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March 19th, 2014

Richard Prince Settles with Photographer Patrick Cariou

One of Patrick Cariou's photographs, altered by Richard Prince

A fair use alteration of one of Patrick Cariou’s photographs, by Richard Prince.

Artist Richard Prince has paid an undisclosed sum of money to photographer Patrick Cariou to tie up the loose ends of their five-year copyright battle, The New York Times has reported.

Prince previously won an appeals court decision in 2013 dismissing most of Cariou’s copyright infringement claims. Cariou had alleged infringement of 30 images from his book Yes, Rasta that Prince had appropriated for a series of paintings. Most of the paintings sold through Prince’s gallery, fetching more than $10 million dollars.

The US Court of Appeals for the Second Circuit, located in New York City, ruled that 25 of Prince’s works qualified as fair use of Cariou’s photographs because Prince transformed them with “an entirely different esthetic.”

But the appeals court declined to rule on Prince’s fair use defense for the remaining five works, and sent the case back to a lower court for further consideration of Cariou’s claims surrounding those five works.

The settlement resolves Cariou’s claims related to those five works.

The lower court had originally ruled in Cariou’s favor on all of his claims, because Prince wasn’t commenting on Cariou’s photographs or otherwise referencing their original meaning in his paintings; he was simply using Cariou’s photographs as raw material.

The appeals court’s decision favoring Prince remains controversial. While many in the art community have applauded the decision, many photographers contend that it unfairly expanded the boundaries of fair use, and made their images more vulnerable to appropriation as raw material by other artists.

Related:
Supreme Court Declines to Hear Patrick Cariou’s Claim Against Richard Prince
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
In Cariou v. Prince, An Appeal to Clarify a Crucial Fair Use Boundary
Appropriation Artist Richard Prince Liable for Infringement, Court Rules

March 17th, 2014

Photographers Could Get Royalties on Auction Sales Under Proposed Federal Bill

Few things are as frustrating to photographers as selling a print for a few thousand dollars–or less–then watching collectors reap huge profits by re-selling those same prints at auction years later for tens of thousands of dollars–or even more.

Two US Senators and a US Congressional representative have introduced a bill to cut visual artists in on that action with a 5 percent royalty on the price of visual works re-sold at auction. If it becomes law, the bill would apply only to works sold by auction houses–not by private individuals or dealers–and only when the auction price of a work exceeds $5,000, according to a report on the Art Law blog of Frankfurt, Kurnit, Klein & Selz (FKK&S), a New York law firm.

The auction royalty would be capped in 2014 at $35,000 for each sale. The cap would be subject to an inflation adjustment every year after that, according to the FKK&S report.  Auction houses would be obligated to collect the so-called auction royalty, and subject to civil claims from artists if they fail to collect and pay the royalty.

The bill, called the American Royalties Too Act (ART Act), was introduced last month in the Senate by Tammy Baldwin (D-WI) and Ed Markey (D-MA), and in the House by Congressman Jerrold Nadler (D-NY).

“American artists are being treated unfairly,” said Nadler in a prepared statement. “The benefits derived from the appreciation in the price of a visual artists’ work typically accrues to collectors, auction houses, and galleries, not to the artist.”

He noted that visual artists in 70 other countries are compensated when their works are re-sold at auction.

Unable to collect royalties from the re-sale of existing prints that have increased significantly in value, US photographers sometimes respond by issuing new limited editions of their prints–in different sizes or using different printing processes from earlier editions.

That practice angers collectors. For instance, William Eggleston created limited-edition digital inkjet pigment prints of some of his most iconic images, and earned $5.9 million by selling them at a Christie’s auction in March, 2012. He was promptly sued by financier Jonathan Sobel, a long-time collector of Eggleston’s vintage dye-transfer prints. Sobel alleged that the new prints devalued Sobel’s dye transfer prints and amounted to a breach of contract on Eggleston’s part.

Sobel eventually lost the legal fight, although he had the sympathy of dealers and gallerists who worry that photographers could harm their reputations and the market for photographic prints if they anger collectors by issuing new editions.

The ART Act, if it becomes law, could help reduce incentive to issue new editions by giving photographers another way to profit from the dramatic rise in the value of their work.

But success of the bill is by no means assured.

