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Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail? Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
These photos would be photos taken during private family gatherings
(to which the taker was invited). The photos have been posted on a
couple of popular online communities, and have actually been taken and
reposted by another individual who claims that they are photos of his
children. Of course there is some flicker of validity in his claims,
in that the children were his many years ago, before he abused them
and lost his rights to them (Department of Human Services action), and
before they were adopted by my family and renamed. My fear is that in
posting the photos on a website identifying them and their current
relationship to the photo taker, the original father (obviously
suffering from mental illness) is now able to identify the children
years later and possibly act in a way that would harm them. Of
course the man could have found the children eventually, but if he is
continually spoon fed information about my children through this 3rd
party, I fear that they children may be continually put into danger
due to this man's disillusioned mind being fed enough information to
stir up anger and resentment towards his situation.
So, is there anything I can do to prevent further posting of photos of
my children - short of hiding them from cameras, which really isn't an
option?
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On Apr 1, 11:45 am, HawtDawg <HawtDaw...@gmail.com> wrote:
Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail?
That depends on a whole lot of facts you haven't included in your
post. Who is taking these pictures? And who is posting them online
(the same, or a different person than the photographer)? And what is
the context, and the reason for the posting? If it is the children's
mother and she has custody of them and is posting to her own website
or social networking page, I don't think there's much if anything you
can do about it.
OTOH if a person who is a complete stranger to your family is doing
this, you may be able to do something about it, but again this depends
on all the facts. It could constitute stalking, harassment, or (e.g.
if they are posting pictures of your kids skinny-dipping in the wading
pool in the backyard) child porn or worse. You really ought to
consult a local lawyer in private confidence to discuss what all your
options are.based on the totality of facts.
Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
Again, it depends on who is doing the posting, and why they are doing
it. If a person with a legitimate relationship to these kids is
simply putting a family photo album online, how is that any different
than if she simply takes the kids out in public, where anybody
(including the former abusive father) could see them? OTOH if you
have evidence which would indicate the former abuser is still
specifically targeting your kids, and that someone is helping him do
this, IMO that's the aspect you need to focus on, not the fact that
their photos are being posted online.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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HawtDawg wrote:
Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail? Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
[photos taken legitimately and not used for commercial purposes]
You can get a restraining order if you can convince a judge that there
is a reasonable possibility that the distribution of the pictures poses
a danger to your children.
The problem is assembling some hard data which will demonstrate such a
danger. Frex, have such behaviors in the past resulted in the outcome
you fear? Is your fear reasonable?
While applying for a restraining order (these have different names in
different locales sometimes) isn't too tough, presenting your fears in
such a way to convince a judge may not be easy enough for you to tackle
on your own.
What I'd do first is to contact the child welfare agency which placed
the kids in your care explaining your situation. It may supply you wiht
a department attorney to help you forge your petition for such a court
order. If that fails, then you'll need to speak to a private attorney.
I'd suggest you start with one familiar with 'family law'.
-paul
ianal
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On Tue, 01 Apr 2008 12:45:50 -0400, HawtDawg <HawtDawg42@gmail.com>
wrote:
Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail? Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
IANAL The other 2 ARE lawyers maybe, and they didnt' say antying,
but I can't help thinking, just guessing and I might wll be wrong, you
might have the right to stop your hcildren from being posted like
this. I don't think MySpace wants any more legal problems but they
don't know who posted the pictures or that their father is objecting.
You should tell them.
You don't say how old the children are and I think that matters quite
a bit. At some age, 12? people outside the family tend to think that
they have a mind of their own. and below some age, they expect
parents to do all the thinking for them. The law recognizes that
too, for example in custody disputes, but Im' not sure that matters
here.
I have gotten the impression that MySpace etc., are the height of
irresponsible, but a) I might have gotten the wrong impression. The
news exaggerates most people's bad traits (for some people,
exaggeration is not possible.) and b) just yesterday I think one of
the places announce improved security measures. Although I can't
remmeber what kind, it showed that they are not so irresponsible now
if maybe they once were**..
So I would consider bringing your case right to the webpage
management. Being tactful and polite and hoping you can convince them
to do the right thing. By email or maybe regular Maybe you can get
them to reply. Either way, and with a follow-up by phone by you.
I woudn't threaten to sue, but I wouldn't give any indication that
you're fore closing that possibility. I'm not the best negotiator by
any means, but maybe in a second letter I woudl say, I don't want to
sue when this is so easy to resolve without that.
