Photo copyright

[clubeagle]

Interesting that this topic popped up. I just received a letter requesting the removal of a copyright photo from postimages that was made almost 3 years ago.

The photo in question clearly states that it is copyrighted with all rights reserved.

Makes me think we need to be more diligent about photos if the source is in question.

In this instance I was simply asked to remove the offending photo and replace with "This content has been removed due to copyright infringement.".

I think that removing the photo is the cleanest solution.

 

[waterh20]

Great thougths here. What value is the image adding to the thread? Inquiring if the poster has legal rights to posting it is a good idea to look into but you also have to protect yourself to remove images that don't comply with copyright to avoid headaches

 

[zappaDPJ]

What value is the image adding to the thread?

That depends a lot on the nature of the forum but it's something I generally encourage on my forums. For a photography forum it's obviously essential. For many others an image can contribute a lot to a discussion e.g. if you are reporting a forum bug or want to show off your latest tattoo.

If someone posts what looks like a stock image I do encourage my staff to reverse search the image.

 

[waterh20]

That depends a lot on the nature of the forum but it's something I generally encourage on my forums. For a photography forum it's obviously essential. For many others an image can contribute a lot to a discussion e.g. if you are reporting a forum bug or want to show off your latest tattoo.

If someone posts what looks like a stock image I do encourage my staff to reverse search the image.

Oh I agree completely with you, it was more-so a rhetorical question to self-reflect on the image in question. If the user is easily reached it should be easy to see if the picture is within their usage rights. If the website is a photo site, it would be best to remove it if requested since most photographers wouldn't want their work copied and pasted without their permission if they're going through the trouble to send a notice to remove. There are some terms for fair usage as well potentially but you have to determine the value and precedence you want to set .

 

[Zelda]

I am not a lawyer or any member associated with any legal agency, court, or governing body. My comment is, at best, an unprofessional personal opinion from a presumed anonymous screen name on an internet message board (forum). I presume you should not take what I or anyone else here says seriously.

That said, though I could be wrong, my only suggestion, which was once passed to me, which again could be inaccurate, would be it is best to operate a community website as an incorporated entity, as opposed to a lone individual. But again, that is only something that was once told to me, and I cannot comment on whether or not that would be creditable advice or not- especially since no one here knows where you are and what laws may or may not apply to you. If you believe it could be something worth looking into (as I once did), you may wish to first check with an actual creditable and authentic legal expert, which I am not. I am just spitting out random thoughts since the OP made the topic, and I find the theoretical subject matter entertaining and amusing.

 

[interista]

I was thinking about the content posted by the users... if a user insult for example a public figure, shouldn’t the user be responsible?
I think the same should apply for a photo

 

[zappaDPJ]

I was thinking about the content posted by the users... if a user insult for example a public figure, shouldn’t the user be responsible?
I think the same should apply for a photo

If you look at attempts to legislate in this area you'll read a lot about the provider and very little or nothing about the user.

Look at it this way. If I posted something hateful here how are you going to prove it was me? An IP is not proof, the only proof you might get is if you examined my PC. The practicality of doing that every time someone posted something hateful or media subject to copyright is beyond absurd. On the other hand the provider, TAZ, Facebook, Instagram etc are all easy targets by comparison and have a vested interest to self-regulate.

I'd also argue that anyone who provides a platform for others has a duty of care, be it a forum or otherwise.

 

[interista]

If you look at attempts to legislate in this area you'll read a lot about the provider and very little or nothing about the user.

Look at it this way. If I posted something hateful here how are you going to prove it was me? An IP is not proof, the only proof you might get is if you examined my PC. The practicality of doing that every time someone posted something hateful or media subject to copyright is beyond absurd. On the other hand the provider, TAZ, Facebook, Instagram etc are all easy targets by comparison and have a vested interest to self-regulate.

I'd also argue that anyone who provides a platform for others has a duty of care, be it a forum or otherwise.

Well I believe I am fully responsible for what I post on social media, whether or not I am behind a nickname.
Common sense would be to ask the provider (social media) to delete the post. The owner should not be responsible for what others post

 

[zappaDPJ]

Well I believe I am fully responsible for what I post on social media, whether or not I am behind a nickname.

I feel the same. Unfortunately there will always be others that don't.

 

[Uncrowned]

Going after the user is simply impractical for a company.

First you have a huge range of identity problems as it would require every website publicly display real names, IP address, mailing addresses, phone numbers, etc for every single registered user or even guest that can post content AND the website be able to verify that information is correct before letting them post for it to even work. Would you like to have a mailer sent to your house to verify your address to post cat memes on a forum? Probably not.

