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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

May 7th, 2014

Photo Book Publisher Blurb Gobbles Up Its Biggest Competitor, HP’s MagCloud

The photo book self-publishing landscape has gotten a little bit smaller. Do-it-yourself book publisher Blurb announced yesterday it had purchased its biggest competitor: HP’s MagCloud web-based publishing platform.

BlurbMagCloud differs slightly form Blurb in that it is more of a soft-cover, magazine-style self-publishing platform than than a photo book publisher.

According to a press release from Blurb, MagCloud will become a part of Blurb under a new licensing agreement.

Current MagCloud customers will see no changes to their service for three months. Current and new photo magazine layouts will remain on MagCloud for photographers seeking to print, sell or distribute them. Once that period ends, Blurb expects to move MagCloud users to the Blurb platform.

“Indie magazines are experiencing a bit of a renaissance, and we’re thrilled to welcome MagCloud customers to the Blurb fold,” said Eileen Gittins, Blurb’s founder and CEO.

We’re wondering what readers feel about this news? I reviewed Blurb a few years ago and found it to be very easy to use and reasonably priced service that produced good if somewhat unspectacular results. I’m less familiar with HP’s MagCloud service and I’m wondering whether those users have any trepidations about this merger.

Please leave your thoughts on this self-publishing development in the comments below.

You can read more details about the MagCloud and Blurb merger here.

April 29th, 2014

ICP Celebrates Infinity Award Winners (Recap and Video Links)

Last night the International Center of Photography honored photographers working in photojournalism, fine-art and fashion at the 30th annual Infinity Awards. The awards were inaugurated in 1985 as a way to recognize outstanding achievements by photographers working in various genres within the medium.

It was the first Infinity Awards ceremony for new ICP director Mark Lubell, who promised the crowd that the organization would remain at the “center of the conversation” about the medium. Perhaps as a way to illustrate that point, ICP arranged for a drone to photograph partygoers during the cocktail hour, then put those photographs on-screen at the beginning of the ceremony.

The Cornell Capa Lifetime Achievement Award was given to German-born photographer Jürgen Schadeberg, who as an expatriate in South Africa during Apartheid, made some of the most famous images of Nelson Mandela, and encouraged black South African journalists to pick up cameras and tell their stories.

James Welling was honored for his contribution to fine-art photography; Steven Klein for fashion; Stephanie Sinclair and Jessica Dimmock were honored for photojournalism; Adam Broomberg and Oliver Chanarin were honored for their publication Holy Bible; and Samuel A. James received the Young Photographer award.

Sinclair and Dimmock received a standing ovation from the crowd for their work documenting the practice of child marriage and its effects on adolescent girls, their families and their communities. The project, “Too Young To Wed,” is a decade-long pursuit for Sinclair that has spawned a non-profit that she hopes will help young girls and communities do away with the practice of child marriage.

Samuel A. James, who in his young career has worked extensively in Nigeria documenting the impact of oil extraction on the culture—including photographing the illegal tapping of oil pipelines and makeshift refining operations by impoverished Nigerians—thanked the Nigerians who “gifted me these stories” during a short acceptance speech. James also dedicated the award to a friend who was killed in an explosion while attempting to refine black-market crude oil.

In accepting the Publication award for their book Holy Bible, for which they combined the King James Bible with images from the Archive of Modern Conflict, Broomberg and Chanarin called the book their “attempt to somehow illustrate this text,” and said they hoped it would be an invitation to others to make their own attempts. They also paid tribute to their publisher, Michael Mack for his production of the book, and to the Queen of England, who owns the copyright to the King James Bible.

In a slightly incongruous presentation, pop star Brooke Candy spoke about Steven Klein and introduced a high-octane video that reviewed much of Klein’s work. The fashion photographer briefly thanked the crowd after noting that, “photography pretty much saved my life.”

MediaStorm produced short documentary films about all of the recipients except Klein. Watch those films on the MediaStorm site here.

Related: Tour de Force: James Welling’s Artistic Versatility
Best Photo Books of 2013

February 5th, 2014

Bill Diodato To Auction Collection of 20th Century Master Photo Books

Courtesy of Swann Auction Galleries

Courtesy of Swann Auction Galleries

Since the early Nineties, when commercial photographer Bill Diodato began collecting 20th century photographic literature, he has amassed a collection of 1500 volumes, including first editions and out-of-print books by Irving Penn, Brassai, Bernd and Hilla Becher, Ed Ruscha, Andre Kertesz and other masters. On February 27, Swann Galleries in New York City will be auctioning 250 lots of books from Diodato’s collection. Diodato explains, “It’s a great time to say I got everything I needed out of them. It’s nice to share them with collectors and galleries and institutions.” While the Swann auction contains only the books most likely to fetch high prices, Diodato says, “I’m probably going to donate the other 1,000 books or so I have.”

