Time: Law Firm Finds Success Targeting Those Who Post Copyrighted Images

[JimboDaMan]

The article doesn’t delve into the details. However, the article notes that one of the firm’s clients is a newspaper and that the firm pursued claims against people who “lifted” the newspaper’s copyrighted material. I fail to see the problem with that.

I don’t know if that’s the case. Again, the article does not delve into the details. However, I doubt the firm sues everyone who makes use of a copyrighted work. I assume (perhaps incorrectly), the firm does not target people who are using copyrighted works in a way that clearly falls within the “fair use” exception.

OK, some excerpts from the article (I'm blatantly violating techland's copyright, I might add):

Righthaven might not be a household name, but their tactic is simple: Buy out the copyrights for viral content and then sue bloggers and other people who violate copyright by reposting those images. The law firm Google-searches for anyone who may have posted the images and goes after those who violated the rules for the maximum $150,000 and ownership of the site's domain.

If this is correct, your (valid) complaints have little to do with what these guys are doing. The issue is not when they sue on behalf of a content creator, its when they buy content for the purpose of profiting not from the content but from subsequent lawsuits. They are jumping in front of moving cars and suing for the resulting injury. And the article uses the word "anyone", which if accurate means indiscriminately suing bloggers and commercial users alike.

The picture of the TSA officer who is really working hard at his job went viral, Righthaven bought the rights and is suing everyone who posted the picture. This includes people who posted comments on message boards.

Case in point.

[DjTj]

So then I just violated your copyright, correct?

Sue me.

Quoting something that someone says (and attributing it) is typically fair use, and it would not be copyright infringement. So I could sue you, but I would lose. Actually, I can't sue you unless I register my copyright, which costs $35. And it wouldn't be worth it, since I would lose the case.

I was actually thinking of doing the samething, but I was curious who he would sue.

Would he sue you or extremeskins.com (and so I'd guess the Redskins) (or would you do both)?

But if I can sue the Redskins for every time I've been quoted on here that might be worth looking into.

You could sue anyone you want, but it's just not very likely that you would win anything.

[PeterMP]

OK, some excerpts from the article (I'm blatantly violating techland's copyright, I might add):

If this is correct, your (valid) complaints have little to do with what these guys are doing. The issue is not when they sue on behalf of a content creator, its when they buy content for the purpose of profiting not from the content but from subsequent lawsuits. They are jumping in front of moving cars and suing for the resulting injury. And the article uses the word "anyone", which if accurate means indiscriminately suing bloggers and commercial users alike.

But that's a difficult distinction to make a lot of times:

1. I'm the Denver Post (or whatever news paper it was), and I know my copyright is being infringed so I go out and hire a law firm to go after all of those infringements of my copy right. I have to pay the law firm so they make money, and I get whatever I get based on the success/product of the law suits (which might actually be a percentage of the real product based on the agreement I had with the law firm I hired).

2. I sell my rights to a law firm. I walk away with money in my pocket and don't have to worry about the law suits or any risks associated with the law suits failing.

In either case, assuming some of the law suits are successful, two entities get money, the Denver Post and the law firm.

I believe there are other instances where companies will simply take a pay out from a law firm or other company and let them deal with the risks and time.

This doesn't have to really be any different.

[Madison Redskin]

If this is correct, your (valid) complaints have little to do with what these guys are doing. The issue is not when they sue on behalf of a content creator, its when they buy content for the purpose of profiting not from the content but from subsequent lawsuits. They are jumping in front of moving cars and suing for the resulting injury. And the article uses the word "anyone", which if accurate means indiscriminately suing bloggers and commercial users alike.

I disagree that the article clearly identifies who the firm is targeting. I also don't think your analogy holds water. If someone uses others' copyrighted works to help generate income (e.g., by increasing visits to their blog and, by extension, increasing ad revenue), they are breaking the law. In short, they are stealing. So, I am not sure why people are pretending that they are innocent victims.

Also, FYI, not every reference to a copyrighted work constitutes copyright infringement. The Fair Use Doctrine exempts a lot of the stuff people are talking about (e.g., quoting another user's post). I think a lot of people are making assumptions about what the law states and getting worked up about things that simply aren't true. But, I realize that people love to attack the law and lawyers ... regardless of whether those attacks are based on misinformation or bad assumptions.

