Should I Be Upset About This?

[JacaRanda]

OP said the team isn't profiting by it. I still would ask how they came to use the image.
Did QB figure it's a picture of him and gave them permission ? (I know, I know)
Or did someone go to OP website and knowingly used it without permission?
Yup, I understand it's a business to a lot of you. And yup, have a lawyer on retainer for necessary things. But, Jeepers creepers, what ever happen to civility?
Today, hubby went out and got to the parking lot 10 minutes before opening. Guy was NOT going to open that gate til exactly 7 a.m.
I am the business owner opening my door when I see someone waiting.
People say, 'what has the world become..'

Was the gate keeper the owner? Could he have lost his job for opening the gate early? What kind of car was your hubby driving? What happened the last time the gate was opened early? The world has become what it always has I think it's always been; a bunch of individuals that decide how they want to be, based on a lot or reasons. Civility has never been world wide as far as I can tell. Would be nice.

Been watching too many episodes of Forensic Files lately, along with local and national and international news. I got to stop that.

I get what you are saying. So let's say the guy can NOT open the gate or he gets fired. That's where I am the type to walk over and start chatting and explaining I can't let him in. Then talk about his kayak sticking out of the car....just say in' .

The real reason might be they probably got sued for opening early.

I hear you. Ticks me off that somebody can't say thank you or smile when you hold a door open or an elevator for them.
I'm pretty chatty and sociable so I would have done what you mentioned.

 

[vfotog]

But the truth is none of that is really that central to the issue at hand, the question for me at least is did the team knowingly violate this copyright, or not. And in this case, I seriously doubt it.

If this team had gone to the OP's website and appropriated the image that would be one thing, but the OP made it pretty clear that the team members were using these images on their facebook pages with his permission. So it seems only logical that the QB probably provided the new team with the picture without realizing there might be copyright issues.

So I still suggest that a polite email simply making the team aware that there are copyright issues is the best course of action. The rest is all smoke as far as I'm concerned. As usual, YMMV.

Whether they knew it was infringement or not doesn't change the fact that it is infringement. Bottom line is that they SHOULD know it is infringement. Just like running a business, every single person that has a website should understand the rules and ramifications of their content. A professional company or organization has even less of an excuse; legal advisers are a part of doing business. They also have someone who is doing their site, graphics, etc. Surprisingly, I don't think anyone has mentioned that not only did they misappropriate the image, they altered it without permission. New team name, new colors... they would need the OP's permission to do that. That makes the infringement even more egregious. Of course, this case might be uncollectable anyway; it looks like the team became homeless and is inactive.

 

[robbins.photo]

But the truth is none of that is really that central to the issue at hand, the question for me at least is did the team knowingly violate this copyright, or not. And in this case, I seriously doubt it.

If this team had gone to the OP's website and appropriated the image that would be one thing, but the OP made it pretty clear that the team members were using these images on their facebook pages with his permission. So it seems only logical that the QB probably provided the new team with the picture without realizing there might be copyright issues.

So I still suggest that a polite email simply making the team aware that there are copyright issues is the best course of action. The rest is all smoke as far as I'm concerned. As usual, YMMV.

Whether they knew it was infringement or not doesn't change the fact that it is infringement. Bottom line is that they SHOULD know it is infringement. Just like running a business, every single person that has a website should understand the rules and ramifications of their content. A professional company or organization has even less of an excuse; legal advisers are a part of doing business. They also have someone who is doing their site, graphics, etc. Surprisingly, I don't think anyone has mentioned that not only did they misappropriate the image, they altered it without permission. New team name, new colors... they would need the OP's permission to do that. That makes the infringement even more egregious. Of course, this case might be uncollectable anyway; it looks like the team became homeless and is inactive.

Well by all means, hire a lawyer and sue the crap out of them. Just sue everybody for pretty much everything. That will certainly make the world a much better place.

Guess you sort of have to wonder though, is it even really about protecting your copyright at that point, or just fulfilling some vindictive need for revenge at an imagined slight?

I mean if you could accomplish the same end result of protecting your copyright with a simple email, then a law suit is unnecessary.

So I guess that would be a good time to ask yourself, why? You might want to ask yourself that question.



