Sue or not to Sue - Will leave it up to GFY.
 

Ok here is the issue / story so far.

We are a single model Asian site.

A Large top 500 site in the world is whom we have the issue with.

A "member" took one of our images and used it as their profile image.

The site then proceeded to take our image and use it in their ad rotation for 5 months.

This was seen on over 300 sites and by millions of viewers.

Their site does not tell it's users that it will or may use the images in advertisements ( TOS ).

The issue obviously is that this large site used a well know models image and used it for monetary gain.

The site does not publish it's company information anywhere. We sent DMCA notices to their DMCA notice links to have the emails bounce back. So we started to mail every email we could find, including support, and partner program emails.

Finally we got some response back from their attorney stating that they took the image out of their ad rotation. Another email got the image taken down from their caching servers.

At this point their attorney just admitted that they used our image in there add rotation!

We contacted them back letting them know this and that we expect our model licensing fee is paid the use of our image.

"If Pepsi uses Madona's song in their advertisements and she finds out about it, You can guarantee that she will get paid for it!" was my comments back to the attorney.

They came back to me stating that the copyright was not filed with the US copyright office. We know this and this is not the issue.

They also stated that they are exempt under the DCMA safe harbor provisions, and under the Section 230 of the Communications
Decency Act.


I wrote back with

"
DMCA safe harbor provisions are designed to shelter service providers from the infringing activities of their customers.

The action to advertise using our image was *********** .com decision, Not a customer, hence they are responsible for their actions.

Section 230 of the Communications Decency Act does not cover this as well.

***********.com knowingly used the image in Advertising, Not a customer.

Therefor Francine Dee is due the licensing fee for ***********.com use of her image in their advertisements which generated ***********.com income.

You just cannot steal peoples content and use it to make money off of. "



Please let me know your comments and opinions on this issue.

Set a precedent.

Sue.

If you have the money then take this to court. But be prepared to spend some coin :thumbsup

Good luck on whatever you decide, Francine is smoking.

take em down

NO,
I wouldnt even think about it..unless you dont mind spending thousands on something you may or may not win and if you did win the damages im guessing would be small.

Did you lose huge income from it happening ? Did they gain huge income from doing it....if the answer is No forget it.

Just my personal view.

sue ......


.

You seem to be new in this.

I wouldn't sue, only lawyers would profit from it. Try to get a settlement.

Hypothetically, if you sued, and got the absolute best verdict, what would be the dollar value?

Have you taken advice from an attorney?
Take one of the "No win no fee" ones.... ;)

Thousands? Just the retainer would be as high. This could cost him tens of thousands and no positive outcome at the end.

Yes your correct..I just said thousands meaning unlimited amounts :winkwink:

When lawyers are involved be prepared to spend money as if it means nothing to you ...as it can get very expensive.

One of the industry attorney's who specialize in copyright should be able to pursue this and potentially make you a lot of money. Not sure if they will want up front money to represent you, but you can at least ask and see if they think it is a winnable case and what it might involve. The law may entitle you to statutory damages if you have a copyright filed or if not, it may entitle you to actual damages if you can prove that.

In most cases, I don't like sue happy people. However under the current situation where everyone content is constantly being stolen and often used in this very same manor. I say sue.

The reason i said NO dont is due to these points.

You yourself commented a member stole it and placed it in thier profile ( and the site uses profiles for banners)...so they didnt lift it from your site.

more important ,when a damages claim is put together l assume they look at the $ loss of one party and the gain of the other and in this case it seems minimal ?

If your still unsure I guess the best advice is " Consult a lawyer " :thumbsup

Frankly, it is not worth the expenses or going the distance. Just ask Perfect10 who have been trying to sue everyone for years on how successful they have not/been. Especially when it comes to Google, and their 'chillingeffects.org'.

Once they received notice, they removed it per DMCA.

Them admitting it was used in an advertisement, and them intentionally or maliciously admitting to using it are two different things. Especially if it is just rotated their member's images based on click thru's or some shit by their CMS or script.

While they are trying to cite 'user uploaded content' and 'safe harbor' as on their side, I think there is simply too much grey area in this matter, and you are going to spend a lot of money and years of hassle for nothing more than pride.

There was a YouTube case just last year involving some dancing kid and a song playing in the background while the kid was dancing. The record company sued and lost. The video was reposted and legal. I would open up a history book, and bone up on some cases already lost before breaking open your check book to pursue this.

