Sunday's are a magical day. Second day of the weekend. Birds are chirping. The dog licks your face. There's an email from #ConManKen requesting the removal of all of his images from The Tavern:
We want some top notch work as it needs to be worthy of the Great Kenny Whit Whitman!
You can use http://www.tenkarstavern.com/search/label/conmanken to find the more recent posts about Ken. BTW, he does not own ANY of his Walking Dead pics - that's AMC. I'm sure he has a great working relationship with them at this point. Come to think of it, does Ken own the rights to his own Facebook avatar?
Oh, and he commented on the previous #ConManKen post. Damn it Kenny, you are sooooo funny!
edit - here's an example already submitted:
B is for Baal - Baal is an ancient demon and main antagonist of the second season of Ash vs Evil Dead.Name: BaalMotivation: Destroy the world or at least make mankind bow ...
22 minutes ago
Oh Ken, unless you TOOK the photo, you don't OWN the copyright you poor dim soul.ReplyDelete
damn, selfies only? ;)Delete
Q: What is “Fair Use”?ReplyDelete
Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.
Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.
Specifically, Section 107 of the Copyright Act states that:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107
Aren't cease and desist normally sent from the law firm and not the plaintiff?ReplyDelete
Yeah. unless he took the picture himself he doesn't own the copyright to them.ReplyDelete
So guess you could get a bunch of people taking pictures of him and then submitting them to the Tavern under the CC license.
He might be confused about the difference between copyright and likeness/personality rights, but I have long since stopped assuming anything he does is an honest mistake.ReplyDelete
I'm pretty sure that's what's going on here. Even then, the request is nonsensical, in my non-lawyery-but-publishery-and-editory opinion.Delete
Hey sure, my opinion is only a non-lawyery-former-self-publishery-of mini-comics one. I'm just absolutely convinced that Whitman is trying to obfuscate the issue, rather than speaking from legitimate misunderstanding of the law.Delete
Also, who's the poo-poo face now? ;)
Turd emoji, beat me to it. 10x handsomer.ReplyDelete
Here is the thing about Copyrights and copyright infringement, if the copyrights aren't registered any penalty is limited to the financial gain from said infringement...period. As people have said, unless he took the pictures, or had them done as work for hire or in some other fashion had them transferred to him) they aren't his photos to C&D in the first place.ReplyDelete
In the very unlikely circumstance that Ken *did* speak to an attorney? "Send a C&D" and leave me alone" would likely be the response. There is nothing here to interest an attorney.
" if the copyrights aren't registered any penalty is limited to the financial gain from said infringement...period."Delete
Just remember that while this is true in this case, this actually basically only applies in the US because the US refuses to fully ratify the copyright conventions most of the rest of the world use (because then they couldn't make people send money to register their copyrights).
Honestly, he's probably trying to make it harder for people to recognize him from pieces talking about him so he can say "No. That's some OTHER Ken Whitman..." To that end, it might be worth your while to swap all his images to links to ones hosted elsewhere or to shots he most definitely does NOT own, or to respond to his message with one from your lawyer telling him he has no case. Apparently he's been recognized and what you're doing is working or he would not care.ReplyDelete
Kenny tosses out the "Leave me alone; I spoke with my lawyer/called the police" threat the same way a wussy, picked-upon elementary school kid tosses out "Leave me alone; I know karate!" Maybe he'll next threaten you with "I'm telling my big brother!"ReplyDelete
Anybody actually go to KenWhitman.com? Its broken as hell and he name drops a bunch of ex-tsr folks who likely barely know him....ReplyDelete
I'd wait for legal documents. Then, I would see if there was any way to have it taken to a trial so you could face your accuser. Let everyone who wants to have a talk with him know the date and time.....ReplyDelete
I would think you have to be served to a Cease and Desist not a blog contact form message. IF you have anything to Cease and Desist from.ReplyDelete
Make him spend the KS $$$ and have his jailhouse lawyer issue an official Cease and Desist Order.ReplyDelete
1) As others have said, these are almost certainly Fair Use.ReplyDelete
2) Even if they aren't Fair Use, the PHOTOGRAPHER holds the copyright, not the subject. Unless it was work-for-hire, in which case it's possible that Whitman has them. But that would require that he had the photographer sign a contract of some sort in advance of the photo being taken.