wetryit

We Try It: Getting Sued

What’s new in the world of P-Mag, you ask? Well, we’re being sued.

A blindfolded unicorn holds a scale of justice in her mouth.
Original art by QueSarahSarah.

Here are the (publicly available and legally disclosable) facts, keeping in mind that although the parties involved are a matter of public record, we’re not jerks, so we’re choosing not to disclose any names or identifying details:

 

  • Persephone Magazine, along with more than 70 other defendants, is being sued for copyright infringement in relation to use of a single photograph.
  • Two separate lawsuits, each relating to the same photograph, were filed by the photographer of said photograph, who is also a copyright attorney. A third lawsuit relating to the photograph was dismissed because the photographer/attorney had not yet registered the copyright for the picture when that lawsuit was filed.
  • Each defendant is being offered the chance to settle the lawsuit for $1500, paid to the photographer/attorney.
  • Many defendants have already settled (although the exact settlement amounts for every defendant have not been disclosed).
  • The photograph was available on several Creative Commons photography sites. No such site is named in the lawsuit. After the lawsuit was filed, the photograph was no longer available on the Creative Commons photography sites, and the photograph in question now features a watermark and right-click protection.
  • The photographer/attorney used a Google Images search to find instances of the photograph in question.
  • P-Mag removed the photograph in question as soon as notice of the lawsuit was received. No cease and desist or DMCA takedown notice was issued before the summons was received. Our first notice of any issue with the photograph was when we received the summons informing us we were being sued.
  • If, as an example, 73 defendants each settled for $1500, the resultant settlement money would amount to $109,500. Subtracting out the court filing fees of $700 ($350 for each of two complaints) results a total settlement amount of $108,800. Attorney fees are not subtracted out since the photographer is an attorney and filed the suit on his own behalf.

 

Fun, right? We’ve availed ourselves of the best in free legal advice, because (and this may come as a huge shock) P-Mag is not a giant media conglomerate making money hand over fist and employing in-house legal counsel. We rely on donations to barely cover the cost of our server bill every month. Many advertisers don’t like the fact that we write about The Sex, so our ad options are often limited. Our intrepid team of legal advisers have told us that settling for the demanded $1500 is our best bet. Which is all well and good, because being sued isn’t fun and makes us feel icky, but here’s the thing. We don’t have $1500. We have great content, hilarious writers, a witty commenting community, but no money. In fact, $1500 is more than P-Mag made on ads in all of 2012.

So, we need some help. We have legal advice covered already, and we have plenty of opinions about this suit, so although we know everyone loves advice and opinions, we’re all full up on those. What we need is cash, so that we can pay the photographer/attorney the non-negotiable $1500 being demanded and be on our way back to creating great content for you. To that end, we’ve created the P-Mag Unicorn of Justice Legal Fund. If you have a few dollars to spare and to throw our way so that we don’t have to make the choice between settling this matter and continuing to keep the blog up and running, we’d appreciate it more than you can imagine.




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62 thoughts on “We Try It: Getting Sued”

  1. Well, those are facts you didn’t include in the write-up. If the rights-holder had actively licensed the work through Creative Commons at the time it was taken, you have a clear defense based on that Creative Commons license. Even if he withdrew the permission after the fact. If he never authorized a Creative Commons license but it ended up on the site anyway (happens all the time), then I’m really sorry you got unwittingly duped, thinking you had a license, and that the Creative Commons site isn’t indemnifying you. It does suck that things end up on Creative Commons or stock image sites that weren’t properly authorized. $1500 seems a pretty cheap lesson to learn to look for verification, indemnification, or the like.

      1. Well then, please edit your post, because bullet point #5 doesn’t explicitly say that the owner gave permission to the Creative Commons site and then revoked it. Images can end up on sites without permission of the author; it’s very common for a work to go through several hands, and the site posting doesn’t know that whomever gave it to them didn’t own it or have the right to authorize a Creative Commons license. Being on a site and then being removed and replaced with a watermark doesn’t mean permission was necessarily given originally.

        Again, please clarify.

  2. Oh yes, copyright infringement is just so silly when you’ve taken something without a license and the rightful owner seeks to enforce their rights. Please remember this the next time some site scrapes your content or a blogger reposts claiming they found it unattributed somewhere and therefore it “must be free.”

    1. I see you’ve missed essential elements of this case. This wasn’t found via google search, but on a site where content creators generally post their content for use under creative commons. It wasn’t found on a blog, and wasn’t hearsay CC. What happened was it was on a CC site (though not on THE CC site) and once a large number of people used it, the creator decided to pull the CC licensing so that they could get commercial gain.

      CC sites aren’t uncommon any more. Heck, you can even tailor your searches on many image sites to images that have CCs. These sites make you certify that you are uploading content YOU hold the copyright to and that you are assuming liability, not the people who in good faith use images marked as available for use under the various CC licenses.

      Creative Commons was created by content creators so that other creators could use their work creatively without worry. You can learn more about this amazing license and why it’s good for everyone including creators who chose to use it here: http://creativecommons.org/about

      We are all about content creators getting credit, and where applicable (such as when you don’t post your content under CC) getting paid. A number of our people are also freelance writers at gigs where they actually get paid (we don’t here, our adverts go to our server costs.) We all have a lot of appreciation for that system.

      It’s one of the many reasons this case bothers us so much- we are kinda sticklers about making sure an image is sourced with creative commons intact. However, we can’t be going back and checking that creative commons is still intact for images that we already had seen CC for. That this particular creator was able to revoke his CC and then go after people who used it while it was still under CC is a major flaw in the CC system.

