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August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor’s note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

August 19th, 2014

Getty Images Photographer Arrested While Covering Ferguson Protests

Getty Images photographer Scott Olson was arrested yesterday while on assignment in Ferguson, Missouri, where protests and clashes with police continue after the police shooting of a African-American teenager more than a week ago. Oslon has since been released, according to a Yahoo News report.

Getty confirmed his arrest in a statement today from Pancho Bernasconi, VP, News at the agency. “We strongly object to [Olson's] arrest and are committed to ensuring he is able to resume his important work of capturing some of the most iconic images of this news story,” Bernasconi said in the statement.

The protests started in response to the shooting death of Michael Brown, Jr., an unarmed African American teenager, by a white police officer. Police have cracked down hard on the protesters, drawing strong criticism for violation of the protesters’ civil rights, and attracting intense national media coverage.

Olson has been covering the story for several days. A gallery of his images from Ferguson, along with a photograph of police placing him under arrest, has been posted by The Guardian.

According to the Yahoo News report, Olson was one of several journalists among 31 people who were arrested yesterday. At least two other journalists–Wesley Lowery of the Washington Post and Ryan Reilly of Huffington Post–were detained previously. Bot were later released. Lowrey had been recording police with a video camera shortly before his arrest.

August 14th, 2014

Philly Paper Swaps Ferguson Riot Photo: Did It Do the Right Thing?

Reading a Philadelphia Magazine report about the decision by editors at the Philadelphia Daily News to change a cover photo in response to some outrage on social media left us wondering:  Did photo editors at the Philadelphia Daily News change their minds because they thought they’d made a mistake? Or did they change their minds to avoid controversy and public outcry?

philly DN covers_555

The Philadelphia Daily News cover in question (above, left) featured a photo from Ferguson, Missouri that showed a protestor about to hurl a burning Molotov cocktail gas canister at police. Protests began in Ferguson over the weekend, after police shot and killed an unarmed black teenager, Michael Brown. The protests began peacefully, and have remained mostly peaceful, but some violence and looting have erupted, and police have been widely criticized for their iron-fisted and highly militarized response to all protestors.

Against that backdrop, the Daily News published a cover photo of a protestor with the Molotov cocktail burning canister over the headline, “Hell Breaks Loose.” The photo drew immediate and harsh criticism on Twitter: Readers said the image could be taken to suggest that the (mostly white) police response was justified because the (mostly black) protestors were being so violent. In response the Daily News put out another edition of the paper with a different photo.

The second cover photo shows a distraught-looking female protestor, holding up a sign demanding answers from police about the shooting of Michael Brown. Police in riot gear can be seen lined up behind the protestor. The Daily News did not change the headline.

And that leads to some larger questions about photo editing in the social media age: Should editors show deference to the instant opinions on Twittering readers, on the theory that input from the public leads to more informed picture choices? Or does deference to the instant opinions on social media undermine photo editors by encouraging readers to constantly demand changes and retractions on coverage of controversial or sensitive topics?

Philadelphia Magazine published Tweets from Daily News readers, followed by a Tweet from a Daily News senior writer who wrote, “Based on reader reaction we’re changing our front page image — so we actually do listen.” That was followed by a Tweet from Daily News assistant city editor David Lee Preston that said: “Big takeaway from tonight should be that a bunch of pros with hearts & souls inhabit this newsroom.”

But it remains unclear why the Daily News changed the cover photo: Did they think they’d made a mistake? Or were they simply bowing to pressure from some angry readers?

Regardless of their motives, we throw open the floor to PDN readers: Did the Daily News make a mistake publishing the Molotov cocktail-throwing protestor? Should the paper have changed the cover photo? Should photo editors let social media reaction influence their decisions, and if so, to what extent?

Note: Earlier version of this story described the burning object in the protester’s hand as a “Molotov cocktail.” Readers noted it was a burning gas canister. We changed it.  In this case, we listened to readers on social media, too.

August 14th, 2014

Judge Upholds $1.2 Million Verdict in Morel v. AFP Copyright Case

A federal judge has upheld a $1.2 million jury award in favor of photographer Daniel Morel, after determining that there was sufficient evidence presented at the trial last year to support the verdict.

Morel won $1.2 million in damages after a federal jury determined that Getty and AFP willfully violated his copyrights by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included an additional $20,000 damages for violations of the Digital Millennium Copyright Act.

