SCOTUS Says No to the Jumpman Case

The Supreme Court has decided not to review the Rentmeester v. Nike (aka “Jumpman”) case. I’m not surprised. Before I get into why, please let me say that I feel for the photographer here and I think Nike acted poorly (to say the least). It was a tough loss. However, the question of whether Nike actually infringed wasn’t a good one for SCOTUS review, I think. 

We need to remember that copyright protects the expression of an idea, not the idea itself. So, when a case is about similar images, courts have to look at the facts and do their best at interpreting facts surrounding their creation. First, they have to try and determine if the original expression is protectable, then (rather crucially here) what parts are or are not, and then whether the creator of a similar image had access to the original, and then whether that similar image is substantially similar enoughto the protectable parts to walk past the infringement line. In other words, when you don’t have straight-up copying of the photograph—I mean in the copy-paste sense—it becomes a much more complex case from the get-go. SCOTUS doesn’t generally like to review cases that turn on the facts rather than the law.

In my opinion (and yes, there are plenty of folk who will disagree with me here), the Jumpman case was decided on the facts specific to it rather than a misapplication or misunderstanding of the law, so it just wasn’t the kind that SCOTUS would generally touch. I don’t think this is the kind of case, then, that the photo community should be too up-in-arms about. Because it was so fact-specific, it’s not as likely to be duplicated in lower courts, that is, compared to a case that is decided on a wrong application or interpretation of the law (like the Brammer v. Violent Hues case pending in the 4th–where the lower court completely blew the standards for Fair Use).

So yes, this case did not turn out well for the photographer, but there are bigger issue cases out there we need to pay closer attention to, because those cases will have greater effects on the industry.

UPDATE: I forgot to mention that this case was about a motion to dismiss, not an adjudication on the merits of the whole case; in other words, the lower courts had to look at the issues above to see if dismissal was appropriate and courts dismiss cases like this only when the plaintiff hasn’t alleged enough to support a violation of the law. Here, the pose itself was not a protectable expression so that pretty much put the kybosh on the case. Photographers may not like that idea, but if we get into poses being protected (rather than how those poses are captured in an image), I think it would be impossible to make any photos of anything ever posed again.

SCOTUS Clarifies Two Big Issues

This morning, the US Supreme Court issued two opinions on copyright issues. Shockingly, both were unanimous decisions, too.

First, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al., the court ruled that in order to file suit, the owner of a U.S.-created work must have actually registered the copyright, not just applied for registration. This clarified the rule for everyone since there had been a circuit-split on it before, meaning in some places you could file suit with only an application to register, but not others. So now, if you file suit without an actual registration in hand, not just a case number, your case will be dismissed.

To be accurate, the court also said that a copyright owner whose application to register was refused may also file suit, but there are additional steps in that situation and, frankly, I don’t want to get into that side of things in this post. What is important to know is that, once again, the court has made it clear that the importance of registration can’t be over-emphasized.

The other case was Rimini Street, Inc., et al. v Oracle USA, Inc. et al. At issue in that case was what qualify as costs under the rule that says that “full costs” can be awarded to a prevailing party. Costs are different from “attorneys’ fees” first of all, and those fees weren’t the issue here. Rather, here, it was what specific litigation costs are included under Section 505.

Oracle had been awarded millions of dollars in costs like expert witnesses and e-discovery, and jury consultants. However, those categories of costs aren’t included under a different statute that lists categories of costs recoverable generally (not just for copyright cases). Oracle tried to argue that those costs were legitimately awarded under Section 505, but the court held that the only costs that can be awarded in copyright cases are those in the categories listed in that other statute–basically saying that 505 was limited by that other statute.

This means that when you are considering filing suit, you shouldn’t expect to recover all your costs in litigating that case, no matter how much of a winner your case is. You can recover things like filing fees and costs for copying transcripts, but many of the common costs in litigation today are simply not recoverable under the current statutes. Hopefully congress with make a change to that statute to reflect the realities of litigating in the 21st century, but until that happens, litigating parties will expend more money out of their own pockets.

