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April 3rd, 2014

In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed

©Kristina Hill

©Kristina Hill

A federal court in Colorado has ruled that the unauthorized use of a gay couple’s engagement photo in a political attack ad was protected by the First Amendment. But the judge in the case rejected a request by defendants to throw out the photographer’s copyright infringement claims on fair use grounds.

Photographer Kristina Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued conservative advocacy group Public Advocate of the United States (PAUS) in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political attack ads.

The ads, showing an image by Hill of Edwards and Privitere kissing each other, were part of a PAUS campaign to defeat two Colorado lawmakers who supported same-sex marriage.

Hill sued for copyright infringement because PAUS used the photo without her permission. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and Colorado’s right-of-publicity laws.

gay-attack-adBut the court has thrown out the couple’s misappropriation claims on the grounds that the political ads were “primarily non-commercial,” and that they “reasonably relate to a legitimate matter of public concern”–same-sex marriage. Therefore, free speech rights of the First Amendment barred the couple’s misappropriation claim, federal judge Wiley Y. Daniel wrote in the decision.

However, Judge Daniel rejected a motion by PAUS to dismiss Hill’s copyright infringement on fair use grounds, ruling that the ads didn’t pass the standard four-pronged test for fair use.

The first factor, relating to the character and purpose of the unauthorized use,  went against the defendants for two reasons. Language of the copyright law protecting unauthorized use for educational purposes “suggests that the educational purposes contemplated by the statute’s drafters relates to schooling, not mailers circulated during an election,” the judge wrote.

Furthermore, he explained in his decision, “while the defendants placed the lifted portion [of the image] in a different background and placed a caption on the mailer, such actions cannot be characterized as ‘highly
transformative.’”

Other prongs of the fair use test also went against the defendants. For instance, the image is a creative work, not merely informational, which mitigated against a fair use finding, Judge Daniel said. And he rejected the defendants’ argument that they used only used a small part of Hill’s image, countering that they used the qualitatively most significant part, which shows the subjects kissing.

“I find that the plaintiffs have stated a plausible copyright infringement claim under the Copyright Act,” the judge concluded.

The ruling allows Hill to proceed with her copyright infringement claims, and was not a final decision on those claims.

A trial date has been set for January 26, 2015.

Related:
Anti-Gay Group Sued for Unauthorized Use of Photo in Attack Ads

Anti-Gay Group Pleads Fair Use, Free Speech in Infringement Case

March 28th, 2014

Court Reminds Michael Kenna: Copyright Protects Expression, Not Ideas

A ruling in a copyright infringement case involving photographer Michael Kenna has affirmed the principle that copyright does not protect ideas (or choice of subject matter). It protects only the expression of an idea.

That’s true under copyright law in the US, as well as in Korea, where a gallery representing Kenna sued Korea Air on Kenna’s behalf, according to a report in The Korea Times. The claim was that a photograph of South Korea’s Seok Island that appeared in ads around 2010 for Korea Air copied an image that Kenna shot of that island in 2007.

The Korea Times says that in rejecting the copyright claim, the court said: “When the subject is identical, it is the matter of preference of a photographer in deciding when, where and how to shoot. They are just two different ideas which can’t be protected by copyright law.”

The newspaper noted that the Korea Air photo was in color, while Kenna’s image was in black and white. Regarding the similarities in composition in both photos, a photographer quoted in the Korean Times article notes that there are few vantage points from which the islands can be photographed.

Related:
Infringement Claim Fails Because Law Protects Expression, Not Ideas
In Court, Copycats Prove Elusive (subscription required)

March 27th, 2014

PDN’s 30 Photographers Provide Career Tips to Aspiring Photographers

pdn30-2014-sva-blog2
A panel featuring three of this year’s PDN’s 30 photographers discussed strategies for building a successful career and offered a wealth of useful tips to an audience of students and industry professionals at the School of Visual Arts theater in New York last evening.