Diodato says he began collecting photo books as a way to educate himself. He first bought books by the photographers who had the greatest influence on his own fashion and still life photography. “Penn was the biggest influence,” says Diodato. “Horst, Penn and Avedon are my earliest memories of purchasing photographic literature.” But he wanted to learn more and “cultivate my knowledge of photographic history.” He adds, “I set a personal goal to collect

Courtesy of Swann Auction Galleries

Courtesy of Swann Auction Galleries

and know the most influential people in each genre.” While some collectors focus solely on photo books in one specialty or one country, Diodato collected photojournalism, portraiture, still life, conceptual photography.

Over time he acquired—usually through private dealers, gallery owners and Swann Galleries—works by W. Eugene Smith, Alfred Stieglitz, Walker Evans, Aaron Siskind, Bill Brandt, Daido Moriyama, Nobuyoshi Araki, Ed Ruscha, as well as photographers who had influenced them or been inspired by them. “Every time I got into another genre, it opened another door to another genre,” he says.

His purchases included some rare collectibles. He has a first edition of Lewis W. Hine’s Men at Work (Swann set its estimate at $3,000 – $4,500), a first edition of Brassai’s Paris de Nuit (estimate: $3,000 – $4,5000), and a copy of Alexei Brodovich’s Ballet in its clamshell box (estimate: $7,000 – $10,000). He has a copy of Sally Mann’s Immediate Family, which the photographer and her kids, whose photos appear in the book, signed for him. (Diodato’s keeping that volume, he says.) He also acquired prints by many of the artists he admired; some of these will be sold in the Swann auction.

Diodato stopped looking for 20th century master works to buy a few years ago. In 2010 he published his own book, Care of Ward 81. Several fellow photographers bought copies. “It changed my philosophy about collecting books,” he says. “I got a lot of support from other artists. That’s when I got the bug to buy new books.” For example, he recently purchased the latest book by Edward Burtynsky, an artist he admires. Diodato explains, “I want to get back to supporting artists, not chasing elusive books.”

About the 20th century photobooks he’s acquired, Diodato says, “I’m just a custodian now.” Being their custodian means storing them away from light or moisture. “They’re expensive to insure,” he notes. “If there was a fire, it would be a disaster.” Diodato is also a father with young kids. “I started to think: How would I feel if one of the kids tore a page out of Robert Frank’s The Americans?”

Diodato has previously sold books on consignment through photo-eye in Santa Fe. When he decided to let go of the bulk of his collection, he contacted Swann. “We collaborated on assessing values and conditions, and [on] descriptions.”

When those are sold, he’ll have more room in his home, and derive another benefit, too. “I’ll be happy to share them, and they’ll be exposed to the world.”

All photos: Courtesy of Swann Auction Galleries.

January 13th, 2014

Danny Lyon Criticizes Media; Says How He Would Edit National Geographic Magazine

Photojournalist Danny Lyon delivered a sharp critique of the media, explained the main goal of his career, and reminisced about his work on the civil rights movement, motorcycle gangs and Texas prisoners at a rare public appearance last week.

Lyon was the headliner at the 2014 National Geographic Photography Seminar, a day-long event held January 9 before a standing-room-only crowd at the National Geographic offices in Washington, DC.

“I took it for granted that all the magazines lied, and since I chose the media as my field I was determined to create an American media that was truthful,” Lyon said during his talk.

He also imagined himself as editor of National Geographic, and suggested story ideas that would probably rile the magazine’s audience (read on for details).

In addition to Lyon, photographers Tyler Hicks, Wayne Lawrence, David Maisel, Newsha Tavakolian, and Vince Musi lectured about their careers and past projects. Media artist Hasan Elahi also gave a talk about his surveillance project.

Following is an edited transcript of Lyon’s talk.

(more…)

December 16th, 2013

New Elliott Erwitt Book Comes With Hidden Flask of Rare Macallan Whisky

An image from Elliott Erwitt's new book with The Macallan. © Elliott Erwitt/Magnum Photos

An image from Elliott Erwitt’s new book with The Macallan. © Elliott Erwitt/Magnum Photos

Scotch whisky producer The Macallan announced the latest release in its “Masters of Photography” series—a book of photographs Elliott Erwitt made on commission in Scotland. The book, Elliott Erwitt’s Great Scottish Adventure, features 158 images the Magnum photographer made during an open commission to photograph in Scotland.

Erwitt is the fourth photographer to work on “The Macallan Masters of Photography” series; Rankin, Watson and Annie Leibovitz preceded him. (more…)

November 15th, 2013

Paris Photo-Aperture Foundation PhotoBook Award Winners Announced

An interior spread from Karma, photographs by Óscar Monzón (Dalpine, Madrid / RVB Books, Paris) © Óscar Monzón 2013

An interior spread from Karma, photographs by Óscar Monzón (Dalpine, Madrid / RVB Books, Paris) © Óscar Monzón 2013

The winners of the 2013 Paris Photo-Aperture Foundation PhotoBook Awards were announced this evening in Paris.

The self-published book A01 [COD.19.1.1.43] — A27 [S | COD.23] by Rosângela Rennó was named PhotoBook of the Year. The book considers the disappearance due to theft of the material in 27 archival boxes housed in the General Archive of the City of in Rio de Janeiro.

