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March 7th, 2013

David LaChapelle Sued for $3 Million by Gallerist

A Montana gallerist has sued David LaChapelle for $3 million dollars, alleging the photographer attacked him in his Manhattan apartment on March 9, 2012.

The suit, filed yesterday by James Parmenter in Manhattan Supreme Court, alleges that in the middle of the night, LaChapelle threw Permanter around his apartment, choked him “nearly to the point of unconsciousness,” then threw him out into the street. He is suing LaChapelle for assault, battery and intentional infliction of emotional distress. He is seeking a minimum of $1 million for each cause of action.

A digital copy of Parmenter’s lawsuit is available here.

Parmenter is the director of Bigfork Collaborations in Bigfork, Montana. According to an article in a local newspaper, the gallery space was funded by Fred Torres, a gallerist and LaChapelle’s former manager. In December 2012, LaChapelle filed a lawsuit against Torres, claiming that Torres owed him more than $2.8 million from the sales of of LaChapelle’s works and from a personal loan.

In the suit filed yesterday, Permanter claims that he is still experiencing physical and emotional difficulties as a result of the assault.

March 4th, 2013

Photog Prevails in Copyright Case Over ‘Mr. Brainwash’

©Dennis Morris

©Dennis Morris

Photographer Dennis Morris has won his lawsuit against the appropriation artist known as Mr. Brainwash for unauthorized use of a decades-old image (shown at right) of deceased punk rocker Sid Vicious.

A federal district court judge in Los Angeles recently granted Morris’s motion for summary judgment on the issue of copyright infringement. At the same time, the judge rejected a motion by defendant Thierry Guetta–aka Mr. Brainwash–for summary judgment on the grounds of fair use.

“To permit one artist the right to use without consequence the original creative and copyright work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act,” the judge wrote in his ruling, citing another ruling against Guetta from 2011 in a similar case.

The ruling for Morris added to a growing body of case law against appropriation artists who use the works of other artists as nothing more than raw material for their own works. The message from federal courts is that appropriation artists cannot claim fair use unless they parody the original work, or in some other way critique or comment upon them directly.

Morris had sued Guetta for infringement over unauthorized use of a 1977 photograph of Sid Vicious. The original image shows the punk rocker tilting his head and winking at the camera. Guetta, who is know for appropriating images of celebrities and modifying them, created seven image based on the Morris photograph. Some featured higher black and white contrast, some have less contrast, and some include added elements such as splashes of brightly colored paint, according to the court ruling.

There was no dispute that Guetta had copied Morris’s photographs, District Judge John A. Kronstadt wrote in his ruling. The issue before the court was whether Guetta’s uses of the image met the legal standard for fair use.

Courts apply a four-pronged test to weigh a fair use defense. Judges consider the purpose and character of the unauthorized use; the nature of the copyright work; the amount and substantiality of the portion of the original work that is used; and the market effect of the unauthorized work(s) on the original.

In this case, the first three factors weighed in Morris’s favor. The fourth (market effect) was inconclusive.

Most importantly, in considering the first factor, the court concluded that Guetta’s uses of the Morris photograph were not sufficiently transformative. In other words, they did not give the Morris photograph enough new expression, meaning or message, District Kronstadt explained in his ruling.

“The [original] photograph is a picture of Sid Vicious making a distinct facial expression. [Guetta’s] works are of Sid Vicious making that same expression. Most of defendant’s works add certain new elements, but the overall effect of each is not transformative; defendant’s work remain at their core pictures of Sid Vicious,” the judge wrote.

Guetta had argued that his works were intended to comment on the persona of Sid Vicious in particular, and on the nature of celebrity in general. But the judge didn’t buy it, saying Guetta was effectively arguing that any use of copyrighted material in appropriation art is fair use. “But this is the precise argument that the Cariou court rejected,” referring to a district court ruling in New York in the case of Patrick Cariou v. Richard Prince.

In that case, the court ruled that appropriation artist Richard Prince violated photographer Patrick Cariou’s copyright by using some of his photographs as raw material for his own works, without commenting upon the original works or otherwise transforming their meaning. An appeal of that ruling is pending.

For an appropriation to qualify as a fair use, Judge Kronstadt explained, “There must be some showing that a challenged work is a commentary on the copyrighted one, or that the person who created the challenged work had a justification for using the protected work as a means of making an artistic statement.”

Considering the second factor–the nature of the copyrighted work–Judge Kronstadt concluded that the Morris photograph was at least a marginally creative portrait, not just a “recitation” of a fact. That weighted “at least slightly against a finding of fair use,” the judge wrote.

Considering the third factor–the amount and substantiality of the portion of the original work that was used–Judge Kronstadt concluded the Guetta used most of Morris’s photograph, including the central copyrightable elements. That also weighed against a finding of fair use.

