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Author Topic: Hawaiian Artwork, LLC Files Lawsuit!  (Read 19366 times)

smitty

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Re: Hawaiin Artwork, LLC Files Lawsuit!
« Reply #15 on: December 12, 2011, 08:38:19 PM »
This is my first time posting on here.  Thank you in advance for your help.  Approximately 2 months ago my wife received a letter from Leslie Burns, Esq.  (letterhead of: Carolyn Wright, PhotoAttorney) alledging an infringement on our part of a single picture by Vincent Tylor (Hawaiian Art Network).  I will start by saying this, we never received any official correspondence, only an emailed letter (which is a little unprofessional).  The letter very boldly attacks us and paints us as thieves.  It says we knowingly infringed, making us liable up to $150,000.00.  It offers to settle around $3500.00. 

The photo in question was taken from a site portraying it as "free", which we now (of course) understand to be untrue.  My question is this: our unintentional errant use of the photo occurred nearly 4 months prior to the registration date of the copyright (based on the copyright registration number they provided us & the date on my wife's blog, which they included a screen shot of in the letter).  The publication date is over 9 years prior to the registration date (clearly more than 3 months). 

I have explained this to the attorney, who insists the law only requires the copyright be registered prior to the "discovery" of the infringement, therefore still making us liable for statutory damages.  I can find no law to back up this logic, the only discussion of "discovery" I can find pertains to "statute of limitations" issues (which also vary greatly from district to district as to whether its "discovery" or "injury" date).  In fact, 17 USC 412 appears to very clearly state: "no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work". 

If I interpret that properly, the commencement date of the infringement is the date in question, it mentions nothing about "discovery".  Any help you can provide is greatly appreciated.  Thank You!


 

Jerry Witt (mcfilms)

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #16 on: December 12, 2011, 10:35:30 PM »
Smitty -- Are you in the US or Canada? Did you see all the other posts by people targeted by this particular photographer and stock agency? You should all compare notes. Did you also catch that post that the image in question is available as a print for $10?

If it were me I would offer the $10 without admitting any guilt but in the interest of moving on. They obviously won't accept that, but in the highly unlikely case this were to go in front of a judge, you could say you made an effort to settle the matter at the going rate. My understanding isd that this puts you in the position to have them pay for all of your court costs when the judge throws it out of court.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

summer99

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Re: Hawaiin Artwork, LLC Files Lawsuit!
« Reply #17 on: December 12, 2011, 10:38:23 PM »
I have had a very large increas in the  pages read on my blog for about the last two months.  It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize  that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.

Thanks again.
I saw that at my blog too.  I'm working on a set of scripts to mitigate this for people. For now, at least add the following two lines to the htaccess file in the root for your domain:

# don't permit directory listing
IndexIgnore *

The first line is a comment and does nothing but remind you about the function of the second line.  The second line closes off a great big superhighway method some bots use to find the names of all your file images.  Backroads still exist. That's why I'm trying to find other methods to help people block off the backroads and catch this sudden grazing real time. But at least add the

IndexIgnore *

line.

Even aside from any copyright issues, this behavior is bandwidth sucking (i.e. increasing your hosting costs). So you want to stop it anyway.

Sorry to be so computer ignorant but you give me some idea of how to get to the access file on my blog so I can insert the command you gave to block the bots?

smitty

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #18 on: December 12, 2011, 10:55:12 PM »
mcfilms-thank you for the info.  I am in the U.S. 

So am I understanding the law properly?  Is the need for copyright registration prior to infringement (for purposes of determining actual v. statutory damages) based on actual infringement date, or "discovery" of infringement?  The law seems clear to me (actual infringement date), but the attorney coming after my wife insists its based on "discovery".  She doesn't quote any law (like she normally does) she just says it and insults our intelligence (shes an attorney, we aren't, blah blah blah). 

Excellent advise regarding the fair price offer, I will do that.

SoylentGreen

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #19 on: December 13, 2011, 12:27:32 AM »
Smitty,

In the US, the image must be registered prior to the alleged infringement in order to collect "statutory damages".

However, if the alleged infringement occurs within 90 days of the first publication date of the image in question, the legal owner may register it and would be able to collect statutory damages in that particular case.

"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."

http://www.benedict.com/Info/Law/Why.aspx

Given your situation, it appears that they could only seek the fair retail price of the image for the time of use, going back to a maximum of three years from the date that you removed the image from your site.

Hardly worth suing over, if you ask me.

S.G.


lucia

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Re: Hawaiin Artwork, LLC Files Lawsuit!
« Reply #20 on: December 13, 2011, 10:38:58 AM »
I have had a very large increas in the  pages read on my blog for about the last two months.  It went from 2500 pages to about 11000 - averageing from 350 to 400 each day. Didn't really know why but after checking the history now realize  that most of it is seaching images with the the direct names of my blogs. Someone has spent a lot of hours going through my site page by page looking for things. This might be a heads up to anyone else when they have a high increase in volume which they did not have before.

Thanks again.
I saw that at my blog too.  I'm working on a set of scripts to mitigate this for people. For now, at least add the following two lines to the htaccess file in the root for your domain:

# don't permit directory listing
IndexIgnore *

The first line is a comment and does nothing but remind you about the function of the second line.  The second line closes off a great big superhighway method some bots use to find the names of all your file images.  Backroads still exist. That's why I'm trying to find other methods to help people block off the backroads and catch this sudden grazing real time. But at least add the

IndexIgnore *

line.

