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Geek Wins Copyright Lawsuit Against Corporation
Posted by
kdawson
on Sun Feb 24, 2008 11:07 PM
from the david-1-goliath-0 dept.
from the david-1-goliath-0 dept.
Chris Gregerson writes "I work as a stock photographer/web developer. I saw a photo of mine used in Vilana Financial's full-page phone book ad. They wouldn't pay the licensing fee, and I wrote about it online (mirror). They sued me for defamation, producing a sales agreement signed by one ' Michael Zubitskiy' (who they said took the photo and sold the rights to them). I sued them for copyright infringement, and they added claims against me for trademark infringement, deceptive trade practices, and tortuous interference. There was a trial I'll long remember on the 5th of November, and the judge recently issued her verdict (PDF; mirror). She ruled Vilana Financial forged the sales agreement and willfully infringed my photos, and awarded me $19,462. All claims against me were denied. I represented myself during the litigation."
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Well done! (Score:5, Insightful)
People like to dis the "IANAL" posters here, but I have found that a little bit of amateur legal knowledge, even stuff picked up from Judge Judy and the intarweb, can take you a long way in life. At a minimum you should know the basics of how contracts are enforced, what kind of evidence is acceptable in court, and how not to piss of a judge. Common sense will get you most of the way, but you need to know just a bit about the lingo and the process.
Re:THis is Good, but file sharing is Good too? (Score:5, Informative)
There is more than one person posting here.
So ripping off a stock photo is Bad and this guy did good by pushing for his rights and winning.
Yes. And more importantly, without a lawyer. IMHO that alone makes it a respectable achievement, regardless of how I might feel about this particular law.
But pirating copyright music via p2p etc is OK because nobody got hurt right.
Not the same thing. This company used his images for profit. What would have been analogous to file sharing might be if the defendant had photocopied the image, put it on his wall for his own personal enjoyment, and given some copies to friends for the same purpose.
Conversely, there does not seem to be much sympathy for people who _sell_ pirated songs or attempt to use them for some purely commercial purpose.
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Re:THis is Good, but file sharing is Good too? (Score:5, Funny)
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Re:THis is Good, but file sharing is Good too? (Score:5, Interesting)
What part of "copy" in "copyright" do you not understand? There is all the difference in the world between a copy of a file and a hyperlink. At least Sweden has had the common sense to understand that, although who knows when they'll buckle to the *AAs.
OTOH you're in good company with the plaintiffs in the 2600 DeCSS case [wikipedia.org], which I still find to be one of the most disappointing court decisions of modern times. "In particular the Second Circuit ruled that linking on the Internet...could be restrained in ways that might not be constitutional for traditional media" which is why it was perfectly fine for the NYT to print the hyperlink (which it did). So if thepiratebay printed a monthly magazine of torrent hyperlinks, that apparently would be legal even in the U.S. And possibly even if they displayed the links on their website with no "HREF" around them - would that make you happier? Or are you for censorship of non-copyrighted information as well?
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Re:THis is Good, but file sharing is Good too? (Score:5, Insightful)
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Re:THis is Good, but file sharing is Good too? (Score:5, Insightful)
Emotional arguments aside, there are some real issues with the way recording companies operate.
Also, there's a significant difference between downloading a song for free and listening to it on your mp3 player and downloading a song by an unsigned artist for free, and then using it on a TV or radio ad, and then trying to claim that the artist sold you the rights when you're queried on it.
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Re:THis is Good, but file sharing is Good too? (Score:5, Informative)
do you claim to own the rights to your briteny spears mp3 collection?
they didn't just rip off his work, they claimed to own the copyright on it as well. your missing the point we make time and time on here again as well - RIAA aren't content creators like this guy, they are business thieves that take the majority of the artists cut and sue their fans.
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Re:THis is Good, but file sharing is Good too? (Score:5, Insightful)
The offending company in this case used the copyrighted material FOR PROFIT. For the direct financial benefit of their company. And they WILLFULLY removed the copyright and digital watermak. Then the forged a notarized document and lied about it under oath.
If you did soemthing similar with your MP3 collection I'd almost be tempted to help the mafiaa track you ass down. Similies and comparisons almost always fall short on
It would be like downloading every metallica song, making a compilation CD and removing the copyright, attributing the music to another band and then using it as a promotional give-away as part of an advertizing campaign for your company. If you do that, then yes. You should suffer court appointed damages. Note this judge awarded about 20,000 USD. That, i feel is appropriate given the blatant copyright violation and commercial use. What I don't think is appropriate is 150,000 USD for downloading a song of P2P for solely personal use that the MAFIAA demand. Note they don't go for 'up to' 150k, they demand EXACTLY 150K.
