August Image, LLC v. Anne Enke | Why Wasn't A DMCA Notice Issued?

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Background of August Image, LLC Lawsuit

On August 14, 2020 a pdf file — representing a lawsuit filed against AOC Brands LLC and Anne Enke personally by August Image, LLC — was sent to me via email.

The August Image copyright infringement lawsuit against me was filed on May 30, 2020 in United States District Court, Eastern District of Pennsylvania. Their law firm is Doniger | Burroughs, a preeminent firm in intellectual property law. Much to my astonishment, Stephen Doniger, Esq. himself is handling the case — which means that Anne of Carversville and Anne herself are in a heap of trouble. .

From the firm’s website: “Doniger / Burroughs has recovered approximately $100,000,000.00 for its clients, and has a truly rare and exceptional record of success before the trial and appellate courts, winning all 14 of its last 14 copyright infringement jury trials and prevailing numerous times on appeal before the Ninth and Second Circuits, creating new law on cutting edge art law issues along the way. And its cases have been against some of the world’s largest companies, including:Amazon, Facebook, Netflix, Walmart, Target, Urban Outfitters, Viacom, Sony, Disney, HBO, CBS, Fox, Buzzfeed, Vice, Universal Music Group, and Spotify.

I asked multiple photographer friends of mine: “Do you know, Stephen Burroughs?” In one case, the photographer had actually conferred with Mr. Burroughs about legal representation. But everyone knows who he is.

No DMCA Takedown Notice Filed

Speaking as a layperson on copyright matters, as I engage my own cost-effective legal representation, I do know that the proper filing of a DMCA Takedown Notice would have saved much legal expense in trying to serve me with legal papers.

Of equal and greater concern, I would have been informed about and had a chance to respond to the legal jeopardy that I am in. I would have had several months — not weeks — to find legal representation.

Because Doniger | Burroughs did not file a proper DMCA Takedown Notice with my blogging platform Squarespace — or insist that DigitalRights International file one — I had no idea that this entire problem was going on behind my back.

Zero Recollection or Evidence of Any Conversation Regarding August Image Dispute

It’s been suggested by Doniger | Burroughs principle Stephen Doniger, Esq. that I had communication with DigitalRights International about this alleged copyright violation, and my refusal to respond or settle the complaint escalated the issue to lawsuit status.

While I acknowledge that I know of the firm DigitalRights International and their representative Ms. Yolanda James, I have no record of any communication between myself and Ms. James on this alleged August Image infringement case. NONE.

Note that I’m not saying that it’s impossible that I was contacted about this alleged copyright infringement. I’m saying that 1) I have no physical memory; 2) no email records of any communications; and 3) the fact that the two posts in question were live on AOC on August 14, 2020 goes against any practices ever employed by me in the extremely rare case of disputed images.

I’ve asked Doniger | Burroughs more than once for at least the date that my alleged communications with Ms. James occurred, but have not received a response.

That I would leave contested images ‘live’ on AOC is impossible to believe. Any contested images are turned off immediately but not trashed. In my first encounter with DigitalRights International in 2017, I turned off the files during our discussions but did eventually restore them, as they represented a huge body of the photographer’s work.

A Massive Threat Against AOC from August Image and DigitalRights International in 2017

In a 2017 bombshell demand for a huge sum of money that came from Ms. James and involved August Image, I contacted the well-known photographer’s studio immediately, as well as his agent. The entire issue of copyright infringement was dropped after my outreach, and I never heard another word from Ms. James on this matter.

For perspective here, we’re talking tens of thousands of dollars, for images that were simultaneously featured on 10 or more lesser-quality, blogging websites. Mr. Doniger assures me that I am not a target of DigitalRights International or August Image.

While my relationship with Mr. Doniger and his lawyers is cordial — Stephen and Anne now — I beg to differ with him.

In 2017, a very annoyed Ms. James informed me that I am not to be contacting photographers directly — to which my position is and always has been “Why not? Do you seriously think that I do not have relationships with photographers; or they do not know their images are on Anne of Carversville? I am not an image thief.”

I have every right to speak with photographers. They are my friends; they value the high-quality, free service that I provide featuring, writing about, archiving their works; and I treat their images with great respect.

If Doniger | Burroughs Had Filed A Proper DMCA Takedown Notice

Several procedural events would have transpired with the filing of a DMCA Takedown Notice. We turn to the Copyright Alliance for help.

The DMCA takedown process can be used regardless of whether the copyright owner has registered their work with the U.S. Copyright Office. It should not be used for anything other than copyright infringement claims. Many service providers offer easy-to-use online tools to submit claims directly to the provider through an online DMCA takedown form.