Finally, the court considered what effect the Guetta images had on the market for Morris’s image, and concluded that the market effect was subject to dispute. But Judge Kronstadt went on to say that the issue was immaterial “because a lack of harm [to Morris’s market for his image] would not change the determination of an unjustified use under the first factor.”

That first factor, to recap, was a consideration of whether Guetta’s images transformed the meaning of Morris’s image.

Related:
Judge Rules for Photog in Copyright Over RUN DMC Photo
Appropriation Artist Richard Prince Liable for Infringement, Court Rules

 

February 27th, 2013

Quincy Jones Settles Copyright Claim with Photographer

©Michael D. Jones/Mike Jones Photography

©Michael D. Jones/Mike Jones Photography

Music producer Quincy Jones and photographer Michael Donald Jones (aka Mike Jones Photography) have settled their dispute over the photographer’s claim of copyright infringement. Terms of the settlement were not announced.

Mike Jones filed suit last year in a federal court in Los Angeles, alleging that Quincy Jones  provided a portrait without permission for use in ads, packaging and other materials to promote a line of audio headphones. The headphone manufacturer, and a book publisher that also used the photo, were named as co-defendants in the case.

Mike Jones claimed that an associate of Quincy Jones’s offered him $5,000 in 2010 for what amounted to a rights transfer of the disputed portrait. The photographer asked for $10,000, then got a counter offer of $6,500, which he allegedly refused.

The images began appearing without Mike Jones’s permission in ads and other promotions for the headphones, which were endorsed by Quincy Jones. Mike Jones filed a claim for infringement early last year against Quincy Jones, headphone manufacturer AKG Harman, and Hal Leonard, the music book publisher.

AKG Harman denied the photographer’s claims, saying that the disputed photograph was shot on a work-for-hire basis.

Mike Jones alleged in his lawsuit that the disputed portrait originated when he photographed Quincy Jones in 1995 in Hollywood at Qwest Records. Mike Jones then provided Quincy Jones with 8×10 prints of some of the photographs. At that time, he refused to sign away his rights to those session photographs, despite Qwest Records’ efforts to “strong-arm” him into transferring the rights, Mike Jones alleged in his claim.

Neither Mike Jones nor the attorneys for either side responded to requests for comment about the settlement.

Related:
Quincy Jones Co-Defendant Denies Copyright Infringement Charge
Photog Sues Quincy Jones for Infringement, Says He Was “Strong-Armed”

February 25th, 2013

Obituary: Sports and Portrait Photographer Ozzie Sweet, 94

Ozzie Sweet, whose photographs have appeared on approximately 1,800 magazine covers, died on Wednesday, February 20, according to an obituary in The New York Times. He was 94 years old.

Sweet started taking photographs after joining the Air Force at the start of World War II, and his “war-time” images frequently landed on the cover of Newsweek—despite the fact that some of them were staged. A 2001 interview with SeacoastOnline noted that Sweet “hate[s] to use the word ‘faked,’” when describing his images and instead said that his shots are “carefully planned and staged.”

After the war, the self-described “photo illustrator” photographed a number of notable subjects including Albert Einstein, Grace Kelly, Joe DiMaggio, John Wayne, Mickey Mantle and Ernest Hemingway, for publications like TIME, Sport, Saturday Evening Post, Ebony, Cosmopolitan, Sports Illustrated and Look. He later became known for his sports photography and co-authored two books on baseball: Mickey Mantle: The Yankee Years: The Classic Photography of Ozzie Sweet and The Boys of Spring. In 2005 he won a Lucie Award for Outstanding Achievement in Sports Photography.

Read his full obituary at www.nytimes.com.

December 3rd, 2012

Hillary Clinton Honors Photographer Carrie Mae Weems with State Dept. Medal

Photographer Carrie Mae Weems received a State Department medal from Secretary of State Hillary Clinton at a luncheon on Friday, November 30, at the State Department in Washington, D.C. Clinton honored Weems and four other artists—Jeff Koons, Cai Guo-Qiang, Shahzia Sikander and Kiki Smith—with the first U.S. Department of State Medals of Arts ever awarded. The medals recognized the artists’ contributions to the “Art in Embassies” program, which creates art exhibitions in U.S. diplomatic buildings overseas. The EIN program celebrated its 50-year anniversary this year.

“Art is…a tool of diplomacy,” Clinton said during her remarks at the ceremony. “It is one that reaches beyond governments, past all of the official conference rooms and the presidential palaces, to connect with people all over the world.”

For more, including a video of Clinton’s remarks, visit the State Department site.

