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7 minute read

July 9, 2017, 11:55 PM

Sometimes, you really have to give someone the proverbial “smackdown”.  Such was the case of a recent copyright infringement issue that I had with a death metal band called Barbiturate.  As you may know, I periodically skim the Internet looking for unauthorized usages of my photography, which I then submit to Pixsy, a company that goes after these copyright infringers for royalties, therefore making the illegal usages legal.  I really don’t care when people use my work elsewhere.  I actually find it somewhat flattering.  However, if you are making money (and by that, I mean taking in revenue, regardless of whether you turn a profit) with my photo, you can afford to pay me for that usage (i.e. “F— You, Pay Me“), either by licensing it up front, or by having me chase you down via Pixsy.  Or at the very least, you can ask me for permission, because I do occasionally authorize use of my work for free.  But generally speaking, I don’t work for free, or for some vague notion of “exposure”.  I have a Flickr account and other outlets that give me plenty of exposure, thank you very much.  I don’t need anyone’s help getting exposure for my work.

In the Barbiturate case, I found this photo in Pixsy’s image search:

Nice graphic.  Black-and-white image of a cemetery with the band’s logo at the top.  The photo depicts Edge Hill Cemetery in Charles Town, West Virginia, which I photographed in October 2013.  I published the full set of photos on Flickr in January 2014, but published one photo as a photo feature in October 2013 to coincide with Halloween.  The Barbiturate graphic used the photo feature cut, where I hiked up the contrast to give the image a “horror movie” feel.  The Flickr set has a more natural appearance, though a cemetery in the fog is still pretty eerie.

Regarding the copyright case, this photo was taken and published at the tail end of Schumin Web’s Creative Commons period (late 2005 to early 2014), and so, not knowing if the date of publication for Barbiturate was within the four months that this image was so licensed, I treated this as a possible legal use, provided that the Attribution-ShareAlike license was followed.  However, I found no attribution on either the ReverbNation page that Pixsy found, nor on the YouTube videos that the band linked to on their ReverbNation page, and where they used the graphic as a background.  Thus, it was time to nail them for it.

As a side note, companies that host content need to make DMCA takedown notices easy to submit.  YouTube has one of the easiest processes for submitting takedowns for content hosted on their site.  You locate the content in the search results, add it to a list, and then submit one massive takedown request for all of the content on the list.  Upon submission, the affected videos are gone within minutes.  ReverbNation, on the other hand, has a takedown process that is a pain in the butt, where you have to fill out a cumbersome PDF form and then attach the form to an email to their legal department.  And they don’t include a space to link to the offending graphics, so I had to submit it as a separate attachment.

I submitted all of the takedown notices and then left to go to work, because as fun as it would be to do Schumin Web full time, I actually make my living playing with trains.  When I checked my email on a break at work, I heard back from a representative from Barbiturate.  No name – they signed the email as “Barbiturate”, even though it appears that there are multiple people behind the band.  The highlights of the email included:

The band holds all copyrights for the music, and the logo, as well as numerous other singular items of artwork, so we understand the nature of keeping ones content secure and protected.

The slide in question was created by a graphic designer whom we employed from the internet utilizing a paid service. As far as I understand it, the image was of a historic cemetery in France; one which was utilized under a creative commons agreement. The band was assured that the photo was above boards, and complied with copyright rules, etc, so I’m not really sure where your claim is coming from, but we take these things seriously none the less.

Additionally, we’re all reasonable here and we could have been contacted directly in lieu of being shut down in this manner.

So, with that said, we respectfully request that you withdraw your claim against out videos. If these photos of the French cemetery were in fact taken by you, and you can justify this, we humbly offer our apologies, and additionally, would be happy to cite you directly for your work etc.

It’s funny that, for a band whose representative claims in the first excerpt that it holds all of the copyrights to its works and takes copyright seriously, they admit in the second excerpt that they only got assurances from the designer that they found online that the graphic containing my photo was legal for their use.  It’s clear that they did not verify the legality of the photo’s use for themselves, because that photo had strings attached to it, and they didn’t follow the rules.  And if they had done their homework, they would have figured out that the photo of the “historic French cemetery” that they were using was actually taken in West Virginia.

