Copywrong? Photog sues blogger for $385K
Photographer Matthew Rosenberg's image of tiny downtown music/art venue The Garage is the subject of his lawsuit.PHOTO BY MATTHEW ROSENBERG
It was a tiny picture of a tiny music venue, and it was posted just twice on a local blogger's site, but the aggrieved photographer who snapped it says compensation needs to be made–- compensation to the tune of $385,000.
The federal lawsuit filed May 15 demands as much from gossip site cVillain.com and its owner, Kyle Redinger. The litigant, Charlottesville photographer Matthew Rosenberg, claims Redinger violated his copyright by hosting and showing the thumbnail image without permission.
"If filing a lawsuit over something so trivial is not overkill," says veteran intellectual property lawyer Sheldon Parker, "then I don't know what would constitute overkill."
Parker, who is not a party to the contretemps, wonders why this wasn't worked out with an apology and a hug– or something like that. So do Redinger's friends.
Before Redinger shut down his on-site discussion after 95 mostly anti-Rosenbergian jabs, commenters were wondering whether the irked lensman would ever work in this town again. One even called Rosenberg a heretofore little known part of the female anatomy, and Redinger seemed to be wondering what all the fuss was about.
But to former Daily Progress photojournalist Rosenberg, there's a six-figure score to be settled. And he's got the services of the law firm of Tremblay & Smith, as well as Atlanta-based Carolyn Wright of Buckley Brown, to make it happen.
"The infringement is clear," according to Wright, whose practice caters to photographers. "The only question is the extent of the damages to be paid."
Parker, however, contends that the suit offers plenty to question, besides the alleged overkill of it all. Showing how the use caused Rosenberg some verifiable harm is most important in determining damages– or whether it's actionable at all.
If the suit goes to trial, Parker thinks Rosenberg will have a hard time proving cVillain's use of the photos harmed his wallet, particularly because the small size and low resolution of the image render them commercially useless.
"Rosenberg could not have lost sales or royalty income as a result of the defendants' activities," says Parker, "since no one would use the thumbnails in lieu of the original artwork."
Redinger pals were also astounded by the suit's claim that Rosenberg warned Redinger after the first infringement with a fax. They wonder why such a tech-savvy paparazzo as Rosenberg, who recently began running newspaper websites for the Progress and other papers owned by parent company Media General, would rely on such 1980s technology. And Redinger claims online that he never received such a fax.
On the advice of counsel, Rosenberg declines comment. But when the piqued shutterbug began this quest by seeking a mere $2,500 back in November, Redinger offered up indignation on his own blog: "Matt, maybe you should sue Google, too, because they have your big pictures cached?" (And in fact, a check of this newspaper's records reveals that Rosenberg's photo of The Garage was also used at least twice last fall to illustrate the Hook's online art calendar listings for events at the venue.)
As for Redinger, he's no longer commenting (in part, he suggests, because the Hook and cVillain are such keen competitors).
Ironically, the person at the center of this storm has thus far gone unsued. She is Kate Daughdrill, the operator of the diminutive music venue operating out of a stand-alone garage across First Street NW from Lee Park and next door to Hill & Wood Funeral home.
She's the one who allegedly lifted Rosenberg's photo off his personal website in the first place– an act she says she initially didn't understand as infringing. After all, she's in the photo.
Here's where it gets curiouser. After Rosenberg got riled when his picture appeared on cVillain.com a second time in November 2008, Daughdrill contacted him to buy rights to the photo which she had already placed on the website for The Garage.
"He said I could use the photo in the common editorial ways unless it was something drastic like putting it on a billboard," Daughdrill says in an email. "I wish I had known more about internet copyright laws before all this, but I am glad to have learned more recently and am sincerely trying to respect everyone involved."
Another photographer says that frequent online copyright infringements are a frustration for professional picture takers.
"It happens a lot," says photographer Billy Hunt, who attempts to solve the problem by licensing his work under "creative commons," which means it can be reproduced without payment as long as he's credited.
"I tend to want my images to be seen," says Hunt, who explains that he makes his living more off paid photo shoots than the final product. But if, as Rosenberg claims, a warning was sent to cVillain, and the infringement continued, Hunt says, he can understand the suit.
"Somebody's gotta step up," says Hunt, "if people are acting the fool."
–Story last updated Friday, June 5, 2009 at 2:26pm.
27 comments
Courtney:
check out the Arriba case from back in the 1990's. It says thumbnail images like this - in image directories - are fair use. This is probably a total loser lawsuit.
nick
These photogs need to realize that they are horse and buggy whip makers of today. They will be obsolete within a couple of years because any 5th grader will be able to do what 90% of them do. Just like the record companies. The quality of photos in a 200 dollar camera exceed a 5000 dollar camera of 20 years ago.
The only photos worth any REAL money will be the tiannamen square type photos or papparazzi photos of Jennifer Annistons privates.
One picture worth printing might be the look of dismay on This photogs face when the judge tosses the suit.
Wow that was easy!
Doesn't Daughdrill work at Piedmont Council of the Arts? She should have known better. I thought everyone knew you can't just lift photos to use without permission-from the internet or anywhere else. At least credit the photog...these people are totally unprofessional.