You must get someone to edit your letter, your first post. It's not
as clear as it could be, some sentences are unneeded, you want it to
be short and to the point, wihtout being misleading.
These photos would be photos taken during private family gatherings
(to which the taker was invited).
You'll probably want to say to them exactly who this person is,
biologicial father's sister, whatever.
The photos have been posted on a
couple of popular online communities,
What are these "communities"?
I don't konw that you should go into mulitple locations, just make
each letter relate to "you" or "your page" or whatever one calls it.
and have actually been taken and
reposted by another individual
Have to name the guy, I think and give his exact relationshiop.
who claims that they are photos of his
children. Of course there is some flicker of validity in his claims,
I wouldn't play games about flickers and "who claims". I would make
your letter or spoken words simple and clear, the biological father
whose children where taken from him because he abused them. I might
go into some detail about this if it is upsetting or disgusting, so
the person you are writing or talking to can feel moved to do
something. Personally, if one were to say for example that they were
removed because of "neglect" that doesn't do much for me. Left alone
and not fed for 48 hours would generate much more sympathy on my part,
but don't lie.
in that the children were his many years ago, before he abused them
Even here you could have said how many years ago. If it's many many,
it sounds like the children are now 20 years old. Many is 7 and many
many is a at least a few times 7. Give a number and don't play games.
and lost his rights to them (Department of Human Services action), and
Personally I think "The Department of Human Services had his parental
relationship (or maybe "rights") with them terminated in court (or
Rochestor Family Court)" is more direct, and stronger. He didn't
lowe his rights. They didn't fall out of his pocket. They were taken
from him because he did bad things to those children.
before they were adopted by my family and renamed. My fear is that in
posting the photos on a website identifying them and their current
relationship to the photo taker, the original father (obviously
suffering from mental illness) is now able to identify the children
Reorder all this to put the frightening stuff first, so that the
reader will relate to your fear, before you say "my fear". People are
afraid of everything, spiders, and some people are in the habit of
dismissing fears.
The biological father suffers from mental illness, and since their
current last name is given, this is likely to inspire him to find and
kidnap and harm my children.
There is no positive purpose in having their pictures up. I am their
father and guardian, and I request that you remove their pictures
within 3 days. If you wish to discuss this, contact me at phone
number or email address. Phone number would be better but give them
one where you will be reachable. Maybe worth getting a cell phone
just for this purpose, although you'd have to make sure you know how
to answer it and that you keep it on and charged. (I carry my cell
phone in my pocket and I keep finding it with the ringer turned off
znc zzz showing, like it's asleep. I don't know why.)
years later and possibly act in a way that would harm them.
Too weak. Don't talk about "a way that will harm them." That could
include feeding them too much cotton candy, or taking them on a long
hike where one falls down. I'm not at all saying this is going to
happen, but you need to remind them of the worst-case scenario. There
has been a case in the last 7 days in Baltimnore where an ex-husband
took all three of his kids to a downtown hotel and drowned them. Find
out the name and date and say, I see what happened to Nancy, Mary, and
Billy Smith in Baltimroe on March 29th of this year, just two weeks
ago, and I don't want us to be part of this happening to my kids.
Of
course the man could have found the children eventually, but if he is
Fine to bring that up here, but remove it when you communicate with
facebook.
continually spoon fed information about my children through this 3rd
party, I fear that they children may be continually put into danger
due to this man's disillusioned mind being fed enough information to
stir up anger and resentment towards his situation.
repetitious and some of this is weak.
So, is there anything I can do to prevent further posting of photos of
my children - short of hiding them from cameras, which really isn't an
option?
What. I thought you wanted these pictures taken down. Yoy're only
worried about future pictures?? Your letter is totally unclear. Do
much bertter when you write to anyone who can actually do something.
You'll get much better results, on Usenet and in real life if you say
what you want in teh first sentence, give the reasons, and then say
what you want in the last sentence. You got the last sentence.
If you are inclined to email me
for some reason, remove NOPSAM :-)
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In article <lo4cv35b7bvsbeg3kjq845ijh49a1fnmvo@4ax.com>,
Paul Cassel <pcasselremove2@comremovecast.net> wrote:
HawtDawg wrote:
[photos taken legitimately and not used for commercial purposes]
Does the photographer have a "model's release" for the subjects of the
photos?