November 15th, 2012

California Anti-Paparazzi Law Fails First Court Challenge

A California law meant to impose special penalties on the paparazzi for reckless driving has  been declared unconstitutional by a Los Angeles County superior court judge, according to several news reports.

Judge Thomas Rubinson said the law was too broad when prosecutors invoked it against photographer Paul Raef. The paparazzo was charged with reckless driving last July after a high-speed chase of pop star Justin Bieber’s car.

The law, which was enacted in 2010, imposes extra penalties on anyone who drives dangerously to take photos for commercial gain. It was intended to target the paparazzi, although it could be used to prosecute photojournalists rushing to breaking news events.

The extra penalties include jail terms up to six months and fines up to $2,500. It was signed by former governor (and actor) Arnold Schwarzenegger, and it was supported by several celebrities who have lobbied state lawmakers to pass laws restricting the activities of the paparazzi.

Raef was first to be charged under the law when he chased Bieber’s car on a California freeway last summer at speeds that allegedly exceeded 80 miles per hour.

Rubinson said the law interfered with news gathering activities protected by the First Amendment.

Reaf still faces reckless driving charges and fines that any driver might face, but he’s no longer subject to the additional penalties called for by the photos-for-commercial-gain law.

And the law itself has not been struck down entirely. Rubinson’s ruling on the law applies only to Raef’s case. If prosecutors appeal the ruling to a higher court, the law could be struck down entirely.

October 29th, 2012

PPE 2012: On Making Compelling Portraits

In the seminar “The Art and Business of Portraiture,” held during PhotoPlus Expo, portrait photographers Lydia Panas, Chris Buck, and Charlotte Dumas showed their work, primarily focusing on their fine art images, and described how they interact with their subjects to make compelling portraits. Gallerist Michael Foley of the Foley Gallery in New York moderated the discussion.

Panas, a fine artist whose portraits reveal much about character and relationships, showed work from her Mark of Abel and Falling from Grace projects. She explained that she doesn’t direct her subjects; in fact, she talks very little, and works without assistants when she’s shooting fine-art portraits. “I recognize what is happening between myself and the model, and I don’t force anything,” she said. “It’s amazing what you can see just by staring at someone.” (more…)

September 18th, 2012

French Court Orders Magazine to Hand Over Topless Photos of Kate Middleton

Three days after a French gossip magazine published photos of Kate Middleton, Dutchess of Cambridge, sunbathing topless, a court in France has ordered the magazine’s publisher to hand over all digital copies and blocked future publication of the images in any medium. The court ruled yesterday that the tabloid Closer must hand over the images within 24 hours or face a penalty of $13,100 a day, the AP reports. The photos were taken without permission while Middleton and her husband, William the Duke of Cambridge, an heir to the British throne, were vacationing at a private home court in the South of France. The French court also fined the French branch of Closer’s publisher, Mondadori, which is owned by Silvio Berlusconi, the Italian media mogul (and disgraced prime minister.)

Maud Sobel, a lawyer for the royal couple, said after the verdict, “We’ve been vindicated.” However, the French court’s ruling only affects Closer; the images have already been in an issue of Chi in Italy (also owned by Mondadori) and in the Independent Star of Ireland.  And who knows how many websites have reposted them.

The ruling may seem surprising. France, a country that has codified droit d’auteur, “moral rights” and other artists’ protections into law,  and hasn’t had much use for monarchs since Louis XVI was guillotined n 1793,  is siding against the press in favor of some huffy royals on the other side of the Channel.

According to the court, however, the issue at stake was the couple’s privacy.

The ruling states, “These snapshots which showed the intimacy of a couple, partially naked on the terrace of a private home, surrounded by a park several hundred meters from a public road, and being able to legitimately assume that they are protected from passers-by, are by nature particularly intrusive,” the French ruling decreed.

While the French tradition of holding artists’ rights in high regard probably dates back to  the French Revolution, its privacy laws are steeped in an even older tradition: the protection of honor.

Reviewing a new history of privacy law in The New York Times, Jeffrey Rosen, a law professor and editor at The New Republic, noted that Europe and America have always had different conceptions of privacy.

Rosen says that in the European tradition, privacy was conceived “as a way of protecting human dignity (as opposed to the American one, which is more interested in privacy as a way of protecting liberty).” Quoting scholar James Q. Whitman, Rosen notes that privacy rights grew out of a “deeply hierarchical society where all citizens knew their place and how much privacy they were entitled to demand: in such a world, privacy was for aristocrats, not for common people.”

The French court’s decision bears out Whitman’s contention: the ruling protects the honor of an aristocrat. A commoner might not have won this case. Not they would need to sue, since the breasts of us common folk aren’t tabloid fodder.