      Please reread the post instead of assuming you know the facts. Thank you.

    2. When our work ends up on another site without attribution, we politely request that the material be taken down or attributed properly. If the site refuses, then we move on to legal action, not going directly to suing 73 people/companies demanding a $1500 payout each, with no prior contact such as asking them to rectify the issue. Thanks for your comments!

    3. 1. AS STATED IN THE PIECE, the photo was taken from a Creative Commons site, and it disappeared after-the-fact.
      2. Reasonable humans send cease-and-desist letters first, give the party a chance to reply, then only escalate to lawsuits if the party isn’t compliant with their request.

      1. To both Monkeys and Liza:

        Some things end up on stock sites or CC sites without unauthorization. That’s a drawback of how easy it is to copy and disseminate things on the interenet. I’m sorry that happened to this site. It sucks when you’re trying to do the right thing and you get burned anyway. My greater point is that you can’t even always be sure with these kind of sites. You can’t always believe they’re properly authorized without inquiring further, or having some sort of contract with the site that indemnifys you should this arise.

        I agree that he shouldn’t have gone straight to litigation, when there’s so many intermediate remedial steps in between. It’s a sleazy tactic. I think you’d be well within your rights to actually publish his name so that at least he’d get some bad press (see, Funnyjunk/Carreon vs. The Oatmeal). He’s obviously shaken you up, since you haven’t done so. Most IP attorneys will start with a C&D before going straight to suit, and nowadays those get drafted with an eye towards ending up online/potential bad press as a bully.

        And if you really think he tried to “entrap” people by putting up a photo, then taking it down and suing, please report it to the state bar(s) where he is licensed. The CC sites probably either took advantage of the safe harbor, or settled with him in exchange for information on downstream entities that copied the photo.

        1. We haven’t published his name even though we’d be within our rights to do so because we’re not jerks, not because he’s “shaken [us] up.” One of the things that The Oatmeal case showed the Internet at large was that when identifying details in these matters are publicized, people can do all sorts of things with that information. That worked out well for The Oatmeal, but isn’t an approach we feel is representative of us or our readers.

          Had we been approached and asked to remove the photo, we would have done so without hesitation. As I said, our work sometimes ends up elsewhere unattributed. That’s the nature of the Internet. We always try to handle the situation like reasonable adults, as we have tried to handle this situation. How the photo ended up on the CC sites isn’t information that we know or are speculating on.

  3. We hit our goal. We can have this over and done with by the end of next week.

    Thank you so much for all your support, kindness, and sharing with others. I am floored by the reaction, and we’re all so grateful.

    P-mag is going to live to write another day, and it’s thanks to all of you who helped. The only way we know to even attempt to repay your kindness is to continue to kick serious ass as a ladyblog.

    1. Seconded. Everyone’s generosity and support has made it very difficult to be my usual jaded misanthropist this weekend. Please know that we are very aware and very grateful that we have the best damn ladyblog community around, and we are so so lucky that we do.

  4. So there’s no way to group together with the other people being conned to fight this? Legally, you’d win a case in court because of the lack of proper notice, the due diligence you can prove, the fact that you can demonstrate that the appropriate permissions were on the image when you got it, etc., but of course that could require having to go to court in some place that would cost as much in travel expenses as the settlement cost.

    These legal games are the sort of thing of up with which I cannot put. I am all for protecting the rights of copyright holders, but not for trying to scam people out of money who legitimately thought an image was fair use.

    1. Unfortunately, for a number of reasons, that’s not a feasible option for P-Mag. I wish it would work out that things are fair and just, but suits like this are pretty stacked against the little guys.

  5. Love watching the donation ticker rise. I know nothing about advertising on blogs. Does it help if in addition to the donation we actually click on the ads? I know you receive a tiny but by page views, but do you get more if we, say, click on the actual Amazon as itself?

  6. Urgh, that’s super sucky. I chipped in a bit, hope it helps. I also didn’t realise I’d left adblock turned on for the site – oops! I’ve turned it off now.

    Hope this gets sorted out quickly! :(

  7. I am beyond infuriated. This reminds me so much of Patent Trolls who make up patents for ridiculous things (like ‘mobile radio handover initiation determination’ in one recent case) and hope that enough people will settle to make a quick buck. And this con-artist is targeting anyone that can’t cover the legal fees, so thereby guaranteeing they get a ton of money.

    I only wish you could fight back. I bet this idiot would run screaming if confronted with anything resembling a direct and fair fight.

    1. I actually considered acting pro se, but I don’t know enough to do the site any justice. I’d hate to try and get penalized extra for attempting it.

      The thing is, we try very hard to always respect copyrights. Ask any of the writers what a broken record we are about legally sourced/attributed images. I feel terrible that the image we found wasn’t free to use like advertised.

      1. It seemed to me that the image was indeed free to use until the photographer in question decided that he could make a quick buck. I wish I knew more about the whole thing (have people gone to fight it and have they won?), but it smells of con-artistry to me.

        Out of curiosity, if someone was indeed unable to pay the “fee”, what would happen? Would the site have to shut down?

  8. Isn’t there a line on Henry VI that really applies here? (Note to lawyers: Please take it in the literary context and the fact that it explains that lawyers needlessly splitting hairs are really worthless and not as a threat).

    But this sucks. I’ve put in some money. Y’all should, too. Even if you can only afford $10, that’s awesome.

  9. Something that occurred to me later, have you told Creative Commons about this? Not in an accusatory way, just a heads up to them since their whole purpose is to simplify what you can use on the internet and how. If someone is abusing them by uploading and then pulling their work to entrap people or other people uploading work they don’t have the rights to, they may want to know.

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