Messages

121

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 03:15:02 PM »

@ DvG, sometimes it's impossible for some to see the forest, through the trees..

A stylish, apt pun. Touché, sir

BTW, Dvg don't you ever consider taken a picture of a sunset, I've already done that!

... whoops! I'll get my check-book :p

122

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 03:05:11 PM »

Lets get some facts straight here.  The image is this one:
http://500px.com/photo/1707910/japanese-garden-by-tom-schwabel

... and the nearest two similar images on Peter Lik's site are still significantly different from Schwabel's frame

http://www.lik.com/thework/forests-trees/wg943.html

http://www.lik.com/thework/forests-trees/treeoflife.html

I'm not about to go into a pixel-peeping forensic analysis of the differences between Schwabel's and Lik's work, save for the obvious that Schwabel's frame has rust coloured leaves scattered all over the grass, and Lik's frames don't. I could talk about overall composition, framing, apparent focal length and a myriad of other subjective criteria that, in aggregate, make up the significant differences between the two photographer's works.

But I wont. Let's just leave it at this: Schwabel has not appropriated Lik's work. The only thing they have in common is that they are both shots of a photogenic (does that word apply?) Japanese Maple in a well-known garden in Portland, OR.

And I think you will find he's stolen it from Lik and seeded it all over the net.  It's on BoredPanda and like 1000 other sites.

So your justification for image theft is that others might also have stolen it? We all know how successful that line of defence is 

I know I'm right.  That dickhead photographer is the one who is morally bankrupt here.

Oh, please, spare me the histrionics. You stole, you got caught, and now you're just pissed about the latter.

The guy shut down my website.  Like hell I'm going to pay.  He owes me!

Nope, he didn't. Your actions got your site shut down (if that's true) because you probably violated the terms of your hosting provider. All that Schwabel would have done is let your web host know that you were using their service to infringe on his works. If they shut you down, that's on you.

123

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 01:55:02 PM »

The image in question is a copy of Peter Lik's image.  I've seen Lik's image in a Vegas gallery.  So it is OK for him to steal from Peter Lik, but now I'm the bad guy?  There are thousands of image of that stupid tree.  Just do a google search and you'll get like 100,000 hits.  Are all of those other copycat photographers who can't make it on their own allowed to copy his image and then extort people with something they copied from someone else???  Where does it stop?  Seriously?!

I'm going to assume you're talking about Schwabel's photograph entitled "The Star of the Garden", which can be viewed here

http://500px.com/photo/2991085/the-star-of-the-garden-by-tom-schwabel

Let's compare and contrast with Peter Lik's shot of the same Japanese Maple

http://www.lik.com/news/newsarticle10/

Oh, wow. I didn't expect them to be vastly different photographs of the same subject. My my.

There are elements to the work of both photographers that are original expressions of creativity and thus quite rightly subject to copyright protection. Also, I took the liberty of running a Google reverse image search on Schwabel's photograph and found just a handful of results.. the majority of which were either on Schwabel's 500px portfolio, or his Fine Art America page.

The only site other than his own that makes use of it is a PDF brochure which is found on the Portland Japanese Garden website - which is highly likely to have been used under license.

So now we're getting close to a clearer picture. You used Tom Schwabel's work, which is plainly, unarguably his and significantly different to Peter Lik's shot. The image has not been seeded across the internet as you have claimed... seriously, dude, stop digging yourself a bigger hole here 

124

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 12:52:40 PM »

Thought I was doing you all a favor by bringing a troll to light.  Whatever, he can sue.  But courts aren't collection agents so I wish him lots of luck.

Seriously? It's abundantly clear from the tone of your postings that you are unapologetic about your actions and are bleating on about getting caught in the hopes of eliciting sympathy.

You make bold assertions that the photographer has no right to put his claim to you, go on to proudly state you told him to "fuck off", and imply that - despite being knowledgeable about copyrights in the broad sense (how else would you know you had the option of paying to license an image from a library?), you then toss your toys out of the pram by goading the photographer into suing you with "courts aren't collections agencies" prattle.

