Becky O’Malley

All posts tagged Becky O’Malley

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.

Response letter from the State Bar of California

Response letter 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…

Awhile ago I wrote a little piece about how you can find your pictures in the weirdest places. A few of my self portraits were used on other people’s Facebook profiles and a few of the portraits I did of other people were also used as Facebook and Twitter profile pictures. After getting no response from the people in question I contacted Facebook and Twitter and those images have been removed. Other pictures I found have been traced back and were sold by one of my agents’ sublicensors. Not fully according to the rules they were bound by, but in any case I’m getting paid for those images.

In that same search I also found another of my images used, and that was a bit of a nasty surprise. It wasn’t the best image, and even if paid for, it wouldn’t have been the golden goose. Or turkey in this case

Traffic sign which warns for crossing turkeys

The image in question

I found the image on the website of the Berkeley Daily Planet. An online news paper. It was used in an article written by Tom Butt on April Fool’s Day in 2010, so it had been online for about 2,5 years when I found it.

Screenshot of the article on the Berkeley Daily Planet website

Screenshot of the article on the Berkeley Daily Planet website. All copyright lies with the respective authors / copyright holders (source: www.berkeleydailyplanet.com). Except for the Turkey image. That’s mine!

See… I’m a guy of principles. I get it if a company uses your image and tries to get away with the excuse that they thought everything on the internet is public domain and free to use for everyone. It’s a shit excuse, and they try to pull it every time when I contact a company which has used one of my images, but I pretend that they don’t know any better and I explain to them how it works, even if I know that in most cases they know exactly how it works. It’s kind of a game. They try. I patiently laugh about the joke, and in most cases we come to an agreement.
And in most cases I’m very reasonable (I think). I don’t charge them tenfold (even if -according to copyright infringement cases the penalty for each case could be 10x the original value of the image- I’d be legally entitled to do so). I may up the price slightly from its original level, just as a slap on the wrist, but we’re not talking thousands of euros/dollars.
But in this case it was different. This is a news paper. This is an institute that deals with copyrighted material on a structural basis and they know EXACTLY how things work. They can’t hide behind the “I thought everything on the internet belonged to the public and was free”, and if I’d rip an article from their website, they’d come at me faster than I can say news paper. So…

I wrote a mail to an email address I found on their website: opinion@berkeleydailyplanet.com:. And guess what? No reply.
A week went by and I sent a copy of the email again to opinion@berkeleydailyplanet.com and to another address I found on the website: news@berkeleydailyplanet.com.

Dear Sir, Madam,

I recently came across an image of mine on your website.
The image I’m referring to is the image of the turkey sign in this article http://www.berkeleydailyplanet.com/issue/2010-04-01/article/34956?headline=Point-Richmond-Turkeys-Headed-for-the-Soup–By-Tom-Butt-Special-to-the-Planet by Tom Butt.
The image is credited to Tom Butt.

Now I realize there are probably tons of images out there with a sign of a turkey crossing on it, but I would say it’s extremely unlikely that Tom Butt and I would’ve been on exactly the same spot at exactly the same time to see that car coming out of the street from the right behind the sign.
My image is here: http://arnoenzerink.photoshelter.com/gallery-image/Signs/G0000O8NK4Y4iCz0/I0000k0Dl9iMVLO8
I’m not sure where Mr Butt has obtained this image, but seeing the low resolution quality of the image, and that I haven’t got a license for the use of this image archived to either Mr Butt or the Berkeley Daily Planet I believe we may have a slight problem here.

The fact that you, the Berkeley Daily Planet, are a news source which handles copyright protected material on a daily basis, makes this all the more a very awkward situation. I realize you are not a national paper, although with the coming of the internet everything’s gone worldwide, and I do believe a compensation for the use of this image from April 1st 2010 until now seems very reasonable to me.

I would gladly hear your opinion on this.

Kind regards,

Arno Enzerink

So Mr Tom Butt wrote the article, snatched a thumbnail of my image (the quality of the image was so bad that it was clearly not a hi-res image) from my website or from one of my agent’s websites, blew it up, added his name to it as credit and uploaded the article to the Berkeley Daily Planet.
There would’ve still been a slight hint of my understanding if he at least put MY name under the picture instead of his own. But that was too much to ask…

Honestly, I didn’t expect a reply. But I did get one. A few days later the following message waited for me in my inbox:

It was given to me by Mr. Butt– he says he got if from somewhere on the internet but can’t remember where.  I’d be glad to change the attribution if you wish, or to pull the photo if you prefer.

[Mr. Butt, Tom Butt, was the writer of the article and his name was put as a credit under the image]

No “Hi”, no “Bye”, nothing. Just these three lines.

