Advice: Overzealous photographer: Threatens legal action, Here is correspondance below

I have no advice, except maybe to tell this person to fuck right off. I can however commiserate as I found myself in a similar position not too long ago. I sent out a mass emailing to about five thousand customers with an image that was a clipping from a magazine feature that included a D list "celebrity" endorsing a product the company I work for manufactures. I got several calls from this person's publicist threatening legal action and informing me that I must "remove it from the internet." I told him it's not on the internet, it's just in the junk mail folders of about 5,000 mid-western housewives. I don't get this shit. It would be totatly fine to collect 5,000 copies of this free weekly and hand deliver them to people and point at the feature and say "look at that!" but digitize and email it and suddenly I'm trespassing on someone's rights? Actually, I guess that has very little to do with your situation. Stick to my first bit of advice, then...

Yeah that's pretty much what I told her.

The tour posters(with the image in question) are hung up in 20 some odd venues all over the whole east coast now anyways! I told her if she wanted to go remove them she could

I put the image right back up on the site

Thanks for the response

it's not quite so clear you are in the right here. unless you got permission for the exact thing you were doing with the images you might not be at all. copyright always reverts to the creator of the image, and telling her to fuck off and go take them down if she wants, when you might not actually have permission to use them for whatever you were using them for, could get you in a mess of trouble, should she get a lawyer (which is pretty easy to do these days, actually, on copyright issues—a free one, even).

neither KungFuFlipperBaby nor I are copyright lawyers: I do just happend to read about these issues. A lot.

The following is not to be construed as legal advice. I am not a lawyer, but I play one on TV.

Copyright is automatic. You don't need to do anything to establish copyright on your own original work. Registering the copyright (optional) formally documents the process.

Every single legal aspect? Really? Don't be so sure. Copyright law, like all law, evolves constantly.

It's bad mojo to "100% guarantee" that someone will lose in court. I can 100% guarantee that plenty of other people who felt the same way regarding some legal issue wound up rudely surprised.

Also, in America, generally both parties pay their own legal costs, regardless of outcome.

SO not true. Copyrights expire after a certain number of years, and become public domain after that time. Posting something on the Internet in and of itself does nothing to change its copyright status.

Just my $0.02. Not legal advice. Just one to grow on.

A lot of good stuff's already been said, but I'll add this:

Unless you've arranged for otherwise, you need to have permission to use an image in every permutation--i.e. if you asked to use an image for a 7" cover, you can't just use it on a T-shirt, or a banner ad, or whatever. Use is only for whatever the original request was for.

Copyright is a beast.

To add to this, since I can't edit my response...sometimes legal fees can be factored into a judgment. Copyright violations are fair game, which means that if you were to be successfully sued for copyright infringement, you might be the one who has to pay the opposing party's fees. So you might think twice about tempting face by daring someone to sue. Just a thought.

how did you get permission?

I have her permission via E-mail correspondance, no written contract.

I asked if I could use the particular photo's in question, in 2 ad's. Which I did.

But... She never got our bands permission to even take the pictures in the first place.

That's kind of where I wonder about the whole thing.

It's all settled now, but we really do try to cover our ass in every single possible thing, and wish to avoid doing anything illegal at all cost, so the advice is helpful for the future as well.

I did not mean to sound arrogant in the letter, I was just really pissed off at the time, I am not an arrogant person, and of course don't know every aspect of law.

It sucks, being nice guys or trying to be respectful to people nowdays, seems to just get you stabbed in the back.

Well, an email is technically a written contract vs. say a verbal contract.

Unless a band expressely states, like the major league sports teams state at the end of all broadcast games, that the previous or following performance is copyrighted, i do not think copyright would cover the band from being photographed.

And I am no lawyer either, but I am engaged to one, which makes me vested in knowing stuff.

Also. Nothing with the law is universally binding or appliciable. Every discussion should starts with, "Well, it depends..."

There was a great article in HARPER'S last year about the Molotov Man image and the reappropriation of that image into other media, like a painting. The photographer sued the painter for stealing the image but also corrupting the image. you can read it

Phew!

I can understand the tone of your letter, because it's natural to want to respond aggressively to something like that, and maybe bluff a little, but you never know how far people are willing to push it.

Maybe this person was being spiteful or petty and bluffing a little herself, but then again, maybe she thought she had a legitimate beef and really would have filed a suit. The thing is, you just don't know. Even if she had a flimsy case, it would still be a big hassle for you.

Some things are worth going to court for on principle, but a couple of band photos...well, I don't know.

But it's good that you have the foresight to think of potential problems before they arise.

1. you really *don't* need to get every use of every image cleared before ever re-use; that's what the fair use act allows for. BUT, if you are a commercial company, you probably should. Fair use usually doesn't cover commercial or promotional goods. (Although sometimes it does.)

2. technically—and last i checked (although this could have changed recently)—emails represent neither written nor verbal communication. they are a murky way of deciding contracts, and i probably wouldn't count on them being as binding as written versions.

I believe that an e-mail contract can be as binding as any other. It depends on the intentions of the parties and how specific they are in delineating the terms of the contract...same as with any contract.

It wouldn't matter if e-mail weren't considered "written" anyway, because an oral contract is usually just as binding as a written contract (with some exceptions). The only difference is that it's easier to prove communication in writing.

But yes, e-mail is definitely considered written communication. It is admissible as evidence in court. People tend to assume that because e-mail is often less formal than on-paper communication that it is somehow "protected" from scrutiny. It isn't, and what's more, if a party in a lawsuit were to attempt to intentionally delete discoverable e-mails (meaning relevant ones that could be used as evidence) after the fact, they could be held in contempt of court.

digital/email contracts were handled back in Uniform Electronic Transactions Act (1999)

Trying to defend copyright infringement with Fair Use, especially work of an unpublished or "artistic" nature, by a commercial, for-profit (non-501K) business is probably a losing defense. Fair use, mostly, refers to criticism, commentary, review, or news and was intended for teachers, scholars, librarians, and classroom teaching purposes.

The Perez Hilton case, recently, is a perfect example of the potential pratfalls, even the unusually solid satire defense, is subject to collapse under.

see also the DMCA

http://www.eff.org/IP/

That site seems to offer some fantastic cases, and scenarios, in regards to copyrights, and digital transactions, such is the case with the whole photo thing.

Thanks R.John

I am actually really enjoying you guys input,