You just can't make this stuff up.

Aaron Tuttle is apparently suing us? | The Lost Ogle (http://www.thelostogle.com/2015/12/22/aaron-tuttle-is-apparently-suing-us/)

LOL, with that muscled up body of his, he ought to feel proud of a chance to show it off, rather than feeling “maliciously embarrass and defamed”. His lawsuit doesn't add to my opinion about him in a positive way. At least, he doesn't mind ending some of this Facebook weather posts with, "Thanks and please share! -AT"

Mr. Tuttle is pretty popular on Facebook, check out this weird story....

http://www.thelostogle.com/2014/01/09/some-nutty-facebook-weatherman-troll-does-not-like-aaron-tuttle/

One of them is about to get schooled. I'm neither lawyer nor judge, so I really can't say which, but I know I have my suspicions.

I really don't understand why some of the things were plead.

Here is a link to the case. Everything is free.

Case Information - OSCN (http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&cmid=3347750&number=CJ-2015-6853)

Most all of the claims, I think, will be dismissed because first, Aaron Tuttle is a public figure. When one becomes a public figure, their reputation, likeness, etc., all become fair game for parody.

Fent v. Falwell (below), serves as a great example of just how far our rights to parody public persons go.

https://www.oyez.org/cases/1987/86-1278

The request for injunctive relief is something I don't see happening as prior restraint isn't something the courts are going to entertain.

The only claim which I don't see as 99% for sure going down on a motion for summary judgment is this cause for conversion, but even then, TLO isn't using Aaron Tutttle's image for an endorsement or straight up profiteering from it, they are using it in a parody and satire context, i.e., public commentary. God bless him, I guess Tuttle has as much of a right to his day in court as anyone, but I just don't see this one going his way.

Tuttle and TLO have a long history, basically TLO is being satirical/parody-ing him, and he's gonna lose. Dude's threatened to sue TLO many times before, he's an idiot.

#1 if Tuttle ever put any of that on the internet it's public domain. Unless a pro took took the photo, then he didn't own it to begin with.

I think the defense argument is that TLO generates revenue from advertising. The bigger the scandal, the bigger the higher the traffic. But he doesn't directly profit from his posts nor use his photo in an ad or sell anything bearing his likeness. You could further point out that Tuttles lawsuit increases traffic to the site and could even lead to an an increase in ad revenue.

Dude should have just left it alone, lol.

Unfortunately this will most likely never make it to an actual civil trial.

Tuttle has several huge obstacles that I'm certain his attorney has already made him aware of. Which leads me to believe this is all a bluff by Tuttle to try and force TLO to remove past posts or at least agree not to target Tuttle in the future.

The lawsuit claims three causes of action;

1.) Invasion of Privacy (misappropriation of one's image)
2.) Invasion of Privacy (false light)
3.) Defamation of Character

#1 is the one my website has been the target of several times in the past. In each case I won for various reasons - primarily for the fact the image was posted publicly by the complaining person prior to me using it, the newsworthiness/public interest of the photos and information used, some of the photos were public record (mugshots) and the information surrounding the photos was true and accurate (or at least there was no maliciousness or expectation the information was false).

Tuttle will probably loose on those same grounds against TLO. Also (which goes to #2) if the commentary surrounding the photo is so outrageous as to not be taken as fact by the average person, then its not actionable.

#2 has been claimed against me in court also. Again, it has always been ruled in my favor. Mainly because what I say/write is true or at least I had no reason to believe what I was posting was false. TLO has a really strong defense in this assertion also.

#3 This is where these cases always get interesting. In fact, this cause of action alone is why most cases against me are dropped not long after they are filed. Defamation almost always requires the plaintiff to prove material harm. This opens them up to financial scrutiny during the discovery process.

The first thing I do is seek to forensically examine a plaintiff's financials. Most plaintiff's immediately drop their lawsuit because they don't want me having access to that sort of information.

I assume TLO's lawyers will also insist on deposing Tuttle and seeing an accounting of his financials. I seriously doubt Tuttle wants to turn that information over to them.

What is probably going to bear the most weight is the simple fact neither side has much money in their war chests to fight this.

