Whether or not Tylor deliberately seeded his photos is unknown.
I think that PicScout would have picked up on Tylor's images on the wallpaper sites by now.
So, it's reasonable to assume that he's aware that his photos are been offered as "free".
Maybe. Oddly enough, the video someone posted discussing how picscout operates suggests they might miss images if they are hosted in countries with weak copyright laws. Lots of the free wallpaper sites have addresses ending in things like ".ru", and checking domain tools indicates that many are hosted outside the US, Europe etc. So,
picscout may not pick these up.
But I think what picscout might or might not find is
irrelevant.
If I were on a jury, I would judge it highly implausible that
HAN or Tylor have not known these images are massively reproduced at wallpaper sites. After all, given that they've sent out letters, it's not widely implausible that either HAN or Tylor has avoided looking for his images at google. In fact, if they claimed not to know they images were widely copied, I would consider this evidence that they were less than truthful.
The story of how they got on the free wallpaper sites might be interesting.
But the fact that they're offered for free on those sites, and remain there as "free" is the most important aspect of the story.
I agree that the fact that they remain free when it is impossible to believe that HAN and the photographer don't know they are there is important. But I disagree that how the images got on the sites would be unimportant if this were presented in a trial or if these were presented in newspapers stories. It's also not irrelevant to what lawmakers might ultimately do with respect to modifying copyright laws, which they do from time to time.
I suspect that the possibility the images are getting on wallpaper sites as a result of an
active choice on the part of the photographer (i.e. he posts them on Webshots) and that HAN doesn't do much to prevent photographers from posting in venues that as a practical matter
assure high resolution images will appear on these sites might weigh heavily against the photographer and HAN. It
might not matter in
proving copyright violation, but maybe it would matter when assessing damages and awards.
If the latter is true, then it's useful for a defendant to identify a path from photographer's site to free wallpaper sites. Because, otherwise, in discovery, the defendant or his lawyers would ask Tylor if he posted his images at free wallpaper sites. The answer would be no. This would likely be the absolute truth. Then, they'd ask if he knows how they got there. He's say no. This might also be the truth. Technically, if they got there the way I think, he doesn't
know how they go there. He might not even suspect how they go there! Are those the only "facts" you want to present a jury or judge? I would think explaining how they likely go there would be useful in a civil trial.
If I was taken to task for infringing on Tylor/H.A.N. photos, I'd demand to see paperwork to prove that they're making meaningful efforts to curtail these images being marketed as free.
I'd want this as part of the discovery process to assess the actual market value of these images.
If it's distributed as "free" anywhere, then it's surely not "premium rights managed content".
No rights are managed if the images are a free download.
First: I see a couple problems here. I agree you should ask to see these things. I would.
But if HAN takes you to court, the question isn't going to be whether
you, SG, are satisfied with their paperwork. The question is going to be whether a
judge or jury are satisfied. So I think you need to put your devils advocate hat and think about how a third party who is not angry with HAN, getty etc would interpret
actual copyright law.I'm not a lawyer; I have no idea whether HAN or the photographer are required to try to prevent people in Russia (.ru) from running free wallpaper sites.
I'm also not sure you are entirely right about the meaning of exclusive license. I think Joe can be granted the exclusive right to make prints for framing, Sheila can be granted the exclusive right to display on the web and Fred can be granted exclusive rights to print on clothing etc. If so, the fact that party A might have an exclusive right to make prints and party B might have the exclusive right to sell licenses to display images on the web.
Right now, it's still possible HAN has an exclusive right. We don't know. Mind you-- history suggests they might very well not have an exclusive right. But we don't actually know.
But I agree with you that I would want to read the license agreement to learn whether HAN has an exclusive right to license to
display on the web and also to discover how much anyone paid to display these images on the web. I have no idea whether HAN has an exclusive license to permit people to display on the web. I strongly suspect
no one has every paid anything for that right to display those Hawaii images and no one would pay
anywhere near the amount HAN is demanding.
I think HAN only sells prints for a reason. The likely reason is that the prints do have monetary value. Web display may have nearly none.
I'd also look to the fact that others not involved in the HAN suit-- Webshots-- sell downloaded images.
How many sites do these photos have to be on before we say, "this is deliberate", or "he's doing nothing about it because it entices people to infringe intentionally"?
S.G.
I don't know. I'm not sure the numerical count is relevant. I'd look to other factors-- like the fact that he has made the decision to let Webshots permit digital downloads. While this is not the same as deciding to let people infringe intentionally, as a practical matter, it is very difficult for anyone to both profit by supplying wallpaper downloads for a fee and also profit by permitting exclusive licenses to display images. (That is: Unless the plan is to profit by suing those who display.)
Anyway, I don't disagree with you. If
I were on a jury, given evidence showing the widespread copying, noticing
not only that
a) neither HAN nor the photographer were taking steps to prevent high quality digital images from being promoted but
b) the photographer was taking steps to make high resolution digital images available for download and
c) I saw how vigilantly HAN and the photographer went after small infringers,
I would be inclined to take a dim view of HAN or the photographer.
But that doesn't mean that I would deem failure to sue someone in Russia as a factor that puts the images in the open domain. So I would not
automatically find
no infringement if otherwise, there was evidence of infringement. Instead, I might read the law to determine the
minimum possible monetary penalty I could assess. My impression is that in the event this particular image is registered, and it turns out HAN and the photographer has all their paper work in place (which they may not) and so on, the minimum will be $200 with
no attorneys fee. The demand letters highlight the maximum-- but courts can give the minimum.
Topic: Free Baitpapers (Read 101226 times)