Nadler introduced a similar bill in 2011 that died in committee. The US Copyright Office, which was opposed at the time to instituting resale royalties for visual artists, has since changed its position on the matter, according to the FKK&S report. But collectors and auction houses are certain to object to paying royalties to artists. And the ART Act seeks to change a long-entrenched principle of copyright law called the First Sale doctrine, which  allows buyers of copyrighted works to do with them as they please, with no obligation to the artists who made them.

Related:
Collector Sues Eggleston Over New Prints of Limited Edition Works

Q&A: Art Collector Jonathan Sobel Explains His Beef with William Eggleston

What Does Limited Edition Really Mean? (subscription required)

March 12th, 2014

Model Release Lawsuit Survives Getty’s Challenge

A New York state judge has cleared the way for a lawsuit by a model who is accusing Getty Images of commercial use of her likeness without a model release.

State supreme court judge Ancil C. Singh rejected last week a request from Getty to throw out model Avril Nolan’s claim on First Amendment and other grounds.

Nolan sued Getty last September after her picture appeared in a public service ad promoting services for HIV-positive people. The ad, published in a free daily called AM NY, showed a picture of Nolan with the headline “I am positive (+) and I have rights.”

The ad was placed by the New York State Division of Human Rights, which licensed the image of Nolan from Getty. The photograph was shot by Getty contributor Jena Cumbo, according to court documents.

Nolan alleges that she didn’t sign a model release for the image, so Getty was in violation of New York’s right of publicity law not only for licensing the image for use in the HIV ad, but also for displaying the image on its web site.

New York state law prohibits use of a person’s likeness for advertising or trade purposes without written consent, i.e., a model release.

Getty countered in its motion for dismissal that displaying the images on its web site for licensing to third parties does not constitute advertising or trade use under the state’s right of publicity law. The agency also claimed a First Amendment right to display images for license to third parties. And it argued that Nolan should sue the State of New York, not Getty, since it was the state that used the image for advertising purposes, allegedly without consent.

But the judge concluded that Getty’s defenses are questions for a jury to decide.

The ruling was against Getty’s motion to dismiss the lawsuit, and not a ruling on the merits of Nolan’s claims.

March 10th, 2014

Commercial Drones Are Legal, Federal Court Says

A federal administrative court judge has determined that drones–aka unmanned aerial vehicles, or UAVs–can be used for commercial purposes because the Federal Aviation Administration has no regulations on the books that prohibit such uses.

Vice.com reported that the judge made the ruling last week in a case involving a photographer who had appealed a $10,000 fine for using a drone to shoot a video commercial, allegedly in violation of FAA rules.

The FAA immediately appealed, explaining in a statement that it “is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

The FAA had fined photographer Raphael Pirker for unauthorized commercial use of a drone in 2011, after Pirker had used a remotely-controlled aircraft to produce a video commercial for the University of Virginia. Pirker had piloted the aircraft in the vicinity of the university, located in Charlottesville, Virginia.

Pirker, owner of UAV video production company Team Black Sheep, won his appeal of the fine on the grounds that a drone is in the same class of aircraft as model airplanes, which the FAA has never regulated. (The FAA has asked model airplane operators to fly the planes under 400 feet, and to stay away from airports, but those rules are strictly voluntary.)

The administrative court ruling means that photographers can use drones for commercial purposes, at least for now. But with the FAA opposed to unregulated use of drone aircraft in the US, it’s a safe bet that the agency will try to impose new administrative rules–or seek legislation–to restrict the use of drones in the near future.

Related:
Hartford Police Sued for Stopping Camera Drone, Chasing Photog Away

February 20th, 2014

Hartford Police Sued for Stopping Camera Drone, Chasing Photog Away

A news photographer has sued the Hartford, Connecticut police department and two of its officers for forcing him to stop flying a camera-equipped drone over the scene of a police investigation.

Photographer Pedro Rivera, who works for television station WFSB, was briefly detained for questioning and ordered to stop flying the remote-controlled drone over the scene of a fatal traffic accident on February 1.

Rivera was not on duty for WFSB television and was not gathering video for the station at the time, he told police at the scene. But he acknowledged to police that he sometimes provides video footage from his drone to the TV station.

After he was detained, police ordered him to leave the scene. Rivera alleges that police then called his employer, and told a supervisor that Rivera had interfered with a  police investigation. Police urged the station to discipline Rivera, he alleges in the lawsuit.

He was suspended from his job “for at least one week,” the lawsuit says.

Rivera says police violated his First Amendment rights to “monitor” the police response to a motor vehicle accident, and his Fourth Amendment protection against unreasonable seizure.

