Copyright Infringement Reports (Review guidelines in post #1 before posting here)

[Dan Cook]

Isn't that first one Dave Drummond's?

 

[David Drummond]

No, but there is a little piece of one of mine in there.

 

[Dan Cook]

No, but there is a little piece of one of mine in there.

Ah. I thought that first picture on there looks a lot like the one from your "chase the caprock" avatar.

 

[Dennis Sherrod]

I am continuously amazed at how much theft is going on of people's photos and videos even among our own ranks. The blatant theft of property by cropping Copyrights off and just cropping the size of photographs to change the appearance somewhat is overwhelming. Obviously the same thing is also going on with videos. They blatantly and boldly post these photos and videos on their own websites and declare them as their own. You see this with any type photography, but the high interest items like Storms, Wildlife, and Picturesque Scenery seem to take preference.
Of course a thieve is like an addict. They will not stop until they either want to stop or the legal system intervenes and hinders their abilities. Even that does not work at times as they will return to their trade as they learn different techniques. Until the owners of property seek legal actions and force these thieves to stop by getting judgments to shut down and close websites, and prosecuting, and then placing liens against anything they own, the thievery will continue. Of course it will never be completely stopped as is evidenced by what is continuously seen and found.
Most of these thieves are too lazy and lack the proper social abilities to work to do something for themselves and make any meaningful contribution to society. They prefer to sponge upon others.
I have researched some and have found several cases and courts of late, both on State and Federal levels, who are not only prosecuting through both Civil and Criminal courts, but are allowing the common man to place the Judgment Liens against a person's property. This may not give the owner any monetary damages immediately if the thief has nothing, but the violator will never be able to obtain clear title to or legally sell the liened property until the judgments are satisfied. Most of the cases I have reviewed have been done on a contingency basis by an attorney, with the client only paying filing fees. Not a bad way to go after someone for only one hundred or two hundred dollars. Some cases are being filed and held in the the jurisdiction of the owner of the property and not the thief's state jurisdiction. This also makes it nice as this forces further financial and time related hardships upon the thief.
You can get websites shut down, thieves prosecuted, force them into selling some non essential property they have, and place judgment liens against anything else they may own, including automobiles now.
But I guess the thief will take advantage anyway he can. If he can not steal it from someone in person, they will slither around and try to do it by computer and then try to sell or show the stolen items via computer. The vicious cycle continues.

 

[Ryan McGinnis]

Unfortunately, copyright law is federal. Any claims you file must be through the federal court system, which is very, very expensive. Worthwhile if the infringer has deep pockets, but otherwise...

The only real exception to this in the states is if you enter into a contract with someone and you stipulate the option of using arbitration. That's not the case for most of the stuff we've seen.

I am, of course, not a lawyer and you should consult one for legal advice.

 

[Dennis Sherrod]

Unfortunately, copyright law is federal. Any claims you file must be through the federal court system, which is very, very expensive.

Not entirely true Ryan. "Copyright law" is both a Federal and a State violation dependent upon the crime alleged to be perpetrated and the circumstances behind it. Most states have state level statues pertaining to Copyright and do not have to be initiated or handled only through the Federal system.

 

[Ryan McGinnis]

Not entirely true Ryan. "Copyright law" is both a Federal and a State violation dependent upon the crime alleged to be perpetrated and the circumstances behind it. Most states have state level statues pertaining to Copyright and do not have to be initiated or handled only through the Federal system.

I'd be interested in seeing those state copyright laws; the federal copyright statute is very explicit in declaring that it overrides all state laws, with only a few exceptions.

 

[Dennis Sherrod]

I'd be interested in seeing those state copyright laws; the federal copyright statute is very explicit in declaring that it overrides all state laws, with only a few exceptions.

You are only partially correct as the Cornell site you referred to clearly states.
http://uscode.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000301----000-.html
(link posted to meet copyright law)
Each state does have its own authority to deal with such matters as is stated in:


TITLE 17 > CHAPTER 3 > § 301Prev | Next § 301. Preemption with respect to other laws
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to—
(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (etc. etc - ds addition)
====================================================

Sections 102 and 103 are relevant to what this conversation is about and the relevancy of Sections 102 and 103 of Federal Code Section 301 are modified and amended as stated below.
Additional relevant Sections are 106 and 107 through 122 of the aforementioned Federal Code.

Newer statute updates are available that may be and are relevant to this 1978 law with a 2006 addition, modification, and amendment of the prevalent Federal Statue. This statue that you linked is from a 2006 update but which in fact, does have newer modifications attached thereto. These can be found by additional searches through the Cornell site or each interested state AG's site that you may be inquiring about. Most can be accessed via the web.
Further clarification may be obtained by referring to the glossary section as to the meaning used pertaining to Authorship, and the fixed Tangible Medium of Expression.

 

[Dennis Sherrod]

Additional information relevant to the above post:



TITLE 17 > CHAPTER 3 > § 301Prev | Next § 301. Preemption with respect to other laws
(f)
(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113 (d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State.
(2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990;
(B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or
(C) activities violating legal or equitable rights which extend beyond the life of the author.

 

[Ryan McGinnis]

Yes, but what you are highlighting in bold is basically saying "the state law only applies to things the federal law doesn't apply to". 102 and 103 list everything copyrightable.

102:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.


(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

103 deals with derivative works. So basically, anything you can register at the U.S. copyright office falls under jurisdiction of only the federal law. That's how I read it, anyhow. I really am curious about state copyright laws, though -- if you can dig one up and link me to it, I'd appreciate it. Up until this point, I've only heard of the traditional federal remedies. Heck, this is the primary reason ASMP is currently lobbying to get a new, cheaper, easier copyright enforcement provision written into the latest incarnation of the orphan works bill -- right now you have to file in federal district court. If there's a cheaper state based small-courts or local courts alternative, there are a lot of photographers out there that would love to know about it.

