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August 7th, 2013

Photog Who Shot Image for Nike’s “Bo Knows” Ad Campaign Unleashes Lawsuits on Infringers

Richard Noble's 1987 portrait of baseball and football star Bo Jackson. ©Richard Noble

Richard Noble’s 1987 portrait of baseball and football star Bo Jackson. ©Richard Noble

Photographer Richard Noble has reached a tentative settlement with Nike over a copyright infringement claim, filed a second infringement claim against various t-shirt vendors, and is preparing to file new claims against other infringers in the coming weeks, according to his attorney, Edward Greenberg.

All of the claims allege unauthorized use of an iconic image of athlete Bo Jackson, which Noble shot in 1987. The photograph became the poster image for a legendary ad campaign called “Bo Knows” that helped turn Nike into the leading athletic footwear brand.

“Mr. Noble has not licensed this image to anybody for any purpose in some 20 years,” says Greenberg.

Noble sued Nike in June, and was seeking unspecified damages for multiple unauthorized uses of the Bo Jackson image. Nike’s alleged infringement dated back to 2007.

Greenberg declined to discuss the terms of the settlement agreement with Nike, which is still pending, or explain why Noble waited until June 2013 to sue Nike for infringements that took place as long as six years ago. But court papers suggest Noble wasn’t aware of them until more recent infringements led him to suspect past infringement, and search for them.

According to the claim he filed against Nike, Noble was contacted by ESPN and Nike last fall for permission to use the image of Bo Jackson for various projects. ESPN wanted to use it in a documentary film about Bo Jackson, while Nike wanted it for unspecified marketing campaigns, and the company told Noble it wanted to buy “all rights” to the image.

Noble declined both requests, and asked Nike for more details about how they wanted to use the image, so he could propose a fee for a limited license. Nike told Noble in late 2012 they were eager to start using the image, but Noble told the company in mid January 2013 to “hold off” pending a license agreement to be determined, according to the lawsuit. He also told Nike explicitly that he would not agree to a “buy out” of the image.

Then, on January 23, 2013, Noble discovered that Nike had already started using the image. According to Noble’s lawsuit, the company admitted it had distributed the photo on Facebook and Twitter, and had provided it to ESPN for use in the network’s promotion of the documentary film about Bo Jackson.

The lawsuit said that Noble then discovered that a number of other companies had used the image in promotions of Nike products. Those other companies include Steiner Sport Memorabilia, Major League Baseball, Sneaker Bar Detroit and Nice Kicks. Noble alleged in his lawsuit that Nike provided the image to those companies, and authorized them to use it without Noble’s permission.

In addition, Noble discovered that Nike had used the image in various ads and promotions for its products in 2007, 2009 and 2012 without his permission.

Noble says in his claim that he has asked Nike for a full accounting of its past uses of the image, and uses by other companies that were facilitated by Nike (i.e., for which Nike provided the picture and told those third parties it was OK for them to use the image).

He has also told Bo Jackson himself to stop using the photo as an autograph handout because he has not authorized Jackson to do that, according to the lawsuit.

Noble is planning to file copyright infringement claims against other companies besides Nike who have used his Bo Jackson image without permission, Greenberg told PDN.

So far, only one other claim has been filed. That claim, against Blank Shirts Inc and a number of other t-shirt sellers. According to the claim, Noble discovered in June that the companies were using the Bo Jackson image on t-shirts for sale through various Web sites. Noble is seeking unspecified damages from the defendants in that case.

Greenberg says he will file a third lawsuit next week against other companies who have used Noble’s image of Bo Jackson without permission. Other lawsuits could follow that, he said.

August 6th, 2013

Judge Dismisses Privacy Suit Against “Voyeur” Artist Arne Svenson

From "The Neighbors," 2012. ©Arne Svenson

From “The Neighbors,” 2012. ©Arne Svenson

The New York photographer who provoked controversy by photographing his neighbors through their apartment windows and exhibiting the images in a gallery has fended off lawsuit for invasion of privacy.

New York State court judge Judge Eileen  A. Rakower dismissed the claim against photographer Arne Svenson, ruling that the photos in question were protected by the First Amendment. She also ruled that the images did not violate New York State civil rights laws, as the plaintiffs had claimed.

“An artist may create and sell a work of art that resembles an individual without his or her written consent,” Judge Rakower wrote in her decision, underscoring a central principle of the case.

Read the complete story at PDNonline.com.

 

July 26th, 2013

French Editor and Photographer Charged Over Topless Kate Middleton Photos

The editor of French Closer magazine and an unidentified photographer have been charged with violation of French privacy laws for their alleged role in the publication last September of topless pictures of Kate Middleton, the Duchess of Cambridge (and now new mother of baby Prince George).

