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July 31st, 2012

With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case

Arguing that its Google Books program makes fair use of copyrighted books by providing an indispensable public service, Google has asked a federal court to dismiss The Authors Guild’s claim that Google is infringing the copyrights of authors on a “massive” scale.

Google has scanned more than 12 million books–many of them still under copyright protection–as part of its Google Books program. Google indexes every word of the scanned books. It then makes snippets of the books available in search engine results, according to keywords entered by Google search engine users.

Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.)

The Authors Guild originally sued Google for copyright infringement in 2005, alleging the search engine company is scanning books without permission from authors for its own commercial gain. The guild says the Google Books program undermines the ability of authors to license and sell their books. It is seeking a court injunction to stop the Google Books program. The American Society of Media Photographers has filed a similar but separate lawsuit against Google in 2010.

In making its fair use argument, Google paints itself as a beleaguered public servant, prevented from advancing human knowledge by specious claims of copyright infringement.

“Google Books is an important advance on the card catalogue method of finding books,” the company says in its motion. “The advance is simply stated: unlike card catalogues, which are limited to a very small amount of bibliographic information, Google Books permits full-text search, identifying books that could never be found using even the most thorough card catalog. Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

Google says that users cannot download the entire text of the books that show up in the search engine results. It only leads them to relevant books which they can purchase elsewhere if they wish.

The scanning and indexing of the books is fair use, Google argues, because the end use (thorough indexing of every word of every book) is “highly transformative”:  Google search engine users can search for information and get results showing snippets from all books containing the search terms. “Indeed, it is no overstatement to say that Google Books has transformed scholarly research,” the company says in its motion. “Google Books yields a literally unprecedented public benefit, and that benefit militates strongly in favor of a finding that Google’s scanning,indexing, and snippet display constitute fair use.”

Google does not mention that its apparent fit of civic virtue is driven by the potential to turn a profit by scanning and indexing the copyright works of authors. Those who use the Google Books index would effectively provide Google with personal information every time they did a search. That information could be sold to marketers, or used by Google to push highly targeted advertisements to Google search engine users.

But Google waves its hands to distract the court’s attention from all of that: “Google’s status as a commercial entity does not tip the scales against a finding of fair use…Much more significant is that a student or professor (or indeed anyone who finds a Library Project book on Google Books) is engaging in precisely the sort of use historically favored as noncommercial.”

Google and The Authors Guild had reached a tentative agreement in 2009 to settle the case. It would have allowed the Google Books program to continue if authors were allowed to opt out. But the judge in thee case rejected the agreement. He said the agreement would have to be ‘opt in’ for all authors (rather than opt out) in order to comply with copyright law.

Google has rejected an ‘opt in’ system as too cumbersome, so the Authors Guild suit has continued. The ASMP lawsuit is also pending.

Without commenting directly on Google’s motion, attorneys for The Authors Guild say they have filed their own motion for summary judgment. That motion is not yet available for public review, however.

Related stories:
Judge Block’s Google’s Divide-and-Conquer Strategy in Big Copyright Case
ASMP, Other Trade Groups Sue Google (subscription required)

July 26th, 2012

Stipple’s Free Image Tagging Platform Aims to “Solve Image Attribution Problem”

Image technology company Stipple has launched the free public beta version of its image tagging platform, which allows users to permanently embed attribution and other content—from editorial to e-commerce links—into their images. The company hopes that their service, which has been adopted by more than online 4,000 publishers to date, and as of today is available to the general public, will help photographers, publishers and brands keep track of and monetize their images no matter where they appear on the internet.

Users of Stipple can upload images into the platform and then embed them with any content connected to a URL. For photographers this might include copyright information and a link back to their Web site, or to videos or articles that might enrich a viewer’s experience of a particular image. The information stored in the image by Stipple, the company claims, will follow that image wherever it is published on the Internet, even if the photograph’s metadata is stripped away. Other companies, such a PicScout, have offered similar services intended to help image makers and licensors protect their copyrights.

