Steal This Photograph

Free Advice
People at cocktail parties (How old am I that I wind up at actual cocktail parties?) often ask me what they can do about people stealing photographs from their blog or website. I start by asking them what they have done to protect their photographs. The only constant seems to be that they all crash cocktail parties, cornering unsuspecting intellectual property attorneys for free advice (its the virgin strawberry Daiquiris that makes us so easy to spot).

Luckily, waxing philosophic on the origins of copyright works like holy water on Nosferatu, and usually even before my ice gets all melty. Since you kind readers have been thoughtful enough to allow me to enjoy my beverages in peace, I have decided to share my thoughts on this subject, sans the legal history lesson. Here are the steps I would recommend to protect that precious shot of the snowboarding squirrel:

Make Sure You Own the Photograph
Many people mistakenly believe they own photographs they do not. If you hired someone to take the photograph, you likely only have a limited license to use the photograph for a specific purpose. If you did not take the photograph, you probably need to talk to an intellectual property attorney to determine if you own it and how to obtain and assignment to avoid problems like this in the future. If there are people in the picture, or artwork, or trademarks, you probably need to investigate the law of photography a little to determine if you have any other issues besides ownership.

Offer to License
If people are stealing your photographs, they might be willing to pay for them. Even if they are not, once you associate a dollar amount with what people are stealing, they are less likely to steal. They know that the "innocent infringer" defense is probably not going to fly and even their misguided thoughts of "fair use" fall by the wayside when they see a price tag associated with their actions.

Register Your Copyright
"Copyrighting" your photographs is kind of a misnomer. As soon as you take your photograph, copyright attaches automatically. So then why register your copyright? One main reason is that you cannot sue for copyright infringement until you register the copyright with the United States Copyright Office. Another advantage is that if you register early enough, you can get statutory damages against an infringer. This makes it easier to prove damages in cases where there is no set value for the copyrighted material. Compared to trademark and patent registration, copyright registration is relatively inexpensive. The Copyright Office provides instructions as to how to register your copyright. If you anticipate ever having to use the registration in court however, I would suggest paying a copyright attorney a few hundred dollars to do it right.

Find Infringers
Watermarking your photographs, giving them unique names and visiting similar websites are all ways to find infringers. Often vigilant web surfers will let you know about infringements they run across in their online travels if there is something in the photograph to identify it as yours. Searching Google for unauthorized copies of your photographs (or your text) is a good way to locate infringers. Be sure that when you find an infringement, you document it. Often, by the time a client comes to me, the infringing photograph is gone.

Send a Cease and Desist Letter
Putting the infringer on notice is critical. Your letter can demand cessation of the infringement and/or money for the unauthorized use. Be careful when sending a cease and desist letter, however. A poorly drafted letter might just be your invitation to a lawsuit in the infringer's backyard.

Sue Somebody
Just like Fonzie (okay, I'm really old), you have to have been in at least one fight before everyone takes you seriously. I would not necessarily recommend suing the first person to steal a photograph. However, if people are stealing your photographs on a regular basis, a lawsuit may be the way to go. With a lot of infringers, you have the luxury of selecting the most egregious perpetrator, with the highest likelihood of sending a message to the other infringers that you are indeed serious about protecting your intellectual property. At the very least, it is like hanging a sign on your front door that says "I have a $100 stereo and a $1,000 alarm system. My neighbor, however, has a $1,000 stereo and a $100 alarm system." You won't be able to stop infringers, but at least you might be able to encourage them to steal from someone who does not have your knowledge of copyrights in photographs.


Brett Trout

photography lawblog photographyphotograph copyright

Google's fair use of Perfect 10's thumbnail nudes

Perfect 10 is in the business of licensing its copyrighted images of naked women to end users. Preventing end users from circumventing licenses by downloading infringing reproductions of those nude images is therefor critical to Perfect 10's business.

When Perfect 10 started licensing small versions of its images for cell phones, it became concerned that Google's free thumbnails of the nude images would supplant that entire market. Perfect 10 was also concerned with Google's in-line linking and other "arms length" uses of Perfect 10's full size images. On appeal of both parties from the district court ruling, the 9th Circuit affirmed several lower court rulings with regard to Google's display of Perfect 10's copyrighted nude images.

In Perfect 10 v. Amazon/Google, the 9th Circuit affirmed the lower courts ruling that Perfect 10 had indeed made a prima facia case that Google's display of the thumbnails was an infringement. The 9th Circuit, however, reversed the lower court's finding that Google would not be able to prove the infringement was a fair use under the Copyright Act.

The high court found rigorous application of copyright principles in this instance would stifle the very creativity the Copyright Act was designed to foster. The 9th Circuit relied heavily on the "transformative" nature of Google's use, finding rather than superseding Perfect 10's use, Google's thumbnails use transformed the original copyrighted work into a new creation. The high court held that "the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case."

