ILX IT IS LATE AND I AM ANGRY. I NEED YOUR HELP IN DEBUNKING THIS EMAIL LINE BY LINE

what I have so far:

"Not that big of a deal..i can understand you wanting cred..."

Yes. The maker of the image is the copyright holder and is entitled to any compensation asked for an agreed upon. In this instance, I wanted a credit, which was given.

"You took a picture and didn't ask us and posted it on your page."

You were preforming in a public space and in so doing acknowldged that your stage persona was not a private one.

"So we took the picture (of us) and put it on our page..."

irrelevant. the corallary is people who would distribute your music as mp3 files on a file sharing service.

"it is a nice photo....."

irrelevant.

"which although exists in compromise with you because you took the picture"

there is no explicit or implicit contract involved outside of courtesy.

"doesn't neccesarily mean it belongs to you (in my opinion) "

Your opinion has nothing to do with it and everything to do with US copyright law.

"despite wordy copyright laws which actually don't clearly state that it belongs to either party."

Wordy copyright law says that the image does belong to me.

"Don't take this as aggro...."

irrelevant. we're having the discussion.

"we really don't care that much....."

fair play.

"ust don't think it matters. "

At a legal level it does, and the conversation goes back to a point of courtesy. I woudln't take your music without asking. The same applies here.

dear jb,

I make a living with my photographs. If I let everybody who felt like it just take digital copies of my work and put it wherever they please, I would quickly wind up in poorhouse. Please take the picture down, also your music is terrible.

thanks,

Jim, Mod

The picture belongs exclusively to you, the photographer. The name and likeness rights belong to the band under New York law. You need each other's permission.

did they hotlink from your site or just rip the pic off flickr?

"doesn't neccesarily mean it belongs to you (in my opinion) despite wordy copyright laws which actually don't clearly state that it belongs to either party."

debunking:

"You are a moron and full of shit. No interpretation of copyright pertaining to photographs holds that the subject is owner or part-owner of the rights to any work in which the subject appears. Absent a contract granting rights to another party, the copyright (and usage rights) remain with the artist. The artist may not use the photograph for commercial gain without a model release, but this in no way signifies ownership on the part of the subject.

Now fuck off, take my photograph down, and die slow motherfucker."

and I'd look for a fill-in-the-blanks cease and desist letter, to be sent to the band/their management/their label - as many addresses as you can locate.

they just ripped off flickr

My new thing (in a vain attempt to be nice to people... see where that gets me...) is to ask for credit wrt myspace anf facebook stuffs.

The picture belongs exclusively to you, the photographer. The name and likeness rights belong to the band under New York law. You need each other's permission.

-- felicity, Tuesday, March 11, 2008 4:20 AM (3 minutes ago) Bookmark Link

doesn't this specifically relate to resale or commercial use? I have attepted (and would not attempt) either in this instance.

FUCK YOU PAY ME

should say have "NOT attempted"

Yes, you don't have to worry about likeness rights until you make money on the deal.

Even then, you could put the photograph in a gallery, being sold as a work of art, and be in the clear, as I understand it. Put it in a calendar or sell it for stock and you need a release.

jb = james blunt or ilx's missing hero james blount?

neither.

Yes, you don't have to worry about likeness rights until you make money on the deal.

Even then, you could put the photograph in a gallery, being sold as a work of art, and be in the clear, as I understand it. Put it in a calendar or sell it for stock and you need a release.

Just as a broader point; not trying to make one here:

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

I think this case is different in that it applies to reasonable privacy in public places (i.e. you have NONE) vs. art

whereas I am in a semi-public place vs. art

Don't bother with line-by-line, shit is always a waste of time. Just say "Dear fuckfaces, you are wrong. I own the photograph according to copyright laws -- which are not ambiguous at all -- and without my permission you may not use it, regardless of whether you credit me."

Arguable. "in this instance" may not matter as I think you have something on your flickr generally about promoting your website and you have an overlay that is arguably to promote trade.

