Is this kosher ?

[Bestwifeever]

Quote:

Originally Posted by redduck And just how would you propose to: "make a stink...teach this offender that they need to AT LEAST ask for permission in the future"?

Someone above (oh wait, me) suggested a cordial letter to the agent outlining whatever remedy the OP felt was appropriate (I didn't say $$). That would be a start.

[robertf57]

Seems to be a bit of mis-information in this thread. A copyright is the protection provided to original works of authorship and a copy right exists when a work is created, whether the right is registered with the copyright office or not. The fact that an authored work is available to be viewed doesn't negate the copyright.

I would pursue this. You don't have to prove any damages other than your property was stolen, which it was. Too many artist are ripped off because it is easy

[frayne]

When I first made this post on a photography forum, almost to a person, people suggested that I pursue this, not for myself but for the professional photography community. They see this activity as an on going problem and are quite frustrated over the blatant disregard for their work. I can and do understand where they are coming from.

[eytonxav]

Quote:

Originally Posted by robertf57 Seems to be a bit of mis-information in this thread. A copyright is the protection provided to original works of authorship and a copy right exists when a work is created, whether the right is registered with the copyright office or not. The fact that an authored work is available to be viewed doesn't negate the copyright.

I agree with your comment, however, if the remedy requires a law suit, isn't registration a prerequisite? I am not advocating that the OP bother to pursue this or not, that has to be his decision, although I tend to agree with what W2R said.

[Walt34]

Quote:

Originally Posted by DFW_M5 I agree with your comment, however, if the remedy requires a law suit, isn't registration a prerequisite?

Here is where it gets a bit complicated and why there is so much misinformation "out there". Frayne does own the copyright and he can sue for actual damages only, since the photos (I assume) were not registered at the copyright office. Since (presumably) he's never made a nickle providing photography services, proving actual damages would be almost impossible. Net result? Don't bother. Maybe send a letter but don't expect much to happen.

However, if he had registered the photos, he would now have them by the short hairs, and their attorney, once he learned of the details of the law, would be making a very generous offer quickly. The issue then becomes not whether they are going to pay damages but how much. And they're also probably on the hook for frayne's attorney's fees, who would be frothing at the mouth to take this case for him.

[frayne]

I've done a bit of homework since I started this thread and my understanding a person has three months from the date of the infringement publication to register for a copyright and then the most aggressive action would be to sue for statutory damages up to $150K. Not that, that ever happens. The main thing to remember is once lawyers get involved it gets really sticky and convoluted and the best way to resolve something like this I would think is person to person and outside of the courts, actually most cases get decided or settled before going to court to begin with.

An attorney, Carolyn Wright specializes in this sort of thing and is pretty much considered in the photography world an expert resource.

http://www.photoattorney.com/contact/

And some legal reading if you so desire:

504. Remedies for infringement: Damages and profits5

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.

(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

§ 505. Remedies for infringement: Costs and attorney's fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

[Walt34]

Quote:

Originally Posted by frayne I've done a bit of homework since I started this thread and my understanding a person has three months from the date of the infringement publication to register for a copy write and then the most aggressive action would be to sue for statutory damages up to $150K.

$55 for registration, minus lawyer fees (could be significant since it's federal court) but probably not close to $150k.

Hey, go for it!

[GrayHare]

AFAIK, if the photos were displayed on the HOA's public web site with the photogs consent and without their copyright indicated, the photos may become public domain.

[Walt34]

Quote:

Originally Posted by GrayHare AFAIK, if the photos were displayed on the HOA's public web site with the photogs consent and without their copyright indicated, the photos may become public domain.

Most definitely not true.

See https://www.amazon.com/Copyright-Zon...copyright+zone

[gauss]

I would check into using a DMCA takedown notice
which I believe is sent to the offenders internet hosting company.

I believe that under Federal law there are steep penalties that would apply to the hosting company if they do not take your request seriously (assuming you follow the proper steps).