So comments about how useless or simple or stupid or ugly his photos are
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Re:THis is Good, but file sharing is Good too? (Score:5, Insightful)
When I (hypothetically) download an MP3 from, say, U2... and then go use it to sell stuff with. U2 comes around and (nicely) confronts me, and offers to allow me to pay for what I've used . I refuse, state U2 didn't actually write the song, and produce the (forged) recording-studio paperwork to 'prove it'.
Meanwhile, U2 is actually the damn band that recorded the thing.
Work on your reading comprehension, or turn down your assume-o-meter and/or jump-to-conclusion-ometer.
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Re:Well done! (Score:5, Insightful)
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Re:Well done! (Score:5, Insightful)
taking a photo of a cityscape is hardly a skill.
If the photo had no value, then they wouldn't have felt like using it. There are lots of bad cityscapes; producing a decent one requires at least some skill -- and there is certainly labor involved in taking the time to do it. Your lack of appreciation does not mean there is no skill, or that the photo has no value.
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Re:Well done! (Score:5, Informative)
I'm not sure what the solution is, but in this case I initially sued in small claims court based on contract law and the "terms of use" of my website (which required a licensing fee for use of the photo). My claim was denied because it necessarily involved copyright, and I was told I had no recourse under contract law -- only copyright law, and only in federal court. I disagree, but there you have it.
And yes, there is a flood of images nowadays, but the skyline in this case is from a vantage point other's haven't duplicated. I provide high-res files 24/7, technical support on image format and resolution, and I shoot on speculation -- I add as much value as I can and rely on copyright as little as possible.
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Re:Well done! (Score:5, Insightful)
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Re:Well done! (Score:5, Insightful)
The sad fact is that after a few days, most cases are sent to the bottom of the pile. Not due to lack of evidence, but due to lack of funds.
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Re:Well done! (Score:5, Interesting)
Way back when (say 1979 or 1980) when I was in High School, I took a forensic evidence internship at John Jay college in NYC. Intereesting class with LOTS of stories, but I can still remember one evening in the lab, when it got hot, and most of the guys in the class took off their sports jackets (I had never really thought about WHY everyone wore a sports jacket to class). About 3/4s of the class were police officers furthering their education, and they were all carrying under their jackets. I think there were about 3 of us in the room who were NOT visibly carrying a firearm that night. Me? Because I can't - the other 2, who knows.
So I think you'll find that a lot of the forensic "geeks" out there are/were actual patrol officers at one time
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Re:Well done! (Score:5, Interesting)
As someone who trained for a year to become a Lawyer, I find Law and Order to be at least partially gratifying for the way things are put down in the show. It's not entirely accurate but it's not entirely inaccurate as well. The same applies to CSI or Numb3rs... nobody likes to sit by the geeky things so sure it's not all canon, but it puts the right spin on things.
Note I used to date a forensic scientist for the Australian police, watching a show like that with her was like listening to Bill Gates tell me how awesome Linux is ("that's not right!", "we can't do that!!!", "BULLLLLSHIT!" etc.).
My $0.02 AU, Ignore at will
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Re:Well done! (Score:5, Interesting)
Sure, they dramatize the whole thing, and you don't watch code-monkeys plugging away at computers for hours at a time, but the math itself is quite solid and the data input and extrapolations based on that math are based in reality.
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Picture (Score:5, Funny)
Grab their profits too? (Score:4, Interesting)
Now that you've won spectacularly, is it possible to pursue those damages?
Also, this caught my attention: "However, Vilenchik's deposition testimony was that Zubitskiy called him at the following number: 612-963-2900. What would make this phone number particularly easy to recall eludes the Court."
Assuming that 612 is the local area code and doesn't need to be memorized, the rest of the number is quite easy. 963... geometrically, it makes a nice line up the right side of the keypad, and the 2900 is trivial to remember as well. Perhaps 29 has some special significance and, even if not, how hard is it to remember that? Regardless, the rest of the defendant's is basically BS anyways but that point stuck out as being not implausible.
