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No lawyer is going to take that case on contingency, and even if they did...there would be no seven-figure payday. Despite what you may think, damages are based on actual harm and don't explode just because a megacorp is involved.

Even if it weren't some ambiguous "it used to say Creative Commons but now someone is making a copyright claim" situation, the maximum damages figure is very small. You would get the actual damages, which certainly aren't going to be more than 4 figures for a single website image unless you are a well-established or famous photographer doing specific work for hire. Then you would get some statutory damages--Unknowing infringement (such as after a change in licensing from CC) is limited to something like $200...willfull infringement can go higher, but only if you registered the images with the copyright office in a timely manner (which almost nobody does, especially not for images they post online with a CC attribution).

This: is a pretty giant award as far as infringement goes. Notice that they only got $21k for 10 images, and that was with their own dedicated team of lawyers. For the 2 with registrations, they got a total of 300k, which is the maximum for willful infringement, but look at just how willful that infringement was: The infringers were complete dicks about it. They continued using the images for *years* after being told they were infringing, they lied and used fake names, and when it came time to go to trial, they were not forthcoming in discovery. Those are the kinds of actions that piss off a judge and get you maximum statutory damages.

In sum, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial. But since it sometimes is difficult to know if the use will be considered commercial or editorial, it's always a safer to get the model release.

I do not wish to endorse or promote the idea that I use or approve of the use of facebook. http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html

Funny you should mention FUD... Want an example of that? Okay, here you go (and mind that it's PDF). That was the the result of 5 seconds poking around on Google. Analyze it to your heart's content, but know that you're missing the point of the exercise - read on and you'll see why...

Like I said in the previous post:
"Even if he were perfectly non-liable in civil court and perfectly innocent of any criminal charges, the time, effort, money, and potential loss of freedom (e.g. while awaiting trial) would be more than enough to make his life a living hell."

Seriously - in your rush to 'win' a 'debate', you missed the point entirely: It doesn't matter if it applies to him or not. Doesn't matter one whit if he's perfectly legit or if he's flirting with a long stint in PMITA prison. Let me repeat that: It. Does. Not. Matter. Fact is, he's still flirting with a long expensive legal process that, even if innocent/non-liable, will cost him a shitload of money, time, and possibly freedom.

All it takes is someone with an axe to grind with the guy, and who can find a lawyer dumb enough to do it on contingency. The rest equals upwards of a year+ of one very expensive living hell for the gent in TFA.

Do you understand what I was getting at now?

It's worth remembering that some Americans are still willing to put themselves out there for beliefs that are important to them.

Also remember that the ACLU will back this guy to the hilt. Freedom of speech is freedom of speech, even if you don't like the individual or circumstances.

Funny you should mention FUD... Want an example of that? Okay, here you go (and mind that it's PDF). That was the the result of 5 seconds poking around on Google. Analyze it to your heart's content, but know that you're missing the point of the exercise - read on and you'll see why...

Like I said in the previous post:
"Even if he were perfectly non-liable in civil court and perfectly innocent of any criminal charges, the time, effort, money, and potential loss of freedom (e.g. while awaiting trial) would be more than enough to make his life a living hell."

Seriously - in your rush to 'win' a 'debate', you missed the point entirely: It doesn't matter if it applies to him or not. Doesn't matter one whit if he's perfectly legit or if he's flirting with a long stint in PMITA prison. Let me repeat that: It. Does. Not. Matter. Fact is, he's still flirting with a long expensive legal process that, even if innocent/non-liable, will cost him a shitload of money, time, and possibly freedom.

All it takes is someone with an axe to grind with the guy, and who can find a lawyer dumb enough to do it on contingency. The rest equals upwards of a year+ of one very expensive living hell for the gent in TFA.

Do you understand what I was getting at now?

Yes, I do photography and film. Yes, I attended school for it.

But were you sleeping in class?

In general, when people are in public, you may photograph them. The use of the photographs can be restricted due to certain privacy rights. The rights for a person to certain kinds of privacy are recognized in most states, but differently for each one. It is, therefore, tricky to know what you can do. The safest approach is to follow the most restrictive one. Privacy rights can be subdivided into four areas.

The first is "invasion of privacy" or "intrusion upon another's seclusion." It happens when someone actually intrudes a person's private domain that would be considered offensive to the average person. As a photographer, the act of going on someone's land without permission would violate this privacy. You don't have to take the photo or publish the photo for the action to be unlawful. Some courts have found an invasion of privacy even when photographing someone in public. In those cases, the photographers harass their subjects, use hidden cameras, or wait for a woman's skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is expected (businesses are ok), even when the photographer is standing in public.

The second is the public disclosure of private facts.

The third right of privacy is the portrayal of a person in false light. This happens often with photographs, but usually because of the caption. It requires someone to be publicly portrayed in a false manner in which an ordinary person would find the portrayal offensive. To be liable, the publisher of the photograph must have known or recklessly disregarded the probably falsity of what is represented. It is similar to defamation, when someone's reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.