Sent from my 306SH using Tapatalk

 

[tirediron]

Is the OP 100% certain it is infringement? Depending on how things were worded in his agreement with the original client, and how their assets changed hands, they could in fact be using it quite legally (the gawd-awful editing is another matter entirely). Bankruptcy is a hugely complicated and convoluted process, and it is possible that given the right circumstances, this image is actually being used legally.

That said, I doubt it. It is also possible that the new entity thinks they're using it legally (again, I doubt if they gave it a thought, but it is possible!). While I am absolutely in favor of always protecting your work, there are some considerations before you engage a lawyer and rush in with both barrels: Are they using it legally? Assuming they're not, what is the harm done to you? What is a reasonable expectation for the amount of damages you could receive?

 

[JacaRanda]

Asking a lawyer to draw up and forward the letter does not mean someone is being sued. Sometimes using a lawyer prevents lawsuits, and can certainly be better use of ones time.

 

[robbins.photo]

Is the OP 100% certain it is infringement? Depending on how things were worded in his agreement with the original client, and how their assets changed hands, they could in fact be using it quite legally (the gawd-awful editing is another matter entirely). Bankruptcy is a hugely complicated and convoluted process, and it is possible that given the right circumstances, this image is actually being used legally.

That said, I doubt it. It is also possible that the new entity thinks they're using it legally (again, I doubt if they gave it a thought, but it is possible!). While I am absolutely in favor of always protecting your work, there are some considerations before you engage a lawyer and rush in with both barrels: Are they using it legally? Assuming they're not, what is the harm done to you? What is a reasonable expectation for the amount of damages you could receive?

Well, just off the top of my head mind you, first you need to establish whether the OP's agreement with the original team was verbal, or written. Then you'd have to find out exactly what all was stipulated in the bankruptcy and how that may have affected said agreement. Then you'd need to find out what the agreement was with the players in regards to the image usage, and was that established by the OP or communicated to them by the original team, and you'll need to know exactly what was communicated in this regard. Then you'd need to establish how the new team got the image, under what circumstances, and what they were told about the source of the original image.

Then of course there is the original question of whether or not these images are even registered. Plus you have the extra added fun of trying to prove damages, since the OP already agreed to let the players use the images on social media any claim of lost income on his part is out, so all you'd have left would be to prove the company profited from this image, and by how much.

Yup.. have to admit, that all sounds so much better and more reasonable than taking a few minutes to shoot them an email and say, hey, guys, that image is copyrighted. If you'd like to keep using it, I would appreciate XY&Z in return. If not please stop using it.

Ya, not even sure what I was thinking there., I must be off my meds or something. ROTFL

 

[tirediron]

Well, just off the top of my head mind you, first you need to establish whether the OP's agreement with the original team was verbal, or written., Then you'd have to find out exactly what all was stipulated in the bankruptcy and how that may have affected said agreement. Then you'd need to find out what the agreement was with the players in regards to the image usage, and was that established by the OP or communicated to them by the original team, and you'll need to know exactly what was communicated in this regard Then you'd need to establish how the new team got the image, under what circumstances, and what they were told about the source of the original image.

Then of course there is the original question of whether or not these images are even registered. Plus you have the extra added fun of trying to prove damages, since the OP already agreed to let the players use the images on social media any claim of lost income on his part is out, so all you'd have left would be to prove the company profited from this image, and by how much.

Which goes to support my contention that things (especially when the legal system is involved) are not necessarily as straight forward as we think!

Yup.. have to admit, that all sounds so much better and more reasonable than taking a few minutes to shoot them an email and say, hey, guys, that image is copyrighted. If you'd like to keep using it, /I would appreciate XY&Z in return. If not please stop using it.

Ya, not even sure what I was thinking there., I must be off my meds or something. ROTFL

And thus my point: He may have absolutely no case under law, because it is possible ('though I agree not likely) that the images are being used perfectly legally under the terms of the original agreement.

 

[robbins.photo]

Which goes to support my contention that things (especially when the legal system is involved) are not necessarily as straight forward as we think!

Nope. Whenever the law becomes an issue, things get sticky fast.

