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October 6th, 2014

Nature Photographer Quits Business, Blaming Copyright Piracy

Photographers have complained plenty about online copyright infringement, but so far, the problem hasn’t driven many to quit the profession, or discontinue posting images online.

Nature photographer Alex Wild says he’s had enough, though. In an essay titled “Bugging out: How rampant online piracy squashed one insect photographer,” Wild says infringement of his work has contributed to his decision to quit photography for a position “less prone to the frustrations of a floundering copyright system.”

Wild asserts in the essay, recently published on arstechnica.com, that “For practical purposes, the Internet has become a copyright-free zone.”

He goes on to provide a long list of unauthorized commercial uses of his work, and describe the futility of his efforts to stop it.  “I send, on average, five takedown notices to Web hosts every day, devoting ten hours per week to infringements. Particularly egregious commercial infringers get invoices,” he says. “Copyright infringement drains my productivity to the point where I create hundreds fewer images each year.” Just ignoring the infringements is a bad option, and so is suing them, for several reasons he explains.  For one, his business competes with “uncredited copies of my own work.” As he explains, “Who wants to pay for an image that is already everywhere?”

Wild concludes by calling for copyright reform that provides “reassurances that the mere act of participating online won’t force [artists] to choose between bankruptcy and chasing infringers through the rabbit hole of ineffective copyright enforcement.” Which is just the kind of reform that photographers’ trade groups have been chasing for years through the rabbit hole of Washington politics.

October 1st, 2014

Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

Richard Prince earned millions appropriating and manipulating Patrick Cariou's "Yes, Rasta" images. Prince's fame as an artist arguably enabled him to get away with it.

Richard Prince earned millions appropriating and manipulating Patrick Cariou’s “Yes, Rasta” images. His fame as an artist arguably enabled him to get away with it on fair use grounds.

Fair Use may be turning into a legal refuge primarily for “rich and fabulous” artists, according to a recent University of Chicago Law Review article by two Stanford scholars. They reached that conclusion by analyzing Patrick Cariou v. Richard Prince and other copyright disputes between artists over the past decade.

“This shift in fair use has predominantly protected big name defendants who appropriate from small name artists,” Andrew Gilden, one of the authors, told American Public Media’s Marketplace program on Monday.

The Marketplace report, by Sabri Ben-Achour, went on to say that in visual art copyright cases over the past decade, the wealthier artist has usually prevailed. “They’ve won defending against claims they copied someone else’s work, and they’ve won pursuing others for copying their work,” Ben-Achour reported.

Gilden and his co-author, Timothy Greene, argue in their law review article that wealthy artists prevail in part because of the high cost of defending an infringement claim on fair use grounds–something many work-a-day artists can’t afford. But wealthy artists also prevail, Gilden and Greene argue, because there is a cultural presumption that works are “transformative” when they appropriate material from unknown artists, then sell for high prices to an exclusive market. (Whether a disputed work “transforms” the original work is a primary test for a finding of fair use.)

Cariou v. Prince, for instance, was a dispute over a series of paintings and collages by Prince that appropriated images from Cariou’s book Yes, Rasta without permission. Most of Prince’s works eventually sold, fetching a total of  $10.4 million. Prince successfully fended off Cariou’s copyright infringement claim on fair use grounds, testifying in the process that Cariou’s work was just raw material for his own work.

But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.

The illustrative case Gilden and Greene analyze in their article is Salinger v. Colting. J. D. Salinger sued Fredrik Colting, a little-known author, over Colting’s novel called 60 Years Later: Coming Through the Rye. Colting borrowed story lines and characters from Salinger’s Catcher in the Rye,  pretty much doing what Prince did when he appropriated Cariou’s work, Gilden and Greene suggest. But unlike Prince, Colting lost his case. (Both cases were finally adjudicated in the US Court of Appeals for the Second Circuit, which is in New York.)

As Gilden and Greene put it in their article, “Cariou makes fair use fairer for some, but there’s a real risk its virtues won’t be available to all.”

Related:
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
S
upreme Court Declines to Hear Patrick Cariou’s Copyright Claim Against Richard Prince
Richard Prince Settles with Photographer Patrick Cariou

September 8th, 2014

Robert Frerck on How to Track Down Copyright Infringements in Textbooks

After publishing our story about the dozens of lawsuits filed against textbook publishers for reproductions of photos that far exceed the limits of usage licenses, we heard from travel photographer Robert Frerck. He won a summary judgment in August on his copyright infringement claim against Pearson Education, and a settlement last May from McGraw-Hill on a separate infringement claim.

“It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce,” he told PDN via e-mail. In the following excerpt of our exchange with Frerck, he touches on the risk of suing clients, then shares his advice and strategies for tracking down infringements by textbook publishers.