Simon, I'm with you. Being associated in any way with the Hook's "keen competition" is probably the only may more reliable than driving a Hummer to communicate to the world that you are a dick. The amount asked for in the suit seems a little excessive though. I would just ask to have one of the defendant's hands chopped off and be happy with that.
You people who don’t get it have probably never created anything
You couldn't possibly be more wrong. I have worked in a creative capacity for 20 years, and am familiar with the ins and outs of copyright law. The question has never been whether or not Rosenberg was technically in the right. He was. Technically. The question is whether or not a site administrator, who allowed a lo-res thumbnail to be posted on his site by a person in the picture in front of a business she owns, in a post promoting her own (nonprofit) venue for 36 hours should be held liable for $385,000. The nebulous fax notification (which is either false or incredibly contrived) is just icing on the cake. The situation was remedied immediately once truly brought to the attention of the admin. Restitution was even offered, and refused.
The actions of Rosenberg are patently ridiculous, and are indicative of someone I would never ever want to work with, even for a wedding. In my professional capacity, I am in a position to farm out occasional work to local photographers. I personally will be on about this, spreading the word that this particular photog is a litigious lunatic and people would be well advised to steer clear lest they find themselves on the business end of one of his faxed phantasms of small minded greed. This is too small a town to act like that, and even if it weren't, its still a pointy-headed move.
I do give you points for your STD hyperbole though. Because, you know, this situation is just like that. Exactly.
All this fuss over THAT picture? What a joke. Somebody should put it up on Fark for the photoshop contest.
Wow, its amazing how many are willing to trample on an artist's copyright. I guess its ok to just steal your livelihood too.
The second instance was evidently willful infringement which makes the infringer liable for treble damages.
Now cost to license that picture for that use is unlikely to be $100k+ (based on reasonable rates) so the $300K+ is probably excessive. But $1k with $3k in damages + legal fees might be more reasonable. But don't begrudge a photographer his livelihood just because you don't understand the law and think stealing is ok...
TRAMPLED I tell you, TRAMPLED!!! Can you believe it??? Livelihood RUINED! Rights TRAMPLED!
When you see Matt tonight, ask him if he's ever downloaded a song illegally would you? And for that matter, how about you sir, I'm guessing you must be the paragon of respect for intellectual property rights?
I just hope Rosenberg gets a judge with no tolerance for his attempt to make Tremblay and Smith some money.
The only way that picture is worth 300k+ is if there is a lottery ticket printed on the back.
I'm always amazed these days when people post questions (or misinformation) that Google could have helped answer correctly in just a few seconds.
http://www.copyright.gov/help/faq/
Honestly, I don't know the guy.
If I run a red light and t-bone your car, am I absolved of liability because you were caught speeding two months ago?
Copyright starts at creation. Filing and registering a copyright just increases your protections.
Now having read the Cvillain post an comments, I think Matt R is out of line. If he was indeed offered a $200 settlement to get rid of this he should have taken it and gone on with life. That's about the most I could see the damages being.
It will not be long before the copyright laws are rewritten to reflect the times. These photographers do not realize how lucky they are to have the internet exposing their work to the world. This is how they get famous if they are truly great. Much like radio staions playing music benefits the performers by providing them a forum to get a name and sell out a stadium.
I hope the judge sends him packing with a favorable verdict on the law, zero damages times three and a bill for wasting the courts time over a mediocre picture.
If this guy really thinks he is entitled to this kind of money for THAT picture he deserves to be ridiculed.
3-1 odds he is doing Weddings in a year and a half.
Uhhh...
"Much like radio staions playing music benefits the performers by providing them a forum to get a name and sell out a stadium. "
Have you ever heard of ASCAP? BMI?
They are music publishing organizations that license music. Radio stations pay huge yearly fees to these groups to be allowed to play the songs written by their member songwriters. They then distribute those royalties to the songwriters. (Note, royalties go to the songwriter, not the performenr.)
You people who don't get it have probably never created anything. If you create something, you have the right to control how it is used. It is part of a capitalist society and the way we attract creative people into it. If you create something here in America that is in demand, you get paid for it as it is used. Otherwise, people have less incentive to create new things-artworks, inventions, even ideas. All of our great thinkers would be spending their time working at a desk job somewhere, trying to earn a living in this expensive society, instead of creating things.
How would any of you like it if a photo of you was used (without permission) on a website advertising a cure for STD's? It's the same law that would protect you that the photog is using now.
Also, photography is about more that having a good camera. There are skills involved that take time to master. The photographer deserves to be paid. The amount is up to the judge, who should have a way bigger clue than you all about what the law is and WHY it is the way it is.
I was going to say something similar, but copy, right? pretty much hit the nail on the head. However, we'll see what happens in court. It's hard to see how he could argue that he suffered more than perhaps a few hundred dollars in damages, and I can't see the award being enough to make up for the fact that he now has a reputation for being a jerk. And I still don't get the faxed cease-and-desist -- maybe he couldn't email it for legal reasons, but wouldn't a Fed Ex with required signature have been a better way for him to prove that the order was received?