[JimboDaMan]

But that's a difficult distinction to make a lot of times:

1. I'm the Denver Post (or whatever news paper it was), and I know my copyright is being infringed so I go out and hire a law firm to go after all of those infringements of my copy right. I have to pay the law firm so they make money, and I get whatever I get based on the success/product of the law suits (which might actually be a percentage of the real product based on the agreement I had with the law firm I hired).

2. I sell my rights to a law firm. I walk away with money in my pocket and don't have to worry about the law suits or any risks associated with the law suits failing.

In either case, assuming some of the law suits are successful, two entities get money, the Denver Post and the law firm.

I believe there are other instances where companies will simply take a pay out from a law firm or other company and let them deal with the risks and time.

This doesn't have to really be any different.

Sure. There are times when it's called for, and other times when it's legal but unethical

---------- Post added February-11th-2011 at 12:44 PM ----------

I disagree that the article clearly identifies who the firm is targeting. I also don't think your analogy holds water. If someone uses others' copyrighted works to help generate income (e.g., by increasing visits to their blog and, by extension, increasing ad revenue), they are breaking the law. In short, they are stealing. So, I am not sure why people are pretending that they are innocent victims.

Also, FYI, not every reference to a copyrighted work constitutes copyright infringement. The Fair Use Doctrine exempts a lot of the stuff people are talking about (e.g., quoting another user's post). I think a lot of people are making assumptions about what the law states and getting worked up about things that simply aren't true. But, I realize that people love to attack the law and lawyers ... regardless of whether those attacks are based on misinformation or bad assumptions.

I think you are reading things into this based on your experience and not what it actually says. The article explicitly states they are targeting "everyone who posted the picture. This includes people who posted comments on message boards". It doesn't get much plainer than that. Now you might be right, and maybe they wind up simply asking the message boards to take the material down. But that's not what it says.

[PeterMP]

Quoting something that someone says (and attributing it) is typically fair use, and it would not be copyright infringement. So I could sue you, but I would lose. Actually, I can't sue you unless I register my copyright, which costs $35. And it wouldn't be worth it, since I would lose the case.

You could sue anyone you want, but it's just not very likely that you would win anything.

So what about a law suit over a picture that is properly attributed?

If I posted the picture of the TSA agent with a link back to the Denver Post page that I got it from, am I in trouble?

Does it matter who actually owns the copy right?

Am I in less trouble if I am being sued by the Denver Post as compared to being sued by a company that bought the rights to the picture from the Denver Post if I have attribution to the Denver Post (via a link or otherwise).

[Madison Redskin]

I think you are reading things into this based on your experience and not what it actually says. The article explicitly states they are targeting "everyone who posted the picture. This includes people who posted comments on message boards". It doesn't get much plainer than that. Now you might be right, and maybe they wind up simply asking the message boards to take the material down. But that's not what it says.

In my experience, people often say things they do not mean. For example, I doubt the firm is suing "people who posted comments on message boards." Read literally, that would mean the firm is suing me since: (1) I am a person; (2) I am posting a comment on Extremeskins.com; and (3) Extremeskins.com is a message board. But, even if the author meant, "the firm is suing people who posted comments on message boards that contain the copyrighted material," I find that claim somewhat hard to believe.

---------- Post added February-11th-2011 at 01:39 PM ----------

I did a little research and found a few stories about Righthaven suing bloggers for reposting articles originally written by The Denver Post's employees. So, essentially, the Denver Post hires writers to write stories which will appear on the Denver Post's website and print edition, someone else reposts the stories in their entirety online, the Denver Post still has to pay the writers but doesn't see a cent that the blogger gets for reposting the articles, and a law firm sues the blogger on behalf of the Denver Post.

Does anyone actually have a beef with these ^ kinds of suits?

[DjTj]

So what about a law suit over a picture that is properly attributed?

If I posted the picture of the TSA agent with a link back to the Denver Post page that I got it from, am I in trouble?

It's not really the attribution but the purpose of the copying. When you quote one of my posts, you are doing it to show that DjTj said that, to respond to it. You're not really trying to just copy my ideas or statements, and nobody is going to start exclusively reading your quotes of my posts instead of my original posts. Quoting my posts on this forum is like a reporter quoting a press release. It is restating a fact for the purpose of further discussion and explanation. That's fair use.

