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June 24th, 2016

LA Times Photographer Pleads No Contest to Resisting Arrest After Reagan Funeral

Longtime Los Angeles Times photographer Ricardo DeAratanha has pleaded no contest earlier this week to resisting and obstructing police during the March funeral motorcade of former First Lady Nancy Reagan. The photographer was at the scene covering the funeral for the Times and was sitting in his car transmitting photos from his laptop when police—responding to a report of a suspicious vehicle near the viewing—approached him. The photographer suggested in a March statement to police that officers were targeting him because of his race (DeAratanha is Brazilian), but the deputy district attorney said there was no evidence of that, according to the Times report.

DeAratanha entered the plea on the misdemeanor count before Ventura County Superior Court Judge F. Dino Inumerable, who sentenced the photographer to 12 months of unsupervised probation and 16 hours of community service, according to the Times. DeAratanha may request the conviction be expunged from his record if he successfully completes probation.

Related Links: 

For more details about the arrest, read PDN’s “LA Times Photographer Of Reagan Funeral Motorcade Charged After March Arrest” coverage.

For more information on photography and the First Amendment, read PDN‘s report on the legal cases photographers should know.

 

June 14th, 2016

Getty Files Copyright Suit over Stolen Photo Scheme on Facebook

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members traded illegally in stolen images. (Image taken from court papers.)

A post, allegedly from Walter A. Kowalczuk, to a private Facebook group where members allegedly traded in stolen images. (Image taken from court papers.)

Getty Images has filed copyright infringement and other claims against an Ohio man who allegedly downloaded as many as 3,400 high resolution images from Getty’s servers without authorization, and then sold them illegally to unidentified buyers through a private Facebook group.

Getty says in its claim against Walter A. Kowalczuk, filed June 8 in US District Court in Cleveland, that he and other members of the group allegedly bought and sold images using euphemisms for the sources of those images, such as “Spaghetti” for Getty and “Apples” for Associated Press. Getty says one of its licensing partners reported the Facebook group activity in March.

That licensing partner provided copies of posts to the group that were made by Kowalczuk, Getty says in court papers. One post said, “Spaghetti and Apples served all day at the lowest prices around.” In another post, shown above, Kowalczuk allegedly offered the images for as little as 75 cents. Getty alleges that Kowalczuk made “dozens of posts” between late 2015 and spring 2016, inviting group members to contact him by private message to make purchasing arrangements.

According to the lawsuit, an employee of Photo File, which is a Getty distribution partner, contacted Kowalczuk in March about purchasing six images. (Photo File and Getty both license a photograph of a Chicago Blackhawks hockey player that Kowalczuk had offered for sale.) Kowalczuk allegedly told the Photo File employee that the source of the images was Getty, and “gave specific instructions for ordering the images, directing that each image be identified by the catalog number assigned by Getty Images,” according to court papers.

The Photo File employee complied with the instructions to purchase the images, and Kowalczuk sent a link to the images, which he had uploaded to a file transfer website.

Getty subsequently purchased 29 other images from Kowalczuk on three different occasions—March 29, April 1, and April 29—and each time, the process was the same. Kowalczuk gave instructions, Getty identified the images it wanted to purchase by its own catalog numbers, then Kowlaczuk  allegedly delivered them through a file transfer website.

Getty says Kowalczuk had downloaded the images illegally from its website using using login credentials of two unidentified Getty customers. In both cases, the customers “confirmed that Kowalczuk was neither an employee…nor authorized to use its login credentials,” Getty says. It is unclear how Kowalczuk obtained the passwords.

Most of the images that Kowalczuk downloaded and offered for sale “consisted of sports imagery,” including images from NHL, MLB, NBA and NFL games, according to Getty. The stock photo agency alleges that Kowalczuk sold the images to sports memorabilia companies. Getty is trying to identify those buyers so it can name them as additional defendants in the lawsuit.