Additionally, the third paragraph drives home an important point: everyone wants to be treated like an adult, but no one likes actually being treated like an adult.  I treat people like adults when it comes to copyright.  You choose, as a responsible adult, to use my photos without obtaining the rights to do so, and so I choose, as a responsible adult and the copyright holder, to utilize all of the tools at my disposal to blow the infringing usage off of the Internet.  I see no reason to confront the copyright holder directly, because adults who want to be treated like children rather than adults tend to balk if I come to them directly about copyright infringement, or ignore me outright.  So I have no reason to go to the infringers directly, because it rarely produces results.  If I can bypass the infringers and take care of it directly, I will, because I don’t have time to fool around and hold these people’s hands, and say, “Naughty, naughty,” about their copyright infringements.  And besides, it’s not like they even took responsibility for the violation anyway.  When they got caught, they blamed the graphic designer!  Hmmm, I wonder who decided to hire this graphic designer…

And lastly, notice in the fourth paragraph that the most that they are offering me is a photo credit, and that’s only if I can prove that the photos were actually my work.  Cheapskates.

So with that sort of message from them, I slaughtered them, dissecting their points one by one in my response.  Sometimes, these sorts of things are difficult to write, but this one flowed naturally.  First, my opening statement, which set the stage:

First of all, there’s no nice way to say this: you got ripped off by your graphic designer.  I don’t know what amount you paid them, but it was clearly too much.  Not only does the photo in question not depict an historic French cemetery as you were led to believe, but it’s also being used in violation of copyright.

Then I established my copyright claims over the graphic in question:

The photo depicts Edge Hill Cemetery in Charles Town, West Virginia, on a foggy morning in October 2013.  The cemetery has some graves from the late 1800s, but most of the interments are from the 20th century, and the cemetery is still actively selling burial plots.

Here is the full album on Flickr from that shoot:

https://www.flickr.com/photos/schuminweb/albums/72157639851613024

Here is the photo that was used in the graphic in question:

https://www.flickr.com/photos/schuminweb/11990291374/

Your graphic designer used a different edit of the photo than that which is on Flickr.  They used the version from my website, Schumin Web, which is cut differently, and where I hiked up the contrast to create an effect resembling that of a horror movie:

https://www.schuminweb.com/photo_features/edge-hill-cemetery/

Then I laid out the copyright issue in question:

The photo was made available under a Creative Commons Attribution-ShareAlike license from the time of its publication in October 2013 until February 20, 2014, at which time the CC license was withdrawn, and existing usages were grandfathered.  No new usages under Creative Commons were allowed after that date.  The Attribution-ShareAlike part of the license requires two things on the part of the downstream user to be legal.  First, it requires credit to the copyright holder, i.e. a byline of some sort.  Second, it requires that the resulting derivative work (i.e. your modification of the photo with your logo) be released under the same license as the original.  Your graphic containing my photo failed to include the requisite credit in any location where I found it in use, on both YouTube and ReverbNation, and therefore was not a legal use under Creative Commons, as the terms of the license were not followed.  Therefore, this is a run-of-the-mill copyright infringement case.

All of that said, that’s why you had copyright claims filed against you on both YouTube and ReverbNation.  Your designer failed to use proper due diligence when they created the graphic for you using the “historic French cemetery” that’s actually in West Virginia, and your organization also chose not to independently verify the claims that the designer made about the photo’s subject as well as its copyright status before using it.

In other words, they screwed up, and I told them exactly how they screwed up and how badly they screwed up.  I then offered a solution, whereby they could negotiate terms of a license with me to make their usage legal.  In that case, upon receipt of the licensing fee, I would withdraw my copyright claims, and we could all go about our business.  No license fee, however, and they could keep their copyright strikes with my compliments.

My offer to negotiate was met with silence.  Clearly, they chose the copyright strikes over a license.  Suit yourself, I suppose.

I hope, though, that they took an important lesson home from all of this, i.e. I hope that they learned the importance of vetting their contractors, as well as the work that said contractors do.  All of this could have been prevented if they had checked the work of their graphic designer before publication.  Then they would have known the copyright status of the images that they were displaying, and known whether or not they were in the clear.  Trust no one when it comes to business, because not doing your own due diligence up front can cost you money later on down the road when someone else catches the mistakes that you missed or chose to ignore.  And I have no sympathy whatsoever for people who find themselves in this situation, because they did it to themselves.

Categories: Copyright infringement