Photographer Sues State Of Texas For Using Image From His Photograph On Auto Inspection Stickers

from the even-governments-think-it's-ok-to-copy dept

Wed, Nov 10th 2010 8:45am — Mike Masnick

Jon Snow points us to the story of a photographer who discovered that a photograph he took of a cowboy hoisting a saddle is being used as the background image on approximately 4.5 million inspection stickers:

According to the report, the state had prison inmates create the stickers, and one simply scanned the image out of a "Texas Parks & Wildlife" magazine and used it as the background image. The photographer tried to get the state to pay up, but it refused, leading to the lawsuit. As Snow notes, this certainly might make you wonder what the statutory damages would be on 4.5 million instances of infringement? Of course, some of this may depend on the terms under which the original photo was licensed for the magazine (and if the magazine is a state run operation). Also, I could see the state claiming "sovereign immunity," which has become popular for state governments when they're accused of patent and copyright infringement claims. You see kids, when governments infringe, it's no big deal. But when regular everyday citizens do so, they should be forced to pay tens of thousands of dollars, apparently. Seems perfectly fair, right?

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Filed Under: copyright, inspection stickers, photograph, texas

57 Comments

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Anonymous Coward, 10 Nov 2010 @ 8:52am

$150,000 * 4,500,000 = $675 billion! Payday!
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- Hephaestus (profile), 10 Nov 2010 @ 9:29am
  
  Re:
  Now that would be a kick in the pants. It would also show the absurdity of copyright infringement penalties. It would be cool if the EFF, someone at the creative commons, etc were to file an amicus brief stating the State of Texas should be held accountable to the fullest extent of the law and mention that number.
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  - Jose_X, 11 Nov 2010 @ 6:18am
    
    Re: Re:
    I agree with filing an amicus curiae brief and stating that number, but I wouldn't suggest they seriously try to argue that this value should be what is paid as a matter of course.
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    - Jose_X, 11 Nov 2010 @ 6:50am
      
      Re: Re: Re:
      Someone pointed out in other comments that the actual infringement would be for the number of distinct works infringed rather than for each such infringement. If that is true, would that mean that once I infringe on a work and pay up whatever is the fine that I have a de facto licenses to infringe forever making as many copies as I want? Or would I still be on the hook for anything I make after I infringe and was called out on it? Can you attempt to sell through secrecy as many copies as possible and then pay the standard maximum fine and keep all the profits accumulated? Where would criminal behavior lie?
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      - Anonymous Coward, 11 Nov 2010 @ 11:41am
        
        Re: Re: Re: Re:
        The copyright owner can get an injunction against further unauthorized copying, so any further infringement would violate that injunction and and give rise to other potential penalties (including possible contempt of court).
        
        Plus, the copyright owner could always elect to seek actual damages instead of statutory damages, and argue that you owe some reasonable royalty/license fee for each use.
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- ethorad (profile), 11 Nov 2010 @ 4:54am
  
  Re:
  Of course the problem with governments being fined, is there is really no such thing as "government money" or "public funds" - it's all just tax revenue from the public.
  
  As such a government fine is a levy shared among the entire (tax paying) population.
  
  Fining an individual or a company works as they can't just unilaterally make more money to cover the fine (as if they could have made more money, they would have done so regardless of the fine)
  
  Fining a government only works to the extent that someone now has hassle to decide how to recoup the fine - higher tax, more debt or even print money (I doubt that budgets would be cut). Not quite a problem on the same scale of an individual/corporate fine.
  
  Of course, enough fines of decent size and people will start to get annoyed with government incompetence - but likely as not the government would head that off by somehow exempting themselves from the fines.
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Anonymous Coward, 10 Nov 2010 @ 9:00am

Federal copyright law was amended some years ago to enable its enforcement against states, but the amendment was struck down. Importantly, while state sovereign immunity figured prominently in the court decision, such immunity is not absolute and can be deemed waived in certain conditions in the future are deemed to have been met.

