You do not have exclusive rights as guaranteed by copyright law!
Abuse of sovereign immunity is not a copyright infringement.
Summary:
- University of North Carolina Asheville,Took intellectual property without authorization and used it for their own financial gain. See web site below.
- When questioned about the ownership and copyright authorization of the image below, the professor who created the website stated:
I grabbed that photo from a website last year but I can’t find it now. It is from the Motorola IRT Pro Nationals in Denver, CO.
- When this issue was brought to the attention of The UNC Asheville General Counsel, Lucien Capone III…
…the university as a state body, is immune from suit under the legal theory outlined in your letter, pursuant to the 11th amendment sovereign immunity…” “Further, if suit is brought against UNC Asheville, the University will pursue any and all actions available to it, including rule 11 sanctions as applicable.
- To date UNC Asheville has made no apology or financial compensation for the unauthorized usage of Mike Boatman’s intellectual property nor have they made any compensation for the use of Kane Wasalenchuk’s, a professional athlete’s, personal image.
Web Site published by University of North Carolina Asheville
As blatant as this would be in the commercial or public world, a copyright infringement, which would include substantial penalties and compensation to the owner; in this case no crime has been committed by the University of North Carolina Asheville .
Even though, the image itself was clearly watermarked ©Mike Boatman 2008, and there was a text box on the website underneath the image clearly stating “All photographs property of Mike Boatman and the IRT,” UNC Asheville disregarded these legal notices and used the images for its own financial gain. Then UNC Asheville invoked sovereign immunity.
Upon further investigation UNC Asheville has extensive policies regarding copyright and copyright infringements. Policies number 79 and 80:
Taken from policy number 79 at http://administration.unca.edu/policies/79
Policies and Procedures Policy #: 79 Page: 1 of 10 Approved by: JHM Owner Dept: IP Comm. Phone: 6545
Title: Copyright Use and Ownership
Purpose: In pursuit of its mission and consistent with applicable laws and policy, UNC Asheville encourages faculty, staff, and students to make appropriate use of intellectual property and to share the results of their work. The following establishes policy to govern the use and ownership of intellectual property in order to achieve those ends in accordance with provisions of the Copyright Use and Ownership Policy of the University.
Please note the highlighted section, “consistent with applicable law“. This is code, applicable law, equals, sovereign immunity. In layman’s terms everything after this phrase is irrelevant because applicable law grants complete immunity for copyright infringements. The General Counsel’s letter substantiated this, see below.
You do not have the ability to promise/warrant 100% exclusivity to your work!
Usage of your creation and designs that you sell to your clients are not 100% within your control nor your clients regardless if you copyright register your work and do all of the appropriate protocols to safeguard it. This is true regardless if you are a graphic artist, illustrator, filmmaker, recording artist or photographer, provided that, you’re relying on copyright law for these exclusivity rights.
Under certain conditions such as state sovereign immunity and fair use, 3rd parties completely unrelated to you, your client or the purpose for which the creative was made can use your images without your authorization. Most of us are aware of the restrictions and guidelines for fair usage, this is not my concern. Furthermore, a fair use can be challenged by the creator where as a federal judge is the only ultimate authority to determine if it is fair use or not. My concern is that these built in conditions and safeguards which govern unauthorized usage are not present in sovereign immunity. In my personal opinion, as a layperson, state sovereign immunity was an unattended loophole in the copyright law or better stated an accident.
My image was taken, used in a commercial ad, shown above, without authorization, was registered with the Library of Congress, embedded in the image my watermark, authorship contact information and the copyright notice was in the metadata, as well as a text disclaimer warning about copyright ownership was displayed under the photograph on the website as posted by my client. Despite using all best practice protocol, my image was taken and used for the financial gain of the University of North Carolina Asheville. Furthermore, there’s nothing I can do about it under copyright law, relevant to the University of North Carolina Asheville, who reap the the financial gain, under the United States copyright law because, state organizations have immunity. However, the professor who admitted to grabbing the image may have personal liability even though it was the University that benefited financially.
