Email correspondence: His is in YELLOW and I try and highlight what I thought were interesting statements.

Thank you so much for the heartfelt reply. I do understand how things like this can happen when multiple people get involved in designing and running a website and business. Ultimately, though, the end user simply must take responsibility for each image used commercially. If they did not take the photo themselves, they simply must know where it came from. Usually from the artist directly or an agency representing the artist. There are no freebies out there as we know. Today, cutting edge tracking technology is used to find unauthorized image usage on the web. This is what happened here. Once an image is found, I simply look it over and sign off that such usage is either authorized by myself for usage, or not authorized. After that, all resolution has to be made between you/your client and the attorneys or Copyright services international. I am no longer involved in the process. Please feel free to have your client discuss details with the attorney in charge of this case. They have authority to come to reasonable resolutions based on accurate information. Many thanks again for taking the time to share your thoughts and suggestions! My best to you and yours, Vince

Vincent K. Tylor http://www.hawaiianphotos.net

My response: On Jun 22, 2011, at 6:05 PM

Your welcome and thank you for your response, I am discussing the issue with the client and their attorney, and will send your attorney an email. FYI I did just see some notes from the former webmaster that the source for this image was "purchased wallpaper". I can see the image is being offered for download from various wallpaper sites such as openwalls.com at a large size even. Did you not authorize these companies to sell your images or offer them for free download as wall paper? Because many of these wall paper sites do offer images for free use. Might I make a small suggestion? If I were your web designer, I would do several things to help prevent your images from being stolen in the future. 1. disable right clicking. Even though people can still screen shot your image, it is an extra step that some wont bother to do. 2. add copyright notices to the footer on all of your pages to better protect and ward off those looking to steal images. I am not sure what the laws are but I do recall something about having clear copyright notices posted one every page. 3. get your web master to move you to a wordpress site. A wordpress websites has plugins that protect images much better, one that that automatically adds watermarks to your images. There are software services that can also bulk watermark your images. Some of these plugins can prevent people from saving the image and even block them from search engines cataloging them in google images. 4. Add a terms of use on your website, that clearly define what will happen if someone takes an image from your site. 6. Load smaller images. I notice that the image that we were contacted about is still out on the web as a large file, which some can even print from. The image I found in the file was also very large, which is what made me believe this was an authorized image. Somehow this image at this size was retrieved and shared. Most people when they see large files like that will assume that if the owner didn't want it to be used, why would they have made that file so readily available in a printable size. Anyway, just thought I would offer that advice. Thank you for your quick response!

HIS RESPONSE:

Aloha! I appreciate the time you've taken sharing your thoughts and opinions. Theft is such a problem now that I have taken action by hiring attorneys and tracking services to find and collect.

My name is on every photo displayed on any website I sell photos on today. No exceptions. My copyright symbol is directly on my home page. My detail page is already quite small (620 pixels wide) and if anything I plan to go larger which is what helps sell the images more effectively. I legally contracted photos with Webshots many years ago (and still do). It appears to me that wallpaper sites steal the screensaver images from them. And then after a while they all steal from each other and all hell breaks loose. None of which gives any commercial end user the right to use for themselves because they think it's free. That is what intellectual property and national/international copyright laws were designed to protect from happening. Your client is responsible for their own actions or in this case some measure of negligence by not knowing where these photos came from that sell their services. That is the bottom line. People can buy a print from me, scan it, and then use on wallpaper sites just as fast. There is no way to protect from theft aside from placing all of my photos in a closet somewhere. The responsibility often lies with the end user simply wanting to get something for nothing. Some are probably just unaware. But that is still not a good excuse, Daniela, to use the photos of somebody else to help sell their products and services for a profit. We support ourselves exclusively on my hard worked for images. My scanner alone is $47,000. Cameras, lenses, travel, film, developing and so much more (tens of thousands of dollars worth) goes into this process. If people want to use my images for selling their services, then please get in touch with me directly (as many do) and work out an amicable arrangement. But to think it's free and they can just take it is risky business at best and just a bad idea overall. And this is exactly what can happen when they do. Thanks again for your sincere efforts. All the best, Vince

I totally understand your point. I worked for an IP firm for years and understand the issues. But shouldn't you be going after the large sites distributing your images who are actually making money?

**** We absolutely DO this right now. We've had literally thousands of DMC takedowns already. Do you know how many new wallpaper sites pop up every single day? To assume or insinuate that we don't truly is a mistake. It may seem like a drop in the bucket sometimes, but we are doing what we can and on a continual basis at that.