(edit: After rereading the initial post I see that it was not an online violation, but rather a paper mailing. DMCA may not directly apply or apply differently in this case -- sorry for the confusion)

-gauss

[frayne]

I think I'll just tell them to cut that sheet out and ask permission the next time.

[W2R]

Quote:

Originally Posted by frayne I think I'll just tell them to get that sheet out and ask permission the next time.

Also it might feel good to put your name on your photos using a watermark.

[redduck]

Quote:

Originally Posted by frayne I think I'll just tell them to get that sheet out and ask permission the next time.

+1
That's what I would do, so I guessing there's something terribly wrong with this course of action.

[FUEGO]

The few times I've had my photos (or DW's) lifted I felt complimented. We smiled and moved on with life.

I would waste zero time with attorneys or pursuing monetary compensation unless I was hard up for money. If I were truly offended that someone "stole" my photos I'd send them a cease and desist letter or at the least ask for attribution as the copyright holder.

[Katsmeow]

I wouldn't let it go. At a minimum, I would contact them.

While I haven't experienced this with a photo that I took, I did have someone post a couple of blog posts of mine to their website. Late last year, I wrote a blog post on a topic that happened to get a lot of traffic (my daily page views went from around under 1000 at the time to almost 20,000). I was happy that my web page was showing up as the top item on Google for the relevant search. (And, I knew the high traffic wouldn't last forever but it was nice while I had it).

I was surprised though when I was searching for other articles on the topic to find that my entire post and a second post had been copied to another website with no attribution at all. I looked up the owner of the site and sent him a polite email telling him that I hadn't given permission to copy my posts and directing him to immediately remove them from his site. When I didn't quickly get a response, I did a DMCA takedown notice at his website hosting company and another at Google. In due course, the material was taken down.

While my website was non-commercial, it offended me to see something taking my work and using it as their own and I didn't feel a need to let them get away with it.

[youbet]

Quote:

Originally Posted by frayne I think I'll just tell them to cut that sheet out and ask permission the next time.

Are the pics clearly identified as copyrighted and are you given credit on the HOA web site? If not, make that happen.

[ivinsfan]

If they hadn't been so lazy they could have taken their own pictures, so I'd make trouble. You know sometimes when I look at rentals on VRBO I will often see identical photos of the same development on many different home listings. Obviously they use stock photos that they have "borrowed" from somewhere.

[FrankiesGirl]

I am a professional graphic designer, illustrator and photographer.

You don't have to have officially have registered copyright. The act of creating the work (photo, drawing, whatever) means ownership of the work itself unless you created it under the umbrella of work for hire. Which means if you took the photos for your job at ABC photography, then they will hold the copyright, not you.

But in this case, you hold the copyright and all associated rights to the use of these photos. You allowed them to be used on your HOA site. But you did not give permission in any way to the realtor. They stole the images from the site and used them without even bothering to contact someone? Straight up theft of work. There is no fair use implied here (fair use only applies for usage for education, critique or parody and it is pretty cut and dried).

So it does boil down to how offended are you, and if you want to go after them for this or just inform them that you are aware they stole your work and are using the images without permission. But technically you could sue them for theft and misuse of images if you wanted to escalate it.

I personally wouldn't sue in this case. I would just inform them to cease using the images and that they did not ask permission and explain what copyright means (that they need to contact the copyright holder and pay for usage). I also make sure to not have any of my work out on the internet that I would be upset about being stolen. I did have to send a boilerplate cease and desist to a few Etsy sellers using some of my illustrations in jewelry but they were the type that weren't aware that things they see on the internet aren't free for the taking.

[healthyandfun]

As a retired educator, I dealt with copyright issues regularly in my classroom. Children as young as those in kindergarten can be taught to cite sources when creating projects. Students do understand it is wrong to take something created by someone else without permission. I encourage the OP to make the realty company aware of the infringement. A modest monetary donation to a literacy program, a high school photo club, or the OP may make the realtor stop and think the next time photographs are needed.