Intellectual Property Forum The Intellectual Property Forum

News:

We have updated the software.  Let us know if there are any issues.

Main Menu

Advise of infringement case.

Started by Rob Art, 05-19-21 at 11:43 PM

Previous topic - Next topic

Rob Art

Hi all

Firstly I am a European citizen (living in Greece) and this infringement case is in Maryland, USA.
I have no clue about procedure, and copyright protection, etc based on the trans-Atlantic nature, apart from the Berne Convention governs international copyright association.
So, any advise on this matter would be of great use. I am reading articles that scare me with $100,000 bills for lawyers, and others saying about DIY Small Claims Court for Copyright. I don't know where to turn, but I do know I want to do something about this matter.

The basic history is that in November 2020 I did two caricatures in my running series 'Celebrity Sunday' of Joe Biden and Kamala Harris. These are published works, and I own the inherent copyright. I have the pencil sketches to prove I drew them, and the Photoshop files to prove I created them digitally. At present they are at the US copyright office waiting on approval to be registered there.

Thursday last week, I receive a comment on a Facebook post on my Fan Page, from a concerned artist (can't post link)
I followed the link and was disturbed to find a group of people in Maryland, calling themselves as "The Deplorables" had taken my two copyrighted artworks and rendered out a vile billboard using the two heads of Joe and Kamala. You can see the main article if you type Maryland Billboard Biden into YouTube.

Firstly, I have archived any listing and post I have found and just as an estimated this article and news report have been read/viewed over 500,000+ times.

I have been in touch with the local county administrator, state highway and sheriff's office. The first two have been helpful and information of the people who did the billboard will hopefully come soon. The sheriff I find out had a re-election campaign donation from the billboard owner, and was very abrupt in his reply, in being unhelpful.

What I would like to know, is "Is this an obvious case of copyright infringement here?", "Are there any easy steps at the moment I can take to remedy some of the issues?", "Can this be considered a defamation of my professional character as well, as it is a disgusting misuse of my artwork, viewed 500,000+ times?"
Loads of questions, and my head is spinning. I am simply tired of finding this abuse regularly and feeling helpless to do anything about it.
Any help, advise or information would be greatly appreciated.

Thanks in advance

Rob

MYK

In a regular U.S. district court lawsuit, if you didn't register with the Copyright Office "timely" within three months of first publication of the artwork, I don't think you can rely on international rights to go after statutory damages, so (unless you did register "timely", you only mention that you've filed but not when) you would be limited to actual economic damages (reasonably provable lowered sales due to such things as competing merchandise) and the infringer's profits (which are minimal or zero in this case -- maybe you could get the billboard company to cough up the cost of renting the billboard per month, if it was rented).  I could however be wrong about the statutory damages requirement when it comes to foreign artists' works.  An attorney who has handled such copyright infringement lawsuits could probably tell you.

Without statutory damages, you're unlikely to recover much if anything in the above.  The U.S. doesn't really consider "loss of reputation" except as it relates to lost sales, which is not easy to prove.  There was apparently one case, Pavlica v. Behr, that suggested it was possible to award them if you could somehow provide non-speculative evidence, but that's just an idea espoused by one judge in one lower court case which didn't even award such damages.

The "small claims" copyright court isn't even up and running yet (supposedly by the end of this year), so I'm not able to find much about it, especially rules and requirements.

As far as "obvious", without seeing the original and billboard, I couldn't say.  There are defenses like parody, transformative use, political commentary, etc. that might apply.

You're allowed to represent yourself in federal courts, including the new one when it exists, but it's probably not going to be easy for you.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Rob Art

Thanks for your reply.
I am truly getting the feeling that copyright laws are not here to help anyone, unless you have money!

What is the point in having faith in such a law if it basically doesn't stop people stealing your work?

I guess I could at least send a Cease and Desist to have it taken down. I wish I could post the billboard here, not sure if you can take this part of the URL and see.
facebook.com/robsnow.creative/posts/2938013769766892?comment_id=3019086584992943&notif_id=1620859454809625&notif_t=feed_comment&ref=notif
and this for the article on the billboard: independent.co.uk/news/world/americas/us-politics/biden-calvert-county-billboard-maryland-b1845565.html

I looked at the possible defence of Fair Use, and this seems to fail on three if the four criteria listed by the copyright office.
I will continue with the AG in Maryland and I am even thinking of writing to Biden himself.
The copyright laws really need an upgrade to actually help and protect the makers. As a seller, I am now getting fake counter-claims from the Pacific Rim countries, because they know that companies like Amazon, Etsy, etc will simply send them on and not check, and the poor artists, as you say, can't take them to court in the USA to not get any compensation!

As I said, it's not required in the EU to register copyright , and am not sure how the Berne Convention covers that in cases in the USA?

Thanks

Rob

MYK

Quote from: Rob Art on 05-20-21 at 11:11 PM
As I said, it's not required in the EU to register copyright , and am not sure how the Berne Convention covers that in cases in the USA?
The U.S. doesn't require that you register copyright either.  The U.S. does require that you register if you're going to sue.