 

[Dennis Sherrod]

Ryan,
Without dragging this out into more than what it already has, I would suggest one or both of the following two manners in which to pursue this.
1. Go back and do an in-depth study and analysis of Sections 102, 103, 106, and Sections 107 through 122 of this Code.
In addition, investigate Sections 610 and the referenced sub-sections of that, along with the aforementioned Glossary of terms.
Without an in-depth study and knowledge of the terminology used and a thorough legal understanding of how Federal Law pertains to Copyright, Infringement, Theft, and Computer Crime and its cross references and relevancy to appropriate State Statues, this thread could go on and on.
In addition, there have been numerous updates to the laws since the 2006 referenced version you initially brought up.
It is not sensible or prudent to point out only the base points and terminology of any given Section or Statue, whether State or Federal. Thus the above suggestion is a much more prudent approach.
The Orphan Works submission is partially relevant to this, as my limited understanding goes, but I can not speak intelligently about this as I have not studied it in depth.
As you can see, we are speaking on terms of a 30 year old law that has had many revisions, a 2006 quote, and another proposed bill 2 years later to further amend this on top of the computer / cyber crimes laws relevant to this issue that have since been enacted, passed, and put into law.
In addition, each state that may have laws pertaining to this type crime(s) has it own set of guidelines that are based primarily upon the Federal Statue, but not inclusively and wholly, as they are given certain leeway to enact and enforce such.
2. As the second suggestion, contact a current practicing attorney that has experience in the state of your interest along with the experience in Federal practice as well as State experience in this field. I would suggest an attorney referral organization or someone you can trust that will recommend someone thoroughly knowledgeable in this field of practice.

I am not trying to pass on this, but as I said, this could go on and on, as this is a specialized field of practice and takes substantial time and involvement researching each state involved and as it relates to the Federal level. You obviously have the basic knowledge of web searching to find the relevant laws, so you should be able to get more in-depth information should you so desire to research this yourself.
If you follow the above guidelines, this should help you find the basic information you are seeking and give you some of the understanding of the terminology used.
Be sure to research the time spans of the alleged offenses, the "copyrights" violations alleged, and the requirements mandated and necessary to meet the legal definition of each type of Copyright, Theft, Infringement, Computer Crime, Authorship, and Tangible Medium of Expression involved.
Also look at the aggressor's role as it pertains to Misunderstanding (usually never allowed), Time Spans, Misrepresentations, False Ownership Claims, Over Copyrighting, (placing their own copyright in place of the legitimate one), and the willful, malicious, and intentional acts of removing or cropping someone's copyright and / or watermarks from their images or protected property. These acts are the ones that are given great weight in the courts as to Criminal charges being filed and much higher Civil dollar amount judgments. (I think a minimum of $3000.00 per photo violation up to $300,000 per each and every photo violation. I may be off a small amount on the low end, but the upper end is the pocketbook breaker.) Usually the higher amounts are rewarded for repeat offenders or numerous violations of theft / infringement in the same case. ie; A video compilation or a website showing multiple stolen images.
I hope this helps you some in your endeavor to decipher some of this.

EDIT: Addendum.
Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (Disallows someone from claiming state rights to property that belongs to another when approached with a Federal violation. This can force either a Federal or State interventional action)

Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to—
(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (etc. etc - ds addition)
(Certain works while on basic analysis, may appear to be appropriate to 102 or 103, but may in fact fall into another section based upon several factors. Thus, individual State law would be entirely enforceable, while also the possibility of Federal intervention and relief may be sought. Under these circumstances, double jeopardy does not come into play and dual relief actions are constitutionally allowed)

 

[Alex Fisher]

I've never studied copyright law, but in general seeking relief under a federal statute does not preclude you from using state court.

A defendant, however, could remove to the proper federal district court under 28 U.S.C. §1441 (with federal subject matter jurisdiction undoubtedly satisfied when seeking relief under a federal statute).

Your main problem would be the excruciatingly slow pace of the case in federal court, especially if the defendant decides to stonewall you in discovery.

If the copyright law, which I have not read, specifies federal court as the sole arbiter of disputes under the statute, then this is moot and you could only sue in federal court.

 

[Alex Fisher]

It seems that federal courts do have exclusive jurisdiction over claims arising under federal copyright laws. See 28 U.S.C. §1338(a).

However the point still holds that, in general, just because you seek relief under a federal statute, does not mean you are barred from bringing your action in state court.

State courts can and sometimes do decide cases in which federal law controls.

Note: I wanted to edit my post above, but I cant seem to find the edit button. I apparently fail at the internet.

 

[Mike Peregrine]

Best solution is to always consult an attorney for copyright infringement and any question of law. Initial consults are almost always free, and they will answer your questions and advise you on the best course of action.

 

[Alex Fisher]

Best solution is to always consult an attorney for copyright infringement and any question of law. Initial consults are almost always free, and they will answer your questions and advise you on the best course of action.

Absolutely. Working pro se can be extremely frustrating and not worth your time, especially if you are not willing to put in the dozens, hundreds or even (in complex cases) thousands of hours needed to avoid the rampant pitfalls of the legal system and have your claim successfully adjudicated.

Even then, there is always the risk of going awry and subjecting yourself to judicial sanctions under FRCP Rule 11 (although courts have been loathe to impose sanctions on pro se litigants whose legal missteps are merely negligent rather than willful).