What the f'n hell makes you think you should get a free ride? Where on earth do you get such a sense of entitlement that, when you have grossly admitted to making use of something that is not yours, you should be let off for doing so - just because you believe your actions constitute a no-harm, no foul outcome?

You should note that the photographer's first contact with you was direct and likely cordial. He didn't lawyer up, and he didn't make a four, five or six figure settlement demand - yet you spat in his face in return for him being reasonable and hoped that, by telling the world about it, you would get affirmation and approval for your actions.

I'll close with this: be careful in goading the photographer into suing you, as seems to be the case with your parting shot. You may get exactly what you wish for, and it just might turn out to be the farthest thing from what you want by way of outcome.

125

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 11:16:13 AM »

The image had no copyright on it.

Under US law, images haven't need to have copyright notices on them since 1989.

I think this guy is either just seeding the internet with unwatermarked images so he can threaten people or claiming ownership in images he doesn't own and then trying to extort money out of people.

Yeah, because allowing your work to propagate online and collecting on infringements is such a wonderful business model... except, wait, what about the challenges of trying to get any kind of of compensation from places outside the US? You know, where the other 96% of the global population is?

He carries on his page about people stealing images like some kind of baby.

Spoken like someone who has never worked to create something in their life. There's time, effort, expense, experience and skill that goes into the creations of professional photographers and other creatives

Seriously, it is an image on the internet.  I'm not selling his image.  I can get a better image on istock for a few bucks.

So why didn't you? Why did you simply lift work from the web instead of either paying a license from iStock (or similar) or, you know, going out and creating something of your own?

Asking a few hundred bucks is shameful and should be a crime.

The photographer is offering you the chance to pay for something you have already used. As his work, he sets the rate. If you thought it was too high, you could have negotiated - but no, by your own admission, you told him to "fuck off" instead, showing that you lack either respect or contrition.

Who is to say his copyright registration is falsified too?

I guess you'll find out in short order because, like i said, both Tom Schwabel and Peter Lik have copyright registrations filed with the Library of Congress... so odds are you may well hear from counsel for at least one of them in the future

Who sends a "legal notice" by email?  Whole thing sounds like a scam.

Lots of people send out legal notices via email, and often follow up by sending the same notice via the postal service - except, you know, unless you're hiding behind a pseudonym or domain proxy service.

Want to know what's a scam? Lifting images off the internet with abandon and then crying about it when the copyright holder finds out.

Man up, take responsibility for your actions, make an offer to the photographer for your admitted prior use of their work, and learn something from the experience.

126

Getty Images Letter Forum / Re: Tom Schwabel - copyright equivalent of Nigerian scam

« on: August 21, 2014, 04:23:25 AM »

A "photographer" by the name of Tom Schwabel sent me an email that I had used one of his images on my website.

A very quick google search shows that a Tom Schwabel has a portfolio of images, with his copyright watermark quite visible, on the website 500px.com 

He claims I removed his watermark, a laughable claim that of course he could never prove.

It's relatively easy to prove, but that only forms a portion of any infringement claim. The potatoes, if you will, and not the meat.

He wanted me to take down the image and pay him a few hundred bucks.  But here's the thing: I don't think the image he was talking about was his!  I think it is actually an image from a guy by the name of Peter Lik.

So you're admitting to infringing on either Tom Schwabel's or Peter Lik's work? Wow.

So I told him to f**k off.  About a week later he sent a letter to my hosting provider, and they took my site down!  WTF?!

... which is a request that your hosting provider must comply with per 17 USC 512 if they want to avoid liability for copyright infringement.

Well here's some news for you; a quick search of records at the copyright office shows that both Tom Schwabel and Peter Lik have their ducks in a row with regards to registrations of their work, that appear to be valid and timely -  so, regardless of who's shot it is, if either wanted to take this further, they could... and I'd advise against a head-in-the-sand or "feck off" response.

