Jay Lee: Local Photographer Threatened With Lawsuit by Woman Who Used Copyrighted Photo Without Permission

Categories: Spaced City

rodser.jpg
The signpost up ahead...
When Houston photographer, Houston Chronicle blogger and KPFT tech-talk show co-host Jay Lee found out last month that one of his copyrighted pics of Houston's skyline had been used without permission on multiple Web sites, he sent the Web hosts a Digital Millennium Copyright Act notice informing them of the situation. That's when the ghost of Rod Serling stepped in, took a drag off his Chesterfield and informed Lee that he had just e-mailed [pause] The Twilight Zone.

Why is that, Hair Balls? you ask. We'll tell you why: One of the sites using the pic belonged to a woman named Candice Schwager, who blogs about all the various conspiracies she's uncovered throughout her life, as well as her disapproval of Harris County Sheriff Adrian Garcia. The thing is, Schwager's 14 Web sites were registered via GoDaddy.com, and it's apparently the company's policy to suspend a client's account -- i.e., all of their domains -- even if a DMCA take-down notice only applies to one. When her account was suspended, she threatened to sue Lee for everything from harassment to defamation.

The weirdness blew the minds of techies and photographers in the blogosphere; before long, sites like Slashdot and Petapixel were covering the story.

Schwager believed this to be a conspiracy between Garcia, Lee, and a former Chron reporter named Alan Bernstein to destroy her credibility and abridge her freedom of speech. (Bernstein is a spokesperson for the Sheriff's Office, but Schwager describes him as Garcia's campaign manager). Her allegations, as presented on one of her blogs, are a jumbled, stream-of-consciousness sideshow: "Jay Lee and his outrageous lynch mob media printing lies to smear Candice have gone so over the top, there's simply more to the story. I've never met anyone so masochistic, begging to be smacked, as Jay. Call in the lynch mob! It goes all the way to Scotland! what's really up? [sic]"

Schwager, an attorney licensed in Texas under her maiden name, Leonard, is a self-appointed champion of special-needs children, which she believes make her an especially ripe target for Garcia and his minions: "Why would grown men put on an act like this, assassinating the Character of the President & Founder of Attorneys for Special Needs Children? Jay Lee is a hacker and tech expert and knows everything imaginable about computers. He would certainly know how to take down 14 of Atty4kids' websites with a single accusation. [sic]"

Speaking of masochism, Hair Balls decided to go straight to the source. We called Schwager Tuesday to get more details on this alleged conspiracy, only to be drowned in crayzand, which brave explorers will tell you is the toxic combination of crazy and quicksand indigenous to the dark continent of Kookartica. (We actually spoke with Schwager a few years back, when she sued the Clear Creek Independent School District in federal court for allegedly denying special education classes for her son. She accused the district of, among other things, violating the Racketeer Influenced and Corrupt Organizations Act. and organized crime.

Schwager told us she's not convinced Lee actually owns the photo in question. She tendered as evidence the fact that he declined her offer to pay for its use. (Lee and his attorney declined to comment for this story).

"I don't think it's copyrighted. I could never find the owner. He says he's...the owner, but he won't sell it. Why not? Because he can't sell it."

Now, bear in mind that any incoherence in what follows is not due to a typo or forgetting an entire paragraph or two; it's because Schwager speaks almost entirely in fragments marinated in non sequiturs. For example, she told us her sites were suspended after an attorney named Mark Bennett "called Garcia a crybaby because they had, who was it, Bernstein -- he's a creep -- intimidate the paralegal....Next day, my websites, all 14 are down."

Bernstein, she told us, "pretty much owned the Chronicle, and he has a lot of control of the people over there." When we asked what that assertion was based upon, she told us "Common knowledge."

The thing is, whenever we pressed for actual details of this vast conspiracy, she was vague. And then she was just evasive. At one point, she had to cut the conversation short: "I'm sorry. The police just got here and they're taking a report, and the Texas Rangers."


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38 comments
Fubo
Fubo

"...from the pothead press called today." Even a blind squirrel etc...