Second the user may not even have the ability to remove the content once the claim is made to them and that is a legal nightmare if you receive a DCMA for content you cannot remove under your own ability. And the overall system is much smoother if the website owner just uses internal systems to remove the content per the notice than have discussions from someone who lost their password 5 years ago about how their old account needs to delete the avatar.

And third is just the practical side of things, making users responsible has never worked and likely never will. Not only does Marvel not want to track down ABCuser who used a VPN and fake information to post a funny meme but even if all of those things were to fall into place and the information were to be correct, all it does it open a awful world were people abuse the system to upload items like child porn while websites turn the other way as "it is the user's job to moderate". DCMA notices get websites to moderate their own content, e.g. large sites like YouTube using bots for music and forums having herds for moderators to vent content as companies scrolling page by page on YouTube to find their music would never work and going "well, I guess YouTube would just be a haven of copyrighted material" is not helping anyone.

The best practices are to gather information, preferably work directly with a legal expert (but the internet has tons of info), and be preemptive about DMCA. Have a safe harbor account so companies can easily contact you, have a DCMA policy on your site that is public and also has contact info/forms, have systems in place to handle communication and actions well before they need to happen. Websites generally just have to a process in place and remove illegal content once aware that it is illegally posted to stay well out of trouble. You don't see YouTube or Reddit getting sued as their processes are simple and their actions are quick enough that the issuing companies are happy and don't want to spend money to go to court over nonsense. It is the websites that have no way to receive the notices or simply take 3 months to answer that end up in trouble.

At least that is my viewpoint on this topic, but I am no expert. You could always just move to a lawless nation, setup your own server and say F*** the DMCA, but honestly is that worth it?

 

[Pete]

On the other hand, I’m waiting to see if Jim Sterling - the Jimquisition - will see their entire channel taken down because 5 reviews (across 5 years) were flagged as “copyright infringement” by the game producer (as a method of silencing negative press) despite reviews being fair use material. (Even reviews of the kind Sterling does are legally protected as fair use... not that YouTube handles this very well.)

 

[NYCGuy76]

I was thinking about the content posted by the users... if a user insult for example a public figure, shouldn’t the user be responsible?
I think the same should apply for a photo

If I understand you correctly you're saying that if a user insults a public figure online he/she should be held responsible? If that's what you're saying it depends. If the user is calling that public figure out online for something they did which was wrong and there's full proof of that then no. Once you become a public figure you put yourself in the spotlight and should expect criticism. Now if that user posted something that's not true in regards to that public figure then yes that user should be held accountable. It's not right to do that even if the person is unpopular with the public for various reasons.

 

[interista]

So if on my IG page I post a news about a politician and a user come and insult the politician badly - who is responsible for that content? Should be who posted the comment and not the page owner in my opinion

 

[MartyF]

Just to resurrect this thread and give some actual numbers that might make jaws drop - also to solicit any advice, based upon experience as to how best to proceed.

The forum I administer was recently sent an email from a lawyer in Germany (we're in a different EU country) with a claim that a photo of his client's (a professional photographer) has been used without permission. His initial demand was naturally for the photo to be removed. However, he is also claiming damages for the use of the photo and legal fees for pursuing the matter as per below:

Damages			963.73 EUR​
Documentation			95.00 EUR​
Legal fees			627.50 EUR​
Grand total net			1,686.23 EUR​
Sales tax DE 19.00%			320.38 EUR​
Grand total			2,006.61 EUR ​

Truth be known, at first I thought it was a scam, but it appears not. I suspect the lawyer is one who works for photoclaim.com and who is one of a few they contract out any legal work they do on behalf of their photographer clients.

As I did initially believe it to be a scam demand for money, other than removing the image in question, I ignored the financial demand, just replied to the effect the image was no longer there.

Now, however, this morning's latest is a threat to take me (as the individual to whom the domain name is registered) to court in Germany for non-payment of the above demanded fees - they gave me a week to pay.

In this morning's nice little email was the threat that if I didn't pay the fees above immediately then he will file a claim in the court in Berlin and I'll be liable for another €2,950 EUR. In addition to that there'll be all the international legal expenses that will be incurred as they try to impose the german court's judgement in my home country. WTF .

