# Innocent Infringement is Tough to Prove



## KmH (Dec 5, 2015)

Infringer Learns that Innocent Infringement is Tough to Prove | Photo Attorney



> . . . Mungchi asserted the innocent infringement defense, claiming that it did not know that it was infringing on RTSI’s image. But the court didn’t buy it and awarded maximum statutory damages ($150,000), despite the fact that the actual profits were only $1350. . .


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## KmH (Dec 5, 2015)

From the public court records: Google Scholar
My added emphasis


> . . . Mungchi did not offer any evidence or testimony at trial that it made any attempt to determine whether the design was subject to copyright and/or that the image was available for use prior to placing the order with Top Design or before distributing and selling it to the Walgreens stores in question. . .
> 
> . . . Mungchi attempted to rely upon an incomplete copyright registration certificate purportedly received from Top Design that allegedly demonstrated ownership of a copyright in the Infringing T-Shirt design, the "effective date" of the registration is May 31, 2012. (_See_ Trial Ex. 503) _The Court takes judicial notice of the fact that "effective date" of a registration is date upon which the application for the registration was submitted to the Copyright Office, which in this case, is after RTSI notified Mungchi of the infringement_.
> 
> . . . Importantly, *this is not the first time Mungchi has infringed upon RTSI's copyrighted works*. In February 2008, RTSI, through counsel, sent a cease-and-desist letter to Mungchi regarding its infringement RTSI's copyright in the cover artwork for RTSI's Limited Collector's Edition Artwork. (_See_ Trial Ex. 44.) In response, Mungchi agreed to stop any further sales and inquired into the possibility of future licensing of RTSI's artwork. (_See_ Trial Ex. 45.) Mungchi offered no evidence at trial that it followed through on the inquiry or that it did anything further to avoid using RTSI's copyrighted works in the future.



Oh! No! Mr. Noh!



> The parties also agreed in their joint pre-trial order that the following facts are undisputed:
> 
> 4. Mungchi possessed the right and ability to supervise the infringing conduct and chose not to exercise that right and ability.
> 
> ...


With 4, 5, and 6 - Turn out the lights. The party is over.


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## timor (Dec 6, 2015)

So, what is the real problem here ? What is 695 view ?  Is now photographing streets copyrighted ? Someone can have a monopoly on photographing certain streets ? Or on the streets ?


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## Designer (Dec 6, 2015)

timor said:


> So, what is the real problem here ? What is 695 view ?  Is now photographing streets copyrighted ? Someone can have a monopoly on photographing certain streets ? Or on the streets ?


_"RTSI collectively used these photographs to create an original artistic work entitled the "695 View."
_
That is the name of the image.


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## timor (Dec 6, 2015)

Designer said:


> timor said:
> 
> 
> > So, what is the real problem here ? What is 695 view ?  Is now photographing streets copyrighted ? Someone can have a monopoly on photographing certain streets ? Or on the streets ?
> ...


This. In meantime I I googled a bit more. It has not much to do with photography, rather it is a case of or stealing or copying very, very closely an idea. Fact, that it is an image is irrelevant here.
That's good. I was afraid, that some company can obtain exclusive rights on photographing in certain places ( like whole cities or maybe mountain ranges ) and anyone pulling out a camera might be sued. As it is happening already in Australia.
Top Australian Photographer Fighting for Rights After 'Near Arrest' on Public Land


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## KmH (Dec 6, 2015)

Ideas can't be copyrighted in the USA.

Copyright law varies somewhat by country.
In the recent past Canada made many changes to Canada Copyright law so Canada copyright law would be more similar to US copyright law.

As far as the AU story, did you know that if you want to use a tripod in New York City to make photographs the city requires you to get a permit? It does not matter if you're shooting for yourself or are being paid to shoot.

Also most US national parks and many, many county and city parks requires getting a permit to do a commercial shoot. Part of the permitting process usually requires the photographer provide a Certificate of Insurance that shows the photographer has added the city, county, state government to the photographers liability insurance.


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## timor (Dec 6, 2015)

He he, no wonder sales of tripods are so slow.


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## 480sparky (Dec 6, 2015)

timor said:


> He he, no wonder sales of tripods are so slow.



No, it's due to the two week waiting period required to obtain one.  You know,.... because we're all gathering intel for the terrorists with our gear, buying a tripod invokes checking us through NCIC, Homeland Security, FBI, etc.


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## timor (Dec 6, 2015)

480sparky said:


> timor said:
> 
> 
> > He he, no wonder sales of tripods are so slow.
> ...


Good one. Never thought about that.


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## snowbear (Dec 6, 2015)

Well, they really are urban melee weapons.


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## timor (Dec 6, 2015)

Handy for launching Katyusha rockets...


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