That said, "pride has no place in the courtroom".

:2 cents:

I think the lawyers would get more out of this than you would, even if win. They have already thrown their lawyer at you. Maybe getting you a lawyer to try to work out a compensation package of some sort. Without going to court would be your best avenue..

the only people who ever win are the lawyers.

File the suit. Maybe it will provoke them to settle as they do not want to pay a huge amount in legal fees either.

The best quote in this thread :thumbsup

Drop it, my advice. :)

Based on what you've said I'd say you have a case.

The reason is they used Francine's image or likeness to advertise. It's not about a stolen picture.

This cannot be done without her permission with a signed release.

At least that's the way it is in the real world. I have no idea what the rules are for the internet world :upsidedow

Court is costly so the best way is to find a lawyer willing to work for any damages received. The settlement would not be about lost revenue from that single picture. It would be about using her likeness and possible damages to her reputation and or her career.

Perhaps you could put up something on her site with hopes that one of her fans is also a lawyer and willing to fight the good fight without costing you more than it's worth.

BTW I'm not a lawyer or speaking from experience. Just putting in my :2 cents:

I don't see a win in this. How would you prove that your content made them money? It likely did not. It's really just "another picture" in a pool of many that they selected.

Not saying what they did wasn't wrong... just saying I don't see you coming away from this in a better position.

seems like they were cooperative and complied with your request

Case closed.

Good luck, when it comes to litigation, only the lawyers win.
WG

Really depends on whose lawyers are better, and if you have proof of each infringement. If you can can prove that each time the ad loaded with your image, was a separate case of infringement, then you're talking about a lot of money. $750 - $30K per case of infringement.

http://www.copyright.gov/title17/92chap5.html#504

Pornlaw should jump into the thread and set some of the people straight. Now it still may be too expensive to litigate, but if you have the money and if you filed copyrights for your content previously, I believe that you have a case for statutory damages whether they made money off your photos or not.

The model has a solid independent claim under a theory of right to publicity...

And you might have a winner as well but...

You have a copyright claim but without the registration you cannot even sue at this point. You will need to file for the copyright and then file. Since you did not copyright the image prior to infringement you can only to go after actual damages, which means you will need an expert to review the data and testify.

We just hired a copyright expert in a case - retainer was $15,000.00. His total expense will be about $25,000.00. By the way, the $15,000 in non-refundable.

Your damages will be based upon an "unjust rewards" theory. Which means you will be entitled to the gross earnings made from that ad. Here's the problem, they get to reduce gross to net and are allowed to introduce testimony and evidence to that effect. A jury doesnt have to buy it though.

I need more information about the infringement but I know the DMCA cannot be used as an affirmative defense against the models claims and I dont see how they could use it against you either.

Good-luck and now go make some lawyer rich....

You have a case. Use a lawyer that will not receive any money unless the case is won.

I have never delt with that type of lawyer but would assume they are interested more in the bigger medical/accident/malpractice cases ? so that they know thier fees etc will be covered if they win ? I didnt think they would take on cases such as copyright claims of models and such on a "no win no fee basis "?

Maybe im wrong as I mentioned I have never sought advice from a lawyer of this type ??? do they take on most cases ?

Oh, one important point I forgot to mention. If you are filing in the US -you could only reach the gross US profits.

As for mgtarheels comment --good luck finding a lawyer to take this one on contingency. Most copyright litigation cases will require $100,000 or more of attorney time. If the case is worth $300,000 or more - then maybe. But its hard to determine value before any discovery is done. If they didnt have much in the way of sales your attorney may pull out before then end of the case and leave you hanging if you arent paying them.

Modern Business Model:
1. Take Entity A's materials, use them in whichever way you want that can help you make money.
2. Entity A will tell you to take them down/stop using them. Do that when they tell you to.
3. Repeat for any number of additional entities. Massive profits.
4. If any legal issue comes your way, "rogue employee" it.

Teach your kids.

That said, a lawsuit is pretty futile over this IMO. Burning your money instead would be a better use if it because it would take less of your time.

:winkwink:

You learn well grasshopper.
:pimp

Cue gideon gallery in 4,...3,...2...

umm im not so sure ....

If the wager was "The quickest way to get rid of your money " and the options are:

1. Burn It

2. Employ a good group of lawyers


I would say its a 50/50 even bet on the outcome ...:1orglaugh :winkwink:


(Michael excluded).....He seems a good straight talking lawyer from his past posts .