And thus my point: He may have absolutely no case under law, because it is possible ('though I agree not likely) that the images are being used perfectly legally under the terms of the original agreement.

My guess is he probably does hold the copyright, and that even after a long and ugly, expensive lawsuit he could probably force them to stop using the image. My guess is also that any damages claim is out the window, trying to prove the company knowingly used a copyrighted image and profited from it would be a serious mountain to climb to say the least.

So it still makes sense to me to forgo all that and just shoot them an email, my guess is you'd get the exact same end result probably in less than 24 hours once they realized there was a problem with the image. Heck you might even do better that way assuming they were willing to spend a few bucks to buy the rights, etc. Worst case scenario they tell you to go pound sand, and then you can always get a lawyer.

But sadly that method would not punish the evil doers and nerdowells properly I guess. So it's off to the home depot to stock up on torches and pitchforks I guess.

 

[The_Traveler]

I consider myself lucky to have read this thread.
As it happens, this evening I found out that my daughter had given a picture I had taken of my grandson to be used by the traveling soccer team he plays for in Fairfax, VA without my permission.
Usually I would have been pleased (it was a good picture) but, now that I have come to realize how I need to protect my copyright......
So, I called my other daughter who is an attorney in NYC but she hasn't returned my call yet.
I am hoping they'll do it on a contingency basis but...

 

[Buckster]

Plus you have the extra added fun of trying to prove damages, since the OP already agreed to let the players use the images on social media any claim of lost income on his part is out, so all you'd have left would be to prove the company profited from this image, and by how much.

That's a common internet myth cooked up by folks who just don't know any better (yet).

As a copyright owner, I can put the image anywhere I want - on every telephone pole around the planet, if I want to do it and have the means. I can put it all over every social media site, forum, Flickr, on billboards and bus benches for people to view it without asking a dime. I can also grant any individual or corporation a license to post it anywhere they want in exactly the same way, without them making a single dime off it in any way as well. It can be plastered all over the world by the two of us, for free, and it makes not one bit of difference from a legal standpoint.

Even with all that, anyone who uses it WITHOUT my license agreement with them is violating my copyright. It doesn't matter if I and the licensee I granted plaster it everywhere without asking or getting a dime from anyone, and the infringer don't make a dime with it either.

The copyright holder doesn't have to prove anything other than that their image was used without their permission, violating their copyright.

Now, I hate to pull the "I know from experience" card yet again, since I know that scrapes a nerve, but, I happen to know this from experience. Not plastered around the world, mind you, but same basic concept. To wit: I have collected on infringements for images that I have never made a dime off of any other way. I never sold those images to anyone, never licensed them for even the smallest amount of money. Their only life up until the infringement was found was that I'd posted them in a lot of places to show them and / or to get feedback.

It didn't matter.

Anyone interested in these issues really should start with the basics of actual copyright law. A good starting point, full of real, relevant information and frank, flat-out, no BS dispelling of so many internet myths that we tend to read from armchair attorneys, is presented in these two videos from B&H, from a recognized team of established photographer and established copyright attorney:

 

[robbins.photo]

I consider myself lucky to have read this thread.
As it happens, this evening I found out that my daughter had given a picture I had taken of my grandson to be used by the traveling soccer team he plays for in Fairfax, VA without my permission.
Usually I would have been pleased (it was a good picture) but, now that I have come to realize how I need to protect my copyright......
So, I called my other daughter who is an attorney in NYC but she hasn't returned my call yet.
I am hoping they'll do it on a contingency basis but...

Lew... that's just silly. You can't just go and have your daughter sue your other daughter.

You need to make sure to name the grandson in the lawsuit too. Don't let him weasel out of it using all those excuses like he wasn't an expert in copyright law, or that he's only 12, or whatever. Nope, time for that kid to learn a valuable life lesson here.

Thanks by the way, I was laughing so hard reading this I got pop in my nose. Lol

 

[Buckster]

It's like the last four pages never even existed. smh

 

[robbins.photo]

That's a common internet myth cooked up by folks who just don't know any better (yet)]

Nothing mythical about it.

