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August 21st, 2014

Monkey Selfie Not Eligible for Copyright Registration Under New Rules

Monkey selfie, shot with David Slater's camera.

Monkey selfie, shot with David Slater’s camera.

The US Copyright Office has issued a report stating that it will not register works produced by “nature, animals, or plants,” effectively undermining photographer David Slater’s claim that he owns copyright to a selfie made by a monkey with one of his cameras, arstechnica.com reports.

The rule was issued Tuesday as part of a 1,222-page document addressing a variety of administrative practices by the copyright office, according to the tech website.

The photo in question was shot by a monkey that ran off with one of Slater’s cameras while he was on a shoot in Indonesia. The photo went viral in 2011.

A dispute over copyright to the photo erupted earlier this month when Wikimedia Commons, a collection of 22 million public domain images, posted the image without Slater’s permission. Wikimedia indicated in caption information with the photo that the author of a photo owns copyright, not the camera owner, and that only people can claim copyright ownership. Therefore, the monkey selfie was ineligible for copyright–and in the public domain.

Slater had been preparing to sue Wikimedia Commons, according to a report earlier this month in The Telegraph. According to arstechnica.com, Slater may be able to claim intellectual property rights under a provision of UK law, though that provision has never been tested in court.

Related:
That Monkey Selfie: Who Owns the Copyright To It?

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 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?

June 23rd, 2014

Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case

 

©Kristina Hill

©Kristina Hill

Photographer Kristina Hill has won a $2,501 judgment for copyright infringement against Public Advocate of the United States, ending a federal case in Colorado over unauthorized political attack ads. The judgment was entered June 4 in the US District Court in Denver.

Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued Public Advocate of the United States in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political mailers produced in 2011 to defeat two Colorado lawmakers who supported same-sex marriage.

The mailers show images of Edwards and Privitere kissing each other. They were created from an engagement photo of the couple that the defendants found online and used without permission.

Kristina-Hill-Attack-AdHill alleged copyright infringement for unauthorized use of her photograph. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and state right-of-publicity laws.

The court dismissed the couple’s misappropriation claim in March on the grounds that the ads were primarily non-commercial, and because they related to a matter of public concern. Therefore, free speech rights under the First Amendment shielded the defendants from the couple’s claim, the court said.

But the judge rejected Public Advocate’s motion to dismiss Hill’s copyright infringement claims on fair use grounds, because the ads didn’t pass the legal tests for fair use.

According to court papers, Public Advocate finally agreed to accept a declaration from the court that it had infringed Hill’s copyright, “without any finding or admission that such infringement was ‘willful’” under federal copyright statutes.

Public Advocate agreed to pay Hill $2,501 to cover costs related to her claim. The judgment agreement notes that Hill was not entitled to attorneys’ fees because she didn’t register her copyright in the disputed image before the infringement.

For the same reason, she was not entitled to statutory damages, but was limited to actual damages, which tend to be much lower than statutory damages.

Hill was not immediately available for comment.

Related:
In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed
Richard Prince Settles with Photographer Patrick Cariou

 

May 20th, 2014

Wal-mart Sues Photographer’s Widow Claiming Copyright to Decades of Portraits of Walton Family

Wal-mart Stores Inc. and the Walton family, which owns the company, have filed suit to force the widow of an Arkansas portrait photographer to hand over all prints, negatives and proofs of Walton family members made between 1950 and 1994, Professional Photographers of America (PPA) and the Arkansas Times reports. The widow, who reportedly had refused an offer of $2,000 for the pictures, has counter-sued, claiming she owns the copyright.

The Walton family is claiming the photographs belong to them because Bob’s Studio of Photography in Fayetteville made the portraits under the Walton family’s “supervision.” The Walton family says in its lawsuit that the portrait studio stored the photographs as a courtesy, according to the PPA and Arkansas Times reports. More than 200 photographs are in dispute, the reports say.

David Huff and his father, Robert A. Huff, owned Bob’s Studio of Photography. Both are now deceased.

The defendant in the case is Helen B. M. Huff, widow of David Huff. She is countersuing on the grounds that she owns copyright to the photographs because her late husband and his father shot the photographs as private contractors, using their own equipment. She is seeking an injunction against the Walton family and Wal-mart to force them to stop using the photographs without her permission.

A court date is set for July 7.

April 4th, 2014

Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos

A federal appeals court in New York has refused a textbook publisher’s request to reduce a $130,750 award that a jury granted to photographer Louis Psihoyos last year for copyright infringement.

Psihoyos sued publisher John Wiley & Sons in 2011 for infringement of eight of his photographs. Claims over four of the images were dismissed before trial, but a jury found Wiley liable for willful infringement of two of the remaining images and awarded statutory damages totaling $130,000. At the same time, the jury found Wiley liable for non-willful infringement of a third image, and awarded $750. It concluded that Wiley’s use of the remaining image was not infringing.

