You know it’s never a dull moment around here, so even though charges were dropped in my second arrest on Tuesday, I now have a new legal issue to contend with.
Some guy up in Vermont is threatening to take legal action against me if I don’t remove a photograph from this site by 5 p.m. today.
Oh, how I’m tempted to just say fuck you to Sean Cooley, who tries to come across as an attorney, but apparently is nothing more than a journalist who plays an attorney.
But I do sympathize with the photographer he is representing, Jordan Silverman, who shot the photo I posted with the article about the Vermont photographer who was banned from a shopping mall for taking photos from public property.
But I wish Silverman would have emailed me himself rather than get his co-worker to fire off a cease and desist letter under the guise of a lawyer.
Since receiving the letter Tuesday morning, I’ve consulsted with a couple of highly respected attorneys on both coasts who gave me their opinions, which I will get into later.
First, check out the letter:
Dear Carlos Miller
Sean here. We are writing on behalf of the proprietors of all copyright in a artistic work, currently listed on your site under the file name, “Vermont.jpg”, at the address:
otherwise known as (The “Work”). We have reserved all rights in the Work, which was first expressed in material form on 3.10.10 at:
It has come to our attention that your work entitled ‘vermont’, at the above address, is identical to our copyrighted Work. Permission was neither asked nor granted to reproduce our Work and your Work therefore constitutes infringement of our rights. In terms of the Copyright Statutes, we are entitled to an injunction against your continued infringement, as well as to recover damages from you for the loss we have suffered as a result of your infringing conduct.
In the circumstances, we demand that you immediately:
remove all infringing content and notify us in writing that you have done so;
pay a licensing fee in the amount of: none, as long as said work is removed within 24 hours of receipt of this email;
immediately cease the use and distribution of copyrighted material;
undertake in writing to desist from using any of our copyrighted Work in future without prior written authority from us.
In all honesty, we’re surprised that as a photographer who clearly tries to make a living off of his work, you didn’t bother to write us, call us, pay us, or in the very least, bother to even remotely ask to use our work on your site. Additionally, it seems strange that you bothered to write your own article, but didn’t think about shooting your own image, or again, at least asking to use ours or to have someone else shoot one for you. In the end, it’s been proven year after year that linking to a news story is indeed quite different than what you did with an image; pulling an image from a news story, in the separate fashion you have (which clearly is now separate from the news story). And as I’m sure you also know from being a freelancer, crediting someone for an image or a written piece, is indeed no way compensation for the actual work, but instead simply the legal & ethical thing to do, when it’s not your own work and someone else instead created that work.
We await to hear from you by no later than close of business on 5pm tomorrow, 3.17.10.
This is written without prejudice to our rights, all of which are hereby expressly reserved.
Legal & Accounting
Some of our recent projects:
Jordan Silverman Photography
266 Pine Street
Burlington, VT 05401
(glass door on left of loading dock, north side of Conant Custom Brass)
In addition, our workflow includes smooth processing, editing and project management from Sean Cooley, who handles image production and communication.
As I’ve always stated on this blog, I abide the fair use doctrine, which allows for limited use of copyrighted material in certain instances, like news reporting.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
1.The nature of the copyrighted work
2.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
3.The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.
Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
It should be noted that when I consulted with my attorney friends Tuesday morning, I was still under the impression that Cooley was an attorney, so they also assumed he was a lawyer.
Below is the response I received from an intellectual Property and Internet Law attorney in Miami.
I think that you have a strong argument for fair use. Moreover, there is no direct causal connection that would entitle this gentleman to any damages. A reasonable royalty for the use of a photo is between 200-300 presuming that you are required to pay for the use. Further, without a copyright registration certificate for the photo (which I’m sure he does not have) he cannot sue you in Federal Court. 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.
This is a lot of hoo ha over nothing. While you have good defenses, the better course of action is to tell Mr. Cooley that you will take down the photo as a courtesy, but not out of any legal obligation. In fact, it’s ridiculous that you are giving him and similarly situated photographer publicity and he turns on you. Clearly a cat you want to stay away from.
And below is the response I received from a First Amendment attorney in Southern California.
He has a point, even if he’s being a bit of a douche about it. Merely crediting and linking is not enough to make it fair use. You can’t just take someone’s image, credit or not, without their permission and use it like you did.
The analysis of fair use is somewhat mushy and malleable. Essentially, it is a four factor test, which is enshrined in Section 107 of the copyright act.
Lets go through the four factors here:
1) What was the purpose and character of your use? It was likely commercial, even if your blog makes no money. Non-commercial uses are pretty much limited to educational use (like if a school teacher used it).
2) The nature of the copyrighted work — well, it is copyrighted and it is commercial. You lost on this prong too.
3) Amount and substantiality — you used the whole work.
4) Effect on the market, meh, likely little — but you’re still down 3-1. Probably more like 3-0-1
I would do the following:
A) Take the photo down
B) Write back and eat a little shit in the process — tell them that you didn’t mean any harm, that you allow your works to be used this way, and that you see their point.
Now… you COULD possibly use the image I have attached, as long as you make it small enough. In fact, you might just want to replace your image with this one. Upon doing so, I would still send this guy your link and say that you have replaced it with a shot of the Seven Days’ website, and you wonder if they mind that use.
Of course, if they do, then you might just want to say fuck it… but I think you would have an argument that providing a thumbnail of the seven days website is beyond their ability to complain.
So even though both attorneys, whose opinions I highly respect, have different opinions on whether or not this falls under the fair use doctrine, they both agree that this guy is being a wanker about it and that I should remove the photo.
But that was before I realized he was not an attorney. And even when I was still under that impression, I was still wrestling with the decion.
After all, I disagree that my use falls under the commercial realm. I believe it falls under the editorial realm, which could also fall under the educational realm. Perhaps some of my attorney readers will weigh in.
The truth is, my images have been used countless times on various blogs, including many who have outright criticized and mocked me. The only time I’ve asked anybody to remove a photo was a blogger who was using my header image as his header image, meaning he was using my brand as his brand.
The problem was that I was getting emails from readers asking if I was somehow connected to him, which I wasn’t.
But I can’t tell you how many times that header image has been used on blogs where they were writing about my story. And there have been so many times I’ve found other pictures I’ve taken on blogs. If they credit and link to me, I leave it at that.
If they don’t, then I ask them to both or remove the photo. I manage to do this without writing a cease and desist letter. And I’ve never had anybody refuse to abide my request.
I take a common sense approach in realizing that most bloggers don’t have the financial resources to license photos that are already published on somebody else’s blog or news article. And it’s not going to benefit me more financially by asking them to remove the photo.
In fact, it usually leads to more people discovering my blog.
I know many copyright enthusiasts will disagree with my thinking, but we’re living in an age where it is virtually impossible to protect your copyright once you publish an image online.
This is the age of New Media. The rules are different. And new laws must be carved out.
What if I remove the image, but another ten blogs decide to publish the image? Would Cooley spend the rest of his working hours firing off cease and desist letters?
I’ll guess we’ll have to wait and see.