Netflix Stole My VHS Cassette Photos for Its Stranger Things Boxed Set | Hacker News Reader

Netflix Stole My VHS Cassette Photos for Its Stranger Things Boxed Set

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780 pointsjohnhenry370 comments

Sorry to say he went about this the wrong way. Seriously, calling the tech support line for a copyright infringement?

Netflix has a corporate website at https://ir.netflix.com/.

What he should do is send a document outlining his claim, including his proof and address it specifically to Netflix's general counsel, which can be found at this page: https://ir.netflix.com/management.cfm.

The letter should be sent (certified mail) to

David Hyman, General Counsel Netflix 100 Winchester Circle Los Gatos, CA, 95032

Why not just send a DMCA to their ISP and have them shut off for a few days?

It’s a physical item.

In 2017, it seems unreasonable to say one should have to resort to sending paid postage (from Australia) to simply get in contact with a company who has stolen their work.

Sending correspondence certified mail, return receipt [1] is standard practice for creating a paper trail [2]. There is no such thing with email.

[1] https://www.wikihow.com/Send-Certified-Mail-(USA)

[2] http://www.kalzumeus.com/2017/09/09/identity-theft-credit-re...

Control-F "Do you like paper trails? I like paper trails. I particularly like paper trails where the United States Federal Government attests to the exact minute your firm learned the contents of this letter." (hat tip to patio11)

If it's good enough to handle secret information, it's good enough for my official mail to corporations.

http://www.wrc.noaa.gov/wrso/security_guide/mailing.htm

This seems like something we ought to be able to do electronically. I should be able to encrypt a message with recipient's pubkey and a verified timestamp from NIST (for example) in addition to my digital signature, with a requirement for decryption to result in a second call to NIST from the recipient and a record available to me of when it was decrypted.

If you expect someone to take your demand of payment seriously, you should do your best to make a serious request. Calling a customer service agent is almost the worst possible avenue, even an angry tweet could been more effective.

I have had stolen photos paid for based on only an email, so it seems pretty reasonable to me.

He asked customer support where to take his complaint, not to address his issue. They sent him to the pr email, if he was given the corporate contact he would have gone there.

This is good research. But honestly you come off a bit condescending. Should Dr. Lui really know how to handle the situation where an international, billion dollar company steals his art from a blog he wrote? I was thinking to myself, I have no idea how to get in touch with Netflix. If they did something like that to me, I might go down the same path he did.

I’m glad you gave him the information he needs but let’s give him a break.

On a similar note, should a lowly customer service rep trained to respond to cancellation requests and login troubles be expected to address intellectual property rights?

Yes. Absolutely. They should have legal’s contact info instantly available.

If your cs reps don’t have this, your organization is running a big risk. Consider one party recording laws.

Let me refer you to legal should be a first day training thing.

I worked at a rather well known social media company for a bit. A good portion of our customer service was for password resets or general complaints. But we had well defined copyright escalation path that started with the lowest of the lowly customer service rep and ended with the general counsel. So yes, actually, I do expect that.

A customer service rep doesn’t have to have all the answers, but they should be equipped to find them, or at least find a next step (which they did, in this case).

The author didn’t handle this optimally and neither did the CSR. Should they need to? I’d prefer to live in a world where each party does their best to approach a happy resolution in spite of mistakes. In this case whoever reads the PR mailbox dropped the ball.

He asked them for contact information, nothing more, nothing less. Which they were able to provide after a short wait.

> should a lowly customer service rep […] be expected to address intellectual property rights?

Address? No. Redirect/escalate to the proper channels? Most definitely.

How was it condescending? The parent comment:

1) Apologised upfront for giving bad news;

2) Pointed out the clearly unorthodox nature of contacting the wrong communication channel (tech support for a non-tech support problem);

3) Pointed out the correct communication channel;

4) Provided information of what to send to the channel in item 3); and

5) Gave the address of where to send the claim.

Can you tell me which part was condescending? As far as I see it, the parent commenter when above and beyond; they went out of their way to help.

>How was it condescending?

The 2nd sentence. "Seriously, ...?"

Specifically, re: 2), the way that was pointed out was condescending, as is your implication that contacting support - which is one of the few publicly visible contact points - is "clearly" "unorthodox".

The "Seriously, calling the tech support line for a copyright infringement?" parts sounds like it could be calling out the author for doing something you feel should have been the obviously wrong to them.

I can't argue against having that part in there -- I wasn't personally offended I, and it's important to give what you write your own voice -- but it is good to know the kind of reactions that your writing will illicit.

(Just a side story -- I once posted a comment on a forum that was entirely meant to be sarcastic. Someone missed my sarcasm and responded with what turned out to be valuable information. Since then, I've tried my best to strip anything that might be unnecessarily negative out of my comments, but I'm sure stuff slips through....)

Funny, I often do ignore sarcasm if it serves no useful purpose. People sometimes get offended by answers they get or are just dumbfounded. Personally, I'm more often than not irritated when someone uses it as it tends to derail discussions. This thread is a nice example ;).

"Should Dr. Lui really know how to handle the situation ..."

Yes he should. This [1] is literally the second link to the Google search "what do I do if someone steals my photograph" and it has a nice check box of things to do which includes this step: Do some research

Find out the infringing person’s name as well as their contact information. This information is often available in the website’s “About Us” section. Use a website such as WhoIsHostingThis.com to learn the website’s ISP. This information may be necessary later

Typing "Netflix General Counsel" into Google gives you the address of Dave Hyman as the first link.

If you go to Gough Lui's website (http://goughlui.com/about-me-a-short-bio/publications-and-ap...) he is clearly fairly internet aware and understands how to use search engines.

Based on that I think it is well within the GP's expectation that Dr. Lui should be able to figure that out and send a letter to Netflix demanding either they stop shipping their product or retroactively license his imagery for $<x> where he might want to consult with a Photography Agent to understand what size 'x' might represent.

[1] https://www.whoishostingthis.com/blog/2016/01/27/images-stol...

Something like 1-5% of the news.ycombinator front page is customer service escalations.

I don't think it's totally crazy to write a blog post & publicize it on social media as an alternative to the traditional executive-email-carpet-bomb. It's not necessarily the best strategy but it's certainly not the worst.

I completely agree with that, and it isn't crazy to write a blog post about it. That said, a blog post that had his written letter to the general counsel and Netflix's unsatisfactory response to that, would seem to merit escalation. Dr. Lui seems to have made a good start but it is early days yet it seems to me.

Great link! In fact according to this Dr. Lui actually did all of the right things. Let’s recap:

The link says “make a copy of the infringed work.” It seems from this blog post and what he sent to the customer service and PR link he certainly did that.

“Determine that the use was actually theft.” Again I think Dr. Lui did that as well. It seems he has at least a basic understanding of copyright law.

“Do some research.” Well he has a hard time finding the corporate information for Netflix, or even a phone number. In his post he points this out. So as a means to find that information he did contact customer service. I guess he could have contacted their isp ;) which is another suggestion that your link gives. But I’m not sure he would have found any additional help by doing so.

My point is two fold. First, your helpful checklist isn’t actually that helpful in this case. Second, he actually followed all of those steps. I guess he could have googled for Netflix corporate. This would have shown him officers and directors. Whether that would be useful is hard to tell. It’s also important to remember that General Counsel is an American term. It does not always translate outside of the US.

He’s an Australian. That doesn’t give him much leeway. Rather ironically, Netflix has prevented VPNs due to copyright infringement. It’s hyopcritical of them not to deal with those in other geographic areas than the U.S.

Thanks for your replies! Along with your other reply here, https://news.ycombinator.com/item?id=15794032, I do think both sides could have done better, but it not a path sufficiently well-traveled. The issue at large seems deserving of some best practices love: e.g.

1) All inbound corporate communication channels should have an escalation path to the registered agent / general counsel.

2) Potential plaintiffs should be able to access the directions here https://blogmedia.whoishostingthis.com/wp-content/uploads/20... from here https://www.whoishostingthis.com/blog/2016/01/27/images-stol... .

3) The directions in 2) need additional guidance language for international issues.

4) Maybe 1) should have a link to 2) or something like it, but for more general legal issues / workflows.

I can see that in this case that a web search would have helped, but the root of every complicated, multi-party, decision problem is probably not going to be found on the first page every single time. In 2017, I'd strongly argue that it really should be.

"Typing "Netflix General Counsel" into Google gives you the address of Dave Hyman as the first link." Fairly sure thats incorrect. I found no mention of their corporate address on a *netflix.com domain, just a bunch of head quarters aggregators.

On my machine, the first link in the search results is to the ir.netflix.com pages (ir stands for Investor Relations) which has the list of directors and managers. That is a Netflix owned page. And if you click the 'annual reports' link it shows the corporate headquarters address at the top. So you are correct, it is two clicks to get both the name and address of the general counsel from Netflix.

And while I don't necessarily expect anyone to know off the top of their head that the top legal contact for a company will be called their 'general counsel', there are many many many stories on the web about people who have had their photos misappropriated and used (from travel brochures to bus stop ads) and doing any research at all would give you a clear sense of what the right course of action would be to do here. Further I would expect anyone with a PhD to be familiar with how to research a new topic of interest, to evaluate sources, and to derive the key principles underlying the system if they were widely understood and published (like image copyright is).

I don't know why I would contact the general counsel of a company if they stole my work. I'm not an artist, but I have made some art, and if someone stole that art I would call the company itself.

Additionally, I've tried calling the corporate number for a number of companies in the past, and oftentimes they are just a message that says I should email them if I need to contact corporate. SF companies are particularly bad with this, I guess paying people to answer the phone is a waste of money.

If your customer service can't figure out how to escalate legal issues, that sounds like the fault of the company, not the fault of the person who is trying to bring legal issues to their attention.

“General counsel” is the title given to a company’s chief in-house legal officer, so it would indeed be contacting the company itself (and the person at the company most likely to be able to properly handle the situation, at that).

That said, finding somebody a little farther down the chain in the legal department might yield a faster initial result at most big companies; this type of infringement is comparatively small potatoes for the GC.

I've never worked at a company large enough to have in-house counsel, so I figured that it was a title given to the entire legal department.

I work in marketing, and it drives me nuts when people say "well we didn't know about this because people didn't contact us in the correct manner." If there is a way to contact you, assume that someone will use it to contact you about literally anything.

People assume the structure of their organization is obvious because they are familiar with it. Someone trying to contact the organization should not have to divine the nature of the beast like a bunch of blind men trying to determine the nature of an elephant.

https://en.wikipedia.org/wiki/Blind_men_and_an_elephant

In the US, you want to send mail to the registered agent.

That's the person on file with wherever they incorporated who accepts legal paperwork during business hours -- and thus can always easily be reached by mail. Companies are required to have one of these, and they'll deal with routing legal complaints internally. Just send your angry letter with tracking to the registered agent, so you get a signature when they drop it off.

For Netflix, it seems like:

> The address of the registered office of this corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19081. The name of its registered agent at such address is The Corporation Trust Company.

So if you send your angry mail there, Netflix legal will almost certainly read it.

> if someone stole that art I would call the company itself.

"The company itself" is a finite set of humans with jobs. Dave Hyman's job is to handle legal issues involving Netflix. You're saying that the best course of action to resolve this legal issue involving Netflix is to call the company's tech support?

> that sounds like the fault of the company

OP is already dealing with a fault of the company. Declaring that the company has a second fault isn't helping.

Customer service isn't purely tech support.

I've called customer service because I've been burned by malfunctioning products before. I received a replacement product in addition to some financial compensation.

I'm sure that's the sort of thing legal handles, and therefore customer service must have a way of contacting legal.

I think it's beyond reasonable to expect contacting the customer-facing representatives of a company should be sufficient for almost all matters.

Yesterday I was going to reply to your other message in this thread, but I decided to let it go. However, your "it's beyond reasonable to expect" phrasing has piqued the issue once again.

You work in marketing. I do not, but I assume that marketing folks view communication as a good thing. After all, your job is to present your company's message and get responses from potential customers. Communication equals success. Thus, it makes complete sense to you that that customer service would be a catch-all for any incoming communication.

Consider instead someone who works in legal. For them, in almost all cases like this one, avoiding communication is a victory. Status quo is preserved if people go away, and ignoring people often makes them go away. That department absolutely does not want to ensure that customer service faithfully passes on all relevant communication. The more CS is a black hole, the better.

