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Re: How Copyright Registration Could Work Against Photographers
In reply to Rdefen,
May 4, 2012
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Rdefen wrote:
You think if a class is certified and Google wins, Ds are paying Googles attorney fees?
Even after Fogarty the section 505 rule favors plaintiffs.
For example,
More to the point, what settlement is happening with P picking up D fees ?
Even if the P's were so deluded you think the Judge that wrote this :
is going to now sign off on an agreement in which plaintiffs bankrupt themselves by picking up Google's fees ?
And in the highly unlikely event of a jury verdict, you still have to "prevail" which doesn't necessarily mean a simple verdict in your favor. As noted in the case above the courts have discretion and a simple "win" whatever that might look like doesn't get you fees.
On your summary, it's three months not 90 days. It is not the same thing. They count it calendar months. So three months from February 15 is May 15 which may or may not be 90 days. Also you can always seek costs per section 505. If you want attorney fees recovered then you must timely register.
On this case, Judge Chin doesn't seem to be buying the no class can be certified and, more importantly, he has a sense of humor:
“Wouldn’t Google be delighted that this is a class action if I find it’s fair use?,” Judge Chin asked Thursday.
All I said was that it is possible that the photographers could be held responsible to pay Google's legal costs and attorney's fees if Google prevails and if the Associations are dropped as plaintiffs. I did not, as you did, speculate on how the judge might rule based upon his writings. I stand by what I wrote as a reasonable concern. At the end of this, if there is no settlement, it is likely to be the Second Circuit Appeals Court that decides the issue. That makes the trial court judge's humor just humor.
As I wrote, I have no idea how the case will be decided. That will be dependent upon facts not supposition, and the facts are not clear. We really do not know the licensing terms governing the use of the the photographers' works in the books that google copied. I can tell you that ASMP is on the record in depositions in Resnick, et al, v. Copyright Clearance Center as holding that unless a photographer has specifically restricted the copying of his image in a book to which the copyright is owned by a publisher or other party, that photographer cannot control the copying of his image in the book since he has no rights in the book. That could come back to haunt ASMP and its photographers who are plaintiffs on the suit.
As I stated, I have no idea what the final outcome will be. I just have a concern for the photographers who could (not will) lose and be held responsible for the defendant's costs and fees. Any attempt to characterize my thoughts otherwise is specious or the product of failing to read what I actually wrote. I am not looking for a fight. I am just pointing out that registration can work against a photographers interests.
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography
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