After a takedown notice is sent to a service provider, the provider usually notifies the user, subscriber or other person who is responsible for engaging in the infringing activity. If that person – the alleged infringer – in good faith does not think the activity is infringing, he or she can send a counter notice to the service provider explaining why they disagree with the copyright owner. After receiving a counter notice, the service provider is obligated to forward that counter notice to the person who sent the original takedown notice. Once the service provider has received a valid DMCA counter notice they must wait 10-14 days. If the copyright owner sues the alleged infringer in that time frame the material will remain down, but if no suit is filed then the service provider must re-activate or allow access to the alleged infringing activity.

My next point is moot, because no DMCA Takedown Notice was issued in this case by either the lawyers or Ms. James. BUT James knows well that I claim a “fair use” copyright exception on the majority of images, and for good reason. I’ve explained it to her more than once.

In addressing the DMCA Takedown Notice process, the Copyright Alliance writes:

Before sending a DMCA takedown notice the copyright owner should conduct a thorough, good faith investigation of the infringing activity to ensure that one or more of the copyright owner’s rights is being infringed and that no exception or limitation, such as fair use, is applicable. Copyright owners should only use the DMCA takedown process for the purpose that it was intended – to remove infringing material off the internet – and not use this process for non-copyright related reasons, such as to remove non-infringing criticisms of the copyright owner or copyrighted work or to remove trademark infringements.

In 2018 the Ninth Circuit rejected in Lenz v. Universal, Universal’s attorneys’ argument that copyright owners should not have to consider fair use before sending DMCA takedown notices. The EFF (Electronic Frontier Foundation) writes:

The Ninth Circuit rejected this argument, holding that the DMCA requires copyright owners to consider whether works are lawful fair uses before sending takedown notices targeting them. The appeals court made clear that fair use is not an “infringement to be excused” but instead is not copyright infringement at all.

With a DMCA Takedown Notice, the ‘Defendant’ Knows What’s Happening

Had the Congress and Court prescribed DMCA been filed in this dispute, my “fair use” exception claim would have been on the record as part of my own action taken. Mandated procedures would have been followed.

Separately, I also argue that the three-year statute of limitations to protest the images on AOC had expired in the August Image case. That argument would have been addressed in my response to the DMCA Takedown Notice. The majority of the image copyrights syndicated by August Image in this case were originally held by Hearst Corporation, based on my research. I’m not clear at all who holds the copyright now in all the images.

AOC Claims a ‘Fair Use” Copyright Exception

I am not suggesting that James or Doniger would have paused over the ‘fair use’ exception before issuing a DMCA Takedown Notice, but James certainly should have told Doniger that I claim the “fair use” exception and why. She knows the size and scope of Anne of Carversville, now 14 years old.

In the over 225,000 images on AOC, James is the only professional who has an acute case of copyright infringement ire against AOC and me personally. Goddess knows, fashion photographers don’t have an issue with AOC. Their agents don’t have an issue with AOC.

Every time I communicate with James — and definitely on fashion editorials — I claim “fair use”, which is part of the copyright law, whether August, James or Doniger | Burroughs agree or not. We have courts and judges to decide those issues.

Stephen Doniger, Esq. is a charming, brilliant lawyer but he onle plays hardball. Yolanda James has only ever played hardball with AOC and me And now August Image is also playing hardball with Anne of Carversville and me personally.

What’s that famous line from Casablanca? “Of all the gin joints in all the towns in all the world, she walks into Mine “

No Need To Spend 11 Weeks Looking for Anne in Philadelphia or File a Lawsuit in the Wrong State — I’m Right Here

I haven’t lived in Philadelphia since 2014 and it’s not my fault that the state of PA shows a corporate filing for an LLC that hasn’t paid any taxes in the state — or even the annual fee to do business in the state — since 2014. Think of dead people who aren’t removed from the voter registration rolls.

In filing a proper Counter Notice: 1) I would have been required to provide current contact information. Ms. James has my phone # and email address. But I would have been required to provide my current address, now part of a private domain registration.

In filing the Counter Notice, I also Consent to be Sued in Federal Court, writes Copyright Alliance. .

The counter notice must include a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which his or her address is located and will accept service of process from the person who sent the DMCA takedown notice. (note: If the person sending the counter notice is located outside the U.S. the statement is slightly different)

This entire process is so efficient, compared to what actually occurred — weird stories written to the court of two Philadelphia process servers running around the city trying to find me, one in my old building banging on the door of my old apartment. I know that’s not true because one can’t get in that elevator without a key or the front desk calling the tenant to confirm authorization for even the pizza guy to proceed. My deceased partner and I chose to live in that building because of the constant security concerns that I have as a global women’s rights activist.