I assume TLO will countersue to get their attorney fees and Tuttle will eventually have to wakeup and realize he doesn't stand a snowball's chance of winning and its only going to cost him money he honestly doesn't have.

Tuttle's only hope (IMO) is that he has more money to fight this than TLO (which he does - but it still isn't that much more) and that TLO has to actually hire a lawyer that's actually charging them real fees. Unless they have worked something out with a lawyer fan of their site, this can easily cost them several thousand dollars they simply don't have - thus forcing a truce and some sort of 'agreement.' This, IMO, is Tuttle's only hope for an outcome he is happy with.

I particularly enjoyed the part of the Petition where Tuttle says though he uses his image on Facebook, he doesn't relinquish rights to those images.

--so I guess he posted that stupid copy/paste thing to his feed then?

I particularly enjoyed the part of the Petition where Tuttle says though he uses his image on Facebook, he doesn't relinquish rights to those images.

--so I guess he posted that stupid copy/paste thing to his feed then?

He obviously doesn't understand where the law makes no requirement that he relinquish his 'rights' or not. Its of virtually no significance in this legal scenario.

I think they are in it together to generate traffic to both sites.

Tuttle is unequivacally a DB.

He obviously doesn't understand where the law makes no requirement that he relinquish his 'rights' or not. Its of virtually no significance in this legal scenario.

This is one of the biggest problems about defamation lawsuits. There's almost never an upside to file them and they're damn near impossible to win.

These sorts of cases are referred to "SLAPP" lawsuits (Strategic Lawsuit Against Public Participation)

https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

--and in many states, there are statutes preventing bully corporations or shirtless weathermen from using these sorts of lawsuits to intimidate and harass individuals exercising their rights of free speech. I'd love to see the legislature take a look at what other states have done to prevent this sort of abuse.

I haven't read the petition but I gather part of it claims copyright infringement on the use of images AT posted on his facebook page?


#1 if Tuttle ever put any of that on the internet it's public domain. Unless a pro took took the photo, then he didn't own it to begin with.

Copyright goes to the maker of an image automatically upon creation and remains with the maker until the maker says otherwise. It doesn't matter who took the photo or if they are a pro. Posting it on the internet does not give up rights. Being a public figure does not mean you give up rights to copyrighted works. Otherwise, we could for an example, build a complete 100% word for word, image for image mirror of the New York Times website, or any other website and use our own advertising. That's not allowed.

Parody is fair use though. But the test for parody while using a copyrighted work can be tricky.

Cite: https://www.legalzoom.com/articles/2-live-crew-weird-al-yankovic-and-the-supreme-court-on-parody

Much more esoteric but noteworthy, Rogers vs Koons. Koons made a sculpture from a photograph and claimed parody of the banality of the scene. He lost. Bigtime.

Art Rogers vs. Jeff Koons: Design Observer (http://designobserver.com/feature/art-rogers-vs-jeff-koons/6467)

Proving damages to AT's future ability to use a specific image AT owned the copyright to for AT's monetary gain would be difficult and probably not amount to much dollar value. But I guess if AT got a partial victory on the issue, guilty and $1 in damages, TLO might have to pay legal fees.

I've often wondered if/when TLO might be challenged for using images he obtains from the web, thinks he's entitled to use fairly by parody, but not altered them significantly or otherwise not met the letter of the law for using them in that manner.

I don't believe AT has a case for TLO making fun of AT in general.

The irony in this case is that no matter what the outcome, TLO wins the PR war. AT looks thin skinned, petty, and narcisistic, and TLO gets a ton of publicity.

I saw the TLO post about the lawsuit shortly after they announced it and I'd never given a second thought to AT. Now, I know who he is and have formed a very particular and negative opinion of him as a result.

Copyright goes to the maker of an image automatically upon creation and remains with the maker until the maker says otherwise. It doesn't matter who took the photo or if they are a pro. Posting it on the internet does not give up rights. Being a public figure does not mean you give up rights to copyrighted works. Otherwise, we could for an example, build a complete 100% word for word, image for image mirror of the New York Times website, or any other website and use our own advertising. That's not allowed.


^^^^^THIS!

