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April 7th, 2015

Revenues for Thomas Franklin’s 9/11 Image Top $1 Million

Thomas Franklin’s iconic 9/11 photograph has generated $1 million in revenues to date, according to court papers recently filed in connection with a copyright infringement claim over the photograph. It is unclear whether Franklin has benefited financially from the famous photo.

The picture shows three firefighters raising the American flag over the site of World Trade Center after it was destroyed in a terrorist attack on September 11, 2001. Franklin shot the image as an employee of The Bergen Record, making the photograph a work for hire. As a result, the copyright owner is North Jersey Media Group (NJMG), which owns The Bergen Record.

The revenue information was disclosed in the case of NJMG v. Jeanine Pirro and Fox News Network. NJMG had sued for copyright infringement in US District Court in New York over Fox News’s unauthorized use of the photo on a blog promoting a TV program hosted by Pirro. Fox argued unsuccessfully that its use of the image didn’t cut into NJMG’s revenues from licensing the image.

The court papers say that licensing of the photograph peaked in the period between 2002 and 2004, but has continued over time. Between January 2013 and June 2014–an 18-month period–licensing revenues totaled $10,221.71 for editorial uses of the image, and $4,698.91 for commercial uses. That averages out to revenues of less than $1,000 per month for the period. (more…)

March 18th, 2015

Nike Seeks Dismissal of Photog Rentmeester’s Copyright Claim over “Air Jordan” Logo

© Jacobus "Co" Rentmeester

Co Rentmeester sued Nike in January for unauthorized use of this 1984 image to create the “Jumpman” logo used for decades to promote Nike’s Jordan brand.  © Jacobus “Co” Rentmeester

The Nike shoe company has asked a federal court to dismiss photographer Co Rentmeester’s copyright claim over the iconic logo used on Jordan brand sneakers and clothing, on the grounds that the Nike logo is substantially different from Rentmeester’s photo of former basketball star Michael Jordan.

Rentmeester says the company illegally created its so-called “Jumpman” logo from a photograph Rentmeester shot in 1984. Nike, which has used the logo for more than 25 years, called Rentmeester’s claim “baseless.” The company is accusing Rentmeester of trying to claim a monopoly on images of Jordan’s trademark slam-dunk move. And Nike argues that its iconic logo copied none of the “protectable” elements of the Rentmeester photograph–ie, camera angle, lighting, background and other elements of expression that are protected by US Copyright law.

The alleged "Nike copy" of Rentmeester's 1984 image.

The alleged “Nike copy” of Rentmeester’s 1984 image.

Rentmeester filed his copyright infringement claim in January in US district court in Portland, Oregon. He alleged that Nike had based its “Jumpman” logo on an image made by the company that illegally copied Rentmeester’s 1984 photo. Rentmeester had made his image for Life magazine. His image, the Nike “copy” image and the Nike logo all depict Jordan in a move for which he was famous: sailing through the air on his way to slam dunking a basketball.

Nike had temporarily licensed the Rentmeester image in 1984. Rentmeester alleges that Nike copied the image while it was in the company’s possession. He also says Nike paid him $15,000 in 1985, after he complained Nike was infringing his photograph by plastering the “Jumpman” logo all over billboards and posters promoting Air Jordan sneakers. The payment allowed for use of the image for two years in North American markets only, according to Rentmeester’s claim, but Nike has continued to use it ever since. (more…)

March 6th, 2015

L.A. Pays $50k to Harassed Photogs, Agrees to Train Sheriff’s Deputies

Los Angeles County has agreed to pay a $50,000 settlement and instruct sheriff’s deputies to respect First Amendment rights to photograph and record their activities, according to a statement released earlier this week by the American Civil Liberties Union of Southern California.

The Los Angeles County Board of Supervisors approved the settlement on March 3, 2015, with the American Civil Liberties Union of Southern California and photographers Shawn Nee, Greggory Moore and Shane Quentin. (more…)

March 6th, 2015

Feds to Pay Toledo Blade $18,000 Over Arrest of Photographer, Reporter

The federal government has agreed to pay The Blade newspaper in Toledo, Ohio $18,000 to settle a lawsuit over the detention of two journalists last year at a military tank plant, the Associated Press reports.