For both of these cases, the importance of registration still reigns supreme: you can’t get any costs unless your registration is timely and you can’t even get into court unless you have a registration. Since getting a registration takes time (months!), you need to register well before the three year statute of limitations runs out (see FN1 here). Why not register asap after creation to make sure neither issue bites you in the butt?

Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

  • Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration  is not that hard anyway, particularly for visual artists and even more so for still photographers.
    • Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights.
  • Pursue infringements. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K.  How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
    • Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
  • Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
    • Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
  • Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver.  And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
  • Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
    • Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
  • Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
  • Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.

Exclusive Versus Sole

Earlier this year I wrote about exclusive licenses and how they can make a big difference in your legal rights, when it comes to infringements. Today, I was reminded of a related issue: how to grant a client the rights to use a work only for that client’s materials, and not get caught in an exclusive license trap.

Here’s what I suggest: only use the word “exclusive” (or non-) for actual, legal rights–specifically the ones covered by the statute (17 USC §106) and stick with “sole” for other limiting factors in a license, like media or geography.

For example, let’s say IlloBob wants to license an illustration of a squid to SurferSam for use on his surfboards and newsletters. He wants to make sure SurferSam doesn’t use the illustration on t-shirts or to be able to re- or sub-license to third parties for their use. He also wants to be able to license the same illustration to others including for their use in their newsletters. His license might read like this:

Conditioned upon full and timely payment received, IlloBob grants to SurferSam the non-exclusive right to reproduce the Squid Illustration solely on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019. SurferSam may not license these rights or any other rights to any third party, except as required to produce the surfboards and newsletters permitted by this license.

By using the word exclusive (or non-exclusive) only with the rights (as opposed to the media), a licensor is protected from accidentally granting exclusive rights. To see the difference, look at this variation of the license above:

IlloBob grants to SurferSam the right to reproduce the Squid Illustration exclusively on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019.

Is that an exclusive license? Can IlloBob license the work to anyone else to use in a newsletter? Can SurferSam use the work on t-shirts but without exclusivity? Maybe yes to all of the above. Well informed lawyers could debate all that and more, just because of how the word “exclusively” is used.

If you don’t fully grasp the differences here, that is what I (like other lawyers) am here for. I can help you draft licenses that will provide your client what it needs while making sure you aren’t accidentally giving away more, and it won’t cost you an arm and a leg. A little professional hand-holding now can save you lots of money and frustration in the future.

Google Images Does a Right Thing (Finally)

I’m no fan of Google. Like the other big internet companies (and many small ones) they have played dumb about the harm they have caused to creators all over the world. One of their big falsehoods has been that they have acted like it was virtually impossible for them to help prevent infringements by making copyright notices and other ownership data more evident.

So, this morning, I was thrilled to see that they are finally doing something about that. According to that article, Google will now be displaying authorship more clearly and, importantly, some of the metadata in the photos in a Google Image search. Huzzah!

This does mean that you, as photographers and other creators, need to be better about managing your metadata. Take the time to add not only your name and contact info into the metadata in your work, but also a proper copyright notice.

I think this may make a significant difference in future infringement claims and may even result in fewer infringements, but the trick is to make sure your work is clearly attributed to you. Ask your clients to maintain the metadata and clean up your own files, too.

Now if we can only get companies like Facebook/Instagram, Twitter, etc., to do the same.

I Bake Bread…Really Good Bread

The photo is of the sourdough boules I made last week. They are from scratch, from a starter I started months ago, and comprising nothing more than flour, water, and salt, including the starter.

I bake almost every week, never less than every-other week, and it has been a couple of months since we’ve purchased bread of any kind, except for hamburger buns once when we had a last-minute guest to dinner and I didn’t have time. It takes me all day to make the dough and shape the boules, which then have a final proof overnight and get baked the following day. It is a discipline and, for me, an exercise in mindfulness, presence, and perseverance.

I grew up cooking. I literally cannot remember a time when I didn’t cook. My mother was a gender traditionalist and, being the only daughter, it didn’t matter that I was substantially younger than my brothers–I had to cook for them, first with her then on my own, later. From my very beginning of my own consciousness, I remember being in the kitchen or the grocery. I actually have (and often use) the cast-iron flat small oval pan I remember trying to make pancakes on, by myself for the first time, when I could not have been more than five [1].

