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December 18th, 2014

Police Intimidation Watch: Photographer Wins $1.1 Million for Malicious Prosecution

A New York woman who was arrested and jailed for four days after photographing an Air National Guard base from a public thoroughfare was awarded $1.1 million in compensatory damages by a federal jury last week.

Nancy Genovese sued the town of Southampton, New York, the Suffolk County sheriff’s department and several individual officers in 2010, alleging violations of her constitutional rights, assault, battery, false arrest, use of unreasonable and excessive force, and malicious prosecution.

In a trial that concluded December 11, jurors concluded that Suffolk County sheriff’s deputy Robert Carlock had maliciously prosecuted Genovese. But Genovese failed to prove that Carlock had initiated criminal proceedings because of her political associations. Therefore, the jury found that Carlock was not liable for violating Genovese’s First Amendment right of free speech.

Although jurors reached agreement on the $1.1 million award for compensatory damages, they were unable to reach a unanimous decision on punitive damages, so deliberations are continuing.

According to court papers, Genovese was driving home in July, 2009 past the Gabreski Airport Air National Guard base in Suffolk County (Long Island) when she stopped her car to photograph a helicopter on display in front of the base. Genovese made the photograph from inside her car, intending to post the photo on a “Support Our Troops” website.

As she was preparing to drive away, a Southampton, New York police officer approached her and asked what she was doing. Genovese explained what she was photographing, tried to show the officer the images on her camera’s LCD, and then ended up giving the officer her camera card to protect her camera, which the officer was treating roughly, according to Genovese’s lawsuit.

At that point, the Southampton police officer ordered Genovese to remain where she was, and called the county sheriff’s department to report Genovese’s presence outside the base, “falsely and wrongly informing” the sheriff’s department that Genovese “posed a terrorist threat,” she said in her claim.

Authorities from the FBI, Homeland Security, the ANG base, and the local police and sheriff’s department rushed to the scene. Genovese was questioned on the roadside for “five or six hours.” She alleged that her car was searched without her consent, and because she had just come from a local shooting range, authorities found an AR 15 rifle, as well as a shotgun and ammunition, in her car. Southampton police seized the guns, which were legally registered, according to court papers.

According to the suit, Suffolk sheriff’s deputy Carlock said to Genovese, “You’re a right winger, aren’t you?” He and another unidentified officer proceeded to taunt Genovese, repeatedly referring to her as a “right winger” and “tea bagger” and allegedly threatening to arrest her for terrorism “to make an example of her to other ‘tea baggers.'”

After hours of questioning, federal authorities concluded that Genovese wasn’t a security threat. After they left the scene, however, an unidentified sheriff’s deputy handcuffed Genovese, and transported her to jail, where Carlock allegedly told her that although authorities “had nothing to charge her with,” they would “find something in order to teach all right wingers and tea baggers a lesson.”

She was charged later that night with “terrorism,” and arraigned the next day on criminal trespass charges. Bail was set at $50,000 because of sheriff’s “inflammatory accusations” that she was a terrorist and a flight risk, she alleges in her lawsuit.

Genovese spent four days in the county jail, until she was finally able to raise the money for her bail. While in jail, she alleges, deputies continued to taunt her, subject her to sleep deprivation, deny her medical care for a leg injury that became infected, and instigate alarmist media coverage by releasing to reporters false information about Genovese and the circumstances of her arrest.

The criminal trespass charges against Genovese were dismissed in November, 2009. She filed suit on July 29, 2010.

In her lawsuit, she alleged violation of her First Amendment right of free speech, as well as violations of her Fourth and Fourteenth Amendments rights of freedom from unreasonable search and seizure. She also claimed she was subject to fear and terror, humiliation, degradation, physical pain and emotional distress.

