You are currently browsing the archives for the Copyright category.

March 20th, 2014

Appeals Court Says Streamlined Photo Copyright Registration Procedures Are Legal

A federal appeals court has re-instated stock photo agency Alaska Stock’s copyright infringement claim against textbook publisher Houghton Mifflin, reversing  a lower court decision to dismiss the case on the grounds that the stock agency had registered its images improperly.

The decision means that Alaska Stock now gets the opportunity to try its copyright claims in court.

The case is a also victory for photographers and other copyright owners because it upholds a streamlined process for registering images in bulk as a collected work. Specifically, the court affirmed the authority of the US Copyright Office “to grant registration to individual stock photographs within a collection where the names of each of the photographers, and titles for each of the photographs, were not provided on the registration forms.”

“The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the [copyright] statue,” the US Court of Appeals for the Ninth Circuit said in its decision. “Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust.”

The ruling came in the case of Alaska Stock v. Houghton Mifflin Harcourt, which began in 2009 when Alaska Stock sued the publisher for using Alaska Stock images well beyond the scope of the original usage license. In particular, the publisher “greatly exceeded” the print run limit of the license it had paid for.

Houghton Mifflin challenged the claim on the grounds that Alaska Stock had improperly registered the images in question. (Federal law requires valid registration of any copyrighted work that is the subject of a federal copyright claim.)

Alaska Stock had registered the images in bulk, as a catalogue, listing names of only three photographers, and describing the images in general, but not listing a title for each photograph.

The district court agreed with Houghton Mifflin that Alaska Stock’s registration was “defective” because the agency had not provided the names of each of the photographers and the titles of each of the photographs in its registration application, as required “unambiguously” by law, according to the district court decision.

But the appeals court overturned that decision because it conflicted with a long-standing practice by the Register of Copyrights, undercut the legal authority of the Register of Copyrights to establish procedures of copyright registration–and amounted to a misreading of copyright law by the district court.

The appeals court noted that for more than 30 years, owners of collected works–notably magazines and newspaper publishers–have been legally registering both the collected work and the individual underlying works with one application, without listing all the authors or titles of the individual works. To do otherwise would put an undue burden on applicants and the Register of Copyrights, the court noted

The one caveat to that practice is that applicants for registration must own copyright to the collected work and all the underlying works, the appeals court noted.

In its decision, the appeals court also validated a 1995 letter from the Register of Copyright to the Picture Agency Council of America (PACA) prescribing a method for registering large catalogues of images. “The Register agreed that a stock agency could register both a catalog of images and the individual photographs in the catalog in one application if the photographers temporarily transferred their copyright to the stock agency for the purposes of registration,” the appeals court said in its ruling.

Alaska Stock did exactly that, asking its photographers to transfer copyrights to the agency for the purpose of registering the images in bulk, and then filing a registration application for a CD catalogue of images. (The agency arranged to transfer copyrights back to the photographers after the registration was completed.)

In reviewing the registration requirements spelled out under copyright law, the appeals court said the law requires only that copyright owners provide a title of the collected work and a description (not titles) of the underlying works. Alaska Stock met that requirement, the appeals court said, by registering the images as a collected work called “Alaska Stock CD catalog 4,” and by identifying the underlying works as “CD catalog of stock photos” on its registration form.

The appeals court said the statue requires the name of the author of “the work”–ie, the collected work, not every author of the the individual works. The stock agency met the requirement by listing itself [Alaska Stock] as the author of the collective work, the appeals court said.

The appeals court noted that Houghton Mifflin’s arguments have prevailed in several district court decisions in other similar cases, “but we do not agree with them,” the appeals court added.

In those cases, the courts threw out copyright claims because the registrations were “defective,” i.e., they did not list all the image authors and image titles.

Three of those cases were filed in the Ninth Circuit. One case was settled; two others are under appeal, and will probably be re-instated because of the Alaska Stock decision. “Judges in the Ninth Circuit have to follow the ruling of the court of appeals” in that circuit, says Maurice Harmon, who represents the plaintiffs in all the cases, including the Alaska Stock case.