The statute technically makes it a misdemeanor.

§ 50. Right of privacy. A person, firm or corporation that uses for
advertising purposes, or for the purposes of trade, the name, portrait
or picture of any living person without having first obtained the
written consent of such person, or if a minor of his or her parent or
guardian, is guilty of a misdemeanor.

It's kind of new and not that tested. Your mileage may vary.

</legal disclaimer>

" advertising purposes, or for the purposes of trade" is where I get hung up... couldn't you say that this is limited to useages where it can be inferred that the subject is endorsing or promoting the product (obviously not OK w/o release). whereas (if I were to go in this direction; which i will not) I would be using the image the promote the product ( the image) itself?

Surely you have the right to take a picture of a person in a public place, and to exhibit it in a gallery. Nussenzweig v. DiCorcia concerns right of privacy and the First Amendment right of free expression.

And technically you are correct that under copyright you own the image. Under trademark and right of publicity they own the rights to their band name and physical likenesses.

The distinction here is advertising -- who is advertising what, and who may be trading off the name and work of another. I think the respective product(s) here are your talent (as a great photographer -- the band photo is helping promote that) and the band's music, image and likeness (which can be promoted by photos, subject to consent by the copyright holder in the photo).

There are many factors in these First Amendment/fair use cases. The one often weighted heavily is the degree to which the potentially objectionable use may cut into the revenues of the person objecting. In the case of established photographer versus emerging musical artist, it's a close call.

Surely you have the right to take a picture of a person in a public place, and to exhibit it in a gallery. Nussenzweig v. DiCorcia concerns right of privacy and the First Amendment right of free expression.

right and my point was that my case would likely be seen as different i.e. in a bar with a stage vs. 52nd street in the jewish part of midtown. no contest.

And technically you are correct that under copyright you own the image.

agreed.

Under trademark and right of publicity they own the rights to their band name and physical likenesses.

I've been fallowing the new cases of dead celebrities (monroe, etc) and can't see the parallel between that and this. Imaginary case:

Scarlett Johanssen @ movie premier red carpet. Person is in a venue where it is likely she will be photographed. venue is not closed to the public or burdened by private property concerns. therefore subject forefits right to preserve likeness rights.

I suppouse my biggest sumbling block to comprehension is bar stage vs. times square or etc.

The band's ownership of their likeness doesn't give THEM any right to the photo, so what does it matter here?

I mean regardless of what Jimmy is allowed to use the photo for, it's clear he owns it and the band does not

i am looking for succinct and 95% correct answer to the email that was just sent and any other subsequent points of contention. Mostly, I am angry at their attitude and would like to make things as annoying as possible for them.

jimmy dont take this as aggro

I agree, the Marilyn Monroe cases are slam dunks. But I have hit up commercial entities for confidential $$$ settlements for much less than what this band has here. Bad cases makes bad law.

It sounds like the band gave you a credit and are fans of your photography anyway so you won.

annoying as possible - demand for removal followed up with c&d, no need to even respond to the rest of his e-mail

no beef

they really dont care that much

and the band is...

succinct and cold will get under their skin more than all-riled-up

P.L.U.R.

and if you want to be really safe, just take it off Flickr - the shot is less valuable to you than it is to them

But Flickr is really nothing more than a portfolio for you - no different from carrying prints into a meeting or printing a pamphlet of your work. I don't think that either of those has opened up an individual photographer to a lawsuit, as he/she isn't making money directly off of them.

this thread is gonna be totally awesome til jimmy get's felicity's bill via ilx webmail!

But I have hit up commercial entities for confidential $$$ settlements for much less than what this band has here.

^^^ i'm having a hard time parsing this... sorry. You mean that commercial entity [me, i guess] has been held liable to [this band], right?

DOES TEH FELICITY HAVE PAYPALZ? ^_^

But I have hit up commercial entities for confidential $$$ settlements for much less than what this band has here. Bad cases makes bad law.