In 2013, a federal judge dismissed Genovese’s claims against the town of Southampton and its police officers. The judge ruled that the Southampton police officer who originally stopped Genovese had probable cause to do so; that the officer didn’t use excessive force; and that Southampton police seized a gun in her car “under a lawful exception to the warrant requirement of the Fourth Amendment” because it was in plain view insider her car. Therefore, the court said, Southampton police did not violate her constitutional rights.

The judge also dismissed false arrest claims against Suffolk County sheriffs, on the grounds that they acted on the “probable cause” determination of Southampton police. But the court declined to dismiss Genovese’s malicious prosecution claims against Carlock and the sheriff’s department, clearing the way for the trial, which began December 8 and lasted for three days.

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December 11th, 2014

Actor Says Paparazzi Are to Blame if They Get Punched

Photographers’ injury lawsuits against pugilistic celebrities and their bodyguards are too commonplace to count as news these days, but a report about the case of photographer Sheng Li v. actor Sam Worthington caught our eye because of the actor’s defense. Call it the serves-you-right defense.

According to a Radaronline.com report, paparazzo Li is suing the star of Avatar and his girlfriend, Lara Bingle, for $10 million in damages. Li alleges they caused him a shoulder and wrist injury during a scuffle on a New York City sidewalk, presumably after Li tried to photograph the couple without their consent.

Worthington’s defense, according to Radar, is that getting attacked by celebrity subjects is an occupational hazard for the paparazzi. Li “knew the hazards,” he argues. Therefore, he’s responsible for his own injuries.

Worthington is partly right: getting attacked by celebrities is a well-reported risk of paparazzi work. But assault, even against annoying people, is still illegal. And unless that changes, getting sued for outrageous sums of money will probably remain an occupational hazard for celebrities, or at least hot-headed ones.

November 24th, 2014

UK Orphan Works Law Takes Effect: Similar US Law Is Increasingly Unlikely

A controversial “orphan works” law, making it legal under certain conditions to use photos and other creative works belonging to copyright owners who cannot be located, took effect took effect October 29 in the United Kingdom. Efforts to enact a similar law in the US continue to languish.

Orphan works laws reduce the legal risk for publishers, film makers, museums, libraries, universities, and private citizens who want to use copyrighted works, but cannot locate the copyright owners of those works.  The laws are intended to make the works available for public benefit, provided users conduct a “diligent search” for the owners before using the works. But photographers, artists, and their trade groups have resisted the laws, fearing they will end up protecting infringers who don’t search diligently for copyright owners. Some opponents fear that orphan works laws may even give infringers incentive to turn traceable works into orphan works by stripping away credits and other metadata.

But so far, the new UK law is causing little worry. “I don’t think it’s going to be a problem for photographers,” says David Hoffman of Editorial Photographers UK (EPUK).

The American Society of Media Photographers (ASMP) and other US photo trade groups that issued dire warnings two years ago that the UK law would bring about “a firestorm of international litigation” are mostly quiet now.  “I think the law they’ve come out with [in the UK] is pretty reasonable,” says Eugene Mopsik, the outgoing executive director of the ASMP. (more…)

November 12th, 2014

Forest Service Chief Says Journalists Don’t Need Permits to Photograph in National Forests

When the United States Forest Service released a vaguely worded directive that suggested journalists would have to pay up to $1500 for a permit to photograph or film in national forests, photographers and first amendment activists were alarmed. The controversial directive, issued as a draft in September, was first reported by The Oregonian newspaper.

Following the outcry, U.S. Forest Service Chief Thomas Tidwell has clarified the USFS’s position with regard to photography and film for journalistic purposes, rather than commercial use. In a letter written to Forest Service officials, sent on November 4, he said the clarification was needed because “considerable response” from the public “raised significant concerns beyond the intended scope of the directive.”

“News coverage on NFS lands is protected by the Constitution, and it is our responsibility to safeguard this right on the lands we manage for all Americans,” Tidwell wrote.

He outlined how USFS officials should differentiate between journalism and other activities: “The following question should be asked: Is the primary purpose of the filming activity to inform the public, or is it to sell a product for a profit? If the primary purpose is to inform the public, then no permit is required and no fees assessed.”