Last spring, Closer’s publisher and photographer Valerie Suau were charged in the case.

The Telegraph reports that Closer’s editor, Laurence Pieau, was charged earlier this month for her role in the publication of the photos, which show Middleton, the Duchess of Cambridge, sunbathing topless while on vacation in France last September. Authorities did not announce the charges until yesterday. Pieau has defended her decision to publish the photos in various interviews, saying “I did my job as a journalist,” according to the report.

A third unnamed photographer may soon be charged as well, The Telegraph says.

Suau and Ernesto Mauri, the publisher of Closer, were charged in the case under France’s strict privacy laws last April. Suau has admitted taking images of the Duchess sunbathing topless, but Suau says the pictures she took were “all decent.”

Suau is suspected of having helped other photographers take topless pictures of the Duchess, according to The Telegraph report.

Kate Middleton and her husband, Prince William, have pressed authorities to charge Closer with “grotesque breach of privacy” and have gained public sympathy and support for their efforts, in part because of bitter memories of the death of William’s mother, Princess Diana. She died in a car crash in Paris in 1997. The driver of the car was intoxicated, but many people have blamed the princess’s death on the paparazzi, who were in pursuit of the car to get photos of Diana and her boyfriend when the crash occurred.

Related stories:
French Photog Could Go to Jail Over Topless Pictures
French Court Orders Magazine to Hand Over Topless Photos of Kate Middleton

 

July 16th, 2013

Police Intimidation Watch: Detroit Police Apologize After Video Shows Them Violating Photographer’s Rights

With a public relations mess on its hands, and a video showing that it probably violated the constitutional rights of a Detroit Free Press photographer, the Detroit police department has apologized to the paper’s editors, and promised to issue a directive reminding officers that they can’t interfere with anyone videotaping them in public.

The apology to Free Press editors came after reporter Mandi Wright was arrested while making a video of police arresting a criminal suspect on a public street, according to a report in the Detroit Free Press.

The video (above) shows an officer approaching Wright and ordering her to turn off her iPhone, which she was using to make a video of the arrest. (more…)

July 15th, 2013

Hearing Set in Arrest of Aerial Photographer George Steinmetz

© National Geographic/Photo by George Steinmetz. A recent cover story for National Geographic shot by George Steinmetz.

© National Geographic/Photo by George Steinmetz. A recent cover story for National Geographic shot by George Steinmetz.

George Steinmetz, the National Geographic contributor known for the landscapes he captures from a motorized paraglider, faces a court hearing in Kansas this Thursday following his arrest on June 28 for criminal trespass after he flew over a cattle feedlot in Finney County, Kansas.

The Hutchinson News of Hutchinson. Kansas, reported last week that paragliding instructor Wei Zhang, who was waiting for Steinmetz by a parked SUV, was also arrested. Steinmetz and Zhang were held in jail for about five hours. They were released after paying a $270 bond.

Finney County Sheriff Kevin Bascue told the newspaper Steinmetz and Zhang did not have permission to be on the cattle ranch. A feedlot employee had contacted the sheriff’s office after seeing Steinmetz taking photos of the ranch from the air. The employee also reported “an unknown vehicle” on the property.

Steinmetz and Zhang had moved by the time officers arrived, the paper reports, but “feedlot executives” wanted them arrested.

Although a Finney County attorney said in a statement that the charges are not about Steinmetz’s right to take pictures, Kansas and other states have criminalized unauthorized photography of farming operations. Under the Kansas law, it is illegal for a person to enter an animal facility that is not open to the public to take pictures or video.

Agri-business interests have lobbied for such laws to stop negative publicity about factory farming by PETA, a leading animal rights organization, and other groups.

Steinmetz was on assignment for National Geographic, shooting a story on food, at the time of his arrest. “National Geographic intends to provide counsel for George and his assistant in defense of the charges,” a National Geographic spokesperson says.

An attorney for the Kansas Livestock Association (KLA), a lobbying group for cattle ranchers, told the Hutchinson News that Steinmetz’s arrest was a reminder to his organization’s members to be alert to “unauthorized and suspicious activity.” “Everyone knows safe food starts with healthy animals,” the KLA attorney said. “We have to have those animals healthy in order to produce a safe food supply.”
–David Walker

Update July 18: At a scheduling hearing held today, a Finney County court judge set another hearing on August 29, 2013 for Steinmetz and Zhang. A local attorney hired by National Geographic to represent them appeared on their behalf at today’s hearing, a spokesperson for the publisher told PDN.