Mom was a very good cook and so am I, and I (like her) cook intuitively rather than by following recipes (see “there is fat in the batter” thinking in FN1… ha!). When my brother took cooking lessons as an adult he asked for my recipes and I could not give him more than a rough “some of this, a bit of that” kind of litany. Honestly, I don’t know how I make a lot of what I make–I just make it.

I’m one of those people who can look in a fridge and cupboards and, no matter how bare, will be able to come up with a couple of tasty “peasant food” meals. I learned this ability from Mom, and our poverty. It was a great tool for surviving college, grad school, and law school.

Anyway, Mom, for all her cooking, didn’t bake much and so neither did I. Basic cakes, yes, and the occasional cookie, but those are pretty forgiving if you stray from the recipes. Breads, though, require a certain scientific discipline she never could (or, perhaps, would choose to) grasp. I think some of it was because her mother was such a good baker that, just to be difficult, Mom chose not to follow Grandma’s baking tradition. My very Polish grandmother would rarely appear from the east (Wheeling, WV–we lived in Columbus, OH) but, when she did, it was always with paper grocery bags filled with enriched, yeasty, often raisin-filled, tasty baked goods. I can still remember the smell of her and it’s the smell of the goods in those bags. Sadly, we never baked together and thus bread making was fairly foreign to me. I wanted to learn so I did, later in life.

Cooking is like shooting photography–you can play a lot with and stray a lot from the recipe and still get good (sometimes great) results. Baking however, especially bread, is like traditional photo printing in the darkroom–you have to mix hard science with the art and if you stray too far from the science, you get crap results. In other words, you need to understand and respect the science of bread-making (yeast, heat, gluten formation, proteins, etc.) in order to make decent bread and to learn the science to the point of mastery to make really good bread.

For me, baking bread well is also like being a good lawyer: the more you learn about your particular field of law, the better you create. You have to respect the traditions, statutes, rules, and the processes, but you’ll make better lawyering when you have internalized how the law works so, for example, you can know the feel of that right spot in any of your drafting. Just as a Tartine sourdough loaf is to Wonderbread, so is a beautifully crafted document to a boilerplate one. When you know the specific law in real depth, you can find the hidden issues in a case and the winning legal points. It’s like learning how bread dough feels when it’s been worked enough or proofed right.

So why am I sharing all this? Because I think there is a lot of Wonderbread in my profession, especially in copyright law these days. I want you to know that is not what you’ll get with me. There are large firms who have a gazillion associates and paralegals who will take your case and treat it like it’s debt collection. They don’t know any more than the minimum about the law; they are competent, not obsessed. I’ve read the complaints and other papers they file and I don’t know how some of them can look at themselves in the mirror and call themselves “good lawyers.” I can tell you there has been more than one where I feared the client would get stuck with paying the other side’s attorney’s fees because the case should never have been filed.

Moreover, these massive firms won’t care why this particular image means more to you than another or look at the case in any depth, they’ll just do the minimum to get something and often not even remember your name. Worse, there are companies not owned or run by lawyers and so they care first and foremost about making their own bank, not you or your case.  But they’ll be happy to take about half, if not more, of your settlement for their efforts.

That ain’t me. I know and care deeply about the law and how it works. I’m a dweeb, a nerd; I read case law and journals not because I have to but because I love it. I’m a passionate lawyer and obsessively so about copyright law. I agonize over my drafting, the rules, and making sure the law I cite is the best for the issue. I file only a few cases at any one time because litigation is time-intensive and I refuse to take on more and maybe do any less well.

Also, I build relationships with my clients and I take pride in that. I know about their families and they know about me and those close to me. I know the history of the works they ask me to protect, whether that is a work made for a client or personal work, and why it matters. While I get paid (usually much less than the infringement mill companies, by the way), I also sometimes get gifts from my clients–usually their own art–and that is something that has brought me to tears more than once.