Since federal law does not apply, the rights holder is not necessarily without recourse since most state constitutions provide for state liability in cases such as this. In other words, the claim is not based upon federal law, but upon state law.
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TSO, 10 Nov 2010 @ 9:16am

Mmmm... exercising double standards. America's favorite pastime!
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- Anonymous Coward, 10 Nov 2010 @ 10:17am
  
  Re:
  Check your memos. Our new favorite pastime is eating sandwiches with meat as bread.
  [ link to this | view in chronology ]
  - The Groove Tiger (profile), 10 Nov 2010 @ 11:15am
    
    Re: Re:
    I thought it was eating sandwiches made of two pizza crusts and grilled meat and cheese as the filling.
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- ethorad (profile), 11 Nov 2010 @ 4:41am
  
  Re:
  I didn't think any form of exercise was America's favourite pastime! ;-)
  [ link to this | view in chronology ]
Anonymous Coward, 10 Nov 2010 @ 9:28am

Wouldn't it be nice if.....?
Judges are supposed in theory to be completely impartial and independant right? Wouldn't it be nice to see one decide indeed that "sauce for the goose...." is valid and have some part of government for a massive fortune?

Let see.... say $60,000 per count? I make that ummm $270 billion? I'd lay a small wager copyright reform might loom a little larger on the political agenda then.
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- PRMan, 10 Nov 2010 @ 9:42am
  
  Re: Wouldn't it be nice if.....?
  "I'd lay a small wager copyright reform might loom a little larger on the political agenda then."
  
  I'll take that bet and I'll bet you again that judicial reform comes first...
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  - crade (profile), 10 Nov 2010 @ 10:06am
    
    Re: Re: Wouldn't it be nice if.....?
    Instead of fixing a broken law, you figure they will fix the judge for following what the broken law says?
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    - Anonymous Coward, 10 Nov 2010 @ 10:49am
      
      Re: Re: Re: Wouldn't it be nice if.....?
      Instead of fixing a broken law, you figure they will fix the judge for following what the broken law says?
      Yes my hope did rather rely on the hypothetical independant and impartial judge. And shorty after that I shall be elected pope....
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Charlie Potatoes, 10 Nov 2010 @ 9:49am

Paying off ...
So what? We can just ask each illegal in Texas to chip in $.50 and we can pay up AND have a budget surplus.
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- ac, 10 Nov 2010 @ 10:19am
  
  Re: Paying off ...
  something tells me that if TX could find the illegal immigrants in the first place they wouldn't be around to pony up the $.50.
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  - Jose_X, 11 Nov 2010 @ 6:29am
    
    Re: Re: Paying off ...
    I'm a legal migrant and have been a US citizen for many years.
    
    I understand that nations create laws and a great many of them have laws to limit immigrants, but I don't understand (except to the degree meant as humor, and it was a little funny) how someone born in one country with certain benefits would think they hold anything over someone else that had the much less fortune of having been born in a potentially significantly less desirable location.
    
    Should the natives of this land as was the case around the 16th century have expelled the Europeans and any others that dared "claim" the land in the name of some aristocratic patron or other? Are not 99% of all US citizens today immigrants or descendants of immigrants if we go back far enough? [ignore for a moment the technicality of all your ancestors having come from those that inhabited this land around 1790]
    
    And another point is that many illegal immigrants do work hard and frequently harder than numerous citizens. Many surely do not, but I hope anyone suggesting in earnest a solution to illegal immigration is not lumping everyone in the same "boat", whether that be the Nina, Pinta, Santa Maria, or any other craft.
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    - Jose_X, 11 Nov 2010 @ 6:35am
      
      Re: Re: Re: Paying off ...
      >> I'm a legal migrant
      
      That would be "immigrant"
      
      >> have laws to limit immigrants
      
      That would be "to limit immigration"
      
      I'm sure I made other mistakes. Please don't get offended for bits of sloppiness here and there.
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NullOp, 10 Nov 2010 @ 9:53am

Infringement
Ha! Sue 'em till their balls drop off!

Of course not all the facts are presented but it sure looks as if TX is in the hotseat here. I certainly hope this photog makes good on his claim and is properly compensated. Governments at all levels claiming "sovereign immunity" is a huge, stinking load of BS. I wonder how much longer the American people are going to allow this BS to continue? TX should give the photog a few million and call it even. What will happen is they will waste millions in litigation instead.
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Anonymous Coward, 10 Nov 2010 @ 10:07am

redo title too
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Ima Fish (profile), 10 Nov 2010 @ 10:09am

Even without the immunity defense, the guy will never see any money. Unfortunately, I can't find the article, but it's nearly impossible to collect judgments against the state of Texas.