September 6th, 2012

Owners of Marilyn Monroe Photos Win Big Legal Victory Over Actor’s Heirs

Owners of Marilyn Monroe photographs have won a decisive legal victory in the US Court of Appeals for the Ninth Circuit in San Francisco, which has affirmed that Marilyn Monroe heirs have inherited no rights of publicity to the actress’s likeness.

The decision means that Monroe’s heirs cannot control how images of the actress are used commercially, and cannot demand fees whenever those images are licensed for use on calendars, posters, memorabilia, or other products.

The ruling, issued last week in the case of Milton H. Greene Archives v. Marilyn Monroe LLC, turned on the question of where Monroe was domiciled at the time of her death in 1962: New York or California. California has a law that transfers rights of publicity posthumously to a decedent’s heirs; New York does not.

The appeals court affirmed a lower court decision that said Monroe was a New York resident because her heirs had insisted upon that for 40 years in order to avoid paying California taxes. The courts said the heirs cannot now claim Monroe was a California resident in order to take financial advantage of California’s posthumous right of publicity laws.

The case began in 2005. In 2007, a federal district court in California ruled that no right of publicity law existed in either New York or California at the time of Monroe’s death in 1962. Therefore, she couldn’t have transferred that right to her heirs through her will, regardless of what state she resided in at the time of her death. (The question of her residence wasn’t settled at the time.)

That 2007 decision freed the Milton H. Greene archives to license Monroe photographs without interference from Monroe’s heirs, who are represented by Monroe LLC.

Monroe LLC responded by prevailing upon the California state legislature to pass a posthumous right of publicity law. That law states explicitly that its intent was to abrogate (nullify) the district court’s decision.

With that posthumous right of publicity law in hand, Monroe’s heirs then went back to the district court for reconsideration of the 2007 decision. Upon review, the district court concluded that Marilyn Monroe was domiciled in New York at the time of her death, not California, so New York  law applied in the right of publicity question.

Because New York still has no posthumous right of publicity law on the books, the court ruled that Monroe’s heirs could claim no rights of publicity. (The heirs had tried to get a posthumous right of publicity law passed in New York, as they had done in California, but the New York effort failed.)

With a lot of money at stake–sales of Monroe memorabilia reportedly generated $27 million in 2011, according to the court papers–Monroe’s heirs  appealed the district court’s second ruling to the Ninth Circuit court of appeals.

In a forceful decision, the appeals court upheld the district court’s finding on Monroe’s residence at the time of her death.

“Monroe LLC’s new litigation position that Monroe died domiciled in California, asserted to obtain the benefit of California’s posthumous right of publicity statute, is inconsistent with the preceding forty years of representations on behalf of the estate that Monroe died domiciled in New York,” the appeals court wrote in its decision.

The court continued, “The estate succeeded in persuading numerous judicial and quasi-judicial bodies to accept that Monroe died a domiciliary of New York.

“Judicial and quasi-judicial officers repeatedly accepted and relied upon the estate’s representations about Monroe’s New York domicile.

“The district court concluded that permitting Monroe LLC to assert that Monroe died a domiciliary of California in this litigation would unfairly allow it to obtain a ‘second advantage.’ We agree.”

A district court in New York reached a similar decision in favor of the Shaw Family Archives, which also licenses Monroe images. An appeal of that decision has been pending the outcome of the Ninth Circuit decision.

July 27th, 2012

Russell Brand Agrees to Community Service for Throwing Photog’s iPhone

Community service and a $500 fine for this phone throwing bad boy. ©It Books

A Louisiana  judge has ordered actor Russell Brand to perform 20 hours of community service and pay $500 in court costs for throwing a photographer’s iPhone through a plate glass window last spring, the Associated Press has reported. The community service is not specified, but could involve “charitable work with people suffering from additictions,” according to the report.

Brand allegedly snatched photographer Timothy Jackson’s iPhone and threw it through the window of a New Orleans law office as the photographer tried to take his picture last March. Brand was in New Orleans on a film shoot at the time.

Shortly after the incident, Brand made light of his actions on his Twitter feed with a post that said: “Since Steve Jobs died I cannot bear to see anyone use an iPhone irreverently, what I did was a tribute to his memory.”

Brand turned himself in to police after they put out a warrant for his arrest.

His attorney entered a plea of not guilty yesterday on charges of simple criminal damage to property. His attorney told the court that Brand was “harrassed,” according to the AP report.

The charges against Brand will be dropped if he completes the community service requirement by August 31, although it will not be supervised by the court. Instead, Brand’s attorney has told the court that he (the attorney) will provide proof to the court that Brand has completed the service.

Related stories:
Russell Brand Charged for Throwing Photog’s iPhone Through Window

Russell Brand Faces Arrest for Destroying Photog’s iPhone as Tribute to Steve Jobs