Notice of Copyright Infringement, Take Down Notice

Waldo Hotel

Notice of Copyright Infringement, Take Down Notice

I suppose I should add my take on a recent e-mail that I received, which will be redacted to ensure the privacy of the other party. I had not thought of posting it on here, but it seems that it has now made its way to TechDirt!

On September 12, I received the following e-mail regarding the Waldo Hotel in Clarksburg, West Virginia:

Mr. Sherman Cahal,

We are the current owners of the Waldo Hotel, located in Clarksburg, WV. It has recently come to our attention that unauthorized photos of the Waldo Hotel’s interior and roof have surfaced on the following websites:

http://www.abandonedonline.net/

http://shermancahal.com/

For your convenience, we have provided a copy of these photos attached to this email:

AbandonedOnline.net_Photos.pdf

ShermanCahal.com_Photos.pdf

The photos are recent in time and contain a 2011 copyright.

No individual with the {redacted} has authorized the creation, publication or copyrights of these photos. If you believe this is in error, please forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following mailing address:

To begin, a copyright extends to the original creator of the work. And as others have noted on TechDirt and elsewhere, such copyright does not extend to the owner of a building or piece of property, clearly defined. Title 17, Chapter 1, § 120 Scope of exclusive rights in architectural works (a) states that the copyright in an architectural work that has been constructed “does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” In other words, photographic representations are permitted.

To be short, you can not claim copyright on other creator’s work because you simply own the land or building. If that were the case, then the National Park Service could theoretically own my photographs I recently took at the Great Smoky Mountains National Park. Or Xavier University would own the photographs I recently took of their new residence hall. That simply does not happen.

ATTENTION LEGAL DEPARTMENT

{redacted}

In addition, you can forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following email address:

{redacted}

We formally request that all unauthorized Waldo Hotel interior and roof photos be removed from the following websites unless evidence of previous permission to do such can be provided:

http://www.abandonedonline.net/

http://shermancahal.com/

That’s not happening.

In addition, by law, breaking and entering is illegal in the state of West Virginia. By law, trespassing is illegal in the state of West Virginia. We will pursue prosecution of any individual caught engaging in such activities with any private property belonging to the  {redacted}.

Sorry, your right to pursue any prosecution is long over. Plus, there is Chapter 61, Article 3B, §61-3B-1 of the West Virginia Code, Crimes and their Punishment, Trespass that makes trespassing definitions defined. In the definition, a structure is a building of any kind, temporary or permanent, that has a roof. But it goes on to add that for a trespass to occur, there must be “reasonably maintained signs” posted not more than 500 feet apart at each corner of the boundaries of the land, with words that are not less than 2 inches in height, that state “No Trespassing” with the name of the owner/lessee or occupant of the land. The signage must be posted along the boundary line of the land in a manner to be clearly visible from outside of the boundary line.

There were no signage at the Waldo, inside or out, which the owner of the building acknowledged.

Trespass is defined as “willful unauthorized entry upon, in or under the property of another.” But under §61-3B-2, “any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited, or having been authorized, licensed or invited is requested to depart by the owner, tenant or the agent of such owner or tenant, and refuses to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars.”

While we did enter the Waldo through an open side door whereas there was no posted signage indicating that we could not trespass, there was no breaking and entering. In addition, we were never in contact with the owner or property manager, and never refused to leave – given that there was no one to tell us to leave. Therefore, a conviction of a misdemeanor according to §61-3B-2 is not possible.

So if I read this right, because there was no sign posted, and because we were never told to leave, then there is no possible way for a misdemeanor charge can be filed. It is based then on pure circumstantial evidence, which cannot be held up in a West Virginia court.

Although still official, we would like to also address you in an informal tone. We understand that the articles associated with the Waldo Hotel on abandonedonline.net is in favor of preservation and revitalization of the property. And preservation and revitalization is what we do. However, there are multiple problems with the approach you decided to take. One, breaking and entering and/or trespassing was the only method by which these photos could have been taken. This costs us time, money, liability and security issues. Two, these photos are unauthorized and may contain content that damages efforts to save the hotel. Three, these photos are wrongly copyrighted by Sherman Cahal and it deprives us of our rights to profits or benefits. And similarly, four, these photos are being sold for personal gain on shermancahal.com which, again, deprives us of our rights to profits or benefits.

Now obviously this is not a cease and desist letter from an attorney. And that’s not the route we want to take. Paying an attorney to handle this would cost us time and money that would be better focused on restoring the Waldo Hotel. But consider this a warning shot and we will pursue further action if these requests are ignored.