Re:Grab their profits too? (Score:5, Funny)
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Re:Grab their profits too? (Score:5, Informative)
FYI: I researched claims for infringer's profits in cases where a photo was used in an advertisement. I found that precedent requires the Plaintiff produce actual customers who testify the photo caused them (at least in part) to become customers (you can then get a small percentage of the infringer's profits). I thought that might incur more investigation and deposition costs than it was worth, and was otherwise busy trying to uncover the other side's fraud.
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Slow News Day? (Score:4, Insightful)
Also it strikes me as a mistake not to hire an attorney in a case like this. Almost certainly you could recover attorney's fees and it just seems silly to risk getting blindsided by some legal rule you didn't know about. The courts do give pro se litigants extra room but why take the risk?
Photographers and IP (Score:5, Interesting)
That being said, I am recently finding myself unable to wrap my brain around how photographers charge for their work and how they can justify their business model.
Case in point: I'd like to get my kids' pictures taken. No print ad campaigns or web advertisements, just pictures of my kids, maybe myself and my wife. In the past we've used a place that takes really nice pictures, but they insist that the only way you can get their prints is to purchase print packages from them. I understand they are trying to make back their money invested in the initial sitting, but I can't wrap my head around how they are trying to take an old business model (selling photographic prints) and apply it to this new, digital age. All of their cameras are digital, but they won't sell me the RAW digital files, not for any price. However, they also delete the copies after 90 days, so they take digital pictures, print me out copies, then (presumably) destroy the originals.
Now, I'm by no means a photographic professional, but I know my way around Photoshop, and can think of dozens of things I'd like to do with these pictures, maybe now, maybe 20 years from now, I don't know. What I'd really like is a photographer whom I could pay for his/her time and the use of their equipment to produce pictures that I can do whatever the hell I want with. I've called around and can't find anyone who operates in such a way. The photographers I talked to all said I was nuts to be looking for such a service, because they were unwilling to enter into an "open ended contract" whereby they lose control over their own work. I don't think it's an unreasonable request. In all honesty, I know how much I spent on the print packages I got in the past, and I'd be willing to pay a premium above and beyond that for such a service. Nobody is losing money, and in fact some photographer could get more of my money for providing less of a service. (i.e. maybe they don't have to print so many prints up front because I know that I can get more printed later somewhere else, or maybe even with them if their work is good and prices are fair.)
I design and install computer systems for a living. People pay for my time. Let's say I set up the network for some small startup operation called "Facebook." (I didn't, purely hypothetical) That operation takes off using the backbone that I set up, becoming one of the fastest growing and most successful business on the Internet. Guess how much of that $15 billion I'd see. (Or expect to see) ZERO. Never mind that it was my genius design that enabled them to do what it was they were trying to do. I went in, did a service, and I was done. Why is photography inherently different?
"Must turn over all email..." (Score:5, Insightful)
Magistrate Judge Arthur J. Boylan ruled that Vilana cannot copy my computer hard drives and I don't have to produce email between myself and my attorney. However, I must turn over email with the terms "Vilana", "Vilenchik", "Zubitskiy", "Kazaryan", "Walker", etc. I sent Vilana's attorney a DVD with over 500 emails...they can sift through my private thoughts and feelings about their misconduct as described to my parents, sisters, and friends. Note: at trial in November, 2007, Vilana's attorney actually cross-examined me on these emails, which did not appear to prove anything except my own version of events.
Note to self: if ever thinking of getting involved in litigation, seed potential keywords into an email spam generating engine of some kind. "All emails with terms (keyword)? Certainly - here's 8G of text for you to read..."
Congratulations to Mr. Gregerson. Reading the timeline shows it was a long, hard battle that many would have given up on.
laughable (Score:5, Insightful)
Re:laughable (Score:5, Interesting)
The 19 grand was only for the copyright claims. A claim for the other party's forged evidence would require a separate cause of action (lawsuit), such as for malicious prosecution. That is still a possibility, especially now that a judge ruled they engaged in this misconduct. Damages for that claim would presumably be more.
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No you didn't. (Score:5, Funny)
If I told you what I think you were, this post would be modded down as flamebait.
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Mod up, please (Score:5, Insightful)
Whenever the RIAA screams about a geek committing copyright violation and calling it theft, we always go to great lengths to point out that copyright violation is not theft, and it is also not piracy. Those are different things. If they were the same, we wouldn't need a law about copyright violation on the books - it would already be covered.
And while I'm at it, how about if we use this case as an example to use against the RIAA the next time they say a single instance of copyright violation causes millions in damages? $19k sounds about right to me.
Come to think of it, it's too bad this guy couldn't pinch some RIAA lawyers to represent him. With the math they use, he'd be a millionaire.
