Gary Fong Album Software Trademark Infringement

[GARY FONG INC]

Hi everybody.

We got numerous emails regarding a certain 25 year old Houston Photographer that has knocked off my "Power Console" software. We know who he is and my intellectual properties attorneys are working on it.

It is interesting that he said, 04-25-2006, 08:33 PM
While i refuse to just hand him $100 for some photoshop actions, i decided to make my own collection of actions for my album designing needs.

and he also said:
"How is it stealing if i can make my own actions? I am not downloading his "work" and claiming it as mine. I have been building the actions for the past weeks with my knowdlege of photoshop - things i already do, I just didn't have them compiled into actions like he has them.

While i did like his idea of compiling it together...i don't think i stole his "codes", i mean anyone with photoshop can make actions, you know that."

This is why you don't want to "assume" anything about what's legal and not legal without consulting an attorney. What he has done has infringed on what is called "Trade Dress" of my Power Console software. This could makes him liable for TRIPLE our damages, because the action was willful (evidenced by the part where he says, "I refuse to just hand him $100, so I made my own..." Also, he will be liable for our attorney's fees and costs if he's found liable, and I can't find a better stack of beautiful evidence against him.

We litigated against a photographer against a similar act, and a federal jury gave us $245,000 in damages, plus legal costs and attorney's fees. You can click here to see the jury's verdict.

I thank the forum administrator for taking this thread down. Now I am asking a favor. If you received any version of his software, we are working on some type of "reward" from the proceeds for the evidence that we get from you to take this to prosecution. We'll need:

1) any copies of emails you have received from this photographer regarding the album software, any specifications he has claimed and MOST importantly, if you actually have received the software, PLEASE forward me the emails especially with the date that you received it.

2) any copies of software that were emailed to you. If you could forward it to me, I will forward it to my attorney. Each version that you receive we will include you in a reimbursement from our proceeds of the legal action.

Please email to "escalate@garyfong.com"

Mostly what he assumes is that just because he gave it away free, that he isn't liable for damages. He is dead wrong. To understand what he has done, click on this link.

And here is what we will be seeking in court, triple damages for all of our loss in sales, the legal costs of an injunction, as well as legal costs of prosecuting our claim. I also want to add that under the new bankruptcy laws, we can attach assets and wages until the judgement is paid in full, which in some cases can last a lifetime. CLICK HERE to see what the law allows us to collect

What he has done is very very serious, and it is important to understand that just because you assume that something isn't against the law doesn't make it true. Think carefully before you act, and seek legal advice before knocking off somebody's product. The actions you take may be very serious.

Thank you in advance for all your help.

Gary Fong,
President, Gary Fong Inc.

[AjP]

it is really sad when things like this happen and also so sad that you appearance on our wonderful forum cause by this bad event and not because we have great group of photographer here.

[GARY FONG INC]

AJP - looks like a nice community. I have great memories of Texas since I've taught at Texas Schools twice - and had SO much fun there.

Mostly I want to thank the members of this forum that contacted me directly and told me about it. This is why I signed up.

I remember once when I was teaching in Dallas, a photographer stole my Canon camera, and man I got it back fast. Jay Young did a lot of detective work, and got my camera back. He went around and found all the witnesses that saw who took it, and anyway he got my camera back. When I said thank you SO much he just said, "don't mess with Texas". :)

[LoungeLizard]

The photographers in this forum are very aware of copyright protection and also of intellectual property protection. I think if you stay around, you'll see plenty of examples of that.

[Ray]

Wow, your reputation precedes you.

[Holly]

Welcome to the group Gary. I am sorry about the current trouble, but good to see you around anyway. :)

[Abel]

Gary, I know the circumstances that led you to us to begin with are very unfortunate... for that I apologize...

...and to build on what AJP mentioned, we have a great diverse group of photogs here from all over Texas and some from other states and countries as well! We just refer them as being from "West Texas" and/or "East Texas" respectively... hehe

So with that being said... I'd like to say.... Welcome "Gary from West Texas".... We're glad to have ya!

[Shane]

Welcome to the site Gary . . . I hope you will stick around long enough to see the talent that abounds on this board.

[awsilver]

I'm a little confused by this whole thing...since I would think the copyright would be for the algorithm and not on the layout of images on page (or we are ALL in trouble) -- not sure what the grounds would be and how copyright would be infringed. So if someone lays out photos by hand and it happens to be similar to what the "Power Console" produces then someone is going to get sued? I doubt it, but it begs to be answered - since I would think the real play here is to sue Adobe for including a scripting engine inside Photoshop that allows the end user to replicate "Power Console".

Sounds to me like trying to copyright ones and zeros. I'll be interested to see how this turns out, since if its found to be copyright infringement, I'm submitting copyright on using layers to manipulate images!

Curious...
AW

[jeffkohn]

Well I have no idea what thread or sequence of events sparked this whole issue, so I'm going strictly off the comments excerpted above. But I sure hope you're not asserting that anybody using Photoshop actions to automate the process of creating album pages is infringing your copyright... to me that sounds about as silly as the guy who got a patent for "multimedia software" and thought he could sue every software company that had ever published sound/video content on CDROM's.

It also looks like the verdict you linked to is a completely different situation.

[GARY FONG INC]

No, it isn't copyright infringement, it is trademark infringement of the "Power Console". Copyright and trademark infringement are two totally different things.

For a great education on the difference, please go to my original post and click on the links that I referred to. It explains the difference.

[jeffkohn]

Originally Posted by awsilver

I'm a little confused by this whole thing...since I would think the copyright would be for the algorithm and not on the layout of images on page (or we are ALL in trouble) -- not sure what the grounds would be and how copyright would be infringed. So if someone lays out photos by hand and it happens to be similar to what the "Power Console" produces then someone is going to get sued? I doubt it, but it begs to be answered - since I would think the real play here is to sue Adobe for including a scripting engine inside Photoshop that allows the end user to replicate "Power Console".

Sounds to me like trying to copyright ones and zeros. I'll be interested to see how this turns out, since if its found to be copyright infringement, I'm submitting copyright on using layers to manipulate images!

Curious...
AW

You cannot copyright an idea, nor can you copyright a whole software/product category. In fact you can't even copyright a "look and feel". To infringe copyright you would have to actually copy/use the actual content/implementation: ie source code, graphic content (icons, images), or textual content.

In some cases you may be able to get a patent for a specific idea, but that is a different situation (and frankly, some of the stuff the govt has handed out patents for in the tech industry over the last decade or two is just absolutely absurd).

[jeffkohn]

Originally Posted by GARY FONG INC

No, it isn't copyright infringement, it is trademark infringement of the "Power Console". Copyright and trademark infringement are two totally different things.

For a great education on the difference, please go to my original post and click on the links that I referred to. It explains the difference.

Like I said, all I have to go on is the info you've provided above since the original thread is apparently gone. Did he call his product "Power Console"? If so I agree that was pretty stupid and you have a case there. But if all he did was release some PS actions that function similarly to how your product functions I really don't see how that would be a trademark infringement.

[GARY FONG INC]

I'll do a post explaining what is going on at my blog:

http://www.xanga.com/garyfong1

[awsilver]

Your basically going after him for copying your UI and naming, and assuming you trademarked the term "autodrop" as well...so really has nothing to do with the actual scripting at all then, makes a lot more sense now.