Pixiq

Hal,

You are as wrong as can possibly be. Before you say another word, spend the day researching what 'fair use' and 'public domain' actually entails. While you are at it read the Berne Convention Treaty and the US Copyright Act. Then for recent stories, look up 'Cook Source Magazine' and 'Righthaven copyright troll'.
If Carlos Miller did not have the publishing permission from the copyright holder, the newspaper, then he can absolutely be sued for copyright infringement. If makes no difference if the article is about him or not. 'Fair use' would allow allow quotes of a couple of lines, certainly not the whole thing and especially not a scan of the newspaper article and placement. If he did not have permission, then he took a couple of steps forward for photographer rights by filining the suit, and a huge step back for violating the copyright of another entity. His posting a scan of the article actually surprises me.

Hal, you are a case where a little knowledge can be quite dangerous. You quoted something, but don't seem to at all understand it.

In this case Mr. Miller took a photo of a copyrighted work and posted it on his site. Whether the article was about him or night is entirely irrelevant in terms of copyright and the ability to republish, it just creates a sense of entitlement. Not only are the words of the article copyrighted, but even the very layout and design of the newspaper are copyrighted. Do none of you remember basic English writing classes and proper citations, such as the MLA guide? The right way to go about it would be to provide a link to the newspaper article, and if they didn't publish it online as was this case, to provide a proper citation. Here is how it would look under the MLA guide [http://www.easybib.com/reference/guide/mla/newspaper];

e.g. [Diana Moskovitz. "Photographer Files Lawsuit Over Video" Miami Herald, Miami, March 29, 2011] (also adding section and page number).

It seems you use a 'security through obscurity' defense in that it isn't a big deal if it is not noticed. It isn't illegal as long as you don't get caught, right? As I suggested, look up Righthaven and their cases for recent examplse of this very scenario. They sue people for posting even a minute amount of copyrighted text at which time the defense has to make a 'fair use' claim, but will already have incurred massive legal expenses. Yes they are a copyright troll, but they are backed up by a fair amount of law and also depend on most people just settling. If Carlos quoted a few lines, that would generally be construed as fair use, but he does not have the right to post the entire article, and especially doesn't have the right to post a photo of the article. Now the fact that Mr. Miller is (assumably) paid to write these article for pixiq.com and generate traffic (and thus ad sales), then that definitely leaves unclean hands. Even though the article is about him and his, IMHO, justified suit and actions, he does not have the right to use the copyrighted words and design of another publisher to make content for his viewership.
It is a bit hypocritical to say you stand up for photographer's rights and then in the same article turn around and violate the copyright of another entity just because it is convenient to you.

Hal, you also do not understand the differences between actual damage claims, punitive damages, and statutory damages. Actual damages may not be more than a few dozen or hundred dollars in ad revenue, but statutory damages are quite significant. The newspaper would have every legal right to send pixiq.com a cease and desist letter for removal of the image and then can sue Carlos for copyright infringement. Such suits can only be heard in federal court and he'd probably have to settle instead of actually going to trial. It is a small chance the newspaper would do this, they have beeter things to do, but if they sold rights to companies like Righthaven, then he would have something to fear. "Men are not hung for stealing horses but that horses may not be stolen" - Lord Halifax So you're saying that if the damage is low, then why the big deal? If that is true, then I can just go into the convenience store and walk out with a 50 cent candy bar and not pay and I won't get in trouble? After all the damage is really low, right? I don't support what Righthaven does, but they doing well at what they do. Here is a site put togehter that follows their actions; http://www.righthavenlawsuits.com/

Reporting of the news does not make anything public domain. The copyright goes to the person that created the content. If I take a picture of the presidential inauguration, a very obvious open and public event, are you suggesting that a newspaper or person has the right to use my photo without paying me or getting my permission? Are you suggesting that is fair use? If I shoot a wedding, are you suggesting that the bride can make as many prints and copies as she wants because it would be fair use of a picture of her? If the news wants to use my material, then they better darn well pay. If I want to use their material, then I need to get permission or pay them. What if I sold a license to the newspaper to publish an article I

Recently one of my photos for a client was used on the front page of an advertising circular. I wanted to use it for my portfolio, so I had to ask the publisher permission to copy it and place it on my site. If I added it to my physical portfolio album, I wouldn't need permission since I'd be using the actual circular, not a copy. Since I wanted to scan it (make a copy/reproduce) and place it on my site as an example of my work, than I had to get permission. The photo they used (with permission from my client that had promotional rights to my work) was mine, but the layout and design was theirs.
I suggest you go read some blogs my photoattorney.com among others.