Since I sent a reply e-mail clarifying copyright and trespassing law, and that I was willing to work with the organization, I have not heard back. I received “oh” for a lot of replies when I called them as soon as I had received the e-mail, indicating that perhaps they had not thought their e-mail through too well. I’m not sure what their attorney, if they have one, would even say. You can’t claim copyright, you can’t claim loss of monies, and you can’t claim liability or security issues if the door was open which we were not a part of opening. But…

If you are willing to donate photos – that we officially sign off on – to the Waldo Hotel Preservation Society for fundraising and informational purposes, we support that. This is a newly formed group of private citizens that believe in restoring the Waldo Hotel and revitalizing their city. They have previously created a “Revive The Waldo Hotel” discussion group on Facebook. They are currently undergoing planning for fundraising.

Here is where it becomes downright hilarious. The group, Revive the Waldo Hotel on Facebook, was a pretty much run-of-the-mill group of individuals who longed for better days and were basing opinions on newspaper articles and engineering reports. But there were scant, if any interior photographs until I ran my initial blog entry and article here at Abandoned. After that, and a release of the photographs to the group on July 6, activity blossomed with over 30 comments regarding the photographs being made that very day. Clean out days of the lobby and associated areas were organized, remaining metal was scrapped to assist in fundraising, meetings with various city officials were held, and an official Save the Waldo organization was formed.

My reply to their e-mails is as follows:

It was good that we discussed this via our phone call earlier today. Here is a recap of what we discussed,

  1. Remove “damaging” photographs. Please indicate, within reason, of the photographs by going to http://www.abandonedonline.net/commercial/waldo-hotel/interior/ and http://www.abandonedonline.net/commercial/waldo-hotel/interior/?nggpage=2 and indicating by row and column the photos. They are individually tagged and this makes it easier to remove any offending images.
  2. Remove photographs from for-profit site. Images relating to the Waldo will be removed within one week from shermancahal.com.
  3. The copyright has been clarified to indicate that copyright extends to the original creator of the art work and any extension of that, duplication, for instance, is protected. Copyright does not extend to a building owner, property manager, et. al.I am flexible with these images, and can send Vandalia a one-time use of 300 DPI high-resolution images, or a long-term/indefinite lease of the images.
  4. Commemorative prints have been done in the past of other locations, which is something that I am willing to work with Vandalia on, or the Waldo Hotel Preservation Society, for the Waldo to raise awareness and press. Prints are typically poster-sized, 18×24, contain text, and cost anywhere from $15-35 to produce depending on what is required (e.g. mounting, laminate, et. al.). The prints have been sold in the past above cost to cover the printing costs, with any profit being donated to an organization of choice.
  5. Clarified the trespassing issues, which indicated that both the rear and front doors were open, that side glass was broken, and that there was no signage indicating “No Trespassing.” There was also no owner or building manager present.

See, I am not such a bad person after all. I did agree to remove any “damaging” photographs but no reply has been sent back on which ones that may be. And I will remove images within reason if they exhibit clear code violations – which this organization is in debt to the city to the tune of $700,000 for failure to keep the building in check. I am even willing to create commemorative prints of the Waldo, as has done in the past, for at-cost.

Clearly, there is no issue here. If this was a more formal letter, consulted with a lawyer, the “informal” bits would have been removed. The copyright nonsense would have been removed, along with the trespassing nonsense. I did about 20 minutes of research and resolved your concerns; why can’t this organization do the same?

We are in the same boat here, and we both clearly want to see the Waldo restored. But sitting on the property for years, racking up code violations and clearly not having a game plan for the building does not solve anything and has only expedited pleas to tear the building down by the city engineer. Bringing renewed attention to the property, through these undisguised photographs, has helped the Waldo out more than anything. There has been a renewed push to restore the building, and you should accept that.

3Comments

  • Kris / 16 September 2011 8:26

    Mr. Cahill, I greatly respect what you do and your beautiful work. I am sorry that there are such short-sighted people out there that cannot look beyond their own nose or silo or whatever and choose to send such uneaducated drivel. To the casual observer, this appears to be nothing short of a blackmail attempt. They want your work for free so that they can sell it to help fund their work. Sad, sad.

  • Philip / 16 September 2011 10:07

    Thanks for sharing! It's nice to know that we hold the copyright for buildings we photograph.

  • Patrick / 21 September 2011 12:51

    Perhaps they were developing a fundraising campaign with photos of the 'long unseen' interior as centerpieces. If they're legitimately interested in preservation of the Waldo, then it appears that you may have, in their eyes, 'stolen their thunder' and they're choosing to be mad about that. Nothing more, nothing less. Regardless, good job on both capturing the images and in doing so in a way that doesn't get you arrested or hurt.

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