published in December must be separately registered from images published in the following month."

That's VERY interesting. Vincent Tylor has registered many of his images in bulk, no specific titles or dates, just citing a "Date of Creation" of 2000 and a "Date of Publication" of 2001-01-01 for the batch. The registration date is actually 12/17/2009:

Type of Work:      Visual Material

Registration Number / Date:
                   VA0001696555 / 2009-12-17

Application Title: Hawaii 2000.

Title:             Hawaii 2000.

Description:       Electronic file (eService)

Copyright Claimant:
                   Vincent Khoury Tylor.

Date of Creation:  2000

Date of Publication:
                   2000-01-01

Nation of First Publication:
                   United States

Authorship on Application:
                   Vincent Khoury Tylor, 1962-    Domicile: United States;
                      Citizenship: United States. Authorship: photograph(s)

Rights and Permissions:
                   Michele Lynn Tylor, Hawaiian LandMark Images, P.O.Box
                      510164, Kealia, HI, 96751, United States, (808)
                      823-1263, (808) 821-8838, michele@hawaiianphotos.net

Names:             Tylor, Vincent Khoury, 1962-   
                   Tylor, Vincent Khoury
                   Hawaiian LandMark Images

================================================================================



This batch supposedly includes this specific image, but I don't understand how one is supposed to know that:

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

It used to be on Webshots too, but look at what happened:

http://good-times.webshots.com/photo/2554702150105859398?navtype=search

I think we broke his Webshots page admiring his work too much. No problem:

http://web.archive.org/web/20100412161417/http://www.webshots.com/g/tr/ed-sh/44158.html

Thank you, Wayback Machine!

Note several buttons screaming download and a little copyright note underneath in humble body text size and font. Kinda gives the wrong impression.

So really, how is one supposed to find out this is VKT's image if it's not specified anywhere in the database and he keeps taking his own legitimate pages down? That only leaves the wallpaper sites as a source. After you see 2000 instances of the image being used all over the world for years, one gets the impression that the image belongs to the public domain. I even found it used on a jigsaw puzzle!

http://tinyurl.com/bv3rv2d

Compralo subito! 3 disponibili! Condizioni dell'oggetto: Nuovo!

His registration of the images should be a lot more clear and specific if he wants people to know they belong to him. IF.

[Greg Troy (KeepFighting)]

Great thread S.G.  There is a lot to digest here.  One thing I noticed was buddhapi’s comment on the "Stone Collection" being registered in bulk.  The image Getty is accusing me of infringing is from the Stone collection.  I can see why Getty is unwilling to provide me any information except through the discovery process.   Thanks to all again for their research and knowledge that makes it possible for letter recipients to defend themselves against Getty’s extortionist business practices.

something else I'm interested in is this:

"You must also separate your published images by year of first publication, so images published in December must be separately registered from images published in the following month."

Has it been stated that the Tony Stone Collection of images which Getty now owns was registered in bulk as a compilation? if so I would be interested to know how it would be possible to shoot, edit, process, cull, etc 93,146 images in the same month. or is this collections split into many smaller chunks?

[SoylentGreen]

Thanks for your kind words, "Keepfighting".

Buddhapi mentioned "93,146 images in the same month".  That's quite lot.
Even if the images were registered in several compilations, they'd still contain many, many images.
I'm willing to bet that there's both published unpublished images in all those collections.
The Copyright office states very plainly that these cannot be combined; so that's a showstopper right there.

In addition to this, imagine if there was a lawsuit and Getty/Stone were made to account for what was published where, and when.
That would be quite a major undertaking for them, and any images unaccounted for or unpublished (there's probably hundreds) would weaken their case severely.
Heck, courts have already dismissed copyright lawsuits partly on the basis of the images being registered as part of a compilation.

S.G.

[Greg Troy (KeepFighting)]

You and all the ELI members are very welcome!  I saw buddhapi’s post and I have no doubt that there are many issues with the Stone Collection.  Hopefully Getty will soon realize that I am not the low hanging fruit they originally thought I was and move on.  My Getty defense folder is getting thicker by the week with all the great information found through research and the ELI sites. 

Thanks for your kind words, "Keepfighting".

Buddhapi mentioned "93,146 images in the same month".  That's quite lot.
Even if the images were registered in several compilations, they'd still contain many, many images.
I'm willing to bet that there's both published unpublished images in all those collections.
The Copyright office states very plainly that these cannot be combined; so that's a showstopper right there.

In addition to this, imagine if there was a lawsuit and Getty/Stone were made to account for what was published where, and when.
That would be quite a major undertaking for them, and any images unaccounted for or unpublished (there's probably hundreds) would weaken their case severely.
Heck, courts have already dismissed copyright lawsuits partly on the basis of the images being registered as part of a compilation.