Josh Webster
Josh Webster

?  Metallica never hired out studio musicians on their albums. Steely Dan would hire several guitar players, for example, to record a solo on a song, and then listen to each one until they found the one they liked best. They wrote WHOLE ALBUMS this way. Metallica may have written some lame shit, but at least they played their own songs.

Craigley
Craigley

This one be crazy.  Wife went to Humble HS with her back in the day.  The AA crusades!

Harry Merkin
Harry Merkin

I've been trying to figure something in my head, and maybe you can help me out, yeah? When a person is insane, as you clearly are, do you know that you're insane? Maybe you're just sitting around, reading "Guns and Ammo", masturbating in your own feces, do you just stop and go, "Wow! It is amazing how fucking crazy I really am!"? Yeah. Do you guys do that?  -- David Mills

Dustin
Dustin

Alternatively, she could just not steal photography.  Or when she realizes she made a mistake that got her in trouble, take personal responsibility. In my experience, those with the weird conspiracy theories really have weird excuses for the things they should be taking responsibility for.

MadMac
MadMac

"Not quite sure what your point here is." That's because you/Mr. Malisow are typing "apples" and Mr. Packwood's comparing crazed, LSD orangutans.

MadMac
MadMac

You'd have to roll one out of his bag.

MadMac
MadMac

You would be surprised. Please, spend a morning at the municipal courts.

MadMac
MadMac

Look if you're gonna be mature and intelligent about this... (the elipses are for beardboy, Josh) I just know know if we can have a dialogue.

MadMac
MadMac

Said the Metallica fan?

...just a mortal...
...just a mortal...

I was thinking that someone's (a sock-puppet or surrogate) reply to your post about the town house was that she had never been foreclosed upon nor did she ever live in anyone else's house. (thats about the time they were talking about her deep pockets too I think).   I knew that dirty townhouse she is in now was someone else's and that they got it out of foreclosure sale.   Interestingly Only the DMCA Takedown-ish notice and her now dissolved FL corporation point to the townhouse, her bar card points to her mother in laws house, and everything else still looks to point to her seabrook addy.  The seabrook addy is where she was evicted by the court (after she appealed the eviction) but the web just now caught up to show the tell tell signs that her house in seabrook was in fact foreclosed upon.  I wonder if that sheriff she hates executed the eviction in person or if she cleared out ahead of time?  Can you imagine the verbal stream that would come out of her mouth if the sheriff was forcibly evicting her?

SomeoneElse
SomeoneElse

 True, but chances are she'd bankrupt, which could keep her down for a few years at least.

SomeoneElse
SomeoneElse

 Maybe you can get her husband to explain it to you?

Anonymous
Anonymous

All works default to 'all rights reserved' without an explicit license you have no right to use anything you see anywhere, period.

...just a mortal...
...just a mortal...

Marvin, did you get scared off or just run out of ideas to defend CS?   One question, I think should be asked of you, where did you get the idea that Candice's "non-profit" was a 501c(3) non-profit?   I would be interested in how you came to that conclusion, was it an assumption, something that you read from her various posts, or something she told you?  

...just a mortal...
...just a mortal...

Even if you got the judgment against her, I don't think there is any thing to gain here but vindication and good name back.  I don't think she is in as good a financial situation as she wants the world to believe--deep pockets my a**. Personally, I think she is pinning her hopes on her candidate winning his election so that she can somehow manage to get a political appointment under him, or some other angle for monetary gain.  I also have a hunch his "support" of her "non-profit" is code for paying for her campaigning services.

...just a mortal...
...just a mortal...

I am certain a tumbler will be coming...  and the new blog also talks about not needing to file paperwork if there is no income---umm, there's no need to file paperwork if your non-profit is no longer valid either...  Also, I think they are trying to obtain ip's on the comments to the new blog too... its odd they would leave comments open---but then FV did mention a "mouse trap" being set up...  So the campaigning and the 501c(3) ... if her candidate is the biggest contributor to her "non-profit", is he contributing to the "non-profit" or paying for the "shadow sm campaign" with all that mud?  Does the board of the "non-profit" support the campaigning---I would think a board would not agree, solution, let your non-profit go  inactive so that you are no longer subject to the board, the by-laws, etc, and then you are free to campaign.  

