You are currently browsing the archives for the Copyright category.

March 18th, 2015

Nike Seeks Dismissal of Photog Rentmeester’s Copyright Claim over “Air Jordan” Logo

© Jacobus "Co" Rentmeester

 Co Rentmeester sued Nike in January for unauthorized use of this 1984 image to create the “Jumpman” logo used for decades to promote Nike’s Jordan brand.  © Jacobus “Co” Rentmeester    

The Nike shoe company has asked a federal court to dismiss photographer Co Rentmeester’s copyright claim over the iconic logo used on Jordan brand sneakers and clothing, on the grounds that the Nike logo is substantially different from Rentmeester’s photo of former basketball star Michael Jordan.

Rentmeester says the company illegally created its so-called “Jumpman” logo from a photograph Rentmeester shot in 1984. Nike, which has used the logo for more than 25 years, called Rentmeester’s claim “baseless.” The company is accusing Rentmeester of trying to claim a monopoly on images of Jordan’s trademark slam-dunk move. And Nike argues that its iconic logo copied none of the “protectable” elements of the Rentmeester photograph–ie, camera angle, lighting, background and other elements of expression that are protected by US Copyright law.

The alleged "Nike copy" of Rentmeester's 1984 image.

The alleged “Nike copy” of Rentmeester’s 1984 image.

Rentmeester filed his copyright infringement claim in January in US district court in Portland, Oregon. He alleged that Nike had based its “Jumpman” logo on an image made by the company that illegally copied Rentmeester’s 1984 photo. Rentmeester had made his image for Life magazine. His image, the Nike “copy” image and the Nike logo all depict Jordan in a move for which he was famous: sailing through the air on his way to slam dunking a basketball.

Nike had temporarily licensed the Rentmeester image in 1984. Rentmeester alleges that Nike copied the image while it was in the company’s possession. He also says Nike paid him $15,000 in 1985, after he complained Nike was infringing his photograph by plastering the “Jumpman” logo all over billboards and posters promoting Air Jordan sneakers. The payment allowed for use of the image for two years in North American markets only, according to Rentmeester’s claim, but Nike has continued to use it ever since.

The "Jumpman" logo, used for more than 25 years to promote Nike's Jordan brand.

The “Jumpman” logo, used for more than 25 years to promote Nike’s Jordan brand.

In its motion for dismissal, Nike asserts that federal case law has established that infringement “can only occur where two photographs of the same subject are virtually identical” [Nike's emphasis].

“Rentmeester falls far short of that standard here given the
significant—and self-evident differences in the mood, lighting, setting, expression, color, style, and overall look and feel of his photograph, on the one hand, and Nike’s photograph and logo, on the other,” Nike says in its motion.

The dispute boils down to a question of whether Nike copied the idea behind Rentmeester’s image, or whether it copied Rentmeester’s execution. Under US Copyright law, ideas are not protected. Only the execution of an image–lighting, camera angle, setting, etc–is protected.

“Simply put, Rentmeester does not have a monopoly on Mr. Jordan, his appearance, his athletic prowess, or images of him dunking a basketball—his copyright begins and ends with his specific original expression of that subject and theme…[He] cannot show that Nike copied any protected expression,” the company said in its brief.

Nike went on to cite a number of unsuccessful claims by other photographers who mistook unprotected elements of their photographs (such as ideas and/or inherent qualities of a subject) for the protected elements. Among the cases cited were Kaplan v. Stock Market Photo Agency, Mannion v. Coors Brewing Company, Harney v. Sony Pictures Television, and Bill Diodato v. Kate Spade.

Nike also said, “Rentmeester’s decades-long delay in filing suit speaks volumes regarding his own assessment of the merits.”

Rentmeester is seeking statutory damages for the alleged infringement, but Nike alleges that he is ineligible for such damages because he did not register his copyright to the image in a timely manner. According to Nike, Rentmeester registered his copyright in December 2014, shortly before he filed his claim.

Related:
Infringement Claim Fails Because Law Protects Expression, Not Ideas (Harney v. Sony Pictures Television)
In Court, Copycats Prove Elusive (for PDN subscribers)
Court Says Lookalike Photo Doesn’t Infringe (Bill Diodato v. Kate Spade–for PDN subscribers)

February 13th, 2015

You Be The Judge: Did Jessie Ware’s Music Video Infringe Asger Carlsen Photo?

Yesterday photographer Asger Carlsen called out director Christopher Sweeney and musician Jessie Ware for plagiarism. Posting to his Instagram account and Facebook page, Carlsen showed a still from the newly released video Sweeney directed for Ware’s song “Champagne Kisses,” comparing it to an image Carlsen created in 2010. In the video, which mixes retro and surrealist esthetics, Ware appears briefly sporting a lower body made of plywood, laid out in the exact same position as Carlsen’s model in the 2010 photo.

Reached for comment, Carlsen told PDN that he “cannot comment on the Christopher Sweeney video” at this time.