But that's a pretty big difference! Commercial entity using something for commercial gain vs. photographer w/ portfolio not making money directly (or even indirectly, really) off of it.

That's why flickr has options for Creative Commons v. no derivatives v. no commercial use v. all rights reserved.

no charge guys

that's why creative commons is BS

But those don't have anything to do with the photographer and what he might use it for? Those are the rights granted to other parties for the photographer's work.

GUYS YOU ARE TRUE BROS AND ARE MAKING ME FEEL BETTER

felicitous

x-post

milo z, it's confidential. Cases had more to do with who has money and who is litigation-averse than who actually did or owns what.

Also, some artist managers believe in no bad publicity. In their eyes, a lawsuit is a win-win.

Anyway, the point here is that JtM is an AWESOME PHOTOGRAPHER HE ROXXX TEHY R ALL GAYY. I mean, who wouldn't want to bite that?

Chuck from Hidden People sent me this link. Granted, it is a month or so old, but it makes me feel better. I have a competition in me. I don't want anyone to succeed. I hate most people. There are times when I look at people and I see nothing worth liking.

http://www.brooklynvegan.com/archives/2008/02/cryst4l_stilt55.html

4=a, 5=s

http://www.photoattorney.com/ - you could also e-mail her and see if she'll comment

Aw, their van got stolen.

I don't want anyone to succeed.

You pwn all other photographers. Their "success" is irrelevant.

I am full of hate.

jmod is on the team

I'm mostly angry about THEIR attitute, I guess. I've had people ask me to take stuff down before and I have. I've asked people to give links or credit where I think it's beneficial to both parties (myspace, facebook again...). Their response was just so preternaturally cunty and not based in any sort of logic but instead based in entitlement ("well, we didn't say X therefore it's ours") that I want blood. I want them to fail. I want them to get their van stolen.

I want everyone I know to be at a show where they're playing and walk out when they start.

I want them to get the band back together when they're 40.

Yeah, that email was kind of passive aggressive. They just come off as clueless.

There was no insurance on the van cause we're poor.

bullshit. Poor people wouldn't leave all their equipment sitting around in an uninsured vans.

van

vans... distribution of risk, right?

uninsured:
http://www.urbanindustry.co.uk/images/products/large/101_24489_0.jpg

uninsured:

http://www.broadwaypizzahouse.com/image/30981149.gif

http://www.dr0p.net/imablo/vans1.jpg

is that goodbye blue monday?

double lol at them for leaving equipment in an uninsured van in Bushwick

yeah leaving all your gear in a van pretty much anywhere is unbridled stupidity

that's broadway pizza, actually.

k. back to the dumb legal questions. say you're the new york times and you're reporting on a concert and you take a photo and then you run an article and run the photo. does the band have any say in this at all? i.e. even if the photo is awesome and artistic and foax buy the times sunday just for teh awesomez photos of bands (we're in a hypothetical here, remember), then, still, that falls under fair use pretty much, no?

Yes. Newsworthiness exception.

This would never have happened if you had use SOPHISTICATED SPACEBALL.GIF technology.

lol sourcecode breakdown. :-/

it seems like the real problem is that their attitude sucks? the law doesn't care about that.

i think you need a solution that involves doing something equally obnoxious to piss them off.

well, either that or it is about their attitude that your work is no big deal and doesn't matter what they do with it? what if you just wrote back and said, dude the problem is, what if I took YOUR MUSIC and posted it on my page and was like "whatever.. its pretty good i guess.. its no big deal what i do with it."

no it's all about their attitude. "no beef" "no aggro"

WHAT THE FUCK ARE WE STILL IN THE FUCKING FRAT?

