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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.

Sincerely,

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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