Online Image Theft

[Rudeofus]

And (just to make sure) is it indeed lost to you that most of the rest of the world does perfectly well without?
Q.G., since I spent a few years in the US and live in Europe I can tell you the big difference: folks in the US actually care about the copyright. I, being a naive Eoropean, once went into a Kinko's and wanted to make a color copy of some playing card. No, not for commercial purposes, just to create a birthday card for someone, and I wanted it to include that figure. The guy at the copy shop, when he heard what I tried to do, was shocked and pointed at the copyright sign on that card. He almost yelled me out of his shop. The typical comment from my american friends went along the line "well of course he can't do that, why did you even ask?".

THAT'S the difference between the US and the rest of the world. The US make you jump through a few hoops, but they really care about copyright. Here in Central Europe I could probably have large digital prints made from all the gallery pics here and nobody would even ask questions.

[Q.G.]

If someone infringes on your copyright in Europe, what damages can you collect from the infringer? Can you collect any damages beyond the actual value/benefit received by the infringer?

Yes.
Absolutely. No problem.

[Allen Friday]

Q.G.

What damages can you collect from an infringer? Please be specific. If you are allowed to collect damages beyond the actual value received by the infringer, to what extent?

[Q.G.]

First, it doesn't matter at all what the infringer received.
He'll have to pay you a fee as if he had asked you to supply the images. Plus an extra for not attributing them to the maker. That total is then doubled, or tripled, as a fine for not having made the effort to ask you first.
That's 'automatic'. The figures are based on your regular fees. Or, lacking such a thing (not everyone who has his or her pictures stolen is a professional photographer), the 'regular' fees as mentioned in the guide published by the professional photographer's federation.

Next, you may demand damages. How much is up to you.
How much you'll get depends on how good you are in convincing the judge that that is the extent of the damage you have suffered beyond not having been paid a (or your) regular fee.

[Allen Friday]

Thanks for the reply Q.G. I'm trying to figure out the E.U. model for copyright. The EU Copyright office references statutory damages, but does not specify what those damages are (or at least I didn't find it on the site.)

The EU Copyright office does, however, recommend copyright registration for EU copyrights:

"Why should I register my work if copyright protection is automatic?
copyright faq
Registration is recommended for a number of reasons.

Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation.

Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law."

From: http://www.eucopyright.com/en/why-should-i-register-my-work-if-copyright-protection-is-automatic

I do find the following statement of interest: "Registered works may be eligible for statutory damages and attorney's fees in successful litigation." I note that the EU Copyright Office does not state that unregistered works are eligible for statutory damages and attorney's fees.

[Q.G.]

Allen,

I find that interesting too.

But yes, the site does say that unregistered works are protected.

It says about registration is that it may be "considered prima facie evidence in a court of law". Which is rather puzzling, since you can't register copyright in the E.U.

It must be the influence of the WIPO that made that appear on the EU site. I wonder if they asked permission to copy that before putting it on their site.

[John R.]

If you file a tort case, a judge will see the case. If you are filing criminal charges, it would be up to the prosecutor/judge to decide if the case is worth pursuing.. In a civil case you get your day if you file the suit. How well it goes depends on how good a case you have.

With all due respect, sorry to disagree here and on a few of your other points. Have you ever in your life seen a infringement case of a photograph handled as a criminal case? No I think not, because it is a civil matter not criminal, which means tort law is the avenue of pursuit. If it's criminal as you say point me to the example you seem to perhaps be relying on to base your comments? Every infringement case I have ever seen or heard of is always a civil case, or show me the statute, any statute that makes such a case criminal. If there is one I will shut up. You or anyone would have to show me how you would be heard on any attempted suit over infringement on a photograph in the US without the image in question having been registered prior to any court action you would attempt to initiate. A consultation with a copyright attorney anyone? The registration is your evidence, it is a recorded PUBLIC RECORD. Without it you have no case in a tort (civil) proceeding except some cease desist leverage and a hope and a prayer the offender complies.

[Q.G.]

[...] The registration is your evidence, it is a recorded PUBLIC RECORD. Without it you have no case in a tort (civil) proceeding except some cease desist leverage and a hope and a prayer the offender complies.

And that is what is particular to the U.S.

[John R.]

And that is what is particular to the U.S.

QG...

According to what Allen posted it seems that may very well be the case in the EU as well. I know you disagree, but Allen posted the facts which are very similar to US registration policy. I guess one way to prove or disprove any of this is to get a image ripped and then try and pursue the remedy. It won't take long to learn the law whether in the US, Netherlands or anywhere else. I'll choose registration, period. I have to say I think it inappropriate to imply to other photographers not registering is safe protection of their hard work. The goal in all of this discussion is to make sure everyone is as fully protected as possible so a repeat of what happened on Photo.net does not occur again to anyone without the option of being able to recuperate any and all damages they might suffer as a result of image theft. I think you can agree with that, yes?

[Steve Smith]

It says about registration is that it may be "considered prima facie evidence in a court of law". Which is rather puzzling, since you can't register copyright in the E.U.

You can. There are companies that take registrations but they are not official government departments.