You need to distinguish between these two types of inbound communication. You repeatedly make statements like "it's beyond reasonable to expect," "If your customer service can't figure out how to escalate legal issues, that sounds like the fault of the company," and "Someone trying to contact the organization should not have to divine the nature of the beast." These statements might make sense in the context of a potential customer communication where both sides want to make a deal. But they sound clueless, entitled, and whiny in the context of an inbound communication from a non-customer and potential litigant like OP. Do you think Netflix cares that they didn't make it beautiful and seamless for randos to obtain compensation for copyright infringement? And do you think they care that you're so very disappointed in them?

It's odd to be frustrated at a company for avoiding or delaying the rents and friction of running a company. That's what they're supposed to do. In fact, a shareholder would be frustrated at a company that didn't do this. I doubt you're interested in taking advice from me, but since this frustration is a running theme in your posts, and because most people want less frustration in their lives, you might consider a more nuanced expectation about how companies should behave -- especially when your current expectation leads you to make irrational and self-defeating choices like contacting customer support instead of legal for a legal matter.

"netflix lawyer" got me to this amusing story.

http://fortune.com/2017/09/20/stranger-things-bar/

I really think Netflix try to be the good guys and will handle this VHS matter pretty well. (once it gets to the right person)

Eh. He made a good-faith attempt to contact them. The first person he talked to told him who to contact. If there's an error here, it's on the part of Netflix, not Dr. Lui.

> Yes he should.

Why can't we program our <something> support departments to act on information they're given? Why do we need to program these departments like they're half AI zombies?

For all we know, they DID act on the information given... and sent him down a pointless rabbit hole to prevent him actually taking the correct steps to address the problem. After all, Netflix is in the wrong here... and I don't know of any corporation who will happily assist someone in filing a grievance against themselves. On the contrary, if someone is sending repeated emails about something that could potentially be a lawsuit, I'd guess my lawyer would advise the same thing -- ignore it unless they actually file paperwork.

Think of it like getting pulled over for speeding -- Everyone knows you did something wrong. But when the officer says, "Do you know how fast you were going?", do you respond with "Yes, officer, I was going 31 in a 25. Please give me my ticket now." No, you admit no wrong and hope they don't push it so you get away with it.

Because it is in Netflix best interest if he doesn’t get a laywer. He said the images can easily go up to $600 and I believe this is truly what he would have gotten if they asked. Now since he they took it without asking, he probably could get a lot more (it is after all used as promotional material and there are a lot of ads for it). If Netflix wanted the copyright infringement to go away as quickly, and cheaply as possible, they would just pay him without lawyers on his part who would probably advice him to go to court.

You’re analogy with the police office is a bad one for this example. Image you dumped another can without you realizing that. Fortunately for you, the other person does not call the police immediately. Instead, they manage to track you down and send you a letter asking you to pay for the damages. You can assert that this did in fact happen because their paint is on your car. This is in your best interest. You really don’t want to get charged for a hit and run. You are glad he did not go to the police, pay the damages and send a nice apology letter. Netflix probably did not know about the copyright infringement. It probably was made by a design company. Netflix should have know whom the VGA cassette originates from, but they did not and this is unfortunate but can happen. It is in netflix’s best internet to go away silently.

What I believe had happened is that he was sent to the wrong department. That department saw the email and though it was not authentic/a fake to quickly export money or baseless. A company must get a lot of emails: “you owe me money because xyz”.

> A company most get a lot of emails: “you owe me money because xyz”

That is my point. It is their best interest (although not best ethics, arguably) to ignore and deflect such people unless they take further action to prove they are serious. At that point, someone from their legal department would certainly take a look, and in this specific case, act on it. I agree with your statements once someone has shown they are serious. But a call to CS and a couple emails don't yet put this guy in that category, despite his totally legitimate complaint.

(And yeah, you are right that my analogy is bad.)

Talking to a rich corporation’s GC without any idea about how to turn your claim into leverage is like asking a mob consigliere to pay the cleaning bill after one of their guys murdered someone in your pizza shop. At best they’re going to ignore you or tell you to piss off. At worst they’re going to try to intimidate you into silence. Either way, “just email their lawyers” is likely a fruitless endeavor without your own to push the right buttons.

While a beautifully painted analogy, it's possibly a somewhat overly cynical one.

As demonstrated previously with the C&D to the Stranger Things themed pop-up, Netflix's in-house counsel are reasonable and PR savvy.

I'd hold off the mob comparisons for a little while.

> I’m glad you gave him the information he needs

He didn't. He posted it on HN, which is clearly the wrong path.

> Should Dr. Lui really know how to handle the situation where an international, billion dollar company steals his art from a blog he wrote?

Yes, he obviously cares enough to write a big blog post; he shouldn't have done that, instead he should've gotten a solicitor and gone through the proper legal channels. If he's lucky he'd get a regular one-time payment for use of the pictures. If he's really lucky those would end up a bit higher than the cost for the legal procedures.

OK let's say you are a private person in the USA and want a solicitor for legal action against Australian company. Where would you even start? How much is that going to cost you? How is that more reasonable than leveraging social media?

Social media can’t file a lawsuit and a lawsuit is how you solve these issues. You have to prove infringement, you have to present evidence. You don’t “try” your case on the phone with Netflix. You file a lawsuit, you wait for an answer and then typically you settle out of court. Copyright infringement that is easily proven against a company like Netflix would be a slam dunk case — there would be attorneys that would take that on a contingency basis because it would be so easy: likely two or three letters sent and a stop by the courthouse to file the lawsuit — then a settlement offer of $5000 or so, with $1800 going to the attorney for barely 2 hours work.

The part I highlighted is the copyright owner is in Australia and the company is in the USA, "just file a lawsuit" isn't as simple suddenly.

You don't start with a lawyer. You start with a letter before action, which sets out what they've done wrong and what you want them to do about it.

This is very simple. There are plenty of example online. It would be roughly "I created, and own, these images. You've used them without permission, for a commercial use. You understand the importance of IP and copyright, and you defend your own rights. I'd like you to buy a licence at my standard rate of $X, plus a Y% uplift for commercial use by an organisation that should know better. I expect payment within 28 days."

When you're interacting with big corporations you need to speak their language. We see this in claims of copyright infringement, but also in open source projects that don't get donations from big corps - because they don't offer the "order, invoice, payment" cycle that corporations expect.

And that's what the author did essentially (receiving no response from Netflix). The GP says he should have started with a solicitor.

They contacted support and were given the PR email address.

I worked at a large-ish tech company for a while. I would frequently hang out with customer support people, and honestly stuff like this would come in from time to time.

You have to remember the whole world operates on systems such as slack. That customer service person can ask 10 people in a matter of minutes on how to deal with this situation.

Ignorance is no longer a tolerable excuse. If something comes in and it sounds like it might be meant for the legal team, then you should probably ping the legal team.

Only the newer companies (probably Netflix) have customer service that can actually ask anyone anything. Most big companies seem to have completely clueless or extremely siloed support. Probably because they have outsourced it.

The scripts they send to these silos and outsourcing companies should have a clearly defined "go to Legal" path, though. Even if it takes a "let me take down your contact info and send it to someone else." In my experience bigger corporations are better at this because they've been through it and have a good legal department of their own.

> You have to remember the whole world operates on systems such as slack.

Um, really?

Not slack specifically, but slack, hipchat, lynx, skype, jabber, or whatever flavour of text your corp office prefers. Email may still be the only way at higher levels, but for people who actually need to do stuff quickly, there's often going to be done chat system available.

> If something comes in and it sounds like it might be meant for the legal team, then you should probably ping the legal team.

You're vastly overestimating the competence and domain knowledge of the average customer service representative.

It's clear from the exchange that the CS rep wasn't a native English speaker, and I'd guess they're an outsourced contractor, certainly not in regular contact with actual employees. The entire goal of that department is to avoid bothering productive workers with trivial questions. The only interface to the rest of the company available to a CS rep is to file a ticket which will go into a deep triage pool.

That’s sounds like a Netflix problem. They get the “benefits” of cheap labour; they’ll have to pay the price of bad pr.

1. You can't get righted in the eye of the law without money to enforce it... A lot of money.

2. Gough Lui is unemployed, see #1. Lack of money to be made whole/ court fees.

3. Gough Lui is from Australia. You think getting whole was hard in the same country - now try another one.

4. They could have afforded to ignore it. Now it's social media for 5 minutes. So they might, or might not. Not like they're going to sue. See #1, #2, #3.

1. Not true. An easy case like this and you can get a lawyer on contingency. I did that when I sued Equifax a few years back — a nice settlement and the lawyer took his cut.

2. Define what being made whole meant? Did he lose money from this photo being used? Did the future value of this photo get harmed? What was the value of the photo? What were the actual damages? As a stock photo, that image wouldn’t be worth much more than $50. Our of court “go-away” settlement would not exceed $5000 — because there aren’t any actual damages.

3. How was he made not whole? What are his actual damages?

I find it interesting that the HN community that hates DRM and thinks torrenting movies is ok seems to care so much about when Netflix effectively downloads an image and makes a derivative work — like a music remix. How many are demanding that DJs who make bootleg remixes and post then on SoundCloud pay the original artists damages? How many get furious when someone gets sued over violating a patent?

This is the same thing. But we are supposed to care differently just based on who is involved?

Not GP but...

A DJ making a bootleg DnB track for a dubplate or free release on SC, is somewhat different from a multi-national corporation copying someone's images for the premium edition of a boxed retail release of some of their flagship content. Your comparison is disingenuous.

Not least because a DJ's primary function is mixing together music.

Also for commercial release for sale in Target, they'd presumably get clearance on the samples.

And as for your "based on who is involved" rhetorical question, yeah it does matter, and it's not the same thing.

Ironically in the case, Netflix are pretty chill and PR savvy about this stuff. But it's a company that rigorously defends its IP. It should be held to the same standard it expects.

1. I can't fight an anecdote, and I won't. Finding an attorney who's willing to work on contingency is rare in my experiences. It also requires an attorney who's versed in that field of law (copyright). Lastly, they also need to find someone able and willing to navigate international law on top of copyright and willingness of contingency.

2. In tort law, you don't sue for blood and destruction of your enemies. You sue because you were wronged and are asking the court to be "Made Whole". Certain things may provide a damage multiplier if the case can be made of willfulness. Or there may be statutory damages if certain actions are done (Copyright infringement, with a note of copyright sent to the US copyright office with appropriate registration fee).

They were wronged by a commercial usage of a copyrighted artwork. This artwork is now used on a multitude (million+) copies.

As for your "As a stock photo, that image wouldn’t be worth much more than $50." - that's for a court to decide if they could afford to pursue legal means. And to claim there wasn't any "actual damages" is honestly laughable. 'Sorry artist, your work was pirated by a company to make profit on you, but no damages!"

3. Already answered that.

Side notes: you're conflating quite a few issues together. You're lumping in private copyright/patent breaking and corporate patent/copyright breaking activities together. There's also a widely accepted issue that copyright is too long. There's very little argument that copyright shouldn't exist.

However, DJ's can sidestep copyright by paying their ASCAP fees. That also allows them to remix ASCAP artists, and they can get paid (commercial) for it and also then pay the original creators as well. But music and radio has some very weird carve-outs that most non-musicians aren't aware of.

But aside the length of time arguments, when a company, whom has the money, chooses to break copyright of an individual artist, people do get very angry. And given the asymmetry, people get rightly angry.

Agree, writing a blog post about how you are unemployed, and that NetFlix had $178 million dollar Q1 profits is not the correct way to go about this.

Write a formal letter, or even better hire an attorney and have them draft it for you. I'm sure $NFLX will be more than willing to pay out handsome royalties if indeed your story checks out.

I think "unemployed" and "hire an attorney" are not 100% mutually exclusive, but if he's not asking for much and doesn't have much money it's a probalby not a good option. As for handsome royalties, they're rarely large unless you've got a lot of leverage. You're coming at this as if he's got money and wants to make more and nothing in the post suggests that's true.

I read your comment before reading the post and you gave me the wrong impression of what happened.

He did not "call the tech support line for a copyright infringement". He contacted the company to ask for the proper contact information to deal with this problem. This is not unreasonable - he did not demand the tech support to address this problem, he just asked for the right venue to do so.

After that, he was talking with corporate, who did not respond to him. I'm sure hiring a lawyer and sending a proper letter would give him better results, but if you trying to solve something amicably, emailing through the official channel is very reasonable.

What’s actually happened here is that a designer has lifted an image off the web (probably through a google image search) for a design, and that design has made it through to production.

I’m not saying it’s ok. But I’d be willing to wager that no one at Netflix had any ideas where those images came from. The design was most likely from a design agency, and even the top brass at the agency probably had no idea where those images came from. At the root of this there’s a designer who’s probably been asked to rush out a design, they’ve taken a shortcut and they’ve been rumbled.