A fourth case is on appeal in New York, which is in the Second Circuit. Judges there are not bound by the Ninth Circuit decision in the Alaska Stock case. But Harmon believes judges in other circuits “will take it into consideration.

“We think that at the court of appeals level, we’re starting to get momentum for all of these cases,” he adds.

Harmon also says, “It galls me that these [textbook] publishers, who use compilation registrations [to protect their own works], would turn their backs on the very thing they rely on to win a technical victory to take the courthouse keys away from photographers.

“But they know that once a photographer gets in the door of the courthouse, the publishers are not going to get away with this copyright infringement.”

Related:
After Flouting Print Run Limits, Publisher Faces Dozens of Lawsuits

March 19th, 2014

Richard Prince Settles with Photographer Patrick Cariou

One of Patrick Cariou's photographs, altered by Richard Prince

A fair use alteration of one of Patrick Cariou’s photographs, by Richard Prince.

Artist Richard Prince has paid an undisclosed sum of money to photographer Patrick Cariou to tie up the loose ends of their five-year copyright battle, The New York Times has reported.

Prince previously won an appeals court decision in 2013 dismissing most of Cariou’s copyright infringement claims. Cariou had alleged infringement of 30 images from his book Yes, Rasta that Prince had appropriated for a series of paintings. Most of the paintings sold through Prince’s gallery, fetching more than $10 million dollars.

The US Court of Appeals for the Second Circuit, located in New York City, ruled that 25 of Prince’s works qualified as fair use of Cariou’s photographs because Prince transformed them with “an entirely different esthetic.”

But the appeals court declined to rule on Prince’s fair use defense for the remaining five works, and sent the case back to a lower court for further consideration of Cariou’s claims surrounding those five works.

The settlement resolves Cariou’s claims related to those five works.

The lower court had originally ruled in Cariou’s favor on all of his claims, because Prince wasn’t commenting on Cariou’s photographs or otherwise referencing their original meaning in his paintings; he was simply using Cariou’s photographs as raw material.

The appeals court’s decision favoring Prince remains controversial. While many in the art community have applauded the decision, many photographers contend that it unfairly expanded the boundaries of fair use, and made their images more vulnerable to appropriation as raw material by other artists.

Related:
Supreme Court Declines to Hear Patrick Cariou’s Claim Against Richard Prince
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
In Cariou v. Prince, An Appeal to Clarify a Crucial Fair Use Boundary
Appropriation Artist Richard Prince Liable for Infringement, Court Rules

March 17th, 2014

Photographers Could Get Royalties on Auction Sales Under Proposed Federal Bill

Few things are as frustrating to photographers as selling a print for a few thousand dollars–or less–then watching collectors reap huge profits by re-selling those same prints at auction years later for tens of thousands of dollars–or even more.

Two US Senators and a US Congressional representative have introduced a bill to cut visual artists in on that action with a 5 percent royalty on the price of visual works re-sold at auction. If it becomes law, the bill would apply only to works sold by auction houses–not by private individuals or dealers–and only when the auction price of a work exceeds $5,000, according to a report on the Art Law blog of Frankfurt, Kurnit, Klein & Selz (FKK&S), a New York law firm.

The auction royalty would be capped in 2014 at $35,000 for each sale. The cap would be subject to an inflation adjustment every year after that, according to the FKK&S report.  Auction houses would be obligated to collect the so-called auction royalty, and subject to civil claims from artists if they fail to collect and pay the royalty.

The bill, called the American Royalties Too Act (ART Act), was introduced last month in the Senate by Tammy Baldwin (D-WI) and Ed Markey (D-MA), and in the House by Congressman Jerrold Nadler (D-NY).

“American artists are being treated unfairly,” said Nadler in a prepared statement. “The benefits derived from the appreciation in the price of a visual artists’ work typically accrues to collectors, auction houses, and galleries, not to the artist.”

He noted that visual artists in 70 other countries are compensated when their works are re-sold at auction.

Unable to collect royalties from the re-sale of existing prints that have increased significantly in value, US photographers sometimes respond by issuing new limited editions of their prints–in different sizes or using different printing processes from earlier editions.