Copyright does include the right to control the use of one's own likeness.
For/not for "commercial purposes" is _not_ a determining factor.
A DMCA 'takedown notice' to the provider hosting the web-site might be
effective.
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Robert Bonomi wrote:
Does the photographer have a "model's release" for the subjects of the
photos?
Copyright does include the right to control the use of one's own likeness.
For/not for "commercial purposes" is _not_ a determining factor.
A DMCA 'takedown notice' to the provider hosting the web-site might be
effective.
Nothing in the OP directly or indirectly indicated that the pictures
were taken w/o the subjects' knowledge and permission. I'm sure there
was no formal model release but the familiarity of the picture taker and
the subjects would make that understood if not explicit.
No matter. The process of enforcing copyright would be even more
cumbersome than the RO. In addition, even if there is a copyright
violation here, since the pix aren't being commercially distributed,
there are no damages.
-paul
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Terms of use of this message: It may not be stored or read in North
Dakota. (see http://www.circleid.com/posts/811611_david_ritz_court_spam/
for the reason.)
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
HawtDawg wrote:
Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail? Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
Does the photographer have a "model's release" for the subjects of the
photos?
Obviously not.
Copyright does include the right to control the use of one's own likeness.
For/not for "commercial purposes" is _not_ a determining factor.
Where does the copyright law say that?
http://lcweb2.loc.gov/ammem/copothr.html says "neither privacy nor
publicity rights are the subject of federal law."
A DMCA 'takedown notice' to the provider hosting the web-site might be
perjury.
Seth
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Seth wrote:
Terms of use of this message: It may not be stored or read in North
Dakota. (see http://www.circleid.com/posts/811611_david_ritz_court_spam/
for the reason.)
Sorry, but I don't agree to your "terms of use" and those can't be
unilaterally enforced in that manner.
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
perjury.
It might be a misstatement of the law but it wouldn't be perjury since
it wasn't sworn to under oath.
--
http://www.myspace.com/prabbit237
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In article <1hihv31alr41gp8hdkgam33d5sdj5087n9@4ax.com>,
Paul Cassel <pcasselremove2@comremovecast.net> wrote:
Robert Bonomi wrote:
Nothing in the OP directly or indirectly indicated that the pictures
were taken w/o the subjects' knowledge and permission. I'm sure there
was no formal model release but the familiarity of the picture taker and
the subjects would make that understood if not explicit.
That's all well and good for pictures taken for personal use.
When you get into 'publication', there is a large body of case law to the
effect that a release from each 'recognizable person' in the image =is=
necessary. In large part _because_ there are regular, and pervasive,
'misunderstandings' between 'photographer' and 'model' as to just _what_
permission is being granted at the time the picture is taken.
A claimed release based solely on pre-existing 'familiarity of the picture-
taker and the subjects' "isn't worth the paper it's written on." (to use a
tired phrase)
No matter. The process of enforcing copyright would be even more
cumbersome than the RO.
A DMCA 'takedown' is _far_simpler_ than just filing for a _request_ for a
restraining order. Without involving the messiness of the actual hearing.
And, at least in the initial stages, far *faster* in effect.
In addition, if the material goes back up -after- the takedown demand has
been made, _and_ the reasoning the perpetrator gives to the provider as to
"why" he does have rights to use that material are demonstrably bogus,
*then* you have a slam-dunk presentation for "willful and knowing"
infringement with the _statutory_ damages limits of 17 USC 504 (c) (2) being
applicable, _and_ recovery of costs and attorney fees under 17 USC 505
Yeah, a full-blown copyright infringement _lawsuit_ would be really messy,
and expensive -- but there are much easier/simpler ways (see below), _if_
the primary objective is simply to 'shut him down'.
OTOH, if the perpetrator resists the DMCA takedown, statutory damages of
up to $150,000 plus costs and attorney fees -could- make it worthwhile to
go the 'full circus' route.
_Enforcing_ a RO, when the opposite party is _not_ co-operative is also
very expensive, time-consuming, and otherwise 'messy'. Furthermore, a RO
is _not_ grounds for asking a hosting provider to mess with the customer
owned/operated web-site.
In addition, even if there is a copyright
violation here, since the pix aren't being commercially distributed,
there are no damages.
*W*R*O*N*G*
see:
17 USC 502,
17 USC 503,
17 USC 504 (c) (1) and (2),`
"commercial distribution/use" is _irrelevant_ to the =fact= of 'damages'.