Again, it’s not OK to steal images, but I seriously doubt Netflix knew that’s what they were doing.

You're almost certainly correct on your guess.

That said, the top brass at the agency/Netflix/etc should be ensuring processes are in place to require obtaining/verifying licences for the images used.

If some idiot designer grabs images from Google Image Search, and fails to inform anyone, it's still management's fault for not verifying those things.

Yep, junior designer isn’t really that much at fault. Senior Manager who owns the process Should really know better. That’s why they pay them the big bucks.

Don't mean to come across as nit-picky, here. I work for a media company (not Netflix):

Just to keep things going straight — that's usually an art director's role on such a project. Senior management likely wants nothing to do with tasks like ensuring copyrights and IP issues are paid out. The art directors are usually the ones who know better. Senior-level managers may know, but they may also pay other people to know better.

Junior designer isn't at fault, and shouldn't know that you can't just lift random photos off the internet for commercial use? Please. Of course their boss is at fault too, but the person who actually did Bad Thing is - at a minimum - 50.1% responsible.

Accidental copyright violation is a liability in almost any online business.

It's not okay, but it's also not a HUGE crime. This is a civil matter, worst case it'll cost some money as they buy a license after the fact... or pay settlement in court.

It's perfectly reasonable to NOT stifle your organization with cumbersome processes to verify licenses.. Because these things rarely happens, and when they do are often worked out at low cost.

The DMCA says to stop infringement upon notification. It doesn't specify unlimited penalties for accidental infringement. If so YouTube and most of the internet would die at the hands of greedy copyright holders.

If implementing a lightweight process to vet designs would cost less than the cost of settlements/judgments, then it would make sense to implement some process. Companies that want to stay in business have to put on their Grownup pants and get serious about risk mitigation.

small things like this is a tiny risk.. as is the risk it'll be discovered..

let's be fair, little harm was done here..

In most of these types of jobs you directly bill the client for licence acquisition for the type of usage (after the client approves the artwork/design).

Forget to do that and now you need to pay out for acquiring the licence afterwards - and you'd better hope there was nobody identifiable in it because getting a modelling release afterwards can be even more expensive (after all, both the photographer and the model know they have you over a barrel).

Also don't bother billing the client afterwards, after that kind of screw up you'll be on eggshells with the client. Do it twice and you definitely won't have a client to worry about.

Sorry, I missed the accident part. Where in the narrative was the accident?

Nobody had the resources to search here?

http://www.gettyimages.com/photos/vhs-tapes?excludenudity=tr...

I suspect it complicates things further that the image creator presumably did not have permission from Netflix to use their copyrighted name and logo for his own work.

Edit: nvm, didn’t see that the logo work was not his own...

Where did he use Netflix's logo?

Right on the cover, at the bottom. It’s not just the Netflix logo, it’s the ST name and branding copied from Netflix. I’m not saying they had a right to take it, but neither did he have the right to publish this image in the first place.

He didn't make the Stranger Things cover.

He took a picture of a blank VHS tape that Netflix got from his website and used as the basis for their DVD cover.

Hah, thanks, I totally misread that it was just the VHS blank.

Assuming that no fair use applies, possibly, but that’s a conclusion built on top of a chain of assumptions that are not necessarily true at all.

Do graphics agencies (don't know the standard term) have some general solution to this problem? I imagine the legit ones that are serious about IP would have to be (and I'm surprised Netflix isn't run like that).

I'm guessing you'd have to do something like, require every artist to list the resources they used for their image with some link to the source and license rights. But I'm also not sure how expensive that solution is and how widely it's used.

Anyone know what measures big companies take to ensure they're not accidentally putting themselves on the hook for major IP infringement damages?

Nope. There’ll probably be something in the contract that protects the client against this sort of stuff, and the agency is in hot water now. But beyond that, there’s no real process in place. For big projects the cost of sourcing images will be billed back to the client and so everyhing works like it’s meant to. But I imagine in this case, the DVD packaging was a last minute ad hoc peice of work where the client asked a bunch of agencies (or the clients main agency asked a bunch of smaller agencies) to pitch a design for a fixed budget on a short deadline. And probably a small budget.

The agency asks a junior designer to turn the brief around in a day and says “there’s no budget, but we need to keep this client happy (if they’re the main agency) or we need to impress this client (if they’re a subcontracted agency or an agency not on the clients book).

And that’s where things went wrong. No money. No time. And a junior designer eager to impress.

Yes, certainly that's what happened. Not an excuse for anyone, but a plausible explanation.

Still the agency should have processes in place to avoid this. Every professional designer I've asked about this sort of thing is very aware.

I would add that the the client was not in fact protected. Netflix might be protected from legal action, but the reputation damage here all accrues to Netflix.

Having been on the "creative" side of several of these kinds of graphic design projects, with some fairly large clients, I can assert that it's likely that the agency who did the design signed something to the order of "indemnify and hold harmless" for any copyright infringement suits, and has insurance for that eventuality.

That insurance is likely to get a lot more expensive unless Netflix and the agency can come to an amicable resolution with the OP.

Often when you're creating something like this, you don't know if it will be the final selection. Some people can't visualise, so the designer may end up creating something without knowing it will ultimately become the final product. Given that they might make a number of attempts, it's very easy to throw in an image thinking it's temporary and forget about it in hitting deadlines and getting a project over the line.

Then unless there was a meticulous review process, I can see how someone might overlook a very default, straight on view of a generic product.

or you make a draft or concept and they use that as the final

Yep, happens all the time. Or you say "I've used a placeholder image. Can you please select and buy a stock photo that you like?" And they never do, and it all gets forgotten.

I haven't thought of this, but I indeed saw something like this happen.

Quick mockup of how it could look like, but because the client saw this first and said "this is the one I want", they actually like the mockup better than the final version with similar but not quite the same graphics.

> but I seriously doubt Netflix knew that’s what they were doing.

Ignorance does not excuse ones culpability. This will be extremely inexpensive for Netflix to remedy the PR hit will be a little more expensive but not long lasting. Netflix is really the only fish in the pond, so people may care but have nowhere else really to go.

This shouldn't effect the outcome though. The National party in New Zealand (the government at the time) used a 3rd party agency to source music for their 2011 TV campaign.

It turned out that the music sounded exactly like Eminem's "Lose Yourself" and he successfully sued them http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objecti...

So while it's fair to say that Netflix probably had no idea it doesn't change the fact that they're using images that were stolen.

Of course. The image in question is the 3rd that comes up on Google Image Search for "vhs tape" (and the first good one).

To people who argue that the person at the agency should have used a microstock agency, the problem is, the image you get from a microstock agency (without an account) almost always has a big watermark on it, so it can't be used to make an acceptable mockup.

To get an image from a microstock agency without a watermark you need an account, and the junior designer tasked with doing the mockup probably doesn't have one, and she didn't have time either to go ask for one.

Bad process? Certainly. But big corporations don't necessarily have good process. They have people sitting around in offices, subcontracting everything to consulting companies who in turn try to have the work done by unpaid interns if possible. Okay, that may be a caricature -- but truer than it sounds.

...and the occasional IP hiccup is the logical outcome. In this case, it should be simple enough to maybe even turn this into a microscopic PR win with swift application of money.

But there is one more if: if the box design was commissioned into the subcontractor chain by Target and not by Netflix (with Netflix only licencing the Blu-ray content), then no company will consider themselves responsible: not Netflix, because they really had nothing to do with the box design and not Target, because the bad PR will appear in front of Netflix's door.

> big watermark on it, so it can't be used to make an acceptable mockup

Wouldn't that make it the perfect mockup material, as in, good enough to preview the finished result, impossible to land in production?

Not really, because the blog post says the image was modified, and parts cloned, to match the aspect ratio of the final packaging. If you do this on a watermarked image, they you have to do the work again on a non-watermarked image.

Which is why a mockup isn't made with that precision.

It's only supposed to help you envision the final product, no more no less.

It wouldn't make it to production. Multiple design agencies send multiple mockups each to Netflix. Someone at Netflix picks a few that they like and then the original design agency has another set of artists ("Finishers") who made the high-res, non-watermarked, final image.

The problem is, if your source images have watermarks and the competing design agencies' don't, Netflix is going to pick your mockups for finishing less often because they don't look as good. The market selects for design agencies that don't use images with massive watermarks in their mockups.

Insightful reply, thank you!

Makes me ponder what other kinds of angles of approach are required to "fix" this problem.

They are big watermarks so they cannot be used without paying. Agencies are supposed to pay for theses photos, and most good ones do so (I'm currently working in a design agency). As they are working for a company like Netflix, I doubt they do not have the money to do so.

What's the appropriate process for situations like this one? Would you just make a note of the copyright holder and have someone contact him if the client likes the mock-up?

Typically, in my experience, you just buy one or more photos and show the client options. You don't nickel and dime this stuff in any serious operation.

[ADDED: But, yeah, lots of last minute stuff happens on deadline.]

Google Image Search also lets you to specify the license you are searching for, which is something anyone designing anything professionally should be well aware of.

Commercial stock image sites were invented for situations like this. Not having time (or whatever) to pay for your stock photography stops being a valid excuse when you rise above the level of "bake sale flyer".

Even so, that does not protect them. Every designer I worked made sure to get and document the license for the images used.

Also, maybe there is something bigger here: maybe someone scraped the image and resells them through shutterstock.

In any case, the owner is way within his rights. Why not insist on them? If the rubber band was on the other claw, Netflix would not hesitate.

+1 for Dr. Zoidberg reference.

After doing a cursory image search on Google for "VHS Tape" leads to a high res image that is in the public domain on Wikipedia [1]. Why the designer didn't use that stock image to begin with doesn't make any sense to me.

[1] https://en.wikipedia.org/wiki/File:VHS-Video-Tape-Top-Flat.j...

And the whole time I was wondering if this meets the Threshold of originality[1], any lawyers here wanna comment?

The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not.

Edit: More questions, the Sony logo[2] according to the Wikipedia page[1] does not meet the threshold. If it doesn't, then does the author's simple scan-like image of a VHS tape meet it?

[1]: https://en.wikipedia.org/wiki/Threshold_of_originality

[2]: https://en.wikipedia.org/wiki/File:Sony_logo.svg

The very same wikipedia articles talks about how pictures of a vodka bottle dont pass, and cant be copyrighted. So I would assume the VHS is the exact same story.

The vodka example is talking about the text rather than it being a plain photo of an inanimate object, right?

Correct. The actual ruling was that the photos taken by the photographer (Ets-Hokin) were copyrighted.

https://www.law.cornell.edu/copyright/cases/225_f3d_1068.htm

IANAL but I think that this rather works in the manner that for example, the Sony Logo can be freely recreated without repercussions. So you can make your own Sony Logo no problems.

Same for a vodka bottle as some other commenter stated. But a copy of someone's photo of a vodka bottle or a copy of someone's Sony logo can be a IP/CR violation.

This kind of thing is very common in the entertainment industry, curious how Hn would react to a piece of proprietary/licensed code somehow discovered in some highly profitable SaaS product (is that even a thing?)

I have no ill intentions. I have no intention to ask them to stop selling the items. In fact, I’m happy people are nostalgic about VHS. I’m not looking to milk the situation at all. I’m not threatening to get a lawyer on their case. I’m just frustrated that I had to find out from someone else in the first place.

too passive aggressive, if your work was stolen and used in a product to make $ you have every right to be upset. Lawyer up and get paid.

Oh I'm positive this happens all the time. The GPL specifically is pretty restrictive and there are frequently cases where GPL licensed software has made it into nonfree distributions. There are several lawsuits by the Software Freedom Law Center regarding GPL licensed software that's been improperly distributed. After FSF vs. Cisco, legal departments have wizened up a little about this kind of thing, but I'm confident there is still a massive amount of infringement.

Depends what the license is. If someone was running their SAAS product on SQL server without a license, that's up to Microsoft to handle.

If it was a GPL license, well, the standard GPL doesn't really apply to code running on servers, even if it is modified code. That's why the Affero GPL was created.

It appears he did get reached out to by netflix

"I thank everyone for their attention, time and support. It has been very overwhelming, and has broken a number of records in regards to page-views at my personal blog. Special thanks to PetaPixel who agreed to republish the article in its entirety this morning.

As of 12:30pm (UTC+11) while I was away from the desk, I received a reply from Netflix. The reply reads as follows:"

You can read the rest on his blog: http://goughlui.com/2017/11/22/netflix-uses-my-vhs-cassette-...

Hmm, he included his contact @ Netflix's full name... that's no good.

It's the Corporate Communications Manager at Netflix, they are pretty much a public spokesperson for the company so I don't think there is any harm done here. It's not a low-level employee.