My2Cents
My2Cents

It would appear Ms. Schwager is perfectly capable of wallowing in the mud all on her own.

My2Cents
My2Cents

hey squirrel...your nuts went that way --------------------->

My2Cents
My2Cents

Is your lifetime of being a prick worth it too?

My2Cents
My2Cents

OMG...talk about a squirrel with a loose nut...lmao

...just a mortal...
...just a mortal...

Nice, How long before the 30 days is up on Anne Geddes?   So did you see the new blog she was starting? apparently she put the link out there, but actually hadn't yet committed to it and someone else claimed the name--its kind of taunting her and she is non-too happy.  

...just a mortal...
...just a mortal...

No Thanks,  Thanks for the sharing your perspective.   And you are right, she will file lawsuits and actually already has filed at least one "gigantic" lawsuit some time ago.  Their were 2 highlights for me, 1) the part where she accused the school staff and school attorneys of an organized conspiracy to deny her son services (RICO charges and all) and 2) that she wanted to recover he money she spent on a body guard to protect her and her family from the physical harm the perpetrators of the special education denial conspiracy were going to inflict on her and her family. Anyway, she used her court filing as a handout when she "testified" in front of the tx state senate.  If you scroll near the bottom of the comments you will find a link about 15 or so comments from the end pointed to senate state texas, you will find the court documents.  I am certain your wife would have a better understanding of all the diagnostics exhibits then the rest of us.  

JK
JK

Way too much time on your hands, dude.

Jolie B
Jolie B

I do believe this woman might be the conductor on the train to Crazy Town....

Asklo
Asklo

Hating on Steely Dan is like hating puppies, you monster.

...just a mortal...
...just a mortal...

Marvin,  First, I have another reply to our conversation above stuck in moderation right now.  Anytime I put a web link in my comments it needs moderator approval, so please watch for that as it has several links for you to check out.   It is my understanding, that the google search attribute of "available for free use" would only return results that have been expressly marked as either public domain or Creative Commons (CC). Because any original work on the internet, including any work posted on a blog, is assumed to have a copyright until proven otherwise, the various searches for "free to use" files generally err on the side of caution.  I want to reiterate, a person would have to make a choice to attribute their work as CC or public domain before it could even show up in a "free use" search.  Further I know typically for flickr and for most blog hosts, CC licenses are the only "free use" attributes for authors to assign their work.  CC in fact sets out specific rules on when you can and cannot use the photo--the mimimum requirement of any CC license is a link back to the original, full attribution with the photo you post, and to mark the photo with its creative commons license when you post that photo.  If you do not follow those guidelines then you are not legally licensed to use it, even tho it is out there for "free" use.    In my opinion and my understanding of Fair Use, CS's use of JL's photo does not fall under fair use.  It was as I understand it posted on her "non-profit" site, but it was used as part of the promotion graphics, not in educational materials.  Additionally, it was also used on at least one of her "for profit" sites, which is the site I have seen a screen shot of.  Marketing materials, promotional materials, and the like are not protected under Fair Use.   Even political free speech utilizing others original works has limitations not only on fair use but also licensed materials where by an author who objects to the message of the "political free speech" can deny use of their original works to further a political view they disagree with.  The most notable is always the musicians who object to their music being played at a political rally or in campaign advertisements.  Less public are disputes when a photographer or model requires their image/likeness removed from political materials because that image did not come with an express permission for political use and they disagree with the politics.  (this makes me wonder what is political free speech anyway, your own personal comments or work or simply displaying the work/comments of others? if CS's political free speech was dependent on JL's photo then ... ?)  DCMA/OCILLA does have protection from malicious reporting, but malicious reporting that falls under DCMA/OCILLA would be to claim ownership of a work that you actually do not have ownership of.  In order for this protection CS would have to prove with out any doubt that JL did not take the photo, was not the copyright owner or that JL explicitly placed that photo in the public domain as at this point the burden is on her shoulders not his.  "The law will still be there to protect the property owner if the user is not considerate or amenable to seeking license to use said property"  That kind of thinking really makes me cranky.  With my photographic work, some I have released to the world as CC, some I would license IF CONTACTED FIRST, and some (almost) no amount of money would ever get me to license/sell--the idea that if someone STOLE my work I should be courteous first and try to work out a license or something to me is ludicrous.  If someone entered your house, Marvin, and was taking say your tv or car would you stand there and actually try to negotiate with them?  If you owned a business and someone shoplifted from you, would you call them up and beg them to return the merchandise and only after they were not amenable to return it or pay for it, then you call the police?  What if they are doing it for non-profit reasons?  People make their living as photographers, and it is not an easy living to make.  Their photographs are their merchandise, no different then a department store or car lot.  Thats what they have to sell.  Sending a DMCA takedown notice to the ISP is not a request to take down an entire site, it is only a request to have infringing content removed, it was GoDaddy's policy that CS agreed to when she set up her account with them that saw her sites taken down, and that is not JL's fault.  I used a DMCA takedown on many sites a couple of years ago, in the group of sites, 2 were with ISP's that had full site takedown policies.  I did not agree with that policy and I voiced that with the ISP's after the sites were taken down,  as all I wanted was my photo to be removed, not the whole site, but that was their policy.  GoDaddy's policy is to suspend accounts after multiple instances of infringement, for what that is worth.  And for the record, the Photo I sent takedown notices for is one of the photos I keep in my "never license" bucket.     BTW Marvin, how many times have you been put in a position of having to choose to confront a copyright infringer or to send a DMCA?  How about having to choose to confront dozens of infringers?  In my case it was over 3 dozen sites.  While some copyright holders choose to confront the person directly, others are with in their rights to send a DMCA Takedown--There is, however, no entry in the etiquette book on which one is proper.  

