Retweeters Of A Copyrighted Photo Just got Sued

Jul 9, 2015

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

Retweeters Of A Copyrighted Photo Just got Sued

Jul 9, 2015

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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By now we should all know that taking someone’s photo and uploading it to social media is not cool (and not legal either). But what happens when you retweet or pin or share a photo that someone else stole? An interesting case now presented to the courts of California may change how easily you retweet photos forever.

California based photographer Dennis Flaherty is suing beverage company Big Red Soda for allegedly posting one of his photos to social media without his permission. Nothing new here. If this is indeed the case, Dennis would probably have a walk in the park in court. What’s more interesting is that Dennis is also suing every single person who retweeted or pinned the photo.

If you want to dive into the full boring legal text, you can find it under Dennis Flaherty v. Big Red, 1:15-cv-00566. but let me sum up some of Deniss’ claims.

Dennis claims that he is the owner of a photo showing Fort Alamo at night, and that Big Red posted the photo to their social media accounts marking the 179th anniversary of the Battle of the Alamo.

The screenshot below is taken from the case evidence as submitted by Dennis

via http://www.scribd.com/doc/270400553/Flaherty-v-Big-Red-1-2-evidence
via http://www.scribd.com/doc/270400553/Flaherty-v-Big-Red-1-2-evidence

And similar screen captures exists for facebook.

Here comes the twist, the1709blog says that Dennis is also claiming that (bolding mine):

Defendants induced copyright infringement by distributing the photograph to third parties, that is, social media users who retweeted, pinned or liked the original social media post containing the infringing photograph. Plaintiff claims that, as such, they “stood in the shoes of the Plaintiff and licensed the image to Twitter,” citing Twitter’s Terms of Service which provide that by submitting content, users provide Twitter with a royalty-free license, thus allowing the social media site to make one’s tweets “available to the rest of the world and let others do the same.” Plaintiff is seeking actual, or, alternatively, statutory damages, for contributory infringement as well.

So basically Dennis claims that each retweet and share provided Twitter with more permission to distribute the photo. This can get messy. I have to agree with 1709 to the fact that it would be hard to prove intent for the poor souls who retweeted the alleged infringing photo:

It is very unlikely that Plaintiff will be awarded any damages from any social media user. Plaintiff claims that the contributory infringement was intentional, but proving that it is would be impossible. As noted by Plaintiff himself, the photograph bore the Big Red trademark. As such, social media users were likely to believe that the use was legal, even if they knew that the copyright of the photograph was owned by Plaintiff, as he could very well have licensed it

1709 goes further to speculate a nightmare of small court claims against retweeting users which will may have a chilling effect on speech, especially if the fees start to add up.

[via the1709blog]

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Udi Tirosh

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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45 responses to “Retweeters Of A Copyrighted Photo Just got Sued”

  1. Nadine Lianne Spires Avatar
    Nadine Lianne Spires

    It’s a very messy situation indeed, especially for the innocent followers who were unaware of the copyright. It would be realistic to sue the company but unrealistic to sue anyone who liked and retweeted the photo as they themselves did not put the photo up. never heard anyone being sued for liking a photo even if the photo was stolen. If his intention is also to sue those who innocently retweeted or liked the image, that would be going too far. It’s not the same as a blogger taking a photo from the internet and using it on their site.

    1. Me, Myself and I Avatar
      Me, Myself and I

      Yeah, even the “posession of stolen goods” laws exempt the poor dupe who bought stolen gear from prosecution (as long as he was un-aware that he was buying stolen goods).

  2. Diego Vidal Avatar
    Diego Vidal

    I have no knowlege of U.S law, but shouldn´t he pursue those extra “media damage compensation” from Big Red as well, since they started the issue by uploading his photo without his concent and by doing so creating that mess with retwits (who as said, users probably thought it was a legal photo owned by Big Red)?

  3. Karen Waples Avatar
    Karen Waples

    Curious to know if the image was from a webpage or a social media page. If social media, you would have to know prior to sharing the original image, that social media is where people like and share other images. If you don’t want it shared, don’t put it up in the first place. In this instance a commercial business took an image and put their logo/brand on it, which is never right. But to go after unsuspecting social media sharers is harsh.

  4. Ken Tam Avatar
    Ken Tam

    People need educations about copyright. I don’t know why teachers not quite mention copyright, specially photography school!

    1. ikillflesh Avatar
      ikillflesh

      What?

  5. Thomas Zlabiroth Avatar
    Thomas Zlabiroth

    I think this guy is about to lose a lot of business…

    1. Me, Myself and I Avatar
      Me, Myself and I

      Why? Big red won;t hire him? They didn’t hire to start with, they simply stole his IP.