Fair enough. I guess it shouldn't be a big deal, but still a little weird to leave that in to me.

It's informative as to whom others should contact in the future.

(1) You shouldn't have to find this info in some blog post after some googling.

(2) You should address functions, not people. People change, but someone dealing with copyright infringement at Netflix will still be there in five years.

I don't think it's a big deal to leave some public figure's name in there (though I would personally have censored it out), but the argument you make doesn't make sense to me.

So 20 + "a few" days without any response at all.

But after an upvoted blog post they're back to you in an hour or two.

I suppose it's a truism but I'm increasingly annoyed that you would need a (large) platform to be even responded to, much less be treated fairly.

Same issue all over. It was also flagrant with Apple you notice people who try going through proper channels it's a flip of the coin whether they'd be handled or given the run around, whereas media would trigger a PR scramble. Then Apple has the gall to tell you "going to the media never helps".

I fully support the author, but bouncing around Netflix customer service/PR and writing a blog post trying to shame them isn't really achieving anything here. Stuff like this happens all the time. Just get a lawyer to draft them a real letter and make a quick buck.

It is not a quick buck. I had some photos stolen before and commercially used in a magazine -- while I had a website, and had a side job as a photographer, and I was selling licenses to my pictures! It is a lot of hassle. I hated to deal with that.

Imagine your github repository being copied, and the content being used in the next version of say the Google Pixel, with no attribution and no respect for your copyrights.

Unless you enjoy suing people and making enemies, it is not fun. Unless you have a lawyer on a retainer, it is not a quick buck.

Also, this is just when you "catch" the violators. How many times did I have my pictures used commercially without attribution? I don't know. It may be why I left this line of business.

Just curious, what is your current line of business to overcome the issue?

Solutions-based consulting, ie from a problem, to a solution. I take care of everything. This way, IP rights matter far less.

Why don't they deserve flak for being crap? I hate it when big corps can just bully their way.

Lawyers charge arms and legs; my impression of the article is that the author was not in a position where getting a lawyer was just a "just" undertaking.

This is unfortunate for everyone involved. The author feeling misrepresented on a successful product display sucks. I imagine the person who generated the graphic for the box is being talked to as well.

Often images have misrepresented copyright details on "open source" stock sites that can lead to this sort of thing.

Hopefully the two parties can agree on a credit placement to help clear it up

> The author feeling misrepresented on a successful product display... Hopefully the two parties can agree on a credit placement

Translated into human-speak: "Netflix used the author's photo without his permission. Netflix might pay him in the future."

Yeah, get paid for your work!

The classic talk "Fuck You, Pay Me" that shows up on HN every once in a while: https://vimeo.com/22053820

Not everyone wants to 'make a quick buck'. It's a shame that one has to get a lawyer to draft a letter to get noticed when it comes to something like this.

We're in the digital age. Email should work. Customer support should escalate and send an internal email or communicate to the appropriate person and/or dept (legal) as well, instead of just saying 'i cant (or dont want to) help you, please redirect here -> X'. This just shows how disconnected and teams are at a company. Oh and don't get me started about crappy autoresponder emails like that.

"Stuff like this happens all the time" is not an excuse. Not when it comes to sexual harassment, and not when it comes to copyright infringement or about shoddy customer support.

Even if one doesn't want to make a quick buck, making one is the best way to get companies to behave. If Netflix ends up paying $200K every few months with a negative PR hit for IP infringement they will improve their processes to avoid it.

Lawyering up is a service to the entire ecosystem, not just to yourself.

I totally get that that's how businesses are run now, and I'm sure that the OP would have to lawyer up and be prepared to spend time and $ regardless if he wants to pursue damages.

My argument is that the OP should have at least received a response from the company or have his/her concerns moved to the appropriate dept by the CS team, instead of being patronized by an autoresponder.

It's not really a customer service issue. That team isn't equipped to handle it.

They should be, though. I worked a university tech support line for a few years in college and we had a a whole set of redirections and escalations built up.

It's best that people only call you for the right things, but once they are already on the line your only real choices are to help them get to the right person or tell them to fuck off. To the extent the company cares either about service or their brand, they'll pick the former.

I think he meant "make the lawyer a quick buck".

The guy states that he wants to make some kind of buck, quick or otherwise, from having his work used. Since it was used on a project that probably makes lots of bucks, and since the graphic probably contributes positively to the marketing and success of said buck-making, that seems reasonable.

I shouldn't put words in the parent commenter's mouth, but it sounded to me like "Stuff like this happens all the time" was just acknowledging reality, not judging right or wrong. Also perhaps indicating (but if they weren't then I am now) that hiring a lawyer is not actually this drastic, horrible outrage to be avoided at all costs, but a rather routine measure advisable for anyone in business for themselves or anyone facing an obviously legal issue such as copyright infringement. Since this seems a pretty clear case, chances are good that he'd get his legal fees paid too, meaning the lawyer is free.

If this happens to me will you float me the cash for a lawyer?

Have you... ever actually done this?

When a publication boosted some of my images, I sent them an email. They apologized and sent me a check for, I think, $500.

My lawyer charges $350/hr. If I called him up asking him to send a demand letter for $500, he'd correctly tell me that a) it's worth me trying it first, and b) it might not be worth him doing it at all.

It's normal (in the West outside USA) to be redressed and awarded costs AFAICT. If you have to lawyer up to get your pay, then you should get paid in full and so should your lawyer. If not then the court should ensure it happens with punitive damages too.

If you get paid, sure. But that's not a sure thing, and a full trial gets expensive. Would you gamble $10k for a possible net gain of $500? Even ignoring the cost of time and stress, you'd have to be more than 95% sure of winning for that to pay off over time. But a large company could well do that, because their gain is measured not just by the trial, but by the number of other people they scare off from suing at all.

I keep wondering: If one thinks that Netflix ripped off Dr. Lui, do they also think that Dr. Lui rip off the manufacturer of the VHS tape? I mean, some designer spent long hours thinking about the many specifics of the tape design; do they also deserve credit? I don't discount that Dr. Lui spent effort photographing the tape, but it would not surprise me to find out that more work went into the artistic design of the tape than went into the photo.

(Does Dr. Lui even mention the manufacturer or brand of VHS tape in his post? I did not see it)

Under American copyright law, no, the manufacturer probably cannot get anything. Are you asking philosophically whether they should?

Yes, I'm thinking of the moral question rather than the legal one. Other commenters seem upset that Dr. Lui didn't get his credit, but it seems to me the next level of credit is equally interesting.

(I'm getting off topic, but the fact that the art of photography almost always involves copying a real world object always spins my mind in circles. How much of the credit for a great photo of the Eiffel Tower goes to the photographer, and how much is due to Eiffel? How about a photograph of the statue of David? How about a photograph of the Mona Lisa? How about a photograph of a photograph?)

https://en.m.wikipedia.org/wiki/Campbell%27s_Soup_Cans Down that line of thinking, I always found this example interesting. It's one of Andy warhols most well known paintings, and it's literally just of Campbell's soup cans. I've always wondered how the original designer of those cans felt, that a painter just painted his design and became famous.

Any philosophers here? I was just wondering if anyone wants to discuss what copyright law should be, rather than what it is.

On the one hand, if I had taken some photographs of VHS tapes and then found that a multibillion-dollar company had used them, without telling me, I would feel violated. And I would want some money --- if for no other reason than, hey, Netflix can spare it.

On the other hand, it seems overblown, especially considering:

1. The image shows up on many sites, having already been ripped off many times, according to another comment here. So it would have been hard for Netflix to know it was some photographer's treasure.

2. The images are plain shots of different sides of a VHS tape. Netflix could easily have done it themselves, and I'm sure at this point they wish that they did. Now if they did, then Netflix would have wasted a few hours, Gough Lui would be no richer, and the box would have looked the same.

3. I'm convinced more and more that nothing is totally original. Take Gough Liu's photographs. He could not have done them if Fuji hadn't manufactured the tapes. Did he get Fuji's permission to use their product's likeness? https://vimeo.com/139094998

There is a feeling that copyright is an absolute, natural right. But it is said that it didn't exist anywhere until 1710. And it wasn't because we thought people deserved it, like we think they deserve the right to life or due process. It was completely pragmatic, a supposedly artifical law, "to promote the progress of science and useful arts." In today's digital age, it seems more profitable for society to use each other's works freely --- at least as far as it goes in "the progress of science and the useful arts." We get way more out of building on past inventions and source code than restricting it to a few people or companies.

Now if you think it would be more beneficial "to the progress of science and the useful arts" to preserve copyright, please argue your point, along with how strict you think copyright should be, how long it should last, etc. Also, if you think copyright should exist for some other reason besides mere practicality in advancing science and the useful arts, please argue that. Again clarify whether you think copyright strictness and duration is fine as it is or should be implemented differently.

Thank you.

Honestly, it's not like the author worked 10 years on a Mona Lisa painting. It's a plain shot of a tape. Boohoo.

That doesn't mean they don't deserve to be compensated. The work I did today wasn't incredibly difficult and someone else could have done it, but that doesn't mean I'd be fine if my boss decided not to pay me for it.

How exactly do you believe a random photo is to be compensated?

If it were on a stock photo website, sure. Otherwise, how do you believe the transaction were to be arranged?

It wasn't work done for Netflix. He put it somewhere and did NOT expect to be paid for it.

Take 1000 photos and 1 might make you earn enough to consider it a meager living, but you still had to take the other 999 to get to that point. That's how art works. That's how most jobs work.

I don't think there was anything close to 1000 there. It was one puny random unremarkable photo which had nothing to do with art or a job.

You are missing the point. Maybe he didnt upload those other 999 photos on the blog.

Really now? If there was a way to verify, I would put money on the assumption that he has not uploaded the other 999 photos to the blog because there were no 999 photos.

Do you upload each and every photo you take to your blog?

Do you believe that someone in sound mind will take 1,000 photos of a VHS tape to put on a low-traffic blog?

You have completely missed the metaphor. Let me break it down for you.

Everyone is not born as a good photographer. So people practice by taking many photos of various things, now all of them wont be good, some of them can be good but they probably wont be noticed by anyone but there will be that one photo which will be good and gets noticed by people that matter and they will pay a good amount for that photo.

So that 1 photo will make up for zero revenues from all the other photos. The 1000 photos is a metaphor, dont take it literally.

Now do you get it?

The point is you don't know which of the 1000 is going to be your pay day.

That's the whole purpose of a stock photo website.

To easily track down the owner of the image and buy a license to use it for money.

You can do it manually by contacting a person directly, negotiating a fee for a license to use that image, but that takes time. Stock sites speed up the process.

Just because the photo was not sourced from a stock photo website does not remove the need for copyright or payment.

It's like saying "I copied a dvd and didn't buy it from a dvd shop, so I don't need to pay for it".

That Netflix could have shot themselves. But they didn’t. It was easier (cheaper) to use someone else’s work for free.

So if the Netflix shot it, the author would not be compensated. In the current situation, he wasn't compensated.

Is there a tangible difference for the "victim"?

If Netflix did their own creative work, the author would not be compensated. But they appropriated his work instead, without paying or even asking. That’s not ok. Especially for a company who relies on copyrights to secure their own profits.

So you agree that there is no difference for the author.

No I don’t. Maybe no difference in his bank account, but morally speaking it’s the difference between being taken advantage of and being respected.

Also, there’s a 3rd option Netflix could have chosen: licensing the author’s work.

He just explained the difference. Using someones work vs creating your own work is different.

You are making a number of unfair assumptions about the actual act that took place and its motivation.

As pointed out elsewhere, it is very unlikely that Netflix as a company did this intentionally.

Unintentionally breaking the law is still breaking the law. This will cost Netflix nothing to the grand scheme to remedy.

True, but he said "Netflix could have shot themselves," when probably they had nothing to do with the image acquisition. Netflix itself, as a company, or anyone at it, most likely had no intention of using this image for free, hence some unfair assumptions made by my parent.

But the victim here still needs to be compensated.

I’m using “Netflix” to encompass them, their agents, or affiliated production company. Somebody somewhere didn’t do their job in clearing the photo. They just found something online and went with it. That wasn’t an accident unless they don’t know their job.

Netflix is 100% in the business of using copyright to charge for things. Live by the sword, die by the sword.

Regarding point 1, that's now how copyright works. All they have to know is that they don't have a license for the photos. Regarding point 2, yes, that's how commerce works. People do things for other people; one saves labor and the other gets paid. Regarding 3, under US law the videotape is likely a "utility object", meaning Fuji can't assert a copyright claim.