Wiley appealed, arguing that the trial court erred because it refused to consider whether the jury award was reasonably related to Psihoyos’s actual loss. Wiley called it “an epitome of a run-away award” in one of its appeal briefs.

But the appeals court rejected Wiley’s argument, saying, “Although revenue lost is one factor to consider, we have not held that there must be a direct correlation between statutory damages and actual damages.”

The appeals court went on to say, “The District Court concluded that several of the relevant factors could explain the jury’s award based on the evidence…in particular, the evidence supported a finding of willfulness and that Wiley earned substantial profits, and the jury may have viewed Wiley as a repeat infringer in need of deterrence.

“In sum, we discern no error” in the District Court’s denial of Wiley’s request to vacate the award or grant a new trial, the appeals court said.

The appeals court also rejected Wiley’s assertion that the trial court should have thrown out Psihoyos’ claims on the grounds that the statute of limitations on those claims had expired.

The appeals court said that the Copyright Act’s statute of limitations “did not bar any of Psihoyos’s infringement claims” because he filed those claims within three years of discovering the infringements, as the law requires.

Wiley had argued that the clock for the three-year statute of limitations begins at the instant of infringement, not at the discovery of that infringement by the copyright holder.

Although the appeals ruling was an overall victory for Psihoyos, he also lost an appeal to restore his infringement claims for the four images that the trial court dismissed from the case.  The lower court dismissed those claims because Psihoyos  didn’t register the images before he filed his infringement claims, as required by law.

The appeals court said the trial court was correct to dismiss those claims because of Psihoyos’s failure to register them prior to filing suit.

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

April 2nd, 2014

In Copyright Infringement Case, A Defendant Ends Up Owning Disputed Photo

Desmond Howard's iconic Heisman Trophy pose. Shot by Brian Masck. Now owned by Desmond Howard

Desmond Howard’s iconic Heisman Trophy pose. Previously ©Brian Masck. Now ©Desmond Howard.

Former football star Desmond Howard, the subject of a well-known photograph and a defendant in a copyright claim over the use of that same image, will end up owning the copyright to the image as part of a settlement with the photographer who shot it.

That photographer, Brian Masck of Linden, Michigan, is still pursuing infringement claims against Getty Images, Sports Illustrated, Nissan, Amazon.com, Wal-Mart and others.

Masck confirms that he agreed yesterday to settle his infringement claim against Howard by transferring copyrights to the image over to Howard. In exchange, Masck got “a very generous royalty agreement on [Howard's] uses of the picture, including at [public] appearances by Howard,” according to his attorney, Tom Blaske.

“This allows [Howard] to use his favorite photo of himself and make money on it,” Masck told PDN. Blaske adds that Howard “has more resources to best use this historic photo” and thereby ensure that it “remain[s] part of the cultural currency.”

The photo in question shows Howard striking an iconic Heisman Trophy pose after scoring a touchdown against Ohio State University, when he was playing for the University of Michigan. Masck shot the image in 1991 as a freelancer, and licensed it to Sports Illustrated for publication.

SI allegedly never returned the original 35mm transparency to Masck; it ended up in the Allsport archive, and finally in digital format on Getty’s web site around 2005. From there, it “traveled through sports memorabilia channels” onto merchandise sold through retailers, Masck says, and it also appeared in Nissan ads published in Sports Illustrated.

Masck sued in January, 2013, claiming infringement against Howard for unauthorized use of the photo on Howard’s website. Masck claimed unauthorized use by other defendants for distributing the photo and using it in ads without permission.

But Howard counter-sued Masck for unauthorized commercial use of Howard’s name and likeness on a website called TheTrophyPose.com. Masck used that site to sell products featuring the image, including framed prints and life-size, cut-out stand up. He splashed Howard’s name all over the site, confusing visitors into thinking Desmond Howard was behind the site and its products, according to Howard’s counter-claim.

Masck says he’s prohibited by the settlement agreement with Howard from disclosing the financial details. But he says Howard, a TV football commentator who uses photos for publicity and marking, wanted to buy all rights to Masck’s photo several years ago. “At the right price and right terms I was ready to entertain that,” Masck says.

They couldn’t reach an agreement, however.

“What spurred the lawsuit was, after I had sent Howard a print [during their early negotiations] as an example of what the picture could look like, and he took that picture and put it up on his web site,” Masck explains. “That picture had some tells in it. I digitally altered it so I could track it.”

With a trial date approaching, they resumed negotiations and finally reached an agreement.

Meanwhile, Masck is trying to negotiate settlements with Nissan, Sports Illustrated and the other defendants before the case goes to trial. They tried unsuccessfully to have Masck’s claims thrown out on the grounds that he hasn’t done enough over the years to assert his copyrights to the image.

(Editor’s note: This story has been altered from its original version, which included two quotes from Brian Masck that he has asked PDN to remove.)

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)