Even aside from any copyright issues, this behavior is bandwidth sucking (i.e. increasing your hosting costs). So you want to stop it anyway.

Sorry to be so computer ignorant but you give me some idea of how to get to the access file on my blog so I can insert the command you gave to block the bots?
First: the .htaccess isn't technically on your blog. It would be on the server that hosts your blog.  Are you self hosted?

Example: I self host using Wordpress software which is installed on the physical computer (i.e. server) owned by my host, which is Dreamhost. But other people use Wordpress hosted by wordpress. Their web addresses often end with "Wordpress.com".    If you selfhost like I do, you can probably install an htaccess file, and I can tell you where to find it.  If you are on wordpress.com or blogspot or something like that you can't install an .htaccess file. 

I'm guessing based on what you wrote that you self host.  But I need to know for sure. After that, I can ask how you installed Wordpress in the first place-- and then I can explain how to find .htaccess, explaining all this based on knowledge you already have.

Dee

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #21 on: May 09, 2012, 01:45:43 AM »
OH good, Judge Leslie Kobayashi is hearing these cases.  She is a very good judge, very fair but tough and wont take any BS.

Lettered

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #22 on: May 09, 2012, 07:52:54 AM »
My understanding is exactly as you laid it out, SoyentGreen.  In fact, I wonder if an attorney could get in trouble (complaints to bar assn., lawsuits, etc) if it were found that they were threatening victims with things they know aren't allowed by statute.  It seems at least waaaaay over the line of common decency and ethics to me.  I hope that someone finds a way to hold these people accountable one day.

Smitty,

In the US, the image must be registered prior to the alleged infringement in order to collect "statutory damages".

However, if the alleged infringement occurs within 90 days of the first publication date of the image in question, the legal owner may register it and would be able to collect statutory damages in that particular case.

"Although copyright attaches upon fixation, you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office.
And if you register your work within three months from the date of first publication, or at least prior to the date of infringement, you can collect statutory damages from the infringer.
Otherwise, you are stuck with actual damages, which depending upon the situation, may be only nominal."

http://www.benedict.com/Info/Law/Why.aspx

Given your situation, it appears that they could only seek the fair retail price of the image for the time of use, going back to a maximum of three years from the date that you removed the image from your site.

Hardly worth suing over, if you ask me.

S.G.

SoylentGreen

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #23 on: May 09, 2012, 01:30:18 PM »
Thanks, Lettered.
My understanding is that lawyers cannot should not misrepresent actual matters of law in order to extort a settlement.
So, I think that one would have cause in such a case to report it to the law society.
That would be different than "our client contends that/has reason to believe that...", etc.  Which is just an opinion.

For example, a lawyer shouldn't say that something is "registered with the copyright office" if is in fact not registered.
But, they could say that their client "holds the copyright" to an image for example if the client took the photo.
That's because copyright exists at the moment of creation by the artist... but that's not really "actionable" in court.
So, it's very, very subtle, and the layman can be easily fooled.

In my case, I was sent some misleading verbiage by a lawyer.
But, his secretary signed the letter.  I don't think that the secretary is bound by the same responsibilities as an actual lawyer, though.
Pretty clever, huh?

Didn't pay.  Also clever.

S.G.
« Last Edit: May 10, 2012, 01:36:28 AM by Matthew Chan »

Matthew Chan

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #24 on: May 10, 2012, 01:52:15 AM »
I discussed with Oscar doing the whole State Bar complaint issue since he was threatened by it by one of the extortion attorneys. I wanted to gauge his position as to what he thinks is appropriate and inappropriate for a State Bar Complaint. I don't want to speak for him or get into specifics but philosophically, I found his answers a bit surprising in that he and I are closer in alignment than I originally thought.

If people recall, Timothy B. McCormack's extortion letter was the one that broke the camel's back with me. Filing a State Bar complaint was something I've known about for years.  Even during most of ELI's existence, I was hesitant to talk about that form of retaliation and pushback because of the potentially damaging effects on a lawyer.

But when I kept seeing lawyer after lawyer using dirty tactics in their extortion letter efforts (way too many now to list), I thought it was time to popularize it.  Since outright complaining didn't seem to get the message across, no lawyer can easily ignore Attorney General Complaints or State Bar complaints.

I am happy to report that some of our readers heeded that advice and it has starting making an impact.  People think you need hundreds to make a difference like signing a petition. That isn't true. With Attorney General Complaints and State Bar Complaints, the weight of each complaint against a business or lawyer weighs very heavily.

Let me say, that a lawyer does not have to be disbarred or publicly sanctioned for it to take effect. Trust me on this. "Trouble" has many meanings. You can take that to the bank.

My understanding is exactly as you laid it out, SoyentGreen.  In fact, I wonder if an attorney could get in trouble (complaints to bar assn., lawsuits, etc) if it were found that they were threatening victims with things they know aren't allowed by statute.  It seems at least waaaaay over the line of common decency and ethics to me.  I hope that someone finds a way to hold these people accountable one day.

I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Jerry Witt (mcfilms)

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Re: Hawaiian Artwork, LLC Files Lawsuit!
« Reply #25 on: May 10, 2012, 02:28:20 PM »
And at the very least they have to take time out from their schedules to draft a reply.
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

 

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