That practice angers collectors. For instance, William Eggleston created limited-edition digital inkjet pigment prints of some of his most iconic images, and earned $5.9 million by selling them at a Christie’s auction in March, 2012. He was promptly sued by financier Jonathan Sobel, a long-time collector of Eggleston’s vintage dye-transfer prints. Sobel alleged that the new prints devalued Sobel’s dye transfer prints and amounted to a breach of contract on Eggleston’s part.

Sobel eventually lost the legal fight, although he had the sympathy of dealers and gallerists who worry that photographers could harm their reputations and the market for photographic prints if they anger collectors by issuing new editions.

The ART Act, if it becomes law, could help reduce incentive to issue new editions by giving photographers another way to profit from the dramatic rise in the value of their work.

But success of the bill is by no means assured.

Nadler introduced a similar bill in 2011 that died in committee. The US Copyright Office, which was opposed at the time to instituting resale royalties for visual artists, has since changed its position on the matter, according to the FKK&S report. But collectors and auction houses are certain to object to paying royalties to artists. And the ART Act seeks to change a long-entrenched principle of copyright law called the First Sale doctrine, which  allows buyers of copyrighted works to do with them as they please, with no obligation to the artists who made them.

Related:
Collector Sues Eggleston Over New Prints of Limited Edition Works

Q&A: Art Collector Jonathan Sobel Explains His Beef with William Eggleston

What Does Limited Edition Really Mean? (subscription required)

March 6th, 2014

Getty’s Craig Peters on Why Free Images Are Good for Photographers, And for the Photo Industry

Following the announcement by Getty Images that the agency would be allowing non-commercial uses of its images free of charge, we interviewed Craig Peters, Senior Vice President of Business Development, Marketing at Content Images at Getty, to try and find out what the agency hopes to gain from this extraordinary decision.

As we reported today on PDNOnline,  Getty has released a new embed tool to make it easy for non-commercial users to share images from Getty on websites, blogs and social media channels. The new tool enables Getty to collect data on those users and and push ads through the embed viewer. We asked Peters how ad revenue will be shared, what this new business model means for the perceived value of images, and whether Getty is changing its position on enforcing copyrights on images.

(We used the image above for free, using Getty’s Embed tool)

PDN: Getty has various collections, from different sources. What images are excluded from this free usage initiative?
Craig Peters: It’s hard to give you a specific answer. The vast majority of images are in, [unless] we have restrictions from the photographer or copyright owner.

PDN: Are news and celebrity images available as soon as Getty uploads them?
CP: They’re made available as soon as they’re uploaded.

PDN: Why is Getty giving up on the idea of charging everyone–even small non-commercial users– for use of images? (more…)

January 13th, 2014

Getty, AFP Appeal $1.2 Million Jury Verdict in Daniel Morel Case

Getty Images and Agence France-Presse (AFP) have asked a federal district court to undo the $1.2 million jury verdict against them for willful infringement of photographer Daniel Morel’s copyrights, calling the verdict “a miscarriage of justice.”

In a brief they submitted to the US District Court in Manhattan last week, the agencies argued that “no reasonable jury could conclude either AFP or Getty acted willfully as defined under applicable law, based on the evidence in the record.”

They asked the court to vacate the decision in one of three ways: declare that AFP and Getty are liable for “regular” rather than “willful” infringement, thereby forcing a reduction of the damages awarded; give the agencies a chance to re-argue their case before a different jury; or simply cut Morel’s award for copyright infringement from $1.2 million to $200,000 and call it a day.

A jury awarded Morel $1.2 million on November 22 after it determined that AFP and Getty Images willfully infringed his copyright by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included damages for violations of the Digital Millennium Copyright Act.

The award was the maximum amount of statutory damages possible under the law in the case, given that the jury found that both agencies infringed with willful intent.

In asking the court to overturn the verdict, Getty and AFP noted the the jury award was “60 times the maximum actual damages [Morel] could have recovered based upon [AFP's] after-the-fact willingness to pay him $20,000.” They also said the award was 4,700 times the day rate that professional photographers are paid on a freelance basis.