The point that I’m trying to make is, any state government, state owned institution such as, universities, state parks or state operated programs that has not surrendered sovereign immunity, which I believe there are zero, has the legal right to take your creative and use it for their own financial gain without penalty of copyright law or compensating you (the creator). This is a known loophole at the copyright office which they’ve testified before Congress multiple times about. http://www.copyright.gov/docs/regstat72700.html or search http://www.copyright.gov for, state sovereign immunity
Implementation of this is simple, we the creative community can have our creative work used without authorization for the financial gain of any state organization whether or not we support or agree with that organization . Abuse of sovereign immunity has already occurred. To add insult to injury abuse of sovereign immunity does not violate any federal copyright laws. I guess it’s just a matter of integrity.
Even though a photographer can offer exclusivity to whom they grant a licenses to, it is impossible for a photographer to promise 100% usage exclusivity on their license agreements because of sovereign immunity.
In your own business, what would happen to your business, if you had granted an exclusive license of a marquee image that represented an entire corporate brand and it was used by a state organization third-party for completely unrelated issue or even a counter issue to your clients interest ?
The implementations and questions that this provokes would fill a completely new blog. But here are a few questions that come to top of mind.
- If any organization has the authority to supersede the author and creator of a body of work for their own financial gain without authorization from the creator then it’s only logical that the creator of any work does not have exclusive rights as supposedly granted by copyright law.
- If UNC Asheville has no qualms about using intellectual property that’s clearly marked, what other intellectual property have they used without authorization, and squashed objections with threat of rule 11, sanctions. Are there any limits to what type of intellectual property they would not use? I also believe they receive federal grants for their research, should we be giving grant money out for research to an institution with questionable integrity. Wait a minute, they’ve committed no crime, sovereign immunity, so I guess their integrity is intact.
- Motorola paid a quarter of $1 million to sponsor Pro Nationals in Denver should they be compensated?
- Pro Kennex, Kane Wasalenchuk’s manufacturing sponsor paid tons of money to rehabilitate Kane’s image and sponsor him through a recovery. This particular image was used as a logo marquee image for their entire marketing plan of 2009, should they be compensated?
- Kane, a professional athlete that makes money from endorsements had his privacy rights violated in an endorsement that was taken without authorization from him, shouldn’t he be compensated as well?
- Mike Boatman, the owner and author of the image obviously should be compensated.
- It’s very interesting that the University of North Carolina testified before Congress that there had never been any evidence that an institution of higher learning had ever abused sovereign immunity. Could this be the first abuse, I doubt it!
- Lastly do we really think that UNC Asheville is a one off occurrence?
Since my image was taken without authorization and used for financial gain what makes you think your creation won’t be next?
Wrapping up, questions that you may ask.
I’m sure you noticed the date on the copyright notice of 2008. The image was actually grabbed about June 5, 2010. It came to my attention in 2011. My first approach was to turn it over to my attorney because I have a responsibility to my clients whom I lease images to. In particular, Motorola, Verizon wireless and Pro Kennex, because the ad constituted an implied endorsement of University of North Carolina Asheville. I do not sell copyright ownership to my clients, therefore, I take on the responsibility of defending the integrity of usage of the images that I leased to them. It is from these actions that the letter from the University of Asheville General Counsel which is posted above came from. After several months, it became clear that appropriate law, law of the land, was indeed sovereign immunity therefore, I had no copyright claim. So, I closed this action with my attorney in order to publicize it.
My next step was to bring it to the attention of Blake J. Discher, www.groozi.com. A photography blogger and past officer of ASMP. Blake’s was keenly interested and his first step was to send it to General Counsel for ASMP to substantiate my statement that there was no legal action I could take under copyright law. ASMP agreed I had no claim under copyright law and that pursuant to policy 79 of University of North Carolina Asheville, quote “the University of North Carolina appears to be talking out of both sides of their mouth!”