It is relevant *only* to the amount of damages to be awarded.
Note: 17 USC 504 (c) expressly provides for statutory damages, 'in lieu of
actual damages'.
In the instant situation, a statutory claim under 17 USC 504 (c) (1) would
probably be of a magnitude that it falls within the jurisdiction of
_small_claims_ court. As such, the filing, prosecution costs, and other
hassles, are *FAR* below those involved in attempting to get a restraining
order -- let alone enforcing said RO.
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In article <3hihv3dtnta16mju0od0ejaj8kevo118sm@4ax.com>,
Seth <sethb@panix.com> wrote:
Terms of use of this message: It may not be stored or read in North
Dakota. (see http://www.circleid.com/posts/811611_david_ritz_court_spam/
for the reason.)
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
HawtDawg wrote:
Can I legally act to prevent others from posting photos of my children
online, or sending them to others via email or postal mail? Are there
any laws that would help me enforce my request to an individual to
protect my children by not publicly posting these photos or providing
them to others?
Obviously not.
Note: _I_ don't make assumptions about critical matters like that. :)
Where does the copyright law say that?
Would you care to argue that ones physical likeness is:
(1) _not_ an original work
(2) _not_ the result of 'creative' effort
(3) _not_ fixed in a tangible medium of expression
Regardless of =your= opinion on the above, the _courts_ have held, repeatedly,
that's one's physical likeness is protected.
*Any* image of same is, therefore, a 'derivative work'.
This is (greatly simplified) why "model's releases" are an absolute necessity
in the photography business.
There's *LOTS* of case law on point.
http://lcweb2.loc.gov/ammem/copothr.html says "neither privacy nor
publicity rights are the subject of federal law."
Which _is_ correct, *as*stated*. In the real world, however, things are
'messy', and copyright claims _do_ interact with privacy/publicity issues.
Note: in the instant case, the _photographer_ provided the images to a
third party, and that party engaged in publication/distribution thereof.
While statutes specify that 'publication alone does not constitute
infringement', "distributing to others for purposes of redistribution"
_does_ constitute infringement.
Aside, quoting from the above web-page:
"Note also that while fair use is a defense to copyright infringement,
fair use is NOT {emphasis added} a defense to claims of violation of
privacy or publicity rights."
`
"..., users of materials are responsible for clearing any privacy or
publicity rights associated with the use of materials .....
Such clearances are separate and in addition to copyright clearances."
perjury.
_Your_ comment comes perilously close to defamation. *grin*
`
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In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>,
Mike <prabbit1@shamrocksgf.com> wrote:
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
A DMCA 'takedown notice' to the provider hosting the web-site might be
perjury.
It might be a misstatement of the law but it wouldn't be perjury since
it wasn't sworn to under oath.
The DMCA prohibits false statements in takedown notices or
counter-notices. The NFL was threatened with legal action
for refusing to accept a lawyer's claim that her posting of
NFL video was fair use; a highly biased description of that
event is here:
<http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanctions.html>
17 USC 512(f):
"Any person who knowingly materially misrepresents under this
section ... that material or activity is infringing ... shall
be liable for any damages, including costs and attorneys' fees,
incurred by the alleged infringer, by any copyright owner or
copyright owner's authorized licensee, or by a service provider,
who is injured by such misrepresentation, as the result of the
service provider relying upon such misrepresentation in removing
or disabling access to the material or activity claimed to be
infringing, or in replacing the removed material or ceasing to
disable access to it."
--
John Carr (jfc@mit.edu)
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On Mon, 07 Apr 2008 07:39:20 -0400, bonomi@host122.r-bonomi.com (Robert Bonomi)
wrote:
In article <3hihv3dtnta16mju0od0ejaj8kevo118sm@4ax.com>,
Seth <sethb@panix.com> wrote:
Copyright does include the right to control the use of one's own likeness.
For/not for "commercial purposes" is _not_ a determining factor.
Where does the copyright law say that?
Would you care to argue that ones physical likeness is:
(1) _not_ an original work
(2) _not_ the result of 'creative' effort
(3) _not_ fixed in a tangible medium of expression
"There is no 'work of authorship' at issue in Toney's right of publicity claim.