Getty and AFP had appealed the $1.2 million award on the grounds that there was not enough evidence presented at the trial to establish willful copyright infringement. They had asked the court to vacate the jury’s finding of willful infringement, reduce the award to Morel, or grant a new trial.

A federal judge rejected the appeal.

“There was evidence from which the jury could have concluded that the defendant’s infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders,” US District Court Judge Alison Nathan wrote in a decision handed down yesterday. She added, “In light of all the consideration that the jury was entitled to consider, [reduction] of the $1.2 million statutory damages award is not required.

“The evidence was plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory,” Nathan said. She said the evidence for willfulness on Getty’s part was “somewhat thin” in comparison to the evidence against AFP. But she went on to say that the evidence of Getty’s willfulness “was sufficient to support the jury’s verdict.”

Morel had uploaded his images to Twitter, offering to license them to news outlets. The images were stolen and re-distributed by another Twitter account holder. Judge Nathan cited evidence presented at trial that Vincent Amalvy, AFP’s  Director of Photography for the Americas,  knew or should have known that the images were actually Morel’s, and that AFP didn’t have permission to distribute them.

The evidence against Getty for willful infringement was that it left Morel’s images on its web site under a false credit for more than two weeks after AFP sent a “kill notice” telling Getty to remove the images.

The award was the maximum amount of statutory damages possible under the law.

AFP and Getty had asked the court to reduce the $1.2 million award on the grounds that it was based on a “speculative” figure of actual damages amounting to $275,000 in lost sales. Judge Nathan said that on the basis of actual downloads (1,000 or more) of the image and sale prices, the actual damage estimate was reasonable. But she went on to say that juries aren’t required in any case to base statutory awards on actual damage estimates.

She also rejected arguments that the $1.2 million statutory award was “instinsically excessive.” Noting that courts defer to the prerogative of juries to set damage awards and rarely set them aside unless they “shock the judicial conscience and constitute of denial of justice,” Nathan said AFP’s actions in particular could be seen as “gross disregard for the rights of copyright holders” and let the jury award stand.

At the same time, Nathan upheld a $10,000 jury award against AFP for Digital Millennium Copyright Act (DMCA) violations, while vacating a $10,000 award for DMCA violations against Getty.

The DMCA makes it unlawful to intentionally remove or alter copyright management information, or to knowingly provide or distribute false copyright management information with intent to conceal infringement.

Evidence presented at trial showed that Vincent Amalvy, the AFP Director of Photography, knew that Morel’s images were falsely credited to another Twitter user, but  distributed the pictures with the false credit anyway, Judge Nathan wrote in her decision.

Getty violated the DMCA by continuing to distribute the images under a false credit, after receiving notice from AFP to remove the images, the judge said. But Getty was not liable under a DMCA provision for distributing the images with knowledge before the fact that the image credits had been illegally altered.

Related Articles:

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

August 6th, 2014

That Monkey Selfie: Who Owns The Copyright to It?

Wikimedia Commons and photographer David Slater appear to be headed for court over who owns the rights to a selfie shot by a macaque monkey that grabbed Slater’s camera. The photo went viral last week.

The Telegraph now reports that Wikimedia, a collection of 22 million public domain images, has refused Slater’s demand to remove the photo from its web site. Slater is preparing to sue, the newspaper says.

Wikimedia’s legal defense, effectively outlined in the caption it reportedly posted with the photo, is that the author of a photo owns copyright, not the camera owner;  that only people can own copyright, and monkeys aren’t people; therefore, the photo in question is ineligible for copyright by anyone, so it’s in the public domain.

This is the kind of copyright case we were never expecting to see. But now we’re wondering: if corporations have the rights of persons, why not monkeys? Are there any armchair attorneys out there who want to make a copyright argument on the monkey’s behalf?

August 4th, 2014

In Image Library for American Airlines, Erik Almås Discovers His Other Style

It’s a challenge for photographers to evolve creatively and keep up with the changing tastes and expectations of the market, while maintaining their brand identity. But photographer Erik Almås happened upon a new style while shooting for American Airlines, and he’s now using it to reposition himself.

Over the past 18 months, he has shot a number of assignments for the airline’s print campaigns and corporate image library, photographing everything from interiors to runway and in-flight beauty shots of jets. The shoots included two days with a Boeing 777-200. It was a big deal for the airline to take the plane out of service, Almås says, so he took advantage of it. “I had the camera going whenever I had the chance,” he tells PDN through his rep, Bennie de Grasse at Vaughan Hannigan.

