We Stole Your Pictures, Now We’re Going To Sue You
jeremynicholl.com
jeremynicholl.com
The gall to do this sort of is incredible, what bugs me is how people that come up with this sort of thing sleep at night. Corporate accountability is really rare.
The unfortunate thing is that barely 1% of people would know how wrong taking someones photographs is and has the balls to make someone account for it. If more people knew about these stories, knew that they could get a big cash payout then everyone who has a photo stolen would be talking to their lawyer, which would make it a very harsh environment for big corporations to play games like this.
The thing I find most amusing about this whole affair is that the provision for the statutory damages that AFP might suffer was actually the result of big industry pushing for draconian penalties for copyright infringement by the little guy. I won't exactly be full of sympathy if a big company finds that the same rules apply in reverse...
Wow, this is really desperate on AFP's part if this is what they are relying on to justify their alleged right to use the pictures. It is way beyond doubt that a copyright holder retains rights to his copyrighted works even though they might be posted to the internet. In posting them, he gives at least an implied license to the internet host to display them publicly in the venue itself but it is utterly absurd to conclude from this that any third party can simply hoist them for his own profit. The fact that a sophisticated news organization would resort to such an argument strongly suggests that they have no defense to the photographer's claims.
This issue came up on HN not long ago when the idea was floated for publishing comments from this site in a monthly magazine format and the question came up whether the person who sought to do so had to get individual permissions from each of the posters. My comment on why individual permissions were needed (with some legal citations for the copyright law) is here: http://news.ycombinator.com/item?id=1262546.
The AFP lawsuit filed in Manhattan is for declaratory relief and for commercial disparagement. Most people, when victimized by others, have no idea that an adverse party can take their attempts to fight back and use it as a basis for suing them in a distant forum. Here, the photographer made claims that his copyrights had been infringed. This allowed AFP to file its lawsuit asking a court to consider the photographer's claims, to weigh them against its contrary claims that no copyrights had been infringed, and to render a judgment one way or the other on the issue (with AFP asking the court for a judgment that the copyrights had not been infringed). This sort of legal action can be used as a bullying tactic by a big player to force a smaller player to settle up or incur significant legal expense (on the other hand, for what appears to be a legitimate use of the same tactic by Google, see http://www.billboard.biz/bbbiz/content_display/industry/e3i8...). Here, the tactic has obviously backfired on AFP, since the photographer, in effect, responded with both guns blazing with counterclaims that put AFP at risk for some serious liability.
By the way, this piece sorts through the legal issues fairly astutely. It is well written from that perspective (and otherwise).
Wouldn't it be nice to have a 'tit-for-tat' law, stating that if you sue someone on wrongful grounds that the rest of the world can use your arguments in court against you as precedent in the future.
That would make companies and individuals alike tread a lot more careful before bringing nonsense like this to court.
Don't do to others what you don't want done to you...
Btw, it's great to have you back as a regular contributor on HN, we don't see eye to eye on some stuff but that doesn't mean I'm not always parsing your comments and learning from them every chance I get. Between you and patio11 you could start a site of your own!
I see it used EVERYWHERE. When using TinEye I can find hundreds of places using it, only a fraction actually giving attribution like the license requires. But, I don't really care.
However, recently I noticed a hotel was using the photo in an advertisement at SeaTac airport, clearly breaking the CC license I put it under. A friend thinks I should send them a bill. What do you guys think?
However, under the Federal Circuit precedent set by Jacobsen v. Katzer, I think they're still liable for copyright infringement, and you're still entitled to monetary damages.
I don't think this is well phrased. From what I can tell "antagonistic assertion of rights" is a legal phrase that appears in the counter suit, but is not the reason AFP is filing suit. "Antagonistic" is being used as a purely descriptive, and not a judgemental term (more like, say "declaratory" than "malicious").
That said, I can't say I'll be too torn up if the phrase "antagonistic assertion of rights" hangs around AFP's neck like an albatross.
And the downvotes aren't affronting the view that the world would be better if everyone were more generous.
EDIT: That "no" refers to whether her signed consent is necessary, not to whether or not she deserves compensation. That is between the photographer, his conscience, and any damages he receives from this suit.
From: http://www.iusmentis.com/copyright/crashcourse/limitations/#...
"Photographic works often are portraits of specific persons. They may, but need not necessarily be, commissioned by the portrayed persons. Many copyright laws contain provisions that require the author to get permission from the portrayed person when publishing the portrait.
In case the portrait was not commissioned, e.g. a photo taken on the street, the portrayed person should demonstrate some likelihood of damage that can arise from the publication. A famous person could for instance argue that he normally charges for photos, and so the unauthorized portrait robs him of this income."
So, on the street, it's OK. In your living room, not OK. Getting pulled out of your collapsed living room - probably OK.
In fact, in most places in the western world you don't need consent forms if the photos are taken in public, period. It gets a little trickier when it's a portrait or something. But if you go out on the sidewalk of a busy street where people have no expectation of privacy and start snapping photos, they really don't have any claim to the revenue from those photos.
He's not asserting ownership of a world event. He's asserting ownership of a picture. I dunno if you've ever tried it, but good photos are incredibly difficult to take. When a good photo of a powerful event crops up, it can often define the event in the public's perception.
Why is it stupid to assert the right for compensation?