A person's likeness--her persona--is not authored and it is not fixed. The fact
that an image of the person might be fixed in a copyrightable photograph does
not change this." Toney v. L'Oreal USA, Inc., 406 F.3d 905, 910 (7th Cir. 2005)
Regardless of =your= opinion on the above, the _courts_ have held, repeatedly,
that's one's physical likeness is protected.
It may be protected, but it is not protected by copyright.
"From this we must also find that the rights protected by the IRPA are not
'equivalent' to any of the exclusive rights within the general scope of
copyright that are set forth in 106. Copyright laws do not reach identity
claims such as Toney's. Identity, as we have described it, is an amorphous
concept that is not protected by copyright law; thus, the state law protecting
it is not preempted." Toney v. L'Oreal USA, Inc., 406 F.3d 905, 910 (7th Cir.
2005)
*Any* image of same is, therefore, a 'derivative work'.
A derivative work can only be derivative of another copyrighted work.
One's identity is not an authored work.
This is (greatly simplified) why "model's releases" are an absolute necessity
in the photography business.
This is because there is a patchwork of rights which differ by state. Some
states protect the right of publicity more than others. Considering that most
traveling photographers are not going to be experts on the laws of every state,
it makes very good sense to have people waive what they have, whatever it is.
Most of those standard waivers are very broad, which is why one should be
very careful in signing one. (Cf. a bunch of cases involving "Girls Gone
Wild" and other similar video series likely to cause later remorse.)
There's *LOTS* of case law on point.
http://lcweb2.loc.gov/ammem/copothr.html says "neither privacy nor
publicity rights are the subject of federal law."
Which _is_ correct, *as*stated*. In the real world, however, things are
'messy', and copyright claims _do_ interact with privacy/publicity issues.
They interact with, but are not identical to, copyright law.
Note: in the instant case, the _photographer_ provided the images to a
third party, and that party engaged in publication/distribution thereof.
While statutes specify that 'publication alone does not constitute
infringement', "distributing to others for purposes of redistribution"
_does_ constitute infringement.
Aside, quoting from the above web-page:
"Note also that while fair use is a defense to copyright infringement,
fair use is NOT {emphasis added} a defense to claims of violation of
privacy or publicity rights."
That's because privacy and publicity rights claims are not copyright claims,
and therefore, defenses to copyright infringement would not apply to them.
`
"..., users of materials are responsible for clearing any privacy or
publicity rights associated with the use of materials .....
Such clearances are separate and in addition to copyright clearances."
A DMCA 'takedown notice' to the provider hosting the web-site might be
perjury.
_Your_ comment comes perilously close to defamation. *grin*>
`
The DMCA requires that one state a "good faith belief" that what is being
notified is, in fact, a copyright infringement. Therefore, it would be perjury
if someone was entirely aware that they had no copyright claim, and chose
to use the DMCA anyway.
I think most people, perhaps even many lawyers who do not practice in
intellectual property, would be safe from a perjury charge in mistakenly
confusing the two kinds of rights, though an attorney might perhaps have
a professional competence issue if they didn't check it out before
sending a DMCA.
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In article <ss1kv3plckfvuq9dsa14a75c18mf18mu6n@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
When you get into 'publication', there is a large body of case law to the
effect that a release from each 'recognizable person' in the image =is=
necessary.
So it isn't practically possible for anyone to publish a picture of
Times Square?
Google Streetview doesn't get releases, and publishes pictures which
sometimes show recognizable people.
A DMCA 'takedown' is _far_simpler_ than just filing for a _request_ for a
restraining order. Without involving the messiness of the actual hearing.
And, at least in the initial stages, far *faster* in effect.
In addition, if the material goes back up -after- the takedown demand has
been made, _and_ the reasoning the perpetrator gives to the provider as to
"why" he does have rights to use that material are demonstrably bogus,
He doesn't have to claim he has the right to use the material, merely
that his posting it is not a *copyright* violation.
Yeah, a full-blown copyright infringement _lawsuit_ would be really messy,
and expensive
Doesn't the photographer own the copyright on his photographs?
Seth
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In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>,
Mike <prabbit1@shamrocksgf.com> wrote:
Seth wrote:
Sorry, but I don't agree to your "terms of use" and those can't be
unilaterally enforced in that manner.
Ah, but in North Dakota a court has ruled (see the referenced URL)
that such terms of use _can_ be.
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
A DMCA 'takedown notice' to the provider hosting the web-site might be
perjury.
