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Geek Wins Copyright Lawsuit Against Corporation 616

Posted by kdawson
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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Geek Wins Copyright Lawsuit Against Corporation

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  • Well done! (Score:5, Insightful)

    by seanadams.com (463190) * on Monday February 25, 2008 @12:09AM (#22541602) Homepage
    Justice was served, and you got the shysters to pony up 11 times what they would have paid if they'd just purchased the photos in the first place.

    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.
    • by EmbeddedJanitor (597831) on Monday February 25, 2008 @12:32AM (#22541794)
      Sometimes I struggle understanding double standards on /.

      So ripping off a stock photo is Bad and this guy did good by pushing for his rights and winning.

      But pirating copyright music via p2p etc is OK because nobody got hurt right.

      ENOCOMPUTE

      • by seanadams.com (463190) * on Monday February 25, 2008 @12:40AM (#22541872) Homepage
        Sometimes I struggle understanding double standards on /.

        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.
        • by moderatorrater (1095745) on Monday February 25, 2008 @12:56AM (#22542020)

          There is more than one person posting here.
          I don't know about you, but I'm just a CmdrTaco shell account that posts random shit from Wikipedia [wikipedia.org]. I thought everyone else was, too, and we were all just trying to make it look like we're on a successful site so that CmdrTaco can earn lots and lots of money from an evil corporate overlord while being able to DOS people and not get blamed/prosecuted.
      • by Gideon Fubar (833343) on Monday February 25, 2008 @12:50AM (#22541960) Journal
        It's all about the perception of who is on the other end, and how they go about enforcing things. Big established guy squashing little guy vs. little guy sticking up for himself against a bigger guy.

        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.
  • Good! (Score:3, Insightful)

    by thatskinnyguy (1129515) on Monday February 25, 2008 @12:13AM (#22541636)
    Finally a little man stood up to a corporation and won! And on Guy Fox day nonetheless. I'm just wondering where all the money for attorneys came from.
    • Re:Good! (Score:5, Interesting)

      by Fat Casper (260409) on Monday February 25, 2008 @12:37AM (#22541838) Homepage
      Guy Fawkes, you philistine!

      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.
  • Picture (Score:5, Funny)

    by cdrdude (904978) on Monday February 25, 2008 @12:13AM (#22541644) Journal
    Could you post which picture it was? Preferably with any watermarks removed, and in the highest resolution you have, just for...informational purposes ;-)
  • $19,462 (Score:3, Insightful)

    by palegray.net (1195047) <philip.paradisNO@SPAMpalegray.net> on Monday February 25, 2008 @12:14AM (#22541648) Homepage Journal
    The old saying goes: "A man who represents himself in court has a fool for a client."

    You are a shining example of the fact that there is an exception to every rule. Good job!!!
    • Re:$19,462 (Score:5, Insightful)

      by smack.addict (116174) on Monday February 25, 2008 @12:40AM (#22541866)
      Sorry, no, he was a fool.

      If he had had a lawyer, he would have:

      a) Been awarded a lot more money
      b) Stuck the defendants with attorney's fees
      • Re:$19,462 (Score:4, Funny)

        by The Analog Kid (565327) on Monday February 25, 2008 @01:19AM (#22542224)
        b) Stuck the defendants with attorney's fees

        He tried sticking the defendant with attorney fees, but it was denied on the bases that he was representing himself.
        • Re: (Score:3, Interesting)

          by ckedge (192996)
          Is his time not worth anything? I mean, sure, it's probably not worth $300/hr, but *if* he'd accurately tracked how much of his time was spent on it, couldn't he have gotten *something* for all the personal time he had to throw into it? Has that ever been done?
          • Re: (Score:3, Informative)

            by Anonymous Coward
            No, his time isn't worth anything extra. His award of damages already covers that time spent.

            Attorney's fees are for attorneys. They reimburse for out-of-pocket expenses, not for opportunity cost. That, again, is part of the award of damages. He chose to pursue this, calculating that his award would make it worth his time. He chose not to use attorneys, calculating that he'd fare better without those bills.

            He was right on the former, but it turns out he was wrong on the latter. But he never bore the r
      • Re:$19,462 (Score:5, Insightful)

        by sixteenbitsamurai (1070810) on Monday February 25, 2008 @02:38AM (#22542748)
        That "you can get more money with a lawyer" thing is exactly why the court systems are bogged up with frivolous lawsuits in the first place. It's the new American mentality and I can't stand it. This guy actually had a legitimate reason to sue, actually had the system work for him and give him his due, and all anyone can say is "He's an idiot for not having a lawyer to get him more money."

        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.

  • by QuantumG (50515) <qg@biodome.org> on Monday February 25, 2008 @12:14AM (#22541650) Homepage Journal
    umm, what a great big surprise. Anyone would think the copyright system was designed to grossly bias the copyright owner or something.