The below image was found in a magazine when I was waiting for my wife to check out at Longs Drugs. Now, do you think Dollar Car Rental would know better? Their argument was that this image was already all over the net. Which still does not give them a pass to use however they wish. The bottom line is they should have to compensate me (and did, five figures worth), as I am sure you would agree that I should be compensated when a company uses my photo for commercial like this. Your client is no different then. To sell their vacation rentals for quite some time warrants compensation as well. There is no difference aside for the amount of compensation itself. The government constitutes copyright infringement as "distributing the image" and public display of a photograph does not constitute publication. This is why its been hard for people to go after sites simply using an image.

**** I don't know where you came up with this, but that's just ONE aspect of copyright infringement. There are many others that you have omitted.

From: http://www.copyright.gov/help/faq/faq-definitions.html What is copyright infringement? As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
506. Criminal offenses6 (a) Criminal Infringement. (1) In general. Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed

(A) for purposes of commercial advantage or private financial gain;

From: http://www.us-cert.gov/cas/tips/ST05-004.html

National Cyber Alert System Cyber Security Tip ST05-004 Avoiding Copyright Infringement Although copyright may seem to be a purely legal issue, using unauthorized files could have security implications. To avoid prosecution and minimize the risks to your computer, make sure you have permission to use any copyrighted information, and only download authorized files.

How does copyright infringement apply to the internet? Copyright infringement occurs when you use or distribute information without permission from the person or organization that owns the legal rights to the information. Including an image or cartoon on your website or in a document, illegally downloading music, and pirating software are all common copyright violations. While these activities may seem harmless, they could have serious legal and security implications. How do you know if you have permission to use something? If you find something on a website that you would like to use (e.g., a document, a chart, an application), search for information about permissions to use, download, redistribute, or reproduce. Most websites have a "terms of use" page that explains how you are allowed to use information from the site (see US-CERT's terms of use for an example). You can often find a link to this page in the site's contact information or privacy policy, or at the bottom of the page that contains the information you are interested in using. There may be restrictions based on the purpose, method, and audience. You may also have to adhere to specific conditions about how much information you are allowed to use or how the information is presented and attributed. If you can't locate the terms of use, or if it seems unclear, contact the individual or organization that holds the copyright to ask permission. What consequences could you face? Prosecution - When you illegally download, reproduce, or distribute information, you risk legal action. Penalties may range from warnings and mandatory removal of all references to costly fines. Depending on the severity of the crime, jail time

may also be a possibility. To offset their own court costs and the money they feel they lose because of pirated software, vendors may increase the prices of their products. Infection - Attackers could take advantage of sites or networks that offer unauthorized downloads (music, movies, software, etc.) by including code into the files that would infect your computer once it was installed (seeUnderstanding Hidden Threats: Corrupted Software Files and Understanding Hidden Threats: Rootkits and Botnetsfor more information). Because you wouldn't know the source or identity of the infection (or maybe that it was even there), you might not be able to easily identify or remove it. Pirated software with hidden Trojan horses is often advertised as discounted software in spam email messages (see Why is Cyber Security a Problem? and Reducing Spam for more information). References U.S. Copyright Office - <http://www.copyright.gov/> Copyright on the Internet - <http://www.fplc.edu/tfield/copynet.htm>

The reason the law is this way is to protect the end user as well, because although you say the end user shouldn't think they can get things free, the truth is there are a lot of websites out there that legitimately give free use of photos, vector graphics, templates, software even articles and legally. And in many cases there is no way for anyone to know they are violating a copyright when they have in good faith downloaded an image from a website that is displaying a copyright notice for their content and saying "here you go".

**** My guess is that most wallpaper sites are illegally distributing photos. The site may SAY "free photos", but that doe snot mean it is by any means legal to take them. And anybody in your line of work for a profession would probably know this. From: http://www.bitlaw.com/internet/webpage.html
Taking images from third-parties. The simple rule is, "Don't steal someone else's images." The moment an original image (or string of text) is fixed on a hard drive for the first time, it is protected by copyright. Any unauthorized copying of a protected image is an infringement of the creator's copyright, unless the use falls within one of the very limited exceptions to the copyright law, such as "fair use." In most cases, it is

unlikely that the incorporation of an image into a commercial web-site would be considered a fair use.

From: http://www.copyright.gov/help/faq/faq-fairuse.html#change
Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so? ... Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law. Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.