AFP had initially distributed Morel’s images under the name of Lisandro Suero, who had stolen them from Morel’s Twitter feed. Both AFP and Getty argued in court that their distribution of Morel’s images was not willful, but instead the result of honest mistakes that they tried to correct.

After learning that the images were Morel’s, AFP offered to pay him $20,000. He rejected the offer.

Morel’s attorney got a key AFP employee to admit in court that in his hurry to upload images of the earthquake, he had not followed company guidelines for obtaining news images from online sources.

The infringement “was obviously willful on AFP’s part because they didn’t check on the author of the photographs. The whole mess stemmed from that,” a juror told PDN after the verdict was handed down.

That same juror explained that the jury consider Getty’s infringement willful because e-mail evidence showed some Getty employees knew almost immediately that the images were Morel’s. Still, the agency continued to distribute them with credit to Suero for more than two weeks after the earthquake.

In their motion to reduce the award, Getty and AFP argued that the evidence does not show willful infringement. The agencies also argued that they did not violate the Digital Millennium Copyright Act, contrary to the  jury’s findings.

The agencies have an uphill battle to vacate or reduce the verdict because judges are often reluctant to overturn jury verdicts.

But the agencies have incentive to try because there’s more at stake than a $1.2 million judgment for one photographer: If the Morel verdict stands, it could encourage other photographers to play legal hardball with news agencies that rush to distribute breaking news images without permission, while hoping to negotiate fees with copyright holders after the fact.

Related:
Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

November 14th, 2013

Judge Dismisses Authors Guild’s Copyright Lawsuit Against Google

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

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

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

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

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

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

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

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

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

November 12th, 2013

Supreme Court Declines to Hear Patrick Cariou’s Copyright Claim Against Richard Prince

An image from Richard Cariou's book Yes, Rasta, as it was altered by Richard Prince.

An image from Richard Cariou’s book Yes, Rasta, as it was altered by Richard Prince.

The US Supreme Court has declined to review Patrick Cariou’s copyright infringement claim against artist Richard Prince, the Associated Press has reported.

A federal appeals court ruled last spring that artist Richard Prince did not infringe Cariou’s copyrights by reproducing several dozen of Cariou’s images without permission. The appeals court said Prince’s use of Cariou’s images was fair use in most instances, overturning a lower court ruling that had declared Prince liable for infringement.

By refusing to hear the case, the US Supreme Court has effectively let the appeals court decision stand. The high court did not give a reason for its decision.

At issue in the case was a series of paintings and collages that Prince created by appropriating images from Cariou’s book Yes, Rasta. Prince altered the images in various ways for a series of paintings called “Canal Zone,” which he displayed at the Gagosian gallery in New York in 2008. Most of the works eventually sold, fetching a total of $10.4 million.

In its ruling for Prince, The appeals court took a broad view of fair use, finding that Prince’s works qualified as fair use even though they were not intended as commentary on the original works by Cariou. The decision was a victory for appropriation artists, who take elements of works by other artists without permission, and use them in new contexts, often as a form of commentary on society or popular culture.

Related:
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says

October 24th, 2013

PPE 2013: Photography & The Law: Access, Copyright and Social Media Issues

During a talk at PhotoPlus Expo 2013, sponsored by the National Press Photographers Association (NPPA), attorneys Mickey Osterreicher and Alicia Wagner Calzada provided tips for how photographers can protect their First Amendment rights and control the copyright and distribution of their work.

Tips On the Right to Photograph in Public

Osterreicher, who is the general counsel for the NPPA and was a working photographer for 40 years before he became a lawyer, offered advice for news photographers in dealing with police.

He noted that photographers or videographers are never arrested for documenting a news event in public. Instead they are arrested for “discretionary charges,” what he termed “catch and release” charges, which can include disorderly conduct, disturbing the peace and loitering.