      That’s like saying that LensPal will lose a lot of business for pressing charges on the thieves that broke into their store and stole their gear (if they ever find them).

  6. Amy Bedard Avatar
    Amy Bedard

    All photos are under copyright protection from the moment of creation. The problem is it was used without the creator’s permission in the original ad. The retweets, likes, pins, etc. may be useful to prove the extent of damage for the original theft of the image.

    1. Rodel Natividad Casio Avatar
      Rodel Natividad Casio

      Yes, temporary copyright. You cannot go after damages unless you have registered the image with the US Copyright office.

      1. Me, Myself and I Avatar
        Me, Myself and I

        You can go for damages but have to prove actual damages instead of simply going after statutory damages.

        The advantage of registration is that it entitles you to statutory damages without needing to prove actual damages or loss.

        ps.: Not a lawyer.

    2. Nadine Lianne Spires Avatar
      Nadine Lianne Spires

      yes, but for going after the company. Not those that were unaware of the situation.

  7. Mark g Avatar
    Mark g

    It’s nonsense, his images are not that amazing, generic crap. Any tool with a digital camera thinks they are a photographer these days.

    1. Tor Ivan Boine Avatar
      Tor Ivan Boine

      well, that’s besides the point.

    2. ikillflesh Avatar
      ikillflesh

      Yes, but it’s not really different than someone posting a totally irrelevant comment after nominally comprehending an article on a website

  8. Rohan Anderson Avatar
    Rohan Anderson

    That’s a bit ridiculous.

  9. Rodel Casio, CEO of Emperience Avatar
    Rodel Casio, CEO of Emperience

    I wonder if he registered the image with the US copyright office?

    1. sshoihet Avatar
      sshoihet

      D-34 of the complaint states “Plaintiff holds a valid and registered copyright to the Photograph subject to this action”; so i would say that’s a yes.

    2. theRFWS Avatar
      theRFWS

      He doesn’t have to. All photographs are automatically protected by copyright and all rights are retained by the photographer until such time as those rights are legally transferred or shared.

  10. Christine Welsh Avatar
    Christine Welsh

    Good for him… no one innocent there… hope he wins.
    It is about time someone took a stance with theft.
    No excuse for being ignorant when there is lots of info in print and online for anyone to learn. We all know not to plagiarize written works… guess it needs to become standard to not take images you don’t have permission to use as well.

    1. Nadine Lianne Spires Avatar
      Nadine Lianne Spires

      would you then google every photo each company you follow to see if they have used it without permission? There are innocent people here, those that didn’t even know the photo was stolen and did what you and all of us do, share and like.

    2. Christine Welsh Avatar
      Christine Welsh

      I just don’t share photos without permission… knowing the laws around copyright. Like I said.. people can read about copyright.. and I am pretty sure people are more aware than you think.

    3. Christine Welsh Avatar
      Christine Welsh

      Follow The Lawtog. . She has tons of info on her website around these types of things.

    4. Josofa Harris Avatar
      Josofa Harris

      If someone pretends it’s their work and you believe them at face value without research does that mean you owe someone money? Or let’s say you use a product from a reputable company like Apple or Samsung but said company violated someone’s patents should you be responsible for those damages? You purchased and used a product that was in violation. Get real, no way can any one person research everything they come across in their daily life and be held responsible if someone lied to them…. Sigh…

    5. Christine Welsh Avatar
      Christine Welsh

      Whatever.. it’s his life, his product anyways.. he can do as he wants.. get real. lol

    6. Nadine Lianne Spires Avatar
      Nadine Lianne Spires

      Then you will face the same problem with every single advert you share from a company’s page, every motivational or witty photo, piece of art or even minion on your page. If none of the artists gave their consent you will be in the same position, without knowing the content was stolen.

      And exactly how do people go around asking a company if they have required the copyright to use the photo for each and every advert they have? People can google search the image but as it was altered they will most likely not get results (I have already tracked thieves this way).

      There is no excuse for stealing a photo, and that should be taken up with the company, not people who didn’t know. IMO, how a photographer reacts tells quite a bit about their character, their ethics and their work. It appears clear this photographer is after more than recognition and payment for his photo. I have already had an issue with my photo being stolen by a guy, I didn’t turn around and blame everyone who believed he was the photographer or try to sue them.

      So maybe you should get real as you have probably and unknowingly been re-publishing the work of others without their consent.