The Stipple platform also gathers data on images uploaded into the Stipple system that will allow photographers to keep track of where their images are being republished, and see how many people are viewing and engaging with their images and the content they embed into them.

“Stipple is all about context,” photographer Gerald Holubowicz told PDN via email. Holubowicz is one of a handful of photographers who were invited to participate in a private beta test. “It will help me bring more details and a wider narrative into the imagery I’m publishing…. I really like the fact that we can add videos, external links to articles or a Twitter feed.” Holubowicz says he plans to link his images to sites where he sells fine-art prints or his book.

For more information about Stipple or to try the platform visit www.stipple.com.

July 12th, 2012

Civil Rights Group Demands End to Use of Same-Sex Couple Photo in Anti-Gay Ad

© Kristina Hill

When wedding photographer Kristina Hill learned that her engagement photo of a same-sex couple had been used without her permission in a political flyer attacking same-sex marriage, she told PDN she wasn’t sure she had the resources to pursue a long legal battle. Now Hill and her clients have an ally. Southern Poverty Law Center (SPLC), the civil rights organization, yesterday sent a cease and desist order to Public Advocate of the United States, a right-wing political organization, demanding they confirm they are no longer using the image. In the order,  SPLC also says they are considering other possible legal action for infringing Hill’s copyright.

Hill’s photo shows Tom Privitere and Brian Edwards, a New Jersey couple, kissing. Public Advocate of the United States used the photo without the permission of Hill or her clients in a flyer attacking Republican Colorado State Senator Jean White, who had supported civil unions for same-sex couples. The photo, digitally altered to strip out the New York City skyline, appears under the words “State Senator Jean White’s idea of ‘family values?’”

Public Advocate had defended its unauthorized use of the image on the grounds that others “make fair use of our materials.”

SPLC has previously labeled Public Advocate “a hate group,” and noted in a statement released yesterday that it has “a history of attacking the LGBT community.” The statement quotes Christine Sun, deputy legal director at the SPLC, saying that the alteration and unauthorized use of Hill’s photo was “morally reprehensible.” Sun says, “This latest attack is the most vicious yet and should serve as a warning that your personal photos are not safe from anyone willing to stoop to the vilest level of harassment.”

In the SPLC statement, Hill says she took the engagement photo to document her clients’ love. “When I saw how my image was used, I was sad for Brian and Tom. I was angry that someone would take my work, distort it and use it to reflect the opposite of what it was meant to express.”

Related Article
Wedding Photographer Might Sue for Copyright Infringement Over Anti-Gay Attack Ad

June 29th, 2012

Wedding Photog Might Sue for Copyright Infringement Over Anti-Gay Attack Ad

Wedding photographer Kristina Hill says she’s contemplating legal action for copyright infringement against a Virginia-based group that has ripped off one of her images of a same-sex couple, and used it to create a political attack ad.

The group, called Public Advocate of the United States, used an engagement photo of Hill’s showing her clients kissing. The group used the image in a political ad attacking Colorado State Senator Jean White, who has voted in favor of allowing civil unions in Colorado.

Public Advocate, which is designated a “hate group” by the Southern Poverty Law Center.  cropped Hill’s image, stripped away the background of the New York skyline, and replaced it with a background of a Colorado landscape in winter. The group also superimposed text that read: “State Senator Jean White’s idea of ‘family values?’”

©Kristina Hill

The ad was created for a conservative anti-gay opponent vying for White’s senate seat. White was defeated in that race.

One of the men in Hill’s photograph, Brian Edwards, was notified by a friend about the ad. Edwards minced no words about it on his blog called The Gay Wedding Experience: “How do I feel? I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.”

According to The Denver Post, Edwards and his partner have hired a lawyer.

Hill also wrote about the theft on her blog. “To see an image, taken with that intent being used in the way it was used is heart-breaking for me,” she said. (Hill was a PDN Top Knots contest winner in 2010.)