If you want Wonderbread, I suppose you may be satisfied with the big firms or infringement “enforcement” companies. You wouldn’t be a good client for me, then. But if you want a relationship with a lawyer–something more than just a form and a rotating list of associates for your cases–shoot me an email and let’s get to know each other.

You might even a bread recipe out of it.
Really good bread.

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[1] Sadly, they were a bit of a fail as couldn’t remember if you needed to grease the pan and I errantly decided that, since there was fat in the batter, I didn’t need to. Mom came in as I was trying to scrape off the first batch.

Reminders

I’ve had a couple of cases (or, I should say, cases I had to say “no” to) recently that make me think creatives could use a few reminders.

First, on the bad idea of trying to make your infringement matter into a breach of contract; second, some Don’ts to remember.

 

In other news and speaking of reminders, yes, I’ve been terrible about posting lately. Mea culpa. I have had some cases in litigation that are time-sucks on top of my usual case load, plus I just experienced my first summer as a parental-ish figure (to my BF’s lovely home-from-college-for-the-summer daughter), but, really, I owe you all a better frequency of posts. I’ll try to do better. 🙂

Finally, my office partner Ruth Bader Catzburg just celebrated her second birthday. She is as small and feisty as her namesake.

New Tool! (For infringement searching)

I’ve been hearing from clients how they are frustrated that they can’t find a decent service that actively monitors multiple images for possible infringements. That is, one that doesn’t then require them to use the monitoring company’s services to pursue claims, like ImageRights or Pixsy (etc.) do.

Lots of photographers don’t want to have to pay 50% or more of their settlements, often on top of subscription fees, and I don’t think they (or you) should. It’s your money and fees like that, in my opinion, are outrageous. It’s like when stock agencies went from the photographer getting most of the licensing fees to the photographer getting practically nothing–it’s your work and you deserve to keep most of the money collected!

Anyway, like I said, clients were asking for options and I didn’t have a good one to present. So, I started digging.

The usual suspects of Google Image or Bing Image are strong tools but aren’t for monitoring. You can’t upload a bunch of images then get a report about them–you can only do one-off searches. There is a Russian site called Yandex that a client recommended, but I honestly do not trust any Russian site not to then take your images and re-sell them behind your back[1].TinEye has been around for some time, but they’re way pricey, especially for a solo artist.

Finally, after some Reddit hunting, I think I have found the answer: a UK company called Infringement.report.

Infringement.report’s service is a subscription, web-based tool at a ridiculously fair price point. Seriously. How does $25 a month grab you? That level will cover many of you but even if you are the busiest and want to track a ton of images, the most expensive monitoring plan is $150 a month.

They have no contracts, no limitations on who you can work with, and they specifically do not pursue claims. In their own words, “We don’t pursue infringements, leaving you free to choose your own lawyers and keep 100% of settlements.”

Huzzah!

And, most importantly, it works[2]. I did a small test (you can test drive for free with up to 3 images) and was stunned at the results. One of the images I tested is a client-friend’s that I knew had been ripped off before. In an hour it found at least 19 uses of that photo, most of which were unauthorized.

You can get reports emailed to you. You can download the data as a .csv file to put in Excel or your own database. It’s got an API (maybe you have software it can talk to directly?). The results are dead easy to read and understand. And you don’t have to be a geek to figure out how to use the tool. Payment is made via PayPal and the terms of service are not sneaky.

Honestly, I keep looking for a big negative but, so far, I can’t find one.

So go forth and monitor your work[3]. When you find infringements, hire your own, personal copyright attorney (like me) with whom you can build a relationship. And keep most of your own money.

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[1]Go ahead and call me “racist” if you want–I know what I’ve seen in my practice and Russian sites are some of the worst infringers.

[2]Okay, I have to admit (1) there was a little bug that gave me a warning about having uploaded too many images for the free trial, when I hadn’t, but it worked anyway; and, (2) I having been testing it long, yet.

[3]Register the copyrights first, m’kay?

What To Do, part 2

So you’ve found a probable infringement and you’ve gathered all the evidence you can (see previous post), now what? You have choices[1]: do nothing, contact the infringer yourself and send an invoice, contact the infringer yourself and send a cease and desist/demand letter, send a DMCA takedown notice to the infringer’s ISP[2], or contact a lawyer.