Tidwell clarified USFS’s position with regard to commercial film and photography. “Permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.”

Read the full text of Tidwell’s letter here.

Via The Oregonian.

November 11th, 2014

Photographer Zwelethu Mthethwa’s Murder Trial Delayed Again

The trial of photographer Zwelethu Mthethwa, who has been charged with the 2013 murder of an alleged sex worker in a suburb of Cape Town, South Africa, has been postponed six months because no judge is available, the Daily Maverick newspaper reports. Mthethwa, who is represented by Jack Shainman Gallery and published his first monograph with Aperture, was arrested in May 2013, and accused of beating and kicking to death Nokuphila Kumalo, 23. A trial scheduled for August 2013 was delayed until April of this year then delayed again until November 10. When Mthethwa appeared in court, however, no judge could be found, so an acting judge set a new trial date of June 1, 2015. Mthethwa remains free on bail.

Outside the courthouse, representatives of  the Sex Workers Education and Advocacy Taskforce rallied, demanding justice on behalf of the victim, an alleged sex worker. Times Live, a South African news site, reported that Kumalo’s mother was in the courtroom on Monday.

Mthethwa, a graduate of the Rochester Institute of Technology, has been exhibited internationally. His work was shown at the 2005 Venice Biennale and he had a solo show at the Studio Museum in Harlem in 2010.  The murder indictment alleges that Mthethwa “attacked [Kumalo] by repeatedly kicking her and stomping her body with booted feet.” The Sunday Times of South Africa reported the prosecution planned to show closed-circuit television footage of Mthethwa’s car at the scene of the murder.

Related Articles
Fine-Art Photographer Zwelethu Mthethwa Faces Murder Trial August 26

Zwelethu Mthethwa: Color and Commonality

October 1st, 2014

Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

Richard Prince earned millions appropriating and manipulating Patrick Cariou's "Yes, Rasta" images. Prince's fame as an artist arguably enabled him to get away with it.

Richard Prince earned millions appropriating and manipulating Patrick Cariou’s “Yes, Rasta” images. His fame as an artist arguably enabled him to get away with it on fair use grounds.

Fair Use may be turning into a legal refuge primarily for “rich and fabulous” artists, according to a recent University of Chicago Law Review article by two Stanford scholars. They reached that conclusion by analyzing Patrick Cariou v. Richard Prince and other copyright disputes between artists over the past decade.

“This shift in fair use has predominantly protected big name defendants who appropriate from small name artists,” Andrew Gilden, one of the authors, told American Public Media’s Marketplace program on Monday.

The Marketplace report, by Sabri Ben-Achour, went on to say that in visual art copyright cases over the past decade, the wealthier artist has usually prevailed. “They’ve won defending against claims they copied someone else’s work, and they’ve won pursuing others for copying their work,” Ben-Achour reported.

Gilden and his co-author, Timothy Greene, argue in their law review article that wealthy artists prevail in part because of the high cost of defending an infringement claim on fair use grounds–something many work-a-day artists can’t afford. But wealthy artists also prevail, Gilden and Greene argue, because there is a cultural presumption that works are “transformative” when they appropriate material from unknown artists, then sell for high prices to an exclusive market. (Whether a disputed work “transforms” the original work is a primary test for a finding of fair use.)

Cariou v. Prince, for instance, was a dispute over a series of paintings and collages by Prince that appropriated images from Cariou’s book Yes, Rasta without permission. Most of Prince’s works eventually sold, fetching a total of  $10.4 million. Prince successfully fended off Cariou’s copyright infringement claim on fair use grounds, testifying in the process that Cariou’s work was just raw material for his own work.

But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.

