A couple of months ago I wrote a piece on one of my pictures being used without a license on the website of the Berkeley Daily Planet. It was a very sour thing, because I really wanted to pursue this due to Ms O’Malley’s outrageous attitude, but the outcome would simply not outweigh the costs I’d have to make in order to do what needed to be done for this.
I shared the link to this blog post in several groups on LinkedIn I’m a member of and got many comments on how crazy this really was. One of the members advised me to write a complaint to the State Bar of California, where all the lawyers are registered. They would be able to reprimand Ms O’Malley for her idiotic behavior in this case, IF she really was a lawyer as she claimed to be.
I took the advise, and wrote the State Bar a letter. The official complaint form on the website was only for lawyer-client situations, and didn’t offer any options for different situations, which kind of made me think that my letter would disappear in a trash bin, because it was not according to the prescribed format. But anyway… I sent off my open letter, including a screenshot of the website with my image on it and every single piece of correspondence I had with the Berkeley Daily Planet and Ms O’Malley, and I referred also to the contact I had with my attorney Mr Kinne from Kinne IP Group.
Here are the main lines of what I wrote:
I would like to file an official complaint against a lady by the name of Becky O’Malley, who claims to have been, and I quote “an intellectual property attorney and a member of the State Bar of California, a status which I could easily activate if needed”.
The issue is about a copyright infringement case. This lady is, together with a gentleman named Tom Butt, working for the Berkeley Daily Planet, an online news paper.
Just recently I discovered that they had been using since early 2010 one of my images, without my consent, without the proper licenses, and even with Mr Tom Butt’s name as accreditation with the image (screenshot of the web page attached).
At first I tried to settle the matter with them directly (correspondence attached), but things soon got so bold that I asked my attorney if there was any way to pursue this matter officially.
He gave me an outline of the possibilities, and I decided not to pursue the matter, because in the end it would cost me more money and grievance than I was willing to put into it.
The fact that I am residing in Finland and that I only have a raw file, i.e. the file is not registered at the US copyright office, to prove I’m the creator of the piece was part of the decision.
However, when Ms O’Malley so blatantly and shamelessly threw in my face that I should let go of the matter and that I would get nothing out of it, this turned more into a principle matter for me.
The fact that she is, or claims to be, a former Intellectual Property Attorney and a member of the State Bar of California makes this case all the more outrageous. Tom Butt, the journalist in question, has purposefully and knowlingly used one of my images and accredited it to himself, but when I confronted the paper, and Ms O’Malley, with all her knowledge of Intellectual Property and copyright infringement, about it she had absolutely no right to justify it like she did and slam the door in my face.
With the way she behaved, knowingly and purposefully defending, acknowledging, and approving copyright infringement, she has no business being a (former) Intellectual Property Attorney and member of the State Bar of California.
I sent it, and pretty much forgot about it. A month went by, then another month in which I was abroad.
But then, when I came home from my trip, I actually found an envelope from the State Bar of California.
I’ll pick out the piece that matters:
Based on our evaluation of the information provided, we are closing your file. Before the imposition of attorney discipline can be obtained the State Bar must present clear and convincing evidence of willful misconduct. We have concluded that there is insufficient evidence of willful misconduct that would warrant disciplinary action. Ms O’Malley was not your attorney and owed no fiduciary duty to you. In fact, she was not acting as an attorney in said matter, but could activate her membership status if she needed to. Moreover, the circumstances you described are civil in nature. As such, the more appropriate forum in which to address your claim would be through appropriate civil action.
Ok, so I agree that the circumstances I described are civil in nature. But they have concluded that there is insufficient evidence of willful misconduct?
She may have not owed fiduciary duty to me, but with her supposed background in Intellectual Property it was her civil AND professional duty to properly pay for an image that they were using. And also her conduct in the correspondence afterward was in my eyes a very willful misconduct.
So what is wrong with the juridical system of today?
The system seems to be protecting the wrong people…