This is different from going to denverpost.com, copying an entire story, and posting it here. Even if you provide a link in that case, you are basically taking the place of their web site. It is something more like stealing and less like furthering a discussion. Now you could imagine a situation like that on this message board, for example, if someone started taking Atlanta Skins Fan's wild quarterback theories and claiming them as his own. If I started an account called Atl@nta Skins Fan and started copying and pasting his entire posts, he might actually have grounds for a lawsuit.

Copying the photo is more like stealing. You are taking traffic away from their website. A thumbnail might be okay.

Does it matter who actually owns the copy right?

Am I in less trouble if I am being sued by the Denver Post as compared to being sued by a company that bought the rights to the picture from the Denver Post if I have attribution to the Denver Post (via a link or otherwise).

It doesn't matter who owns it. Like any property, intellectual property can be bought and sold with the full rights transferring to a new owner.

[JimboDaMan]

I did a little research and found a few stories about Righthaven suing bloggers for reposting articles originally written by The Denver Post's employees. So, essentially, the Denver Post hires writers to write stories which will appear on the Denver Post's website and print edition, someone else reposts the stories in their entirety online, the Denver Post still has to pay the writers but doesn't see a cent that the blogger gets for reposting the articles, and a law firm sues the blogger on behalf of the Denver Post.

Does anyone actually have a beef with these ^ kinds of suits?

I don't see anybody here objecting to anything like that.

[Madison Redskin]

I don't see anybody here objecting to anything like that.

For the record, if the firm is indeed suing everyone who posts a copyrighted picture online, regardless of the context, they're probably pursuing BS claims. I just have a hard time believing that's what they're actually doing, notwithstanding the fact that a reasonable person might come to that conclusion based on the article.

[karmacop]

I've been checking this thread out for the last few days, and may I just say that I am mightily impressed with the tone of discourse, and the apparently genuine attempt of all involved to get at the TRUTH of the issue instead of trying to bend the truth to conform to a previously held world view. I've learned more about copyright law in this thread than I had any right to expect I would.

Usually articles like this end up as another in a long line of zealous attorney-bashing. So refreshing that it hasn't done so here. That's so boring and predictable.

Kudos to all involved, and DjTj in particular.

[Fergasun]

I had a long post, on this subject which got lost, and this thread caught my attention again.

Doing an analysis of the 4-factors, I would think that yes; posting a copyrighted image would be a copyright violation. However, in the case of the TSA agent, I think the hardest part would be the image owner proving that the image had a "modicum of creativity". Someone snapped a picture of a TSA agent doing his job, searching someone at the airport. Now, in order to copyright something it must be "artistic expression". I think that part of "artistic expression" is something like "artistic control". I'm annoyed when I go to some place to get portraits taken that the person doing the portrait claims copyright (well actually, I'm certain there's some agreement which says that the person who takes the picture owns the copyright... after thinking it through I'm wondering if that is valid). Let's say I take my family to Sears or wherever, we all decide how to dress, my wife does her make-up, I direct the photographer to give us more or less lighting, to take the picture from about 20 feet back; how is that photographer doing anything "creative" other than taking my picture when I ask him? Similarly, how is a wedding photographer doing anything creative when they simply take pictures of setups, dresses, etc. that the bride has already chosen? I suppose that's a closer call (maybe they can argue lighting, etc... but any of the guests with a camera could snap the same pictures).

This is different than someone taking pictures of subjects, hiring/asking people to pose for them. Clearly things movies and music of gobs and gobs of creativity behind them. On the other end of this spectrum, we have someone taking a picture of a TSA agent. They have no control over the pose; they did not hire the subjects, how is that image copyrightable? It's simply a picture taking of something that's pretty mundane every-day life at an airport. It's somewhat similar to me at how C-SPAN claims copyright over their videos of the Congress chambers... they have no control over what is said, how the people dress, etc... they have limited control over the camera's but Congress tells them where they can and can't put camera's; and what they can focus on. As a threshold question in order to copyright something, it must have a modicum of creativity.

[JimboDaMan]

I had a long post, on this subject which got lost, and this thread caught my attention again.