marvin hill
marvin hill

 On the other hand- a person could Google search images for the Houston Skyline- and even set it to select 'available for free use' and the Flicker 'protected' images will not come up- IF mr Lee had the photo 'unprotected' on his blog as ...just a mortal indicated-- A person could 'innocently' assume the image return from the blog was usable-it could be copied and 'worked' offline for Not for Profit purposes without any mal-intent in such a circumstance...  Flips the responsibility for claiming ownership before doing damage to the owner of the photo in my mind- there is a provision within the DCMA OCILLA to protect inadvertent users from malicious reporting, and the rule does not pertain to ONLY actual ownership, but also is intended to protect abuse of persons exercising Political Free Speech.  This is why it is recommended to get an attorney BEFORE you go about willy nilly shutting people down- when simple notification can USUALLY have the desired effect without Hard Feelings and Monetary Damages it is considered the preferable action.  The law will still be there to protect the property owner if the user is not considerate or amenable to seeking license to use said property.

...just a mortal...
...just a mortal...

Marvin,  Thanks for your response.   Let me point out to you, I do not know JL, don't live anywhere near texas, and have no opinion as to her choice for sheriff or Houston politics.  I am, however an uncle to a special needs child and a photographer who has also been faced with the decision of using a DMCA takedown or not when my work was infringed.     What I do care about in this case is the rights of photographers.  As an artist/photographer I understand full well the incredible struggle that most photographers face in order to make a living off of the images they produce.  Thats why I find it completely and totally unacceptable that instead of simply removing the photo and moving on with her life, CS decided to make a political event out of it.  In fact, if you go back to the beginning of the story you will find that JL removed any mention of her or the situation from his blog early on.  Yet for weeks now, CS & her sock puppets/surrogates (sock puppet is a bogus account that a person uses to speak as if they are another person) Posted blog article, tweets and comments all over the net questioning the validity of his copyright and the character of JL, they have used homophobic slurs towards JL and others on an almost daily basis.  In one case she addressed those of us commenting on one of the articles as future defendants.   But one thing I will state, absolutely with out a doubt, this started when she CHOSE to use a photo that did not belong to her, not when she made a political endorsement.   I am going to give you several links.  Please read the post and the comments on the sketchy details page and you will see more of my thoughts as well as CS who posted as MovieStar.  The second link is the Petapixel article.  Top of the page you will see screen shots.  3rd link is one of CS's sites that is still up-take note of the family in the banner, and the 4th link is the photographers own site where the photo originated from.  I am crossing my fingers that Discus does not screw up the links or the formatting this time.   http://thesketchydetails.net/2012/05/25/case-study-when-dmca-takedowns-go-wrong/#.T8G8Na5pNRY http://www.petapixel.com/2012/05/25/photographer-threatened-with-lawsuit-after-protecting-his-copyright/#disqus_thread http://www.whenigrowupi.com/ http://www.steveharrington.net/blog/2008/10/02/the-christensen-family/