Meanwhile, Getty is seeking damages from Kowalczuk for willful copyright infringement, contributory infringement (i.e., aiding and abetting copyright infringement by those he illegally sold images to), computer fraud, and Digital Millennium Copyright Act violations.

Kowalczuk has not yet filed a response to Getty’s claims, and efforts to locate him for comment were not immediately successful.

June 8th, 2016

Richard Prince Sued Again (This Time by Photographer Dennis Morris)

An allegedly infringing work from Richard Prince's "Covering Pollack" series.

An allegedly infringing work from Richard Prince’s “Covering Pollack” series.

Photographer Dennis Morris filed a copyright infringement claim last week against appropriation artist Richard Prince in a Los Angeles federal court. The claim is the latest in a growing number of cases filed by photographers accusing Prince of stealing their photos for use as raw material for his artworks.

Morris, who is based in Los Angeles, is charging Prince with unauthorized use of several photographs of Sid Vicious, the lead singer of the Sex Pistols. Gagosian Gallery, which represents Prince, is also named as a defendant in the case.

Morris alleges that Prince copied the Sid Vicious portraits without permission from a biography by David Dalton titled El Sid, Saint Vicious. Prince then made and sold “derivative works” that incorporated the portraits, Morris says in court papers. The derivative works allegedly included an untitled quadtych featuring one of Morris’s Sid Vicious portraits alongside portraits by other photographers of Barbra Streisand, Prince (the recently deceased musician) and Sylvester Stallone.

In addition, Morris alleges that Richard Prince used several other photographs of Sid Vicious without permission in a work from a series titled “Covering Pollack.” Prince created the series in 2010. The allegedly infringing work (above) shows a photo of what appears to be a Jackson Pollack painting-in-progress, papered over with a collage of Sex Pistols band member photos, including Morris’s pictures of Sid Vicious.

Morris is seeking compensation for an unspecified amount of damages resulting from “diversion of trade, loss of income and profits, and a dilution of the value” of rights to the photographs. He is also seeking disgorgement of profits from the sale of the infringing works, and an injunction to bar further unauthorized use of the photographs in question.

Prince has not yet responded to Morris’s lawsuit.

Morris’s claim is strikingly similar to the high-profile lawsuit that photographer Patrick Cariou filed against Prince—and lost. Cariou had accused Prince of misappropriating images from a book called Yes, Rasta. Prince used the Cariou images as raw material for a series called Canal Zone. He and Gagosian earned more than $10 million on the sale of works from that series.

In 2012, the US Court of Appeals for the Second Circuit in New York ruled that most of the disputed works in the Canal Zone series qualified as fair use of Cariou’s photographs because Prince transformed them with “an entirely different esthetic.” Prince was forced to settle with Cariou over the unauthorized use of several of images, however.

Although Prince will almost certainly invoke the Cariou ruling in his defense against Morris’s claim, rulings from the Second Circuit Court of Appeals are not binding in the Los Angeles court, which is in the Ninth Circuit.

Related:
Photographer Sues Richard Prince Over Instagram Rip-Offs…At Last
“SuicideGirls” Deliver Cleverest Response to Richard Prince Instagram Appropriation
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

May 23rd, 2016

Diving Equipment Maker Cleared in Death of Underwater Photog Wes Skiles

A Palm Beach County jury has cleared diving equipment manufacturer Lamartek of wrongdoing in the 2010 drowning death of Wes Skiles, a renowned underwater photographer and cameraman, reports the Palm Beach Post. Skiles’s widow, Terri Skiles, filed suit in 2012 alleging that her husband had died because of faulty breathing apparatus manufactured by Lamartek. She claimed the Lamartek knew the apparatus—called the O2ptime FX rebreather—was prone to failure. She was seeking $25 million in compensation for her and the couple’s children. The death had been declared an accidental drowning by The Palm Beach County Medial Examiner in November 2010.

