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01-24-2015, 06:12 AM   #46
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QuoteOriginally posted by dcshooter Quote
Due to this case, I've been actually toying with the idea of trying to draft a new standardized (and modular) model release form with plain language explanatory text that would help alleviate situations like this. Would you be interested in supplying your input to this project (pro bono, of course)?
Sounds like an interesting project. Sure.

This is beyond us, but I think this case points out how different the world of stock photography has become since the internet. The rhetorical question I kept asking is whether, if a court does rule that a lingerie shoot means you can be posted as the face of prostitution, photographers will have trouble finding stock models? If it is not the photographer's responsibility, then who polices the use of downloadable photos in an international environment? Maybe some don't think being the face of prostitution or porn is a big deal for an underwear model (I disagree), but what if ISIS downloads and uses your photo, and you are now on the terrorist watch list? Will the potential for abuse in the electronic age kill stock photography of humans?

I have a substantial amount of concern for all of the parties in this dispute other than the porn and prostitution end-users.

Last edited by GeneV; 01-24-2015 at 06:35 AM.
01-24-2015, 09:09 AM   #47
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I would like to broaden and generalize this wonderful discussion a bit, if I may - especially since there is some fine legal minds here.

From my reading - I have come to surmise a few specific items (perhaps wrongly)....
  • The registration process appears to be dated (essentially broken) and really serves no useful purpose (given that cameras are everywhere now) - other than providing the US Copyright Office with an income stream. There is so much posting going on - flicker, instagram, you name it, that its difficult for a photographer to determine what is sufficiently valuable that it may need protection. Even if folks registered everything, the avalanche of submissions would bury the Office, and their administrative, processing, handing and storage costs would soar. Could it even scale to handle a billion images a week? Even if you register everything, you need to sort and categorize since the Office will batch only related and associated images. If you were to do it monthly at $35 per batch submission (a couple of hundred or thousand images), that's $420 per year per photographer - not really going to happen. The cell/smart phones - with instant posting to facebook - the entire social media feeds the "need" to connect and post - to "stay in touch", has effectively killed this approach.
  • The need for registration in order to provide the ability to go after infringes (covering damages and legal fees), has effectively created a cottage industry where infringes have little to fear. Who is going to spend $10K to $50K and a couple of years in Federal Court to get a judgement against a company that is just going to go out of business, popping up somewhere else, or be off shore and essentially be litigation proof. The infringer wants the image free, not even willing to pay $25 to a couple of hundred dollars per image.
  • The watermark removal approach. Remove the watermark, and the infringer is liable for an minimum $2,500 (if proved) - but it's still a trip to Federal Court with a lawyer and a couple of years of time invested. Better, but actually how much better? It relies on the infringer to remove/alter the watermark. It still does not really cover the cell/smart phone - with the instant post to facebook. All this does is to argue for a new feature for either the phone or the site to auto watermark the image.
  • For a $25 to say $250 image, having to go to full blown Federal Court is absolutely absurd. This is what the infringer is counting on. Who has the time and funds to make this actually pay off - with the current system? With the amount of infringement going on - that would be yet another paper storm, burying the court system. Something like a Federal Copyright Small Claims Court (as in the UK) would be much better. Bring your proof, identify the infringer, serve them (and make service a reasonable process), get a judgement for the image fee, also allow a 3x to 10x penalty for the infringement, any/all reasonable costs - including legal fees. Minimal court costs of say $250 to $500, from the looser/infringer would help fund the system. A two hour maximum of court time (standard format/presentations, etc., get in, present, argue, decide, get out, no shows - automatic judgement). This would at least level the playing field for the small photographer - while providing some incentive against the cottage industry of ripping off the small photographers. This would augment/off-load the current Copyright infringement approach of the full blown Federal Court system for larger cases.
  • In this particular case - there are a lot of questions that still need to be answered, as in who actually did what and agreeded to what, etc.? Was it an actual portfolio trade deal? If so, the images should have never been placed on a stock site. That appears to be the pivotal issue that allowed the unwanted publication. Then comes the ignoring of the stock site's policy against the inappropriate use of the images and who is really responsive for enforcing this. I tend to believe that the model's posting of the images on her facebook page is somewhat of a red herring. There will probably be more facts available over the next year or so....

01-24-2015, 01:05 PM   #48
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This seems to me to be case of technology making some copyright laws unenforceable. How does one prove where the image came from. Perhaps the photographer has a son who copied the image off his Dad's computer and emailed it to his friends via a smart phone. Perhaps the model has a son or boyfriend who copied the image off the model's computer and emailed it off to all his friends.

Its easy enough to wipe out the metadata on an image, and the image by itself does not record how its passed around, Maybe someone took a screenshot off the stock photo site.

We know where the image got created initially. Beyond that, there's nothing that can be proven except some obsolete contracts that are unenforceable from a practical standpoint.

if one is in the business of taking glamour, lingerie or nude photographs, one should form a business with few assets, and just declare it bankrupt if one is sued. But then i'm no expert on the law The only ones who are going to make money out of this is the lawyers.
01-24-2015, 04:10 PM   #49
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If, and this is a big if, the photographer really misrepresented the use of the photo, then his incorporation might not have helped much. He may be sued personally for a number of torts regardless of his corporation, which may be the only one liable in contract.


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