127

Getty Images Letter Forum / On "innocent" infringement, re. damages range

« on: August 14, 2014, 09:51:37 AM »

Interesting information to be found at the foot of page 20 / start of page 21 in the following

http://www.scribd.com/doc/236736447/AFP-v-Morel-1-2M-Damages-Affirmed#fullscreen

For those without the time or inclination to read, here's the take-away

"The Copyright Act prescribes three ranges for statutory damages, depending on whether the infringement was innocent, willful, or neither. The statutory damages range is $200 to $30,000 per work for innocent infringement, $750 to $150,000 per work for willful infringement, and $750 to $30,000 per work for regular infringement"

There's further information which lays out the six factors (prescribed by the 2nd Circuit) as to how to determine an amount of Statutory Damages

1. The infringer's state of mind
2. The expenses saved, and profits earned, by the infringer
3. The revenue lost by the copyright holder
4. The deterrent effect on the infringer and third parties
5. The infringer's cooperation in providing evidence concerning the value of the infringing material
6. The conduct and attitude of the parties

My takeaway from this? If you receive an infringement notification from someone who has all their ducks in a row (correct and timely registration etc.) and they're offering you a chance to avoid litigation via negotiating a settlement, it's probably not a good idea to stick your head in the sand or, worse still, tell them to "get lost" (or variants thereof)

Just my €0.02.

128

Getty Images Letter Forum / Re: Another Getty Letter Story

« on: August 10, 2014, 07:35:41 AM »

bottom line is if there is a registered agent, and it is potsed properly, that is the way Getty is supposed to contact them

And therein is the unknown issue: whether the registered agent details were listed correctly. Let's look again at what the OP said in their first message

"Our friends have a very small business and yes are incorporated with a registered agent - as is required by their state"

All this means it that, if you searched for records pertaining to the company via the relevant business portal for the state they were incorporated in, you'd find contact details and a mailing address for whomever the business designated to receive service of process.

That doesn't mean that they also have automatic safe harbor protection under the DMCA; the exact same details would need to be both lodged with the Copyright Office and also displayed in full in a publicly accessible page of their website.

Unless the OP were to clarify as to whether the business did in fact have their details recorded and displayed correctly, then we simply don't know whether the business has exemption or not; this aside, there's a potentially fuzzier issue as to whether having DMCA safe harbor would apply in an instance where someone had been employed to design their website (and no, I'm not a lawyer either, so I'd have to ask one about this )

129

Getty Images Letter Forum / Re: Another Getty Letter Story

« on: August 09, 2014, 12:11:21 PM »

The MOST important thing here is being missed.. The OP stated that the site has a registered agent, if this is true, then Getty has NO case, and they did NOT follow the law as afforded by DMCA.

That's not always true; to enjoy the benefits of safe harbor protection, there is a strict protocol that must be adhered to regarding registered agents... I've had dealings with sites that, because they didn't adhere to the protocol as set out in 17 USC 512, they were wholly liable for infringements.

Beyond that, I've had cause to contact sites that were owned and hosted outside the US attempt to claim that they were protected by the DMCA. Sometimes this was down to a bald-faced attempt to avoid being liable under the laws in their own jurisdiction, other times they were merely misinformed as to exactly what the DMCA is.

Lastly - though I've never encountered this issue personally - a fellow photographer had discovered that a company had staff on payroll pretend to be third-party users uploading content to their "news" websites; they were effectively abusing their safe harbor status. All I know about that case is that it's ongoing and I'm not at liberty to divulge details that were shared privately with me, sorry.

130

Legal Controversies Forum / Re: Copyright Question

« on: July 18, 2014, 05:44:07 AM »

Your question revolves around what is commonly termed Fair Use and, more specifically, what would appear o be a transformative work... and the answer will depend on which country you live in, as Fair Use laws are not universal.

Absent that specific information, a general guideline would be that the more transformative the work is from the original, the more likely you are to be protected by Fair Use laws in your country.

Using the scenario you postulated, I would personally lean more towards hand painting your interpretation of the movie still via oils on to canvas, as opposed to trying to achieve a similar aesthetic via imaging software.