The fourth right of privacy is very different from the other three. It is the commercial appropriation of someone's name or likeness without permission, or misappropriation. It also is known as the right of publicity. It happens when someone uses the name or likeness of another without consent to gain some commercial benefit. It usually occurs when a photograph of a person is used in an advertisement without the person's permission. That is why model releases are so important-they show that you have the person's permission to use the person's name or likeness. Permission is not required for editorial or newsworthy publications.

Be sure to consider other's rights of privacy before you click the shutter.

Take my advice; get professional help.
PhotoAttorney

Rights of Privacy Concerns for Photographers

I believe a lot of these cases are covered by fair use, though of course the particulars would be for the courts to decide.

I'd like to discuss this further with you, if you'd care to provide specific examples and your reasoning for why the cell phone pictures you have selected as examples are infringing.

A momentary visit to "Google," as suggested in your signature, provided me with the following discussion http://www.photoattorney.com/?p=1158 which discusses one example where an image taken with high quality equipment and turned into a postage stamp which was then sold to collect $17 million dollars was found to be infringing.

I'm not sure how many cell phone pictures gross $17 million dollars in profits from being posted on MediaFire, but if you know of one I'd be delighted to have you describe it and provide references.

In her blog, there's more about NY City cops harassing anyone with a camera.

So much for living life normally. The terrorists have won.

It's only a matter of time before competence itself is deemed "terrorism".

http://news.slashdot.org/article.pl?sid=08/08/12/182243

What happens when you combine searches that you don't even know about:
http://science.slashdot.org/article.pl?sid=08/08/08/1446256
the right to no-warrant search all e-maill:
http://yro.slashdot.org/article.pl?sid=08/08/09/0239246
Warrantless GPS tracking (via beacons):
http://yro.slashdot.org/article.pl?sid=08/08/13/2218209
Considering any citizen who may capture evidence of abuse of authority to be a "threat"
http://yro.slashdot.org/article.pl?sid=08/08/15/1233238
or
"The Fox affiliate in the Twin Cities reports on a photographer who was handcuffed and detained for taking photos of police near the Minneapolis Police Department's special operations center. The police officer in the video admits that people are "absolutely" allowed to shoot photos on public property. "
http://www.photoattorney.com/2008/08/photography-not-allowed-14.html
(PhotoAttorney.com is fighting for your rights to record what is, including crimes committed against you by authority: if you accommodate robbery of rights by authority, you are responsible for your, and your children's helplessly being crushed-KNOW whats going on, ACT to pressure the robbers to limit them)
As of October, FBI's SOP is Warrantless Investigation:
http://yro.slashdot.org/article.pl?sid=08/08/22/2054229
(note these are all from just the last couple of weeks, to understand how big the war for control of all rights, is)
Testing for Mad Cow disease (a Real Live Actual threat against our security+survival) blocked by gov't
http://news.slashdot.org/article.pl?sid=08/08/30/238223
Protesting treated as terrorism, terrorized by police, without warrant or charges:
http://politics.slashdot.org/article.pl?sid=08/08/31/2140252
See a trend here??
Neighbors do the spying, become part of our western "stasi":
http://yro.slashdot.org/article.pl?sid=08/09/01/1144246
Gov't claims no one can share what the law is, because of copyright law
(remember "secret laws" in the soviet bloc? arrested and never found out why they were disappeared?
Never knowing why you are in jail? Never knowing what you were charged/convicted on?
How about our "security certificates", which do the exact same thing?
here's the "law is copyrighted: no share" story)
http://news.slashdot.org/article.pl?sid=08/09/03/181251
France's electronic prison world:
http://developers.slashdot.org/developers/08/09/05/0059220.shtml
and how to track all individuals from satellites based on gait:
http://yro.slashdot.org/yro/08/09/05/1157243.shtml

If you are naive enough to consider weaponry (electronic leverage is just another kind of leverage, steel was a previous leverage) to be something that isn't ALWAYS abused by authority, whenever it can, until the citizenry fights for rights enough to mitigate that, then your soul's going to not enjoy the rest of eternity, looks like.

What authority does with resources is shown also in what it DOESN'T do.

NON-prosecution of re

Model releases are different, as the model is the main focus of the photo. In the US and the UK members of the public have a very limited scope of privacy rights when they are in public places. This is the key different, model releases come into play for studio shots. Basically, in public, anyone can be photographed without their consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, and inside their homes. See ThePhotographersRight.pdf for more details of the US situation; photoattorney.com has more of the same. You can find an overview of Australian law here

Finally the NYTimes covered a case where the subject of a photo in public sued because the photographer use it in an exhibit and was making money. The suit sought an injunction to halt sales and publication of the photograph, as well as $500,000 in compensatory damages and $1.5 million in punitive damages and was brought under the NY privacy laws. It failed because the photo was consider art.