In The Denver Post story about the ad, Public Advocate defended its unauthorized use of the image on the grounds that others “make fair use of our materials.” (Public Advocate’s web site says it is “fighting Liberals Tyrants Elitists Homosexuals Barack Obama pornography gay marriage same-sex marriage high taxes over-regulation.”)

In an interview with PDN, Hill said of Public Advocate’s use of her image, “It’s obviously copyright infringement, and I plan to pursue it.”

She’s just not certain she has the resources–or the stomach–for a protracted court fight. “There’s not going to be monetary gain in my lawsuit. I don’t care. I would be looking for justice. But it could drag on for years, and rack up a lot legal fees for me, and I don’t have a ton of money.”

She adds, “They’re a powerful organization that did this. I’m one tiny photographer. It’s scary. It could be a lot of tearing me apart. It could get ugly.”

June 5th, 2012

The Most Tasteless Copyright Infringement Ever?

Copyright infringement is so commonplace these days, it’s hard to shock us, but this flyer posted around New York’s East Village managed to do it.  The flyers for Centaur Moving show copies of Don McCullin’s award-winning photo of a Turkish woman mourning her dead husband, killed in the civil war in Cyprus in 1964. What does a photo of grief, death and war have to do with furniture movers?

After photographer Ashley Gilbertson tweeted a photo of the flyer, we called Centaur Moving for information (and walked over to Second Avenue to grab a camera-phone pic of one of the flyers). A man who identified himself only as Roger, the company’s manager and dispatcher, answered the phone. Roger said that he had hired an artist who does guerilla advertising, and knew nothing about the ad. Asked if he knew the origin or content of the photo, he said, “I have no idea. I just gave him a few bucks.” We have been unable to reach the guerrilla ad guy.

In PDN’s “Heroes and Mentors” issue, McCullin talked candidly about his frustration that his 50-year career as a photojournalist has done so little to end violence or conflict, and the psychic toll that he has paid for witnessing the horrors of war. It’s hard to imagine he envisioned the fruits of his labors being misappropriated to promote a man with a van.

The flyers stirred some quick action. When photographer Yunghi Kim saw Gilbertson’s Twitpic, she got in touch with Jeffrey Smith at Contact Press Images, the agency that represents McCullin. Smith says, “I responded by sending a cease and desist letter” to the moving company on Sunday. We took a quick look this morning, and the flyers seem to have been torn down—though whether they were removed by a contrite Roger, a rival moving company, or outraged photographers, we’ll never know.

Related article
Heroes & Mentors: Don McCullin and Eugene Richards

May 31st, 2012

Judge Allows ASMP and Authors Guild Suits Against Google to Proceed

A federal court judge has ruled that the Authors Guild and the American Society of Media Photographers have standing to sue Google on behalf of their members to try to stop the Google Books program. The trade associations have filed two separate lawsuits on the grounds that Google is copying millions of books without permission, in violation of copyright law.

The interim ruling in the case, issued today also cleared the way for Authors Guild members to press their case as a class action lawsuit, which Google had tried to prevent.

The ruling is a procedural decision, not a final ruling on the merits of the case. But it is important because it effectively blocks Google from using a divide-and-conquer strategy to defeat the claims of the plaintiffs.

The full story is now on PDNOnline.

 

May 10th, 2012

The Art of the Steal: Warhol Didn’t Get Away With It. Why Should Richard Prince?

As we’ve reported in our coverage of photographer Patrick Cariou’s infringement claim against Richard Prince, Prince and his defenders argue that appropriation art does little harm to individuals from whom appropriation artists steal their raw materials. Their implied question: Where would civilization be without the great works of appropriation artists like Andy Warhol and Robert Rauschenberg?

Credit The Art Newspaper, a British publication, with taking on that argument. Yesterday they reported that Warhol, Rauschenberg and other big name appropriation artists quit stealing the work of others–and started getting licenses instead–after they got sued once or twice (or five times) for infringement.

“There is growing evidence—albeit rarely reported—that, although these artists may have started out as willing or unwitting outlaws, they decided that possibly infringing other artists’ copyright was legally unwise and potentially expensive, and they stopped,” writes Laura Gilbert for The Art Newspaper.

She reports that Andy Warhol faced lawsuits in the 1960s for unauthorized use of photographs by Patricia Caulfield, Fred Ward, and Charles Moore. He settled the claims out of court, and afterwards started asking for permission before incorporating works by others into his own creations. “He learned a lesson from the lawsuits,” Warhol’s gallerist, Ronald Feldman, told Gilbert.

Robert Rauschenberg was sued in the 1970s for unauthorized use of one of Morton Beebe’s photographs. After settling the suit in 1980, Rauschenberg reportedly quit appropriating the work of other artists. Jeff Koons, another appropriation artist who was famously sued (and lost) over the “String of Puppies” sculpture he copied without permission from a photograph, no longer uses the work of others without permission, his lawyer told The Art Newspaper.

Gilbert cites other examples, too. The message is that former art pirates with big names weren’t above the law, after all, and when they were sued into compliance, it wasn’t the end of appropriation art, much less civilization.

Richard Prince has already been held liable for infringement by a federal trial court judge. His appeal is pending. A victory for Prince, it seems, would put him in a special class of pirates with immunity, pretty much by himself.

Related:
Appropriation Artist Richard Prince Liable for Infringement, Court Rules
In Cariou v. Prince, an Appeal to Clarify a Crucial Fair Use Boundary

May 7th, 2012

Morel Releases More Evidence Against AFP, Getty in Copyright Case

Photographer Daniel Morel, who had his exclusive Haiti earthquake images ripped off by Agence France-Presse and Getty more than two years ago, has released more evidence in his claim against the two wire services in his ongoing fight for justice.

The new details, which are part of a motion Morel filed last month asking the judge to hold Getty and AFP liable for infringement, were sent by Morel’s lawyer to PDN and several others. They are neatly summarized by Jeremy Nicholl on The Russian Photos Blog.

Nicholl leads off by quoting an internal e-mail from AFP deputy photo editor for North America Eva Hambach:  “AFP got caught with its hand in the cookie jar, and will have to pay.” Ten days after Hambach wrote that to a colleague in March, 2010, AFP slapped Morel with a lawsuit to gag him and punish him for publicly accusing AFP of violating his copyrights.

To re-cap, Morel–a native of Haiti and a former AP photographer–was in Haiti at the time of the January, 2010 earthquake. He posted exclusive images of the destruction on his Twitpic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them under the false credit through its own image service and through Getty. They did that even though editors at both companies knew that the images were Morel’s, and that they did not have his permission to distribute them.

Morel objected. His agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them.

With Morel continuing to insist that his copyrights had been violated, AFP sued, and Morel fought back. Getty and AFP have done their best to wear Morel down by dragging out the process, but the photographer has refused to give up. He has already won an important decision against AFP, which argued that anything posted on Twitpic is free for the taking, according to the Twitpic terms of service. The court summarily rejected that defense.

Meanwhile, Getty continues to try to hide behind the Digital Millenium Copyright Act. The company says, in effect, that it was merely a passive provider of server space to AFP so it shouldn’t be held liable as an infringer. On the grounds that Getty is AFP’s partner and an active marketer and distributor of AFP images, Morel is asking the court to reject Getty’s DMCA defense.

What it boils down to is a case of two companies bullying a photographer they got caught stealing from. AFP and Getty aren’t the first to move images without permission in a cutthroat business that has a history of steal-now-and-apologize-later tactics. What’s unusual is the unwillingness of the two companies to own up to their ethical lapse and legal breach by apologizing and quietly paying to settle it.

We contacted Hambach to ask her about the internal repercussions of her “cookie jar” e-mail. Was she taken to the woodshed for it? Is there any sign that AFP is taking stock of its policies with regard to recouping images? “I can’t talk about this now,” she said, ending the conversation at the mention of her e-mail.

A hearing on Morel’s motion for summary judgment is scheduled for July. The judge is unlikely to issue a decision before fall.

May 4th, 2012

New Pinterest Credit Feature Does Little to Protect Pinterest Users

Several days ago, Pinterest announced a new feature that automatically credits and links back to content that Pinterest users re-post from Vimeo, YouTube, Behance and Flickr. The announcement was part of Pinterest’s campaign to counter perceptions that copyright infringement is part of its corporate DNA. But the announcement amounted to little more than window dressing, and could give Pinterest users a false sense of security.

Pinterest, as we pointed out in a recent story, puts all the liability for infringement squarely in the lap of its users. The service enables those users to “pin” content from anywhere on the web onto a virtual bulletin board. Average users don’t realize that what Pinterest encourages them to do–copy and re-publish digital content without permission–is a copyright violation. Not surprisingly, Pinterest doesn’t go out of its way to make that clear to its users.

The automatic credits and link-backs to Vimeo, YouTube, Behance and Flickr don’t give users any added protection. For one thing, content owners post videos and photos to those four sites expecting–no, encouraging–others to share their content. In other words, most people who use YouTube, etc. would sooner thank Pinterest users for re-posting (“pinning”) their digital files than sue them for infringement.

A real accomplishment on Pinterest’s part would be to add a feature that automatically credits and links back to every item re-posted by a Pinterest user. That might satisfy content owners who don’t mind others re-posting their photos, etc. as long as they credit the owners. And it might help people who object to having their content used without permission discover the unauthorized uses and put a stop to it: They could send a take-down notice to Pinterest, and demand payment from the Pinterest user who violated their copyright.

That would be bad for Pinterest’s business, of course. But Pinterest risks little by its very limited credit/link feature, which could ultimately hurt Pinterest users by sending them a dangerous message: that it’s OK to “pin” content without permission as long as you give the copyright owner credit.

That isn’t the case, as any copyright lawyer will tell you. Copyright law says you can’t re-publish a work without permission from the copyright holder. Giving the owner credit is no substitute for permission. Pinterest still has much work to inform its users of their legal risks, and help those users protect themselves.

Related:
Copyright Watch: The Liability-Proof World of Pinterest

April 30th, 2012

Student Photographer Claims Falling Bear Photos Were Infringed

You may not know the name of photographer Andy Duann, but you may have seen his work. Duann, a photographer with the CU Independent, the student paper of the University of Colorado Boulder, photographed the bear that fell out of the tree on the school campus after it was tranquilized by wildlife officials (landing gently on some pads below). The CU Independent distributed his images to the Associated Press (AP), the Denver Post, the Colorado Daily  and other outlets. As the Poynter.org mediawire reported on Friday, Duann claimed that the school had no right to resell the images, because he holds the copyright.

Today Poynter reports that, in light of Duann’s complaint, the AP has yanked his falling-bear photos, and issued an advisory to its members to scrub the pics from their archives.

What’s at issue here is whether the student photographer is considered an employee of the university’s paper—and thus his images are automatically “works for hire”—or an independent contractor—and thus retains copyright to the images unless he’s signed a work-for-hire agreement. The faculty advisor to the paper says Duann’s an employee, but an attorney for the Student Press Law Center says no. A student is not in an employee/employer relationship with his school, and federal law requires a specific work-for-hire contract, not a general understanding, for the copyright to be transferred from the creator. (The attorney, Adam Goldstein, also provides a succinct and clear explanation of when work-for-hire does and does not apply. You might find it useful the next time a client hires you for an assignment and says, “But why don’t we own the copyright?”)

Poynter reporter Andrew Beaujon explains that as soon as Duann saw his photo on the Washington Post and elsewhere, he headed to the university law school to find out his options.

Hey, don’t say the young photographers of tomorrow don’t understand their intellectual property rights!

You can read the whole saga, including the story of how Beaujon got inadvertently involved in the copyright dispute, at Poynter.org/latest-news/mediawire. You can see other photos of the bear in mid-air, not taken by Duann, here.

Update: Some copyright information for student photographers has been posted at Student Press Law Center, splc.org.