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Photographer Threatened With Legal Action After Asserting His Copyright 667

Posted by Soulskill
from the picture-of-surprise dept.
New submitter JamieKitson writes "Photographer Jay Lee got more than he bargained for after sending some DMCA takedown notifications out to hosts of sites using one of his pictures. One Candice Shwagger accused him of everything from conspiracy over local sheriff elections to child abuse. Since Candice is now threatening legal action, Jay has said he'll take down the post, so here's a snap shot. After reading the story, I checked for use of my own pictures and found one of them being used on a review site without even a credit."
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Photographer Threatened With Legal Action After Asserting His Copyright

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  • by cpu6502 (1960974) on Friday May 25, 2012 @01:53PM (#40110871)

    "Go ahead and sue me." The infringing person would likely never follow through, or if he did, lose the case and a lot of money. ----- Just like that Oregon Newspaper editor who tried to steal an article from an online reporter. He too threatened to sue but backed down (and paid $500 to the reporter), because he knew he was guilty-guilty-guilty. Downloading something for personal enjoyment is one thing; earning wealth off the back of a worker's labor w/o paying them is entirely different (and evil).

  • by registrations_suck (1075251) on Friday May 25, 2012 @01:56PM (#40110907)
    I found TFA very interesting. Sounds like the lady is off her rocker. However - the bottom line is that if you don't want someone to "take" your stuff, don't post it on-line. Sort of like, "don't leave your wallet on your dashboard with the windows down". Should you be able to? Sure. Will you be able to, without someone taking it? No. Should you be surprised when you come back and your wallet is gone? No. Should you be surprised when you post stuff on-line and someone uses it for their own purposes? No. Should you be able to address the issue? Sure. Can you save yourself a lot of headache by not posting your stuff on-line in the first place? You betcha.

    Practical advice for the guy in TFA? If you're going to post your photos on-line, put a great big watermark on it that says something to the effect of, "If you want to use this photo, YOU NEED TO PAY ME! Email whatever@ whatever.com for details!"
  • Ludicrous (Score:4, Insightful)

    by dbarron (286) on Friday May 25, 2012 @02:02PM (#40110985)

    Being a semi-pro photographer myself (and facing the same problem), I find the woman in the original article ludicrous.
    There's a lot of problems with trying to share your photos with the world (under copyright) and people using them w/o permission. I know my own photos are being used (and quite often abused) all over the place.
    The photos aren't very pleasing to look at if they have watermarks all over them obscuring detail:(
    Not that I don't freely allow many non-profits (including zoos) to use my photos all over the world and that I have certainly been paid for legal use of some few.

  • by Hatta (162192) on Friday May 25, 2012 @02:14PM (#40111141) Journal

    He quickly realized that she does seem to do non-profit work for disabled children

    That's no excuse. The correct response is "Oh, I'm sorry I didn't realize this was an issue. I do non-profit work for disabled children, is there any way we can work out an accomodation?"

    The fact that Shwagger went straight to threats of lawsuits indicates that despite the fact that she works with disabled children, she's still a terrible person.

  • The real problem (Score:5, Insightful)

    by Smivs (1197859) <smivs@smivsonline.co.uk> on Friday May 25, 2012 @02:20PM (#40111213) Homepage Journal
    ..is a crazy system that allows a site to be taken down with no prior warning, negotiation or appeal beforehand, surely.
  • by ZeroSumHappiness (1710320) on Friday May 25, 2012 @02:22PM (#40111251)

    I agree. I don't think /she/ was being reasonable; I was just saying that what Jay Lee did here was the "good-guy Greg" alternative to saying "Go ahead and sue me."