The skill and effort required to paint by hand points to both originality and a "true" transformation, whereas it might be argued that using image processing software requires less skill and thus be less transformative (the "anyone can do that" statement)

131

Hawaiian Letters & Lawsuits Forum / Re: Info on Woolf, Gafni and Fowler LLP

« on: July 02, 2014, 11:34:37 AM »

So I just got a notice that the VKT lawsuit filed against me by Adam Gafni of Woolf, Gafni and Fowler has been dismissed.

Pertinent questions: was this a voluntary dismissal (done by the plaintiff's counsel) or involuntary (done by the judge), and was it dismissed without prejudice (can be filed again) or dismissed with prejudice (over and done with for good)?

132

Legal Controversies Forum / Re: Photographer Estevan Oriol Files Copyright Suit Against H&M, Brandy Melville

« on: July 01, 2014, 12:31:14 PM »

Being a two-pronged action, this resulted in one dismissal for the plaintiff, and one win by default

http://www.thefashionlaw.com/hm-gets-photographers-copyright-case-dismissed/

133

Legal Controversies Forum / Re: HEROES OF COPYRIGHT INFRINGEMENT – THE PHOTOGRAPHER LITIGATION AGAINST SYFY/NBC

« on: July 01, 2014, 12:00:21 PM »

All information points to this dispute having been settled out-of-court

https://twitter.com/BGZ_Studios/status/402566491436236800

https://twitter.com/ButerflySamurai/status/380069634319605760

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Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 09:11:47 PM »

To be clear, I don't think anyone is suggesting that VKT will be awarded nothing if the trial goes forward. The issue is whether the award will be closer to $200 or $150,000+ attorney's feed or even in the vicinity of what he asked for in early settlement negotiations.

I think we both agree on this point, especially since California mandates ADR as a step before trial.

One of my own claims actually reached this point; it was my attorney in one room chatting to me via Skype, opposing counsel in the other room with the defendant, and the court appointed mediator going back and forth between each party until we pretty much reached an acceptable middle ground, which took about three hours in total.

Although either party can reject ADR, my counsel informed me that the assigned judge can take a dim view on those who don't at least try to hash out an agreement; it's down to Peggy and VKT to see if they can reach such an agreement which may be akin to "splitting the difference" between their penultimate positions before the petition was filed. If I recall rightly, Peggy had offered $300, whilst VKT was seeking $12,000... making a middle ground of c. $6,150. FYI, I'm presenting this as simple math alone.

So the question is how the facts of the case interact with precedents. We don't know all the facts-- even Peggy doesn't. But we do have access to some evidence which would likely be presented in court.

That's also a given - and no doubt more facts / evidence will come to light via discovery which, if I remember rightly, was something that was suggested happen in advance of ADR

One question: do you know of any cases where the award was in fact reduced to $200? I've had a cursory search for any such precedents but haven't turned up anything.

135

Hawaiian Letters & Lawsuits Forum / Re: Conrad-Scherer Demand Letter by Attorneys Jeffrey Kominsky & Ivan Kopas

« on: June 26, 2014, 04:49:56 PM »

From webshots.com's own Terms of Service

"Subject to these Terms and our Privacy Policy, you are granted a limited license to display, and use the functionality, materials, features, and services provided by the Site and App for your personal, non-commercial use as follows: you may download images available on the Desktop App for use as a screensaver/wallpaper for your computer and you may download images available on the Mobile App for use as mobile wallpaper. The photos are licensed from professional photographers and stock agencies to be downloaded as wallpaper or screensavers. You do not have the right to extract or print these images and Webshots does not authorize their use elsewhere. You may not use them in websites, presentations, slideshows or printed materials. You may not use, store, display, publish, transmit, distribute, modify, reproduce, create derivative works of, participate in the transfer or sale of, publicly perform, or in any way exploit any of this Content, in whole or in part, outside of the specific usage rights granted to you by Webshots as part of the services we provide. Those committing copyright violations may be subject to direct legal action by the copyright owners. We are unable to license Webshots images to third parties; if you would like to use any of the images, you will need to contact the photographer or stock agency directly"

Granted, I don't know what their terms were back in 2005 - but the above is fairly clear with regards to their current content.