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Playboy Sued by Photo Owner
Old 12-29-2006, 07:04 PM   #1 (permalink)
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Here's my expert analysis and commentary. I have also inserted a few comments within square brackets. These are square brackets: [ ].

It's ironic because Playboy has been much victimized by all types of internet pirates, ranging from individuals to the likes of Google. My understanding is that PB routinely prints earlier snapshots of centerfolds, such as school pictures and family portraits, and doesn't bother seeking copyright owner permission.

A threshold legal/factual issue is whether the owner timely registered copyright. I bet she didn't. And absent timely registration, she'll have a heck of a tough time proving any damages, because, frankly, the PB use probably didn't damage her in any way. Nor did PB measurably directly benefit. After all, people buy the rag to see the centerfold in her nude glory, not to see previous fully-clothed portraits or snapshots.

IF the photo(s) at issue were timely registered, then the owner can get statutory penalties ranging up to $150,000/image and attorney's fees, WITHOUT proving PB benefitted or the owner was harmed. The court award would be interesting to see, especially if the Court is irritated by PB's pattern of "use without permission."

I, and a copyright specialist I talked to at lunch, thinks any claim of "fair use" is legally without foundation. Or in layman's parlance, "totally bogus."

This one will be fun to watch.

=====================================

Playboy Claims ‘Fair Use’ in Copyright Infringement Case
[I call the claim bogus]
By Rhett Pardon
Friday, December 29, 2006
SACRAMENTO, Calif. — Calling the complaint “vague and ambiguous,” [This is standard boilerplate in an Answer to a Complaint] Playboy Enterprises last week denied that it violated copyright protection laws by publishing a picture of Placerville, Calif., resident-turned-Playmate Colleen Shannon.
Last month, Playboy and Shannon were sued by photography studio owner Carla Calkins, who shot Shannon’s high school portrait in 1996.

Shannon gave Playboy the high school portrait included on her biography page in the 50th anniversary edition of the magazine in 2003, according to the suit, but she did not have permission to reproduce the photograph for public distribution. [Of course she didn't, absent an actual license or transfer of copyright ownership. And PB darned well knew it.]

Calkins, who owns Mother Lode Photography in Shingle Springs, Calif., is seeking damages, attorneys fees and profit related to the alleged infringement. The suit also asks that Playboy destroy all copies of the issue still in its control. [Destroy all copies? I doubt the court will order THAT! Book-burning is out of fashion these days, except in Arab countries.]

Calkins' suit alleges Playboy demonstrated “a pattern of willful disregard” for the copyrights of professional portrait photographers. [If they've been doing this, it sure as heck is "willful disregard."]

Playboy, in its rebuttal to the U.S. District Court in Sacramento, said that Playboy is protected by federal “fair use” statutes, allowing material to be used without permission for purposes of illustration or comment. [An utterly -- well, 95% -- bogus argument.]

It also said that neither Calkins nor her studio sustained any financial losses from the photo's use and that Calkins is not entitled to recover damages or legal fees under federal copyright law. [Big issue here is whether the stuff was timely-registered or not].

Playboy, represented by counsel from the San Diego law firm Cooley Godward Kronish, called for a jury trial to decide the matter. [This is a big law firm that does a lot of high-tech litigation].

[End of Article]
 
 
Re: Playboy Sued by Photo Owner
Old 12-29-2006, 07:28 PM   #2 (permalink)
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I just talked to a couple of my lawyer friends about this very issue. They agreed with the "fair use" argument and they said that any lawyer that would declare that the "fair use" argument was bogus needed to go back to law school. By the way, there was a whole group of prominent lawyers that thought the argument was completely reasonable, and they were the team working for Playboy.

As far as when the copyright was registered, that was already discussed in another thread on G1 over 6 weeks ago. It was filed after the fact.

It also appears that you have violated the copyright of Rhett Pardon by publishing his article in this post (and it seems you provided no link to the article). I also notice you don't say where the article came from. So essentially your use of this material appears to be a blatant copyright violation.

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Re: Playboy Sued by Photo Owner
Old 12-29-2006, 10:23 PM   #3 (permalink)
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rfs

I searched and could not find the thread on registering copyrights etc.

Could you perhaps summarize or repost comments in a new thread now that the forum is heating up again?

steve
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Re: Playboy Sued by Photo Owner
Old 12-29-2006, 10:44 PM   #4 (permalink)
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Quote:
Originally Posted by LifeIsGreatImages View Post
Could you perhaps summarize or repost comments in a new thread now that the forum is heating up again?

steve
Here is the thread where this particular case was first discussed Nov. 8th:

http://www.glamour1.com/forums/off-t...-portrait.html
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Re: Playboy Sued by Photo Owner
Old 12-29-2006, 10:48 PM   #5 (permalink)
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Here is the link to the previous thread:

http://www.glamour1.com/forums/off-t...tml#post235656

I don't know that it's heating up. There is really no new information since the original post. It just seems that certain people look for any post they can make where they can bad mouth Google.