17 U.S. Code § 504 - Remedies for infringement: Damages and profits

15 U.S.C. 1127).
Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2585; Pub. L. 100–568, § 10(b), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 105–80, § 12(a)(13), Nov. 13, 1997, 111 Stat. 1535; Pub. L. 105–298, title II, § 204, Oct. 27, 1998, 112 Stat. 2833; Pub. L. 106–160, § 2, Dec. 9, 1999, 113 Stat. 1774; Pub. L. 108–482, title II, § 203, Dec. 23, 2004, 118 Stat. 3916; Pub. L. 111–295, § 6(f)(2), Dec. 9, 2010, 124 Stat. 3181.)
Historical and Revision Notes
house report no. 94–1476
In General.
A cornerstone of the remedies sections and of the bill as a whole is section 504, the provision dealing with recovery of actual damages, profits, and statutory damages. The two basic aims of this section are reciprocal and correlative: (1) to give the courts specific unambiguous directions concerning monetary awards, thus avoiding the confusion and uncertainty that have marked the present law on the subject, and, at the same time, (2) to provide the courts with reasonable latitude to adjust recovery to the circumstances of the case, thus avoiding some of the artificial or overly technical awards resulting from the language of the existing statute.


Subsection (a) lays the groundwork for the more detailed provisions of the section by establishing the liability of a copyright infringer for either “the copyright owner’s actual damages and any additional profits of the infringer,” or statutory damages. Recovery of actual damages and profits under section 504(b) or of statutory damages under section 504(c) is alternative and for the copyright owner to elect; as under the present law, the plaintiff in an infringement suit is not obliged to submit proof of damages and profits and may choose to rely on the provision for minimum statutory damages. However, there is nothing in section 504 to prevent a court from taking account of evidence concerning actual damages and profits in making an award of statutory damages within the range set out in subsection (c).

Actual Damages and Profits.
In allowing the plaintiff to recover “the actual damages suffered by him or her as a result of the infringement,” plus any of the infringer’s profits “that are attributable to the infringement and are not taken into account in computing the actual damages,” section 504(b) recognizes the different purposes served by awards of damages and profits. Damages are awarded to compensate the copyright owner for losses from the infringement, and profits are awarded to prevent the infringer from unfairly benefiting from a wrongful act. Where the defendant’s profits are nothing more than a measure of the damages suffered by the copyright owner, it would be inappropriate to award damages and profits cumulatively, since in effect they amount to the same thing. However, in cases where the copyright owner has suffered damages not reflected in the infringer’s profits, or where there have been profits attributable to the copyrighted work but not used as a measure of damages, subsection (b) authorizes the award of both.


The language of the subsection makes clear that only those profits “attributable to the infringement” are recoverable; where some of the defendant’s profits result from the infringement and other profits are caused by different factors, it will be necessary for the court to make an apportionment. However, the burden of proof is on the defendant in these cases; in establishing profits the plaintiff need prove only “the infringer’s gross revenue,” and the defendant must prove not only “his or her deductible expenses” but also “the element of profit attributable to factors other than the copyrighted work.”

Statutory Damages.
Subsection (c) of section 504 makes clear that the plaintiff’s election to recover statutory damages may take place at any time during the trial before the court has rendered its final judgment. The remainder of clause (1) of the subsection represents a statement of the general rates applicable to awards of statutory damages. Its principal provisions may be summarized as follows:


1. As a general rule, where the plaintiff elects to recover statutory damages, the court is obliged to award between $250 and $10,000. It can exercise discretion in awarding an amount within that range but, unless one of the exceptions provided by clause (2) is applicable, it cannot make an award of less than $250 or of more than $10,000 if the copyright owner has chosen recovery under section 504(c).

2. Although, as explained below, an award of minimum statutory damages may be multiplied if separate works and separately liable infringers are involved in the suit, a single award in the $250 to $10,000 range is to be made “for all infringements involved in the action.” A single infringer of a single work is liable for a single amount between $250 and $10,000, no matter how many acts of infringement are involved in the action and regardless of whether the acts were separate, isolated, or occurred in a related series.