It might be a misstatement of the law but it wouldn't be perjury since
it wasn't sworn to under oath.
The DMCA requires notice to be made under penalty of perjury.
Seth
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henri <henri@nowhere.com> wrote:
bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
Regardless of =your= opinion on the above, the _courts_ have held,
repeatedly, that's one's physical likeness is protected.
It may be protected, but it is not protected by copyright.
I'd be interesting in seeing the "repeated" cases Robert is talking
about. I've never seen them. On the contrary the rule I've always seen
is that a photo of someone taken from a public place where anyone could
have legally been, the photo is not protected. That's the reason you see
embarrassing photos of celebrities published all the time, and no one is
successfully sued.
This is (greatly simplified) why "model's releases" are an
absolute necessity in the photography business.
This is because there is a patchwork of rights which differ by
state.
I suspect it's mostly because people are litigious, some people will sue
over anything and some lawyers will take even frivolous cases if they
think they might get someone to pay a nuisance settlement.
Stu
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In article <t5mmv3dal9q9ma3rrc1i2jrg2m701osb9c@4ax.com>,
Seth <sethb@panix.com> wrote:
In article <ss1kv3plckfvuq9dsa14a75c18mf18mu6n@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
So it isn't practically possible for anyone to publish a picture of
Times Square?
Google Streetview doesn't get releases, and publishes pictures which
sometimes show recognizable people.
Google 'fair use'. *snicker*
A DMCA 'takedown' is _far_simpler_ than just filing for a _request_ for a
restraining order. Without involving the messiness of the actual hearing.
And, at least in the initial stages, far *faster* in effect.
In addition, if the material goes back up -after- the takedown demand has
been made, _and_ the reasoning the perpetrator gives to the provider as to
"why" he does have rights to use that material are demonstrably bogus,
Doesn't the photographer own the copyright on his photographs?
A release from the photographer, ALONE, is not sufficient, when the photograph
is a 'derivative work'.
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In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>,
Mike <prabbit1@shamrocksgf.com> wrote:
Seth wrote:
Sorry, but I don't agree to your "terms of use" and those can't be
unilaterally enforced in that manner.
It might be a misstatement of the law but it wouldn't be perjury since
it wasn't sworn to under oath.
Nit: a DMCA takedown notice _does_ include an affirmation of the accuracy
of the claims made therein. I believe the language _is_ 'under penalty of
perjury'. <grin>
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John F. Carr wrote:
In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>, Mike <prabbit1@shamrocksgf.com> wrote: In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>, Robert Bonomi <bonomi@host122.r-bonomi.com> wrote: A DMCA 'takedown notice' to the provider hosting the web-site might be perjury. The DMCA prohibits false statements in takedown notices or counter-notices. The NFL was threatened with legal action for refusing to accept a lawyer's claim that her posting of NFL video was fair use; a highly biased description of that event is here: <http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanctions.html> 17 USC 512(f): "Any person who knowingly materially misrepresents under this section ... that material or activity is infringing ... shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."
being a misstatement of the law but it's still not perjury.
http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic=d9/d9101d15eeb553904deeb3cff07d211c
perjury
: the act or crime of knowingly making a false statement (as about a
material matter) while under oath or bound by an affirmation or other
officially prescribed declaration that what one says, writes, or claims
is true
A 'take-down' notice isn't made 'while under oath or bound by an
affirmation or other officially prescribed declaration that what one
says, writes, or claims is true.' It's more along the same idea/lines as
a false police report. Such a report is also illegal but not perjury
(just like robbery is illegal but isn't rape.)
--
http://www.myspace.com/prabbit237
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Seth wrote:
In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>, Mike <prabbit1@shamrocksgf.com> wrote: Ah, but in North Dakota a court has ruled (see the referenced URL) that such terms of use _can_ be.
unilaterally enforced without agreement to the terms by both parties.
In article <f8pev3hrojeve0f645o7c8aeheq4a10epc@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
A DMCA 'takedown notice' to the provider hosting the web-site might be
perjury.
The DMCA requires notice to be made under penalty of perjury.
Ok, I was wrong and stand corrected.
--
http://www.myspace.com/prabbit237
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In article <il0sv39eoon2pofi2tm290h4k2i5h50tq3@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
In article <t5mmv3dal9q9ma3rrc1i2jrg2m701osb9c@4ax.com>,
Seth <sethb@panix.com> wrote:
Google 'fair use'. *snicker*
Fair Use applies to copyright, not (state) rights of publicity,
privacy, etc.