In a nutshell, as we all know, budgets are created by legislative branches of government. In Texas, only the legislature can budget the payment of a judgment. To put it another way, a court cannot force the payment of a judgment by the state of Texas, or any city or municipality of Texas.

Even if you get a judgment against the government in Texas, you have to go through all the rigmarole to get the state legislature to pass a budget to get your money, which is completely their discretion. That rarely happens.
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- Law Student, 11 Nov 2010 @ 9:04pm
  
  Re: Ima Fish
  You're wrong. If the judiciary rules against the state, then the legislature has nothing to do with "approving" payment. The copyright statutes involved are subject to appeal, but the highest level of appeal has the final say regardless of whether or not the state legislators like the result. Once the highest level of appeal has ruled against the state on the issue, the state is required to pay.
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Roger in Texas, 10 Nov 2010 @ 10:36am

Appears that it is a State Publication
Texas Parks & Wildlife magazine
4200 Smith School Road, Bldg. D
Austin, TX 78744
Phone: (800) 937-9393
Fax: (512) 389-8397
E-mail: magazine@tpwd.state.tx.us

Depending on his agreement when he sold them the photo, he may not have a leg to stand on.
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deadzone (profile), 10 Nov 2010 @ 10:40am

It sucks that he more than likely won't see much, if any, profits from the State of Texas for use of his image, but that's life and it's way unfair most of the time.

Hopefully, he can make something positive out of this and at least use the publicity in some way to make money in other ways as a photographer.

In reality, expecting to get paid everytime for usage of something that you create is a pretty unrealistic expectation that is next to impossible to attain.
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Ryan Diederich, 10 Nov 2010 @ 10:42am

Ummm
Isnt there a rule about this sort of thing, that if you modify at least 1/3 of the work (this might apply to written work only I dont know) then copyright no longer applies? It looks pretty modified to me.

The state does not profit from the use of the image, therefore should it fall under fair use?

If the photographer has been selling the image, how can he claim damages? It isnt as if someone who gets their new inspection sticker isnt going to buy his work now. I would think someone might be MORE likely to seek out the photograper and buy works from him.
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- nasch (profile), 10 Nov 2010 @ 10:57am
  
  Re: Ummm
  If you modify a work enough (there is no fixed percentage) it may be judged transformative. Depending on other factors, this may qualify the use of the work as fair use. Given that this is a large scale commercial (or can they claim it's not commercial because it's government?) use and is easily recognizable as the original work, I'm not sure a fair use claim would stand up. They can certainly point out that these stickers don't harm the market for the original though.
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- Jack, 11 Nov 2010 @ 11:00pm
  
  Re: Ummm
  you are full of assumptions and zero facts. Copyright does not function in any of the ways you describe.
  
  The notion you have regarding fractions of work altered is a myth. Furthermore, fair use only protects those using copyrighted material for non-profit satire or educational purposes.
  
  Also, the photographer didn't "sell" his photograph in the past the way you seem to imagine, he licensed the usage of it. If he wrote his contract properly, then he stipulated a geographic location, method of reproduction and time-frame of reproduction, and collected a fee for those specific usage rights.
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  - nasch (profile), 12 Nov 2010 @ 8:13am
    
    Re: Re: Ummm
    Furthermore, fair use only protects those using copyrighted material for non-profit satire or educational purposes.
    
    That is not correct, a commercial use of a work can absolutely be fair use, depending on the balance of these four factors:
    
    1. the purpose and character of your use
    2. the nature of the copyrighted work
    3. the amount and substantiality of the portion taken,
    4. the effect of the use upon the potential market.
    
    What you mentioned is only number 1.
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Overcast (profile), 10 Nov 2010 @ 10:56am

"wonder what the statutory damages would be on 4.5 million instances of infringement?"

Well, if you use the Jammie Thomas case as a precedent...

According to this: http://en.wikipedia.org/wiki/Capitol_v._Thomas

It was 24 songs, the final judgment was 54,000.00
$2250.00 per infringement.

In this case then, with 4.5 Million 'infringements' - the amount they could sue for - AND use the Jammie Thomas case to establish the precedent would be: $10,125,000,000
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Overcast (profile), 10 Nov 2010 @ 11:05am

"They can certainly point out that these stickers don't harm the market for the original though."