  • Re:oh shut up (Score:5, Insightful)

    by ZeroSumHappiness (1710320) on Friday May 25, 2012 @02:41PM (#40111533)

    The DMCA, when properly used, is a pretty good process:
    1. File DMCA to hosting provider
    2. Hosting provider removes access to offensive file and informs uploader
    3. Uploader can respond
    4. Purported owner and uploader resolve situation if necessary

    The key here is that you have to be sure you have the right file before starting at step 1, which Jay Lee did. This all went tits-up when GoDaddy decided to shut down all of the related sites instead of just that one resource, but that's not the DMCA or Jay Lee's fault.

    Now the big problem with the DMCA is that it's very easy to abuse. But that's not what Mr. Lee was doing with it since he only targeted exactly what belonged to him.

    As for RICO, if an individual qualified as a "criminal organization" then hell yes I'd want RICO used against him.

  • Re:oh shut up (Score:0, Insightful)

    by Anonymous Coward on Friday May 25, 2012 @02:41PM (#40111541)

    "good guy" and "file a DMCA" don't quite fit in the same paragraph, unless it also includes some form of negation. Seriously. Would you use RICO against an individual who wronged you? Would you send them to Guantanamo? Certain things just aren't done by "good people" even if they happen to be temporarily legal.

    You're comparing filing a DMCA request to protect ownership of your creative works to charging someone with racketeering or sending them to an out-of-country prison known to use inhuman tactics? Seriously? And that's being modded "Interesting"?

    Wow.

  • Re:Candice side (Score:5, Insightful)

    by BronsCon (927697) <social@bronstrup.com> on Friday May 25, 2012 @02:41PM (#40111543) Journal

    He put a picture on the internet to share it with others who might want to *SEE* it. He did want to share his picture, he simply didn't want someone else claiming it as their own without compensation. Seems fair enough to me.

  • Re:Candice side (Score:5, Insightful)

    by Lumpy (12016) on Friday May 25, 2012 @02:47PM (#40111637) Homepage

    The Answer is a Lot of light watermarks across the image.

    Sorry but it's a fact of the internet. If you dont want your image lifted, only power Low res (1024X768 or less) and watermarked.

  • by ZeroSumHappiness (1710320) on Friday May 25, 2012 @02:47PM (#40111643)

    The DMCA, when implemented properly by the hosting provider, is a minimally troubling procedure. It's basically a form letter version of exactly what you're suggesting. It also provides him and the hosting provider with legal protections as well as formalizing a response procedure by the uploader. GoDaddy's the one that kicked it into overdrive by taking down all sites associated with the user rather than just the one file that was being infringed.

    I'm not saying it's perfect and I don't think it should be shotgunned against every file returned by a query of "guns roses" on Google. But it perfectly fits the case where someone doesn't want to go through the trouble of having personal correspondence with the possibly hundreds of people who have infringed upon his copyright.

  • Re:How (Score:3, Insightful)

    by Joe Decker (3806) on Friday May 25, 2012 @02:48PM (#40111661) Homepage

    Tineye's image similarity is a lot smarter than Google's. Sadly their database is much tinier.

  • by Qzukk (229616) on Friday May 25, 2012 @02:50PM (#40111693) Journal

    Technically invalid

    Except that it was technically valid. It's not his fault that she hosted 13 other sites on the same account that she used the copyrighted artwork on without permission.

  • by Anonymous Coward on Friday May 25, 2012 @02:50PM (#40111705)

    Beats being on AM.

  • by kjs3 (601225) on Friday May 25, 2012 @02:51PM (#40111725)
    So if I walk up to you and take something that belongs to you, in your world view I should track you down and ask nicely for it back before I call the cops? It's not like she and the others didn't know they were taking someone else's work, without permission or credit, and using it to make money for themselves. And you genuinely want to make out that he's the bad guy here? You believe this? Really...thanks for making sure I'm not getting out of this week without one more reminder how hopelessly fucked up and bankrupt some peoples moral world view can be.
  • by superdave80 (1226592) on Friday May 25, 2012 @02:58PM (#40111849)

    If I discovered all 14 of my sites were taken down, while I'm trying to raise money for Special needs, I'd probably respond in a similar angry fashion.