Of course, I’m going to say “contact a lawyer” is your best option (um, duh!), but I’d like to discuss the other options a bit here, too.

First, I think that doing nothing is not a good option, with one exception: if you are so utterly risk-averse that you can’t bear the slightest chance that you may end up in court over the illegal use of your work, then sit on your hands and seethe, but do nothing. That is, if you do anything else like the options described below, you do run a small (and usually is a very, very small) risk that the other side will file suit against you for declaratory judgment that it did not infringe. This is really rare because copyright infringement is strict liability and so, unless you missed something like a license granted to the infringer, it’s a loser case for the infringer. I had this happen once–the infringer tried to use it to scare off my client. Didn’t work and, not too much later, we negotiated a settlement that my client was quite happy with (plus, my client saved the cost of filing the suit). Still, if you don’t want to face the generally tiny possibility of going to federal court, do nothing.  Otherwise, read on.

Some people suggest sending an invoice to infringers, but I don’t encourage that. It’s likely you will undervalue the infringement and maybe even miss additional claims that will add value to the overall matter, so you sell yourself short. Worse yet, an invoice sent will virtually neverresult in you getting a check for your invoice’s full amount. At best, the invoice will be a start to a negotiation; but, if you’ve already undervalued the matter and then you end up at, say, 50% of that, you’re bleeding money. You also set your price without knowing all the facts and that could bite you if you end up in court later. Nope, invoicing is not a wise idea in most cases[3].

Similarly, I generally don’t encourage creatives to send cease and desist (aka demand) letters of their own drafting because they usually (of course, accidentally) screw them up because of language errors as well as under-valuation. If you don’t know the law, you may  (as mentioned above) miss legitimate claims that add to the value of the matter and you could end up offering to release a $25,000 claim for $5000.

As for language, there are two main areas of concern: misusing legalese and slipping from legitimate demand into extortion. The latter, first: “Pay me $10,000 or I’m going to go public with what a thief you are!” is going to get you in trouble but a demand for $10,000 to settle the claims is not inappropriate if the facts support it.  The line isn’t so obvious sometimes and, since anti-copyright folk scream Extortion! at any demand, you want to be sure you don’t actually cross that line.

Using legal language incorrectly happens often and often it is by people who are very smart but, not being attorneys, they have no clue that using certain words means something different in a legal context (like published in copyright law, for one example). To paraphrase Inego Montoya, “I do not think those words mean what you think…” and that can get you in trouble when the other side lawyers up.

Another error in artist-drafted letters is you can be a doormat: “I’m sorry, I’m sure you didn’t mean to, but you used my work. Would you be willing to pay me $100?” is differently but arguably just as bad as accidentally extorting the infringer. You’re undervaluing the infringement and groveling…ick! Overall, unless you have a form letter drafted by an attorney and you are very confident in evaluating your cases for all the potential claims and their damages, I encourage you to refrain from drafting and sending letters yourself.

Moving on… sending a DMCA takedown notice to the ISP is a tool you can wield, and it will probably get the infringement stopped, but it does nothing about getting you the money you deserve for the illegal exploitation of your work. Usually, I think it is better to notify the actual infringer first (as a part of a demand letter) and then, if it doesn’t remove the work, send the takedown notice. This can be a strategic choice that is worth evaluating with an attorney too as, for example, continued use after notice can be a factor for willfulness. Also, you do want to be sure to send a technically proper notice, if you choose to send one at all.

That brings us to the final option: contacting an attorney. A competent copyright attorney will avoid the issues described above, will evaluate your claim(s) and your opposition’s potential defenses, and will advise you on your best course of action. We have to–there are rules (actually, laws[4]) that demand it of us. So, as opposed to companies[5] that claim to help you with your registrations or infringements, attorneys, once hired, must put your best interests first, including above our own. It’s part of why we have to be licensed–to provide competent counsel to our clients.

While we attorneys can’t take every case that is brought to us, we are required to hold your information confidential even if we don’t take the case so it is worth talking with one of us before you do anything.