Im suing someone right now(non-porn related).. I am paying an attorney up the ass. It's not about the money no more, its more about principal.

And you sir are a lawyers best friend !! We love the people who sue on principle and say things like "moneys no object" or "I dont care what it costs, just fuck them over." It warms the cockles of our collective hearts !!!

Please let me thank you on the behalf of your lawyer who probably wont tell you this....

Seriously though, a lawsuit is a business decision. Nothing more, nothing less. The line I use with my clients is - from Wall Street -- Gordon Gekko -- don't get emotional about money [stock]. Settle any case you can and leave the emotion to your family and things more important and deserving of it.

And thank you CyberClaire.... :pimp

Pornlaw, your participation in these threads is always welcome reading. Based on what you write above, it seems that in practical terms it would be impossible for any small to medium sized producer or studio to sue for even the most egregious of copyright infringements even if they filed for copyrights diligently since most companies simply will not have a six figure war chest of money to burn through in the hopes of wining a case and collecting statutory damages. Would you say that was a fair statement? Or are there any slam dunk cases where it would not potentially cost so much in attorney fees to hire an attorney like your self and try to win and eventually collect the statutory damages available under the law?

one image?
Forget about it. Move on. Save your legal budget for something real.

Not worth time, money or stress. Unless your lawyer tells you that you will absolutely win (and has done the research to back this up), move on. They money you would spend on this gamble could be used for much better things I'm sure.

Thanks and to answer your question yes. If content producers would make it a practice of learning how to copyright their pics and videos before posting them - piracy could be more easily fought.

If in the above case had the OP had the copyrights registered before the infringement I would seriously consider taking the case on contingency. And more than likely an expert would not be needed.

I cannot stress how important it is for producers (1) use work for hire agreements when creating content and (2) actually registering their content before publising it.

That makes our work and a content producer's expenses much less...

did you submit DMCA to their host? that would have gotten a quick response. If you want to prove a point take them to small claims that way you dont have to spend tons on attorney fees. But if they have more money than you if you take them to court they will counter sue and tie you up for the next 10 years. Thats my prediction. The question is how much did the use of that image really make them?

Good luck with the content theft issues, Morphious.

do not forget the question in topic ... once you will sue, you will ve suying

You will lose money, time and energy and gain nothing.

And BTW, in Today's adult internet, it seems that anyone can do whatever he wants, and he won't be punished. The current impunity in the adult business has absolutely "No Limits"...

From sponsors not paying....... to people using content from others..... and "nobody really cares" about anything.

I read OP's plea and took it as the problem is the offender used the models picture to advertise on their site. So I wouldn't think this was about copyright. I think this is about using someone's likeness without permission.

An example would be if I was selling golf balls and I just took a picture of Tiger woods off the internet and used it to promote my golf balls. The copyright owner might sue me for damages and Tiger would sue me for using his likeness.

I'm sure it's not worth going after the theft of one picture but using someone's likeness without permission for financial gain would seem to be the way to go and a lot easier to prove.

It also seems that a lot of these cases can be settled out of court with the right approach.

Question for PornLaw


Single Published Photographs and Published units With one application and filing fee, you can apply to register a single published photograph or an entire unit or package of published photographs?for example, photos in a calendar, a set of baseball cards, or illustrations in a book. You can apply to register these types of photographs using eCO, Form CO, or paper Form VA. See the back side of this form letter for details
http://www.copyright.gov/fls/fl107.html

Q: Can "an entire unit" be photos from three month of shooting? Title First quarter 2010

And thats the million dollar question... the US Copyright Office really hasnt caught up to the internet yet and it really depends on - not when the content was shot - rather when it was/will be published. A website is an ongoing work, not a single unit of published material. Therefore its sometimes difficult to figure out.

And if you get it wrong and the registration gets thrown out, so does your case.

Therefore I would copyright whatever the content is - as you publish it. Meaning that if you are going to add 100 pics and 10 videos to your site on 3/31/10 -- file for the registrations on all of that content together.

http://www.eff.org/cases/lenz-v-universal

universal ending up paying all her legal fees and it think something like 10k in damages

so sue if you are willing to end up paying the same thing.

considering that you admitted and it was a member that did the uploading and the TOS gave them what they could believe was a valid licience to use the content, it a 50/50 shot at best you would win.