    • Re: (Score:3, Informative)

      by palegray.net (1195047)
      Quoting the summary:

      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.

      The story here is that the defendant tried to pull some hard-core legalistic intimidation bullshit in response to the original lawsuit, and the plaintiff still stood his ground and pushed forward.

      • by caitsith01 (606117) on Monday February 25, 2008 @12:23AM (#22541734) Journal

        The story here is that the defendant tried to pull some hard-core legalistic intimidation bullshit in response to the original lawsuit, and the plaintiff still stood his ground and pushed forward.

        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'.
  • by nacturation (646836) <nacturationNO@SPAMgmail.com> on Monday February 25, 2008 @12:15AM (#22541660) Journal
    The PDF states: "Plaintiff could have sought the profits Defendants derived from the infringement as damages but chose not to do so. Although Plaintiff included a request for this type of damage award in his First Amended Complaint [Docket No. 76], he abandoned his claim for profits in his Second Amended Complaint and did not pursue this theory of relief at trial. Accordingly, Plaintiff's damages are limited to actual damages--that is, the fair market value of Defendants' uses of the Skyline photo."

    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.
     
    • by B3ryllium (571199) on Monday February 25, 2008 @12:59AM (#22542046) Homepage
      Now that you've won spectacularly, is it possible to pursue those damages?

      A victory is a victory. No need to be extreme.

      (If only corporations and governments would follow that mentality ...)
  • Slow News Day? (Score:4, Insightful)

    by logicnazi (169418) <logicnazi@gm a i l . com> on Monday February 25, 2008 @12:18AM (#22541692) Homepage
    This seems like a pretty boring and routine infringement case. I'm glad the photographer won his case but why is it on slashdot?

    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?
    • Re:Slow News Day? (Score:4, Insightful)

      by syousef (465911) on Monday February 25, 2008 @12:22AM (#22541726) Journal
      This seems like a pretty boring and routine infringement case. I'm glad the photographer won his case but why is it on slashdot?

      Because he wants to gloat, and because slashdot loves a david geek vs goliath megacorp fairytale ending.

      - Most people who represent themselves end up in a mess because they don't know or understand procedure or the relevant case law.
      - Most of the time, large companies get away with this sort of behaviour.
  • by Animats (122034) on Monday February 25, 2008 @12:28AM (#22541768) Homepage

    The defendants tried a counterclaim for defamation. The court commented:
    Similarly, the statement that Defendants were suspected of fraud and forgery was a true statement of fact reflecting Plaintiff's belief that Defendants fabricated Zubitskiy and forged his signature on the 3/19/04 Agreement, which was also fraudulently notarized. Accordingly, Plaintiff did not engage in deceptive trade practices in violation of Minn. Stat. 325D.44,
    ...
    Defendants' counterclaims against Plaintiff are DISMISSED WITH PREJUDICE.

    Reading the decision, it's clear what the judge thought of the defendants. They tried forging a notarized document. They couldn't produce the person whom they claimed took the picture. From then on, it was all downhill for the defendants.

  • by Bruce Perens (3872) * <bruce@perens.com> on Monday February 25, 2008 @12:29AM (#22541774) Homepage Journal
    You are extremely lucky that you had a judge who wanted to help you. It's an old truism that anyone who represents himself in court has a fool for a client, and you were a mega big - but lucky - fool this time. You had some sort of false belief that Justice - something that is not often seen in a court room - would prevail, and you probably still do. The worst part about this is that you are probably going to convince some other poor slob to try this, and he'll lose his home, his car, his bank accounts, and his freedom.

    I'm not a lawyer. I know when to use one.

    Bruce

    • by Christoph (17845) <chris@cgstock.com> on Monday February 25, 2008 @01:23AM (#22542254) Homepage Journal
      Reply from the author:

      You are extremely lucky that you had a judge who wanted to help you...you were a mega big - but lucky - fool this time

      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.

      ...you are probably going to convince some other poor slob to try this...

      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.

  • Watermark removed? (Score:3, Interesting)

    by Kludge (13653) on Monday February 25, 2008 @01:02AM (#22542070)
    It says in the blog that the cheaters removed the watermark.
    Is it really worth the effort to do that? I could go out and take some decent photos for less effort than it would take me to get those watermarks off. Maybe that's just because I know more about photography than unscrupulous image processing.
  • Photographers and IP (Score:5, Interesting)

    by a_nonamiss (743253) on Monday February 25, 2008 @01:05AM (#22542092)
    Now, let me start by saying that what the "large faceless corporation" did in this case was clearly wrong. No matter how you feel about an artists' work and their ability to charge what they want for it, telling them to piss off and using their work anyway, then lying to a judge about it is not only wrong but stupid.

    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?
    • by Eskarel (565631) on Monday February 25, 2008 @02:45AM (#22542800)
      To answer your question, the difference is who holds the copyright.