In settling the case, the government admitted no wrongdoing. And the newspaper agreed not to publish photos the journalists took of the plant on the day they were detained, the AP report says. (more…)

March 5th, 2015

DOJ Report Blasts Ferguson Police for First Amendment Violations

Ferguson, Missouri, police officers “frequently infringe on residents’ First Amendment rights, interfering with their right to record police activities and making enforcement decisions based on the content of individuals’ expression,” according to a report released yesterday by the US Department of Justice.

The DOJ report, titled Investigation of the Ferguson Police Department (FPD), says “FPD engages in a pattern of First Amendment violations.” The investigation was  conducted by the DOJ’s civil rights division in response to citizen complaints and civil unrest in Ferguson following the police shooting death last year of Michael Brown.

The DOJ says in the report that FPD arrests citizens “for a variety of protected conduct,” including talking back to officers, recording public police activities, and lawful protest.

The report cites a number of examples, including several involving recent arrests of citizens who recorded–or attempted to record–police carrying out their duties in public. (more…)

January 15th, 2015

Under Pressure, FAA Issues Handful of Exemptions for Commercial Drone Use

phantom-2-vision-dji

For as long as inexpensive camera-toting drones have been popular, their commercial use in the U.S. has been in a precarious proposition. The Federal Aviation Administration (FAA), the division of the U.S. Department of Transportation that governs the use of our airspace, waited years after the proliferation of drones to issue any guidelines on their use in commerce. Until recently, if you were an architectural or real estate photographer looking for inexpensive ways to capture bird’s eye views, or a production company itching to take advantage of new perspectives in your video, the word from the FAA was clear: No, you can’t use drones for commercial purposes.

But that isn’t stopping businesses from using drones. DJI Global, the manufacturer of the wildly popular Phantom remote-controlled camera drone, skirted the FAA’s ban on commercial drone usage by donating the use of its DJI Inspire 1 during NBC’s broadcast of the 2015 Golden Globes for some free publicity. And under pressure from Congress—who included directives for the FAA to begin to develop the framework it will use to regulate commercial drone flights in a 2012 appropriations bill—the administration has begun to issue exemptions to its six-year-old ban.

In June 2014, it issued the first exemption to British Petroleum, who wanted to use drones to survey Alaska’s North Slope. In September, it issued six exemptions to film and television production companies, and in December, it issued four more exemptions, including one to a construction company. In the first week of 2015, Douglas Trudeau, a 61-year-old real estate agent in Tuscon, Arizona, received the first exemption to use drones for a real estate business. He had applied for the exemption back in July of 2014, after being informed that even though he was not selling his drone footage, using photos and clips shot from drones in his real estate listings constituted commercial use.

CNN—who wants to use drones for newsgathering purposes—has also appealed to the FAA. It recently entered into a Cooperative Research and Development Agreement with the administration, working with the Georgia Tech Research Institute to collect data to help the FAA develop its framework for regulating drone usage in journalism.

While the FAA was called out by Congress more than two years ago and urged to get started on their regulatory framework, there is still no timetable for the process to be completed. For now, the FAA is issuing exemptions on a case-by-case basis, but if the red carpet at the Golden Globes and Amazon’s drone delivery plan are any indication, it will have to move quickly to keep up. As the FAA attempts to levy fines on drone pilots it feels are violating its vague guidelines, U.S. judges have already found in favor of at least one pilot: A federal judge tossed out a $10,000 fine on the grounds that the guidelines were not specific enough. The National Transportation Safety Board later overruled the judge and re-affirmed the FAA’s right to regulate, but it’s clear that the guidelines are doing little to stop commercial flights.

In the meantime, the administration has put together a website with safety tips for recreational, business, and public service users.