The PDN’s 30 photographers, Bobby Doherty (still life), Billy Kidd (fashion), and Bryan Derballa (editorial/lifestyle), discussed how they found their visual styles, how they use social media to get noticed, build networks and land jobs, and the importance of learning and practicing good business skills. Photographer Tony Gale, a Sony Artisan of Imagery who has taught photography, and photo editor Emily Shornick of The Cut at New York magazine, also provided insights on navigating the industry. The evening was sponsored by Sony, Offset, Canson Paper and ASMP.

Describing how they launched their careers, Doherty, Kidd and Derballa all said they developed their visual styles by shooting whatever interested them a lot–even obsessively.

“It’s important to be making the kind of photos you would want to get paid to do, before you get paid to do it,” Doherty said.

Bobby Doherty's early makeshift studio.

Bobby Doherty’s early makeshift studio.

A 2011 graduate of SVA, he started by experimenting with conceptual still life work in his apartment at night. “I didn’t have any money. I had two flashes, and [bar] stools” and broom handles that served as stands (shown at right). Doherty says he was focusing on “how to accomplish an idea with as little as possible, technically.”

Kidd says when he moved from Arizona to New York, he did test shoots with models four, five, or six times a week–”whatever I could do,” he says. “I experimented with light, to find out who I was.”

Shornick emphasized the importance of developing a distinctive personal style. When it comes to hiring a photographer, she said, “”I don’t want to be surprised. I want to pre-visualize” what a photographer will deliver.

One of the biggest challenges for photographers is getting noticed. All the photographers on the panel said they take as much pleasure in sharing their work as they do in shooting it, and they use social media–particularly Tumblr–to build audiences.

Kidd said he posted images from his test shoots on a Tumblr blog. “That’s how my rep found me–from my Tumblr page,” he says. On his Tumblr page, he says, he posts “everything I shoot, and want to show people.”

“Be liberal and fun with your Tumblr,” advised Derballa. Years ago he started Lovebryan, a blog that features not only his work, but that of several other photographers whose work he likes. Derballa also noted that he uses Tumblr “to follow trends” by looking at what other photographers are shooting.

Panelists also discussed the importance of personal connections and face-to-face networking. Doherty says working as an assistant eventually led to a job with Lucas Michael, who shoots for New York Magazine. That led to a meeting with Director of Photography Jody Quon, and a couple of weeks later, Doherty had his first assignment from the magazine.

Kidd says he got access to models for test shoots through a friend who worked for modeling agencies. Derballa got his first assignment from The Wall Street Journal after a chance meeting with former photo editor Matthew Craig while Derballa was talking about a self-funded assignment at a bar with another photographer.

The discussion also turned to business practices, particularly the importance of good communication skills, dependability, and presenting a professional appearance in your emails and invoices.

Here are some tips the panelists offered:

On networking:

Connect with everyone you can while still in school, including teachers, fellow photography students, and students in other departments.

Attend industry events and meet everyone you can, without thinking: Who can I talk to who can give me work?

If you’re shy, and feel uncomfortable schmoozing at events, force yourself to go with a goal of meeting just one person. Those connections multiply, Gale said. “Then you’re the person who everyone wants to meet because you can introduce them to other people.”

On assisting:

Be an assistant. By assisting, Gale explained, you connect to people and resources, “and you learn so many things it’s not possible to learn in school” about technique and business.

To get assisting jobs, a good attitude is more important than technical know-how, Gale said. “What I need is someone who is going to be paying attention, and not be upset that I said ‘everybody is going to need coffee’ or ‘sorry, but you have to stand out in rain and watch the gear.’”

When you send e-mails asking about work as an assistant, personalize them, Gale advised. “Don’t send an e-mail addressed to 30 other photographers.” And don’t talk about what a great photographer you are, he said. “I don’t care.”

On approaching photo editors:

“Email with a link. That makes it easy to bookmark you,” Shornick said. Mailers just get thrown in a drawer and forgotten. Email “every now and then” about a recent assignment or new personal work, she added. “Quarterly is a good approach.”

No cold calls. “I’m really busy, I just don’t have time,” Shornick said.

Don’t show up unannounced. “That’s really inappropriate.”

Make sure your web site loads fast, and is free of bells and whistles. “I hate Flash websites. I just want to see your work,” said Shornick, who has discovered photographers at portfolio reviews and through Flickr.