3. Where the suit involves infringement of more than one separate and independent work, minimum statutory damages for each work must be awarded. For example, if one defendant has infringed three copyrighted works, the copyright owner is entitled to statutory damages of at least $750 and may be awarded up to $30,000. Subsection (c)(1) makes clear, however, that, although they are regarded as independent works for other purposes, “all the parts of a compilation or derivative work constitute one work” for this purpose. Moreover, although the minimum and maximum amounts are to be multiplied where multiple “works” are involved in the suit, the same is not true with respect to multiple copyrights, multiple owners, multiple exclusive rights, or multiple registrations. This point is especially important since, under a scheme of divisible copyright, it is possible to have the rights of a number of owners of separate “copyrights” in a single “work” infringed by one act of a defendant.

4. Where the infringements of one work were committed by a single infringer acting individually, a single award of statutory damages would be made. Similarly, where the work was infringed by two or more joint tortfeasors, the bill would make them jointly and severally liable for an amount in the $250 to $10,000 range. However, where separate infringements for which two or more defendants are not jointly liable are joined in the same action, separate awards of statutory damages would be appropriate.

Clause (2) of section 504(c) provides for exceptional cases in which the maximum award of statutory damages could be raised from $10,000 to $50,000, and in which the minimum recovery could be reduced from $250 to $100. The basic principle underlying this provision is that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent. The language of the clause makes clear that in these situations the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, and that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts.

The “innocent infringer” provision of section 504(c)(2) has been the subject of extensive discussion. The exception, which would allow reduction of minimum statutory damages to $100 where the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement, and it offers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit. On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow an infringer to escape simply because the plaintiff failed to disprove the defendant’s claim of innocence.

In addition to the general “innocent infringer” provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcasters, and the nonprofit institutions of which they are a part. Section 504(c)(2) provides that, where such a person or institution infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

Constitutionality
For information regarding constitutionality of certain provisions of this section, as enacted by section 101 of Pub. L. 94–553, see Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, Appendix 1, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States.

Amendments
2010—Subsec. (c)(2). Pub. L. 111–295 substituted “section 118(f)” for “subsection (g) of section 118”.

2004—Subsec. (c)(3). Pub. L. 108–482 added par. (3).

1999—Subsec. (c)(1). Pub. L. 106–160, § 2(1), substituted “$750” for “$500” and “$30,000” for “$20,000”.

Subsec. (c)(2). Pub. L. 106–160, § 2(2), substituted “$150,000” for “$100,000”.

1998—Subsec. (d). Pub. L. 105–298 added subsec. (d).

1997—Subsec. (c)(2). Pub. L. 105–80 substituted “the court in its discretion” for “the court it its discretion”.

1988—Subsec. (c)(1). Pub. L. 100–568, § 10(b)(1), substituted “$500” for “$250” and “$20,000” for “$10,000”.

Subsec. (c)(2). Pub. L. 100–568, § 10(b)(2), substituted “$100,000” for “$50,000” and “$200” for “$100”.

Effective Date of 1999 Amendment
Pub. L. 106–160, § 4, Dec. 9, 1999, 113 Stat. 1774, provided that:
“The amendments made by section 2 [amending this section] shall apply to any action brought on or after the date of the enactment of this Act [Dec. 9, 1999], regardless of the date on which the alleged activity that is the basis of the action occurred.”


Effective Date of 1998 Amendment
Amendment by Pub. L. 105–298 effective 90 days after Oct. 27, 1998, see section 207 of Pub. L. 105–298, set out as a note under section 101 of this title.

Effective Date of 1988 Amendment
Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title.


Yes, your lawyer may have gotten you settlements based on threating people with lawsuits. happens all the time. Many companies would much rather settle and pay a relatively small amount just to avoid the cost of litigation. However, the actual law itself in regards to damages is something else entirely.

 

[Buckster]

LOL. Gotta love armchair attorneys on the internet who know how to copy and paste, but have no actual experience with the actual subject.

Watch the videos. All the way through. Actual experts. Learn something real. It's awesome.

 

[robbins.photo]

LOL. Gotta love armchair attorneys on the internet who know how to copy and paste, but have no actual experience with the actual subject.

Watch the videos. All the way through. Actual experts. Learn something real. It's awesome.

Well, if you can't argue the facts, attack the poster I guess. Sad. Expected, but still.. sad.