Quote from: Rob Art on 05-20-21 at 11:11 PM
I will continue with the AG in Maryland and I am even thinking of writing to Biden himself.
It's not exactly their job to sue on your behalf, but I'm sure Uncle Joe will get a kick out of it.

Quote from: Rob Art on 05-20-21 at 11:11 PM
What is the point in having faith in such a law if it basically doesn't stop people stealing your work?
It's not the government's job to sue on your behalf.  There are far too many cases, and far too many shades of gray on whether or not infringement has even taken place, for the government to do so.  It's your job to enforce your own IP rights, if you even want to do so.  The risk of a lawsuit is there to deter infringers.

Frankly, from my perspective, it's copyright that has gotten out of hand.  The term of copyright used to be the same as the term for patents -- 14 years.  And it was intended to protect works for which significant effort had been expended to make them, not every single digital snapshot someone took on her vacation.  The notion that I, or you, or anyone else, could be sued for up to $150,000 for reposting a Getty stock image from their website onto 4chan is ludicrous, and so is their demand letter offering to settle for a mere $3000.

Quote from: Rob Art on 05-20-21 at 11:11 PM
As a seller, I am now getting fake counter-claims from the Pacific Rim countries, because they know that companies like Amazon, Etsy, etc will simply send them on and not check, and the poor artists, as you say, can't take them to court in the USA to not get any compensation!
That's more an indictment of the DMCA system than anything else.  Amazon doesn't want to take on the burden of figuring it all out.  While your DMCA claims may be valid, the other side of it is also abused -- fake takedown notices by people trying to squash their competition.

On top of which, major companies, Getty in particular, have been caught going after people for photographs that Getty doesn't even have any rights on -- Getty just added the images to their site and started sending out demand letters.  Incredibly, a judge decided that because the images had been put into the public domain by the artist, that meant Getty couldn't be sued by the artist who actually created the photographs:

https://petapixel.com/2016/11/22/1-billion-getty-images-lawsuit-ends-not-bang-whimper/

And then there was the Warner Music case with the Happy Birthday song, for which they demanded royalties for decades even though their claim to own the rights was dubious.  That only took around 170 years from the date the court found that the song was created on:

https://en.wikipedia.org/wiki/Happy_Birthday_to_You

or roughly 12 times the original duration of a copyright.  All that just so Mickey Rat never falls into the public domain and Disney can continue to ruin childhoods.

And of course there are even worse scumbags, like Vellayappa Ayyadurai Shiva claiming he "invented email" because he filed a copyright on a particular email program years after Ray Tomlinson wrote the first email program, and using that to extort a bankruptcy court into paying out a settlement so that they didn't have to delay completion of the bankruptcy for several years;  or Craig Wright filing to register copyright on a paper he obviously never wrote, made easy because registration doesn't require any actual evidence of creation.

Yes, copyright requires rethinking -- or, rather, shooting it full of tranquilizer darts and dragging it back into its cage.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Rob Art

Thanks for the reply.
I wasn't implying the AG had to sue anyone for me. If you saw the news report there is a lot of complaint about the billboard, and I was hoping that the AG department could shed light on finding out who the billboard was owned/rented by, as they have governance over the State. Also, being a foreign national I have no clue how to proceed, so I was hoping they could advise a non-US citizen how the process works, and what actions I could consider.
I say this as I find out the local Sheriff had a re-election contribution from the property owner of the billboard, and when I asked him who put the billboard up (which I know he knows) he brushed off the whole thing. Not willing to help.

I had a US-based artist friend saying that the art doesn't need to be registered before the infringement, as she sued after registering after the infringement and won the case. I am writing to the copyright office to see where that stands for foreign artworks made outside the country.

Anyway, I will be writing some more. I am looking at getting news coverage from the other angle too. Not sure why they should get away with this free press and the victims have to be silent.

MYK

Quote from: Rob Art on 05-21-21 at 12:38 PM
I wasn't implying the AG had to sue anyone for me. If you saw the news report there is a lot of complaint about the billboard, and I was hoping that the AG department could shed light on finding out who the billboard was owned/rented by
From the tone of the article, it's probably some farmer with a billboard on his own land, who regularly posts political messages that leftists hate and freak out about.  We had one of those south of Seattle for a few decades;  nowadays the Antifa psychos would probably burn it down like they damn near did to all of Oregon last year.

Quote from: Rob Art on 05-21-21 at 12:38 PM
I had a US-based artist friend saying that the art doesn't need to be registered before the infringement, as she sued after registering after the infringement and won the case. I am writing to the copyright office to see where that stands for foreign artworks made outside the country.
Timely registration is primarily for statutory damages, since in most cases it's not worthwhile to sue over noncommercial uses otherwise.  I believe but am not certain that you still need to register in order to sue, though.  I could be incorrect.