Provide multiple contacts and Indicate your physical location. “If I can’t figure out where you live I’m never going to hire you,” Shornick said.

On providing good service to clients:

Be dependable. “The most important thing is [meeting] deadlines,” Shornick said.

Be responsive. “I always pick up [phone calls]. It’s probably someone who wants to hire you, or wants to know why the photos aren’t there,” Derballa said.
“Yeah, pick up the phone,” Shornick said, or she’ll just call another photographer.

Related article:

PDN’s 30 2014: New and Emerging Photographers to Watch

9 Tips for Getting Hired (and Re-Hired) as a Photographer’s Assistant

March 12th, 2014

Model Release Lawsuit Survives Getty’s Challenge

A New York state judge has cleared the way for a lawsuit by a model who is accusing Getty Images of commercial use of her likeness without a model release.

State supreme court judge Ancil C. Singh rejected last week a request from Getty to throw out model Avril Nolan’s claim on First Amendment and other grounds.

Nolan sued Getty last September after her picture appeared in a public service ad promoting services for HIV-positive people. The ad, published in a free daily called AM NY, showed a picture of Nolan with the headline “I am positive (+) and I have rights.”

The ad was placed by the New York State Division of Human Rights, which licensed the image of Nolan from Getty. The photograph was shot by Getty contributor Jena Cumbo, according to court documents.

Nolan alleges that she didn’t sign a model release for the image, so Getty was in violation of New York’s right of publicity law not only for licensing the image for use in the HIV ad, but also for displaying the image on its web site.

New York state law prohibits use of a person’s likeness for advertising or trade purposes without written consent, i.e., a model release.

Getty countered in its motion for dismissal that displaying the images on its web site for licensing to third parties does not constitute advertising or trade use under the state’s right of publicity law. The agency also claimed a First Amendment right to display images for license to third parties. And it argued that Nolan should sue the State of New York, not Getty, since it was the state that used the image for advertising purposes, allegedly without consent.

But the judge concluded that Getty’s defenses are questions for a jury to decide.

The ruling was against Getty’s motion to dismiss the lawsuit, and not a ruling on the merits of Nolan’s claims.

March 10th, 2014

Commercial Drones Are Legal, Federal Court Says

A federal administrative court judge has determined that drones–aka unmanned aerial vehicles, or UAVs–can be used for commercial purposes because the Federal Aviation Administration has no regulations on the books that prohibit such uses.

Vice.com reported that the judge made the ruling last week in a case involving a photographer who had appealed a $10,000 fine for using a drone to shoot a video commercial, allegedly in violation of FAA rules.

The FAA immediately appealed, explaining in a statement that it “is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

The FAA had fined photographer Raphael Pirker for unauthorized commercial use of a drone in 2011, after Pirker had used a remotely-controlled aircraft to produce a video commercial for the University of Virginia. Pirker had piloted the aircraft in the vicinity of the university, located in Charlottesville, Virginia.

Pirker, owner of UAV video production company Team Black Sheep, won his appeal of the fine on the grounds that a drone is in the same class of aircraft as model airplanes, which the FAA has never regulated. (The FAA has asked model airplane operators to fly the planes under 400 feet, and to stay away from airports, but those rules are strictly voluntary.)

The administrative court ruling means that photographers can use drones for commercial purposes, at least for now. But with the FAA opposed to unregulated use of drone aircraft in the US, it’s a safe bet that the agency will try to impose new administrative rules–or seek legislation–to restrict the use of drones in the near future.

Related:
Hartford Police Sued for Stopping Camera Drone, Chasing Photog Away

December 5th, 2013

Barter, Creative Collaboration Pay Off for Photog Mark Mann and Custom Tailor Lord Willy’s

A collaboration between photographer Mark Mann and men's custom tailor Lord Willy's, with art direction and styling by the brand's co-owner, Alex Wilcox. Wilcox (right) is pictured here with a client. It's also his head on the wall.

A collaboration between photographer Mark Mann and men’s custom tailor Lord Willy’s, with art direction and styling by the brand’s co-owner, Alex Wilcox. Wilcox (right) is pictured here with a client. It’s also his head on the wall.