Also, The new laws make it very difficult for a website to stay up when its even displaying copyrighted content. The copyright owner need only write a letter to the hosting provider, and that provider BY LAW has to remove the site from viewing until the copyright issue is resolved. That is why most people feel safe using public or free materials. I would suggest you find out the host for those sites offering your content and the host should suspend their server until they remove your image.

**** We have done this far more times than sending attorney letters. And continue to do so. But it still does not give other people the right to use without permission. That is the significant part you and your clients need to keep in mind here.

There is a defense in these cases called "innocent infringment" which is where someone believes they did not know the image they were using was protected and if they can prove that, are not liable. The fact that your images have become available for free download on multiple sources, unfortunately makes it difficult to prove that someone knowingly stole your image. This is why many photographers no longer sell their photos to these screensaver sites.

**** There is a difference between unknowingly using copyrighted works of others and knowingly using the copyrighted works of others. From: http://www.copyright.gov/help/faq/faq-fairuse.html#change
Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so? Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

From: http://www.copyright.gov/help/faq/faq-fairuse.html#change

Somebody infringed my copyright. What can I do? A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.
Could I be sued for using somebody else's work? How about quotes or samples? If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. However, in cases of doubt, the Copyright Office recommends that permission be obtained.

I hope you don't think I am arguing with you here. I understand your are upset. And there are people out there who are stealing outright that you should be concerned with, but myself and my client are not those people.

**** With good and or sincere intentions, your client is still using my photo for commercial gain, without permission, and without any compensation to the copyright owner. While your tone may not be argumentative, you are trying (IMO) to justify the end result here (using my photo without authorization) by making the claim that they simply did not know. But please keep a few things in mind: 1- Because I left the keys in my car and it was even running, does not allow somebody the right to hop in and use it. Even if thousands of people do it daily, in this country alone, if caught, they still are held accountable. 2- Because I did not know I was doing 50 mph in a 40 mph zone, does not exempt me from paying the speeding ticket. 3- Because I didn't realize my tires were so bald steal was coming out of them before it blew out, causing others harm, does not absolve me of culpability. Additionally, and just my opinion of course, but doing anybody's website "for free" (unless perhaps family) is usually a bad idea when that website is generating thousands of dollars of income for the one who owns it. For what that's worth to you.

I think in our case at least, there needs to be some flexibility. Your image that was used, was cropped to 295x95 tall to just show the mokes and some water, you couldn't even see the girl and it was used as a button on an about Kailua section.

**** Quality Image based sites absolutely are more effective than poor image based sites. Seeing that Lani Kai colorful beach shot would absolutely help close the deal for somebody not sure and on the fence about renting their place. It always amazes me how people try to minimize the effect quality images have after they've been found using them without authorization, Daniela. This is what gets tiring after a while. Why do you think places like Getty, Corbiss, Pacific Stock, Super Stock etc are not only in business but thriving? Because quality imagery has a powerful impact on many a business today and for decades now. Take away the photos and you get empty vacation rentals.

I mean, I could develop that argument for hours. What sells Hawaii vacations? What sells resorts? What sells tours? What makes websites pop? etc etc etc ... Even businesses that simply use my photos on blogs still have to pay up. It enhances the website overall and can make it more effective by having them.

They don't make a lot of money, as you can see they are are the lowest priced vacation rental in down. Just an old small town couple who rent rooms and studios out of their house.

**** Anybody who rents rooms and studios (plural), in Kailua (one of the prettiest and most popular beaches anywhere) is not somebody that is broke. They can and should pay for website design services as well as for using the photos from another photographer, imo. There is just no way around this.

If you hang out in Kailua, I am sure you have heard of the ***********. You can google them. Mr. **********volunteers at ************* and Mrs. *********and her adult children play host to families at their homes. These aren't deviant, malicious people and I sincerely hope you reconsider your position with them.

**** I am sure these are wonderful people. And to be honest most people that I know in general have outstanding qualities like described above. Truth be told, I'm not a "deviant, malicious" person either. I am grandpa today in fact (as well as yesterday) for my 2.5 year old grandson. My wife and I donate supplies and money to the less fortunate and run very customer service oriented businesses here on Kauai as well. But photography is how we support ourselves. It's all we've done for over 13 years now. And when businesses come through the front door asking for permission to use my images (just like a guy from Atlanta contacted me yesterday to use Green Sand Beach) we do our best to make it work. But how fair is it to all of the people who pay us for stock photo usage, when your client uses without any payment or even authorization? That's just not right. So when they get caught using images without authorization, this is what happens. They have to compensate us. And offering to put my photo up does not compensate us in the least. How would you like it if I asked for a new site design by your company and offered to make sure I'll be sure to give you a name credit somewhere on the site instead of monetary payment? I doubt that would fly off the ground with you. Nor should it. And it shouldn't with me either.