KARMA by Óscar Monzón (RVB Books, Paris / Dalpine, Madrid) is the winner of $10,000 First PhotoBook prize. KARMA is comprised of photographs of automobiles and their drivers made in Madrid between 2009 and 2013. (more…)

November 14th, 2013

Judge Dismisses Authors Guild’s Copyright Lawsuit Against Google

A federal court judge has dismissed a long-standing lawsuit over the Google Books project, ruling that Google’s initiative to scan the contents of millions of books to make them searchable online falls within the bounds of fair use.

Bloomberg Businessweek has reported that Judge Denny Chin has dismissed a lawsuit filed eight years ago by the Authors Guild, which had claimed that Google was violating the copyrights of authors by scanning books without permission. A similar suit against Google, filed by photo trade groups, is still pending.

According to the Businessweek report, Judge Chin wrote in his ruling: “Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

Paul Aiken, executive director of the Authors Guild, told Businessweek: ““In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

The decision doesn’t bode well for a nearly identical lawsuit filed against Google in 2010 by ASMP, the Graphic Artists Guild, the North American Nature Photographers Association, the Picture Agency Council of America, and the Professional Photographers of America. Those organizations want to prevent Google from scanning visual works in books without permission from copyright holders.

They filed suit against Google after Judge Chin refused to allow them to join the Authors Guild lawsuit.

Eugene Mopsik, executive director of ASMP, told PDN that he could not make specific comments about the ASMP claim against Google, which is still pending.

But he said of the dismissal of the Authors Guild lawsuit, “I think that it’s a terrible expansion of fair use [doctrine] to the detriment of individual rights holders.” He added, “I think it will further contribute to abuse of the fair use statute by other businesses. A lot of entities will look at this and say, ‘If Google is allowed to use [copyrighted] works this way, why can’t we?’”

Related:
ASMP, Other Trade Groups Sue Google (subscription required)
APA, NPPA Join copyright Suit Against Google
Judge Blocks Google’s Divide-And-Conquer Strategy in Big Copyright Cases

October 29th, 2013

Gilles Peress’s Post-Sandy Book Tests “Generosity-Based” Publishing

© Concord Free Press/photo by Gilles Peress/Magnum

© Concord Free Press/photo by Gilles Peress/Magnum

Starting tomorrow, the day after the anniversary of when Hurricane Sandy made landfall on the East Coast of the U.S., the publishing house Concord Free Press is giving away copies of The Rockaways, a new book which features Gilles Peress’s images of the storm’s devastation in one of the hardest hit areas of New York City and essays by high school students and other residents of the neighborhood. All 4,000 numbered copies of the book are free, but in exchange, everyone who receives a copy is asked to make a donation to a charity of their choosing or to a person in need, and to pass along the book so the giving continues. The Rockaways is the eighth book published by Concord Free Press, which co-founder Stona Fitch calls an experiment in “generosity-based publishing.”

“Like everybody else, I was really moved by the distress of many of the people affected, especially the poorest part of the population in the Rockaways,” says Peress. “I think of all of us felt on some level: How can we help?” Hamilton Fish, former publisher of The Nation and a member of the Concord Free Press advisory board, edited The Rockaways and approached  Peress about donating images to the effort. “It was a no-brainer. I said yes after the first sentence,” Peress says. He adds, “It’s up to you and your conscience and your wallet to donate to what you think is a worthwhile cause–hopefully dealing with the Rockaways and hopefully dealing with income disparity.”

“We’re about linking art and activism,” Fitch says. Concord Free Press’s other seven books have each raised $50,000 to $60,000 in charitable donations. Designers, writers and publicists donate their time; Kodak provided digital printing for The Rockaways and for Concord Free Press’s previous book, Round Mountain, a collection of short stories set in a small town in Vermont, which was released after Hurricane Irene caused massing flooding in the state. The Rockaways is the publisher’s first photo book. Fitch calls Peress’s images of the ravaged working-class neighborhood  “powerful.” He says, “When you’re given something so beautiful and powerful for free, it has a great effect for inspiring generosity.” By stirring donations, Fitch says, the book can “help address the problem that was being photographed.” He acknowledges that people might be reluctant to pass The Rockaways along, “because Gilles’s book is so beautiful.”
(more…)

October 28th, 2013

PDN Video: Gregory Heisler on How to Relate to Portrait Subjects (Even If You Are Shy and Bumbling)

Portrait photographer Gregory Heisler says people constantly ask him, “How do you get people to pose?” In our latest clip from our video interview with Heisler, he explains the importance of putting yourself in the shoes of your subjects, and figuring out how to interact with them in ways that suit your own personality. He also explains how he learned to relate to subjects despite his early handicap as “the shyest kid ever.”

Heisler recently released 50 Portraits, his first book, which is a retrospective of his career, as well as a tutorial in the art and craft of portraiture. An excerpt of the book appears in this month’s issue of PDN.

Portrait Master Gregory Heisler on How to Relate to Subjects from PDNOnline on Vimeo.

Related:
Gregory Heisler Shares the Techniques That Go Into His Portraiture
PDN Video: Gregory Heisler on His New Book and Best Portraits
PDN Video Pick: Gregory Heisler’s Tips on Lighting Portraits
How Top Photographers Shoot Great Portraits