It wouldn't be an interesting case at all. It is a clear cut case of copyright infringement. Are you suggesting if you take a photo of a work that then you have the right to publish that on your own? Like it or not, you are no longer a personal blogger. If you are paid by pixiq or you get advertising revenue, then you are pretty much a commercial entity. You cannot legally use the content of others for your own promotional use. It is pretty simple. Since this is a commercial site, and you are using it for promotional purposes and to provide content, then sans written permission, you are violating the copyright of the Miami Herald. You know the argument well and state it a dozen times in almost every video of your encounters you post. I/you have the right to take a picture of someone (Brad Pitt or Joe smith) in a public space. I/you can publish that photo for editorial use. We can even sell that picture to that person, someone else, or another publication. We cannot, however, use that photo for promotional use. I cannot imply that Brad Pitt or Joe Smith endorse a product or service by putting their photo next to something or adding copy.

Using your argument of taking the picture, are you suggesting that if I went into a movie theater with a high quality camera and recorded what I saw I could then republish it as I pleased? Just because you take a photo you are not conferred the rights to republish.
There seems to be a lot of confusion among people that call themselves photographers. I would have thought you would have done a lot more research. I cannot take a picture of some art piece in front of a building and publish it in my own book. I own the copyright to the photo of course, but I don't own copyright to the art work. If my picture is of the building and the art piece is an insubstantial portion of that photo, then I can publish it. If I take a picture of you in your office and you have some Peter Max or Ansel Admas prints hanging up, then I can publish, the art work is not the main subject. But I have no right to take a picture of these art pieces if they are the sole subject and then republish it.
You are not allowed, for example, to publish a current photo of the Eiffel Tower at night. While the tower itself is in the public domain, the company that installed lighting for it at night has claimed (and had upheld) copyright due to their light show design. Absurd? Absolutely, but it is still accurate and enforceable. Your argument concerning who took the photo of the work or processed it is entirely moot. You own the photograph of course, but you do not own the right to republish it. It is very much like when people copy my work with the watermark from my site and post it on their own album. they suggest that because the watermark is there that can still use it. Ummm, no, that just lets people know from where it was stolen in the first place.

Here is the fact of the matter, unless you had permission from the publisher, then your taking a photo of the article and then publishing it is in direct violation of their copyright. They have every legal right to then go after you for actual or statutory damages if they so chose. I would think as a photographer and advocate for photographer's rights that you would be much more aware of the law, especially since you verbally claim to know it so often.

You'd lose almost instantly as soon as it went to court (well, as instantly as any court ever comes close to, anyway).

Yes, you own the copy of the newspaper that you bought, but you didn't purchase a license to copy that newspaper. Photographing the article is copying it.

If someone were to take some of your own work as a photographer, and run it through a photographic quality photocopier, they would not transfer your copyright ownership to themselves; The copy they make would in itself be a violation. The fact you did the same thing using a hand-held camera instead of a fixed mount camera (say, of the sort found inside a photocopier) is irrelevant.

I imagine that if someone copied your work, you would be outraged that someone would do that, you'd complain about your rights being violated, and if the person who did it made money off it (either indirectly through ad revenue or by directly selling it as their own work) you'd probably be quite angry. How is it any different for you to do that to someone else?

Carlos, please stop saying things about copyright. It's not going well at all.

Exactly. Having a copyright to something does not mean you have publishing rights. Otherwise Mr. Miller would be arguing that I can go to any art gallery, take a photo of someone's work, and then sell it in my own book or go into a movie theater, record the show, and then sell or publish my own copies. That is absurd. It is established, he has the copyright of the photo of the article he took, but he does NOT have the right to publish the photo.
Unfortunately, owning and operating a camera and putting oneself out as a professional does not necessarily they know what they are doing. Since you already have an attorney on the case, I suggest you ask them if the have such experience. I've had attorneys even not know the difference between copyright and registered copyright and what each entailed. At one time an attorney (practicing real estate law) suggested that unless I registered my copyright with the US Copyright Office then they could do whatever they wanted with the pictures. After the phone conversation ended where I asserted my rights and hinted a couple of cases and statues for him to research, I got a call back 5 hours later with a new settlement offer.

I'm not just talking out of my appendage here, I've done considerable research and read through quite a few cases and informed articles. @Miller and @Hal, do you have anything to back up your assertions other than assumptions and guess work? I take it neither of you have ever taken a real law class or read a case or even the statues involved?

No loss? Their intellectual property was stolen. No gain? Carlos has ads on his blog. That's revenue. Not making money on a copyright violation has no impact whatsoever on whether a court will find that a violation occurred, all it affects is the damages imposed upon the violator. Lacking cash liquidity to pay damages does not negate the damages, it simply results in liens and garnishment of wages, among other things. Someone who is poor is usually worse off than someone rich enough to pay the damages out of pocket; The rich guy doesn't end up paying a large percentage of his paycheck to someone else for the rest of his life.

The legal department of a corporation is employed to pursue just this sort of violation. The corporation doesn't hire lawyers after they detect a violation, they already have lawyers and they are already paying them before the violation occurs.

A lawsuit against Carlos won't be filed in small claims court, I can guarantee that.