I really do not have the time to educate people like this. I am so backed up in other projects as it is now. But you sound sincere and I feel compelled to give you a more substantial reply today.

BTW your copyright notice on your front page is really not enough. The USPTO had several articles about protecting content and images on the web, and they clearly advised that you must provide a copyright notice on each and every page of your website, including the source code. This leaves you wide open for people who want to intentionally steal your images and then defend "innocent infringement". There are people who do this intentionally.

**** I have the absolute best Intellectual Copyright attorney in Hawaii and over 12 attorneys in other states in the USA not including a team of attorneys in the U.K., Germany, France, Canada, Japan and Scandinavia. These people know what they are doing. That said, I am in process of placing the copyright symbol on all of my pages to make it even more certain and clear. But if your client's designer 'borrowed it' from some other wallpaper source, none of that would even matter here would it? And why not have your client go after the previous designer? They have the right to do just that. In fact, many designers are the ones that end up paying if they supplied copyrighted material without obtaining a license or authorization. You seem want to focus on things that you want me to do (smaller pages, more specific after the fact warnings, more DMC Takedowns, more copyright page notices etc) while as a web designer I think it would be far more essential to make sure all content is accounted for and has been obtained legally by your end using clients. THAT is the problem here. People are stealing ad are finding new ways to steal. We sell thousands of bookmarks and magnets in Hawaii each month with my images. Anybody can scan one of those and we are right back where we are now. They key is to make sure people have legally obtained usage for their websites, print adv or anything else in between. We are doing what we can on our end. The people using images without proper authorization are the ones that need to take responsibility for such actions. It truly is always a roll of the dice when you do what your client has done here by allowing images to be used to advertise a commercially based website without having proper licenses.

Some articles you may find useful: http://www.digitaltechparis.com/2010/10/the-correct-copyright-notice-on-a-photographerswebsite/ http://www.copyright.gov/fls/fl107.html thanks you for being so open to discuss this issue with me! I am sorry you are having so many problems with people using your work but I hope that some of the info I provided might help protect your images in the future. There are many other tricks that can be used to display your images at a decent size but make it very hard for people to steal them so easily. :)

**** Thank you for taking the time Daniela. I do see your efforts here as sincere. As I hope you see mine are as well. But I hope, as a web designer yourself, you can really help bring to light how important it is to know exactly where every image your client has comes from and if they have been legally obtained. That alone would most likely prevent all of this from taking place here. Take care. Vince

The compensation amount negotiations are between you and my attorney exclusively. Once an image has been discovered, and I've signed off as unauthorized, I then step out of the picture entirely. Our correspondence has been entirely about principle here Daniela. At least that's how I view it. I do not know what amounts you offered nor is it something I need to know now. But the principle here is that you pay more after being caught using illegally, rather than if you came through the front door in the first place such as through a stock agency quote that you may find online. Doing things differently in Hawaii is one of the things I love about it Daniela. But you brought out the free website design on your part because these people, as you wrote, "had little money", which I see as an attempt to persuade me likewise to factor in. My argument still stands then: If they have vacation rentals (plural) in Kailua, then they have money to pay us. And in that case your offering free design services is more of an 'Aloha spirit kindness' gesture rather than a hardship case where they needed your efforts. Which is fine by me. But there is a significant difference between the two.

I have a feeling that I'd be charged a full fee if I tried to make a reservation. Which is how business works anyway. If you know them personally, I can see why you'd give them free services. But I do not know them at all.

Quote: "Things get around this town fast both bad and good deeds."

**** I see that as for what you intended it Daniela. It's sad you feel the need to go to that level. But I'm not too surprised, I guess. What was done by your client is the "bad deed" here (if there is one) according to already established copyright laws. Not the fact that we are trying to claim what is rightfully ours to begin with. Your client used it without permission to help sell their rentals. The many links I sent you show who is in error here and why. My image was captured with a lot of hard work, time, sweat, money and integrity. Stealing it takes all of 10 seconds and there ya go they can use it for commercial and personal gain. And that is just not right. End of story. Mahalo for your openness to this conversation. I have given you much time and energy because things like this matter to me. For what it's worth. I do wish you and the couple nothing but the best. A hui hou, Vince Vincent K. Tylor http://www.hawaiianphotos.net