Doing an analysis of the 4-factors, I would think that yes; posting a copyrighted image would be a copyright violation. However, in the case of the TSA agent, I think the hardest part would be the image owner proving that the image had a "modicum of creativity". Someone snapped a picture of a TSA agent doing his job, searching someone at the airport. Now, in order to copyright something it must be "artistic expression". I think that part of "artistic expression" is something like "artistic control". I'm annoyed when I go to some place to get portraits taken that the person doing the portrait claims copyright (well actually, I'm certain there's some agreement which says that the person who takes the picture owns the copyright... after thinking it through I'm wondering if that is valid). Let's say I take my family to Sears or wherever, we all decide how to dress, my wife does her make-up, I direct the photographer to give us more or less lighting, to take the picture from about 20 feet back; how is that photographer doing anything "creative" other than taking my picture when I ask him? Similarly, how is a wedding photographer doing anything creative when they simply take pictures of setups, dresses, etc. that the bride has already chosen? I suppose that's a closer call (maybe they can argue lighting, etc... but any of the guests with a camera could snap the same pictures).

This is different than someone taking pictures of subjects, hiring/asking people to pose for them. Clearly things movies and music of gobs and gobs of creativity behind them. On the other end of this spectrum, we have someone taking a picture of a TSA agent. They have no control over the pose; they did not hire the subjects, how is that image copyrightable? It's simply a picture taking of something that's pretty mundane every-day life at an airport. It's somewhat similar to me at how C-SPAN claims copyright over their videos of the Congress chambers... they have no control over what is said, how the people dress, etc... they have limited control over the camera's but Congress tells them where they can and can't put camera's; and what they can focus on. As a threshold question in order to copyright something, it must have a modicum of creativity.

Here I have to disagree. I'm sure there were hundreds of shots taken of TSA agents. This one picture, however, seemed to perfectly encapsule the issues involved. The mere fact that it went viral, became so iconic of the problem, argues for creativity (or dumb luck, but the results are the same). Even more so the wedding photographer; a good one will approach the event as a story and tell the tale in images. Some of the pictures are mundane, but many are posed and many are the result of a creative eye following themes. If Uncle George with a decent camera could produce the same results nobody would ever hire out for the service.

[Fergasun]

Here I have to disagree. I'm sure there were hundreds of shots taken of TSA agents. This one picture, however, seemed to perfectly encapsule the issues involved. The mere fact that it went viral, became so iconic of the problem, argues for creativity (or dumb luck, but the results are the same). Even more so the wedding photographer; a good one will approach the event as a story and tell the tale in images. Some of the pictures are mundane, but many are posed and many are the result of a creative eye following themes. If Uncle George with a decent camera could produce the same results nobody would ever hire out for the service.

But the problem in my eyes is that he has no creative control over the wedding. Maybe if the photographer was given some input into the ceremony... who chooses the dress, where the bride/groom are standing, where other people are standing/sitting. The photographer is hired to record the *visual facts* of your wedding. This photographer was documenting the *visual facts* of a TSA patdown. 99% of the artistic input in the pictures will be based on choices of the bride and groom such as venue, clothes, makeup, venue set-up, cake, etc.

Let's say I give a speech and someone records it. Do they own the copyright to the speech?

[JimboDaMan]

But the problem in my eyes is that he has no creative control over the wedding. Maybe if the photographer was given some input into the ceremony... who chooses the dress, where the bride/groom are standing, where other people are standing/sitting. The photographer is hired to record the *visual facts* of your wedding. This photographer was documenting the *visual facts* of a TSA patdown. 99% of the artistic input in the pictures will be based on choices of the bride and groom such as venue, clothes, makeup, venue set-up, cake, etc.

Let's say I give a speech and someone records it. Do they own the copyright to the speech?

Of course not. They own the copyright to the recording (assuming the speech was given with the expectation that someone could record it). Not that I have any real knowledge of the subject, but simply recording the speech would not let them "own" the speech.

[Fergasun]

How can they copyright the recording? It seems to me the recording would be uncopyrightable, as whoever records it would be doing no original, artistic, expression.

[Burgold]

But the problem in my eyes is that he has no creative control over the wedding. Maybe if the photographer was given some input into the ceremony... who chooses the dress, where the bride/groom are standing, where other people are standing/sitting. The photographer is hired to record the *visual facts* of your wedding. This photographer was documenting the *visual facts* of a TSA patdown. 99% of the artistic input in the pictures will be based on choices of the bride and groom such as venue, clothes, makeup, venue set-up, cake, etc.