Related articles
Agribusiness Pressing States to Criminalize Photographs of Farms

PDN Photo of the Day: George Steinmetz, Up in the Air

May 9th, 2013

UK Paves the Way for Orphan Works Law. Will the Sky Fall?

Photographers have not only been “Royally Robbed,” but the British government has violated their human rights, according to a UK group called stop43.org.uk. Photo trade groups in the US, including NPPA, ASMP, PPA, APA and PACA have predicted “a firestorm of international litigation.”

The cause of all the fuss? Changes in UK law that pave the way for regulations under which publishers and others can use orphan works–ie, photographs and other works for which the copyright owner cannot be identified or located–without violating copyright. The changes to the law also enable the British government to establish a central registry and licensing agency for visual works, analagous to the musical licensing agencies ASCAP and BMI.

The changes are part of the so-called Enterprise and Regulatory Reform Act, which provides a framework but few details of how the UK’s orphan works law and copyright registry might work.  The British government is expected to issue detailed regulations this fall. Meanwhile, the government says its intent is to make the licensing of intellectual property more efficient in the digital age, and that it will protect the interests of copyright holders at the same time.

Absent the details about how the law will work, however, photographers and other copyright holders are left to speculate on the actual consequences of the new laws. Reactions among photographers (and their trade groups) range from wariness to outrage.

“I’m not terribly worried at all” about the orphan works provision of the new law, says David Hoffman of Editorial Photographers UK. “It’s annoying there’s so much confusion, hysteria and anger about that.

“I’m much more concerned about [the collective licensing provision]. It takes control away” from photographers over who may license their images, for what purposes, and for how much. “But what control do I have anyway?” Hoffman adds, explaining that thousands of his images are used illegally. He estimates he loses tens of thousands of dollars’ worth of licensing fees each year as a result.

Paul Ellis of stop43.org also dismisses the orphan works part of the legislation as a “red herring.” Users of orphan works are likely to have to show that they searched diligently for the copyright owner of the work, and the government will still collect a fee for the use in case the rights holder ever steps forward. Ellis predicts almost nobody will bother licensing orphaned photographs.

“The system will be costly to use,” once licensing, search and administrative costs are added up, he says. “And if the costs of acquiring orphan works licenses are higher than a normal license fee, you’ve built an incentive to infringe.” (Courts in the UK award little more than a normal license fee for infringement, if an image owner bothers to sue and win, he notes.)

Ellis is far more enraged about the proposed registry, called an extended rights collective. The idea behind that is that the government would set prices for lots of small commercial and editorial uses of images, collect fees for those uses, and disburse the payments to copyright holders, provided they register. Ellis points out that anyone who doesn’t register won’t get paid. And although copyright holders may be able to opt out of the system, it might be a difficult to do that.

“The effect of this will be to drive down prices, and drive value out of creators’ pockets,” Ellis predicts. But there’s a bigger principle at stake, he says. “It utterly breaches the conception that the owners of property have the exclusive right to exploit that property. If you punch a hole in that principle, you’re on very shaky ground.

“Extended collective licensing is an arbitrary deprivation of property. The government is confiscating property,” Ellis says, asserting that it amounts to a human rights violation under international law, which he says guarantees “the right to peaceable enjoyment of your property.”

The major photo trade associations in the US, along with the Graphic Artists Guild, sent a letter last fall to UK officials objecting to the new laws on the grounds that images by US copyright holders would be swept up in the UK licensing system–and used in violation of international treaties as a result.

ASMP executive director Eugene Mopsik, who was one of the letter’s signatories, says of the UK’s new orphan works law: “It’s not the end of the world, but there are significant concerns,” although he adds that it is difficult to predict the effects of rules that haven’t been written yet. He agrees that the issues of orphan works and widespread theft of images online are issues that governments have to address. But he says, “The devil is in the details.”

Mopsik says metadata is easily stripped from digital image files, so under orphan works laws, photographers can easily lose control of their intellectual property through no fault of their own. Their work can be used in ways they find objectionable, and unauthorized uses can undercut their markets–and their income, he says.

But he says ASMP is not opposed to orphan works laws provided that photographers are given certain protections, including the exclusion of any commercial uses under orphan works legislation, requirements that users search diligently enough for copyright holders, and requirements that users post notice of their intent to use an image–so photographers have a chance to learn if their images are about to be classified as orphan works.

How good or bad it the orphan works law ends up being for photographers, Mopsik says, depends upon how lawmakers define terms like commercial use and diligent search.

