Pixiq

one vote for “go fuck yourself sean”

Wow, my friend!

First of all, after all you did to publicize and come to this guy’s defense I find his third party response from a hack/fake attorney to be extremely poor taste, to say the least. If I were you, I might consider taking down not only his photo, but the whole article defending him and his rights.

By the way, your fair use argument (in my understanding) would be stronger is you modified the image for comment. For example, if you wrote “douche bag” over the image you would be acting as a critic – and I strongly recommend it.

Secondly, how can he suggest it’s a commercial work when his defense to requests by the lady in the photo to delete it was that it was “non-commercial”??? If it is commercial, he needs her permission. Maybe we should contact her, since we know where she works, and let her know that he has admitted to using her image without her permission for commercial purposes.

Sorry if you feel my words are too harsh, I know he’s a fellow photographer, I just think this was a total dick move on his part.

Please keep us informed on whatever you decide.
Josh Saint Jacque´s last blog ..HuffPo: Tea Party is “All About Race”

It his photo.
If he wants it down then I’d comply with a note as to why.
The article belongs to you, keep it and fuck him.

Here, here!
Josh Saint Jacque´s last blog ..HuffPo: Tea Party is “All About Race”

These are two different photograpers. This guy took the photo of the photographer who got banned from the mall. He, himself, was not banned.

It’s 1AM here and I just realized you are not talking about the guy who took the photos, but the guy who took the photo of the guy who took the photos. I’m dizzy.

In any case, my feelings remain: fuck ‘em.
Josh Saint Jacque´s last blog ..HuffPo: Tea Party is “All About Race”

I don’t quite understand why they are attacking you when you are blogging in their defense. The courteous thing would’ve been to politely ask you to take down the photo, not to send a cease and desist letter.

You could stand and fight, but that would just make drama where it’s unnecessary. I would take down the photo. Whether or not the guy who sent you the letter is an attorney is irrelevant.

I’d most definitely find out if he is a legit attorney before making any decisions on your use of the photo.

Fuck Sean, he sounds like a right little cun*. I put 10 bucks on him shagging the smoking girl, they’d make a great couple.
Jody´s last blog ..Massachusetts: 2nd Amendment does not apply to states

It seems like you have more legal experience than the other side for a change, so I say fight it.

Is this one of those DCMA take-down notices? If so, I believe the appropriate response is to file a counter-notice or something. Basically you say, “Tough luck, I think it’s fair use.” That makes it his move, and he has to actually file a lawsuit. It might be more trouble than he’s willing to go through with.

Interesting little firefight here.

Question for the “Fair Use Defense” crowd; if this was an example of fair use, is photojournalism no longer a viable occupation? You all seem to be implying that once shot and published any photograph of anything by anyone that you can somehow relate to an article or blog you want to write is yours for the taking. In extending that argument, I could see a case made for ripping an image from Time and re-using it for an article on the same subject, citing fair use.

This guy’s a working photojournalist, the image was taken and used for news publication. This blog re-used the image without consent to illustrate an article on the same subject. I’m amazed to see how many photographers came down on the side of “It’s Fair Use, don’t take it down”.

His demeanor, frankly, is not relevant. He owns the work, or his paper does depending on his contractual relationship with them.

As another posted noted, are you all free to just wander to the AP library and take whatever work you want and re-use it without permission? If the answer is “No, of course not.” then this is a pretty simple issue. If the answer is “Yes, free means free beer…if it’s published anywhere it’s fair game for me to use as I please as long as I can somehow justify my own use as fair use” then I submit that you who make that argument do not pay your rent with your photography.

Yes, you’re right.

Once I got straight which picture we were talking about and who exactly shot it through my actually awake mind, it made a great deal more sense.
Michaelk42´s last blog ..And onward we trundle

For journalism, it’s mostly only fair use if THE PHOTO ITSELF is the subject of the story, rather than what the photo depicts. So the shot of coffee lady that set off this whole shitstorm is very likely fair use. But a photo not itself being reported on but merely illustrating the story is unlikely to be fair use.

Copyright law isn’t rooted in morality. It was establish as a way to encourage creation by letting creators have a monopoly over intellectual property for a limited time. But there are exceptions such as fair use as Carlos claims.

To your larger point while some law is created because of morality, not all is. Look at public choice theory. And if you you think morality comes into play in the court room you’re more naive they I thought.

But if you’re going to act like a dick just because you legally can, you don’t get to cry that you’re somehow not a dick just because it’s legal.
Michaelk42´s last blog ..And onward we trundle

Wow, going WAY out of your way just to be a dick again, I see. I’m glad you took my advice to consult a lawyer about your crazy personal interpretation of what you call “The Fair Use Doctrine”. Now try taking the advice before you piss off someone with a real lawyer.

Later, Carlos; other people do this exact same blog much better.

