Bernard Hellinga

Since I now have a blog I’d like to take some time and write about copyrights and infringement, a subject I’ve had to deal with ever since I got into business for myself in 1989 and whereby the works were analog or digital in nature and effectively copyrighted material.

Two days ago a friend of mine alerted me to a video he saw on a web portal of an ISP that had started a video service for its customers that is similar to YouTube and Google Video. One of the videos there, uploaded by a user that goes by the name of “bmhelli” (according to this and his website, Bernard Marius Hellinga a.k.a. Bernard Helli from a town called Ermelo in The Netherlands) contained two TV commercials that were appended together. One introducing some kind of big hamburger, the other commercial being of a topless woman acting out stereotypical male behavior.

While the commercials were funny, the creator that appended them decided to also append a few pictures at the end with a scrolling text (in Dutch, “Onze Werkplek”) which means “Our Workplace” or “Our Office”. Those images, as you can see here and probably would have guessed since I’m writing about it, were of course not of “their workspace” but rather, mine! :-)

In a way it’s amusing that someone would take some seemingly popular (if I judge it by the numbers of visitors to my site and the e-mails I receive about it) images from the internet and label them as “our workplace”. But it’s also not a very clever thing to do. Photographers usually don’t like their pictures being used by others that would take credit for it and are certainly less amused when the person or company doing so claims or implies that it is theirs or claims to be the author or copyright holder. The latter is also the case with Bernard Hellinga aka “bmhelli” since the upload details he entered were “Autheursrecht: BMH” (that’s “Copyright: BMH”). It is unclear what Bernard M. tried to accomplish with this. Either to pretend that my home office was his workspace or whether he wanted to imply that those commercials preceeding the images were those of the producer of these commercials (which, I certainly am not even though I did produce several TV commercials back in the 80′s and 90′s).

The ISP that owns and runs that video website had recently come up with their own version of “the DMCA” (Digital Millenium Copyright Act) which is a system for receiving and handling Take Down and Cease and Desist notices. A system I would strongly encourage for all ISP’s in order to distance themselves from any claims or association with copyright infringement by their customers. Needless to say, that new system deserved a closer look and a bit of a test. Within two days I received notice from the ISP that the user had taken down the infringing content. A good example of how an ISP can deal with these things without having to defend themselves over the actions of a customer. Very nice, and my compliments go out to XS4ALL for being a progressive ISP.

The same goes for Microsoft. When I was notified that Mr. Hellinga had also used the same photographs on his livespaces site/blog a DMCA Take Down C&D (Cease and Desist) went out. It took two days but the photographs were removed. This shows that a proper DMCA complaint will be handled in a proper and timely fashion.

Now the really funny thing is that this was the SECOND time my friend found something that infringed on a copyright that I held. Back in 1996 (it might have been 1997) he came by after picking up a book called “The 3D Studio MAX Design Guide”, published by Coriolis, Inc. Since I used to work on 3ds max I flipped through the book and within seconds my eyes fell on a chapter entitled “Battlemech”. To my surprise the 3D model used for that chapter was a 3D model I had created back in 1993, which was copyrighted (and clearly mentioned in the enclosed text file), and where one of the authors of the chapter claimed they had designed and created the model. On top of that the model itself was provided on the CD-ROM included with the book.

That level of commercial use of course required a slightly different approach and after getting in touch with Coriolis and having my attorney stand by to file a temporary injunction to halt all sales of the book we got to discuss the issue. I’ll save you the long story but in the end Coriolis admitted their “mistake” and we settled out of court for an undisclosed amount. Several months later I was contacted by Don Simpson, a cartoonist, who also had his material used in the very same book. In 1997, Ron Every wrote about this situation in the magazine he wrote for. You can find the article here (sorry about the quality, it’s an old PDF).

The bottom line, of course, is, that if you use material from any site on the internet that has copyright notices and details such as “without prior written permission” and “all rights reserved” you should never use the material without permission unless you wish to open yourself up to the less amusing side effects it can result in. If the material is not labeled and just found, stumbled upon, or provided in any random fashion and it is not clear who the author or copyright holder is and you are therefore unable to obtain permission, it is sensible to not use the material because you could end up being liable for using it. Regarding the “Fair Use” clause in copyright laws, claiming copyright without permission is never allowed under the “Fair Use” clause.

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