You are currently browsing the archives for the Legal category.

April 17th, 2014

Baltimore To Pay $250K for Videos Deleted by Police: A Vindication of Photographers’ Rights

Christopher Sharp, plaintiff in Sharp v. Baltimore City Police Department

Christopher Sharp, plaintiff in Sharp v. Baltimore City Police Department (source: ACLU video)

The City of Baltimore and its police department have agreed to pay $250,000 to settle a claim of unlawful seizure and destruction of cell phone videos that belonged to a citizen who allegedly recorded police arresting and beating another person.

Police have admitted no wrongdoing, but agreed as part of the settlement to issue a written apology to Christopher Sharp, the plaintiff in the case.

In addition, the Baltimore Police Department (BPD)  has agreed to adopt a comprehensive and detailed written policy intended to protect the rights of citizens to photograph and record police activity from anywhere those citizens have a legal right to be, without interference or intimidation from police. (more…)

April 7th, 2014

US Supreme Court Declines New Mexico Wedding Photog’s Discrimination Case

A New Mexico photographer who has been held liable for violating state anti-discrimination laws by refusing to photograph a same-sex wedding has been turned away by the US Supreme Court, where she had sought a review of her case.

Elaine Huguenin, owner of Elane Photography of Albuquerque, had asked the US Supreme Court to overturn a series of lower court rulings that found her in violation New Mexico human rights laws for discriminating on the basis of sexual orientation.

The high court declined today without comment to hear Elane Photography’s appeal, effectively upholding three lower court rulings against her.

Huguenin had refused for religious reasons in 2006 to photograph the commitment ceremony of Vanessa Willock and her partner, Misty Pascottini. Willock filed a complaint to the The New Mexico Human Rights Commission, which ruled in 2008 that Huguenin had violated the state’s anti-dscrimination law.

Huguenin appealed to a New Mexico district court, the New Mexico Court of Appeals, and the New Mexico State Supreme Court. All three upheld the NMHRC ruling.

In appealing to the US Supreme Court for a hearing, Huguenin argued that she should be free under the First Amendment to express herself as a photographer, and that any compulsion to shoot same-sex weddings under New Mexico’s anti-discrimination laws amounted to government-compelled speech that violated her civil rights.

In refusing to hear the case, the US Supreme Court effectively upheld the decision last summer by New Mexico State Supreme Court justice Edward L. Chávez.

He wrote in that decision:  “A commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the anti-discrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples.”

Chávez also said in his decision that New Mexico’s human rights law doesn’t compel Elane Photography “to either speak a government-mandated message or to publish the speech of another.”And he said those offering services to the public do not have to give up their First Amendment rights under the the state human rights law because “[t]hey may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable anti-discrimination laws.”

Related:
Photographer Who Refused to Shoot Same-Sex Wedding Loses Another Appeal
NM Wedding Photogs Can’t Discriminate Against Same Sex Couples, Court Confirms

April 4th, 2014

Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos

A federal appeals court in New York has refused a textbook publisher’s request to reduce a $130,750 award that a jury granted to photographer Louis Psihoyos last year for copyright infringement.

Psihoyos sued publisher John Wiley & Sons in 2011 for infringement of eight of his photographs. Claims over four of the images were dismissed before trial, but a jury found Wiley liable for willful infringement of two of the remaining images and awarded statutory damages totaling $130,000. At the same time, the jury found Wiley liable for non-willful infringement of a third image, and awarded $750. It concluded that Wiley’s use of the remaining image was not infringing.

Wiley appealed, arguing that the trial court erred because it refused to consider whether the jury award was reasonably related to Psihoyos’s actual loss. Wiley called it “an epitome of a run-away award” in one of its appeal briefs.

But the appeals court rejected Wiley’s argument, saying, “Although revenue lost is one factor to consider, we have not held that there must be a direct correlation between statutory damages and actual damages.”

The appeals court went on to say, “The District Court concluded that several of the relevant factors could explain the jury’s award based on the evidence…in particular, the evidence supported a finding of willfulness and that Wiley earned substantial profits, and the jury may have viewed Wiley as a repeat infringer in need of deterrence.

“In sum, we discern no error” in the District Court’s denial of Wiley’s request to vacate the award or grant a new trial, the appeals court said.

The appeals court also rejected Wiley’s assertion that the trial court should have thrown out Psihoyos’ claims on the grounds that the statute of limitations on those claims had expired.

The appeals court said that the Copyright Act’s statute of limitations “did not bar any of Psihoyos’s infringement claims” because he filed those claims within three years of discovering the infringements, as the law requires.

Wiley had argued that the clock for the three-year statute of limitations begins at the instant of infringement, not at the discovery of that infringement by the copyright holder.

Although the appeals ruling was an overall victory for Psihoyos, he also lost an appeal to restore his infringement claims for the four images that the trial court dismissed from the case.  The lower court dismissed those claims because Psihoyos  didn’t register the images before he filed his infringement claims, as required by law.