Maybe...

Not sure that would be so easy. Would part of the potential market have been licensing use of the image for auto inspection stickers? If so, it most certainly has significantly impacted his potential 'market' for licensing sales.

PLUS in addition to that - conceptually, the artist could say that since the image is now 'common' on Auto Inspection stickers, that it will be harder to sell the original image as it's not really 'unique' and most would associate the image with the auto inspection sticker.

So instead of a comment about the 'cool looking cowboy picture' on the wall, the comment would be 'why do you have a more detailed copy of the auto inspection sticker' - etc..

Kinda like the difference between having an original painting of a Cowboy as 'art' - in comparison to having an image of the Marlboro man on the wall. Wouldn't it? I think they could make that argument. Overly popular 'pop-art' and it's value is much different from original/unique art - I would think.
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Overcast (profile), 10 Nov 2010 @ 11:07am

Of course - I might add.. In reality... This will likely get the artist's name known and may well - in the end, result in MORE sales. Due to 'free' advertising.

I admit, I like the picture, it's certainly artistic. I'm not a particular fan of 'cowboy' art, but I know someone who is and some art like that would certainly interest them.
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- Chronno S. Trigger (profile), 10 Nov 2010 @ 11:33am
  
  Re:
  I agree, it has a good artistic quality to it. If I was him I'd have a copy of the sticker and the original photo with me everywhere I went to tell people that I was so good I'm now on 4.5mill cars.
  
  I have no idea what Texas expected, though. It's not like prisoners could stage their own photo shoot. Granted a guy with a ball and chain may have been more appropriate, but the budget for a camera probably doesn't exist.
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Anonymous Coward, 10 Nov 2010 @ 11:14am

I hope this photographer DOESNT get compensated. If this assclown hadnt taken a photo of a cowboy, someone else wouldve, and that one wouldve got used instead. Big deal.

Tell you what, let the governor buy him a beer and call it square.
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- Anonymous Coward, 10 Nov 2010 @ 11:31am
  
  Re:
  I hope this photographer DOESNT get compensated. If this assclown hadnt taken a photo of a cowboy, someone else wouldve, and that one wouldve got used instead. Big deal.
  I might agree with you, except that then it should also apply to the "assclown" who issued a copyright infrigement notice for the "use" of a song that happend to be in the background of a baby dancing and all teh other smilar "assclown"s don't you think?
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Anonymous Coward, 10 Nov 2010 @ 11:23am

That's Texas Law son and don't you forget it.
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Gracey, 10 Nov 2010 @ 11:34am

Lets see... a prison inmate scanned the photo to use for the sticker.

Did he choose it himself?

If so "oh the irony"...
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Anonymous Coward, 10 Nov 2010 @ 11:53am

FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.

In other words, the maximum statutory damages available in this case would be $30,000 (or $150,000 if willful infringement is shown).
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- Anonymous Coward, 10 Nov 2010 @ 12:25pm
  
  Re:
  FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.
  
  In other words, the maximum statutory damages available in this case would be $30,000 (or $150,000 if willful infringement is shown).
  
  You're right, but don't expect Mike to admit it. Mike doesn't let a silly little thing like reality cramp his style when he's complaining about IP laws.
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  - Mike Masnick (profile), 10 Nov 2010 @ 3:15pm
    
    Re: Re:
    You're right, but don't expect Mike to admit it. Mike doesn't let a silly little thing like reality cramp his style when he's complaining about IP laws.
    
    Heh. What I get for replying to comments in order, instead of reading through them all first.
    
    Anyway, just want to point out that the above is not at all true. I admit to being wrong quite frequently. But only when I am, actually, wrong.
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- Mike Masnick (profile), 10 Nov 2010 @ 3:13pm
  
  Re:
  FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.
  
  Ahh! Good point... Though, is that really the case? If someone makes a single counterfeit CD do they face the same damages as if they made 100,000 counterfeit CDs? If so, that seems odd.
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  - Karl (profile), 10 Nov 2010 @ 4:29pm
    
    Re: Re:
    If someone makes a single counterfeit CD do they face the same damages as if they made 100,000 counterfeit CDs?
    
    Yep.
    
    Of course, if you made a single counterfeit CD, nobody would care.
    