As to your questions on copyright, there are many reasonable solutions, and I think our current copyrights are far longer than necessary to reward creators. However, I don't think anybody would suggest that photos have a copyright of just 3 years, as would be the case for these photos to have an expired copyright.

>He could not have done them if Fuji hadn't manufactured the tapes. Did he get Fuji's permission to use their product's likeness?

This is actually a huge issue here, since the photo is a perfect replica of their tape design with very little additional creativity. Photographers do have to get rights if the stuff they photograph is the creative expression of others.

Except in this case it's pretty clear the photo was taken as a diagram: he wasn't trying to get benefit from the VHS tape box designers brand and image, he was trying to explain how the device works. Consider all the youtube videos of how to change the oil in your car or whatever. Yes, there is copyright somewhere, but no: how-to informational stuff is clearly fair use.

But at the same time: yeah, the guy took a picture of someone else's box design and Netflix used it. Where's the damage here?

It sounds like the whole thing is making a mountain out of a molehill, but even more absurd claims were made in the Apple/Samsung lawsuits.

People want and use photos for free. In the early days of the internet I put up some black and white photos of a blues artist. The photos migrated to that artist's myspace page and from there were used by newspapers occasionally to promote a tour. The photo went uncredited, and by the time I found out I was working professionally the tour was over and it didn't matter.

Oddly HBO contacted me about clearing a photo for use (a Queens NY photo) in one of there shows about 10 years ago. I asked for $250 for "lifetime rights" they wanted. I never heard back again.

I wish Dr. Lui luck in getting some credit/ money.

Well in your case it seems likely that they just went with another photo rather than pay $250.

Two things dubious about this, a) should any photograph of a common object ever be covered under copyright? talking about threshold of originality[1]. and b) was netflix use of it transformative in nature [2] and protected under fair-use. For those reasons the author seems to me an unpleasant nitpicker to make such a fuzz about nothing.

[1] https://en.wikipedia.org/wiki/Threshold_of_originality [2] https://en.wikipedia.org/wiki/Transformation_(law)

The photographs were created at great expense: skill, equipment, time, props. Of course copyright applies.

"Great expense" isn't enough in all jurisdictions. In a sweat-of-the-brow jurisdiction like the UK it would be, but I'm not necessarily convinced that it would be in the US.

"I bought a really kickass camera; all my photos are now copyright" vs "I used my phone's camera; I don't have copyright on all my images" seems like a rather ludicrous difference too. Because things like time are hard to measure and irrelevant ("I waited outside all day for sunset" vs "I lucked out and got there at the perfect time to take it"), and props, when it's literally -one- object, being taken from the most obvious angle, also seems a bizarre thing to consider. Not saying what is or is not the law, and in what jurisdictions, just that it seems weird to consider it anywhere.

If you think of it in terms of expense and recompense it makes sense. I spent £5k making this photo vs. it cost me nothing beyond sunk costs to make.

The first thing that comes to my mind is Duchamp's Fountain...

https://en.m.wikipedia.org/wiki/Fountain_(Duchamp)

Seriously. Given the amount of modifications you can make to such a common object, they changed a fair bit. Altered the lighting all over the place, faded some of the indentations, copied over the pattern to make the tape wider than it normally would be to better fit a DVD case, etc. Yeah, it looks like it started from this guy's image, but they made a lot of modifications to it. The object isn't original, the angle isn't original, yes, it started with their image, but they modified it heavily (including in ways he doesn't call out)...without explicitly looking for similarities, I wouldn't have thought it the same image at all.

First of all, this probably isn’t “Netflix” but rather some designer Netflix hired to do a job. It is incredibly hard for a company to double-check all this stuff.

Unfortunately he will get the best result with a lawyer. The infringement pierces contracts and even can pierce the corporate veil to make people personally liable.

I believe statuatory damages may be around $10,000 per infringement, so from there he can likely negotiate a reasonable settlement equal to a normal fee plus legal costs.

I doubt he will get much traction another way. Although, I hope I’m wrong, and a little public shaming will get a reasonable result.

It presumably won't much matter whether a contract designer or a Netflix employee did it. This problem is what indemnification clauses in contracts are for, and perhaps Netflix will try to take their damages out of the hide of the contractor, but that's unlikely to be the original author's problem.

True. But I'm also wondering: at the size and scale of Netflix, don't they stick with more above-board agencies with better controls for this kind of thing? I doubt they'd be happy with "Hey, guy-in-his-pajamas who freelances with his photoshop skills, do you pinky swear that you own the rights to all the IP in your deliverable? Because we fully expect to recover our full liability from you if you don't!"

It is also a good question of if the images were modified substantially enough to count as a derivative work by Netflix. I think because this is also a common image with absolutely no identifying features or labeling it significantly weakens their claim against Netflix.

https://en.m.wikipedia.org/wiki/Derivative_work -- In this case based on a lay reading of the case law it is not clear to me. http://foundrylawgroup.com/copyright-copywrong-what-are-deri... -- another discussion. Based on US law I am guessing this is OK, it is not an exact rip off and has been modified at some. Anyhow it is a complex legal issue and I see a rush to judgment here ethically.

Morally I agree with the author and think Netflix should just throw him a bone since they decided to ask forgiveness (maybe....) rather than permission.

Derivative work is still infringement.

There is an update, Netflix have replied and said they're investigating. The original post is on goughlui.com, the PetaPixel link is a reblog and hasn't yet been updated: http://goughlui.com/2017/11/22/netflix-uses-my-vhs-cassette-...

The Netflix reply (pasting here so the website isn't crushed by HN clicks):

Dr. Lui,

First, my sincerest apologies that no one has gotten back to you until now.

Your blog post was brought to my attention so I wanted to reach out and let you know that we’re currently looking into this matter with the creative agency that worked on the product design for the tapes.

Will update you as I know more. Feel free to reach out in the meantime.

Best, Marlee

Also worth pointing out that the image in question is also being used on dozens of other websites (including BuzzFeed). You can find them by using a reverse Google Image search, and noting the specific camera tripod reflection:

https://www.google.com/search?sa=X&tbm=isch&tbs=simg:CAQSmQE...:

If you do a reverse image search on the original stock photograph in question, you will see that it has been reposted hundreds of times before this, surely without proper attribution. Obviously some guy in the graphics department found it and saw it was everywhere, attributed in all sorts of ways.

Is it really reasonable to expect everybody to go on an archaelogical dig to track down stock photos through hundreds of copies to trace the original from some Australian blog? If I use a snippet of "open source" code, am I morally/legally obligated to also scour the internet, trace its geneology through hundreds of Stack Overflow answers/random Github repos that it's already in, just to make sure the person licensing it as open source didn't, himself, steal it from somewhere else?

Yes, it absolutely IS reasonable.

In fact it’s a basic part of the job

Yes... because the creator reserves all rights to copyrighted works (with some legal exceptions). If you cant find the creator, then you have no rights to use the image. To get such rights, you need to contact the creator and ask. That's the way it works.

Just because you don't know who to ask, doesnt mean you're magically granted rights you dont have to an asset you had no part in creating.

Just because you don't know who to ask, doesnt mean you're magically granted rights you dont have to an asset you had no part in creating.

Huh? I think you just described Google Books.

They "got away with" copying over 25 million books in their entirety. Not that I agree with the US courts in this matter.

https://en.wikipedia.org/wiki/Google_Books#Copyright_infring...

Situation is obviously completely different. Google was not reprinting, packaging and selling the books like Netflix was in the OP.

Google are commercially benefitting from having copied works in their entirety. It's not so different.

Google indexes the books, not repackaging them for a different audience. Fundamentally they're doing the same thing for books that they do for web pages, whose copyrights are also not violated by search indexing.

Netflix's designer, on the other hand, appropriated someone else's photograph wholesale.

If people are licensing a proprietary work as open source, they are in trouble, not you. What if Netflix actually bought/licensed the image from a third-party that stole from the original author?

Yes it is reasonable. Graphic designers typically use stock materials so that they know the licenses are taken care of. Many companies have a "nothing but stock" policy to ensure this exact issue never occurs, and they pay Getty et al literally millions of dollars a year for licenses.

And if you're a CTO, yes it is in fact your responsibility to verify that you have the legal right to use code in your codebase.

> Is it really reasonable to expect everybody to go on an archaelogical dig to track down stock photos through hundreds of copies to trace the original from some Australian blog?

Google Image Search is not a stock photo library. There are plenty of stock images of VHS tapes available for licensing; just google "VHS stock photo." Whoever made those images probably worked for a design company with standing accounts; they were just too lazy to use them.

> If I use a snippet of "open source" code, am I morally/legally obligated to also scour the internet, trace its geneology through hundreds of Stack Overflow answers/random Github repos that it's already in, just to make sure the person licensing it as open source didn't, himself, steal it from somewhere else?

Irrelevant, because the designer didn't have a good-faith belief that they were licensing the image correctly. They just pulled it off a GIS and didn't bother.

But since you bring up open source, do you think you're morally/legally obligated to abide by the terms of the relevant open source license when you use open source code? Or do you think you can just do whatever you want with it, because obeying the law is hard?

Do you think you're allowed to walk off with someone's lawn furniture, because they're not home and as far as you know they don't want it anymore?

The premise in your question is wrong. If they wanted a stock photo of a VHS tape and rights to use it, they should have gone to one of the countless stock photo sites, searched for "VHS" and bought it. Not just randomly google image search for VHS and hope they found something that's free to use.

Maybe he can send them a humorous cease & desist letter http://www.businessinsider.com/netflix-stranger-things-pop-u...

OP should totally throw Netflix to the wolves, he should send a cease and desist letter to every store stocking these, and the service providers of every website advertising these.

Netflix enforces it's copyrights through the legal system - regardless of how humorous - and fail to comply with it themselves? Complete hypocrites, I still wonder how corporations get so much leeway in this country. Honestly, IP infringement like this from a company like Netflix should involve a 10x penalty; the onus should be on them - as people who regularly use the IP systems for profit - to get it right.

> he should send a cease and desist letter to every store stocking these

He's just a regular guy. I don't think he's going to be able to pull that off.

I think you're probably lashing out a bit hard at something that was probably unintentional. They should absolutely pull it back now that they know they've infringed, but (as pointed out in the comments) there a quick reverse search reveals many mirrors of the image. The person who pulled it may have even gotten it off a site that offered "free use," though they didn't actually own the image.

As far as 10x punishment and them using IP systems for a profit? 10x what measurement? And when has Netflix used IP for profit? I wasn't able to find any relevant cases from a quick search.

Their entire business model is around selling access to protected IP. (Skip to the last sentence to skip the angry rant).

They lobby for DRM and the weakening of security systems to protect their profit, and in doing so are asking others to trust them (or by proxy companies that implement it, like Intel), to get it right.

And yet they can't make a cardboard box without failing to respect the intellectual property of others? When they should know better? When they lobby against people pirating their copyrights? When they (or lobbies that they help fund anyway) ask for additional powers in prosecuting these violations? Why do they get a pass just because of their size?

Under the accounting systems used by lawyers they have funded, they should owe this person millions of dollars (each violation should be counted separately, at x3 for punitive damages, if they distributed 1000 copies, they would owe the author 2 million in damages; in bit-torrent cases they've done this to charge students who shared an album 31 times with hundreds of thousands of dollars in fines; and yes that was sustained on appeal).

They've ruined peoples lives with these ridiculous calculations. You're right I am angry. They should face serious crippling fines in return for actually profiting off of this copyright violation. Oh wait, they've actually (helped) make a felony (through their lobbying contributions) of that. They should go to jail, like the copyright violators they send to jail (is that ridiculous? of course it is, but people are in jail because of it, the companies who help lobby for these things should face the same jail time, even a 10x of their own ridiculous accounting is being generous, executives should go to jail for this, people who pirate videos for profit do, what difference is a photo then?).

TL;DR: First time criminal copyright violations (knowingly distributing copyrighted material you don't own for profit (across state lines, because federal government); 18 U.S. Code § 2319) are up to 5 years in jail - Netflix helped pay for those strict punishments - I look forward to seeing who gets sent to jail for this crime when it's a big corporation instead of some university student.

> and fail to comply with it themselves

This photo has no copyright protection because it does not meet the https://en.wikipedia.org/wiki/Threshold_of_originality so Netflix is not doing anything wrong here.

Yup. IANAL, but Bridgeman Art Library v. Corel Corp provides clear precedent. He may get $5k in FU hush money or $0 to discourage others from emulating the behavior.

I assume you are a copyright attorney and are thus speaking with good knowledge on the matter, and therefore are already aware of the legal precedent for the OPs case, and not just a wikipedia page.