“It’s such a joy to work with an art director who’s also the client,” says Mark Mann, the photographer behind a series of images currently gracing the walls and website of Lord Willy’s, a men’s custom tailor in New York’s Nolita neighborhood. (more…)

November 19th, 2013

PDN Video: Tips for Directing Kids on Advertising Shoots

Photographer Bil Zelman on How to Photograph Kids for Advertising Campaigns from PDNOnline on Vimeo.

Photographer Bil Zelman explains how he used psychology (and magic) to get emotionally genuine performances from kids for two recent advertising shoots. Zelman specializes in shooting lifestyle advertising for top brands such as Coke, Apple and Budweiser that looks real, not staged. In a previous video, he shared tips and tricks he uses to coax natural performances from adults. He also explained why he prefers non-professional talent, and how he scouts that talent for his shoots. (Check back tomorrow for another video featuring Zelman explaining how he handled two difficult celebrity portrait shoots.)

Related:
PDN Video: Bil Zelman on How to Shoot Ads that Look Real (Not Staged)
PPE 2013: Tips for Shooting Ads That Viewers Believe and Clients Like
A Hands-Off Approach to Real People Shoots

November 18th, 2013

PDN Video: Bil Zelman on How to Shoot Ads That Look Real (Not Staged)

Photographer Bil Zelman specializes in shooting lifestyle advertising for top brands such as Coke, Apple and Budweiser that looks real, not staged. Getting natural, emotionally genuine performances out of talent is one of the biggest challenges for advertising photographers, but Zelman has spent his career honing his skill. In this video, he describes how he saved one shoot that was spiraling out of control, and he shares some tips and tricks he uses to coax the performances he’s looking for.

Photographer Bil Zelman: How to Get Genuine Emotion from Non-Professional Talent from PDNOnline on Vimeo.

 

Zelman uses non-professional talent almost exclusively. He explains, “They don’t know what’s expected of them. Usually they show up a little bit nervous and it’s easier for me to relax them, rather than pro talent that shows up feeling like they’re going to act it out. I hate acting. that’s the bottom line.

“You know, people are laughing in [advertising] scenes all over the place, and so good talent will simply guffaw the entire time, and it looks so fake. So I would much rather have somebody uncomfortable in front of the camera, and then do something stupid to make them laugh, than hire somebody’s who’s basically a somewhat attractive professional laugher.

“Whatever city we’re flying to, I’ll fly my casting director (Heather Smith) there ahead of time and she’ll go to bars, and Craigslist, and hit all the social media and we’ll just find people. if I need bikers she goes to motorcycle gangs and if I need twenty five-year-old college kids she goes to the colleges, not to talent agencies.

“I try to go to casting calls whenever possible. Depending on the mood of our desired performance I might yell at [the people answering the casting call] or throw something at them. I’ll see if they can cry, [and see] what their eyes do when they genuinely laugh verses faking it with just their mouth. Perhaps I’ll ask them to dance with no music going. It all depends on the job but I’m looking hard to flush out any overacting, self-consciousness or catolog-like contrapposto or gestures and such.

“I’m often looking for big, extroverted personalities as well- A person who you can throw into a group of strangers and get them all roiled up regardless of the fact that it might be 6 am.”

Related:
PPE 2013: Tips for Shooting Ads That Viewers Believe And Clients Like
A Hands-Off Approach to Real People Shoots

November 6th, 2013

PDNVideo: Olivia Bee Talks About Instagram, iPhones, Expectations, and Envy

PDN Video: Olivia Bee on Instagram, iPhones, Expectations, and Envy from PDNOnline on Vimeo.

PDN’s 30 photographer Olivia Bee started her professional career at the age of 15, after a Converse design director saw her Flickr feed and hired her to shoot a campaign in the same style as her personal work. Bee is self-taught and highly driven. Now 19, she has shot editorial and advertising work for clients including The New York Times, Vice, Hermes, Fiat USA, and Levis. She recently sat down with PDN to talk about a variety of topics, ranging from her skepticism about Instagram and what she’s learned by shooting with an iPhone, to how she manages expectations (her own and everyone else’s) and the reaction she gets from other photographers because of her success at such an early age.