BLOGGER LEAGUE OF JUSTICE ASSEMBLE!!!!

http://home.uchicago.edu/~jniimi/keithjessmatos.JPG

http://photos-k.ak.facebook.com/photos-ak-sf2p/v125/207/48/528700442/n528700442_351834_2738.jpg

It's only rock and roll. but I like it.
The Doctor says you should chill.

the street is full of punks

HI MOOOKIE!

http://happybunny.orbitearthstores.com/images/notlisteningsticker-huge.jpg

I think that if you are a commercial photographer who posts his pix on the WWW, you just have to expect that a certain number of them will be stolen, and you need to act to limit the damage as best you can. E.g., watermarking techniques: Small and unobtrusive on small versions and huge and annoying on larger ones.

And if all you want is credit, then the watermark itself is a pretty good ad for you.

but then if all you want to get is huffed over bank, you might want to question your motives in snapping acts that play at the Goodbye Blue Monday level

<I think that if you are a commercial photographer who posts his pix on the WWW, you just have to expect that a certain number of them will be stolen, and you need to act to limit the damage as best you can.>

I do. It goes back towards courtesy. "OK, fine, you got it. You're not making money off of it. Let's have a little fair play and get a credit." Let's develop a relationship as a band and someone who can provide content to media outlets. It's a give and take. They come at me in a way that implies all give AND has a bogus sense of entitlement packaged along with it. THAT's not OK. That's bad business.

http://www.idiomsbykids.com/taylor/mrtaylor/class20022003/idioms/idioms2003/Make%20A%20Mountain%20Out%20Of%20A%20Male%20Hill.jpg

I agree that it is discourteous, and indeed people should be more courteous and I think that you should fight the good fight and all.

But.

It's a losing battle. All that's really happened is that you've gotten upset over lack of courtesy and poor reasoning. The band? They probably haven't given it a second thought, and they probably won't think twice about nabbing another photog's pix next time they need one.

This is why I said "protect yrself", not only from theft, but from discourtesy as well. In the end, you've gotta realize that they take from you because they think y'r good. That's only in yr favor in the long run, and not worth blowing a late-nite fuse over.

I disagree. Copyright law is what it is, and the photo is yours. Have them get out their cheque books if they want to use it -- and they need to take it down in the meantime. No need to go through their subliterate email line by line, which will only engage them in further debate. Too many creative commons weenies and bloggers are willing to roll over on shit like this for "publicity". If your work is worth paying for then get paid.

Yeah, so being super litigious is definitely going to do WONDERS for yr rep as a photog for whom reputation really doesn't mean ANYTHING AT ALL NOPE.

maybe spend a bit of mirror time wondering if the Music Business is really for you.

It was late, he was angry. It's all good now.

I think this band might want to as well judging from their myspace. Yeegads

Yeah, so being super litigious is definitely going to do WONDERS for yr rep as a photog for whom reputation really doesn't mean ANYTHING AT ALL NOPE.

A photographer who you pay the going rate to has a reputation as a, uh, professional.

My new thing (in a vain attempt to be nice to people... see where that gets me...) is to ask for credit wrt myspace anf facebook stuffs.

-- Jimmy The Mod Awaits The Return Of His Beloved, Tuesday, March 11, 2008 12:24 AM (16 hours ago) Bookmark Link

this seems to make good business sense - you should have a form letter outlining exactly what usage is permitted and what credits are expected.

then you just send it to dudes in crystal bands or whatever - its not even a really a response to their halfassed whining - which effortlessly accomplishes a satisfying backhanded brush off w/o really pissing anyone off too bad - ie maybe one day they pay you to photograph them

They come at me in a way that implies all give AND has a bogus sense of entitlement packaged along with it. THAT's not OK. That's bad business.

I was bothered by the retarded "copyright is like totally vague" line when it like totally isn't.

just go to the cockfarmer thread and post their names

Industry hit men act like it is pretty vague.

http://recordingindustryvspeople.blogspot.com/

The intersection of rights of publicity/privacy and copyright hasn't been tested much. We always went after licensees who thought they cleared things going thrugh the label on name and likeness.

Touring and identity use were traditionally among the few revenues available to artists after typical signings. Now the industry is running scared and tring to get those two under evil "360" deals.

Therefore Tombot OTM