So I write her back (and sign with my name 😉 ):

Dear Ms O’Malley,

I don’t mean to sound blunt and impolite, but both you and Mr Butt are in the publishing industry and you are (or at least SHOULD be) very well aware of the copyright rules on used images. You don’t just “pull an image off the internet” (and “not remember from where”), and then attribute it to someone you know for a fact is not the creator of the work. It has been online for 2,5 years. You make money with your job, Mr Butt makes money with his job, and I’m a professional photographer, which is supposed to pay my bills. Just changing the attribute or pulling the image off the site after it’s been used for 2,5 years is not going to make this go away.

I’m still very much willing to settle this nicely (but properly), but I am asking you a financial compensation for the used image, next to changing the attribute to the used image.

If I would just let everyone “change the attribute” or “pull it off the site” without further consequences I would be a naive and bankrupt professional photographer.

I sincerely hope you understand my point of view and that we can come to an agreement which is satisfying to both of us.

Kind regards,

That went unnoticed. No reply whatsoever, not a sign of life. So after a week (the week I spent in the US shooting pictures in the Rocky Mountains) I figured I could start poking a bit and write Ms O’Malley the following:

Dear Ms O’Mally,

A week has passed since I sent you my last correspondence (10/13/2012). I haven’t heard back from you since then.
I take that silence as a sign of unwillingness to solve this with me directly.
If I haven’t heard from you in a week from now I will contact my attorney and let him settle this with your attorney.

Usually when you start bringing in the attorneys they will get back to you pretty quick. But nothing happens. I go back to check on the website and I noticed they’ve actually taken down the image. I’ll be damned.

I shoot another email to Ms O’Malley:

Dear Ms O’Malley,

I see you have taken down the image. Let me stress again that that is not going to solve the issue.

Aside from the fact that your website is stored online in many edited versions, I have a screenshot of the website with tie image on it, and the correspondence between you and me in which you admit to the use of the image.

I’m still hoping we can settle this in an agreeable way, but if you continue to ignore me I will contact my attorney.

And yes… There we go. Promptly a reply follows:

The Berkeley Daily Planet is no longer published in print. The commercial corporation Berkeley Daily Planet LLC has been abandoned because the tax preparer stole the money he was supposed to give to the government and the government is pursuing a criminal case against him–its funds are totally depleted except what the Internal Revenue Service has a claim on.  The current website is completely non-commercial, created by volunteers working for free.  We neither spend nor collect any money of any kind.You can certainly be paid the same as everyone else for your contribution: nothing.

Please do consult your lawyer,  who will tell you that there’s no point in pursuing this matter, because you and he or she will not make a penny from it, except perhaps what you will pay the attorney to tell you this.  I will not have to pay legal fees myself because for most of my career I was an intellectual property attorney and a member of the State Bar of California, a status which I could easily activate if needed.  Don’t waste your time and money on this pointless quest.

Wow… just wow… All kinds of excuses for why they can’t properly license an image.

Two things that stung me the most and that made me ACTUALLY contact my attorney: “you can certainly be paid the same as everyone else for your contribution: nothing.” and “Don’t waste your time and money on this pointless quest.”

So I kindly write Ms O’Malley a mail back (I fail to write a “Hi” and a “Bye” myself this time):

So that makes it all ok for you to steal images?

As an intellectual property attorney and member of the State Bar of California you do show the right moral attitude…

I will cross-reference this with my attorney and I would be very sorry if you are right and he confirms what you’re saying.

Only once before in my professional career as a photographer did I have to fall back on the help of an attorney. He did so very successfully (and I can warmly recommend him to anyone who needs help in copyright infringement cases based in the US) and I contacted him again on this matter and asked him for advise on what to do. He generously offered his time to look into the matter and see if there was any use to pursue it and he did so without any costs for me.
In the end he laid out all the possibilities, the extremes when it would go ok, but also the extremes if things would get really ugly, and I’m sorry to say that the initial amount of money involved (the license for an image in that particular use would be around 120$, slap a bit of penalty fee on it and it would be maybe 200$) was not worth the head ache and the risk to me.
So I’m  -again- sorry to say that I backed out of this one.

I guess sometimes it does pay off to steal an image. But I hope this post (and I usually don’t wish people bad things, but I sometimes am willing to make an exception) will be spread all over the internet and that it would give the Berkeley Daily Planet, with volunteers Becky O’Malley and Tom Butt, such a bad name that they will have to find another volunteer job to fill up their time. Or maybe Ms O’Malley can pick up her Intellectual Property job again at the State Bar of California.