Sir,
I read the entire article. I did not find your opponent to write like an attorney so do not feel he in any way tried to be one. I also do not find that you reason like an attorney. He simply wrote with an awareness of his topic. I cannot say he did a poor job either, he made his point, that being, you took his work. Which you did and you try to make a case for it and your trusted lawyer friends told you so. His personality notwithstanding, anyone that creates work should know you don’t take someone elses work. I do not support your position. End of story.

You have a lot of photographers that follow your blog and enjoy it. I think most will agree that you are out of line on this issue. Just because others use your images without permission doesn’t make it right that you can use his image without permission. Maybe he should have handled his request a bit different. But I still would prefer that you honor the legitimate requests of a photographer to not use his image without permission. Failure to do so would really turn off a lot of your photographer fans, me included.

It’s fair use; guy can get bent.

Which is to say…

He can ponder this, which is better:

The photo and his name having more widespread circulation and hence positive publicity for him

OR

The time and expense of filing a lawsuit that’s likely to fail, in another STATE even, and broadcasting to even MORE people that he’s a massive douchebag… and the photo/credit/link staying up despite all that?

I’d say it’s Jordan Silverman’s own foot to shoot if he’s really determined to “Engage Streisand Effect!”
Michaelk42´s last blog ..And onward we trundle

A lawyer would never use the phrase “In all honesty”. Not that all lawyers are dishonest, it’s just that they learn first year not to use absolute phrases like that.

I think in this case the photographer is right, you should have emailed him before using it, he is well within in his rights to complain, though I would have thought a personal email from the photographer would have sorted it.

I am not sure I agree that one does not have a First Amendment right to publish a copyrighted artwork, if the artwork itself is an essential part of fairly and accurately reporting a story of legitimate interest to the public.

I don’t have all the facts and I can’t give a final opinion, and I am not giving you legal advice about this particular situation; I am just offering a general observation.

Of course, he could always register the photo after the fact, but again, the alleged infringement would have occurred prior to registration with the Copyright Office.

That’s dangerously wrong. You can recover statutory damages and fees if you register before infringement —-OR—– register within 3 months of initial publication.

Unless this is a file photo he’s way inside the 3 month window and you have a serious problem. Plus it wouldn’t be that surprising if A) the copyright belonged to the paper via work-for-hire and B) the paper bulk-registers regularly.

You’ve got nothing to gain and a small but real chance they’ll decide to make an example of you and screw you hard. Stick to fights you can win.

Unbelievable! NO respect or gratitude for the effort put into bringing this situation to a larger audience and for getting free promotion of ones work . Freakin Gen-Yers cant stand them. Amateurish nonsense. They’d never last here in NYC thats’ for sure. I know you had a brief moment of legal peace and a good nights sleep but I think you should not comply right away or come to an amicable solution. thanx as always for all your efforts and sacrifices.

I’ve seen “fair use” mentioned several times here. There is no legitimate fair use defense here.

Your interpretation of fair use as it pertains to news reporting is incorrect. The photo used here was not the subject of a news report; it was merely illustrating a news report. If fair use worked that way, no one would ever have to pay the Associated Press a dime.

A legitimate fair use claim would be the use of the original photo of the woman smoking. That photo was news in and of itself.

fight cheese w cheese

My understanding of fair use is similar to Cam’s. Fair use would apply if the photo itself were the subject of the article – say you were discussing its artistic quality, focus, composition, or as Cam said if the photo itself was the news story.. Perhaps fair use would also apply if the subject of the article was the photographer and the picture was used as an example of his work

Then again it depends on your resources. Two years ago the NY Post “borrowed” some photographs from the Flickr photo stream of another member of my photo club. The subject of their story was the model depicted in the image. The photographer sought legal advice but the attorney he consulted did not want to take the case.
NYCPhotorights´s last blog ..Burlington Vermont Forces Photographer to Quit Hobby

Why does it matter if the author of the C&D is a lawyer or not? If his request is valid, it’s valid. If it’s not, it’s not.

Unfortunately, I think Cam is correct here.

I’m with Cam, NYCPhotorights, and BJ: Your use is not fair use, it’s infringement.

The photo is another journalist’s editorial work on the same story. You’re not commenting on the photo in question, you’re just using it for the same purpose as the copyright holder.

The photo of the girl smoking would be fair use in this case, since you’re adding commentary about that work. But the photo of the photographer is just infringement.

I’d say you should take it down and apologize.

The portrait is NOT the subject of your story. The status of the “lawyer” does not make the claim wrong. Ask the photographer for a self portrait you can use.

I think the Californian legal eagle has been smoking lotus. It is consistent with music and movie industry efforts to gut fair use though.

I find it rather ironic that you are considering not taking down the photo because the guy isn’t a lawyer, when you just finished writing all these posts talking about how you acted as your own lawyer in your recent legal cases which you won.

Clearly you think that being a lawyer is not necessary to correctly defend yourself against an injustice, and yet you take the exact opposite tact when you are the one who has wronged someone else.

