How strong of a case is this

[ebaysucks]

What is the name of your state (only U.S. law)? Massachusetts

I sell things online and I often create product demonstration videos
or re-photograph items to make them unique. It can be quite
advantageous to do this. For one thing most of your competition
settles for stock images or in the case of products that move having
to verbally describe them to prospective buyers. Not a very good way
to sell.

So last summer I made some product video demos of a product. I knew
before hand only one other competitor had a video and his was a noisy
tradeshow video with all sorts of other things in the background moving
around and making noise. So I wanted to protect my work. I registered
the work with the copyright office in Washington DC before I published
the videos to my Youtube channel. It was tedious filming everything
and trying to handle the copyright website which is anything but modern
but I thought my creation(s)was good. Amazingly enough not one of my
competitors bothered with my videos.

Well not one until a few weeks ago. This other seller is a big company
in terms of their market position. They took my video, edited it by cropping it,
darkening it, scrubbing my company name that was in the lower right hand corner
but elevated so a person couldn't just crop it out without disturbing the talent(product)
and replaced my company name with their own, and finally added an intro presenting it
as their company's product video. The video was placed on their youtube page and
embedded on their very popular website.

Willful copyright infringement?

We're both selling the same product. They are my competitor. It's a highly competitive
market and they are completely capable of producing their own product videos. Product
videos from the manufacturer or distributor never look like my video which was set in
my garden. I'm even in some of the videos along with my dog. The one they stole I am not.
However I'm sure they looked at my channel and my other demos to select which one to take.
You can even see my company name behind their logo that they added. A DMCA take down notice
has been filed. Youtube will remove the video later today. I have no doubts about that.

I think this one is pretty egregious. As always I'm a little prejudiced.

 

[quincy]

What is the name of your state (only U.S. law)? Massachusetts

... I often create product demonstration videos
or re-photograph items to make them unique. ... I made some product video demos of a product ... I registered
the work with the copyright office in Washington DC before I published
the videos to my Youtube channel. ...

... This other seller is a big company
in terms of their market position. They took my video, edited it by cropping it,
darkening it, scrubbing my company name that was in the lower right hand corner
but elevated so a person couldn't just crop it out without disturbing the talent(product)
and replaced my company name with their own, and finally added an intro presenting it
as their company's product video. The video was placed on their youtube page and
embedded on their very popular website.

Willful copyright infringement?

... A DMCA take down notice
has been filed. Youtube will remove the video later today. I have no doubts about that. ...

It is good that you filed the DMCA takedown notice. Because you registered your video prior to publication, you are eligible to collect statutory damages over the derivative created by the other company.

The difference between willful infringement and innocent infringement is the amount of damages a court may be willing to award the copyright holder. With innocent infringement, the infringement was unintentional (perhaps the infringer believed the work was not copyright-protected) and the court takes that into account and damages may be mitigated as a result.

It is willful infringement when the one who uses the copyrighted material knows, or should have known, that the work is protected by copyright. Federal registration is public notice that the work is copyright-protected. The amount of statutory damages that an intentional infringer may have to pay can be greater - instead of $750 to $30,000 per infringed work, an award could be as high as $150,000 per infringement.

The Copyright Act's Section 504 details the remedies for infringement (damages and profits).

 

[ebaysucks]

It is good that you filed the DMCA takedown notice. Because you registered your video prior to publication, you are eligible to collect statutory damages over the derivative created by the other company.

The difference between willful infringement and innocent infringement is the amount of damages a court may be willing to award the copyright holder. With innocent infringement, the infringement was unintentional (perhaps the infringer believed the work was not copyright-protected) and the court takes that into account and damages may be mitigated as a result.

It is willful infringement when the one who uses the copyrighted material knows, or should have known, that the work is protected by copyright. Federal registration is public notice that the work is copyright-protected. The amount of statutory damages that an intentional infringer may have to pay can be greater - instead of $750 to $30,000 per infringed work, an award could be as high as $150,000 per infringement.

The Copyright Act's Section 504 details the remedies for infringement (damages and profits).

They went through so much trouble to doctor my video and scrub my company name I like to think they
weren't exactly Beaver Cleavers. They also were doing so for commercial gain. I wouldn't call my video
a clinical, sterile, retail presentation of the product but rather a more atmospheric creative personal video.
Many videos and photos in my industry and similar retail industries are shared but only the ones that you
are authorized to use. For example a manufacturer might make a video demo but they're not going to care
if you re-use it because you're making them money. My intentions were quit clear. I labeled my videos on
purpose too. You had to alter them just to hide my name.

Should be real interesting how they react. It's interesting to me because sometimes the person is like sorry
and other times they double down and re-upload the video call me some names etc. I'm thinking former because
they can't afford 3 strikes on their official youtube channel with 1000's of subscribers and having to re-upload
1000's of videos? No one wants to do that. I'm sick of my industry though so my reaction will be harsh. Law
is a highly debated topic. So much interpretation involved. The law does say ignorance does not apply to
infringement. Meaning, you can't assume it's in the public domain. As of 1989 a work doesn't even have to have
a copyright mark. It certainly makes it worse but anyone can stick one of those on anything. It doesn't really mean
anything. This happened to me before only I had to deal with Ebay, hence my name. They were impossible to deal
with. This time I want to fight back. I prefer creating to selling.

 

[quincy]

They went through so much trouble to doctor my video and scrub my company name ... They also were doing so for commercial gain. ... I labeled my videos on purpose too. You had to alter them just to hide my name. ...

... Law is a highly debated topic. So much interpretation involved. The law does say ignorance does not apply to
infringement. Meaning, you can't assume it's in the public domain. As of 1989 a work doesn't even have to have
a copyright mark. It certainly makes it worse but anyone can stick one of those on anything. It doesn't really mean
anything. This happened to me before only I had to deal with Ebay, hence my name. They were impossible to deal
with. This time I want to fight back. I prefer creating to selling.

Once the video is removed from its online location, you can make your decision whether to pursue the infringer in court or not. Because you registered the video prior to publication making you eligible for statutory damages, and it appears you can prove the company used your video, merely modifying it to suit their needs, pursuing a legal action is more financially feasible than it could be otherwise.

Ignorance is never a good defense to breaking any law and, while ignorance of a copyright does not mean an infringement is any less infringing, it can mean that any damages awarded can be mitigated. With innocent infringement, a judge at his discretion can award damages as low as $200.

Good luck, ebaysucks.

 

[quincy]

... As of 1989 a work doesn't even have to have a copyright mark. It certainly makes it worse but anyone can stick one of those on anything. It doesn't really mean anything. ...

Some clarification, perhaps, on what you wrote above:

It is illegal to claim a copyrighted work as your own if it is not your own, so placing a copyright symbol with your name and date of publication on anyone else's work is not smart.

You are correct that works created after 1989 do not have to have the copyright "bug" with the date and author's name to be copyright-protected, but those works published PRIOR to March 1, 1989, needed to have the mark on their works to maintain the copyright in the work.

And, finally, placing the ©, the date and the name on one of your works is one way to provide notice to the public that the work is copyrighted, so many creators/authors will include the notice for this reason. It prevents any infringer from claiming their infringement was innocent.


(I seem to be having some issues with the edit feature, which is why I did not add this to my previous post)