My2Cents
My2Cents

Oh my that fourth link is quite telling isn't it...shame on you CS

marvin hill
marvin hill

I wont describe her mental health in any way other than that she is obviously under a lot of stress...Your partisan's contribution to that level of stress is I suppose only consumate of his personal vector in these attacks that fall like rain on Candice.  Someone has sensed blood in the water and there is currently a feeding frenzy- I am hoping Candice withstands it and comes back a stronger person- but that may not be good news for JL and others that are being sorted for their parts in the dog-pile that is what Candices little corner of the internet has become.  Sort it will we will just have to wait and see.  JL gagged by lawyer? Sounds reasonable i suppose but I guess that means surrogates like yourself can third party spin the situation in his favor anyway- someone like me would like to state that 'ALL' this started when she made a political endorsement-which I do believe should be 1st ammendment protected.  I am not familiar with petapixel- could you provide that link you referred to? I have demonstrated from the prior post response to the provided link that I am willing to consider all sides. Many thanks ...candor is its own reward 

...just a mortal...
...just a mortal...

Marvin, Interesting you should bring up altering a photo and the notion that because there are so many similar photos you can not it is yours.  First and foremost altering a photo, cropping, filtering, smushing does not necessarily make a new work that is free of of the original copyright. You should Look up Associated Press vs. Shepard Farley for an example of a photo that was greatly altered to the point that to a casual observer looks like it may be from one of the many other sources available.  In fact, crowd sourcing was the defense: because the photo could have been created as a composit of hundreds of photos it was fair use. Agree with the court or not, their interpretation of the law is what it is.  On a side note, I consider someone who uses one of my photos with out permission and alters it in any way; cropping, filtering, smushing & such; to not only be a copyright infringer but to also be a vandal--chew on that for a while.  I think that CS has also claimed, in another forum, that her altering of JL's photo rendered it further into the realm of fair use, which is, I think, wishful thinking on her part.   You should check out petapixel's article on this as they actually have screen shots of his photo next to the one that came from her marketing web site.  As a photographer, it is clear to me despite her edits, that the source photo is JLs photo.   Second, the photo I linked to on Flickr, is not watermarked, and tho, downloading is not permitted, this was not the only site to have this photo on it.  JL posted his photo on his blog as well.  One of the defenses CS had raised to her infringement, much like your defense of her in a previous comment was the notion that JL had not marked the photo copyright anywhere.  US law does not require a photographer to every mark a photo copyrighted, however, just 1 instance of marking it copyright exceeds the laws threshold, further the point that downloads of the photo on flickr are disabled for that photo show that the intent of the photographer was to protect his rights.  From a legal standpoint, if you want to use a photo that you find on the internet, it is on you to track it back to the original source and obtain permission, if you do not obtain that permission then you post it at your own risk.  The flickr page further shows a timeline of when the photo was taken, and that fact that so many people have viewed it, and commented on it, simply provides many witnesses to the photo.  Your technical short comings both with regard to "pixels" and on the google image search does not change the results of JL's search, again the petapixel article has a screen shot of some of the google image search results.  My own search this am showed google putting JLs photo on about 80 sites. a quick check of 5 of those links shows 4 had replaced the photo while 1 may have licensed it--there is always lag in googles memory. Not to burst your bubble on legitimacy or anything, but on another of her sites she currently has a family photo taken by a Utah photographer and on one of the sites no longer up, she had used a banner that was actually one of Anne Geddes photos.  Interestingly enough, when she got the request to take down for Geddes she responded with a "thank you for not filing suite--you are a goddess" kind of post.  Not to mention all the avatars, and other instances of her sites and accounts that utilize others works.  Currently on Topix in the Houston forums there is a note that someone tracked her Atty4Kids logo back to a group called Hike4Life.  There are now 2 instances of declared infringement and multiple instances of alleged infringement that from an outside eye look to have teeth to them, credibility seems to be in short supply. As for JL bringing his feelings directly to this forum, I wouldn't hold my breath.  Comments made by CS indicate that he has retained an attorney for this matter.  While we as individuals certainly have 1st amendment rights to comment both pro and con to this situation and subject matter, CS is certainly exercising hers with some colorful language, I know if I was in JL's shoes, my attorney would advise me to save it for the legal proceedings.  As for Ms. Shey's motivation to comment here--I think it is irrelevant.  She has an opinion and she wants to express it, just as you and I both have opinions we are expressing as well. That said, I could just as easily assert that because you and CS share ideology, and since you follow not only Her twitter account, but the twitter accounts of her sock-puppets/surrogates Sophie, Vero, Megan, Ginny, & Viviann that you are in fact CS's surrogate and you speak for her as well--even tho it would be as easy as "123" I will pass at the moment, maybe later.  BTW, there is a debate about CS's mental health, is she or is she not mentally ill.  I think she is crazy like a bungee jumper is crazy, but others think she is crazy like padded room crazy.  As a friend, follower and supporter do you have an opinion to her mental health?