    Except this guy didn't ask for ANY sites to be taken down. That was GoDaddy that took them all down. She should be pissed at them for taking such a drastic action.

    I'd never do business with a company that would wipe out all my websites over something as trivial as a DMCA notice over one single picture. They could have just blocked the offending photo and left the websites in place while they worked out a deal on the photo.

  • by Anonymous Coward on Friday May 25, 2012 @02:58PM (#40111851)

    If it was a couple of websites that he found using his photo, I'd agree with you. But he found a lot, and rather than trying to track down every single individual, potentially have to fight with them, and ultimatley have to use DMCA notices for half of them anyway, he did what was reasonable - he used a single tool to notify everyone of the issue withing the law. The fact that GoDaddy took the sites down as a result is NOT on him - he didn't request that, that's what GoDaddy's TOS that SHE agreed to says that GoDaddy will do.

    As much as I hate the DMCA, in this case I think the copyright holder took reasonable action, especially since he was the actual copyright owner, and not just some shill claiming that anything even closely related to something their employer owns belongs to them. Plus, given her reaction, do you really think she would have responded any more reasonably if he had just contacted her directly? My guess is that she would have disputed his copyright assertion at the very least, if not flat out telling him to shove off because she was "entitled" to use it (see her own words for her flawed logic about that). Something tells me this was the better move anyway (especially since most if not all of the other offenders had perfectly reasonable responses)...

  • by flimflammer (956759) on Friday May 25, 2012 @03:04PM (#40111943)

    He mentions how she's throwing "Think of the children" down his throat but he seems to have seriously caved to it. Why is he cowering in fear at this woman's insane lawsuit threats?

    I've got the feeling Jay Lee said or did something that he isn't mentioning in the article. It just doesn't make sense since he's the actual victim here, having his copywritten material used without permission, but he was gonna take the blog entry down that talks about this? What leg does this woman even have to stand on to sue him?

  • by ZeroSumHappiness (1710320) on Friday May 25, 2012 @03:04PM (#40111945)

    You are depriving him of his commercial rights. Yes, these rights are imaginary, in that they're a social convention to enrich him despite the physical cost of copying is low, but they're there for a reason. They give him incentive to produce and compensate him for the time and effort he puts into crafting and utilizing his skill.

    For example, if you have a blog that you don't pay for beyond your time and effort and write a scathing article critiquing Litware for their horrible human rights practices in Elbonia you have no problem with others reading your blog for personal use or personal edification. However, if the Times Picayune Daily copies your article without payment or attribution and puts it on their front page you, technically, have not been deprived of anything, right? But then that article causes hundreds of thousands of people to start purchasing the Times Picayune Daily daily. They continue to rip off your blog and make a hefty profit from your articles. Yet they've not deprived you of anything. Except that now when you want to sell, for example, a hardcover book version of your blog the Times Picayune Daily puts out their "Greatest Hits" book at the same time, undercutting your price. You still haven't lost a thing of value, right?

    Or, put another way, turning a lump of steel into a car only costs time and effort, so why should the auto worker be compensated beyond the cost of the steel that went into it, right? Producing that picture took time, effort and skill, so why shouldn't Jay Lee be compensated beyond the material cost of transferring the bits from one place to another?

    (I'm trying to keep this as grounded a theory as possible while minimally invoking imaginary property rights. If you wish to continue this line I would suggest we first work out how his time, effort and skill should be compensated since I doubt you will argue that he spent none of that on his photograph and, if you're copying it instead of doing it yourself, you find value in the fact that he did it first.)

  • by uniquename72 (1169497) on Friday May 25, 2012 @03:06PM (#40111967)

    If I discovered all 14 of my sites were taken down, while I'm trying to raise money for Special needs...

