Online Blog being used for Defamation of Character

I'll stop quoting right there... there is only two ways for these things to go...

Into a court of law (usually with an attorney) or "IT DIDN"T HAPPEN"!

The moment you take matters into your own hands you seriously jeopardize your legal position... you can't have it both ways and there's a big reason attorney's desire your silence... people have a habit of saying (doing) the wrong thing... your "anger" can only manifest itself "under your breathe" straight to your retainer fee "attorney's office"... or you are (almost certainly) in the wrong.

 

This is a well thought-out argument. However, I have one question. I'm curious as to how exposing theft and defending oneself against libel is the "second wrong".

This argument should not be a private one any more than the accounting practices of Arthur Anderson should be private, as it affects all of us who feel our families by our artistic and technical skills. Any person who would perpetrate fraud such as Neil's blog entry alleges the original poster perpetrated demeans the professional photography industry and therefore has no business being in business at all. Any self-respecting owner of intellectual property and copyright should defend that ownership, period. Mr. van Niekerk is doing just that, and you make HIM out to be the aggressor?

If the OP is truly telling the truth, why has she not surrendered the name of the template that was used in the creation of the site (mine's a Winklet, I don't have a problem saying) and also the source of the "royalty-free" images site that the images came from.

The original poster is accusing Neil of defamation of character because of a blog entry that is well-detailed, well-supported, and -- if the screenshots are genuine -- outline clearly that there was a legitimate theft. Whether on the part of the photographer or the web designer is irrelevant; the designer is in the employ of the photographer, and therefore the photographer is ultimately responsible for the content.

If the designer stole Neil's site design and photos, and the photographer looked at the site and said "whoa, that's not my stuff, please take it down and put up my stuff", and on the photographer's command it was rectified, then yes, Neil is the aggressor. However, this appears to not have been the case. That she continued to cry foul even as not only her own site was taken down by the designers but also the designers' portfolio site was also taken down as this blew up in their faces is tacit admission that they knew they had screwed up and had been caught with their hands in the proverbial cookie jar.

If the designer had put real stock photography in there, and the photographer let it sit there, then the photographer is STILL misrepresenting her own work as a photographer and is therefore a fraud. Neither of these scenarios reflect well on the OP as a photographer or as an honest person.

I find it very telling that in this uber-PC day and age, when someone is genuinely wronged and goes after the person who wrongs him, he is castigated as "petty" and "unprofessional".

 

Now see I disagree with this. The court of the free market is a powerful one, and people talk. This industry depends on the faith our clients put in us for not only our performance but also our trustworthiness. The evidence is there on the blog entry for anyone to read; if enough clients read about it, and the word gets out that this happened, then this person's client base will dry up in a hurry. If the OP is truly being wronged here, it is up to HER to refute with equal evidence rather than go whining about on random forums complaining about the big mean bully who's picking on the poor little girl.

Suing in court may win money or an injunction, but when clients start voting with their feet, that person's business is doomed. Right or wrong, this is the way it is.

 

Unfortunately, one cannot defend oneself against libel claims for a theft that didn't occur... we don't have kangaroo courts in Western society that reads: "GUILTY until proven innocent"... as such nothing has been exposed and it's even worse than that...

Timeline this: when was the attorney contacted? That should have happened first... this shows Neil's "intent".

We can easily assume "one hasn't been" since Neil posted about this... I doubt any attorney would advise their client to make any public statement that wasn't vented through his/her office.

A supposition:

He "allegedly" has knowledge of a theft, and chose "to look the other way" (legally) according to everything we here are privy to... while he "allegedly" orcastrated evidence for unlawful and unfounded claims to sway public opinion against another professional.

The evidence is overwhelming:

He isn't/hasn't exercised his rights under the law regarding copyright... a person with such rights "would exercise their rights would they not?"

Neil chooses to act outside of the law and therefore isn't protected under the law... he has "allegedly" made false public statements about another person (...including one that was shown to be false in this thread)...
doesn't that taint his credibility?

The moment he learned of a theft... what did he do?

He ignored the law...

Surely you can see he ain't doing himself any favors advertising this publicly (without so much as a liability disclaimer) and it is absolutely clear to any legal professional he isn't serious about protecting his copyrights.

It's just a game. (that's my impression of this saga)... and the more "exposed" it is in public opinion "BEFORE SEEKING LEGAL GUIDANCE"... THE DEEPER IN THE SHIT-PILE YOU GO...

You can't prove guilt without going to court... that's illegal.