I was getting ready to post the same thing. People have this idea that if its online its public domain. So they use Google image search and then use the images they find in their work. That's not public domain use. That's theft, plain and simple. Unless the image (or whatever work) is explicitly released as public domain, or distributed under creative commons, it is likely NOT public domain. I've had more than one piece of my artwork stolen and used on shirts and even on a website for a competing web company.

Where it gets really interesting is that downloading and using images from Facebook actually violates Facebooks TOS and can get your account/page shut down pretty quickly. If I was AT I'd file a complaint with FB.

...Where it gets really interesting is that downloading and using images from Facebook actually violates Facebooks TOS and can get your account/page shut down pretty quickly. If I was AT I'd file a complaint with FB.

Yes, and no. I experienced this in the past via lawsuit (JohnTV often grabs photos from a person's Facebook profile and republishes them with news related commentary). I can't go into details because of a non-disclosure. That said, the person's Facebook photo(s) are still published on JohnTV and there was no legal grounds for their removal. I simply agreed 'not to promote' this particular article or the specific images and they eventually get lost in the massive content of the web.

Additionally, the only successful attempts to limit JohnTV's ability to use a person's Facebook photos has been if we directly reposted onto Facebook an image we collected from another person's profile (download and then uploaded again). The person simply flagged the image and Facebook removed it - nothing more. No account disablement, etc. However, images that appeared in a Facebook post via a thumbnail created from a link we posted were not taken down when flagged by a Facebook user (even the intellectual property rights owner). I assume because the image itself did not reside on Facebook's servers like it would via a download and re-upload.

Facebook is also very clear that if you post using the 'public' setting that you are actually giving permission for the public to use that information. Don't recall the actual wording and its too early for me to try and look it up on my phone (my eyes don't focus until 10am).

Additionally, the news media routinely uses photos others have posted to Facebook and often cites Facebook as the source. I've never heard of a media outlet having their Facebook account disabled because of it.

Some of Facebook's policies contradict themselves. Furthermore, they are terms of service, not laws. While Tuttle is welcome to pursue remedy via Facebook, I'm not exactly certain what satisfaction he'd get from it - as their reach and ability to influence one's behavior going forward is minimal to say the least.

The grey area in the law is not public domain (that's fairly well defined under law). The grey area IMO is fair use. When news media outlets were very readily identifiable, Fair Use in that context was pretty black and white. With 'news media' now being redefined, through the advent of the Internet, it's not nearly as clear as it used to be.

I've been lucky in that my work has thus far been legally recognized more closely with 'news reporting' and public interest. That's a much firmer foundation (at least in my opinion) than satirical.

It's not a legal thing. Facebook enforces their TOS as they see fit. I know people who've been successful with filing complaints with Facebook and having accounts and pages terminated based on this type of behavior. Facebook won't get involved from a legal standpoint. Just an access to their service standpoint. Facebook, like many online services, tends to err on the side of the complainer. Especially harassment complaints. Even for public figures (and sometimes.especially so). It would be a small, petty thing though.

From the facebook TOS:
Sharing Your Content and Information


You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Policy and Platform Page.)
When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

Not all social media TOS read the same and of course that has nothing to do with what is posted on the web in general being in the public domain. Some of the other sites TOS are discussed in the paper below which is mainly about fair use of copyrighted images in news reporting. Long story short, that issue is not cut and dried but tricky, depending on several factors.

http://www.jthtl.org/content/articles/V10I1/JTHTLv10i1_Stewart.PDF

Published in the Journal on Telecommunications and High Technology Law

lulz...He's a member here and has posted in the past.

The fact Tuttle has yet to even serve TLO is extremely telling as to Tuttle's real intentions.

Aaron Tuttle has amended his lawsuit against us? | The Lost Ogle (http://www.thelostogle.com/2016/02/17/aaron-tuttle-has-amended-his-lawsuit-against-us/#more-62214)

... We are actually represented by the law firm of Dunlap Codding. They’re one of the largest, oldest and most respected law firms in the state of Oklahoma. They specialize in intellectual property, so I guess you could say they are (wait for it… wait for it…) copyright attorneys who specialize in copyright law!...