An image for American Airlines' branding campaign. ©Erik Almås

An image for American Airlines branding campaign. ©Erik Almås

The images he produced for AA campaigns are tightly controlled, and reflect the hyper-real style for which he’s known. But while he was re-visiting his AA archive in search of images for his portfolio, he discovered that he had two separate bodies of work: the “studied” work used for the AA branding, and “more random shots” that amounted to unintentional personal work. The latter are quiet, contemplative images that Almås recently described in his blog as “the moment between the moment[s]” that comprise an “alternative narrative” to the campaign images. They were “somewhat unexpected for my style of image making,” he wrote.

He’s been posting those images on his Instagram feed every time he boards a flight to an assignment, which is frequently–he traveled 270 days last year. “Instead of posting the classic pictures of clouds out of the plane window with the wing in the corner on social media I would go through the American Airlines images and post some of those instead,” he tells PDN.

©Erik Almås

©Erik Almås

The process of reviewing his files with Instagram in mind “has brought a great awareness to how I edit,” he says. And Almås and his agent are now capitalizing on his more personal style.

The interest among advertisers in an “amateur” (i.e. “snapshot”) style “is accelerating due to the advancing of smartphone and camera technology,” de Grasse explains in an e-mail. “People are beginning to get used to this look and feel,  which creates a growing need for more images for more platforms.”

Almås adds that clients now expect photographers to shoot motion, behind the scenes images, and social media content–in addition to images for print campaigns. “If I can [let clients know] that I can give them all of this as a content provider I’m in a good place for the changes we already see happening,” he says.

©Erik Almås

©Erik Almås

©Erik Almås

©Erik Almås

July 31st, 2014

Photographer Killed in Israeli Airstrike in Gaza (Update)

Rami Rayan, a photographer with the Palestine Network for Press and Media, was killed July 30 in an air strike by the Israeli Defense Forces in the Shuja’iya neighborhood of Gaza, Reporters Without Borders reports.

Rayan’s network manager told Committee to Protect Journalists (CPJ) that the photographer was covering civilians shopping during what they thought was a four-hour “humanitarian window” ceasefire declared by Israel, but the Israeli military had noted it would not protect Shuja’iya and certain other areas of the city.

According to news reports, the air strike killed at least 16 people and wounded more than 200 others. At the time of the attack, Rayan was wearing a flak jacket and helmet marked “press” according to Reporters without Borders.

Rayan is the third * media worker killed since Israel began its military offensive in Gaza on July 8. Khalid Hamad, a cameraman for The Continue was killed July 20 during shelling in Shuja’iya. Hamdi Shihab, a driver for the Media 24 news agency, was killed July 9 when shells struck his vehicle which was marked “TV.”

(*Update: On July 31, Committee to Protect Journalists reported that Sameh al-Aryan , a camera operator for the al-Aqsa TV channel, run by Hamas, was killed in the same air strike in which Rayan died.)

“Israel is showing little evidence to back its claim that it tries to avoid civilian casualties, including those of journalists, in its assault on Gaza,” Sherif Mansour, Middle East and North Africa Program Coordinator for CPJ, said in a statement.

July 29th, 2014

How Much Do Editorial Clients Pay? “Wiki” Gives Names and Fees

Editorial clients are reluctant to publicize information about rates for photo assignments. But photographers need to know who pays what, in order to figure out which clients are worth shooting for, and to help them negotiate assignment fees.

A Tumblr site called Who Pays Photographers? helps bridge the information gap with a wiki-inspired spreadsheet listing fees paid by numerous publications, both online and in print. The site also provides information about whether the client pays expenses, how long they take to pay, and what photographers like and dislike about the client. All the information is uploaded anonymously by photographers who have shot assignments for the clients.

But users, beware. The spreadsheet, which lists clients more or less in alphabetical order, is disorganized, and a challenge to scroll through (and it can’t be downloaded). The client list is long but not exhaustive, updates are infrequent, and some of the reports are several years old. Moreover, the information provided is unverified.

Still, Who Pays Photographers? can be a useful starting point. Photographer Anastasia Pottinger says she came across it when she was trying to figure out what to charge photo blogs to publish her portraits of centenarians, after the project went viral.

“[The site] gave me a better idea of what to expect.  I had read a few blog posts out there where people were getting $150 per image and maybe that’s true when it’s just one image, but I was not sure what to charge for a whole set of images,” she says. For online publication rights to ten of her images, she says she negotiated a $375 fee from Huffington Post, after Huffington Post asked (as it usually does) to publish the images for free.