    If you can't be bothered to learn what you are and aren't allowed to do with other people's work, your websites deserve to be taken down no matter what they are. I don't get to include someone else's story in my book of short stories just because I'm sending a small percentage of the proceeds to Jerry's Kids.

    Also, most of her sites have nothing to do with kids, special needs or otherwise.

  • Re:Candice side (Score:5, Insightful)

    by Spectre (1685) on Friday May 25, 2012 @03:11PM (#40112021)

    Wow so now we all are lawyers? I mean give me break, what has this world come to when copying a photo causes a deluge of DMCA takedowns. If you want to share, post it on the internet. Otherwise stay off of it and go to law school.

    Given that the photo was posted on Flickr and clear marked as a copyrighted photo with "all rights reserved", any adult should know better than to think s/he can appropriate for their own commercial enterprise ... and in this specific case, it wasn't just any random person, but in fact a LAWYER that appropriated the work of another.

    Before even considering the unprofessional behavior, this was worth a slap from the state bar association, now it's worthy of several slaps and a couple of kicks as well.

  • Re:Ludicrous (Score:5, Insightful)

    by kjs3 (601225) on Friday May 25, 2012 @03:14PM (#40112087)
    That said, this is a clear example of the problems with the DMCA. Had the photographer contacted the website admin and requested the picture be taken down or permissions be negotiated before submitting a formal takedown, this whole situation may have been avoided (depending on just how crazy the woman is).

    The DMCS is bad. Know that I'm not arguing that point. But not just "no" but "fuck no", it *not* the DMCA that's the problem. The whole situation could have been avoided if the website admin HADN'T STOLEN SOMEONE ELSE'S WORK. Seriously...how the fuck can people here not see that literally dozens of people stole this guys work, knowingly, and then want to put the burden on him to track each of them down, ask them nice to put up or take down, hope they do, "negotiate" something unspecified, lather, rinse, repeat, before he's allowed to use the law specifically intended to protect him in this situation.
  • Re:Candice side (Score:5, Insightful)

    by muon-catalyzed (2483394) on Friday May 25, 2012 @03:15PM (#40112099)
    I think this is a text book example of copyright at work. DMCA and copyright works here as intended and DMCA is helping the little guy in his battle with the pirates, copycats, thieves, aggregators and other parasites.
  • by pixelpusher220 (529617) on Friday May 25, 2012 @03:18PM (#40112139)
    So it's guilty until proven innocent? that just oozes 'good guy'
  • by iamhassi (659463) on Friday May 25, 2012 @03:20PM (#40112167) Journal

    People were using his photo on commercial websites. What is the problem?

    so email them. Ask them to pay or remove or else. The guy jumped (to conclusions) all the way to or else. Maybe some designer used the photo. Maybe they didn't know. Maybe they got it from another site and didn't know who owned it. Image doesn't say copyright on it. Maybe they're evil and stole the photo. Still email them first, maybe they're nice.

    And when did /. start supporting abuse of DMCA take-down notices? Thought we hate DMCA notices, and really hated people that abused the system.

  • by pixelpusher220 (529617) on Friday May 25, 2012 @03:21PM (#40112175)
    because copyright infringement is so similar to drug use and abuse...

    And using marijuana, a drug that is becoming legal in many places as your example isn't exactly a strong point.
  • by AdmiralWeirdbeard (832807) on Friday May 25, 2012 @03:22PM (#40112191)
    This guy going straight to a DMCA takedown letter is a dbag move in the same way that a homeowner is a dbag for having you towed when you park blocking their driveway. Yeah, the hassle they caused you was probably disproportionately larger than the hassle you caused them, but you were needlessly an asshole to them, so suck it up. Also, ambulance chasing is illegal in the US. your argument is invalid.
  • Re:Candice side (Score:4, Insightful)

    by Hotawa Hawk-eye (976755) on Friday May 25, 2012 @03:27PM (#40112247)

    Wow so now we all are lawyers? I mean give me break, what has this world come to when copying a photo causes a deluge of DMCA takedowns. If you want to share, post it on the internet. Otherwise stay off of it and go to law school.