Blake advised me that I should have this published somewhere other than his blog because news organizations do not like to go 2nd fiddle even to bloggers. Blake gave me the contact information for the editor of PDN. After several phone calls and emails with the editorial staff of PDN they declined to publicize this issue because in their opinion I would engage in legal action and a nondisclosure clause in a settlement would squash the story before it was published. I’m not real sure what part of “I have no legal claim against University of North Carolina under copyright law to pursue legal action!”… that they didn’t understand. I sought additional publications as well as hired a professional PR organization to pursue bringing this to public attention. Including but not limited to the on campus newspaper at University of North Carolina. Although 2 separate student newspaper staff reporters pursued writing the story for North Carolina’s newspaper in both cases it never made publication after staff reporters tried to substantiate the facts with the General Counsel’s office. So much for freedom of the press at the University of North Carolina.
Of course many of you may say I have other legal means to resolve this. This might be true, but not in a real-world practical sense. In a real-world practical sense the only true protection a photographer has is copyright law. The fact of the matter is I live in Illinois, it’s not financially feasible for me to travel to North Carolina to pursue a small claims case or state civil case.
So now almost 4 years later I’ll publish this myself on my own blog.
I have multiple goals here:
- To publicize the hypocrisy of the University of North Carolina Asheville.
- To bring awareness to the creative community about the loophole in the copyright law and its impact on our businesses. Which I think is best summarized in the conclusion of the copyright office testimony before Congress, “It is only logical that in the current legal environment, without an alteration of the status quo, infringements by States are likely to increase. Only Congress has the power to remedy the existing imbalance,…”
- And perhaps, give the copyright office, hard evidence of a clear-cut case of sovereign immunity abuse, that they can use next time they testified before Congress about crafting a correction to close the sovereign immunity loophole.
- Lastly, to fulfill my responsibility to my clients by exhausting all possible lines of defense for an unauthorized usage of an image; they paid for.
Thank you so much for your attention,
Mike Boatman
…this is truly disturbing and hypocritical of the university of higher learning…apparently they educate students and hold them accountable for their work but faculty seems to be immune…shameful.
Mike, you should identify you local congressional representative and use your story to start a petition to have this “loop hole” changed. I doubt there is anyone in the creative community (outside the coverage of the “sovereign immunity” umbrella) who would not sign up in an effort to have this ridiculous law abolished. I am certain that if you used something the university produced, especially for financial gain, they would come down on you with everything they have. Thanks for bringing this out into the light.
A university in the US tried this on me when I found one of my images being used without the benefit of a license. They claimed immunity from copyright infringement so I sent a quick email to my US IP attorney and she advised that while universities may have immunity, the staff member who placed my image on their site did not. So I called their bluff and asked for the name and contact details of the staff member and they immediately settled my claim!
Sheila Smart
Mike- if you look at your image with your copyright and look at the image the college published, they didn’t crop your info out – they actually went in and photoshopped (cloned) it out. That is just blatant disregard. I wonder how the photography major students and professors feel about what the school has done…
Outrageous! This needs to be heard.
You aint seen nuthin yet.
Copyright was created for the cartel and we are not members.
Thank you for the insight but if you are a pro and do not see the writing on the wall you get what you deserve.
Focus on what you can do, give Cesar what is his and never stop believing in what you can do for others with your work.
Now that you know just think of how much good you could have done with all that energy placed into the black hole of naggerslavedom that large institutions thrive on.
Dear Michael,
As I understand from your post you feel, I have wasted my time or worse yet squandered my time, by point out this hypocrisy.
If the work that was stolen was my fine art work or my personal stock imagery I may have evaluated the return on investment of my time differently. But the work that was stolen was commissioned work for my clients. Because I do not sell copyright ownership the burden of defending unauthorized use falls on my shoulders.
I have a responsibility to my clients and to the value of the work itself not to allow the theft of my images to financially benefit the thief.
