Another Legal Update From Domain Cleveland

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In our continued effort to keep our fans and supporters what’s going on with us, here is our second response regarding our alleged infringement of a copyrighted image. We take the idea of ripping off an artist seriously and, frankly, are offended that someone would think we’d do it to make money off of someone else’s work.

I believe you misunderstand the purpose of our website. We write about music and entertainment because it is what we enjoy. So, your assertion that we used the image to advertise and sell our products is incorrect. We allow people to purchase advertising via banner ads to support the hosting costs of the site, but it is hardly a “for profit” enterprise. Regardless, the Supreme Court held in Campbell v. Acuff-Rose Music, Inc. – 510 U.S., and the 11th Circuit reiterated in Suntrust v. Houghton Mifflin Co., that commerciality is no bar to finding fair use.

The nature of the work was not to be released as an artistic image for sale or licensing, but for use by DRT Entertainment for use with their audio recording, a recording which we were evaluating in our usage of the image.

Your assertion that we used the image in multiple locations is disingenuous. It appeared in two locations: the review page and a general review page that had thumbnail images linked to the items reviewed. The two other locations indicated in your earlier e-mail were the simply the file locations of those two images, not published locations on the site.

Applying the “reasonable person” standard, it is highly unlikely that someone would browse our website looking for royalty-free images like the one in question. The image was a part of an internationally-distributed CD that was released in 2004. Any online seller who sells the CD would have a similarly displayed image, as would many fan sites and other music review sites, so your assertion that our use “facilitates further instances of infringement” or “negatively affected the potential market” for the image is spurious.

In conclusion, I continue to assert that this use is covered under the fair use doctrine. The image does not replace the original market role of the work, the image is widely distributed in other venues such as Amazon and Wikipedia (so this use does not make it significantly more accessible or visible than it already is), it does not limit the copyright owner’s right to distribute it in any way and is of lower resolution than the original so any copies made from it will be of inferior quality.

It is my sincerest hope that this issue can be resolved without litigation. The image has been removed as a courtesy and in the interest of amicably resolving this matter, despite my continued assertion that its use was both protected and proper and in no way harmed the artist any more than the millions of images used similarly on blogs and review websites all over the Internet.

As such, there will be no forthcoming settlement. The image has no special meaning to this website other than to illustrate the product we reviewed and I simply will not pay the exorbitant fee requested to post a small image on two pages of a website that is operated at a loss by people who have made a hobby of supporting artists.


Larry E. McCloskey II


Domain Cleveland Responds

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As we told you yesterday, we have recently been notified that we were infringing on a copyrighted work and are liable for thousands of dollars in damages – an assertion we deny. We also said, we’d keep you all posted on where things stand with us. With that in mind, here is our official response:

After reviewing the claims in your copyright infringement letter, I have concluded that, contrary to your assertions, our use of your copyrighted materials is plainly protected by fair use. 17 U.S.C. § 107.

Factor 1: The purpose and character of the use is for criticism, comment and reporting.

The first fair use factor examines the purpose and character of the use. The image in question is the album cover for Seven Mary Three’s “Dis/Location” recording and was used in conjunction with a review of the album. The secondary image was a thumbnail image linked to the review.

Factor 2: Our use causes no harm to the market for the original work.

The fourth fair use factor examines harm to the market for the original work, but only harm caused by substitution in the market or satisfaction of the desire for the original work. The original image was not available as a standalone item, so there has been no replacement of or diminished desire for it in the marketplace through our use. Further, our images on the website are both smaller and of lesser quality, suitable for website usage but hardly replacing the original photographic quality work.

Conclusion: The image use is clearly protected by fair use and the First Amendment principles undergirding fair use.

After carefully reviewing your claims, and the fair use factors, it is plain that our usage is protected by fair use. Its usage is for criticism, comment and reporting and it does not operate as any kind of substitute for the original work.

While I believe that our usage here is clearly covered under the fair use guidelines, I have nonetheless removed the indicated images. I hope that this will resolve the issue. Moving forward, the courtesy of a simple cease and desist letter should a similar situation arise would be appreciated.


Larry E. McCloskey II

Update on the future of Domain Cleveland (and a word of warning to bloggers and webmasters everywhere):

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Update on the future of Domain Cleveland (and a word of warning to bloggers and webmasters everywhere):

We finally have (had?) our new site set up. We’ve been copying over our news, reviews and everything over to the new site. As those who have seen the new site can attest, we finally found a way to truly make it about the community – a place for all of you to talk music, movies, whatever entertains you.

As a community, you have a right to know where we’re at.

We’ve received notice from lawyers representing Getty Images that we’re infringing on someone’s copyrighted work. They want thousands of dollars to “settle” it.

If you’re an artist that has worked with us on shows, promo materials, whatever, you know that the LAST thing we’re about is ripping off artists. We take this seriously and opened a dialog to see just what the problem was.

What eggregious activity did we partake to rob some poor artist of their livelihood? We included an image of the cover with a CD review (as we do on almost all of them).

Obviously, we reject the idea that this is copyright infringement. Our crack legal team (LarryMac) advised their lawyers that our use is clearly protected uder the DMCA and fair use. If this isn’t protected then every movie and music review website out there is in trouble.

To date, they seem intent on squeezing a ridiculous sum of money out of us and are threatening court if we don’t submit. Clearly, this won’t happen. Domain Cleveland will close up shop first and they can try to sue for the $200 LarryMac has in the bank.

We’ll be updating everybody on the website, so you can follow along at home. If you support Domain Cleveland, this affects you. Even if you don’t support Domain Cleveland, this has the potential to affect darn near everybody.

Stay tuned.


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