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Copyright ownership, MLS, damages and the DMCA court cases $

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Copyright Infringement versus DMCA violations:

First thing is they are not the same thing. You can file a case for copyright infringement without filing for DMCA violations and you can also file for DMCA violations without filing for copyright infringement.

What does that mean? Let us take a case close to the same as my cases. If someone takes your images and uses them without your permission you have a copyright infringement case most of the time. If that person or company puts their name on your work it is a claim of ownership as described in Morel and other cases. The rules are simple, no one can do that unless you decide to share your copyright or give it to them either as a gift or for compensation of some kind. The rule is pretty simple. Under the US Copyright law section 204 the rule is it must be in writing and signed. Pretty simple and the statutory damages are substantial. The act of doing so creates twofold damages and also shows a willingness to violate copyrights. It violates the rules a couple of ways but the easiest is the false claim of copyright ownership. Companies like some real estate companies and MLSs routinely put their names on the images for various reasons. Without a signed transfer or instrument of conveyance they cannot do so. I am not addressing the agent or broker owned images. MLSs will argue the agents or brokers give up their rights via their TOS but it seems very unlikely that will stand up in court. They use a terms of service argument but the TOS cannot and does not overwrite the law. I see many things changing if the photographers and agents approach things as DMCA violations as they seem to have very little defense. Put your name on my images and there is a problem. And how do you hide the fact you did it? If you do it show me the instrument of conveyance.

United States Copyright Act:

§ 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

Here is something to consider. The two violations for each image means the ten images now have twenty violations. The willingness makes it $25,000 for each one. If the party in question has done this two times in three years the damages can go to $ 75000.00 for the images. That means a single image without a copyright infringement claim can still have a DMCA claim with the total damages being quite large. If you have 10 images and all this applies then the total could reach about $ 1.5 million dollars without infringement damages, court costs or attorney fees for those 10 images.

Just remember that no one can put their name on your images without your permission in writing and signed by you. It appears to me that the real estate industry has a serious problem coming. I have not talked to a photographer that has done that. I see no safety harbor for the MLSs and others who just put their names on images and claim ownership.

One other item for those who are looking for the infringers and they seem to have vanished. Send letters to the last known address. Mark them return service requested and see if you get it back. I have done this a couple of times. The court will ask you if you have tried to contact them prior to allowing a process service by mail or publication. Just for your information, many places are now using social media like Facebook for process serving. In March of 2013 the US District Court of NY approved notice on social media sites for the summons. They used Facebook. FTC vs PcCare247. Courts are accepting photographs, information and documents posted on Facebook all the time now. If they have a Facebook account, file a notice with them under the court and they will give you information and even if you are blocked you can still work around that also.

I have sent one infringer a request for contact information to the last known address available to me without a lot of cost and work. The time frame passed and no response. I have not received any information from the postal service so she must still be there. That is where she will be served. The attempts to find her do not have to be extensive but should be done thoroughly. There will be more attempts prior to the final times with the relatives. This all builds the case for proceeding without them in court. The court is all about saving time and costs for the plaintiff and the defendant hiding can cause additional expense to them and sanctions not to mention a default judgment.

Just remember that in this day and age if someone uses credit cards, buys cars, houses, rents apartments or even has a cell phone they can be found and most times without a court order. With a court order I have seen no place that is not required to get the court the information. For Pro Se cases it means you get the information and for cases with representation, they get the information. Either way the information comes into play. The question is really not that but how hard and how much money are you willing to spend if you do not need to do so?

I am not an attorney. These are my personal opinions and general information only. These are not legal advice and should not be used as such.

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