    If you did sue, good luck in getting the jury to grant damages above the statutory minimum. (Though with the Thomas case, who knows.)
    
    On the other hand, someone who made 100,000 counterfeit CD's and sold them, would likely be sued for actual damages, since those can be proven in this case.
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  - Anonymous Coward, 11 Nov 2010 @ 11:44am
    
    Re: Re:
    When talking about statutory copyright infringement damages, yes.
    
    Of course, there are other "counterfeit"-specific laws and I haven't looked up the penalties/damages for those recently, so I'm not sure.
    
    In a case where someone's selling 100,000 counterfeit CD's, the infringer's profits and/or actual damages may add up to more than the maximum statutory damages.
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Anonymous Coward, 10 Nov 2010 @ 12:39pm

A matter of nuance
Just hope Texas doesn't screw up and claim "diplomatic immunity" instead of "sovereign immunity", as the former can be revoked very easily.
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DL, 10 Nov 2010 @ 12:52pm

Marlboro should sue!
When I saw the picture I immediately wondered why Marlboro was sponsoring Texas registration.

Maybe I am moron in a hurry?
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rec9140, 10 Nov 2010 @ 12:54pm

considering that that TX is the biggest headache in the IP/copyright/patent mess I say PAY UP!

$150K x 4.5Million, x3 (trebled) WORKS FOR ME!

Cash on the whiskey barrel SON!

Couldn't happen to a better bunch of sleaze. Maybe some of the patent/ip/copyright trollists down there in east TX can chip in a few nights worth of bar tabs and they can cover it in a few hours...

Sometimes the system does work, as whole is fubar'd but in this case... CHACHING!!
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Nick (profile), 10 Nov 2010 @ 2:08pm

Hey!
He'll be able to hold the suit in east texas! and we all know how favorable they are to the ip holders!
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Anonymous Coward, 10 Nov 2010 @ 7:49pm

If immunity is waived or does not apply, and the licensing (the magazine _was_ published by the state) didn't permit it directly, the state would likely prevail on a fair use defense. As to government equivalency : consider the ramifications of Citizens United if it applied to the government instead of (or in addition to) corporations.
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Karl Bratby, 11 Nov 2010 @ 12:09am

copyright
I for one will support this case, surely they should have checked the source of the image before going to press.
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Pat town, 11 Nov 2010 @ 3:29am

The image has been changed so the copyright no longer applies
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- nasch (profile), 11 Nov 2010 @ 9:01am
  
  Re:
  No, you're not allowed to just make a change to a copyrighted work and then do whatever you want with it.
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- Anonymous Coward, 11 Nov 2010 @ 11:48am
  
  Re:
  Not true.
  
  Copyright owners have the exclusive right to "prepare derivative works," and this would be an example of a "derivative work."
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Mark Astle, 11 Nov 2010 @ 5:11am

This
If it was a non-silhouetted shot of a cowboy, and they'd made it into a silhouette, where would the law stand?

There must be a hundred shots like this on royalty free stock libraries though - they really should have checked their sources.
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Gene Cavanaugh, 11 Nov 2010 @ 9:34am

Copyright infringement
You see kids, when governments infringe, it's no big deal. But when regular everyday citizens do so, they should be forced to pay tens of thousands of dollars, apparently. Seems perfectly fair, right?

Well, yes, DUH! The State is us; if we pay, we have a lot of innocent people who had nothing to do with infringement being pounded. Additionally, an individual likely got some financial gain that should go to the holder, with the State official? If there was financial gain, they should go to jail; that isn't what their office is for.
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Karl (profile), 12 Nov 2010 @ 12:28am

Prisoners
According to the report, the state had prison inmates create the stickers

Does anyone else find this more disturbing than the actual copyright lawsuit?

How bad is Texas' economy where they hire prisoners as graphic designers? And is this happening nation-wide?
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Adrian, 12 Nov 2010 @ 12:29am

Is this copyright?
Are you sure we are talking about copyright here? I don't see the photo on that inspection sticker. All I see is a drawing, although very similar to the man in the photo, but still... a drawing. It's like I can acuse someone for invading my privacy because he photographed my shadow. Am I wrong?
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lol, 12 Nov 2010 @ 5:45am

...
The first problem here is having prison inmates create the sticker.
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