The appeals court said the trial court was correct to dismiss those claims because of Psihoyos’s failure to register them prior to filing suit.

April 3rd, 2014

In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed

©Kristina Hill

©Kristina Hill

A federal court in Colorado has ruled that the unauthorized use of a gay couple’s engagement photo in a political attack ad was protected by the First Amendment. But the judge in the case rejected a request by defendants to throw out the photographer’s copyright infringement claims on fair use grounds.

Photographer Kristina Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued conservative advocacy group Public Advocate of the United States (PAUS) in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political attack ads.

The ads, showing an image by Hill of Edwards and Privitere kissing each other, were part of a PAUS campaign to defeat two Colorado lawmakers who supported same-sex marriage.

Hill sued for copyright infringement because PAUS used the photo without her permission. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and Colorado’s right-of-publicity laws.

gay-attack-adBut the court has thrown out the couple’s misappropriation claims on the grounds that the political ads were “primarily non-commercial,” and that they “reasonably relate to a legitimate matter of public concern”–same-sex marriage. Therefore, free speech rights of the First Amendment barred the couple’s misappropriation claim, federal judge Wiley Y. Daniel wrote in the decision.

However, Judge Daniel rejected a motion by PAUS to dismiss Hill’s copyright infringement on fair use grounds, ruling that the ads didn’t pass the standard four-pronged test for fair use.

The first factor, relating to the character and purpose of the unauthorized use,  went against the defendants for two reasons. Language of the copyright law protecting unauthorized use for educational purposes “suggests that the educational purposes contemplated by the statute’s drafters relates to schooling, not mailers circulated during an election,” the judge wrote.

Furthermore, he explained in his decision, “while the defendants placed the lifted portion [of the image] in a different background and placed a caption on the mailer, such actions cannot be characterized as ‘highly
transformative.’”

Other prongs of the fair use test also went against the defendants. For instance, the image is a creative work, not merely informational, which mitigated against a fair use finding, Judge Daniel said. And he rejected the defendants’ argument that they used only used a small part of Hill’s image, countering that they used the qualitatively most significant part, which shows the subjects kissing.

“I find that the plaintiffs have stated a plausible copyright infringement claim under the Copyright Act,” the judge concluded.

The ruling allows Hill to proceed with her copyright infringement claims, and was not a final decision on those claims.

A trial date has been set for January 26, 2015.

Related:
Anti-Gay Group Sued for Unauthorized Use of Photo in Attack Ads

Anti-Gay Group Pleads Fair Use, Free Speech in Infringement Case

April 2nd, 2014

In Copyright Infringement Case, A Defendant Ends Up Owning Disputed Photo

Desmond Howard's iconic Heisman Trophy pose. Shot by Brian Masck. Now owned by Desmond Howard

Desmond Howard’s iconic Heisman Trophy pose. Previously ©Brian Masck. Now ©Desmond Howard.

Former football star Desmond Howard, the subject of a well-known photograph and a defendant in a copyright claim over the use of that same image, will end up owning the copyright to the image as part of a settlement with the photographer who shot it.

That photographer, Brian Masck of Linden, Michigan, is still pursuing infringement claims against Getty Images, Sports Illustrated, Nissan, Amazon.com, Wal-Mart and others.

Masck confirms that he agreed yesterday to settle his infringement claim against Howard by transferring copyrights to the image over to Howard. In exchange, Masck got “a very generous royalty agreement on [Howard's] uses of the picture, including at [public] appearances by Howard,” according to his attorney, Tom Blaske.

“This allows [Howard] to use his favorite photo of himself and make money on it,” Masck told PDN. Blaske adds that Howard “has more resources to best use this historic photo” and thereby ensure that it “remain[s] part of the cultural currency.”

The photo in question shows Howard striking an iconic Heisman Trophy pose after scoring a touchdown against Ohio State University, when he was playing for the University of Michigan. Masck shot the image in 1991 as a freelancer, and licensed it to Sports Illustrated for publication.

SI allegedly never returned the original 35mm transparency to Masck; it ended up in the Allsport archive, and finally in digital format on Getty’s web site around 2005. From there, it “traveled through sports memorabilia channels” onto merchandise sold through retailers, Masck says, and it also appeared in Nissan ads published in Sports Illustrated.

Masck sued in January, 2013, claiming infringement against Howard for unauthorized use of the photo on Howard’s website. Masck claimed unauthorized use by other defendants for distributing the photo and using it in ads without permission.

But Howard counter-sued Masck for unauthorized commercial use of Howard’s name and likeness on a website called TheTrophyPose.com. Masck used that site to sell products featuring the image, including framed prints and life-size, cut-out stand up. He splashed Howard’s name all over the site, confusing visitors into thinking Desmond Howard was behind the site and its products, according to Howard’s counter-claim.