Had the DMCA Takedown Notice been properly filed, none of these expenses would have been incurred — including filing a federal lawsuit in the wrong state. I can only assume that August Image intends to make all that financial waste and inefficiency my fault in federal court and try to stick me with the bill.

As it is, I am now moving to Virginia at the end of September, and Mr. Doniger has graciously agreed to let me get settled there, before we proceed into federal court.

Fundraising Campaign and August Image Photographers Contact

To close out this introduction to August Image, LLC v. Anne Enke, I have contacted the August Image photographers in Paris involved in this case. I’ve explained the status of this lawsuit and asked them if they want me to remove all their extensive photography from AOC.

In addition to launching more than one fundraising campaign, it’s clear to me that AOC readers and professionals with a vested interest — one way or the other in August Image v. Anne Enke — have a decision to make.

AOC is either worth fighting for, or it is not. I have concrete thoughts on what I want to happen going forward, but do not have the resources to fight a federal lawsuit.

I am ready to trash 14 years of work for every photographer connected to August Image, because behind every new day is Yolanda James and August Image breathing down my neck.

AOC and I personally have ALWAYS run the website at a financial loss. And I am just not a glutton for punishment. If COVID has taught us anything, it’s taught us to be reflective about what matters in life.

A Permission to Post Arrangement for Any Photographer Associated with August Image Will Be Required

I will be contacting in days all the photographers and their agents featured on AOC, who also have some limited works syndicated with August Image.

We cannot coexist without some kind of legal authorization from the photographer and/or the agent that he/she is happy to have work featured on Anne of Carversville; and Ms. Yolanda James, DigitalRights International and August Images are not to communicate with me about their work, without written authorization from their agent or themselves.

I respect the reality that a number of August Image photographers will opt out of AOC. That is fine and understandable. August Image knows this is what I intend to do, as does Mr. Doniger. There are no secrets in this matter — except the one that blasted into my email box on August 14, 2020, a lawsuit filed on May 30 that was news to me.

As Michelle Obama says: “It is what it is.”

New Industry Arbitration Group

On a broader scale, I hope to create a new industry group whose members focus on arbitration wherever possible in simple copyright disputes AND agree to follow a set of standard copyright conflict procedures — unlike my situation.

I will be reaching out to the young but successful fashion industry Models Alliance for guidance in steps they took to create what is now a very effective organization representing models’ interests and rights.

This situation with media and photographers is more complex, because there is no dispute that photographers have major rights in image use, depending on copyright status and other contractual arrangements.

Anne Enke Is Neither A Crook Nor an Image Thief

The real world of fashion industry image rights is far more complicated than the “do you have a license or not?” world that August Image, Ms. James and Mr. Doniger believe exists.

What is clear to me is that a photographer can send images to me (it happens all the time) and be delighted that they are posted. S(he) makes no claim or request to have them removed for three years under the current statute. I’ve also had magazines send me fashion stories, when they own the copyrights and when they don’t.

These creatives are reading AOC regularly and love their high-quality experience on the website.

All of this image posting happens day in and day out on AOC, and I write critical commentary on multiple posts every day. Not all, which is impossible. But every day, I’m writing original research and cultural commentary. The sun comes up in the morning and then it sets on new AOC posts. It’s one of the few steadfast realities left in our world.

BUT — if by some set of circumstances August Image comes into contact with those same images years later for syndication, they feel no compunction not to blast me with a major federal lawsuit filled with damning, destructive legal verbiage that would make you weep.

I am a defiant image thief to be dragged into court and denounced for dishonesty and destroying the value of the photographer’s images by displaying them on the trash heap that is AOC. This is how August Image, Yolanda James and Stephen Doniger, Esq. view me and this beautiful website within the context of this lawsuit. I will share their claims in a separate post.

Otherwise, Mr. Doniger thinks I am probably quite a nice woman, and he has said so. He has only one question, though, for his client. Do you have a license or not. If not, pay up now, or I’ll ask for a summary judgement and have your assets seized. Those are not his exact words, but he will agree that they are the gist of his email message.

Reality is that I am not an image thief, and have EVERY reason to believe that AOC is operating as a “fair use” image website after all this time and so much support from photographers. However, I don’t want to live my life with Yolanda James lurking around every corner ready to pounce. So we need to fix this problem pronto in as many ways as possible,, because 1) It’s very serious, and 2) I refuse to live like this any longer.

As one of the most brilliant intellectual property lawyers in America, I’m sure that Mr. Doniger does understand fully my legal argument. He is way too smart and successful not to. But this is business and not a calm, cogent arbitrated discussion around the facts. ~ Anne