Yeah, a full-blown copyright infringement _lawsuit_ would be really messy,
and expensive
Doesn't the photographer own the copyright on his photographs?
A release from the photographer, ALONE, is not sufficient, when the photograph
is a 'derivative work'.
Sure, if you photograph a sculpture I created, that's a derivative
work. But if you photograph me walking down the street, that isn't.
Seth
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In article <nl0sv3h0lcoi5hehgfuf729h7eoooa58ua@4ax.com>,
Mike <prabbit1@shamrocksgf.com> wrote:
Seth wrote:
Many other (higher) courts have ruled otherwise. Contracts can't be
unilaterally enforced without agreement to the terms by both parties.
I'm waiting for the referenced case to be appealed.
Seth
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In article <kl0sv3l2cb87to8ev1grtgo5lo7bs6pf1h@4ax.com>,
Robert Bonomi <bonomi@host122.r-bonomi.com> wrote:
In article <qs1kv3tt2ovgnmg6e69foleodhuvm6q27a@4ax.com>, Mike <prabbit1@shamrocksgf.com> wrote: Nit: a DMCA takedown notice _does_ include an affirmation of the accuracy of the claims made therein. I believe the language _is_ 'under penalty of perjury'. <grin>
belief (which apparently doesn't even require good faith; companies
have sent takedown notices based on the title of a picture, clearly
without looking at it hard enough to see that somebody's grandmother
happened to share the name of a rock star).
Seth
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On Thu, 10 Apr 2008 08:08:12 -0400, Stuart Bronstein <spamtrap@lexregia.com>
wrote:
henri <henri@nowhere.com> wrote:
I'd be interesting in seeing the "repeated" cases Robert is talking
about. I've never seen them. On the contrary the rule I've always seen
is that a photo of someone taken from a public place where anyone could
have legally been, the photo is not protected. That's the reason you see
embarrassing photos of celebrities published all the time, and no one is
successfully sued.
It's the type of use which is determinative of whether the right is offended,
as well as the type of person. Celebrities are considered to be public
personalities whose photographs are expected to appear in the news.
However, if you started selling a product using their image, with the
intent that the public believe falsely that they are associated with or endorse
the product, you would probably be liable.
The protection, when the identity itself is the valuable product being
misappropriated, is more akin to trademark than copyright.
In the case where the appropriation of the image is of someone whose
identity is not, in and of itself, valuable, the appropriation of their image
is more akin to an invasion of privacy. Celebrities have much less expectation
of privacy, having expended a great deal of effort to become public
spectacles. Generally for a celebrity to prevail in such a case, they have
to show fairly shocking behavior by paparazzi.
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In article <ml0sv3tgvhi9o870n94or130t5siobff1u@4ax.com>, prabbit1
@shamrocksgf.com says...
So that makes such a false 'take-down' statement illegal as well as
being a misstatement of the law but it's still not perjury.
According to the text of DMCA itself, a valid takedown notice *must* be
made under penalty of perjury:
(3) ELEMENTS OF NOTIFICATION-
`(A) To be effective under this subsection, a
notification of claimed infringement must be a written communication
provided to the designated agent of a service provider that includes
substantially the following:
`(i) A physical or electronic signature of a
person authorized to act on behalf of the owner of an exclusive right
that is allegedly infringed.
`(ii) Identification of the copyrighted work
claimed to have been infringed, or, if multiple copyrighted works at a
single online site are covered by a single notification, a
representative list of such works at that site.
`(iii) Identification of the material that is
claimed to be infringing or to be the subject of infringing activity and
that is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit the service provider to
locate the material.
`(iv) Information reasonably sufficient to
permit the service provider to contact the complaining party, such as an
address, telephone number, and, if available, an electronic mail address
at which the complaining party may be contacted.
`(v) A statement that the complaining party has
a good faith belief that use of the material in the manner complained of
is not authorized by the copyright owner, its agent, or the law.
`(vi) A statement that the information in the
notification is accurate, and under penalty of perjury, that the
complaining party is authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
But the perjury requirement applies only to the final statement, "that
the complaining party is authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed."
A parent could well be authorized to act on behalf of a child whose
rights are being violated. Is it perjury if the claimed right simply
does not exist, e.g. a purported copyright to the child's face?