Masck says he’s prohibited by the settlement agreement with Howard from disclosing the financial details. But he says Howard, a TV football commentator who uses photos for publicity and marking, wanted to buy all rights to Masck’s photo several years ago. “At the right price and right terms I was ready to entertain that,” Masck says.

They couldn’t reach an agreement, however.

“What spurred the lawsuit was, after I had sent Howard a print [during their early negotiations] as an example of what the picture could look like, and he took that picture and put it up on his web site,” Masck explains. “That picture had some tells in it. I digitally altered it so I could track it.”

With a trial date approaching, they resumed negotiations and finally reached an agreement.

Meanwhile, Masck is trying to negotiate settlements with Nissan, Sports Illustrated and the other defendants before the case goes to trial. They tried unsuccessfully to have Masck’s claims thrown out on the grounds that he hasn’t done enough over the years to assert his copyrights to the image.

(Editor’s note: This story has been altered from its original version, which included two quotes from Brian Masck that he has asked PDN to remove.)

March 28th, 2014

Court Reminds Michael Kenna: Copyright Protects Expression, Not Ideas

A ruling in a copyright infringement case involving photographer Michael Kenna has affirmed the principle that copyright does not protect ideas (or choice of subject matter). It protects only the expression of an idea.

That’s true under copyright law in the US, as well as in Korea, where a gallery representing Kenna sued Korea Air on Kenna’s behalf, according to a report in The Korea Times. The claim was that a photograph of South Korea’s Seok Island that appeared in ads around 2010 for Korea Air copied an image that Kenna shot of that island in 2007.

The Korea Times says that in rejecting the copyright claim, the court said: “When the subject is identical, it is the matter of preference of a photographer in deciding when, where and how to shoot. They are just two different ideas which can’t be protected by copyright law.”

The newspaper noted that the Korea Air photo was in color, while Kenna’s image was in black and white. Regarding the similarities in composition in both photos, a photographer quoted in the Korean Times article notes that there are few vantage points from which the islands can be photographed.

Related:
Infringement Claim Fails Because Law Protects Expression, Not Ideas
In Court, Copycats Prove Elusive (subscription required)

March 20th, 2014

Former Hallmark Institute Owner Pleads Guilty of Fraud, Tax Evasion

George J. Rosa III, the former owner of the Hallmark Institute of Photography, the photography school in Turners Falls, Massachusetts, pled guilty March 11 to charges of bank fraud and tax evasion, according to a report by Springfield, Massachusetts, TV station WWLP.

Rosa stood accused of diverting $2.6 million in school funds for his own personal use, and then covering up the theft by recording the outlays as business expenses on the school’s books. Tax fraud charges arose from tax returns that Rosa filed on the basis of the false financial records.

Federal prosecutors said Rosa used the stolen money to build a house for himself, gamble, and buy “clothing, footwear and accessories,” according to the WWLP report.

Sentencing is scheduled for May 29. Rosa could be sentenced to up to 30 years in prison for bank fraud, and five years for tax fraud. He also faces restitution fines.

Last month, former Hallmark Institute vice president Gregory Olchowski was sentenced to 6 months in federal prison for tax evasion, according to news site MassLive.com. Olchowski was charged with hiding from the IRS $200,000 in money transfers from the “former president” of Hallmark Institute to cover Olchowski’s personal expenses. Although that former president isn’t named in court papers, Olchowski worked at Hallmark when Rosa was president of the school.

Rosa’s financial and legal troubles began several years ago when he borrowed money to fund projects at Hallmark Institute from People’s United Bank  (PUB) in Springfield, Massachusetts. The bank, which was Hallmark’s largest creditor, ended up taking control of the school in 2009 when Rosa began defaulting on the loans. PUB then sold Hallmark Institute to Premier Education Group in Philadelphia.

Premier Education Group kept Rosa on as president of the school until 2012. According to a report from Daily Hampshire Gazette, Ed Martin, the school’s current president, said in a statement on March 12 that Rosa “separated from the company in August of 2012 in light of personal and business issues” that occurred before Premier took over the school.

Rosa filed for personal bankruptcy protection, also in 2009. In early 2010, PUB sued Rosa to prevent the bankruptcy court from discharging Rosa’s $2.2 million debt to the bank. In its lawsuit, the bank alleged that Rosa kept two sets of books at Hallmark Institute to hide assets from the bank and divert money for his personal use.

The bankruptcy court eventually declared Rosa in default of the loans for failure to respond to the bank’s fraud claims against him. The bank’s claims also attracted the attention of federal prosecutors, who ended up filing the criminal charges.

Related:
$3.6 Million in Debt, Photo School President Faces Fraud Charges

Photo School President Fails to Answer Fraud Charges

Bankruptcy Won’t Protect School President from $2.4 Million Debt

The Art Institutes: Legitimate Photo Schools or Accessories to Fraud?

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)