The anonymous owner of Who Pays Photographers? said in an email that he (or she?) is a working editorial photographer, with limited time to maintain, improve or promote the site. (The Who Pays Photographers? Twitter feed and archive were last updated in February.) “I welcome input and any help in running” the site, the owner says.  See our earlier Q&A with the owner for more information.

July 28th, 2014

Photographing Police Is Legal in Texas, Too, Judge Rules in First Amendment Case

A federal court judge in Texas has rejected an argument that the right to photograph or videotape police officers “is not recognized as a constitutional right,” clearing the way for a citizen’s civil rights claim against the City of Austin, its police chief, and various Austin police officers.

“The First Amendment protects the right to videotape police officers in the performance of their official duties, subject to reasonable time, place and manner restrictions,” U.S. Magistrate Judge Mark Lane wrote in the decision handed down last week.

The judge also rejected an argument by the defendants that they should be immune from prosecution in the case because the right to photograph police officers performing their duties was not clearly established when they arrested the plaintiff on three separate occasions.

“A robust consensus of circuit courts of appeals that have addressed this issue have concluded that the First Amendment encompasses a right to record public officials as they perform their official duties,” the judge wrote, citing several right-to-record decisions favorable to plaintiffs from around the country.

The plaintiff in the Texas case, Antonio Buehler, was first arrested on January 1, 2012, when he photographed two Austin police officers engaged in a traffic stop in a parking lot. Buehler was refueling his truck nearby when he heard one of the officers yelling, then saw a passenger of the stopped vehicle being “yanked violently” out of the car and thrown to the ground.

Buehler started taking pictures from a distance, and asked the officers why they were abusing the passenger, according to court papers. One of the officers approached Buehler and arrested him for “resisting arrest, search or transportation” after accusing Buehler of spitting on him, according to court documents.

Buehler filed a complaint with the police, but he alleges that no action was taken. He ended up forming an organization called Peaceful Streets Project to help inform people about their rights “and hold law enforcement accountable.” The organization now routinely video records police officers to prevent and document police brutality, according to court papers.

Buehler was subsequently arrested for recording the arrest of a man in downtown Austin on August 26, 2012. He was arrested a third time about a month later, also for video recording police performing their duties. Both times he was charged with Interference with Public Duties.

In response, Buehler sued for violation of his First and Fourteenth Amendment rights. He also alleged false arrest, excessive force, unlawful search and seizure, and malicious prosecution.

In addition to refusing the city’s motion to throw out Buehler’s federal civil rights claims, Judge Lane sustained his claim for false arrest; his claim that the city and its police chief failed to establish a policy, train, and supervise city police officers about the rights of individuals to record police; and his various state law claims.

But the judge dismissed parts of Buehler’s lawsuit, including claims for malicious prosecution and excessive force, because Buehler’s allegations didn’t meet the legal standards required to sustain those claims.

The ruling was not a final decision on the merits of Buehler’s claims. Instead, it cleared the way for Buehler to continue pursuing the surviving claims.

Related:
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

First Amendment Advocate Sues NYPD, NYC Over Right to Record Police Activity
Baltimore to Pay $250K for Videos Deleted by Police: A Vindication for Photographers’ Rights
Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer
NH Town to pay $75K to Settle First Amendment Claim in Traffic Stop Video Case

July 24th, 2014

AP Photographer’s Killer Given Death Sentence in Kabul

Anja Niedringhaus in 2005. ©Associated Press/Peter Dejong

Anja Niedringhaus in 2005. ©Associated Press/Peter Dejong

The Afghan police officer charged with killing Associated Press photographer Anja Niedringhaus and wounding veteran AP correspondent Kathy Gannon last April has been sentenced to death by a panel of judges in Kabul, the Associated Press has reported.

Niedringhaus and Gannon were traveling under the protection of Afghan forces with a convoy of election workers  near the border of Pakistan when the police officer approached them, yelled “Allahu Akbar” — God is Great — and opened fire on them with an AK-47 rifle.

The officer, identified in press reports as Naqibullah, was sentenced Tuesday. His defense attorney argued that he was “not a normal person,” according to the AP report, but judges dismissed that defense when Naqibullah was able to state his correct name, age and the day’s date. Under Afghan law, the verdict is subject to at least two stages of appeals.

Related:
AP Photographer Anja Niedringhaus Killed in Afghanistan