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How I Scared the Wits Out of a Copyright Infringer — and Why You Should, Too
Posted By Tony Blei On June 12, 2009 @ 4:09 am In Legal Matters | 28 Comments
I photographed a super-groovy young actor named Taylor Kitsch at the X-Men Origins: Wolverine premiere in Tempe, Ariz., in April. Taylor is so super-groovy that his fans express their undying love by doing stupid things like breaking the law.
I learned this because I took a peek at the stats for my Web site after the premiere and noticed that I was getting a lot of traffic from LiveJournal, an online community popular with teenagers and young adults. I clicked on the link and was taken to a page that had one of my pictures of Taylor on it, without my permission. A copyright infringement.
The user who purloined my picture went by an alias — “bloominidiot” — and had no contact information. So I left a note in a forum asking the user to contact me.
I then started doing screen grabs of the pages the image was on, so that I would have proof of my infringement claim. And I e-mailed my attorney.
In the morning, there was no reply from “bloominidiot.” My image was still up.
Eliciting an Apology
My next step was to send LiveJournal a Digital Millenium Copyright Act (DMCA) takedown notice. I then became a LiveJournal member — and fired a message over the bow of my pirate-friend’s ship.
I made sure “bloominidiot” understood that she could have her computer confiscated for stealing my picture. I wanted her to know that she might be ordered to pay for what he had stolen. I wanted her to realize that because I had registered the image with the Library of Congress, she might also have to pay statutory damages, including court costs.
Just before the close of business, the image had been removed from the site.
Later that night, my attorney wrote me back. She confirmed that this was a “willful infringement” and that I would be eligible for statutory damages should I choose to take “bloominidiot” to court.
I didn’t go that far.
But I did ask “bloominidiot” to post a written apology on my blog, and she did. It reads in part:
I have been burglarized in the past myself — my car was stolen and stripped and insurance only paid a small part of it, so the rest was my responsibility. I have also been the victim of identity theft from one of my own neighbours, so I DO know how it feels …
Tony, I do understand where you’re coming from. I apologize sincerely for what I did … I should have contacted you first … I made a mistake and I am sorry for it — I have learned from this, believe me. I have destroyed the files downloaded from you and will not download again without asking permission first.
Was I Heavy-Handed?
In the 4th Century, Flavius Vegetius wrote: “If you want peace, you must prepare for war.” I couldn’t agree more.
It’s now June and as I reflect, I am pleased with the outcome and the way I handled the infringement. Not everyone agrees with me.
Some have told me that I was heavy-handed and that I should have just let it go. The infringer gave me credit and linked back to my site, after all. That’s the way of the Web. Wasn’t that nice of them?
If I steal your car, but I tell everyone I got it from you, would that be OK? Probably not. (If it is OK, please send me your address — and can you fill up the gas tank for me, too?)
Some have told me that I should just protect my images by watermarking them.
When I was a child, my dad bought a new, expensive pair of binoculars. I asked him if we should etch our family name on them. He said, “No, that only lets the thieves know who they stole them from.”
To me, watermarking is a lot like that. It also messes up great images. If you’ve worked hard to create an image without that distracting telephone pole, why add a distraction in post-production?
So rather than watermark my images and hope this deters thieves, I prefer to go after the thieves when I find them.
Some have told me I should have given “bloominidiot” a break because hers was a personal use, not a commercial one. So I should sue XYZ Corp. for copyright infringement, but let Gen Y skate free? Why is that fair? I think being consistent is fair.
I used to be a member of a church where the parking lot linked with a bigger office complex. Periodically we put a chain across the parking lot, so that people from the office complex couldn’t drive through the church parking lot to get to the main drag.
The pastor explained that if cars were allowed to drive through the church parking lot with impunity, the church could lose property if the city decided to turn the lot into a street connecting to the complex — simply because that was the route people had become accustomed to.
I don’t want people to grow accustomed to grabbing my images off my Web site and using them without my permission. It sets a bad precedent. It might even hurt my chances of collecting when XYZ Corp. decides it wants to pluck an image for an international ad campaign.
Be Passionate in Protecting Your Work
It’s simple, really. I should have been given the opportunity to give “bloominidiot” permission to use my image. It’s mine, after all, and I should be the one who decides where and how it’s displayed.
If you ask permission, I might say “yes” — as opposed to you having to flip through the Yellow Pages in search of a copyright attorney to defend you. I am willing to fight because I know that I will be able to recover my attorney fees and court costs. I am confident that should I decide to put on the boxing gloves, I will be awarded damages.
I’m an easygoing guy until someone makes me mad. Then the can of worms you’ve opened becomes a can of snakes — and you’re going to get bitten.
I love this photography thing that I do. I’ve been doing it professionally since 1984 and have photographed seven U.S. presidents and shaken hands with rock stars. I recently went through an old box of negatives and found pictures of Gerald Ford and Frank Sinatra, among others. I once assisted Eddie Adams while he photographed Sammy Davis, Jr.
My photography is dear to my heart, so I pay the $35 fee and register my images with the U.S. Copyright Office. Copyright laws are worthless unless you are passionate about protecting your work.
A Lesson Learned
If a teenager walked into a convenience store and stole a candy bar, would the store go out of business? No. It wouldn’t have any impact on the store’s bottom line.
But if that teen were caught, what would happen? The police would be called, and the candy bar would be used as evidence. (Later, some attorney would eat the candy bar. The attorney is usually the only one who wins in these situations.)
It doesn’t matter whether your property is tangible, like the candy bar, or intangible, like a digital image file.
And it doesn’t matter whether the store, or the photographer, is forced to shutter their business because of your crime.
It’s still a crime.
In the case of “bloominidiot,” I was fair, ethical — and firm. The person who broke the law was able to see her error and learn from her mistake. I’m guessing she won’t repeat it.
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