The illustrative case Gilden and Greene analyze in their article is Salinger v. Colting. J. D. Salinger sued Fredrik Colting, a little-known author, over Colting’s novel called 60 Years Later: Coming Through the Rye. Colting borrowed story lines and characters from Salinger’s Catcher in the Rye,  pretty much doing what Prince did when he appropriated Cariou’s work, Gilden and Greene suggest. But unlike Prince, Colting lost his case. (Both cases were finally adjudicated in the US Court of Appeals for the Second Circuit, which is in New York.)

As Gilden and Greene put it in their article, “Cariou makes fair use fairer for some, but there’s a real risk its virtues won’t be available to all.”

Related:
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
S
upreme Court Declines to Hear Patrick Cariou’s Copyright Claim Against Richard Prince
Richard Prince Settles with Photographer Patrick Cariou

September 8th, 2014

Robert Frerck on How to Track Down Copyright Infringements in Textbooks

After publishing our story about the dozens of lawsuits filed against textbook publishers for reproductions of photos that far exceed the limits of usage licenses, we heard from travel photographer Robert Frerck. He won a summary judgment in August on his copyright infringement claim against Pearson Education, and a settlement last May from McGraw-Hill on a separate infringement claim.

“It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce,” he told PDN via e-mail. In the following excerpt of our exchange with Frerck, he touches on the risk of suing clients, then shares his advice and strategies for tracking down infringements by textbook publishers.

PDN: Was it difficult to bring suit against a client?
Robert Frerck: I had been doing substantial business with all of these publishers for decades, so it was a very difficult decision. I was aware that if I proceeded with this action I might be be putting an end to several profitable client relationships. However I was also very disturbed that these companies had not been truthful in their actions with me. Over [many] years I had met many of their picture editors personally and we had developed a relationship based on trust and I considered many of them to be personal friends. So I felt betrayed when I learned that these companies were knowingly cheating me as a standard business practice. I think that in the end that was the deciding factor in persuading me to pursue legal action.

PDN: What has the process been like for you? Have you ever questioned whether it was worth the headache?
RF:  It has been very frustrating at times. However, it has also been rewarding to see that this information has come out and that my position has been vindicated. The bottom line is that it has been well worth the effort, from both a “securing justice” and a financial perspective.

PDN Are there any particular lessons you’ve learned from your experience pursuing these claims? Any advice you’d give other photographers who might be considering in a similar position?
RF: Fortunately, I still had almost two decades of past invoices and these were coupled with their respective purchase orders and related communications. Most importantly the language of these invoices very clearly stated: what reproduction rights I was licensing and what I was not licensing. So this was sufficient to make a case. However I then decided to expand my data collection in a somewhat different way from other photographers in similar cases. Rather than simply looking at past invoices and making those invoices the substance of my claims, I decided to purchase almost all of the textbooks that were indicated by my invoice record[s].

By actually having the textbooks in my hands, I discovered many things that were not revealed simply by looking at the invoices. For example there were numerous uses of my images that were not mentioned on the purchase orders and consequently never invoiced or licensed. Where only one use was indicated on the purchase order, I might find a second or third use of an image in the actual text (for example, a second use in the table of contents). I also found images that were indicated for use as a 1/4 page on the purchase order but in the text were used as a double page chapter opener, a mistake with a huge impact on the bottom line.

Another interesting thing I discovered – and for this I bless Google and the internet and companies like Amazon: I would find the title of the text that was listed on my purchase order/invoice but then I would also find that there was an “International Edition” of that same title; or a “Spanish Language Edition” or a newer “expanded edition” or a “CD or internet website use” that I had never licensed. Many of my claims against publishers are for uses in products that were never licensed in the first place. It seems that once a publisher used your image with a valid license, you were fair game for any additional products that they might fancy to produce. Unless you were actively spending countless hours researching these titles on the internet you would never have been aware that this was occurring. I guess that is what the publishers were counting on.

In the final analysis, pursuing this type of litigation is not for everyone; first it helps to have reliable records and a lot of patience and perseverance. However, in a way it is like the unraveling of a good mystery and you are trying to discover all of the wrinkles in the plot. You must also be prepared to put up with a lot of BS from the defense lawyers, but my lawyers have been great in countering them. And most importantly, remember that the truth will be found out in the end.