Whilst I have no issues with the concept of copyright, I do have an issue with the heavy handedness and threatening extortion emails issued along with the fact there's absolutely no way, unless I too lived in Berlin, I could possibly defend the action. I do feel somewhat a victim here, surely a simple request to point out the issue and ask for the image to be removed would suffice?

Has anyone else had any similar issues with photoclaim.com lawyers?

 

[zappaDPJ]

Has anyone else had any similar issues with photoclaim.com lawyers?

I've not personally had any experience with them but there are loads of sites that have. They are considered to be 'copyright trolls', using reverse image technology to gather clients with the intention of starting a legal process against domain holders. They send out email threats exactly as described by the truckload.

The majority of recipients ignore the threats but some do pay up or reach a settlement. If no payment is received they have been known to proceed with a court action but I can't comment on how likely this might be. I believe the main lawyer/attorney involved is Robert Fechner and if you Google the name I'm sure you'll find a lot more information than I can give.

 

[MartyF]

I've not personally had any experience with them but there are loads of sites that have. They are considered to be 'copyright trolls', using reverse image technology to gather clients with the intention of starting a legal process against domain holders. They send out email threats exactly as described by the truckload.

The majority of recipients ignore the threats but some do pay up or reach a settlement. If no payment is received they have been known to proceed with a court action but I can't comment on how likely this might be. I believe the main lawyer/attorney involved is Robert Fechner and if you Google the name I'm sure you'll find a lot more information than I can give.

He’s the fella ? thanks. I’ll do some digging.

 

[mysiteguy]

These people are trolling you, hoping to scare you into sending money. While email may be a proper route for a DMCA request, it is not the route for a real legal threat. I ignore any legal threat that is not sent via the mail - every legitimate legal action I've dealt with in 25 years of business has always been in writing (at least initially).

 

[zappaDPJ]

In the UK a document commencing proceedings can only be served by personal service, first class post or by leaving it at a specified place e.g. a solicitor's office. I'm not qualified to give legal advice but it's my understanding that service by email is only allowed if the recipient has given the sender permission.

 

[Zelda]

These people are trolling you, hoping to scare you into sending money. While email may be a proper route for a DMCA request, it is not the route for a real legal threat. I ignore any legal threat that is not sent via the mail - every legitimate legal action I've dealt with in 25 years of business has always been in writing (at least initially).

This.

Send no reply. Reply only means they have reached a real person to threaten. Remove the photo (which you have) and call it a day. Log whatever e-mail they send, but do not reply. If they're serious, which is possibly unlikely, they'll file and have actual documentation sent to you. Otherwise, it is a scare tactic used to get you to send money and possibly admit fault. In the past, I received tons of such e-mails (even though we do not allow attachments, only hotlinking). I remove the hotlink post and don't reply. I think in 20+ years, only 1 person has ever been serious.

 

[MartyF]

Just an update. Offending photo was removed straight away. Hr. Fechner continues to demand ever increasing amounts. On discussion with a lawyer (and a german one at that) it transpires these attempts to extort money are frowned upon by the court, HOWEVER, technically & legally, if the photo was displayed without the photographer's permission then the photographer does have the right to compensation for damages. In order to obtain such compensation the photographer would have to file a claim in the court and would have to substantiate the damages i.e. loss of earnings incurred by the infringement. To claim as per the MFM tables as Hr Fechner is claiming the photographer would have to prove that is his usual mode of licensing, otherwise his damages will be in line with his usual mode of licensing.

This is a civil action, not a criminal action. If the photographer, or his lawyer, file the claim in the german district court then the court will issue the claim to the defendant, so yes, he needs to know exactly who the defendant is, not just an email address but a genuine, actual, legal entity or individual. Upon receipt of the claim the defendant can admit liability and offer mitigation, or deny liability, and may issue a counterclaim (such as for the time involved in dealing with the format and excessiveness of the claim).

In my situation I was advised to offer a nominal sum for the use of the photo and then to have nothing more to do with him until the claim arrives from the german court. This then puts Fechner on the back foot as if he decides to go ahead and issue the claim at the massive level he is currently claiming, his bully boy tactics will be put on full display before the court along with the fact the defendant has made a reasonable offer for the infringement. If the court subsequently find the offer by the infringer is indeed reasonable and is in line with that which the photographer would normally charge then Fechner gets nothing other than bad publicity in front of the courts, he will not be able to claim any of his legal expenses (or the court costs he incurred in filing the claim) as he refused a perfectly reasonable offer and it was not necessary to even start court proceedings. I advised that chances are he will just go away - although there is no guarantee of this.