"Well, we assume about $2000 for the single user licensing rights, and the magazine has a circulation of millions, therefore we seek damages to the tune of two billion dollars."
Dr. Evil pinky is optional at this point.
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Re:Mod up, please (Score:5, Interesting)
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Re:No you didn't. (Score:5, Insightful)
C//
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Re:No you didn't. (Score:5, Insightful)
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Re:No you didn't. (Score:5, Interesting)
In this case the company in question was getting part of their advertising for free.They could have easily chosen a public domain or similarly licensed picture that would have allowed them to do so,but instead chose piracy which cost the artist actual revenue.Most companies want to look different from the crowd,they aren't going to want a picture used in someone else's ad campaign.By using his photo without paying they made it harder to sell the image(by using it in their campaign) and at the same time gave him nothing in compensation. If someone copies an AC/DC song,they suddenly aren't going to lose the ability to sell that song.If they use an AC/DC song in a commercial without paying nobody is going to want that song in THEIR commercial.THAT is the difference.But as always my 02c,YMMV.
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Re:No you didn't. (Score:5, Interesting)
I am absolutely not a copyright abolitionist (though I do think terms should be reduced to something more reasonable -- scale of 20 years or so) -- but to argue in the direction that no art would be created without copyright is fallacious. Less art, certainly... but that's a price some people may be willing to pay.
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Re:No you didn't. (Score:5, Funny)
The below is taken from dictionary.com
piracy
-noun, plural -cies.
1. practice of a pirate; robbery or illegal violence at sea.
2. the unauthorized reproduction or use of a copyrighted book, recording, television program, patented invention, trademarked product, etc.: The record industry is beset with piracy.
3. Also called stream capture. Geology. diversion of the upper part of one stream by the headward growth of another.
I guess I will go with FSM. So far he has not let me down on the topic of pirates and global warming.
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Re:No you didn't. (Score:5, Interesting)
Thus spake Wikipedia [wikipedia.org]:
I've gone along with the party line of "unauthorized copying != piracy" for years, but it looks like we're in the wrong on this one.
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Re:No you didn't. (Score:5, Insightful)
This situation is a little bit different from file sharing as well--the entity which comitted the copyright infringement was engaged in commercial (for profit) distribution without permission or restitution, and when asked to rectify the situation, failed to comply and attempted to bludgeon submission out of the copyright holder with legal intimidation.
I guess around here you're more likely to find people saying "get a goddamn rope" when a multi-million dollar corporation shits on the little guy, and "copyright is not theft" when the little guy shits on a multi-million dollar corporation. There isn't a difference of type between the two, but there is a difference in degree. Also, the extent to which a corporation can shit on you vastly exceeds your ability to ruin their day.
I guess what I'm saying is, the sterotyped geek/Slashdot response isn't de facto hypocritical, there's actually a fairly solid rationale behind it. You're welcome to disagree with some of the premises, and even to discuss them, but to pretend that it's idiotic to support this copyright holder while simultaneously using TPB to copy music is really just attacking straw men.
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Re:No you didn't. (Score:5, Insightful)
Most of the older (six digits or fewer) users of Slashdot are software people, and, as such, we make our reputation and most of us our living from copyrighted software. So we know exactly what copyright means. When you steal my bike, that's theft. When you copy my code against the terms of the license I grant you, that's copyright infringement. I'll come after you if you do either of them, but I know what the difference is.
Copyright infringement is not theft.
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Actually, it was $4,462 (Score:5, Informative)
Sorry to read the details, but that's just the way I am. I don't get much done, but what I do do is quality work...
Another $5,000 for removing the watermark (more than the value of the photo itself), plus another $10,000 in punitive damages, "just because the judge said so".
Well, like Mom always said, it is better to fess up than face the wrath of being caught in a lie.
The cover-up always costs more than the crime, it seems.
And, yes, I did say "do do" on purpose.
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Re:Actually, it was $4,462 (Score:5, Informative)
No punitive damages were awarded in this case, and it is a relatively rare occasion that they are ever awarded.
You read all the details, but perhaps a shade too quickly...
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Re:The copyright holder wins (Score:5, Insightful)
Nevertheless, if the story were in essence reversed and it was about a faceless company suing an unrepresented guy and getting a hefty award of damages for some relatively minor IP infringement, we'd get a bunch of bearded geek hippies rambling on about how "information wants to be free" and "I don't believe in imaginary property" and so on.