Prior cases very similar to this one have successfully been tried in favor of the photographer.

He probably wouldn't win.

On the question of copyrightable subject matter in rather plain photographs of a VHS tape, see Ets-Hokin v. SKYY Spirits Inc., 225 F.3d 1068 (9th Cir. 2000)(holding that product shots of vodka bottle merited copyright protection) [0].

[0] https://www.law.cornell.edu/copyright/cases/225_f3d_1068.htm

I had trouble determining if this was satire or not. Its a picture of a VHS cassette and not a particularly interesting one. Im not saying that he shouldn't get attribution for his work, but this is also generic enough as to not be a unique work of art.

I think you are right. Certain types of images you can't even copyright as they do not meet the standard as a work of copyrightable material.

What might those types of images be, and what statute entitles you to use them?

"Familiar symbols or designs" depending on the country, wording may vary.

https://research.ncsu.edu/nctc/study-guide/infrastructure/re...

(Standard disclaimer: I am not a lawyer)

That says the symbols themselves can't be copyrighted, so that for instance you can't go after someone for photographing or painting a stop sign. It does not say that photographs of familiar symbols and designs can't be copyrighted.

If the VHS tape looks generic, it's because the photographer did a good job. Lens choice, tripod, angle, lighting, post processing, publishing hi-res version. That is work.

I've done plenty of "generic" photo shoots that I've needed to re-shoot because something such as minor reflection or details are wrong.

> That is work.

The US does not have a "sweat of the brow" law. It's irrelevant how much work it took. All that matters is if there is creativity, vs simply mechanical reproduction.

One of the components of creativity is sweat of the brow work. Without that, creativity is unrealised.

Photography is often mechanical reproduction. My picture of the moon will look similar to millions of others. Does that mean you'd take my picture of the moon and use it commercially without asking me first? I would take issue with that!

The way the light falls on that VHS tape may have been a perfect match for the design brief. In which case, something other than mechanical reproduction is involved in signing off on the product artwork.

This is such a weird objection (and it's occurring all over the thread, not just here). By the same logic, do you think you're entitled to any commercial stock photo, so long as it's "generic" or "mechanical" enough?

Your even allowed to copy movies of they're remakes you know. /s

Right, but you have to put NO COPYRIGHT INTENDED on them.

> By the same logic, do you think you're entitled to any commercial stock photo, so long as it's "generic" or "mechanical" enough?

Yes, obviously.

For example a simple direct photo of artwork has no copyright to the photographer. It doesn't matter if the person claims copyright - they don't have it.

There are tons of things people claim copyright to, without actually having that legal right. These photos of a VHS tape fall in that category - they do not meet the threshold of originality, because there is none. It is simply a mechanical photo of an object.

Just because you did work, even if it was really hard, and you did a lot of work, does not mean you get copyright. That's simply not the legal standard.

You seem very confident about this. I think you're wrong. Can you show either a statute or a court case in which it was decided that a photograph --- a work explicitly designated as copyrightable since at least the Copyright Act of 1870 --- was found not to be protected by copyright due to insufficient originality?

For the countervailing evidence, you might check out the footnotes in Ets-Hokin v Skyy Spirits.

Does Australia? It appears to be the pertinent jurisdiction.

I used a Google Images photo of cinema seats for a promotional graphic for a big media company a few years back. I did not seek permission as I had a looming deadline. I felt guilty, so I spent 2 hours in Photoshop altering the image significantly until it barely resembled the original.

I pushed pixels around in the fabric of the seats, changed colours, erased things and even then it formed only part of the graphic I made. I still felt a bit guilty, but I think I did enough.

In this case, the VHS tape is not significantly altered, it's clearly the photo from his blog. That's lazy. If you're going to rip off an image from Google images, at least push a few pixels around with clone stamp and healing brush to make it different and unrecognisable from original.

this is an interesting point. If you take someone else's original work and modify the contents of it. At what point of modification can the output no longer be associated with the original work?

yes you based your modifications off the original work but carry overs from the original content is protected by copyright law?

At the point that nobody notices that you ripped off the image! That's the point you can feel safe, although you may not feel satisfied with your work ethic.

The more commercial the usage, or bigger the company, the more responsibility to do the right thing by the rights holder of image.

That's definitely a good point.

The fact that a 3rd party looking at the picture managed to recognise that it was his tape (when it could have been one of potentially millions of tapes) shows that it is not significantly different.

Im the person who drew the etchmarkings you see on every vhs cassette today. Also I was responsible for placing the vhs trademark logo on it. No just kidding. Im not of course. But in my opinion these claims are a little absurd. Taking a photo of an everyday household item is, in my opinion, not some original work of art they intentionally stole. Some graphic intern used them off the web instead of shutterstock. Big deal. These posts make it soind like netflix had a secret executive meeting where they decided to rip off a poor photographer which, i think, did not happen. Some graphic intern will get sacked most probably.

Taking a photo of an everyday household item is, in the eyes of the copyright law, an original work of art. It does not matter if they have used it without a license intentionally or not, they just did. What’s dumb is that this is not a poor non-profit we are talking about, this is a big company that makes money depending on the copyright law. If these cases are taken lightly, next time they will do it again – why bother when the chance of getting caught is pretty small and in the worst case you can always sacrifice some pawn?

It might be. But is it relevant? If they ripped off an entire tv show yes. But, again, im pretty sure they outsource designwork like this.

A billion dollar company that constantly bugs their non-US customers across the globe on copyright infringement issues, committed copyright infringement because did not have as much as a process in place to get original or paid-for art for an original production they're spending millions of dollars for.

As you said, big fucking deal, uh-huh?

Either get rid of copyright law, or hold billion dollar companies to the same standard as customers. I'll take one or the other.

I dont think they (netflix) design a dvd inlay inhouse tbh. I think the design agency should know better but nonetheless i dont see the harm done.

It is literally the first result when I do an image search on Google for "VHS Cassette". And when I go to the "Contact me" page on his site [1] I read a lot of passive-aggressive "Don't talk to me, bro" language ;-)

Also none of the pictures have any kind of license or copyright info. I cannot even see from the article at [2] that he took the pictures himself.

In conclusion my opinion is yes, the designer should have asked for permission. But also the author should add copyright/license info to his site and make that info easy to discover.

I'm sure Netflix will do the right thing and we all live happy ever after :-)

[1] http://goughlui.com/about-me-a-short-bio/contact-me/ [2] http://goughlui.com/the-vhs-corner/intro-inside-the-vhs-cass...

> But also the author should add copyright/license info to his site […]

To be fair, any professional worth his salt knows that no licensing info strongly implies copyright in most jurisdictions. Only material marked explicitly as public domain or being under a suitable permissive license is up for grabs without notice, and even then permission is usually sought in one form or another to prevent having to recall a product or spend a lot of money on remuneration afterwards.

Full ACK on that. My point is that any author/creator/maker/crafter that expects to be credited for his work should make it really easy to find the relevant information about licensing/using content. To avoid exactkly these kind of things happening.

Put it in the footer or the "About me" page, add a license blurb to all your entries in a blog etc. It's just a bit of one-time work but it helps a lot in building reputation.

Not sure if the system is like that in the US, but the best way to make a company react fast without involving a lawyer where I live (Quebec, Canada) is to send them a formal notice (https://www.justice.gouv.qc.ca/en/your-disputes/sending-a-fo...). Basically saying you will sue them if you don't get compensation. Most companies will contact you shortly after and it's way better than trying to go through the general help desk.

This is kind of interesting because my friend and co-worker had some of his photos licensed for use in the actual production- e.g. shown on screen- and they were VERY respectful and cooperative with him:

https://tau0.wordpress.com/2017/10/30/stranger-things-2/

Netflix probably has nothing to do with the DVDs. They don't own Stranger Things, they just license it to show it on their service. You need to contact the production company, not the network.

Since Netflix is the distributor, I think contacting them is not wrong here. But yes, contacting The Duffer Brothers and 21 Laps Entertainment may also help.

I think this would fall into the category of ‘fair use’.

The OP had a very generic high quality photo of a VHS tape. There was nothing particularly artistic about it.

Netflix provided new value, by substantially modifying the image for a new purpose.

I know everyone gets worked up about big evil corporations vs the little guy, but I don’t think there is much substance here.

I think you are not a lawyer, and your grasp of fair use is lacking.

It's a photo of a vhs tape. They are using it to represent a photo of a vhs tape with their logo on it. What "substantial modification" could you possibly be thinking of.

The article admits that they modified it to get it to fit the aspect ratio of the DVD and added all the stickers on the outside of the VHS that were not present originally.

Edit: For clarification, I'm not saying it qualifies as fair use but just clarifying OP's claim that there was significant modification. That doesn't mean it's legit.

Modifying dimensions is different than creating a derivative work.

They didn't modify the dimensions. They added to the original artwork so that it would fit within new dimensions. They cloned parts of the image and added extra space so that the aspect ratio would stay the same but so the VHS tape would fill the entire cover. The end result is not the same aspect ratio as the original image. They also added stickers and labels.

It doesn’t matter, and the artistic value of it doesn’t come into play at all. If you are selling things based on a photo of a napkin I scribbled on while drunk, you’re still violating my copyright.

The author here holds the copyright for those images, and Netflix is using them as part of the design for a product they’re selling.

Fair use only applies when it is for a “”transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.” (https://fairuse.stanford.edu/overview/fair-use/what-is-fair-...) which is not the case here.

This is probably just a Netflix designer (or contractor) who got sloppy by using images off the internet, but that reflects extremely poorly on Netflix or the agency/contractor they decided to use.

I work as a designer for a large company, and any time I make assets that might see the light of day, the company takes extreme precautions to make sure situations like this don’t happen. There’s no reason Netflix shouldn’t be held to that standard.

I thought Fair Use was a curiously USAmerican thing, do they really have it in Australia, I expected they'd have something more like Fair Dealing which gives _practically_ no usage rights (I'm exaggerating, but only a little).

IANAL, but fair use doesn’t cover commercial art used to sell something, like this DVD packaging. If it did, the stock photography business might crumble overnight.

> fair use doesn’t cover commercial art used to sell something, like this DVD packaging.

Slavish reproductions can't be copyrighted in the first place, so it's irrelevant.

Nope, commercial or non-profit it doesn't matter. See Myth #1: http://www.adweek.com/digital/fair-use-youtube/

There are 4 criteria used for evaluating whether fair use applies. The first being:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Source https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors

To be clear, commercial usage doesn't automatically indicate a violation but it would be considered.

IANAL. Fair use doesn't have a strict definition and depends on a bunch of factors that would be considered in a court:

* the purpose and character of your use

* the nature of the copyrighted work

* the amount and substantiality of the portion taken, and

* the effect of the use upon the potential market.

(https://fairuse.stanford.edu/overview/fair-use/four-factors/)

You certainly can include copyrighted content in commercial art, for example if it's a single second of a video, the main subject of discussion (such as in a review), a small portion of a complete work (like a quote), and more. Non-commercial use could still affect the potential market for an original (such as by outselling it or defacing it). So a lot of it depends on how much you're using, how you're transforming it, and how it affects the original.

Disclaimer: I'm not a lawyer.

This is absolutely not fair use by the legal definition. There is a very difficult four-prong legal test that must be applied to any usage before it qualifies as a legal "fair use".

The term "fair use" really sets people at an undeserved ease around copyright because they make just such conclusions as you've made here: if it seems like the infringement wasn't a big deal, then it's "fair" enough, and everything's OK. The reality is that copyright is very draconian, so much so that were it uniformly enforced, most of the things you like about the internet would not exist.

Netflix is a big boy and should play by the same big boy rules that they love to impose on small creators. There is no reason they couldn't pay a license fee. If the photographer's demand was unreasonable, they could find another photo of a VHS tape that was priced according to their liking and license it legally. It's not like they're rare.

BigCorps lean on their hotshot $1000/hr law firms to bully and push around the little guy all the time. They'll threaten to sue you into the ground no matter what you do, whether they're trying to stop you from competing against them on dubious grounds that require a massive VC warchest to afford to fight, or whether they're trying to stop you from asserting your own legal rights when their conduct has violated them, again attempting, and almost always succeeding, at making the fight far more expensive than any possible damage award. (This discrepancy is where the concept of punitive damages comes from, a legal feature that is exclusively American).

I hate seeing companies play both sides of this. I love it when a little guy is able to get the gumption and cash together to teach them a lesson. I just wish it could happen more often, because small creators getting blatantly ripped off by giant companies is no rare thing.