    Does that include free software like Linux [linux.org], Firefox [mozilla.org], etc? So Microsoft should be able to download that software and do whatever they want with it? If you disagree with that statement, what's the difference between Linux, Firefox, and this guy's photograph? What makes the first two copyrightable and the last one not?

  • Re:Candice side (Score:5, Insightful)

    by jythie (914043) on Friday May 25, 2012 @03:43PM (#40112447)
    One can rail against the RIAA/MPAA and still feel for this photographer. He did not threaten to sue, he did not start a court case to uncover her IP address, he did not try to extort a multi-thousand dollar settlement out of her to avoid a court case that could bankrupt her, he did not bribe political figures to pass scary new laws giving him government like power to shut her down. He filed a takedown notice asking her not to use his copyrighted work.

    One can both respect copyright while still deploring powerful groups that abuse those same rules to crush people who can't defend themselves.
  • by jythie (914043) on Friday May 25, 2012 @03:46PM (#40112491)
    No, fair game is if he marks it as creative commons or public domain. He retained copyright. Just because isn't making money off of it doesn't mean other people have permission to use it for their own profit.
  • Re:oh shut up (Score:2, Insightful)

    by Joe Decker (3806) on Friday May 25, 2012 @03:48PM (#40112519) Homepage

    Not really.

    In short, you have (1) a woman who didn't play by the book and is an asshat, (2) a company that overreacted, and (3) a guy who did play by the book and who clearly had a legitimate beef.

    You seem to be directing your outrage at #3.

    Way to set priorities, dude. I'm outta here, have a nice day.

  • by blind biker (1066130) on Friday May 25, 2012 @04:14PM (#40112963) Journal

    So if I walk up to you and take something that belongs to you, in your world view I should track you down and ask nicely for it back before I call the cops? It's not like she and the others didn't know they were taking someone else's work, without permission or credit, and using it to make money for themselves. And you genuinely want to make out that he's the bad guy here? You believe this? Really...thanks for making sure I'm not getting out of this week without one more reminder how hopelessly fucked up and bankrupt some peoples moral world view can be.

    Wait a minute: did you just compare a felony (theft) with copying one file?

    And you have the nerve to call the GP's morals as "hopelessly fucked up and bankrupt"? Why don't you go fuck yourself, mate.

  • by kjs3 (601225) on Friday May 25, 2012 @04:34PM (#40113287)
    "If it's digital, I can take it, and use it any way I want, claim credit for it, and not give you anything, no matter what went into it's creation"

    Got it. You and your world view sucks just as much as Candice Shwagger.
  • by Nyder (754090) on Friday May 25, 2012 @04:36PM (#40113319) Journal

    He sends DMCA notices, then he gets threated to be sued over crap and he gets scared?

    Why the fuck did he sent the DMCA notices to begin with, if he wasn't prepared to stand his ground? All he's doing is giving this other person ammo and basicly permission to be a cunt with other peoples properties.

    Candice Shwagger is a bully, you stand up to bullies.

    Ya, bitch, sue me, stupid cunt.

  • by xous (1009057) on Friday May 25, 2012 @10:37PM (#40117169) Homepage

    I've worked for hosting providers and worked abuse tickets.

    Sane providers will give their client 48 hours to submit a counter claim. Doesn't matter if you are clearly lying through your teeth. If I get a signed counter-claim that you own it that's it and the complainant take take you to court or screw off.

    GoDaddy is known for suspending immediately without any notification.

    There is nothing wrong with a submitting a DMCA notification when the hosting provider is sane. The woman *KNOWS* she doesn't own copyright to the photo because she didn't take it and it wasn't granted anywhere. What he should have done as soon as she started talking about damages and making threats is referred her to his lawyer. People that will sue know enough not to make threats they just do it.

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