We’re pretty surprised that anyone would have the chutzpah to mimic such a distinct visual concept without reaching out to or crediting its originator.

Whether or not Carlsen could win a legal case is a trickier question, and courts have sometimes surprised us in their rulings on these matters.

Related: Rihanna Settles Lawsuit With David LaChapelle

December 23rd, 2014

PDNPulse: Top Stories of 2014

As another fascinating year in the world of professional photography comes to a close, we look back on the stories that drew the most interest from PDNPulse readers this year.

From manipulated news photos, to photographers arrested for doing their jobs, to collaborative efforts between photographers and an interview with one of photography’s most influential star makers, these stories capture some of the highs and lows of the photography business today.

1: George Steinmetz Wonders: Was It Worth Getting Arrested for National Geographic Cover Story Photos

2: 2014 Winter Olympics Op-Ed: Everything You’ve Read About Problems for Photographers in Sochi is True

3: PDN Video: Lens Blog’s James Estrin’s Career Tips for Photojournalists

4: Photographers Share Intimate Images of Loved Ones for Curated Photo Website

5: AP Severs Ties With Photographer Narciso Contreras Over Photoshopped Image
5a: Photographer Fired by AP Says Decision Was Fair, But Process Wasn’t

6: How Much Do Editorial Clients Pay? “Wiki” Gives Names and Fees

7: If that Kim Kardashian Photo Looks Familiar…

8: Calumet Photographic to Liquidate, Closes U.S. Stores

9: Photographer Creates Free iPhone App for His Signature Style

10: Wal-mart Sues Photographer’s Widow Claiming Copyright for Decades of Portraits of Walton Family

11: Suffolk County Pays $200K to Settle News Photographer’s Unlawful Arrest Claim

12: How Should Clients React to Sexual Coercion Allegations Against Terry Richardson?

13: AP Photographer Anja Niedringhaus Killed in Afghanistan

14: Cowboy Lifestyle Photographer David Stoecklein Dies, 65

15: Photojournalist Camille Lapage, 26, “Murdered” in Central African Republic

December 18th, 2014

Time Inc. UK Issues Rights-Grabbing Contract

Time Inc.’s UK division has riled editorial photographers by issuing a new contract requiring freelancers to hand over “all rights” to any assignment images for about 60 specialty publications. The contract takes effect January 1, 2015, but there may be wiggle room for negotiation, at least for some photographers who take the initiative to push back.

“It’s an outrageous rights grab,” says photographer David Hoffman, spokesperson for Editorial Photographers UK (EPUK). “It’s just bullying.”

The contract applies to a wide array of Time Inc UK titles, including fashion, lifestyle, entertainment, and shelter magazines, as well as  niche magazines for marine, wine, gardening, fishing, sport, and technology enthusiasts. The contract does not apply to assignments for TIME, the weekly news magazine.

“The new agreements better reflect our needs as a multi-platform business,” Time Inc. UK’s director of corporate communications Karen Myers told PDN via e-mail. “Contributors need to bear in mind that commercial realities dictate that we will be using the content that we purchase in many different ways to reflect the changing media landscape, both now and in the future.”

Myers acknowledges that some photographers “will not want to assign and/or waive their rights and there is no obligation for them to do so – if they do not wish to do so, they may object and negotiate different terms with us in the usual way.”

Hoffman explains, “If an editor really wants your particular work, or is sympathetic to you, they may be able to do individual deals.”

But photographers who aren’t able to negotiate to keep their copyrights will be deprived of the right to re-license assignment images,  which could ultimately hurt Time Inc., Hoffman says. “The best photographers won’t work for them under those terms,” and those photographers who do accept the terms won’t have much incentive to do their best work, he explains.

November 24th, 2014

UK Orphan Works Law Takes Effect: Similar US Law Is Increasingly Unlikely

A controversial “orphan works” law, making it legal under certain conditions to use photos and other creative works belonging to copyright owners who cannot be located, took effect took effect October 29 in the United Kingdom. Efforts to enact a similar law in the US continue to languish.

Orphan works laws reduce the legal risk for publishers, film makers, museums, libraries, universities, and private citizens who want to use copyrighted works, but cannot locate the copyright owners of those works.  The laws are intended to make the works available for public benefit, provided users conduct a “diligent search” for the owners before using the works. But photographers, artists, and their trade groups have resisted the laws, fearing they will end up protecting infringers who don’t search diligently for copyright owners. Some opponents fear that orphan works laws may even give infringers incentive to turn traceable works into orphan works by stripping away credits and other metadata.

But so far, the new UK law is causing little worry. “I don’t think it’s going to be a problem for photographers,” says David Hoffman of Editorial Photographers UK (EPUK).

The American Society of Media Photographers (ASMP) and other US photo trade groups that issued dire warnings two years ago that the UK law would bring about “a firestorm of international litigation” are mostly quiet now.  “I think the law they’ve come out with [in the UK] is pretty reasonable,” says Eugene Mopsik, the outgoing executive director of the ASMP. (more…)

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?