The copyright law was significantly changed in the 60s. The goal of the amendments were to give artist a big stick to fight large corporations in the art industry there were using their size to leverage unfair advantages over artist.
Prior to the 60s I don’t know what the motivation of copyright law was, after the changes in the 60s the motivation was to give us artist negotiating equality for the usage of our works. I will grant you that since the 60s there’s been an erosion of our big stick.
Looking the other way when a large profitable entity steals my work for its own financial gain is only going to accelerate this erosion.
I do appreciate your viewpoint. And I give a ton of my work away for social purposes that I agree with and support, the University of North Carolina just isn’t one of them.
Mike:
I really have no idea where to start with this. The bottom line is that it’s just sad.
Fortunately not all state programs or agencies act this way. I’ve done a decent amount of work for state run institutions here on the east coast and have licensed images to others including The University of Oklahoma and The Montana Department of Commerce and Tourism. Yes, we live in a world where everyone wants everything for free but in most cases They do pay a licensing fee. I mean who doesn’t like free. I wouldn’t mind a free hamburger from time to time but that doesn’t mean I’m going to go seal one.
UNC not included I have to have faith that the bulk of the world really is willing to do the right thing.
Barry
Well, I tweeted this post three times with different hashtags. Good ole UNC has decided to follow my Twitter but oddly enough they didn’t like the tweet. How strange?
Barry
Barry,
I agree with you, from time to time a free hamburger is good. And I also agree that most people or state institutions have integrity. The percentage of those that do not have integrity and that will steel in comparison to the general population is very small.
Even sadder, if the University of North Carolina had contacted me directly the fee would’ve been consistent with small local ad and I probably could’ve gotten Kanes sponsor Pro Kennex to have paid it for the PR value.
Pro Kennix has a history of donating cases of rackets to college programs.
I’m extremely grateful to you for tweeting about this.
Thank you
Mike
THANK YOU,!!!
If more people let UNC know their viewpoint on their actions then at least one of my goals will have been met. Pointing out to them their hypocrisy. Hopefully they’ll change their behavior in the future.
I tweeted about this as well but UNC does not follow me??
I did send them a copy of the blog in PDF form immediately after I posted it. You haven’t responded to that either.
Mike
Mike:
Twitter is hit and miss. It’s all about timing and being in the right place at the right time. I don’t have many followers on Twitter but with the right hash-tags at the right time I have gotten decent returns on my blog post. It seems that they, or at least someone, is interested in “who is talking”. I’ve gotten 5 hits on my About page today where I may get one or two a month. Like it really matters. I’m just a dude that takes pictures of stuff.
I’m sure that they followed me just to keep an eye on whatever mischief was stirred up. So far no retweets at all. Just one or two would have been nice, Perhaps a least you can keep an eye on how many incoming hits you get from Twitter and any other place that it’s been posted. Three sites by me so far. I do hope that you get some incoming traffic and that someone takes the time to read what’s going on.
Barry
Did they also Steal the image of the mountains?
This is appalling to me, and they are a liberal arts college. Regardless of what the law states, where is their ethics. They are betraying not only you, but their students also.
The legal theory is that IP is as much proprietary as a car or a home. Therefore, neither an institution or any other party can make private or corporate use of IP any more than they can use your house or car without your permission. If this was not the case, Universities would not be paying Microsoft or Oracle or SAP, as examples, for licenses to use their software (educational institution discounts notwithstanding).
In addition, “grabbing” from the internet is not a defense for “fair use”. It may be an innocent mistake, but not a legal argument.
Did you include a copyright notice with the image when you first posted it online? Did you post it with a credit to your name? If you posted the image without including a copyright notice you won’t have a strong position even if you added one after the fact. If you did, however, mark the image or place your IP info with it a reasonable walk away might not be getting money but receiving a byline or credit acknowledging you as the photographer when they use the image.
A press release to the local paper showing your reasonableness over catching an honest mistake by the university might embarrass the institution into doing the right thing and giving you credit.