The lawsuit went to trial last week. Jurors found that Lamartek, which is also known as Dive Rite, was not responsible for Wes Skiles’s death. The jury also concluded the rebreather was not dangerous, according to The Palm Beach Post report

Skiles was a regular contributor to National Geographic magazine and National Geographic television. He grew up exploring the caves of northern Florida. National Geographic credits him with developing and refining a technique for using multiple strobes to dramatically light the underwater environment of caves.

Related:
Underwater Photographer Wes Skiles Dies on Shoot

Death of Underwater Photog Ruled Accidental

Widow of Underwater Photog Wes Skiles Blames His Drowning on Defective Gear

April 27th, 2016

National Gallery’s Use of Prince Portrait Infringes Copyright, Photog Claims

Photographer Lynn Goldsmith’s studio says the Smithsonian Institution violated copyright of her 1993 portrait of Prince last week by distributing the image to the media without permission. The musician died April 21, and the following day, the Smithsonian displayed a print of Goldsmith’s photograph at the National Portrait Gallery’s In Memoriam space. The museum notified the media that the portrait could be “photographed or filmed in the museum.” It also made a digital copy of the image available to the media for download on the Smithsonian website.

EPA, AP, AFP and Getty distributed images and/or video of the portrait hanging in the gallery. Various news organizations published the wire service photos and video, but a search of Google images turned up few online copies of the downloadable image.

Rachel Simon, who is the license director for Goldsmith’s studio, says the national gallery violated copyright by allowing others to photograph Goldsmith’s image, and by distributing it as a download. The studio sent a cease and desist notice, and by April 26, the Smithsonian had stopped making the image available as a download. Now the two parties are in discussions about damages.

“We feel financial restitution is necessary to resolve [this], for as you can imagine, that image cannot be licensed for any fee ever again as it has been released WORLDWIDE for free in some cases,” Simon told PDN via email.

Simon said she had spoken with Smithsonian attorney Lauryn Guttenplan about the matter, adding that Guttenplan “did not seem to think this was an infringement or that any damage was caused to the value of the work!”

Guttenplan referred PDN’s request for an interview to Smithsonian spokesperson Linda St. Thomas, who said, “There are discussions going on between the photographer and her representative and the Portrait Gallery director so we have nothing to report right now.”

Simon did not specify the amount of restitution that Goldsmith is seeking, but said, “one would hope that the Museum which honors the contributions of artists would want to resolve [this] amicably.”

Simon says the Prince portrait displayed by the museum was originally sold to collector (and record producer) Jimmy Iovine, who donated it to the Smithsonian. The print was sold to Iovine with the written stipulation that Goldsmith retained copyright, and that the print could not be “published, copied, televised, digitized, or reproduce in any form whatsoever.” The terms of the sale also stated the the print “is intended solely and exclusively for your personal viewing enjoyment.”

[Correction: an earlier version of this story stated that Goldsmith has brought her attorney into the matter. Her studio says that is not the case. We regret the error.]

April 27th, 2016

Getty Files Complaint Against Google In Europe

Getty Images announced today that it has filed an unfair competition complaint against Google Inc. in Europe, where Google is already under fire. Getty objects to Google’s image search platform, which enables users to easily find and scroll through high resolution, full-screen displays of photographs. That deprives Getty of traffic to its own website, and takes potential sales away from the creators, publishers and distributors of those images, Getty alleges.

In a press release, Getty explains that the complaint addresses “changes made in 2013 to Google Images… which has [sic] not only impacted Getty Images’ image licensing business, but content creators around the world, by creating captivating galleries of high-resolution, copyrighted content.” Prior to 2013, Google made only low res thumbnails available in their search engine, so users had to click through to the sites of Getty and other publishers and image libraries to see full-screen images.