OSCN Case Details (http://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CJ-2015-6853&cmid=3347750)

It would appear Aaron Tuttle's "copyright experts" couldn't prevail. I'm surprised there isn't something already up on TLO regarding this Motion to Dismiss being sustained. And it looks like someone (presumably Matthews) was associating outside of Oklahoma lawyers (presumably real copyright experts) to defend them. Bummer.

Let's hope Tuttle appeals. An appeals court opinion on these facts would actually make a fun bit of reading for future law students in their case books as opposed to the sort of dry 1st Amendment stuff in there right now.

And also, now absolutely no one has to fear posting images like this:

http://www.thelostogle.com/wp-content/uploads/2015/05/aaron-tuttle-emily-sutton2.jpg

--because Tuttle has already sued someone and lost on a Motion to Dismiss (which is about the most emphatic way you can lose a lawsuit,

Does this put anyone else in a mindset for some music? I enjoy music myself.

https://www.youtube.com/watch?v=ujH799rexHQ

<iframe width="854" height="480" src="https://www.youtube.com/embed/ujH799rexHQ" frameborder="0" allowfullscreen></iframe>



https://www.youtube.com/watch?v=i1wZVVMKojw
<iframe width="854" height="480" src="https://www.youtube.com/embed/i1wZVVMKojw" frameborder="0" allowfullscreen></iframe>

#1 if Tuttle ever put any of that on the internet it's public domain.Not true at all, and such a belief is a recipe for disaster. The Copyright Act of 1980 made copyright automatic at the instant a writing or image is created, and unless formally transferred, that copyright remains with the creator of the work in question for the creator's lifetime.

Placing it on the internet is, in fact, publication of it -- but for someone else to download the posted image and then use it is truly copyright infringement and provides grounds for filing suit. Of course, it's much like Oklahoma's prohibition laws prior to 1959 -- impossible to fully enforce! However the legal grounds are still there.

That said, the most he could hope to recover is his ACTUAL damages, as proven by cancellation of established bookings. The total would most likely pay only for five seconds of his attorney's time, nowhere near enough to cover filing costs!

But in this case, parody of a public figure falls squarely within the fair "fair use" exception.

Tuttle can't claim invasion of privacy because he put the photos used by TLO out in the public domain on his own--and since TLO is only using those photos to parody the public figure the photos are of, that's fair game under the 1st Amendment.

But in this case, parody of a public figure falls squarely within the fair "fair use" exception.

Tuttle can't claim invasion of privacy because he put the photos used by TLO out in the public domain on his own--and since TLO is only using those photos to parody the public figure the photos are of, that's fair game under the 1st Amendment.

I didn't read the whole case but I read part of the motion to dismiss. The part I read the defense did not make the claim the photos were/are in the public domain, which is a legal status to mean their use is unrestricted by copyright or other intellectual property laws. It claimed Tuttle made them available for public viewing. As stated by several in this thread, making an image available for public viewing does not place it in the public domain. (if so, as soon as a book/movie/whatever is on the shelves at the local book store, theater or whatever, it would be in the public domain.) Was it argued or did the court find otherwise for some reason with Tuttle's photos? Facebook TOS "Public setting" mentioned?

Agreed, they argued and the court found it was fair use for TLO to use those photos to parody a public figure.

I wonder if Tuttle has to pay the defense legal fees? If so, that's gonna hurt the pocket book.

One very annoying things Oklahoma County judges like to do is issue rulings which say "Motion to Dismiss is Sustained," leaving the parties completely in the dark as to why. The full minute is not on OSCN, but I suspect that it says something to that effect.

I didn't read the whole case but I read part of the motion to dismiss. The part I read the defense did not make the claim the photos were/are in the public domain, which is a legal status to mean their use is unrestricted by copyright or other intellectual property laws. It claimed Tuttle made them available for public viewing. As stated by several in this thread, making an image available for public viewing does not place it in the public domain. (if so, as soon as a book/movie/whatever is on the shelves at the local book store, theater or whatever, it would be in the public domain.) Was it argued or did the court find otherwise for some reason with Tuttle's photos? Facebook TOS "Public setting" mentioned?

Agreed, they argued and the court found it was fair use for TLO to use those photos to parody a public figure.