Related articles:

Commercial Drones are Legal, Federal Court Says

Court Refuses to Hear Challenge to FAA’s Drone Cease-and-Desist Orders

DJI One-Ups Phantom With More Powerful, 4K-Recording Inspire 1 Photo Drone

Drone Photographers Take To The Skies To Find New Perspectives

December 23rd, 2014

Amazon Sells iPhone Accessories Infringing Copyrighted News Images of War, Death

Amazon page offering a smartphone case decorated with Daniel Berehulak's image from Liberia.

Amazon page offering a smartphone case decorated with Daniel Berehulak’s image from Liberia.

Dealers of cellphone and iPad cases emblazoned with copyrighted news images by Tomas Van Houtryve, Daniel Berehulak, Tyler Hicks and other photojournalists are using Amazon’s marketplace to sell their wares without permission from the photographers. All the images had been featured by TIME magazine on its “Picks of the Top 10 Photos of 2014.” In addition to the cases featuring news images—such as a photo of a child dying of Ebola and a child killed in an air attack on Gaza—the sellers listed on Amazon also sell cases featuring photos of nature, pets, cars, celebrity actors, major sports teams and other subjects.

A Tyler Hicks image from Gaza on a cellphone case sold by a vendor via Amazon.

A Tyler Hicks image from Gaza on a cellphone case sold by a vendor via Amazon.

One of the infringed photographers, Tomas Van Houtryve, had complained that Amazon removed some of the items infringing his photo, but not all. Van Houtryve tells PDN that after he discovered the unauthorized use of his black-and-white image on cases being sold through Amazon, he contacted the online retailer through the email it provides to report copyright infringement. An automated form asked for more information verifying that he holds the copyright to the image. He says, “I provided that along with a detailed list of links to all of the products infringing on my copyright. I also requested the contact information of the vendors/manufacturers providing the illegal cases,” he says. The following day, some of the products were removed, but many remained. He received another automated email from Amazon saying, “We trust this will bring the matter to a close.” He says, “As you can imagine, I’m not satisfied with this response.” On December 20, he took to Instagram and Facebook, posting images of the pages where the products decorated with his image were sold.

The Massimo Sestini image, cropped on a smartphone case.

The Massimo Sestini image, cropped on a smartphone case.

A search of Amazon for the names of other photographers featured on the TIME list turned up cellphone and iPad cases featuring Tyler Hicks’ image from Gaza of a boy carrying a dead child, Daniel Berehulak’s image of health workers in Liberia carrying a child suffering from Ebola (who later died), and part of Massimo Sestini’s photo of a crowded boat transporting migrants from Africa to Malta, and a tight crop on a portion of Whitney Curtis’s image of police pointing automatic weapons at a protester in Ferguson, Missouri.

Erik Fairleigh, PR spokesperson for Amazon, declined PDN’s request for comment, except to tell PDN “the item is no longer listed for sale,” referring to the product Van Houtryve had complained about. On December 23, however, products made with images by Berehulak, Hicks and Sestini remained on the site.

JP Pappis of Polaris Images, which represents Sestini, says that purusing the makers of the cases would be too costly, since they would be difficult to identify and locate and, if they are overseas, would be beyond the reach of U.S. federal courts. (All the cases “ship from China,” according to the delivery information listed on Amazon.) Sarah Lochting of Getty Images, which represents Daniel Berehulak said the agency is “pursuing the matter. We find it particularly egregious given the content of these images.”

The cases sell for between $12 and $15 through Amazon’s third-party vendor system, which allows any individual or company that fills out an online form to sell their products on Amazon. Amazon’s only requirement is that the seller pay a fee, agree to let Amazon take a cut of sales, and agree to the “Amazon Services Business Solutions Agreement,” which includes a clause indemnifying Amazon against “any claim, loss, damage, settlement, cost, expense or other liability” arising from “any actual or alleged infringement of any Intellectual Property Rights.”

Recognize this photo? Let us know.

Recognize this photo? Let us know.

The sellers offering the photo-emblazoned cases use many names, including David Ray Floyd, Sonja B Williams, DODO7899, Janice Lee Curry, NicoleWilliamHarris. 

Take a look. And if you see your photo on one of the cases being sold, let us know.

Recognize the photo? Let us know.

Recognize the photo? Let us know.

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…)