©Thomas Barbèy. “Rhinal Congestion”

Muench Photography and Mountain Light Photography have filed a copyright infringement claim against a Las Vegas-based photomontage artist for unauthorized use of two of their photographs.

The artist, Thomas Barbèy, creates surrealistic photomontages. According to his Tumblr page, he uses  images that he shoots on his travels all over the world. He claims inspiration from René Magritte, M.C. Escher, and Roger Dean, and says, “I’m constantly asked about how I do [the montages], I would like to think that the pictures can be appreciated without any real knowledge of their technical virtuosity. The visionary inspiration and imagination is not a technical skill learned in school but rather to my personal belief a gift from God.”

And theft of other people’s photographs, allegedly.

©Muench Photography. “El Capitan in Winter, Yosemite National Park”

“He claimed he took all of these images himself, and he clearly doesn’t,” says Marc Muench, one of the plaintiffs, who is suing Barbèy in a federal court in Los Angeles.

“The claims in this lawsuit have no merit whatsoever,” says Barbèy’s attorney, Charles Harder.

According to the lawsuit, Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape) using an image by Muench called “El Capitan in Winter, Yosemite National Park.” Muench’s image appeared in 1993 in a book called National Parks of America (Graphic Arts Center Publishing Company). He also registered the image with the US Copyright Office that same year.

The lawsuit also alleges that Barbèy used a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” Rowell’s “Quadruple Falls” image was first published in 1997. Mountain Light registered the image with the US Copyright Office in 2009.

Barbèy sells his prints through his own gallery in Hawaii, as well as through an online retailer called Artifacts Gallery. “Pitcher Books” and “Rhinal Congestion” are priced at $1500 each on the Artifacts Gallery Web site.

Charles Harder says that his client’s use of the Muench and Mountain Light images is protected by “the legal doctrine of transformative use, as well as the doctrines of fair use and de minimis use.” The lawsuit tries to pre-empt a fair use defense by saying that Barbèy’s images do not “criticize, comment on, or otherwise refer the viewer to” the Muench  and Mountain Light photographs.

©Thomas Barbèy. “Pitcher Books”

Harder also says that the statute of limitations applies in this case. He is suggesting, in other words, that Muench and Mountain Light didn’t bring their claim to court soon enough, so it will be dismissed.

Harder says there were “very minimal sale of the works at issue, so even if there was liability (which there is not), damages would be nominal.”

That might be the case for the Mountain Light image, which was registered after the alleged infringement, making Mountain Light eligible for actual damages only. But the Muench image was registered prior to the alleged infringement. So if a court holds Barbèy liable for infringement, Muench would be eligible for statutory damages.

Mountain Light’s operations manager was not immediately available for comment.

©Mountain Light Photography. “Quadruple Falls at Dawn, Glacier National Park, Montana”


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