@Hal There is absolutely clear negative impact for the newspaper. They get revenue from advertising sales, and subscriptions, and individual sales. If Carlos had linked to an online version, then readers would go there to read the article if they were interested. Then the newspaper would get revenue from ads and have a chance to entice the consumer to subscribe or read more articles with ads. Pretty simple. Because Carlos copied the article and republished it, the newspaper gets absolutely nothing out of it. Can you measure specifically what is lost? No, but it is hard to dispute that point.

It isn't up to Carlos to decide to post it, but he violated their copyright if he posted it without permission. I really doubt he did that since the typical thing to do would be to add a notation of "republished/reprinted with permission by ..." At what value do you require before something becomes wrong? Where does it go from "it isn't a big deal" to "that is wrong and it is illegal?" Can I steal a 50 cent candy bar and get away with it or does it have to be a tank of gas that is stolen from a station before you say it is wrong? You're aruing, it seem, that stealing a little bit or using the work of someone else without compensation or permission is ok. It isn't. Carlos definitely gained. He gets paid, assumably, my pixiq to write articles and generate content to bring traffic to the site. The site makes money by showing ads. Simple and common business model. Carlos used the content created by another entity for his site by which he gets direct benefit. I don't understand how these concepts don't make sense to you.

Well you seem to have quite a few varied life experiences. I've certainly never had to go through divorce or bankruptcy and learn about those nuances, so I guess you win there. I concede to your experience in those area. Congratulations. The point was that copyright claims may only be heard in federal court. Yes I know of cases where the case was done in small claims court and no one ever brought it up, but it would be improper jurisdiction. Federal court is also much more stringent on that often necessities a lawyer just to not screw up on minutia such as paperwork or procedure.

I don't think this is making something out of nothing. As photographers I thought this audience would be quite keen and aware of copyright and what that entails. Would you not vehemently complain if you found someone took the content/picture of another photographer and used it without paying or permission? Sure people get by with it ever second and most do not push the matter since it may not be worth their time. In the discussion above I pointed out a very recent company that does that exact thing.

"...seen any newspapers print anything on the first page, "do not copy and republish any of this newspaper" I actually looked at a copy of the Miami Herald today at my local library. They do indeed state that in just shorter language. It said "© 2011 Miami Herald" at the very bottom of the first page.

@peaceablecableguy I think you'r attempt of an 'ah ha, gottcha smart guy' attempt failed. As for Righthaven, I agree they are copyright trolls that don't recognize 'fair use' argument. However I've already seen those links and the case that is mentioned as being 'dismissed', but at the end it pointed out Nelso had already settled. Not much of a win, and not at all an overall win since it involved a single case. Reusing the material in its entirety is clear cut infringement. That one case doesn't even make up .5% of the cases they've filed already, much less the settlements that were made. Carlos would be justified in quoting one or two lines, but unless he had permission, he absolutely violated the copyright of the newspaper. That was the point that was being made. Rarely does a judge accept the excuse of "I only broke the law a little bit and no one was harmed." Try that excuse when you get cited for even very slowly rolling through a stop sign, not wearing a seat belt when just driving to the local store around the corner, or getting cited for going only 5mph over the limit.

I completely support him in the case he filed and hope he wins, but I think it was wrong of him to support photographer and content creator rights and then turn around and violate the rights of newspaper. They even have procedure on getting permission to reprint; http://www.miamiherald.com/reprints/

By chance today I was at Photoshop World and another Pixiq contributor, Jack Reznicki from 'The Copyright Zone' was giving a talk about 'the war on photography'. He specifically brought up an example of taking a picture of a copyrighted work and then using it was infringement.

"...a ruling that complete republication by some nonprofits falls under the scope of fair use."

"Last Friday, a judge in the Nevada federal district court patiently explained why fair use disposes of Righthaven's copyright claim arising from the republication of an entire news article by a nonprofit organization."

"The judge noted that the work was being used by Righthaven "exclusively for lawsuits", and the lawsuits were having a "chilling effect" on fair uses."

"Though his site was commercial in nature, Nelson had copied only a part of the work, had used only the factual bit (as opposed to some commentary later on), and had done little to affect the market for the work. In addition, he linked to the Review Journal."

(Italicizing of differentiating aspects mine.)

Too bad neither of the two cases in those three links have to do with an original content producer themselves (The Miami Herald in this case) vs. another for-profit publisher (Carlos Miller/Pixiq.)

It isn't interesting at all. You should learn about the legal concept called 'qualified immunity'. Police, prosecutors, etc are immune from being sued individually for carrying out their duties. In order for them to lose that immunity, you have to prove they went well beyond their scope and authority. While many of use recognize an abuse of authority and those officers as being confrontational, it isn't to the point where a lawsuit would get past summary judgment.
In the case filed, non-qualifed people without any authority were using their position to not only lie and make up laws/rules that did not exist, but also violate the law by theft and assault. pretty big difference.