Use for commercial purposes weighs heavily against a finding of fair use (the legal test is whether "the user stands to profit from exploitation of the copyrighted material without paying the customary price"). Mere replication without substantial transformation of the work also weighs against fair use. So does use of the most or all of the whole copyrighted work as opposed to a small part of it (each photograph in a collection is usually the "whole work" for this purpose).

The Seventh Circuit also recently stated that fair use is not meant to protect "lazy appropriators" who could have easily found an alternative. This is the natural outcome of the four factors specified in the law, but is not helpful to infringers as an explicit precedent.

Source: I am a law student who just did a ton of research on Fair Use law.

Edit: In response to wyldfire, the two big Supreme Court cases in the area are Campbell and Harper & Row. The Seventh Circuit case I referred to is Kienitz v. Sconnie Nation.

Thanks for providing the details. What are the relevant decisions?

Is the availability of fair use limited when the creator explicitly states that the product is only available for licensed uses?

My intuition is that it doesn’t matter, since that is basically the core function of copyright. No need to explicitly state it. You don’t even need to mark the work as copyrighted, since all works benefit from copyright automatically.

On the other hand, the explicit, implicit, or expected refusal of the owner to license it for certain purpose weighs in favor of fair use. This is because of the fourth statutory factor, the effect on the market for the original. It’s harder for the owner to argue that you are depriving them of a market if they refuse to serve that market. It can go the other way though if the owner can show that the use will nevertheless affect demand for the work in the markets the owner does want to enter.

The expected inability to get licensing is also one of the reasons for parody, and satire to a lesser extent[1], enjoying a presumption of fair use. Owners are unlikely to license someone to mock their work, but there is a fundamental free speech interest in allowing such mockery and commentary.

[1] Parody is primarily commentary on the original work, while satire is using the original for commentary on other issues.

I agree with you here, to gain copyright a work must comprise a creative element, here this is a neutral photo of a VHS tape, which tries to be objective and by definition not creative at all, so it does not generate a copyright.

“Creative” in copyright law means that it results from an act of creation, which taking a photo - no matter how “neutral” - is.

See: https://en.wikipedia.org/wiki/Threshold_of_originality

I don't think this image meets that test - there is absolutely no originality here. No special angles, lighting, design. Nothing.

It's just a plain straight on, photo of a common item.

Besides the fact that “no special angles, lighting, design” is nonsensical (what makes an angle or lighting “special”?...) - how do you think stock photography businesses make money exactly?

Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes.

> Besides the fact

The fact that he had to resort to careful pixel inspection of minute things like the position of the gear teeth, already tells you that the photo has no creativity behind it.

> how do you think stock photography businesses make money exactly?

By being creative in a generic sort of way. The Threshold of Originality is really not a high bar to meet. It doesn't take much. But it does take something.

> Feel free to use all the “non special” photos from Shutterstock without paying them a cent and tell me how it goes.

I rarely have such a need, but if I did I certainly would. People claim copyright all the time on things that do not actually have copyright protection. A great example is a typeface - it does not have copyright. But that doesn't stop people who make them from claiming copyright.

There was a post on HN a while back about someone who spent months carefully searching garbage in London finding examples of a really really old typeface. He then made a font out of it, and sold it. With declarations of copyright of course - but despite how hard he worked, that typeface does not have copyright protection. (nb. The font file may have copyright as a software program.)

Long before WWW this problem was addressed with licensed stock images. It's a commercial project, not significantly transformative, and wouldn't be worth arguing fair use over.

The practice of downloading a random image from the web and modifying it is a good way to learn, but not a good way to work professionally.

Every design firm has a subscription to something like Getty Images these days. I suspect this was done in-house. Nobody should think to do something like this on a major production. It's just asking for trouble. (not that the major studios don't have their own snafus and that this kind of a thing is unheard of, but it mostly happens with things like daily news where people are trying to push things out as fast as they can)

Aah, the old "Australian IP taken by an American company" thing.

I feel sorry for the bloke, but my own experience tells me that he's probably not going to get this resolved very easily to the effect he's hoping. (If he was an American and his IP was taken by an Australian firm, the gates of hell would open.. but the reverse doesn't hold especially true I've found).

My personal opinion - the image is pretty generic, and he should feel happy that he's got at least a (tiny) level of recognition by the design team using his photo. But then, there's a big part of me that agrees with him and that Netflix should do the right thing and at least provide some attribution. At the end of the day, he has got a copyright notice at the bottom of the page, it's his IP, and any professional design studio should know better.

Uncredited is not even tiny recognition. He received zero recognition and zero dollars for using his photo on a big time product. He should be paid, end of story.

You miss my point. I mean that the fact that someone used his photo means that they discovered something he made, amongst the countless number of things floating around in the internet, and as such there is a small amount of satisfaction that could be taken from it. Indeed, I did say that I feel he should be compensated however, so I don't understand the sense of animosity in your comment.

No animosity here. I get what you're saying, but we all know that "Google Images" will be the answer to the question "where did you get the VHS image from". The answer won't be "Gough Lui".

And the choice of image wasn't decided by "Netflix" but by a designer probably trying to meet a deadline. Personally I would not feel one tiny bit of satisfaction, but I understand and accept that you would if you were the photographer.

I have complained to large companies a couple of times: I have only had actual success twice. In both cases, I knew (or found) the email of the CEO of the company and I emailed that address. I doubt that the CEO actually read the messages, but in both cases the complaint was legit and followed attempts by me to use the "normal" customer channels. In the first case I received a phone call from someone high up in the company, and in the second case an email from a VP who actually addressed my concern and told me how they were planning to fix it.

And, BTW, when I worked for Apple, radars originated by Steve Jobs or Tim Cook obviously received very special attention.

Clarification.

No theft involved - nothing was stolen.

since this is a copyright claim, it is about a non-authorised copy - notice copy not original.

Please, let's call this for what it is and not what it is not.

No theft involved, only copying.

Is this a situation where (like dealing with management) going to them with a proposed solution is appropriate?

I'm sure that if you're trying to get as much as possible from them (based on the statutory fees/penalties, etc) then it makes sense to let lawyers handle it and negotiate, but if all you're looking for is an acknowledgement and a little something then I could easily see sending something to their General Counsel (as provided by donarb) saying something like "I propose that in return for a retroactive and unrestricted right to use the artwork on any Stranger Things packaging, advertising, promotional materials or products you will compensate me with two (2) physical copies of the currently-available Stranger Things release and a free subscription to the middle tier of Netflix service for (lifetime, 10 years, 5 years, 1 year, whatever)."

That's assuming that such would be something of interest to him and that he'd consider it adequate. The advantage is that by presenting it like that he gets something out of it and Netflix says "Oh hell yes, that's basically free for us, here you go!"

Like other people, I fully support the author here and do hope he sees fair compensation for this. But my eyes rolled out of my head at this part:

> "Initially, I was in disbelief for two reasons. I’ve not watched Stranger Things, but I’ve heard a lot of good things about it. Could it be true that my work has become a part of their product and I should be so honored to be part of it? The images I were seeing did not lie. They were my photos."

> "Then it turned into a feeling of betrayal. How could they, a large corporate company with day-to-day experience in handling rights-protected materials, use my material without so much as asking me for permission? How did they think they can get away with it?"

Dude, get a grip. This was very obviously the mistake of a (probably rushed) junior designer whose work wasn't checked over thoroughly, not a sinister plot coming straight from the boardroom. Assert your rights and get your due, but please avoid the histrionics.

You are being awfully hard on a guy who probably has no idea how marketing and professional design workflows occur. To many people, the actions inside any company are quite opaque. It's fair for him to ask these questions; most people would.

Maybe an unpopular opinion, but I don't regard a photo of an object as having much value. These photos could have taken by literally anybody. Think of it as somebody using a piece of code you have posted online in their huge enterprisey app. I don't see the problem with that, or what makes a photo of an object worth any special treatment.

If it's so easy, why didn't they take a photo themselves? Could it be that using someone else's existing photo actually saved them time and money? If so, then it sounds like there's value in the original photo. If not, why wouldn't they just create an original photo on their own.

I don't understand your position. Another small time blog has not used his VHS photo, Netflix has. Or more precisely, the production company behind the packaging.

There are professional standards and processes in place that require everyone in the chain to get paid for their work.

Aren't these photos public domain?

I'm sure Wikipedia was involved in a court case against museams that decided that scans and non-artistic photographs of 3-D things like sculptures and friezes didn't give the photographer any copyright claim on older works that were in the public domain.

Unless the person who designed the moulds for the cassette has some kind of claim then I'm not sure this photographer has any copyright either.

https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel....

(edit: I notice there's a discussion about "fair use" way down at the bottom of this discussion, which doesn't seem a popular opinion. I'd say it's not fair use, but only because the photographer probably doesn't have a copyright claim in the first place, but I'm not a lawyer etc. etc.)

Netflix should compensate. Its a win-win for both.

Its good PR and the money ask by Dr Lui is small. It'll make him a fan too. And Stranger things message is to listen and help the disenfranchised and the marginalized.

Or they could use their legal power to raindown a firestorm on the guy. But then Jim Hopper would probably punch Netflix in the face:

"... Now, as we act and the continuing narrative of “Stranger Things,” we 1983 Midwesterners will repel bullies. We will shelter freaks and outcasts, those who have no homes. We will get past the lies. We will hunt monsters. And when we are lost amidst the hypocrisy and the casual violence of certain individuals and institutions, we will, as per Chief Jim Hopper, punch some people in the face when they seek to destroy the meek and the disenfranchised and the marginalized. And we will do it all with soul, with heart, and with joy. .."

It's resolved:

From his blog... " I have received a very courteous phone call from Netflix in which we discussed the matters at hand and appropriate compensation. The matter has now been settled to my satisfaction, and pending a few bits of paperwork, I shall receive a very satisfactory licensing fee and copies of the items as noted.

They have expressed their apologies over the mistakes made by their third party agencies as well as letting the initial e-mail contact get lost within the system.

As far as I am concerned, this is the best possible outcome that could have happened. Thank you all! " https://twitter.com/lui_gough/status/935633632688930816

There's no requirement to register copyright in Australia. Copyright vests in the creator immediately upon creation.

Given that this guy is an AU resident and I'm guessing that the works were created here, I'm pretty sure that means he's got more than just a moral right.

It's the same in the US. Registration isn't required. It just allows you to recover specific statutory damages, rather than just compensatory damages (you don't need to prove actual damages if you register).

No. Just no. This reads like the author is fighting some "good fight" but they are not. It's a picture of a common object, not even framed in any special way. I don't think Netflix should have asked them or reimburse them a single cent.

I believe it. As a film fan, this is why I really dislike Netflix—they seem a repeat offender at ripping off other artists. A few of their shows like Stranger Things (Alien, Poltergeist, Akira, Goonies) and especially Godless (Rio Bravo; Magnificent Seven; Good, Bad, and the Ugly) go beyond homage and into outright copying and stealing ideas. I understand tropes and references, but I think Netflix has shown a pattern of basically just making imitation products of other successful products. I can watch nearly anything on HBO, but can hardly find anything half worth watching on Netflix and it’s nearly all derivative of something else more interesting.

I suspect that there are a lot of times when even well-meaning organizations have this sort of thing slip through. I can think of a couple times when I've had frantic obviously last minute emails or calls from organizations who had used one or more photographs of mine they had gotten either online or elsewhere--and things were presumably either in production or on the verge of. This includes a PBS station so we're not talking total amateurs here.

I never asked for any money as it's been PBS or, in other case, the Head of the Charles.

How much are these images really worth, it looks to me like they took <1h of time and I doubt it’s reasonable to ask for more than $50 as a non professional photographer.

Maybe you could argue that because they were stolen there is some higher prize? This really isn’t the same thing as stealing a Netflix series that supports the livelihoods of many hundreds of people. In fact I’d argue that because no attempt was being made to make a living out of these photos therefore no actual losses were incurred.

> Maybe you could argue that because they were stolen there is some higher prize?

That is generally the standard in lawsuits, yes.

Wasting time in a court for trivial things like this is of course up to the party who has been “harmed”.

I'm sure if the shoe were on the other foot they'd have no compunction about using the legal system to go after someone who'd profited from the sale of clips of Stranger Things.

This is the same NetFlix behind the death-penalty-for-even-trivial-DRM-infractions movement, yes?

Are the changes that netflix's designer made to the cassette material enough for the design to qualify as an original work of art? How would this be treated differently than any other remix?

I did a Google image search for 'VHS tape', and of course, the image in question was the second to come up.

This happens a lot. Graphic artists go to Google images for their source materials.

A nice lesson in “ask for forgiveness, not permission.” Netflix came out way ahead on this one.

Wait! I read his whole article fully accepting that target is selling Stranger Things box set in VHS format..