 

lmao "kangaroo courts"

 

NOTE: it might seem I'm against Neil and for the OP... I'm not...

Personally, "I think" they didn't think, they just took (borrowed without malice intent -- just pure stupidity), and got caught...

OK fair's fair... they got caught, Neil got some fun out of it and suspect they've learned their lesson...

Maybe, maybe not but he has absolutely no legal recourse now that isn't poisoned by his public statements.

Additionally, as it is now "after-the-fact"... believe me when I say this: if the OP ever sought legal action against Neil; Neil would be so far up shit-creek that he'd lose everything... simply because he "does not" have any legal documents to indicate a theft occurred, and no verdict... which means his public claims are being made "with prejustice".

 

What does that even mean?? If you can't prove guilt without going to court, then you didn't prove guilt, so it isn't illegal! That doesn't make sense.

Welcome to the 21st Century.

Where intellectual property is protected by copyright laws—if you have the money and the fortitude, and if the financial benefit in doing so makes sense. And people know this, and count on not getting caught and the victims not having the financial clout to hurt them.

Neil has had intellectual property (allegedly) stolen from him by a stranger in another state, of unknown identity and financial standing. So your advice to him is to run to a lawyer.

Pardon me if I don't think that would have had the impact that the action he DID take has had. And he was successful. All he wanted was for this person to stop claiming his words and photographs as her own. A reasonable request. And that has happened.

A simple, "I'm sorry, I shouldn't have done that and I won't do it again" would have ended all of this. But instead, she continued to claim that the words and images were hers. Excuse me once again if I am not sorry a bit for her predicament. And pardon my amazement that some here seem to be taking the side of the poor innocent little girl just trying to make it in the mean old world of business.

I am glad that Neil's blog is there and I hope it comes up every time some unsuspecting bride looks up this alleged photographer. (I say alleged because I have yet to see any evidence that she actually took any of the images she claims as hers. Not that she would normally need such a thing, but some here think that Neil should have to—and he has. Where is HER proof?) People in need of a wedding photographer deserve to know that the images that they see on a website were taken by the studio claiming them. If those images are not theirs, they are at the very least misrepresenting themselves, and possibly their abilities. Neil has provided a service by taking the time to present his evidence on his blog.

But it isn't just a service to brides, it is a service to other professional photographers. The more people like Neil make such an effort to protect their work, and publicly humiliate those who steal, the more pause it will give perpetrators—they might well be put out of business before they get off the ground. And it may mean less competition from "photographers" who don't compete honestly. So the rest of us who want to succeed in this business the hard way (honest work) can do so.

So how can the OP protect herself from Neil? That's simple: prove the images and words are hers.

How can Neil protect himself from claims of libel? The truth. He has provided evidence backing his claims.

Where is hers?

Any other comments from her until such evidence is provided is merely evading the core question—did she appropriate words and images that did not belong to her?

prevost

 

I believe you that you're not against Neil. But I don't see how you can see that Neil would be up shit creek, especially if the argument is whether Neil is committing libel against the OP.

Libel is, according to the primary definition in the American Heritage Dictionary:

1. A false publication, as in writing, print, signs, or pictures, that damages a person's reputation.
2. The act of presenting such material to the public.

Neil has the screenshots, and if the OP decided to take legal action against him, the subpoenas would fly fast and furious and include not only the photographer's archives but also those of the design firm, including e-mails, contracts, call logs, all histories, Wayback Machine archives, approvals, all communications, and so on and so forth. I know for a fact that this sort of electronic documentation WILL stand up in court, and if indeed Neil's screenshots and e-mails and other information are accurate, then it seems to me that the OP hasn't a leg to stand on. Even "deleted" stuff can be retrieved if it comes right down to it.

While I don't know for sure whether Neil has registered his images with the US Copyright Office, if indeed the images in question were created by Neil and he has the archived RAW files as well as contracutal proof that the wedding was indeed shot by Neil, then that would certainly be defensible in court. I am well aware that the legal system is still all over the map in the way it handles Internet issues, specifically website content creation; however, if indeed he did work with a designer and not a template, then that is also trackable and my guess is that the designer would be happy to provide all sorts of electronic proof that this plagiarism did in fact occur.

Neil has the evidence on his blog that indicates that he is the one being stolen from. The OP has yet to show convincingly that she has been somehow violated, except a vague complaint with little substance and no support and a "poor little defenseless me help help I'm being bullied" pity-party. So, as the definition of libel stipulates that the publication must be false, who is the one here committing libel? One thing you are correct in is that this is for the court to decide, should one or the other party be interested in taking that step. She hasn't even participated in this discussion (which for some bizarre reason has really piqued my interest); what can we infer from that?