PDN: Was it difficult to bring suit against a client?
Robert Frerck: I had been doing substantial business with all of these publishers for decades, so it was a very difficult decision. I was aware that if I proceeded with this action I might be be putting an end to several profitable client relationships. However I was also very disturbed that these companies had not been truthful in their actions with me. Over [many] years I had met many of their picture editors personally and we had developed a relationship based on trust and I considered many of them to be personal friends. So I felt betrayed when I learned that these companies were knowingly cheating me as a standard business practice. I think that in the end that was the deciding factor in persuading me to pursue legal action.

PDN: What has the process been like for you? Have you ever questioned whether it was worth the headache?
RF:  It has been very frustrating at times. However, it has also been rewarding to see that this information has come out and that my position has been vindicated. The bottom line is that it has been well worth the effort, from both a “securing justice” and a financial perspective.

PDN Are there any particular lessons you’ve learned from your experience pursuing these claims? Any advice you’d give other photographers who might be considering in a similar position?
RF: Fortunately, I still had almost two decades of past invoices and these were coupled with their respective purchase orders and related communications. Most importantly the language of these invoices very clearly stated: what reproduction rights I was licensing and what I was not licensing. So this was sufficient to make a case. However I then decided to expand my data collection in a somewhat different way from other photographers in similar cases. Rather than simply looking at past invoices and making those invoices the substance of my claims, I decided to purchase almost all of the textbooks that were indicated by my invoice record[s].

By actually having the textbooks in my hands, I discovered many things that were not revealed simply by looking at the invoices. For example there were numerous uses of my images that were not mentioned on the purchase orders and consequently never invoiced or licensed. Where only one use was indicated on the purchase order, I might find a second or third use of an image in the actual text (for example, a second use in the table of contents). I also found images that were indicated for use as a 1/4 page on the purchase order but in the text were used as a double page chapter opener, a mistake with a huge impact on the bottom line.

Another interesting thing I discovered – and for this I bless Google and the internet and companies like Amazon: I would find the title of the text that was listed on my purchase order/invoice but then I would also find that there was an “International Edition” of that same title; or a “Spanish Language Edition” or a newer “expanded edition” or a “CD or internet website use” that I had never licensed. Many of my claims against publishers are for uses in products that were never licensed in the first place. It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce. Unless you were actively spending countless hours researching these titles on the internet you would never have been aware that this was occurring. I guess that is what the publishers were counting on.

In the final analysis, pursuing this type of litigation is not for everyone; first it helps to have reliable records and a lot of patience and perseverance. However, in a way it is like the unraveling of a good mystery and you are trying to discover all of the wrinkles in the plot. You must also be prepared to put up with a lot of BS from the defense lawyers, but my lawyers have been great in countering them. And most importantly, remember that the truth will be found out in the end.

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

September 5th, 2014

Photographers Settle Copyright Suit Against Google. But On What Terms?

A copyright infringement lawsuit against Google that began with a bang in 2010 and plenty of bluster by trade groups about protecting the rights of their members has finally ended with a whimper.

The American Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Advertising Photographers of America (APA), Professional Photographers of America (PPA) and several other trade groups representing photographers and visual artists have announced a settlement of their class action lawsuit over the Google Books program on (mostly) undisclosed terms.

“The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works. Further terms of the agreement are confidential,” NPPA announced today on its web site.

The lawsuit, almost identical to a separate lawsuit filed against Google by the Authors Guild, was a reaction to Google’s Books Search program. Under that program, Google has been working with several libraries to scan books and periodicals and make the content available through its search engine results. The plaintiffs sued in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

Under the terms of the settlement, NPPA says, Google admits no liability. And with no mention by plaintiffs about how a revenue stream from the Google Books program will be shared with visual artists going forward, it seems unlikely that today’s settlement included any concessions from Google to pay license fees for images scanned as part of its program.

Last November, a federal court dismissed the Authors Guild lawsuit on fair use grounds. That decision likely weakened the hand of ASMP and other photo industry plaintiffs in their claim against Google.

But ASMP and the other plaintiffs launched their lawsuit with high expectations.

ASMP said in 2010 that the goal of the suit was to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

When NPPA joined the lawsuit in 2013, NPPA’s then-president said in a prepared statement: “I feel it is the NPPA’s responsibility to protect that principle of ownership, and not allow companies like Google to infringe upon our rights uncontested.”

Advertising Photographers of America also joined the lawsuit in 2013. “Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs,” the APA president said at the time.

Meanwhile, the Authors Guild is in the process of appealing its copyright claim against Google to the US Court of Appeals for the Second Circuit in New York. NPPA said in its announcement today, “This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.”

Related:
Judge Dismisses Authors Guild’s Lawsuit Against Google
ASMP, Other Trade Groups Sue Google (for PDN subscribers)

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.