S.G.

[Matthew Chan]

Regarding Jeff Sedlik's comments, let me say that his long of lists of comments were meaty and quite valuable to consider. Overall, he agrees with the legal assessment that has been done on ELI headed by Oscar Michelen and the reading of relevant recent court cases. Jeff's comment is well worth reading and considering.

However, based on his bio,

http://www.useplus.com/aboutplus/coalition_dir_detail.asp?cid=104202457633

I am not sure if his opinion would carry any more weight, "stronger", or more convincing than say Oscar Michelen, Nancy Wolffe, Lisa Willmer, and the long list of other smart lawyers that have weighed in with their varying opinions on copyright law and the copyright registration process.

Remember, most of what Jeff says is in agreement with what we have said on ELI but that doesn't automatically make him more of an expert than anyone else who have discussed and argued the matter!

The reason for that is the Copyright registration process is a freaking mess and so inefficient especially when it comes to large-volume registrations.  Nancy Wolffe has attempted to nail down some image registration standards working with the U.S. Copyright Office but even that is being contested and challenged by our own Oscar Michelen!

In that regard, I am not so quick to blindly accept Jeff's statements on that front because it continues to be debated!

Oscar and I recognize that the copyright infringement battle continues to evolve and we pay attention to new court cases, new rulings to copyright infringement cases, new extortion letters, new opinions, etc.  We adjust our strategies, advice, and opinions as does the opposing side.

I always get a bit nervous when people take such a "definitive" and "authoritative" stance as if it were so black and white.  Certainly, I have been guilty of making some bold statements and opinions but I generally qualify that it is MY INFORMED & STUDIED opinion, not a "definitive" answer for everyone.

Jeff takes a very definitive tone which is disagreeable to my sensibilities even though we largely agree on most of the items he discusses. A big reason for my skepticism is part of what I consider MY ADVANTAGE is I am not pigeon-holed to a single niche or industry in my readings, studies, and analysis.

Even before I ever knew about the various court rulings that tie statutory damages to something reality-based and "actual damage" based, my own legal studies and personal legal experience is that judges tend to tie awards to something "real" not the BS 5-or-6 figure statutory damages blowhard lawyers were preaching.

That was why I was prepared to go to court on my extortion letter and represent myself. I did a mental calculation of what my losses could be vs. my win might be and I was happy to take on the challenge if I was forced to. I simply didn't believe that courts would make some insane award over a small image on a low-volume website.

Even though I don't actively discuss them on this forum, I did closely follow the Righthaven lawsuits and felt over a year ago it would tie in to what we did just like I believe the P2P/Bittorrent lawsuits also tie in to what we do. And the past RIAA lawsuits tie in here also.  I follow what happens on the software piracy front too.  I take it all in and the various "expert opinions" including Oscar's and I form my own opinion.

I am not going to say that my opinion is any better but I will say that I don't have a narrow or niche view as some do. I am not trying to brag here but I want to make the point that each of us long-timers have some really good studied opinions. Don't be so quick to give your power away.  Even I have been shaped and altered by the discussions here. I believe even Oscar has been slightly influenced over time by what we do and discover on the ELI Forums also.

I would tell anyone that to use their judgment best for THEIR situation. Yes, get "expert" opinions but ultimately each of us are responsible for the application and implementation of those opinions.

Jeff offers some great opinions and insight but I would simply qualify his writings as well-informed and well-qualified opinions, not absolute facts.

[SoylentGreen]

My posts weren't intended to imply that one person is more qualified than another to comment on the issues.
To me, it's not a competition.  However, yes, Oscar and yourself have done more than anyone else for the cause of fairness.

It was just nice to see a photog comment in a more reasonable fashion about the facts, and it brought to the discussion here a fact that hadn't been brought up before that could stop an infringement lawsuit in its tracks.

It was also nice top see Sedlik counter that photog's aggressive stance.
While anyone can get a failure of a lawyer to paste together a demand letter on contingency, it's another matter to remortgage one's house to litigate over an alleged infringement of a single 10 dollar image.

S.G.

[Matthew Chan]

It certainly is true that Jeff appears to be knowledgeable than most photographers and certainly more grounded in reality than most of the so-called copyright lawyers who spew out their ignorant extortion letters.

[Moe Hacken]

This is an excellent concept, Oscar, thanks for sharing this.

I see this as a truly positive response to addressing the image piracy problem.

I noticed PicScout's logo at the foot of the page, along with Getty's and other big name sponsors. I hope they can be convinced to tone down the aggressive "electronic evidence gathering" and find an ethically correct role in the effort to fulfill their stated mission: to simplify and facilitate the communication and management of image rights.