Related:
Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

September 5th, 2014

Photographers Settle Copyright Suit Against Google. But On What Terms?

A copyright infringement lawsuit against Google that began with a bang in 2010 and plenty of bluster by trade groups about protecting the rights of their members has finally ended with a whimper.

The American Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Advertising Photographers of America (APA), Professional Photographers of America (PPA) and several other trade groups representing photographers and visual artists have announced a settlement of their class action lawsuit over the Google Books program on (mostly) undisclosed terms.

“The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works. Further terms of the agreement are confidential,” NPPA announced today on its web site.

The lawsuit, almost identical to a separate lawsuit filed against Google by the Authors Guild, was a reaction to Google’s Books Search program. Under that program, Google has been working with several libraries to scan books and periodicals and make the content available through its search engine results. The plaintiffs sued in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

Under the terms of the settlement, NPPA says, Google admits no liability. And with no mention by plaintiffs about how a revenue stream from the Google Books program will be shared with visual artists going forward, it seems unlikely that today’s settlement included any concessions from Google to pay license fees for images scanned as part of its program.

Last November, a federal court dismissed the Authors Guild lawsuit on fair use grounds. That decision likely weakened the hand of ASMP and other photo industry plaintiffs in their claim against Google.

But ASMP and the other plaintiffs launched their lawsuit with high expectations.

ASMP said in 2010 that the goal of the suit was to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

When NPPA joined the lawsuit in 2013, NPPA’s then-president said in a prepared statement: “I feel it is the NPPA’s responsibility to protect that principle of ownership, and not allow companies like Google to infringe upon our rights uncontested.”

Advertising Photographers of America also joined the lawsuit in 2013. “Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs,” the APA president said at the time.

Meanwhile, the Authors Guild is in the process of appealing its copyright claim against Google to the US Court of Appeals for the Second Circuit in New York. NPPA said in its announcement today, “This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.”

Related:
Judge Dismisses Authors Guild’s Lawsuit Against Google
ASMP, Other Trade Groups Sue Google (for PDN subscribers)

August 21st, 2014

Monkey Selfie Not Eligible for Copyright Registration Under New Rules

Monkey selfie, shot with David Slater's camera.

Monkey selfie, shot with David Slater’s camera.

The US Copyright Office has issued a report stating that it will not register works produced by “nature, animals, or plants,” effectively undermining photographer David Slater’s claim that he owns copyright to a selfie made by a monkey with one of his cameras, arstechnica.com reports.

The rule was issued Tuesday as part of a 1,222-page document addressing a variety of administrative practices by the copyright office, according to the tech website.

The photo in question was shot by a monkey that ran off with one of Slater’s cameras while he was on a shoot in Indonesia. The photo went viral in 2011.

A dispute over copyright to the photo erupted earlier this month when Wikimedia Commons, a collection of 22 million public domain images, posted the image without Slater’s permission. Wikimedia indicated in caption information with the photo that the author of a photo owns copyright, not the camera owner, and that only people can claim copyright ownership. Therefore, the monkey selfie was ineligible for copyright–and in the public domain.

Slater had been preparing to sue Wikimedia Commons, according to a report earlier this month in The Telegraph. According to arstechnica.com, Slater may be able to claim intellectual property rights under a provision of UK law, though that provision has never been tested in court.

Related:
That Monkey Selfie: Who Owns the Copyright To It?

August 21st, 2014

Has a Textbook Publisher Trampled Your Copyrights? There’s a Solution for That.

Photographers and stock photo agencies have filed dozens of lawsuits against textbook publishers in recent years, alleging reproductions of photos the far exceed the limits of usage licenses. Courts have ruled in favor of photographers in many of the cases. Robert Frerck, for instance, won summary judgment this month on his copyright claims against Pearson Education, and won a settlement from McGraw-Hill last May on another claim. Despite all the claims and settlements, new claims continue to surface.