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[1]As long as it is still less than three years since you discovered the infringement (in most cases/places), you have options. The statute of limitations is 3 years for infringement and usually that clock starts ticking when you discover the infringement. Don’t wait until the last minute.

[2]DMCA takedown notices do not go to infringers but rather to the ISPs that host the infringement. For example, if I were an infringer of the post office photo I showed in my last post, the author of the photo would send the notice to my host, not me. It gets the work removed and gives the host/ISP a legal protection (safe harbor) against being sued for infringement, but the author could (and arguably should) still go after me as the actual infringer.

[3]An exception may be with an existing client who has used work beyond the scope of a license; then, for a continuing-business-relationship reason, an invoice may be wise.

[4]See, e.g., Cal. Bus. & Prof. Code §6068, including sub-section (g) that says an attorney must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”

[5]Companies are required to make as much money as they can for their shareholders, first and foremost.

What to Do (Collecting Evidence)

When one finds one’s work being used by someone without permission, much less payment, there are some things to be done besides just swearing about it. Before doing anything regarding the infringer, especially before contacting it, do the most important thing: collect all the evidence.

If your work is appearing in print someplace, or in 3 dimensions (depending on your art), take copious photographs of it. Try to get close-ups and photos of the context (in a bank, on a billboard, etc.).

If, say, the work appears on a product, note the store where it is being sold and ask the manager for the name and contact information of the supplier, if it’s not a company you recognize. You can also buy example products (or publications) bearing your work, if that is an option.

Online? Make screenshots. Get the whole page if possible (try an app like Paparazzi) and also try to get a screenshot showing as much of the URL as possible while also capturing the infringing use. When you do that, however, make sure to hide your favorites and close all other tabs–you want a clean example of the infringement[1].

Got the shots of the work on the public-facing pages of the site? Great, now find it on their servers. In Safari, go under Develop>Show Web Inspector and you’ll see a folder called Images. Here, I have a screenshot looking at this site that way where I’ve ID’ed a photo of the La Jolla post office I made (selected in the screenshot below):

Double-click that highlighted icon and it will open the link to the work as it appears on the infringer’s server (here, on my server). Get screenshots of that as well and note the URL(s).

Okay, now do you use metadata in your images? Please say you do. If so, then check the metadata on the infringing photograph–see what has/has not been deleted or altered. Preserve that evidence as well (make pdfs of the results, for example).

Finally, for web-related infringements, preserve the infringement on the Wayback Machine at archive.org. You do that by checking to see if the page is there already (and do this for the front-facing pages and the server pages); if it’s not, then you’ll see that you can add it. Here is what I got when I put in the URL for the server page holding my post office photo, for example:

Once you’ve done all that you need to find, in your own records, your copyright registration for the work and copies of your deposit copies. If it’s not registered and it is still within three calendar months of your first publication of the work[2], register it immediately[3]! Also note where you have licensed the work to be used and where you have published the work yourself (exact URLs for everything–not just “on my site”). Basically, think of every place that your opposition may have found the work and note the URLs.

Put all of the above into a folder for that infringement, before you do anything like contacting the infringer.

Yes, this all is some work, but evidence is so important that it is totally worth it. I can’t begin to tell you how many times someone has contacted me with what sounds like a great case but, because s/he hasn’t preserved evidence of the infringement, there is noting that I can do for her/him. I may know it is an infringement, but if I can’t prove it, there is nothing I can do for you.

So, once you have all the evidence, then you can decide what to do about the infringement itself. In my next post, I’ll talk about your choices.

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[1] No reason to give anyone any personal data accidentally, like that you also were looking at porn or something (yes, this happens).

[2] Remember that “publication” has a different meaning under copyright law here so if you offered it to a client for its use, even if it wasn’t used, then it is published. Also, posting the work on a site where you say, basically, “you can license this work” is publishing. However, just because you posted it on your portfolio site (no offer to license) does not make it published. If you aren’t sure, ask a copyright lawyer, not your creative buddies, for advice.

[3] If it is too late, then your options are limited for how you approach the infringement, since your remedies are limited, but it still may be worth pursuing.