Jeff Sedlik, co-founder, president and CEO of the PLUS Coalition, is also opposed to collective licensing systems that are opt-out (like the UK system seems to be) rather than opt-in. But he believes it is incumbent upon copyright holders to register their works, in order to prevent those works from becoming orphans because the metadata is inevitably stripped away. But the registry must be centralized–or consist of registries in different countries that are all connected together and searchable at once–in order to effectively protect copyright, he says.

April 29th, 2013

French Photog Could Go to Jail Over Topless Pictures

A French magazine could be shut down and a photographer sent to jail over the publication last year of photographs of Britain’s Prince William and his wife, Kate Middleton, sunbathing while on vacation in France. The magazine, called Closer, published topless images of Middleton that were allegedly shot by photographer Valerie Suau.

French authorities are investigating the publication of the photos, which may have been a violation of French law. If charged and convicted of violating the royal couple’s privacy, Suau faces up to one year in jail and a fine up to 45,000 euros (about $60,000). Closer could be shuttered for as long as five years.

Prosecutors are also investigating Suau’s employer, a French newspaper called La Provence, which published some of the sunbathing images, although none showed Middleton topless.

The royal couple had been sunbathing on private property when Suau allegedly photographed them. The publishers of Closer have said in their defense that the images were shot from a public road.

After the images appeared in France, authorities there ordered Closer not to publish any more of them. But the images appeared in other European publications.

The suppression of the images in France and ensuing investigations reflect that country’s strict privacy laws, which bar the publication of photographs of individuals without their permission–even if the photographs are shot in a public place.

The royal family has invoked the death of Prince William’s mother–Princess Diana–to stir outrage over the sunbathing photos. The photos, according to an official statement from the royal family, are “reminiscent of the worst excesses of the press and paparazzi during the life of Diana, Princess of Wales.”

Princess Diana  died in a car crash in Paris in 1997. Several paparazzi and news photographers on motorcycles were chasing the car she was riding in when it crashed. Although the driver of the car was later found to have been drunk, and manslaughter charges against the photographers were dropped after an investigation, many people still blame them for the princess’s death.

Three of the photographers were eventually found guilty of violating France’s privacy laws because they photographed Princess Diana and her companion, Dodi Al Fayed, inside the car after the accident. Those photographers were ordered to pay a symbolic fine of one euro each.

April 25th, 2013

Richard Prince Wins Appeal; Court Overturns Infringement Ruling

A federal appeals court has ruled that artist Richard Prince did not infringe photographer Patrick Cariou’s copyrights by reproducing several dozen of Cariou’s images without permission. The appeals court said 25 out of 30 works by Prince at the center of the dispute made fair use of Cariou’s photographs.

The decision reversed a lower court ruling that held Prince liable for infringement.

Click here for the full story.

April 18th, 2013

Man Infringes Copyright to Profit from Boston Bombing

Intent on making a quick buck from the Boston Marathon bombing, a self-publisher allegedly offered an e-book full of stolen news photos for sale on Amazon.com, titled “The Boston Bombings First Photos.”

The NPPA reported yesterday that the book, published by a man identified as Steve Goldstein, included more than 60 images used without permission from The Associated Press, Getty Images and The New York Times. Goldstein was charging $7.99 per download.

Amazon has removed the book, apparently in response to Digital Millennium Copyright Act (DMCA) take-down notices from copyright holders.

According to the NPPA report, a New York Times attorney sent a cease-and-desist letter to Goldstein. In his response, Goldstein wrote, “We will stop using the photos that you mention. Sorry for the use without permission.”

For more details, see the NPPA report.

April 15th, 2013

APA, NPPA Join Copyright Suit Against Google

American Photographic Artists (APA) and the National Press Photographers Association (NPPA) announced today that they are joining an ongoing class action lawsuit against Google, alleging that the Google Books Search program is a violation of the copyrights of photographers and other visual artists.

Under the Google Books Search program, Google has been working with several libraries to scan books and periodicals and make the content available through search engine results. But a group of plaintiffs–including photographers and photo trade associations–filed a class action lawsuit in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

“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,” NPPA president Mike Borland said in a statement issued today by NPPA.

The lawsuit was spearheaded by American Society of Media Photographers (ASMP). Other lead plaintiffs include the Graphic Artists Guild, Picture Archive Council of America (PACA), Professional Photographers of America (PPA), the North American Nature Photography Association (NANPA), and a number of individual photographers.

ASMP said when it filed the lawsuit that the goal is to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

In joining the lawsuit, APA national president Theresa Raffetto said in a prepared statement: “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.”