Related:
PDN’s 30: Olivia Bee

October 28th, 2013

PPE 2013: Tips for Shooting Ads That Viewers Believe and Clients Like

Facing an increasingly media-savvy audience who tend to “ignore advertising completely or don’t believe it,” said PDN senior editor Conor Risch, advertising clients are clamoring for campaigns that look believable and “authentic.” At the PhotoPlus Expo panel “How to Make Advertising that Doesn’t Look Like Advertising,” photographers Olivia Bee, Christa Renee and Bil Zelman shared a wealth of tips on everything from casting real people to managing client expectations to their techniques for post-production in order to create ads that look natural and spontaneous.  They also explained why, when photographing real people, they are not so much directing the talent as they are misdirecting them.

“I like to keep the talent in the dark,” said Zelman, who doesn’t explain to his models what he needs to photograph. “If they don’t know what I’m looking for, they can’t fake it for me.”  Renee said, “I’m telling them stupid things and they’re so confused, it’s after that that I shoot.” She often tells talent she needs them to run around: “People are better to shoot when they’re tired,” she said. Renee said she never lets the talent see the shots on the monitor, and will block it off with foamcore panels if needed.

Zelman showed an image from a Bud Light campaign in which he photographed several people clowning in the snow. It was a particularly awkward shoot, he said: None of the talent who were supposed to act like friends knew each other, and a snow machine had to be brought in to fake the snow. At one point, he had his assistant pelt the talent with potatoes. They turned to the camera and laughed in surprise. Zelman explained, “I have many things to get reaction, and one is I bring potatoes.” Bee added, “Shitty, loud music is good to get people moving and laughing.”

Bee, whose personal work photographing her teenage friends landed her jobs from Converse, Fiat USA and other ad clients, says her goal is to recreate a similarly friendly and relaxed atmosphere on set even when she’s working with professional models. “If you can recreate that atmosphere and be a fly on the wall, I think you’ll get the same pictures. They won’t be as special but it’ll be close.” She and the other photographers try to bond with the talent before the shoot.

The photographers said that  the subjects feel more at ease without the clients hovering. Zelman said, “Not every client is comfortable handing you a big bag of money and then leaving the room.” He recommends giving the client a detailed treatment that explains why a closed set will produce better photos. Renee said she offers to set clients up in a separate room with iPads so they can preview the shots from a distance.

All the photographers said that when it comes to finding energetic, charismatic talent, video casting works better than looking through head shots.  Said Bee, “I ask them questions like: ‘What’s your favorite thing to do?’ And, ‘Have you ever been in love?’ to see the sparkle in their eye.” Zelman noted, “It’s important to have a couple of extroverts, because I know that if I give them a little caffeine they’ll lift the energy of the group.” When a shoot calls for a couple  or a family, the photographers strive to hire people who are married or related in real life. Zelman said that on a shoot for Microsoft,  he hired a band to play during a party scene, then photographed the fans who showed up. (“I had some hero talent sprinkled throughout,” he explained.)

While Bee prefers to shoot in natural light, Zelman said, “I like the paparazzi flash. I’ll take a real, touching moment in crappy lighting over a fake moment with blank faces in beautiful light.” Renee said she’s often shooting libraries of images that call for both interiors and exteriors, so she relies on lighting to give the images a consistent look—and, at times, compensate for bad weather on location.  She’ll light a large area in which the talent can move. Her budgets don’t often allow her to use continuous lights, so instead, “I use a lot of broad sources,” she says. When photographing kids, popping strobes can be distracting. “You just have to get them to the point where they’re focused on your little dance, not on the lights.”

The photographers keep retouching to a minimum. Zelman often adds grain during post, to compensate for the crisp perfection of modern digital cameras, but tries to follow a five-minute rule: “If I have to work on it for more than five minutes, I picked the wrong picture.”

And how did these photographers land so many advertising assignments? By constantly shooting personal work and then sharing it. “I try to shoot as much as possible when I’m not working,” says Renee. “I think you have to be constantly shooting and put your work on the internet across all social platforms,” said Bee. “Promote the shit out of yourself. No one else is going to do it for you. “