Getty is already a third party in the European Commission’s investigation of Google’s business practices, which the Commission believes are anti-competitive. This new Getty complaint supports that investigation, Getty says, as well as an earlier complaint filed with the European Commission by Coordination of European Picture Agencies Stock, Press and Heritage (CEPIC), an organization representing photo agencies in Europe.

“Google’s behavior is adversely affecting not only our contributors, but the lives and livelihoods of artists around the word – present and future,” Getty Images’ General Counsel, Yoko Miyashita said in a statement. “By standing in the way of a fair marketplace for images, Google is threatening innovation, and jeopardizing artists’ ability to fund the creation of important future works. Artists need to earn a living in order to sustain creativity and licensing is paramount to this; however, this cannot happen if Google is siphoning traffic and creating an environment where it can claim the profits from individuals’ creations as its own.”

In an open letter also published today, Miyashita urged photographers to get involved in the complaint. “A fair market for your works is the lifeblood of your business – no one is more greatly impacted by Google’s practices than you, the content creator,” he writes. “We invite you to engage local regulators to help put a stop to the anti-competitive scraping of your content.”

Photographers’ responses to the news on social media have been mixed.

Getty* just filed suit against Google Images for making people think photos are free.

*Owners of $1/pic iStockPhoto pic.twitter.com/OVGeiRxCPh

— David Hobby (@strobist) April 27, 2016

April 6th, 2016

LA Times Photographer Of Reagan Funeral Motorcade Charged After March Arrest

Longtime Los Angeles Times photographer Ricardo DeAratanha has been charged with a misdemeanor for allegedly refusing to cooperate with police during the funeral motorcade of former First Lady Nancy Reagan, according to a recent report in the Los Angeles Times.

DeAratanha, 65, was charged with one misdemeanor count of resisting, obstructing or delaying a peace officer, according to the Ventura County district attorney’s office.

The Los Angeles Times reports that DeAratanha was arrested on Wednesday, March 9, less than a mile from the Ronald Reagan Presidential Library, where a public viewing was being held for Nancy Reagan. DeAratanha was at the scene covering the funeral for the Times. When police approached him, he was sitting in his car, transmitting photos from his laptop. Simi Valley Police said at the time that officers were responding to a report of a suspicious vehicle near the viewing, and that DeAratanha was arrested because he refused the officers’ request to identify himself.

DeAratanha’s attorney, Mark Werksman, says the photographer provided multiple press credentials and gave the officers “no reason” to arrest him, according to the Los Angeles Times. DeAratanha has been a staff photographer at the paper since 1989.

January 29th, 2016

Burundi Releases Photojournalist Phil Moore Without Charge

Authorities in Burundi have released photojournalist Phil Moore and Le Monde Africa bureau chief Jean Philippe Remy, French ambassador Gerrit Van Rossum told Agence France-Presse. The journalists were picked up in raids in Bujumbura on January 28 along with 15 other men, some of whom where deemed “armed criminals” by Burundi’s security ministry.

Earlier today the French foreign ministry, AFP, Le Monde and other media organizations demanded the journalists’ release in statements addressed to Burundi President Pierre Nkurunziza.

Moore and Remy were in Burundi covering the violence between President Nkurunziza’s government and armed opposition groups. The conflict there continues to escalate, and United Nations and African Union officials have been urging Nkurunziza to allow an AU peacekeeping force into the country to prevent an ethnic conflict.

The ambassador said Moore’s camera equipment and Remy’s notebooks had not yet been returned to them.

Related: Photojournalist Phil Moore Arrested in Burundi

January 28th, 2016

Update: Obama Administration Calls for Copyright Small Claims Courts, Embraces “Vibrant Fair Use”

copyright copy_350An Obama administration task force has come out in support of “a vibrant fair use space” that allows  “the broad range of remixes to thrive.” At the same time, the task force supports “effective licensing structures” and is calling for the “creation of a streamlined procedure for adjudicating small claims of copyright infringement.”