With regard to full size images, the 9th Circuit appeared to affirm the district court's "server test" of infringement. The Server Test looks at whether the owner of the computer is actually storing and serving the electronic information to the user. Under the test, in-line linking or framing does not constitute a "display" as that term is used in the Copyright Act. While in-line linking and framing may confuse users as to which computer is actually "displaying" the images, confusion is a factor in under trademark law, not copyright law.

The 9th Circuit also ruled the lower court erred in its resolution of the issue of secondary (contributory and vicarious) liability because the lower court failed to consider whether Google knew of the third party infringements and failed to take reasonable steps to prevent access thereto.

Brett Trout

Perfect 10 Google Amazon vicarious contributory copyright

British High Court Finds For The Da Vinci Code

Nearly a year after a lower court ruling that The Da Vinci Code author Dan Brown had not infringed the copyright on the book The Holy Blood and the Holy Grail, Britain’s Court of Appeal has affirmed the ruling. The High Court noted that while copyright protects an author’s labor in researching and writing a book, it does not extend to facts, theories, and themes.

The Court not only ruled against the defendants Michael Baigent and Richard Leigh, but ordered them to pay Random House, Dan Brown's publisher over $600,000 for the cost of the appeal. This seems like a lot, but compared to their own legal fees, estimated to be over $6 million, the penalty does not seem so bad.

Brett Trout

da vinci code copyright Dan Brown Holy Blood Baigent Leigh

Microsoft Hit With Largest Patent Jury Award in US History

Thursday, a jury in a Federal San Diego courtroom found Microsoft liable for infringing Alcatel-Lucent patented audio technology to the tune of $1.52 billion. Had the judge found Microsoft's infringement to be willful, United States patent law would have allowed the judge to triple the damage award.

Microsoft appeared surprised at the verdict, especially after having licensed the infringing technology from the German company Fraunhofer for $16 million. Microsoft went on to lament the effect the verdict would have on the digital music industry. The market, however, just seemed happy it was over, with the stock of both companies gaining ground after the verdict.

Brett Trout

patent Microsoft Alcatel-Lucent infringement

Super Bowl Party and Some "Not So" Divine Intervention

It is not divine intervention, but commercials that are driving couch potatoes from the temple. Nielsen ratings reportedly do not measure out-of-home viewings like the one planned this Sunday in Indianapolis at Fall Creek Baptist Church. NFL officials, concerned their $2,500,000.00 30 second commercial ad rates might plummet are forcing Fall Creek Baptist Church to cancel its planned "Super Bowl Bash."

The NFL alleges that using the term “Super Bowl” and charging admission to see the game violates the NFL’s trademark and copyright. Church officials responded that they would stop using the term “Super Bowl” and would not charge admission. That was not good enough for the NFL, however, which alleges the law restricts the church to a screen 55” or smaller. The NFL is apparently referring to Title 17 of the United States Code, Section 110(5). While that code section does refer to a 55” screen, the church would still be in the clear if the church was less than 2000 square feet OR the single television or projector was of a kind commonly used in private homes.

When confronted with an 800 pound gorilla, most people back down without questioning their own rights. Often times a quick call to a patent, trademark and copyright attorney can provide you with ideas on how to do what you want to do without running afoul of the law or of third party intellectual property rights. We typically prefer you contact us BEFORE you get in trouble, but late is preferable to never.

BTW/if anyone from Fall Creek Baptist Church is interested in viewing the game in a 2000+ square foot venue on a 65” television let me know. I will be hosting a 17 U.S.C. §110(5)(A) exception party in Des Moines this Sunday night.

Brett Trout

superbowl nfl copyright infringement television

Super Bowl Law

Title 17 of the United States Code, Section 110(5) states that the following DO NOT constitute copyright infringement:

(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—
(i) a direct charge is made to see or hear the transmission; or
(ii) the transmission thus received is further transmitted to the public;
(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if—
(i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission or retransmission;
(iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed;

Brett Trout


Super Bowl nfl copyright infringement television

Da Vinci Code survives allegation of copyright infringment

Last April a British Court ruled that Da Vinci Code author Dan Brown did not infringe the copyright of the 1982 book Holy Blood Holy Grail. Brown received more good news last Monday when the United States Supreme Court declined to hear another case alleging the Da Vinci Code infringed the copyright on Lewis Perdue’s book “Daughter of God.” Although various experts submitted affidavits that they believed the infringement was overwhelming, the lower court ruled that no reasonable juror could find infringement. The ruling has been upheld on appeal.

Brett Trout

Other Related Topics:
Dan Brown, Da Vinci Code, Daughter of God, Supreme Court, Copyright