I'd love to see where the practice of photographic plagiarism is covered in the famous culture deck!

I'm a paying customer of Netflix in Sydney. I just called their support line and asked them to respond. The lady told me that she would escalate this.

Hopefully you will get a response soon!

one last question will fuji cassette company or their designer get anything as it was their product, which was photographed

Shame on Netflix. They should have used a VHS-C in an adapter. Way to maintain continuity guys.

They look like different

Did Netflix respond yet?

DMCA takedown?

Yeah but this guy stole Netflix's IP when he made the VHS in the first place...

I'm not sure I understand the point of your comment. Could you expound?

My understanding is: The author is a VHS electronics enthusiast and had published photos of unmarked VHS cassettes [1]. Some designer photoshopped them to add the "Stranger Things" graphics and Netflix used the photoshopped images without attribution. Author's photographs are literally the first hits in a google search for "VHS cassette". Author did not create a VHS version of the TV program.

[1]: http://goughlui.com/the-vhs-corner/intro-inside-the-vhs-cass...

If you are a Netflix subscriber, just open a support chat window and ask about this issue. They seem to be pretty ignorant on the whole thing.

Actually, if you have their app, you can speak to someone directly in a voicecall. I just did so on my iPhone.

The first thing a lawyer will ask a photographer is, "Did you register your copyright?" No lawyer is going to take a case if you don't register your copyright as there is no money to be won.

The photographer can register his copyright at any time. [0]. You're right though that there is an advantage to registering before infringement occurs, since if it's registered the case will be eligible for statutory damages, which can be up to $150,000 in the case of willful infringement. 17 U.S.C. § 504. [1]. Otherwise, actual damages to a photographer who doesn't sell any images will likely be zero.

[0] https://eco.copyright.gov/ [1] https://www.law.cornell.edu/uscode/text/17/504

Yes you can but then you would have to be able to prove that an infringement took place after you registered. I don't recall the site off the top of my head but there is a service for photographers that will scrape the web and search for their images and see who is using their images. I think the software will even help a photographer collect damages for a cut. I saw a commercial photographer demo the site and he makes a lot of money. The laws are confusing and photographers lose out in tons of royalties by not registering their copyrights especially if a huge company like Netflix uses your work.

Well, to avoid continued infringement, wouldn't Netflix have to either get to an agreement or recall and destroy their entire already-produced stock? I suspect the former would be way cheaper...

From the PDF here, you'll note that the second and third dot points state very clearly that there is no registration system for copyright in Australia. It exists implicitly, is free and applies automatically.

https://www.copyright.org.au/acc_prod/ACC/Information_Sheets...

I don't know about international and only know the basics in the US. As a photographer I own the copyright the moment I create an image but to actually be able to sue for copyright infringements (and get money) I would need to register with the copyright office. I can register an individual image or bulk. If I don't register I don't think a lawyer would take my case.

I don't think he can prove it if he tried.

Netflix can just as easily buy the same VHS cassette and claim it was based on it.

It is obvious they are the same photo, especially the backside. Any jury would believe it, just superimpose the images on top of each other.

The defense isn't that they took the photo themselves, it's that they stumbled upon the photo on a site that misattributed it to a CC license, which is probably exactly what happened. If you do a reverse image search on the original photo, it has been uploaded as-is to hundreds of places: https://www.google.ca/search?hl=en-CA&q=custom+black+hard+pl...

My sympathies are with Netflix here. It's unreasonable to expect them to do a full genealogical search for every random stock photo they use so that they can trace these hundreds of photos back to some Australian blog.

If they got it from some random image search site ("Google Images"), shame on Netflix. A professional stock image site likely wouldn't have featured these images.

I don't know if it is unreasonable. I don't have lawyers working for me, but even I know that you don't just use random images you find from Google image search for commercial purposes. Even for noncommercial but public use can be iffy.

This is clearly fair use, but rude, as Netflix could've afforded stock images.

There is nothing clear about this being fair use. In fact, it seems to pretty clearly not fall under fair use.

https://fairuse.stanford.edu/overview/fair-use/what-is-fair-...

It's actually clearly copyright violation, but whatever, who am I the internet Police. Believe whatever you want, but if you did this you'd be sued for sure.

IANAL, but I'm a hobbyist photographer.

It wasn't clear from the article if the the images were registered with the US Copyright office.

If they were, great. Based on timing, he can sue for statutory damages plus attorney fees.

If not, he's pretty much out of luck. He can't sue in the US for copyright infringement (even though he does own the copyright)[0]. He can sue in Australia, but I have no idea if that is going to be worth the time and effort.

More over he's defaming Netflix (IANAL). It seems very plausible that those are his images, and Netflix used them without authorization. What's not clear, is if Netflix actually stole his images. The images could have been provided by a creative agency who used the works without permission (likely) or Netflix or the creative agency could have purchased a license for use from someone who was not actually authorized to sell a usage license.

GettyImages has been accused of stealing images, then selling licenses for use.[1]

0: https://www.law.cornell.edu/uscode/text/17/411 1: https://petapixel.com/2016/08/04/getty-images-sued-accused-m...

The section of law you cite, makes clear that registration has to occur before filing suit, but does not have to occur before the infringing action. It's perfectly legal to register after you become aware of a potential infringement and then file suit.

So, if he hasn't previously registered the works in question, that's a procedural step that needs to happen before litigation, but not a barrier that would make him “pretty much out of look”.

(This is specific to the US--the author is Australian)

Yes, that's correct, but at that point you can only sue for actual damages, not statutory damages.

For someone who does not sell photos, the damages would amount to be the cost of a license for use of that photograph. GettyImages has an image of a VHS Tape for $600, which includes royalty free usages globally.

How much will it cost to fire a legal shot across Netflix' bow, and negotiate a license agreement? $300/hr?

I just don't see any scenario that can playout in which the author comes out ahead--hence out of luck.

Attorneys fees and costs are usually awarded in addition to whatever damages are allowed, so shouldn't be considered against the damage award.

Only if you had registration before or within 3-months after infringement (safe-harbor).

https://www.lexology.com/library/detail.aspx?g=753081a5-e633...

>Netflix (allegedly) Stole My Photos for Stranger Things

That's his personal problem, not ours.

No, it's ours (1) because a company violating copyrights for pictures may as well violate them for source code or something else.

(1): unless you have never created anything. Then it is not your problem.

But its a hugely silly thing to care about. I really dont see anyone being actually sentimental about a top down generic shot of a plain black tape. We would all lawyer up though, and fake caring, because money. Without acting like a victim, its harder to milk the cash cow.

Now, should we care about this mans "plight?" Not if we have any sense - it's about money...we would have to be naive as an ignoramus to think hes actually hurt about his black tape picture.

And most of us..at least when polled..believe that copyright is defunct. So naturally, most people are happy when their creations gain visibility. They have to flip the switch on their brain to feign angst and victimhood so they can lawsuit up and get that money. We all would. But lets not kid ourselves if its about anything but the money. Because most of us are pretty copyleft, especially about things we created and thought no one would ever appreciate.

Silly?? Are some copyrights less important than others?

It is not "fake caring, because money." I had that happen to me. It is not fun. It is not milking the cash cow. If you no not value the intellectual property you create, or if you have some specific ideological reasons, put your work in the public domain or GPL it or any other source of copyleft.

If you do that, respect the rights to get offended of those who use their copyrights to make money

These pictures were just up on a blog..there were no legal or licensing disclaimers. Because like most of us, he never even thought anyone would value a plain picture of a tape used for demonstration instructional purposes. Netflix normally wouldnt pay licensing fees for something they could reproduce in 10 minutes flat. If they knew they had to pay the fee they would have just created their own or used stock images..etc. Some contractor or dumb employee did it...but now they are going to have to pay up. This guy just got really really lucky. I dont see the "plight" or anything that we are needed for..other than to read a curious happening about someone who got really really lucky on someone elses fuckup.

Why do you create such an argument when the article _explicitly states_:

"Given the prominent copyright notice printed in the footer on each page, I assert my moral right to copyright over this image."

Ignoring the difficulties I have with people shrugging this off as "meh", why would people comment that way without even reading the article in the first place?

It is not being lucky. It feels bad when it happens to you. It will not be a lot of money. It is just a lot of problem and the realization that some people use your work to make money without even paying the small fee you are charging, and it gives you a bad reputation as the person who sued xxx over a picture.

But I give up. You do not want to understand.

It's absolutely not silly. He's spent quite a bit of time on documenting VHS technology:

http://goughlui.com/the-vhs-corner/

No they can't. They can "steal" my slavish picture of VHS, that's all this proves.

I'm usually pretty supportive of copyright claims, but such generic photos of generic objects are really pushing the envelope. Seems like you could make an argument that it's not sufficiently transformative under Bridgeman-Corel, given that it's the VHS Cassette design that's being fetishized rather than any particular contribution of the photographer. The publicity from the alleged infringement is probably worth more than any putative licensing fee - maybe $300?

It doesn't matter how generic the object is, it's the fact that this person was not paid for the effort put into taking the photo

No that's not true. Facts for instance are usuallly not copyrightable, regardless of how much effort goes into gathering them.

Photographs of artworks that are in the public domain often aren't copyrightable for instance, if they are exact reproductions.

How much effort goes into pressing the button is completely irrelevant to copyright law, creating an uncopyrightable photograph is likely a great deal more strenuous than a copyrightable one.

Which is exactly why I mentioned Bridgeman-Corel, though I admit that's a bit of a legal leap.

I find it terribly amusing how HN consistently jumps on these stories to vent its outrage but the same people don't think independent filmmakers and musicians should be able to control distribution if people want to torrent/stream their stuff.

Yes, I was agreeing with you, I don't think down-voters read your comment properly.

I really don't think the outrage here on HN or the original post is in any way justified, legally the image may or may not be subject to copyright, but it is clearly of extremely low value. It's actually kind of funny to think the legal system is actually more pragmatic than the commenters here.

> HN consistently jumps on these stories to vent its outrage but the same people don't think independent filmmakers and musicians should be able to control distribution if people want to torrent/stream their stuff.

What makes you think these are the same people?

Just a hunch based on past conversations

You clearly do not understand fair use law.

This isn't educational, it's a product intended on making money.

If it's that generic, they could have taken the photo themselves.

That's why I suggested that at most it was worth $300, which is a pretty generous price for a couple of product shots but meant to reflect a half-day minimum for a professional.

I completely agree, and find this complaint to be very minor in severity.

Perhaps you have never taken the time or effort to properly photograph something so that it can ultimately have the benefit of looking normal and generic. I invite you to try and photograph a VHS tape some time and see how long it takes to get an image as simple as this one. Seriously, try it. It won't take you a full day but it will take your time.

I can't tell if this is sarcasm or not.

How can the author tell Stranger Things producers didn't take a photo of any of billions of same-looking VHS tapes?

I understand the verification that the author took the images they claim they did. I can't tell how that proves that the images strange things used are the same as the ones from the author's screenshot.

Wouldn't every straight-on cropped photo of a VHS tape look the same?

Edit: looks like I didn’t read/observe carefully enough. There are details that are too much the same.

Check closer, even the position of the teeth is the same. If it is so easy, Netflix should have photographed one instead of stealing an image.

What about the top and sides though? They look significantly different.

Read the gosh darn article. He says the sides are not his image, but the top is.

I guess my question was more about why the effort of changing portions of it.

If you read the article, you'll see that he identifies specific details about the VHS tape (location of dirt, plastic defects, etc.) that would uniquely identify his particular photos.

There's metadata, too.

The metadata is just proof that he owns the original images. Not that Netflix stole the images.

I mean, how could you prove that anyway then? If you can show the images on his website are the original images, the only alternative is that he copied the Netflix images and is randomly pretending he was the one ripped off.

Did you read the post? The answer to your questions are well detailed within.

I’m convinced they’re the same. There’s an identical spec of dusk under the left window. Also the reflections on the transparent plastic are the same.

I'm not sure what you're getting at here.. these are quite obviously the same images. Down to the reflection of the camera on its tripod. Generic as they are, you can't just google search for an image and steal it from a website to produce a product you then sell millions of times over.

There is dirt on the tapes and scratches. I think its awfully silly since its just a vhs tape in a top down photo. But...since Netflix is bags o money, I'd make myself care.... who wouldn't harpoon a treasure chest? The worlds most profitable shot of a crappy tape :-)

I recently built an app that embeds an invisible watermark in photos, specifically for cases like this. I call it an "InvisiMark". It works surprisingly well (and was quite a pain in the butt to implement).

https://itunes.apple.com/us/app/zing/id1265492686?ls=1&mt=12

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