If a police officer orders a photographer to stop taking pictures in public, they are violating the rights of that photographer, Osterreicher said. Photographers can avoid being accused of interfering with or obstructing police officers by following reasonable directions from police when they’re given. He also mentioned that it’s prudent to be aware that officers are concerned with things like weapon retention, making sure nobody is close enough to them to reach for their gun. If a photographer is in an officer’s face with a camera, the officer can reasonably claim that photographer is interfering or obstructing their work. (more…)

October 23rd, 2013

NFL, Getty and AP Hit With Copyright Infringement Lawsuit

Seven photographer are suing the National Football League and two image distributors–Getty Images and Associated Press (AP)–for copyright infringement over widespread use of their images in NFL ads, products and promotions without fair compensation, according to an October 21 report from Courthouse News Service.

The lawsuit, filed in federal court in New York, is a legal tangle because Getty and AP represented the photographers, and were authorized to license their work at the time of the alleged infringements. But the case boils down to allegations that Getty and AP breached their fiduciary duty to the photographers because of conflicts of interest.

Both distributors had incentive to curry favor with the NFL in order to gain and hang onto an exclusive contract to license images of NFL events to third parties for commercial use. Getty won the contract in 2007, then lost the contract to AP in 2009.

According to the lawsuit, the photographers “recently discovered that both Getty Images and AP granted the NFL nearly unfettered access to plaintiffs’ photo collections and, either expressly or by inaction, allowed the NFL to make free or ‘complimentary’ use of plaintiffs’ copyrighted photos.”

According to the Courthouse News Service report, the photographers are also accusing Getty of using bare-knuckle tactics to keep them from moving their images to AP, after AP won the exclusive NFL contract in 2009. Specifically, the plaintiffs allege that Getty threatened to stop marketing all of their sports images–including Major League Baseball photos–for commercial use, if the photographers moved their NFL images to AP.

Photographer Paul Spinelli is the lead plaintiff in the case. The other photographer plaintiffs are Paul Jasienski, David Stluka, Thomas E. Witte, David Drapkin, George Newman Lowrance and Scott Boehm.

AP and Getty both declined PDN’s request to comment about the lawsuit.

October 4th, 2013

If We Spend $25K On A Photo Essay, Readers Should Pay to See It, Says Harper’s Publisher

Harper’s publisher John R. MacArthur wrote a letter for the October issue of the magazine in which he took a strong stand against publishing free writing and photography on the web. He tackles the question of how journalism should be funded and distributed today, arguing that publishers, readers and journalists should reject the idea that good journalism should be given away for free in hopes of gaining page views. When he talks about good journalism, he includes good photography. (We’ve noted previously that Harper’s has become a great publisher of photography, winning National Magazine awards and other accolades.)

MacArthur says he has been distressed in recent years as publishers give away the work done by journalists and editors “in the quest for more advertising. Instead of honoring the reader, writer, and editor, this new approach to the publishing business instead insulted them,” MacArthur writes, “both by devaluing their work and by feeding it—with little or no remuneration—to search engines, which in turn feed information to advertising agencies (and, as it turns out, the government.)”

MacArthur says advocates of free content are peddling “nonsense.” “Who needs fact-checkers when we have crowdsourcing to correct the record? Why doesn’t Harper’s give away a particularly good investigative piece… so more people will read it?”

He also has the temerity to suggest that publishers, journalists and editors “have to earn a living.” He singles out a recent photo essay by an anonymous photographer, who risked arrest and imprisonment to report from inside Iran. The assignment cost the magazine $25,000, MacArthur says. “Shouldn’t Anonymous be paid for this courage and skill?” MacArthur asks. “Shouldn’t Harper’s be compensated for sending Anonymous into the field?”

“It is unreasonable to expect that an advertiser would directly sponsor such daring photography,” MacArthur writes. “It is wishful thinking to believe that parasitic Google, now bloated with billions of dollars’ worth of what I consider pirated property, will ever willingly pay Harper’s, or Anonymous, anything at all for the right to distribute Anonymous’s pictures…”

MacArthur will hopefully forgive us for quoting him at length on our blog, which is not behind a paywall. Those who want to read the rest of his statement, and see Michael Christopher Brown‘s fantastic photographs from Libya, or Misty Keasler‘s touching images accompanying a report about a controversial Montana orphanage for Russian children, will have to pick up the magazine on the newsstand, or subscribe for $20, about twice what I will probably spend on lunch today.