Quote from: Rob Art on 05-21-21 at 12:38 PM
Also, being a foreign national I have no clue how to proceed, so I was hoping they could advise a non-US citizen how the process works, and what actions I could consider.
You would most likely want to send a demand letter first, to see if you can avoid the expense of filing and suing.  You could include a demand for payment as well as a demand to remove the board.  This is optional -- you could simply sue -- but depending on what you want, this would likely be much easier and less expensive.

After that, if unsatisfied, you could either hire a lawyer or try doing it yourself.  If you do it yourself, you would need to figure out what court you want to sue in, find out what formalities they have, and draft a complaint to file, including details of the infringement and of the relief sought.  After filing that with appropriate paperwork and payment, you would need to send notice of the suit to the defendant, including a copy of the complaint;  the requirements of service vary, with most courts/jurisdictions allowing you just to mail it to him, but some requiring that you hire a process server.

After that it's all rather fuzzy to me, since I've never run a lawsuit myself, just used outside counsel to handle it all.  The above is what I remember from a law school clinical class a decade ago, and may be incorrect or outdated.

In this day of "Zoom" court hearings (don't switch on a cat filter or name your account something perverted), you might or might not be able to handle it all yourself over an internet connection while sitting at home in Greece, with occasional mailings of signed documents.  The problem being, of course, that if you get any of the steps wrong, it may delay your case or even end it if you miss a hard deadline.  Hiring an attorney should protect you from those mistakes.

Quote from: Rob Art on 05-21-21 at 12:38 PM
I say this as I find out the local Sheriff had a re-election contribution from the property owner of the billboard, and when I asked him who put the billboard up (which I know he knows) he brushed off the whole thing. Not willing to help.
He probably gets people calling about it all the time and is tired of it.  The American Left whines and bitches about every little thing, constantly, including whether you use their "preferred pronouns" when addressing a dude in a dress who wishes he would have been born female.  Of course, when they take a photo showing them having just "cut the head off" of a sitting president with blood dripping off the plastic prop, it's "art" and should be "respected", and then they get all butthurt that nobody inside the U.S. wants to go see their shows any longer.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

CRfan

If a Berne Convention country member created a work of authorship in their country and it's subsequently infringed in the US, the international creative is not required to register their copyright claim with the USCO to pursue the US-based copyright infringer in federal court. 

Berne signatory countries cannot impose any copyright formalities, including copyright notice affixation or copyright registration, upon other signatory members. 

Statutory damages, attorney fees, and legal cost are available to both international and US authors if their works were timely registered, either before the infringement began or within three–months of their first-publication date. 

Otherwise, the only money damages available are actual damages (typically the missed licensing fee) and the disgorgement of profits (if any!) not attributed to the actual damages.

MYK

Thanks CRfan!  Just to verify:
Quote from: CRfan on 06-03-21 at 03:51 PM
If a Berne Convention country member created a work of authorship in their country and it's subsequently infringed in the US, the international creative is not required to register their copyright claim with the USCO to pursue the US-based copyright infringer in federal court.
NOT required to register if the author is an international, even when suing? 

Quote from: CRfan on 06-03-21 at 03:51 PM
Statutory damages, attorney fees, and legal cost are available to both international and US authors if their works were timely registered, either before the infringement began or within three–months of their first-publication date.

Otherwise, the only money damages available are actual damages (typically the missed licensing fee) and the disgorgement of profits (if any!) not attributed to the actual damages.
So, statutory damages are NOT available if NOT timely registered, even if the author's rights are derived from the Berne Convention?

I'm wondering in particular about the second, since that would impose a registration requirement even on Berne authors, which seems to contradict the "cannot require registration" part.  I realize they end up with the same rights as an American author who didn't timely register would have, but a foreign author is much less likely to choose to register timely in the U.S., because they probably wouldn't even know about the availability of statutory damages.
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Rob Art

Quote from: MYK on 06-04-21 at 06:39 PM
I'm wondering in particular about the second, since that would impose a registration requirement even on Berne authors, which seems to contradict the "cannot require registration" part.  I realize they end up with the same rights as an American author who didn't timely register would have, but a foreign author is much less likely to choose to register timely in the U.S., because they probably wouldn't even know about the availability of statutory damages.

I believe I read somewhere, that a Berne Convention signatory country has something like 5 years from first publication to register. Not sure on the damage consequences on that.
I am also reading up about CMI infringement as well. Seems like if the CMI is tampered with in anyway, then damages of $150,000 are able, even without registering. I am checking that with the USCO.

Rob

BladeRunner

Hope you were able to get this resolved. If you contacted a local private investigator, they could find the owner of the billboard. A
Cease and Desist should have been enough. They were not monetizing from using the art. Also, since this was news, getting the local media involved would have helped as well.



www.intelproplaw.com

Terms of Use
Feel free to contact us:
Sorry, spam is killing us.

iKnight Technologies Inc.

www.intelproplaw.com