If you go after any amount of money be prepared for complications that most likely make this a protracted exercise and will cost a lot of time, money and heartache. Not only attorneys, but accountants will have to calculate alleged damages. If you successful argue to be compensated a few hundred dollars for single use applying industry standards of valuation keep in mind that IP litigation can cost 10’s or 100’s of thousands of dollars and months or years. Even if you have a long history with records showing income from your IP, only attorneys will walk away with [lots] of] money.
Getting credit for teh image could be a principled victory, in my opinion. But, of course, it’s your call. Good luck.
I remember when the SCOTUS decision was rendered, as I recall the case involved use by the Commonwealth of Virginia of photographs leased by a state agency for a single use, but used by another agency for another use. And I recall when I read about it thinking “well, what this means is that all sales to the Commonwealth for whatever purpose need to be sold as “all rights in perpetuity,” never as limited rights.
It appears that the only course of action possible might be to sue the individual, in this case the faculty member who used the image. Which, given the costs, might not be financially feasible under the “blood from a turnip” rule.
I think you all will find this very instructive – – – re: 17 USC § 511
§ 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright10
(a) In General. — Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.
(b) Remedies. — In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infringing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney’s fees under section 505, and the remedies provided in section 510.
I really think the photographer in this case should either go back to his attorney or find another one that knows the applicable law. It is absolutely clear that the state’s claim of immunity on 11th A grounds is not applicable. More so there is an entitlement to due process that extends to the states under the 14th A and a requirement for just compensation under the Takings Clause of the 5th A. A good IP attorney should be asked to assess this claim anew.
Dear Mr. Hunter,
If only the law you quote was true.
In my blog and again here: http://www.copyright.gov/docs/regstat72700.html
From the testimony of the United States copyright office before Congress here are some of the highlights, but I strongly suggest you read it in context for yourself.
As a result of that uncertainty, Congress acted. In 1990 Congress enacted the descriptively-named Copyright Remedy Clarification Act (CRCA).(12) That law added to Title 17 provisions which state in clear terms that remedies for infringement are available against States, and that States “shall not be immune, under the Eleventh Amendment of the Constitution . . . or any other doctrine of sovereign immunity, from suit in Federal Court . . . for a violation of the exclusive rights of a copyright owner . . . .”(13) These clear statements left little doubt that Congress intended to make States liable for infringement and to abrogate their sovereign immunity. Thus, once again, the apparent uncertainty about the immunity of States from suits for damages for copyright infringement was removed.
A substantial portion of the legislative history of the CRCA, which would later become critical, was a June, 1988 report produced by the Copyright Office entitled “Copyright Liability of States and the Eleventh Amendment.” That report surveyed the legal history of the Eleventh Amendment and applied contemporary Supreme Court jurisprudence to copyright infringement suits against States. As part of that application, the report cited several instances of alleged copyright infringement by States that had been brought to the Office’s attention. Additionally, a Congressional Research Service survey of waivers of sovereign immunity by States and the extent of those waivers was appended to the Copyright Office report.
This is where the law you cited 5.11 came from (CRCA) This law was later struck down by the United States Supreme Court.
The Court went on to expound upon what standards Congress must adhere in order to remain within the bounds of its Fourteenth Amendment power. The key to this analysis is that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”(23)
While this was not a sovereign immunity case, it is crucial to sovereign immunity analysis because, after Seminole Tribe, Congress may abrogate state sovereign immunity only pursuant to the Fourteenth Amendment. Thus, this case set the stage for the courts to review the constitutionality of the CRCA and parallel legislation concerning patents and trademarks.