Secondly, your argument that *you* don’t mind when other people use your works without permission is completely irrelevant. In a society based on individual rights, only his reasonings matter when it comes to his property… otherwise copyright and property rights in general don’t mean anything.

Frankly, I would have been upset too if you had taken photography of mine and distributed it without my permission. The fact that you see yourself as “doing him a favor” is irrelevant.

I really enjoy your reporting on photographer’s rights, so I find it disappointing that you feel like you can trample on them yourself.

I agree with the “you’re wrong” gang here…

One point. Many of the commenters seem to be confused, in that they refer to you ‘doing him a favor’ by taking his side in the dispute.

I just wanted to clarify for the commenters that the photo you’ used in the story was OF Dan Scott, the subject of the story, but BY Jordan Silverman, a professional photographer who took that photo to illustrate someone else’s story about the shopping mall dispute.

So to me, you weren’t doing Jordan any favors when you used the photo to illustrate the story here on PINAC.

It should be Jordan’s call on how he wants to enforce his own copyright.

As far as the usage being “fair use’ because it falls under editorial realm… that would mean newspapers ,blogs or CNN.com would NEVER have to pay for a photo it found on a website.
Wouldn’t they also get the ‘editorial realm’ harbor?

And as someone else pointed out, it makes absolutely no difference whether the letter-writer was or wasn’t a lawyer. Why would it?

I like your blog, but in this case, I think you’re wrong.

Take it down, comply to the letter (which he states will cancel any legal action) as it’s his, but keep it up and write an entire blog sreis about what an ass the guy and his “lawyer” are.

This photographer, and his average image, will cost himself SO MUCH MORE in the photographic/PJ community than he thinks he is missing in income from using this image on your blog.

So much for sticking together, huh! The photographer and the “attorney” are complete and total asshats for going after you on this.

Mike S

Maz recommends taking the photo and editting it in a LOLCat fashion and claiming SATIRE.

At that point, I believe you’re in the clear.

I am not an attorney.

Oh, and then telling Sean choke upon your massive throbbing ****.

How many attorneys do you know that start their letters with “Sean here…”

I’m a photographer who has been following your blog for a while. I think you’re in the wrong here, legally and morally. No doubt they could have been nicer about it, but you don’t have a fair-use justification for using that image the way you are. Merely having a newsworthy subject does not make use of an image fair.

It’s probably not too late to write back to them, apologizing for inadvertently breaching their copyright and asking if you might have permission to use their image in exchange for a linked credit.

I agree, just edit the photo for satire and repost it.
Josh Saint Jacque´s last blog ..HuffPo: Tea Party is “All About Race”

Can’t you photoshop “Giant Douche” under the picture and call it Parody?

Just because the guy was a douche about it doesn’t mean that he’s in the wrong. Even if he is, the world has enough douches in it without you feeling like you need to be one, too.

And BTW, in my non-lawyer recollection, I think in the world of copyright protection, owners need to try and be consistent in their efforts to go after infringement. If nothing else, failing to send a take-down letter to you could demonstrate a lack of concern with his property, and could possibly come back to bite him in other infringement cases.

If you really wanted to have some fun, you could file a complaint with the District Attorney where he lives and complain he’s practicing law without a license.

Nope, failure to go after infringers only hurts you with trademarks, not copyrights.

Simple solution

Get someone from that area to Take A Photo of him (While he’s out in a Public area ) And let you have the rights to use the Photo in your Blog.
Problem solved.

Since they didn’t offer a way for you to keep it I’d write them and ask what they want for you to be able to keep it posted. Who knows, maybe they are willing to be reasonable.

Carlos, you mentioned your header photo being your “brand”. So this is clearly commercial.

While I think the guy is kind of being a douche in the way he’s handling this I also think he’s correct.
Duane Kerzic´s last blog ..2010-03-09 Yahoo Hard At Work

On second thought…

Based on reading comments further down – and being more awake – fair use claim on this one might be a bit shaky. Silverman shot this as an illustration for the paper, OK. He probably DOES have a right to refuse to let you use it.

Why he couldn’t take care of that in an email and why he went straight to the legal nastygram route I don’t know.

But he still needs to ponder whether being right is worth being such an instant dick about it.

(Yeah, I shouldn’t fire these things off right after I wake up. My bad.)
Michaelk42´s last blog ..And onward we trundle

While my instinct is to say “fuck him” since, in my opinion, fair use has the most value and should have the most protections for journalistic use, the fact that the second attorney you talked to feels you were in the wrong shows that this guy probably could drag you into court once he talks to a real attorney.

I’d say take the photo down and replace it with some sort of vicious burn like “photo removed due to douchebag Sean Cooley” or something. I don’t know, it’s lame, but there are better battles to fight and probably better ways to test the bounds of fair use doctrine.

Ask Dan if you can use his selfportrait from Flickr, or maybe he can take a new one.

@michael42

Fair use YOU say? Imagine that! Hahaha

Don’t forget to make a tiny URL of that posting. I would hate for you to miss a chance to be self-rightous.