--
josh@phred.org is Joshua Putnam
<http://www.phred.org/~josh/>
Braze your own bicycle frames. See
<http://www.phred.org/~josh/build/build.html>
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In article <il0sv39eoon2pofi2tm290h4k2i5h50tq3@4ax.com>,
bonomi@host122.r-bonomi.com says...
A release from the photographer, ALONE, is not sufficient, when the photograph
is a 'derivative work'.
If a photograph is taken of a person directly, not of an existing
picture of that person, how can it be a "derivative work"? Are you
claiming that copyright now extends to the actual physical person?
(Apart from the rather specialized case of body art -- tattoo artists do
have copyright over their original works, even though those works have
become part of another person's body.)
--
josh@phred.org is Joshua Putnam
<http://www.phred.org/~josh/>
Braze your own bicycle frames. See
<http://www.phred.org/~josh/build/build.html>
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josh@phred.org wrote:
In article <ml0sv3tgvhi9o870n94or130t5siobff1u@4ax.com>, prabbit1
@shamrocksgf.com says...
According to the text of DMCA itself, a valid takedown notice *must* be
made under penalty of perjury:
Yes, I already stood corrected on that :)
--
http://www.myspace.com/prabbit237
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henri <henri@nowhere.com> wrote:
Stuart Bronstein <spamtrap@lexregia.com> wrote:
It's the type of use which is determinative of whether the right
is offended, as well as the type of person. Celebrities are
considered to be public personalities whose photographs are
expected to appear in the news.
However, if you started selling a product using their image, with
the intent that the public believe falsely that they are
associated with or endorse the product, you would probably be
liable.
I'll certainly agree with that. As I recall NY has a statute
protecting someone's rights in that situation even from truthful
exploitation. For example Consumer Reports prohibits commercial
enterprises from using its ratings in their advertising. They can
enforce that position, as I understand it, only against those over
whom New York has jurisdiction.
I remember (vaguely) a California case brought by the estate of Bella
Lugosi, against someone who was exploiting his Dracula image for
commercial purposes. As I recall the court held that the estate had
no case, because Lugosi hadn't exploited the commercial rights in his
personna while he was alive, and as a result any such rights he had
died along with him.
In the case where the appropriation of the image is of someone
whose identity is not, in and of itself, valuable, the
appropriation of their image is more akin to an invasion of
privacy.
But let's say it's a situation not of an implied endorsement but
merely a photo taken in the public where people happen to be present,
and happen to be captured in the photo. If the photo is of a person
in walking down a public street, how could that be an invasion of
privacy?
Stu
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On Fri, 11 Apr 2008 07:16:46 -0400, sethb@panix.com (Seth) wrote:
Some of the notice is under penalty of perjury. The rest is under
belief (which apparently doesn't even require good faith; companies
have sent takedown notices based on the title of a picture, clearly
without looking at it hard enough to see that somebody's grandmother
happened to share the name of a rock star).
The whole notice is under penalty of perjury, but what one is attesting
is the good faith belief. To constitute perjury, there must be no
good faith belief. That is, the mens rea for perjury in the DMCA
context is actual intent to make a false statement.
It is a subjective, rather than an objective standard. Mere recklessness
would not suffice. While intent could be inferred from circumstances, in actual
practice, proving a lack of good faith is very difficult.
Some sites suggest wording for the notification:
"I swear, under penalty of perjury, that I have a good faith belief that each
search result, message, or other item of content identified above was removed or
disabled as a result of a mistake or misidentification of the material to be
removed or disabled, or that the material identified by the complainant has been
removed or disabled at the URL identified and will no longer be shown."
From Google. http://www.google.com/base_dmca.html
Note that Google's suggested words place perjury first and make sure to have
the "good faith belief" in the same sentence. There is, however, no such legal
requirement.
Some DMCA notifiers have more courage in their convictions. One particularly
prolific sender of such notifications routinely uses this wording:
---
I have a good faith belief, and in fact know for certain, that the posting of
these works was not authorized by my clients, any agent of my clients, or the
law.
I declare under penalty of perjury that this information is accurate and that I
am authorized to act on behalf of RTC and BPI in this matter.
http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=266
---
Only the "good faith belief" is necessary. Wording it more strongly, as being
in fact certain knowledge, would tend to increase perjury liability. As such,
stating it as certainty represents a riskier and more aggressive approach, but
one more likely to be taken seriously by the recipient.
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