  11. Rebecca Maier Avatar
    Rebecca Maier

    This also falls under orphan works act. Meaning if a company finds the image has no way of contacting you or has “attempted” to contact then the company can use it freely as their own.

    http://copyright.gov/orphan/

  12. JOhn C Avatar
    JOhn C

    Unfortunately I don’t have time to read the full case at work, however I read that first quoted paragraph completely different. It appears to me to be stating that the defendants (Big Red) acted as if they were the copyright owner and granted ‘license’ to twitter, and they (Big Red) induced the copyright infringement by doing that. It appears they are using that to show how the company acted and that it caused the resulting additional violations. I don’t believe it means he is going after them. If there is something else in the lawsuit that states this more directly please add it. I hope this isn’t another overeaction to nothing.

    1. JOhn C Avatar
      JOhn C

      I do see one site listing John Doe 1#, 2#, 3# (etc) so this may be correct, but the paragraph doesn’t seem to support that. I’ll have to try to access the case at home (not a lawyer, just “took some law classes in college’)

  13. Rob Avatar
    Rob

    The legal argument Dennis is making comes down to the defendant (Big Red) by posting on social media sites actively encouraged others to infringe on his copyright (“induced infringement”). If proved, Big Red would be on the hook for additional damages. Dennis does not have to prove intent on the part of third parties, just on Big Red’s. The Supreme Court heard a induced infringement case this year or the year before. Didn’t go so well for the induced claim.

  14. Michael Turcotte Avatar
    Michael Turcotte

    As Big Red induced copyright infringement, they possible could be held financially liable for all the other cases of infringement. It would not be the first time somebody with deep pockets who started the crime paid for everybody and then had to collect from the other parties. Don’t have access to WestLaw anymore so can’t quote cases.

  15. Ren Lok Avatar
    Ren Lok

    I understand him going after the business(full support of it), but an complete ass for going after the retweeters.

  16. B Shaw Avatar
    B Shaw

    I’m supportive of his case, simply because it will continue to bring visibiliyty to copy rights. I’ve had an image stolen by a developer in China who resells it as part of his website development templates. Here is the good news, his templates aren’t that popular. So far the templates (and my image) have been used by a Russian crane company, a middle eastern travel agency, a Oklahoman academic conference site, and as an avatar for a few kids on the VK social site. If the developer were in the U.S., I would have worked with him/her to help him stop stealing, but unless I want to pay international law firms, I’m not in much of a position to worry about it. Besides the developer only stole a low resolution version.

  17. Melissa Burnell Avatar
    Melissa Burnell

    Welcome to ‘Merica- home of the sue happy douche bags that want to earn a living off the backs of people who actually work.

  18. Joe Lopez Avatar
    Joe Lopez

    Dennis is a fool who enjoys wasting other people’s time. Go after Big Red and leave it at that.

  19. Ralph Hightower Avatar
    Ralph Hightower

    I read a bit of the lawsuit. In that “Big Red” placed his “Big Red” watermark on the photo. If that’s not stealing a photo, then what is?

  20. jameskatt Avatar
    jameskatt

    The copyright holder just turned into a troll by suing retweeters. He should be imprisoned and his needs taken care of by other prisoners.

  21. András Pálffy Avatar
    András Pálffy

    This might be off topic, but that taskbar is hideous.

    1. udi tirosh Avatar
      udi tirosh

      Hi András, can you mail me a screenshot at editor@diyphotography.net. I would love to make this work for you

      1. András Pálffy Avatar
        András Pálffy

        hi Udi, sorry, you might have misunderstood me. I meant the “evidence” you linked in the article which is a sceenshot of a Windows 8.1 or 10. I was referring to the taskbar on the picture which has nothing to do with the layout of the DIY. Sorry that it was not clean enough.

        1. udi tirosh Avatar
          udi tirosh

          haha, good thing the designer was not called in :)
          On my office computer I also used a dual apace task bar. (win 7) it helps if you are like me and open gazzilion windows :D

  22. theRFWS Avatar
    theRFWS

    “…taking someone’s photo and uploading it to social media is not cool (and not legal either).”

    As far as the US goes, this statement is false in regards to the legality question. Persons in public spaces or spaces easily viewed from public spaces have no reasonable expectation of privacy. Therefore photos can be taken of them, and shared at the photographer’s discretion.

    The only time this becomes illegal is when an identifiable image of someone is used commercially (aka to promote a product such as was done in the case above).

    Please do not spread this kind of misinformation which can put many photographers in danger because of people who do not understand their rights in public.

    1. Sanguine Studio Avatar
      Sanguine Studio

      I believe the statement was meant to say; “Taking another photographers image and uploading it to social media is not cool.” The story was in regards to copy write infringement of an image not a person being photographed. but good looking out for an easily misinterpreted headline.

      1. theRFWS Avatar
        theRFWS

        HA you’re totally right.

  23. Dane Smith Avatar
    Dane Smith

    This guy is the biggest piece of shit. Just sued a small business author for a picture without a watermark used on a blog that has no traffic. This guy is what is wrong with the world. He will have a fast track to hell