An Open Letter to Michael Crook

Dear Mr. Crook,

As a copyright and plagiarism consultant, giving out free advice is not in my personal best interest. However, as a humanitarian, I am going to give you a few pieces of (non-lawyer) guidance on the house.

Considering your current situation, the following course of action is prudent:

  1. Hire an attorney
  2. Be quiet
  3. Let them handle everything

It’s obvious to me, after reading your new site , that you have not taken step one, despite claims of being in “discussions with lawyers”. The reason is that any good attorney would immediately advise you to take steps two and three.

The reason for this is simple: The more you talk, the greater your chances you’ll say something to hurt your case. This appears to be doubly true in your situation.

For not only do you run the risk of tipping your hand, but you also run the risk of showing exactly how ignorant you are of the law, making a fool of yourself and generally worsening your public image.

Worse still, if you’re not careful, you might find yourself racking up another lawsuit, meaning more expenses, hassle and, quite possibly, larger punishments.

As any wise man will tell you, once you find yourself in a hole, the best thing to do is to stop digging. I strongly encourage you to do that now because, amazingly enough, you still have a good ways to go before you hit rock bottom.

In the meantime, I’m going to try and show you, as well as the rest of the world, why your logic is so fatally flawed.

Flawed Logic

The problem you are constantly running into is that, despite strong evidence to the contrary, you continue to insist that you have copyright protection on your face.

That is simply not true, never has been and never will be.

Section 102 of Title 17 of U.S. Law says it clearly. Copyright protection extends to “original works of authorship fixed in any tangible medium of expression”. Nothing more, nothing less.

One’s face is not a work of original authorship, one does not “create” their own face, and a face is not fixed in a tangible medium of expression. Though a photograph is certainly copyright protected, that copyright protection goes to the photographer, not the subject.

That’s the way it has been since photographs were first deemed copyrightable in the 19th century.

The bottom line is simple, you do not own the copyright to a photograph, in whole or in part, just because your face is in it. That is not how the law works.

If it were true, modern photojournalism would be impossible, photographers would not be able to charge for reproductions of family portraits and even government databases that exchange drivers license photos would be illegal.

Faces simply do not enjoy copyright protection and many professions, both loved and despised, depend upon that fact.

Laws to Cover Your Face

This isn’t to say that one can just take an image of your face and do what they please with it. Far from it. There are many laws that protect one’s identity, most notably the “Right of Publicity“, also known sometimes as the “Right of Privacy”.

These laws vary from state to state and set forth a variety of restrictions as to what one can and can not do with the image, name or likeness of another. These rights are often covered under different areas of the state’s legal code, but most offer at least some protection to one’s image.

Of course, for you Mr. Crook, a Right of Publicity case would also be a difficult challenge. Since you ran the Web sites in question, went on Fox News and made yourself a public figure, your right to privacy is extremely limited and since none of the uses were directly commercial (meaning they did not use your image to sell or promote a product), it’s unlikely such a complaint would be treated with much merit.

Besides, commentary, criticism and other kinds of political speech are the most protected kinds of speech in the country. The burden one must meet in order to legally silence it is extremely high.

But even though it would likely fail, at least it’s the right law and, depending on your state and the location of others involved, it might have some merit.

I just wouldn’t bet on it.

Conclusions

The reason that I offer this advice is not because I have any strong compassion for you (though I do make it a point to help anyone who asks, regardless of their background), but because of the way the anti-DMCA crowd has grabbed onto this story and used it as an example of what is wrong with the law.

Prior to this, the safe harbor provisions of the DMCA were relatively non-controversial. Outside of one study showing problems with the provision and a few notable cases of abuse, the safe harbor provisions were ignored for the much more controversial, and dangerous, anti-circumvention ones.

Those of us that have made legitimate use of the DMCA to stop the worst kinds of copyright infringement need the law, or one similar to it, to protect our work. With such a strong public backlash against it, the law is weakened and may, in time, be changed or repealed.

Understandably, many are frustrated not just at you, but the law that you attempted to manipulate. That backlash will have an impact, the question is how severe of one.

This was clearly never a copyright matter. Even someone with just a modest understanding of copyright law can see that. This was a matter of you wanting your image removed and finding the quickest and most effective way, in your mind, to do so. Unfortunately, like so many other shortcuts, it was also illegal.

The Digital Millennium Copyright Act is a copyright law and should only be used for such. To use it for anything else is a direct violation of the law and that is why you were sued.

In the end, your best defense may be ignorance. If you can admit you were wrong and that you made a stupid mistake, you may be able to survive this.

The more saber-rattling you do, the less sympathy you’re going to get, both from the public and the courts.

However, as I said before, let your lawyer make that decision. That’s his or her job. In the meantime, don’t dig the hole any deeper, for yourself or the rest of us.

Legitimate copyright holders don’t need to go down on your sinking ship.

Tags: Content Theft, Copyright, Copyright Infringement, Copyright Law, DMCA, Photography, Plagiarism

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