      One school of thought is that if you hire a photographer to take photos of something that it's an instance of work for hire, which means that the copyright, and therefor the negatives, belong to you(as the person doing the hiring). In this instance you can take the negatives and get as many copies of them made in whatever fashion you like, and do anything you like with them, including sell them to a company for advertising purposes.

      This is a relatively sensible view, and you'll find that when most photographers get other photographers to do work for them that this is the kind of deal they insist on getting.

      The counter argument you get from photographers(and the idea which many of them base their business model around) is that because what they do is "art", that it cannot be work for hire, and therefor they own the copyright and the only way for you to get reproductions of the work is from them. They tend to charge a rather ridiculous fee for the reproductions(though usually a lower one for the actual photography), and the really sneaky ones won't charge you anything at all since then it's definitely not work for hire.

      As a business model it doesn't really work anymore, because most people hold the idea that photographs they've paid someone to take of them and their kids should belong to them, and therefor have absolutely no problems copying them without the consent of the theoretical copy right holder. Add to that the idea of better scanners and it's pretty much a non viable startup which only works because most people are too cheap to pay up front for a photographer who is willing to price themsslves at a rate which makes work for hire profitable.

      Regardless however this argument doesn't apply to the case in question as the plaintiff most definitely was not involved in work for hire as he didn't take the photograph at the defendent's request.

    • by Clovert Agent (87154) on Monday February 25, 2008 @03:55AM (#22543146)

      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.

      Working in print media, I can safely tell you that I've never worked with photographers like this. All commissioned photography is taken under contracts that include all the necessary copyright permissions (we usually but exclusively use "all rights" contracts because we publish online and in print, and online is global) and always, without exception, result in us getting the processed image files in suitable digital form.

      Not RAW files though, which you might think you want but you probably don't really. Part of what I expect a photographer to do for me is correct the RAW image and give me a high res JPG or TIFF. He knows better than my production dept what colour correction needs to be done - they can tweak it later but the initial work on the RAW file is part of what I'm paying the photographer for.

      So maybe you need to look up some freelance photographers in your area who work with print media and understand what's what. Expect to pay a lot more than you might think - a good photographer, complete with preproduction work and all rights handed over, is probably orders of magnitude more expensive than the family studio on the corner whose business is the low-margin, high volume opposite.

  • by Thornae (53316) on Monday February 25, 2008 @01:23AM (#22542252)
    From the web page of the /. hero of the hour:
    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)

    by JustNiz (692889) on Monday February 25, 2008 @01:33AM (#22542330)
    19 grand for a corporation that blatantly forged documents? Its a laughingly tiny fine for a corp. They basically got let off even though they committed what sounds like perjury in court. Its disgusting.
    • Re:laughable (Score:5, Interesting)

      by Christoph (17845) <chris@cgstock.com> on Monday February 25, 2008 @02:06AM (#22542548) Homepage Journal

      19 grand for a corporation that blatantly forged documents? Its a laughingly tiny fine for a corp. They basically got let off even though they committed what sounds like perjury in court. Its disgusting.

      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.

  • by l2718 (514756) on Monday February 25, 2008 @01:42AM (#22542380)
    The ruling says that removing a "digital watermark" triggers some DMCA sanctions: the guy embedded a digital watermark saying the image was copyrighted by him, using a particular watermarking tool. The posted images lacked the watermark. The court ruled that this meant they "removed copyright control information". I'm all for punishing copyright infringers, but note that in general there is no way to tell if a watermark has been embedded in an image or not. So, this metes out extra punishment for copyright infringement based on the rights holder embedding an undetectable booby-trap in the copyrighted work. I'm not sure I'm comfortable with that.
  • by Chas (5144) on Monday February 25, 2008 @01:53AM (#22542446) Homepage Journal
    Having successfully sued people and companies, the easy part is winning the court case.

    Actually making them pony up the cash is the hard part.
    • by QuasiEvil (74356) on Monday February 25, 2008 @02:21AM (#22542662)
      Back when I used to work at a repo company in college (did IT stuff, but would occasionally go along on collection trips just for fun), I learned a little secret about collecting judgments against companies of any reasonable size. Short version: If they don't pay, get a court order that gives you the right to go in and sieze property equal to the value of what they owe. Call then sheriff, have him or one of his officers accompany to serve the order. Once appropriately served, head straight for the telecom gear. I guarantee as you're pulling out the PBX, somebody will show up with a check for the amount owed - it's damn hard to do any business without a phone switch!
  • by mosb1000 (710161) <mosb1000@mac.com> on Monday February 25, 2008 @06:04AM (#22543698)
    People are always saying that you can buy a court victory. While it's true that you can try to intimidate someone into giving up, once you get to court your case had better have some substance or you will lose no matter how many lawyers you hire.

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