I guess it can be summed up as "Just because you can, doesn't mean you should".
Of course the irony of all this is that Mr. Rosenberg is such a woefully mediocre photographer. I doubt he has made $385k from ALL his photos over his whole career. This is nothing more than someone "slipping" on some "spilled" shampoo at Walmart.
"Funny thing your honor, my dog ate my fax confirmation letter. Seriously. I know! I could barely believe it myself. But I swear I sent it. Really."
How perfectly lovely and brave of Piedmont Arts Council to take a lead in this idiocy by supporting The Garage and giving the petulant and childish Rosenberg a stern talking-to.
What a humiliation and class-less embarrassment this whole thing is for a small arts-community. Let me say that again... an arts community. Then again, Rosenberg is just a sports-photographer with those sensibilities, and not an 'artist' in any but the most limited sense. Look at The Progress' archives for photos by, for example, Landon Nordemann who was an actual art-photographer (and is now on-staff at National Geographic).
Without tongue-in-cheek, is is both taunting and courageous of Courteney to admit in the story to The Hook's unassigned use of the same photos in their magazine... but The Hook, God-bless-it, has never been afraid of frivolous lawsuits, and triumphs in them.
The Garage is about art and Cvillain is about community; Rosenberg seems only to be about filthy and ill-got lucre. Shame on him.
i thought cvillian was strictly for showing how much contempt you had for the "community"
i thought cvillian was strictly for showing how much contempt you had for the 'community'... "
pithy, but i'm not certain accurate.
a cursory glance shows thousands of page-views for scores of the posts, and hundreds of comments for many. Kyle seems to have built a vibrant, funny and sometimes tensely interactive forum. It's tragic that this stuff isn't happening in real-time in a cafe somewhere in town, but same it may be the closest thing to an agora or to local public discourse we have these days.
Added to which, many of the core commenters are prominent and lesser painters, actors, musicians, writers; owners of small businesses and restaurants/bars/coffeeshops; venerable and flashier members of UVA academia; and so on. Halsey Minor comments, activist Kevin Cox is a frequent contributor, the Piedmont Arts Council staff write posts, etc. So the site has risen and beckoned, and all save you, evidently, have followed.
So what community precisely is it you mean, when so many of the site's members and readers ARE the active community?
"If I run a red light and t-bone your car, am I absolved of liability because you were caught speeding two months ago?"
No you are not, but if I bump into your car and do no harm you cannot claim whiplash two months later either.
This is not complicated. Perhaps this photog took his advice from the guy that sued the laundrymat for a million bucks over a lost pair of pants in DC. http://abcnews.go.com/TheLaw/wireStory?id=6087450
Either way this turns out I hope he enjoys the reputation that he himelf is creating by his own actions.
I think the question of right and wrong should always boil down to: who is acting like the biggest dick?
Seems pretty clear in this case.
Will the Hook get sued too for running this picture ?
These photogs need to realize that they are horse and buggy whip makers of today. They will be obsolete within a couple of years because any 5th grader will be able to do what 90% of them do. Just like the record companies. The quality of photos in a 200 dollar camera exceed a 5000 dollar camera of 20 years ago.
The only photos worth any REAL money will be the tiannamen square type photos or papparazzi photos of Jennifer Annistons privates.
One picture worth printing might be the look of dismay on This photogs face when the judge tosses the suit.
Hey B - Would you pls. explain how the little thumbnail image that got used constitutes trampling on an artist's copyright and stealing someone's livelihood???
I really hope Rosenberg has an absolutely clean slate when it comes to copyright infringement because if he's got even a single instance of it on his computer or iPod, it makes him a huge hypocrite.
So what I don't understand is does Matt R own the photo for commercial use if he doesn't have photog releases for the people in it or if the photo is taken on public property does that matter? And if the photo was used before it was copyrighted (as was alleged on cvillain) does that matter? Also don't thumbnails have a safe harbor or is that just for search engines?
Even if Kyle wins he will pay more in fees then he would have in any early settlement. Not a good business decision on what is an admitted mistake.
Courteney, thank you for covering this story. Regarding your "keen competitor" comment, it's not so much that you're a competitor, but rather my fear as to how the story would be twisted. My experience with another local weekly has me wondering about intentions of certain media.
I don't think you have those same intentions and I think you covered this story well.
Secondly, I know a few of the commenters on the site, but to say the commenters are my "friends" isn't necessarily true.
Our law is pretty clear on this. If I create something, I own it. I have the right to determine how it is used. If I don't want you to copy it and use it and display it publicly, that is my right.
If I take a picture of your kid and give you a print of it, you are not legally allowed to scan it and make more copies without my permission. (I'm also not allowed to use your kid's image for commercial purposes without a release, but that's a different story.) Of course you'll see lots of parents trample on this copyright without even thinking or knowing that what they are doing is wrong. They just know that the 8x10 was $10, but the guy wants another $10 for a couple 5x7s and they can do it for much less on their home scanner/printer.
Learn something about intellectual property law and then comment.