Specifically, the Court reasoned that the Eleventh Amendment was not the origin of state sovereign immunity. Rather,
the States’ immunity from suit [in the State’s own courts and in federal courts] is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments.(25)
The Court concluded its opinion with an implicit recognition of the potential for states to profit unfairly from its ruling. Thus, the Court noted several limits on its holding. First, states may waive their immunity and Congress may provide incentives for such waiver, as provided in South Dakota v. Dole (483 U.S. 203 (1987) .(30) Second, the immunity “bars suits against States, but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State.”(31) Additionally, injunctive and declaratory relief are not precluded by state immunity.(32) Clearly, this leaves the States with a tremendous opportunity to evade federal law.
The same result was reached in another Fifth Circuit case, Rodriguez v. Texas Comm’n on the Arts,(58) in a brief opinion that presumably is based upon the same rationale as that circuit’s decision in Chavez. Given the current Supreme Court precedent, it is difficult to find fault with the ruling in Chavez, and we believe that the CRCA most likely is now bad law
The Court concluded its opinion with an implicit recognition of the potential for states to profit unfairly from its ruling. Thus, the Court noted several limits on its holding. First, states may waive their immunity and Congress may provide incentives for such waiver, as provided in South Dakota v. Dole (483 U.S. 203 (1987) .(30) Second, the immunity “bars suits against States, but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State.”(31) Additionally, injunctive and declaratory relief are not precluded by state immunity.(32) Clearly, this leaves the States with a tremendous opportunity to evade federal law.
The same result was reached in another Fifth Circuit case, Rodriguez v. Texas Comm’n on the Arts,(58) in a brief opinion that presumably is based upon the same rationale as that circuit’s decision in Chavez. Given the current Supreme Court precedent, it is difficult to find fault with the ruling in Chavez, and we believe that the CRCA most likely is now bad law
IV. Conclusion
It is only logical that in the current legal environment, without an alteration of the status quo, infringements by States are likely to increase. Only Congress has the power to remedy the existing imbalance, and it is the recommendation of the Copyright Office that it do so. The Supreme Court’s rulings and State’s rights must surely be respected, but the current state of affairs is unjust and unacceptable. Congress should use the tools it has to prevent the successful assertion of state sovereign immunity where it has become a tool of injustice.
Additional information for you,
“In Harwood v. Johnson, our Supreme Court stated that ‘[a] suit against defendants in their official capacities, as public officials or a public employee … is a suit against the State.’ Harwood v. Johnson, 326 N.C. 231, 238, 388 S.E.2d 439, 443, reh’g denied, 326 N.C. 488, 392 S.E.2d 90 (1990).” Minneman v. Martin, 114 N.C.App. 616, 442 S.E.2d 564 (N.C. App., 1994)
In another very good blog post to sum it up in layman’s terms
http://www.photoattorney.com/2009/05/suing-government-for-copyright.html
Again I strongly suggest that you read the entirety of the copyright testimony link provided above.
The current law of the land is sovereign immunity for the testimony of United States Congress and decisions made by the United States Supreme Court sovereign immunity is a constructional part of the Constitution.
Thank you very much for your comments
Mike
Mike,
You need to hit these bastards where it matters – the students! Reach them through the student newspaper, facebook, student organizations, etc., whatever it takes. Make them aware them aware of the duplicity of the institution that is taking their tuiton while it steals intellectual property.
I’ve posted this on my FB page and personal page.
Let me know if there’s anything else I can do.
Gustav
Thank you!!!
And I’m putting a plan together to get it in front of the student body. The student newspaper I have already tried twice, University administration shut that down. Thank you for posting. Once I find a way to crack into the student body information stream I will call on your help. That’s what’s on my agenda for tomorrow.
Today I sent all the Board of Governors for the University letters so far no response.
I’ll post that letter here shortly if there’s no response by Wednesday.
With the link to the Board of Governors emails, phone, numbers and addresses
If you have any other ideas on how to crack into the student body information stream that’s not controlled by the University administration please let me know.
Mike
There are specific way to hold a state university accountable for copyright theft. I am now going through this gauntlet after Texas A&M, which loved my unpublished book on the 12th Man so much, they stole it and sent it to more than 400,000 people.