Photographer Joel Gordon recently filed his third copyright infringement lawsuit this year against a textbook publisher. The first two claims were against McGraw-Hill and Pearson Eduction; both cases are still pending. Gordon alleges in his newest claim, against Houghton Mifflin Harcourt (HMH), that between 1990 and 2008, he granted photo usage licenses that “were expressly limited by number of copies, distribution area, language, duration, and/or media.”

HMH ultimately violated those limitations, according to Gordon’s claim. He does not specify the extent of the alleged infringement, explaining that only HMH has that information. But he cites a previous claim against HMH by photographer Ted Wood, who had limited use of his photographs to 40,000 copies, only to discover that HMH had published more than 1 million copies. Wood won his case on summary judgment.

Gordon goes on to cite another 25 claims of copyright infringement against HMH, and he accuses the publisher of having a business model “built on a foundation of pervasive and willful copyright infringement [that] deprived Gordon and hundreds of other photographers and visual art licensors of their rightful compensation and unjustly enriched HMH.”

He is seeking unspecified monetary damages, and an injunction to bar the publisher from further use of his photographs.

Attorney Maurice Harmon of Harmon & Seidman LLC, the lawfirm that represents Gordon, Frerck and many other photographers for claims against textbook publishers, explained via e-mail why these types of claims persist, and how photographers who believe their copyrights have been violated by textbook publishers can protect themselves.

PDN: Why do these claims by photographers against textbook publishers continue to trickle out?
Maurice Harmon: Photographers have only gradually come to realize their photographs have been infringed. Once they know of the individual infringements, the photographers have three years to file a case.

PDN: Do any publishers make good-faith efforts to settle the claims before photographers sue, or before claims go to trial?
MH: That varies greatly—but we always try to negotiate a fair settlement at every stage and 98% settle before trial.

PDN: What must a photographer be prepared to endure, in terms of an investment of time and money, and/or mental anguish—to take on a textbook publisher with one of these claims?
MH: That also varies greatly. Some cases are resolved quickly without anything more than sending us the invoices. Other cases require more documents and a deposition. We advance all expenses, so there is no out-of-pocket cost to the photographer.

PDN: What is required for a photographer to make a strong claim?
MH: Invoices/licenses with terms that identify the specific licensed photographs that limit the uses a publisher can make of those images. Each photograph must also have been registered or can be registered with the Copyright Office.

PDN: What can photographers expect to recover if they win in court?
MH: That depends on the extent of the unauthorized uses, the license terms and conditions, the registration status of the photographs, etc., but it has proven to be well worth our —and the photographers—time.

PDN: If a photographer never registered his or her image copyright, or registered after a textbook publisher misused them, does that make an infringement claim more difficult than it’s worth? [editor’s note: Filing registration before a proven infringement makes copyright holders eligible for statutory damages, which are often much higher than actual damages.]
MH: Sometimes, but not always—it depends on the number of infringements after registration and the license terms and conditions.

PDN: Aren’t these claims subject to a statute of limitations? When is it too late to make a claim?
MH: The photographer has three years from the date he or she knew, or reasonably should have known, about the specifics of the infringement to file a case.

PDN: What percentage of these claims are successful? What are the most common reasons they fail—ie, they’re dismissed by a court, or a photographer recovers little or nothing in the end?
MH: The cases we bring have all been successful unless the plaintiff is determined by the Court to lack standing; that is, to lack ownership of the photographs.

PDN: How have textbook publishers changed their license agreements to avoid these claims in the future?
MH: The textbook publishers are now demanding rights so broad it is almost impossible to overrun the license.

PDN: What’s your parting advice to photographers who license images to textbooks?
MH: Act immediately to find out and protect your rights.

Related:
Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos
Judge Refused to Let Book Publisher Weasel Out of Copyright Lawsuit
 After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits