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October 27th, 2015

Model Wins Defamation Claim over HIV Awareness Ad

© NY State Division of Human Rights

The model whose likeness appeared in the ad has won her defamation suit. © NY State Division of Human Rights

A model who was falsely identified as being infected with HIV in a 2013 public service advertisement is entitled to damages for defamation, according to a report in New York Law Journal.

State court judge Thomas Scuccimarra said in his ruling that falsely identifying the model in a stock photo as HIV positive was defamatory because “from the perspective of the average person, [it] clearly subjects her to public contempt, ridicule, aversion or disgrace.”

The model, Avril Nolan, sued for defamation after her likeness appeared without her permission in an ad by the New York State Division of Human Rights. The ad featured a photo licensed from Getty Images and headlines that said “I am positive (+)” and “I have rights.” The ad copy said, “People who are HIV positive are protected by the New York State human rights law” and provided information for contacting the state’s Division of Human Rights.

Nolan does not have HIV. But the photo, which was licensed from Getty Images, appeared with no disclaimer stating that Nolan was a non-infected model posing for a stock image.

Judge Scuccimarra said in his ruling that it was “self-evident” that the state’s use of the model’s likeness was defamatory, according to the New York Law Journal report. The standards for defamation, he explained in the ruling, are the “sensibilities of society as to what disease bears a pejorative stamp.”

The judge noted that the New York State Division of Human Rights ignored warnings provided by Getty with the image license not to use the photo in any way that might be considered pornographic, defamatory, unflattering or controversial to a reasonable viewer.

The judge rejected out of hand the state’s argument that it didn’t violate Nolan’s rights under the state’s Civil Rights laws because the ad was a public service announcement, rather than a commercial advertisement.

A trial date for damages has not been set.

Nolan also sued Getty for unauthorized use of the photo, claiming she had never authorized its use for commercial purposes. That claim was settled out of court earlier this year, according to New York Law Journal.

— David Walker

Related Articles

Model Release Lawsuit Survives Getty’s Challenge

What Photographers Need to Know About Model Releases

September 23rd, 2015

Selfie Copyright Battle: Monkey See, Monkey Sue

©David Slater (unless a court rules otherwise)

©David Slater (unless a court rules otherwise)

An animal rights group has filed a copyright ownership claim in federal court in San Francisco on behalf of a monkey that used British photographer David Slater’s camera to shoot a selfie, according to an Agence-France Press report yesterday.

Naruto, the six-year-old macaque, grabbed Slater’s unattended camera in 2011 and took at least two selfies. The incident occurred in Indonesia. The photographs have circulated widely on the internet, and have been the subject of a previous ownership dispute.

On Tuesday, PETA filed suit on Naruto’s behalf, seeking a ruling from the court that the monkey is the “author and owner of his photograph,” the AFP report says. Slater, who has previously claimed copyright to the image, is named as the defendant in the case.

PETA asserts in its claim that U.S. copyright law doesn’t prohibit animals from owning copyright, and since Naruto took the selfie, “he owns copyright, as any human would.”

PETA filed the lawsuit as part of a strategy to establish through legal precedent that non-human animals can have property rights. PETA says that if it prevails, the case will establish for the first time that rights beyond basic survival needs are extended to a non-human animals.

The U.S. Copyright Office said last year that it would not register works produced by “nature, [non-human] animals, or plants,” suggesting that the office doesn’t consider those entities to be “authors” eligible for copyright ownership under U.S. law.

In any event, the case will be a test of the court’s willingness to hear monkey business.

Monkey Selfie Not Eligible for Copyright Registration Under New Rules
The Monkey Selfie: Who Owns Copyright to It?

August 24th, 2015

What New Federal Trade Commission Guides Mean For Instagram Influencers

The Federal Trade Commission (FTC) has issued new guidelines regarding paid endorsements that photographers should be aware of—especially if they’re being paid to promote products on their Instagram feeds. This summer the FTC updated Guides to Section 5 of the FTC Act to add guidelines about how “Instagram influencers” and bloggers should identify any company or product they’ve been paid to promote.

Put simply, the Guides insist that if you are being compensated to endorse a company, product or event, you should say so. “The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading,” the FTC states.

According to the Guides, there are no fines for violations of the FTC Act. However, “law enforcement actions can result in orders requiring the defendants in the case to give up money they received from their violations.” Not to mention legal fees.

In the FAQ section, the FTC addresses blogs and social media specifically. “Truth in advertising is important in all media,” the Commission writes, “whether they have been around for decades (like, television and magazines) or are relatively new (like, blogs and social media).” (more…)

August 12th, 2015

Suspect Arrested in Murder of Photojournalist Ruben Espinosa

Ruben Espinosa says he was barred from official events in Veracruz and harassed after this photo he took of Veracruz governor Javier Duarte was published on the cover of Proceso in April, 2014. Duarte reportedly sent staff out to buy every available copy of the magazine.

Ruben Espinosa said he was barred from official events in Veracruz and harassed after this photo he took of Veracruz governor Javier Duarte was published on the cover of Proceso in April, 2014. Duarte reportedly sent staff out to newsstands to buy up every available copy of the magazine.

Mexican authorities recently announced the arrest of a known criminal for the execution-style murder of photojournalist Ruben Espinosa and four others, according to reports by The Guardian and Al Jazeera. The killings occurred July 31 in a Mexico City apartment.

Mexican prosecutor Rodolfo Rios Garza told reporters that the suspect, who reportedly has a criminal record for rape and assault, was tied to the murders by crime scene fingerprints that matched fingerprints in a criminal database. The suspect has not been named by prosecutors.

Meanwhile, authorities are still searching for two other suspects seen on a surveillance video, leaving the apartment building around the time of the murders. Prosecutors say the three men shown in the video left the scene in a car that belonged to one of the female victims, according to the press reports.

Espinosa had covered social protests in the Mexican province of Veracruz for the newspaper Proceso, Agencia Cuartoscuro and other news outlets. He had also covered the murders of journalists in Veracruz, and advocated for the administration of Governor Javier Duarte to investigate those killings. He told other journalists he felt threatened by by the Veracruz government, and he relocated to Mexico City in June after he noticed his house was being watched and he had been followed.

Murdered along with Espinosa were his friend Nadia Vera, a social activist; Yesenia Quiróz and Mile Virginia Martín, both roommates of Vera’s; and a housekeeper, Alejandra Negrete.

On August 2, journalists held a demonstration in Mexico City demanding that the government clarify that Espinosa was targeted for his journalism, and not killed in the course of a robbery, as police investigators had first suggested. Journalists told the Mexican publication SinEmbargo that Espinosa had felt threatened by the Veracruz government, which has been suspected to have played a role in the deaths of at least 12 journalists and the disappearance of others.

Mexican Photojournalist Murdered in Mexico City, after Fleeing Threats in Veracruz
Fleeing Violence against Journalists, Veracruz Photographers Seeks Asylum in US

July 22nd, 2015

The Photographer Who Rocked Taylor Swift: Open Letter Helped to Expose “Hideous Terms” Concert Photogs Face


There’s a neat symmetry to the Taylor Swift photo contract saga. It all began with an open letter, penned by UK concert photographer Jason Sheldon on his Junction10 blog, lambasting Swift for exploitative contract terms for her 1989 World Tour.

Sheldon’s open letter was sparked by Swift’s own public scolding of Apple for not paying artists during the three month free trial period of Apple music. And while Swift’s letter provoked a quick (or is that swift?) mea-culpa and an about-face from Apple, Sheldon’s appeal drew force more gradually from repeated media mentions, protests from news organizations and criticism from the National Press Photographer’s Association.

Shortly after the news broke that Swift’s team had altered its contract to appease critics, PDN reached out to Sheldon via email for his thoughts on the affair. What follows is an edited transcript.

PDN:  I’m wondering if you had any comment regarding the changes [Swift’s] team has made – do they go some (or all) of the way toward addressing your complaints?

Jason Sheldon: I’ve not had chance to examine the revised contract in detail – had a quick look and it appears to be a very positive step in the right direction. I think there are some minor points which I’d be happier tightening up, but I’m happy they’ve shown willingness to appreciate our rights a bit more.

PDN:  Are you surprised that your open letter has had the reaction and impact that it did?

Sheldon: I’m certainly pleasantly surprised it went viral.. It was good to have the support of publications like the Irish Times as well, who picked up on it and refused to agree to the terms of the contract.  It’s helped expose the hideous terms music photographers are sometimes forced to agree to (under economic duress) in order to carry out their jobs, and that is what it is – a job.

PDN:  Have you experienced any negative reaction (loss of work) from concert promoters or management teams because of your open criticism? 

Sheldon: Generally the feedback has been extremely positive on the whole. With various PR [reps] and promoters saying publicly that they agree with me – a few saying it privately as well. Of course, there has been some negative feedback which is to be expected, but most of it seems to come from people who have not read and understood the point of the open letter. These are usually the people that think we’re getting free concert tickets and living a parasitic existence off the back of the artist talent, which is certainly not the case. I haven’t lost any work from my stance, yet. But then, I’ve yet to apply for the Foo Fighters shows later this year.
July 21st, 2015

Taylor Swift Changes Photo Contract in Response to Online Outrage. Will the Foo Follow?

Jana Beamer | Flickr

Jana Beamer | Flickr

Evidently Taylor Swift doesn’t want there to be any bad blood between her 1989 World Tour and photographers. After an outpouring of internet outrage over her tour’s restrictive photo contract, Swift’s team has apparently relented.

Writing for Poytner, Benjamin Mullin notes that Swift’s team has removed elements that photographers had found objectionable:

According to a source who has seen the revised contract, Swift’s representatives are no longer empowered to forcibly remove images from the cameras of photojournalists. In addition, a stricture preventing photojournalists from using images taken at Swift’s concerts more than once has been loosened, allowing for some negotiation. And Swift’s representatives have agreed to credit photojournalists when the artist uses their photos.

Mashable has gotten a hold of the new contract and republished it here.

The changes were spurred by UK concert photographer Jason Sheldon and later by Mickey Osterreicher, general counsel for the National  Press Photographer’s Association, who has been speaking out against Swift’s contract since Sheldon’s open letter to Swift went viral.

Swift is not the only high-profile musician under fire for restrictive contracts.

The Washington City Paper refused to send a photographer to the Foo Fighters’s concert after writing that the Foo’s contract “sucked.” Instead, they commissioned a cartoonist to draw the band during the show. A Quebec paper, Le Soleil, followed suit.

Related: One Simple Way to Kill Restrictive Concert Photography Contracts

July 9th, 2015

How to Kill Restrictive Concert Photography Contracts

Gabbo T | Flickr

Gabbo T | Flickr

It’s boom times for concert photographers who want to complain about the terms of their contract. Jason Seldon’s public letter to Taylor Swift drew huge interest from traditional media companies, followed by the public calling out of the Foo Fighters by the Washington City Paper.

But, like a lot of online griping, the spilling of rage pixels rarely results in change.

Writing in his blog, the Norwegian photographer Jarle Moe argues that concert photographers wouldn’t be on the receiving end of unfair or overly restrictive contracts if they stopped thinking of themselves as concert photographers:

“If more, if not all, concert photographers identified as journalists and with the ethics that follow in their work, photo contracts would be a thing of the past. Signing a photo contract should be unacceptable, not because it’s disrespecting you as an artist, but because it’s a violation of the ethics you follow as a journalist.

So stop thinking about yourself primarily as an artist. You are a [photo]journalist. You may create art, but it’s more to it than that. You are a part of the freepress. Encourage new photographers to identify as journalists. Make the journalism be as natural to our profession as the artistry, and heed to the obligations that come with that label.”

Sound naive? According to Moe, Norwegian concert photographers banded together under a similar ethos:

“The Norwegian press as a whole, has made a joint statement to never sign any contracts put forward by artists or their management pushed forward by concert photographers, as can be read here. In Norway, most concert photographers are, in essence, photojournalists and identify more or less as such. And because of that, we are part of the press. We are not 100 concert photographers, but 7000 journalists.

Together we have a powerful voice. We generally do not meet any photo contracts, and the few we do, never gets signed. And because of that, contracts get fewer and fewer. With the press associations and unions behind us, we actually have a powerful voice against such demands, and the contracts get dropped (though, it has to be said that the local promoters have done tremendous work as well in that regard, but without all of the press acting like a collective, they would have no incentive to waiver the contracts). The aforementioned Foo Fighters contract? Guess what: that was not presented to the photographers in Norway. I can’t even remember the last time I “had” to sign a contract. That’s what having some integrity gets you.”

Sounds like an interesting strategy, but is it workable in a market as large and competitive as the U.S.?

July 6th, 2015

Not Just Tay Tay: Foo Fighters Called Out by Washington City Paper Over Contract Terms

A photo posted by Foo Fighters (@foofighters) on

Taylor Swift isn’t the only big-time musician to be called out for a restrictive photo contract. On July 2, the Washington City Paper took the Foo Fighters to task over a contract that they said “sucks.”

They wrote:

If we signed it, we would have agreed to: the band approving the photos which run in the City Paper; only running the photos once and with only one article; and all copyrights would transfer to the band. Then, here’s the fun part, the band would have “the right to exploit all or a part of the Photos in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all configurations” without any approval or payment or consideration for the photographer.

That is exploitation of photographers, pure and simple.

The paper’s editors say they protested the terms, only to be told by the Foo Fighters’ management that they were standard and that they “protect the band” — which is more or less the same response from the Taylor Swift camp after her contract came under fire.

Will publicly airing and criticizing the terms of a contract force a change? It’s too soon to tell, but we’re just one more story away from a bona-fide trend.

June 23rd, 2015

Court Rejects Rentmeester’s Infringement Claim Over Nike “Jumpman” Logo

© Jacobus "Co" Rentmeester

Rentmeester’s 1984 photograph of Michael Jordan for Life magazine. © Jacobus “Co” Rentmeester

A federal court in Portland, Oregon has dismissed photographer Jacobus “Co” Rentmeester’s copyright infringement claim against Nike for the same reason so many “copycat” infringement claims fail: Copyright law doesn’t protect ideas, only the expression of those ideas. And Nike’s expression was not “substantially similar” to Rentmeester’s, the court ruled.

“Mr. Rentmeester has failed to show that he can satisfy the requisite objective test for copyright infringement,” US District Judge Michael W. Mosman wrote in his decision last week to dismiss the case. Rentmeester has filed papers announcing his intent to appeal the decision to the US Court of Appeals for the Ninth Circuit. (more…)

June 18th, 2015

How Well Do Imaging & Cloud Companies Protect Your Privacy?

You invest more than just your photos when you use services like Dropbox or Adobe’s Creative Cloud. Sensitive data, such as your location, private communications and more, gets transmitted to third party servers every day.

Every year, the Electronic Frontier Foundation surveys key tech firms to judge just how diligently they safeguard your privacy. Companies are judged across five criteria: whether they follow industry-accepted best practices when it comes to privacy protection (i.e. do they require a warrant before handing over communications), whether they tell users about government data demands, whether they disclose policies on data retention, whether they discloses government content removal requests and whether they have a “pro-user” policy of no “backdoors” to allow government surveillance.

This year, several firms used heavily by the photo community earned five stars–a perfect score. Among them were Adobe, Apple, Dropbox, Yahoo! and WordPress.

Social networking sites like Twitter, Facebook, LinkedIn and Pinterest didn’t fare as well though they still beat out Google, which is aggressively courting photographers with its new Google Photos storage service.

You can read the full report here or get the nickel version from the EFF’s graphic below.

Screen Shot 2015-06-18 at 5.53.51 PM