The recommendations are from the US Department of Commerce’s Internet Policy Task Force, and  appeared in a publication released today called “White Paper on Remixes, First Sale, and Statutory Damages.” The purpose of the task force is to ensure that copyright policy continues to provide incentive for creativity as the digital economy changes how people communicate, create, innovate and conduct business.

The task force defines “remixes” as “works created through changing and combining existing works to produce something new and creative” and notes that remixes are part of a trend of user-generated content “that has become a hallmark of the internet.”

The task force asserts that “remixes make valuable contributions to society in providing expressive, political, and entertainment content.” But it says it is not calling calling for amendments to copyright law that would create a specific exception or a compulsory license for remix uses. Instead, the task force offers recommendations “that would make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so.” (more…)

January 28th, 2016

Why Muslim Woman’s Suit Against AP for Hijab Photo Will Probably Fail

Fifi Youssef is suing photographer Mark Lennihan and AP for distributing this photograph, shot at a New York City Starbucks,  without her permission. ©Mark Lennihan/AP

Fifi Youssef is suing photographer Mark Lennihan and AP for distributing this photograph of her without her permission. ©Mark Lennihan/AP

A Muslim woman has sued Associated Press (AP) and photographer Mark Lennihan for unspecified damages over the unauthorized use her likeness, claiming violation of her civil rights. The case is a legal long shot, but if she wins, wire services and freelance photojournalists—at least in New York state—would have to get the consent of everyone in the photographs they offer for licensing to publishers.

Fifi Youssef filed suit in a New York State court last week, claiming AP and Lennihan violated her rights of publicity under a state law that prohibits the use of anyone’s name, likeness or voice “for advertising purposes or the purposes of trade.”

According to the claim, Youssef was having coffee in a Starbucks coffee shop on December 16, 2015, wearing a hijab, when she was photographed without her knowledge by Lennihan. The picture shows Youssef staring downward at her cell phone.

Two days later, the image appeared for license on AP’s website, listed “as part of AP’s commerce trade,” according to the suit. Then, on December 21, The Washington Post published the photo as an illustration for an op-ed piece titled “As Muslim women, we actually ask you not to wear the hijab in the name of interfaith solidarity.”

“Clearly, the article attacks [Youssef’s] fundamental beliefs,” Youssef’s lawsuit says.

Youssef says in her claim that AP’s “sale” [ie, licensing for fees] of images—including the image of her—amounts to commercial use, in violation of the state law. But she faces an uphill battle.

The focus of New York’s right of publicity law “on advertising and trade means that a use designed to solicit sales of products or services is forbidden,” says Harvard University’s Digital Media Law Project on its website. “But this category of advertising uses is somewhat narrow [and] contains a long list of exceptions, which include protections for professional photographers against suits by their subjects.”

Nancy Wolff, an intellectual property attorney in New York, says the ruling in the case of Foster v. Svenson established “that the First Amendment trumps privacy and that a license or sale does not make a use commercial.” In that case, New York courts rejected arguments that art photographer Arne Svenson was violating New York’s right of publicity law by offering unauthorized photographs of the plaintiffs for sale in an art gallery.

“I have argued many times that the aggregation, display and offering for sale of images is a right under copyright [law] and outside any state right of publicity law,” says Wolff, who is not involved with the Youssef case, though she has done work for AP in the past. “You only look at the end use to determine if the right of publicity is invoked. Any other position would interfere with the distribution and licensing of images [and] with first amendment uses…No book , magazine or art print could ever be sold without the subjects’ consent.”

Such a result, she notes, “would be absurd.”

Significantly, Youssef did not name the end user–The Washington Post–as a defendant in her lawsuit, because a mountain of case law has given news organizations wide berth to publish images of individuals without permission under a “newsworthiness” exception to New York’s right of publicity law.

Related:
Arne Svenson Exonerated on Appeal in Privacy Invasion Case (subscription required)

What Photographers Need to Know about Model Releases