The court of public opinion may well be a "kangaroo court"; just as "violence never solved anything" means nothing to the passenger pigeon, the Dodo bird and six million Jews, branding popular opinion a kangaroo court means nothing, as evidenced by the Lockheed Electra airliner, the Chevrolet Corvair, the Pontiac Fiero, and a host of other products whose very existence was snuffed out by this kangaroo court.

If Neil decides not to go the direction of a costly legal battle but opts to leave it up to the kangaroo court, that's his prerogative; I don't see anything in the evidence presented that is blatantly false. If the OP truly believes that the evidence on Neil's blog is libelous, then as in all legal action, the burden of proof is upon the plaintiff. If she really thinks she is being ill-treated, then let her put up or shut up.

 

Suffice to say I agree... and that's why Neil's blog post can be ruled as libel with prejustice.

Analogy: I stole your camera, you didn't stop me at the time... and you didn't report it missing.

A week later you learned that I had it... and again you didn't report it stolen - you went to my place and stole it back... in the process you got catch B&E...

Unfortunately, your defense for doing a B&E can't be retaliatory; based on the presumption that a B&E (which didn't occur according to the legal system) was done to you.

That's totally unrelated - but the point is "you can choose not to exercise your rights"... but that does not allow you be equally unlawful.

While the whole thing stinks - vigilante justice isn't any more professional conduct... you're just lower yourself down to their level of business ethics.

 

This has occurred.

Mate, you have clearly never, ever been involved in a IP lawsuit... which I'll add cannot be used as a defense in a 'libel' claim (in this particular instance if ever used here) because the copyright holder status wasn't proven prior to the act of libel occurring.

Even the (presumed) guilty have rights.

 

This is an unrelated argument. Not even close. Try this one:

You steal my camera. I find out you steal it, and I have proof in the form of a video tape of you actually possessing my camera. And my camera is huge and pink with orange polka dots, and it's the only one on the planet like that. So I take that video tape and digitize it and post it on YouTube for the whole world to see. That scares you and you sneak back into the house and put the camera back. But I have videotape of this event as well, and that goes on YouTube for the whole world to see.

So you cry libel and slander and poor little me pity me because I'm being harassed by this horrible person who says I stole his camera but see? I don't have it!

By broadcasting the video, am I exercising vigilante justice? Am I doing YOU an injustice by telling the truth, as Prevost said?

By the way, "prejustice" is not a word. Your grasp of the legalities at work here seem tenuous, at best.

Edited to add: Show me where a false statement has occurred. There are two issues here. First is the IP issue. This is provable via EXIF data, all sorts of things. If you think that IP is unprovable, you clearly have no idea of the technologies involved, nor do you know whether Neil has registered the images in question with the copyright office. The second issue is the libel issue. Sure, she can sue for libel. But I could sue a ham sandwich, too -- a lawsuit does not mean there was any wrongdoing.

The presumed guilty have rights. If she was merely presumed guilty she would defend herself, in court or otherwise.

 

YOU LIE!

It's all black!

Unfortunately he didn't.

 

I personally don't see how going after the photographer for something done by the web designer is good judgement. From what I have read, that's exactly what has happened.

This is a webmaster forum and one thing is for certain - the webmasters here know about image and text copyright and what a client has or does not have control over when a web design firm is putting together a website.

In my opinion, the photographer who had their site ripped should be going after the web designers, not the photographer who commissioned the website and had little, if any, control over the initial design and construction stage.

 

Quote:
Originally Posted by ZeroSen
nor do you know whether Neil has registered the images in question with the copyright office.

This doesn't matter ONE bit. NOT ONE. HE OWNS THE RIGHTS TO THOSE PHOTOS. Whether he registered them or not- doesn't matter. I have thousands of photos I've not registered - but it doesn't give someone in some town the right to take them and use them.

The photos are his. He has the RAW files to prove it. If anyone wants to challenge that the photos or site are his, I am sure Neil can cough up the people in the pictures as well as the webdesigner.

I can't believe people are actually DEFENDING this girl.
Are you kidding me.

And someone needs to take a serious law class. There are no aligations here. None. These are facts.

 

Thank you for that comment. I was just going to try to explain this but you did it for me.

 

Are you serious? Some people on here may have fell for your poor me routine but not the masses. First off you registered and posted this on the same exact day. Hmm alterior motive to joining you think? Since joining you have made a total of one posts. Yep just one. Starting this thread you haven't even come back to defend yourself once Neil got in here. You didn't bother to even link your own website. You didn't even use your own name in your profile.