Here is one: http://www.dulyregistered.co.uk/?gclid=CKTDkPCxzqACFSEulAod0wrhzQ Still nothing to stop you registering someone else's work as your own though.

And is doesn't alter the law or the way the law is applied. It just gives you an extra bit of evidence in your favour. It can still be abused though in much the same way as the envelope posted to yourself.


Steve.

[JBrunner]

With all due respect, sorry to disagree here and on a few of your other points. Have you ever in your life seen a infringement case of a photograph handled as a criminal case? No I think not, because it is a civil matter not criminal, which means tort law is the avenue of pursuit. If it's criminal as you say point me to the example you seem to perhaps be relying on to base your comments? Every infringement case I have ever seen or heard of is always a civil case, or show me the statute, any statute that makes such a case criminal. If there is one I will shut up. You or anyone would have to show me how you would be heard on any attempted suit over infringement on a photograph in the US without the image in question having been registered prior to any court action you would attempt to initiate. A consultation with a copyright attorney anyone? The registration is your evidence, it is a recorded PUBLIC RECORD. Without it you have no case in a tort (civil) proceeding except some cease desist leverage and a hope and a prayer the offender complies.

O gee, I don't know...how bout this one?

Copyright Law of the United States of America

and Related Laws Contained in Title 17 of the United States Code

..
§ 506. Criminal offenses6

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;



It goes on for a page from there, with certain requirements and stipulations, like the person must have profited, each 180 days of infringement is a separate offence, things like that.

I myself have been involved in a copyright case that was prosecuted civilly and criminally, so yes, I have. The case involved an image of mine that was published in a book, without my permission. The image wasn't registered with the copyright office, however I had published the image prior. That was enough for the judge. I was awarded triple the compensation from the previous publication of the image, plus my expenses (I never saw a dime, collect-ability is a separate issue). There was a separate criminal case in which I was to be a witness, because the person had willfully stolen every image in the book. In my case the person plea bargained, and so never went to trial. I'm not sure (can't remember) how and by whom the person was charged. It was some time ago. I do have about five pounds of documents concerning the whole thing. It went on for over a year.

There have been more than a few prosecutions. I'm not going to look them up for you. As a matter of fact I'm done with this whole baby photo-lawyer thread, and it's armchair experts.

[John R.]

O gee, I don't know...how bout this one?

Copyright Law of the United States of America

and Related Laws Contained in Title 17 of the United States Code

..
§ 506. Criminal offenses6

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;



It goes on for a page from there, with certain requirements and stipulations, like the person must have profited, each 180 days of infringement is a separate offence, things like that.

I myself have been involved in a copyright case that was prosecuted civilly and criminally, so yes, I have. The case involved an image of mine that was published in a book, without my permission. The image wasn't registered with the copyright office, however I had published the image prior. That was enough for the judge. I was awarded triple the compensation from the previous publication of the image, plus my expenses (I never saw a dime, collect-ability is a separate issue). There was a separate criminal case in which I was to be a witness, because the person had willfully stolen every image in the book. In my case the person plea bargained, and so never went to trial. I'm not sure (can't remember) how and by whom the person was charged. It was some time ago. I do have about five pounds of documents concerning the whole thing. It went on for over a year.

There have been more than a few prosecutions. I'm not going to look them up for you. As a matter of fact I'm done with this whole baby photo-lawyer thread, and it's armchair experts.


Sir, there is a lot more to section 506 than you mention before something would necessarily constitute a criminal offense occurred. I am anything but a lawyer but the way the entire unedited Title 17 reads to me is that there is a lot of ambiguity in the way those outlines would be interpreted. I do intend to call a copyright attorney and pose direct questions to them regarding criminality and registration issues to get a clear unambiguous answer. So, just out of curiosity what state was your case filed in? Do you have a case number we could reference? I would like to review that public record to have a better understanding of the case issues and legal process that involved both criminality and civil issues over your image.

Yes, I would agree on one point, there is baby-photolawyering taking place and plenty of unprofessional armchair opinions such as myself and you. I would still like you to steer me directly to one particular criminal case so I can review the facts surrounding the case. I would think yours would be an easy one to direct us to. Thanks.

[Allen Friday]

I would still like you to steer me directly to one particular criminal case so I can review the facts surrounding the case. I would think yours would be an easy one to direct us to. Thanks.


(http://pacer.ca4.uscourts.gov/opinion.pdf/055157.P.pdf)


http://pacer.ca4.uscourts.gov/opinion.pdf/055157.P.pdf

[John R.]

(http://pacer.ca4.uscourts.gov/opinion.pdf/055157.P.pdf)


http://pacer.ca4.uscourts.gov/opinion.pdf/055157.P.pdf

Thanks for that link Allen. It is an interesting read. It is not exactly what I was looking for that would have to do with an infringed photograph such as in the Photo.net matter. In the DVD felony appeal case the dollar value is a major issue. Also, the copyright violation was in a status of immediate and direct personal financial gain to the violator. As we know there are many factors that play into these copyright cases and we need to compare apples to apples I think to get a clear picture of how a infringed photo (whether registered or not) would be handled such as those referenced by the OP to this thread. I will update what I learn on this regarding a photograph after I speak directly with a couple copyright attorneys.