The EULA for all social media basically states anything you post is stored on their servers, their servers don't have many restrictions of ownership in regards to use or property. Henceforth "public domain" the user can delete the content they choose...but once you upload media you've made a pre-agreed upon legal agreement that those photos are public. Like Anthony weiner's weiner.

It would be a different case of the plaintiff hosted his own server and website for his photo media to be viewed bit not copied. Like a photographers website.

The EULA for all social media basically states anything you post is stored on their servers, their servers don't have many restrictions of ownership in regards to use or property. Henceforth "public domain" the user can delete the content they choose...but once you upload media you've made a pre-agreed upon legal agreement that those photos are public. Like Anthony weiner's weiner.

It would be a different case of the plaintiff hosted his own server and website for his photo media to be viewed bit not copied. Like a photographers website.

Simply not true. Most EULA the user agrees to let the provider store your content, delete it, display it, but none of that places the property into the Public Domain, free of restriction for anyone to use.

Simply not true. Most EULA the user agrees to let the provider store your content, delete it, display it, but none of that places the property into the Public Domain, free of restriction for anyone to use.

I'll leave this here then, as it appears to be quite relevant.

https://www.facebook.com/terms

Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:


1: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

2: When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).

3: When you use an application, the application may ask for your permission to access your content and information as well as content and information that others have shared with you. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, including how you can control what information other people may share with applications, read our Data Policy and Platform Page.)

4: When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

5: We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).

While very strictly true in a very very strict legal sense that publishing to Facebook is not releasing to the public domain, it only in a very very very strict sense means exactly that, using those exact words, 'public domain'. It clearly DOES, however, make it available for anyone to use.

tl;dr: Items published to Facebook are not 'public domain', but they ARE available for anyone to use if posted using the public setting.

I posted that upthread.

While very strictly true in a very very strict legal sense that publishing to Facebook is not releasing to the public domain, it only in a very very very strict sense means exactly that, using those exact words, 'public domain'. It clearly DOES, however, make it available for anyone to use.

Not just anyway the user sees fit by any stretch. It would still be infringement for me to stick Tuttle's image on my health products for instance. Same with any other content.

Here's yahoos below.

Nope, nothing in there says you give your content up to public domain. It's not even close to as loose as Facebook either.

(I looked for OKCTalk too. There's nothing in the TOS about transferring any content to public domain there. It doesn't talk about copyrights or intellectual property at all, as far as I can find, which means it belongs to the creator per the law, as soon as you create it and remains there until you give it up.)

https://policies.yahoo.com/us/en/yahoo/terms/utos/

Yeah, none of these EULA transfer or abolish IP rights. At most, you're sublicensing the rights to the online provider. In fact, Facebook has clarified this on multiple occasions. Here's a response to that question from their IP department...


We appreciate your concern. Our license or sublicense does not affect ownership or copyright privileges for material on the site. Facebook uses user content in connection with various features and services on the site (for example, displaying it in profile pages, photo pages, news feeds and other messages to users' friends, etc.).

I think we're agreeing on the same point, actually. To be explicitly clear, I'm not saying posting to Facebook et al is releasing to the public domain (in the legal sense of the term), I'm just saying it's releasing to the public (which some people incorrectly call the public domain). As you note, this does not transfer ownership, and does not give the right to use, for example, Tuttle's picture to sell your brand of tanning lotion. It does, however, make the picture available for public use, and if someone takes said picture and uses it in a parodic manner, this is not 'theft'. Tuttle found this out the expensive way.

I think we're agreeing on the same point, actually. To be explicitly clear, I'm not saying posting to Facebook et al is releasing to the public domain (in the legal sense of the term), I'm just saying it's releasing to the public (which some people incorrectly call the public domain). As you note, this does not transfer ownership, and does not give the right to use, for example, Tuttle's picture to sell your brand of tanning lotion. It does, however, make the picture available for public use, and if someone takes said picture and uses it in a parodic manner, this is not 'theft'. Tuttle found this out the expensive way.

Just like what Weird Al does. Songs are out in the public and he has every right to parody or pastiche the songs without the artists or song writers consent but he does so to the best of his ability as a courtesy, not as a legal agreement.