Really you are on the verge of being accused of defamation of character yourself. You see becuase it appears you started this to simply discredit Neil. But what you don't realize is that Neil is highly respected in the industry. He is an educator and makes the speaking circuit. He is a member of many forums and is one of the few you listen to when they talk. He is a master of lighting and a stand up guy. I have listened to him speak. I have met him personally. And I am disgusted that you think that starting a little thread can even hurt that reputation of his a little. I'm about ready to call every Florida photog I know and tell them about you. For that matter maybe I will also call the vendors in your area as well. That is what I did to a photog that stole my work. Shoot Neil is being gentle with you in my opinion.

You accuse Neil of being rude, but he is anything but rude. You were wrong and you stole his images and site. What do you expect? And even if it was your designer friend you hired them. And you loaded it on the web long enough for google to search it and catch you in the act. Didn't you think it was remotely wrong to put a site up with his name in it? With his images in it? You are a serious piece of work.

And of course when you searched your name you found him, are you pretending you didn't know. Neil has had that up for a long time and you should have known he would take action. I think I may go and blog you myself. One more thing to come up with your name on it so that people will know Mindy Austin tried to get away with passing someone elses work off as her own.

You know as well as everyone else you have no legal recourse against Neil. He is right and you are wrong. He has proof and you do not. You are a bad for the industry and I hope you go out of business.
Cory Ann

notice I used my real name. keep watching my blog cause you may end up on it like other theives had. I bet Neil would be happy to lend me his screen captures.

 

I can't believe that something so "basic" is being argued here.

If you people are truly wedding photography professionals, you should know the copyright laws. You should know that you still own the copyright regardless whether you registered it or not.

This person stated:
Im a photographer and asked a friend to develop my website. During the development period (about 1 week), the working site was put on a “test” domain so I can preview the on going design to see if its ok or not.

Well, unfortunately the "friend" decided to blatantly steal another website directly from another photographer. What exactly did the the web designer actually design? Well, nothing really. She simply took Neil's name off and slapped her friend's name on. That is NOT web design. That is blatant theft.

When Neil contacted the photographer to let her know he was on to her, instead of apologizing and offering to immediately remove the website, they denied the theft and became arguementive with the very photographer who's site they ripped off. And it was a rip-off- because they stole text from yet another photographer's website and mistakenly left the guy's name there! And Neil has screen shots of that, too.

This can in no way be a professional's forum. Where I come from, this kind of behavior would never be excused or tolerated. The fact that some people are rallying in support of these creeps (and yes, females can be creeps, too) tells me that this forum lacks the professionlism that I have grown so accustomed to other wedding photography forums.

Also, I'd like to ask Mandy a question. Why would you want to mislead future clients by having them believe the work on your site is your's when in fact it belongs to someone else? Even if there was royalty free images available for your wedding site, how could you lie to your clients that way? If you were good at what you claim to do, there should be no reason to steal or place images on your site that you did not take. How will your brides feel when you show them one thing and they recieve work that is simply not good enough to even display on your website? There is no reason on Earth to use someone else's work in order to book wedding jobs unless you are simply incapable of shooting anything worthy yourself. These are real people and real events. If a photographer showed me work that did not belong to them, I would be livid.

 

Darn I can't edit my text. It's Mandy Austin, not Mindy.
CA

 

So to recap, the OP knowingly posted up a web site, regardless of who designed it, with the following

-Stolen custom web page design
-Stolen photographic images
-Plagiarised text in regard to who she is an her experience (even leaving another photogs name in the text)
-Misrepresented herself to her potential clients
-Joined a web forum to simply cry foul when she is the perpetrator
-Joined a web forum to try and defame the victim
-Is unapologetic for her actions


I am shocked at the reaction by this forum. You all think this is OK? You see no problem with lifting intellectual property simply because it is online? Intellectual property is big business, just ask Bill Gates or Mark Getty.

Look past the forced emotion of the "girl crying victim" and look at what she has done. Look at the undisputed facts. Do not defend her actions.

Theft is theft. Deceiving clients about your images and your abilities is wrong. Not saying "sorry" and making the situation is wrong. She fanned the flames and Neil is defending his property legally and intelligently.

-Steven Frischling
www. fishfotoworldwide. com
fish @ fishfoto.worldwide com

 

Just the simple fact alone that she's trying to show potential clients other people's work as her own should lend to the kind of business person she is.