Not disagreeing that this is a good outcome, or with the bearded geek hippies per se. Just sayin'.
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Re:Someone used your artistic work without paying (Score:5, Insightful)
Keep in mind also, that the creeps who ripped him off used his work to make a substantial sum of money. Indeed, they pretty much pirated his work in the legal sense of the term (this wasn't for personal use, it was for profit.) If the RIAA were suing someone that took a copyrighted work, put their name on it and sold it as their own, I don't think many people here would complain.
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Reply from author (Score:5, Informative)
I personally make a distinction between non-commercial/educational use and use for commercial gain (the RIAA goes after private individuals who shared music with other private individuals non-commercially). I went after a business who had a budget for photography, but cut me out of the loop to increase their profit margin at my expense. I barely make a living at photography, which is why I was pro-se (I couldn't afford an attorney).
I don't know what the fix is for the current copyright system, but anything that allows content creators to earn a living (without having to sue people) is fine with me.
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Re:so this is a good thing? (Score:5, Informative)
1. The evil corporation started playing hardball first.
2. The evil corporation was infringing the copyright for profit.
3. The evil corporation provably distributed copies of the copyrighted material, and the number of copies could be proven as well.
4. The evil corporation appears to have undertaken actions to attempt to defraud both the copyright holder and the court by giving testimony that a person sold the copyright to the corporation. (The ruling expresses doubt that this person even exists.)
5. The damages claimed were not ridiculous given the extent of the violations, substantially less than the amount available at law.
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Re:so this is a good thing? (Score:5, Insightful)
Patents are far more evil than copyrights
Patents are for a fixed 20-year term, and must be laid out in specificity for the good of the general public upon expiration. Patents are subject to a lengthy examination process to prove that they are novel and non-trivial extensions of the current knowledge.
By contrast, copyright is for the life of the author plus (currently) 70 years. Thanks to our Congress, everything created since 1923 could potentially still be protected. After 80 years of Mickey Mouse, he is STILL not in the public domain. Walt Disney croaked in 1966, and his copyright will last until at least 2024. See this article [findlaw.com] for more details.
Trademarks are designed to protect your interest in your "brand", and to prevent customer confusion. They are inherently a good thing.
I would posit that 1) trademarks are good for companies and the consumer; 2) patents are mostly a good system (with the possible exclusion of business method patents), and 3) that copyright is much more heinous.
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Re:Good! (Score:5, Interesting)
The photographer represented himself, so he didn't pay any lawyers.
The defendants took the money that they saved by not paying the photographer in the first place and spent it on lawyers. Then they got to pay the photographer anyway. I love it when business plans have to take regular people into account.
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Re:$19,462 (Score:5, Insightful)
If he had had a lawyer, he would have:
a) Been awarded a lot more money
b) Stuck the defendants with attorney's fees
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Re:$19,462 (Score:5, Insightful)
Just because the company infringing on his work was an asshat about it doesn't mean the photographer has to be. To do so would make him just like the RIAA we all despise. He got way more money than he lost from the infringement as it is; I'm certain stock photo rights do not amount anywhere close to $19,462. He only got that much because he had to go through all the BS to get what he deserved in the first place, and I'm sure he's more than satisfied with the award given. That "get more money and stick 'em with attorney fees" thing sounds downright malicious to me. Isn't it enough that the company was held liable for their use of the photograph in the first place? Nope, we gotta teach those bastards a lesson.
It wouldn't seem like such a good idea to you folks if you got sued, lost, and had to pay the awarded judgment, attorney's fees for yourself AND for the party suing you. Of course, you aren't an infringer of copyright, are you? Of course you're not.
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Re:You're Very Lucky, and Don't Try That Again (Score:5, Informative)
The judge absolutely did NOT help me, and I didn't have the money for an attorney (they sued me for defamation first, so I had no choice but to litigate).
I may have been lucky, but I prevailed because I worked hard for two years and persisted. I worked much harder that the other side, and knew more about this area of law than their attorneys.
I will agree with you I should issue a disclaimer "Don't try this yourself". There are plenty of pro-se litigants who don't know what they are doing, a few who do, and I suspect that won't change.
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Re:Rock and Hard Place (Score:5, Informative)
I basically agree, but want to point out I also got to keep my grip webpage up (they sought an injunction against it). I shouldn't have had to go through this, but I figured the outcome might deter other bullies who want to silence online critics.
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Re:Now try actually collecting. (Score:5, Interesting)
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