marvin hill
marvin hill

The groupthink defense is certainly impressive in a dull kind of way. Again I ask ms Shey - Are you in contact with Mr Lee- acting as you are as his agent- I have to wonder if this is with HIS permission or without. I certainly have to wonder WHY he is taking his arguements to the comments section, instead of standing directly within the article as the article states HE was offered the opportunity. Ms Shey, respectfully, the photo link provided is to a photo that is watermarked,and categorized on Flicker as ' All rights reserved'.  It cannot be directly copied from Flicker. There is therefore No danger that it will be 'ripped off' for comercial use.  I notice it is also watermarked, therefore even if I copy it from the html of the page it will be readily recognizable.  It is safe to assume that any visitor to Flicker will no longer be able to pick it up and run with it- as mr Lee asserts happened in the past. So we have to assume that mr Lee has taken a higher degree of Ownership of the photo He asserts Candice used illegally; since the time he claims she took advantage. I did what Mr Lee asserts he did on the photo display page on Flicker provided by ...just a mortal- I ran it through the advanced Google image search-as mr Lee asserts he did.  The image drew many thousands of hits- not dozens...and none of the hits was His image.  There were many hits on the  Houston Skyline however, and several were the same shot/perspective and time of day-even panoramas with the same perspective. I will reitterate what others have said - once pictures are stolen(unprotected) it is next to impossible to proove it is your photo in use, unless the subject matter is extremely unique Mr Lee doesnt stand a snowballs chance in hell of prooving the photo in question is the Photo in use.  Further the raw image on Flicker may have undergoone several transitions in cropping and stretching to fit the banner header on a website, it will have been compressed into a .jpg file with much less info- and therefore the only pixel alighnment between the two images will likely be accredable to the subject matter being the same. This is what they meant when they said it wasnt worth the fight- that and making Unproovable accusations that cause damage can result in a return tort that a thinking person might not want to initiate. So why dont you get your friend to strap-on something with balls and present to us the damning screenshots of the offensive websites...maybe if I dont have to ONLY rely on the word of and individual acting in a cowardly manner...maybe then I might consider his complaint worthy of attacking Candice on a public forum. Because I went to a couple of those websites and they appeared to be on the Up and Upbefore they dissappeared: and, furthermore, As I remember it the photo in the banner didnt look at all like the photo linked to by ...just a mortal.  

...just a mortal...
...just a mortal...

*avatar -- damn you auto-correct... lol... still teared up, that is so funny... 

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