Let's say I give a speech and someone records it. Do they own the copyright to the speech?

I think that's a bit different. If you put a dozen photographers at the wedding each will choose a slightly different moment to click the shutter, a slightly different angle to compose their picture, consider the use of light differently (natural versus artificial). So, each shot is unique in its way... even the spontaneous ones have an artistic element to it. Angle, light, balance, zoom, apperture are all different.

[PCS]

PTI,but as I understand it,(according to a rather vast amount of research done over the years),when it comes to photographs,copyright exists as soon as the shutter clicks. Hence why the law firm in the op had to buy the rights before suing. This of course,depends on whether the photographer,writer,ect. is an independent or working for someone,(to put it simply),and the contracts there in.

[Burgold]

PTI,but as I understand it,(according to a rather vast amount of research done over the years),when it comes to photographs,copyright exists as soon as the shutter clicks. Hence why the law firm in the op had to buy the rights before suing.

Yup, technically the same is true of writing, painting, and recording. Still, it's a good idea to do it legally because then you have "proof" that it was you.

[PCS]

Yup, technically the same is true of writing, painting, and recording. Still, it's a good idea to do it legally because then you have "proof" that it was you.

Yep. Registering the work is a very good idea. It also can allow the writer,photographer,ect. to sue for copyright infringement,(can't sue without the registration as I understand it),and to possibly collect more than just actual damages.

[Fergasun]

I think that's a bit different. If you put a dozen photographers at the wedding each will choose a slightly different moment to click the shutter, a slightly different angle to compose their picture, consider the use of light differently (natural versus artificial). So, each shot is unique in its way... even the spontaneous ones have an artistic element to it. Angle, light, balance, zoom, apperture are all different.

I dunno. It doesn't seem like there's much case-law on this because, again for the most part wedding photographers always seem to say "we own the copyright". But like I said, 99% of the shot will be because of the bride and groom's choices. The light, balance, angle, zoom, those are all little things compared to everything else in my mind.

I guess on the flip side, someone writing an article about my wedding would be able to copyright the article, so I guess I see why the picture is copyrightable (someone taking a photo would be able to copyright the photo). But, I guess if someone wanted to "reverse engineer" the photo, they could... that is to say someone could fire up photoshop and spend about an hour building a new picture with the "facts" of the current picture. I guess no one has argued my take on this in court so we'll never know.

[Burgold]

I think that's more a "work for hire" issue. If I'm commissioned to make a painting or write a story, the person who paid me to create it owns it unless we very specifically state otherwise in the contract. So, in the case of a wedding photographer, they are contracted by the couple or their family and they own the work. It's the same as a scientist working for a corporation who invents a machine. The rights to that patent usually belong to the business and not the inventor.

On the other hand, if at that wedding Uncle Joe takes a picture... or a random guest that photo's rights might actually belong to the photographer.

[CrabR]

these same people Sued Matt Drudge for hotlinking the TSA photo. They are asking for 150,000 and the domain name

I recently had a DMCA complaint against me for HOTLINKING a photo. I was asked to remove photo link which i did. The photo was never on my server. It was a link with img tags. So the phoyto never left the original server

In other words the photo of the TSA agent posted in this thread is illegal by Righthaven standards

http://arstechnica.com/tech-policy/news/2010/12/copyright-troll-righthaven-sues-for-control-of-drudge-report-domain.ars

http://www.lasvegassun.com/news/2011/feb/08/new-round-righthaven-suits-over-tsa-pat-down-photo/

They use Google image search to find their victims

http://www.google.com/images?hl=en&client=opera&hs=I9m&rls=en&channel=suggest&q=tsa%20pat%20down&um=1&ie=UTF-8&source=og&sa=N&tab=wi

[Fergasun]

I've thought about this case. I'm convinced the picture cannot by law by copyrighted. It goes back to Burrow-Giles Lithographic Company vs. Sarony (111 US 53, 1884). The picture must come from the own original conception of the author. A product of the plaintiff's intellectual invention. I'll contend that the picture is not the product of any intellectual work, rather the lighting, poses of the subjects, clothing of the subject.

[The 12th Commandment]

What do you have to do to make using an image (linked back to it's original site the way we link to an image here) legal?