By the way, I couldn't find the old thread either using the G1 search. For some reason it doesn't always give good results. What I did, was to search Google for the words:

playboy copyright high school

and the second item returned was a link to the previous thread. I've often found that Google is the best way to search for old threads on G1 or Garage Glamour.

cheers,
rfs
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Re: Playboy Sued by Photo Owner
Old 12-30-2006, 03:00 PM   #6 (permalink)
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[quote=R_Fredrick_Smith;240399] said: I just talked to a couple of my lawyer friends about this very issue. They agreed with the "fair use" argument ..

I RESPOND: Copyright is a specialized field, and absent specialized study, your "lawyer friends" apparently know as little about it as an untrained person does about nailing the glideslope on an ILS. There is much good info on copyright at the official copyright office website. I suggest your friends avail themselves of that info, especially the stuff for laymen.

-------------------
By the way, there was a whole group of prominent lawyers that thought the argument was completely reasonable, and they were the team working for Playboy.

I RESPOND: Surely you are joking around. Playboy's lawyers are like gunslingers; they strap on their leather (or briefcases) for whoever is paying them. And file bogus affirmative defenses on behalf of their master. What do you expect them to say, "Playboy darned well knew they were stealing, and they've done it for decades." ???

---------------------------

As far as when the copyright was registered, that was already discussed in another thread on G1 over 6 weeks ago. It was filed after the fact.

I RESPOND: After what fact? Transfer of the artifact? Printing? Publication? Distribution? I suspect that one way or another, the registration was made "timely," or the plaintiff would have been suicidally foolish to sue.

---------------------------------------------------

(Various ad hominem attacks and slurs against me have been deleted)
 
 
Re: Playboy Sued by Photo Owner
Old 12-30-2006, 03:57 PM   #7 (permalink)
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The two lawyers I talked to just happen to be specialist in copyright law and one is also a specialist in trademark issues. The reasons I happen to know these lawyers is because the company that I formerly owned for over 20 years had a number of copyright and trademark issues over the years and these individuals were working with us on those issues. Keep in mind that lawyers often disagree with one another. That's why we have courts, judges and juries to figure out how to deal with those differences.

Actually the Playboy lawyers are quite reputable and well respected.

As for the filing of the copyright, it was filed on February 5, 2004 and the photo was used in Playboy in late 2003. So it clearly seems that the copyright registration was not filed until after the fact (in other words after the alleged infringement).

In my view, and in the view of many others (including my two lawyer friends), they think this is a frivolous lawsuit.

Cheers,
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Re: Playboy Sued by Photo Owner
Old 12-30-2006, 05:00 PM   #8 (permalink)
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From what I've read about copywrite in regards to photos is that the copywrite occurs at the moment the shutter is tripped and registering it is not required, though it does make it easier to prove later. If that's indeed true, what difference does it make if it was filed immediately after the shot was taken or several years later? I can't imagine making a photographer register every shot (or collection of shots) he/she takes. Besides being time consuming, it's not free.

Here's the link to where I read about it: http://photography.about.com/cs/busi..._Copyright.htm
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Re: Playboy Sued by Photo Owner
Old 12-30-2006, 05:22 PM   #9 (permalink)
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I am now very confused, Why is it frivolous. We as photographers say we own the copyright to the image. We go after people who try to reproduce our images, by copying them at Walmart and giving them to there friends and families. Playboy took another photographers work, who was not employed by them and put it in a magazine that has an average distribution of 3.1 million, and it can be assumed that they sold some of them magazines, plus advertising they received for the magazine, so they profited from the photographers image. While the photographer is asking for the moon & stars, so would I. They took another persons work and 1. did not give them credit & 2. they didn't compensate the photographer. A good reminder that as photographers we need to register our images if not quaterly at least yearly.
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Re: Playboy Sued by Photo Owner
Old 12-30-2006, 05:37 PM   #10 (permalink)
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Quote:
Originally Posted by glamourpics View Post
(Various ad hominem attacks and slurs against me have been deleted)
Well, let's see what they were:

Quote:
Originally Posted by R_Fredrick_Smith View Post
It also appears that you have violated the copyright of Rhett Pardon by publishing his article in this post (and it seems you provided no link to the article). I also notice you don't say where the article came from. So essentially your use of this material appears to be a blatant copyright violation.
Ad hominem: A fallacy that attacks the person rather than dealing with the real issue in dispute.

RFS's comments are neither fallacies (you did infringe the copyright of the Sacramento Bee) nor are they irrelevant to the issue, as they demonstrate your hypocrisy regarding your one-man copyright infringement crusade.

In both of the following posts you infringened a news organization's copyright by posting the full text of a story without attribute or a link:

http://www.glamour1.com/forums/off-t...more-news.html

http://www.glamour1.com/forums/main-...ographers.html

In the following post you also posted the full text of a story without a link, but at least with attribution:

http://www.glamour1.com/forums/off-t...your-nose.html

Whenever anyone points things like this out, you either ignore it or wave your hands and claim "Fair Use" based on commentary. Part of the Fair Use defense hinges on whether you only quoted as much as needed to illustrate your point/comment/observation/etc. Taking it all is taking too much.

Slur: a disparaging remark.

The simple fact is that sometimes the truth hurts.
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