Rivera asserts in his lawsuit that “private citizens do not need local, state or federal approval to operate a remote-controlled aircraft” and that police had no cause to believe he was “in violation of any law or regulatory requirement.”

The Federal Aviation Administration has taken the position that commercial use of drones is illegal, and that journalism amounts to commercial use of the vehicles, according to an NPPA report. That report also notes that some critics say there is no legal basis for the FAA’s position.

Rivera is seeking compensatory damages for lost wages and emotional distress, as well as punitive damages. In addition, he is asking the court for a declaratory judgment that he wasn’t violating any laws by flying the drone, and for an injunction to prevent Hartford police from “interfering with the lawful operation of drones within city limits.”

Hartford police have yet to file a response to Rivera’s claims, and they did not immediately respond to a request for comment.

Related:
PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation
Police Intimidation Watch: New Haven Police Sued for Arresting Photographer, Erasing iPhone Video

February 20th, 2014

PDN Video: A Photographer’s Guide to the First Amendment and Dealing with Police Intimidation

Since the 9/11 terrorist attacks, news photographers have been subject to police intimidation and arrest, as if photography is a crime. But federal law protects photography and photographers, as Mickey Osterreicher, general counsel to the National Press Photographers Association, explains in this video. The challenge for photographers is knowing how to assert your rights in tense situations, without getting arrested. Osterreicher offers practical tips for staying out of trouble while getting the pictures you need. And for photographers unfortunate enough to get arrested, he suggests places to call for legal help.

Related:

Police Intimidation Watch: New Haven Police Sued for Arresting Photographer, Erasing iPhone Video

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

Police Intimidation Watch: Cop Charged with Lying About a Photographer’s Arrest

January 13th, 2014

Getty, AFP Appeal $1.2 Million Jury Verdict in Daniel Morel Case

Getty Images and Agence France-Presse (AFP) have asked a federal district court to undo the $1.2 million jury verdict against them for willful infringement of photographer Daniel Morel’s copyrights, calling the verdict “a miscarriage of justice.”

In a brief they submitted to the US District Court in Manhattan last week, the agencies argued that “no reasonable jury could conclude either AFP or Getty acted willfully as defined under applicable law, based on the evidence in the record.”

They asked the court to vacate the decision in one of three ways: declare that AFP and Getty are liable for “regular” rather than “willful” infringement, thereby forcing a reduction of the damages awarded; give the agencies a chance to re-argue their case before a different jury; or simply cut Morel’s award for copyright infringement from $1.2 million to $200,000 and call it a day.

A jury awarded Morel $1.2 million on November 22 after it determined that AFP and Getty Images willfully infringed his copyright by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included damages for violations of the Digital Millennium Copyright Act.

The award was the maximum amount of statutory damages possible under the law in the case, given that the jury found that both agencies infringed with willful intent.

In asking the court to overturn the verdict, Getty and AFP noted the the jury award was “60 times the maximum actual damages [Morel] could have recovered based upon [AFP's] after-the-fact willingness to pay him $20,000.” They also said the award was 4,700 times the day rate that professional photographers are paid on a freelance basis.

AFP had initially distributed Morel’s images under the name of Lisandro Suero, who had stolen them from Morel’s Twitter feed. Both AFP and Getty argued in court that their distribution of Morel’s images was not willful, but instead the result of honest mistakes that they tried to correct.

After learning that the images were Morel’s, AFP offered to pay him $20,000. He rejected the offer.

Morel’s attorney got a key AFP employee to admit in court that in his hurry to upload images of the earthquake, he had not followed company guidelines for obtaining news images from online sources.

The infringement “was obviously willful on AFP’s part because they didn’t check on the author of the photographs. The whole mess stemmed from that,” a juror told PDN after the verdict was handed down.

That same juror explained that the jury consider Getty’s infringement willful because e-mail evidence showed some Getty employees knew almost immediately that the images were Morel’s. Still, the agency continued to distribute them with credit to Suero for more than two weeks after the earthquake.

In their motion to reduce the award, Getty and AFP argued that the evidence does not show willful infringement. The agencies also argued that they did not violate the Digital Millennium Copyright Act, contrary to the  jury’s findings.

The agencies have an uphill battle to vacate or reduce the verdict because judges are often reluctant to overturn jury verdicts.

But the agencies have incentive to try because there’s more at stake than a $1.2 million judgment for one photographer: If the Morel verdict stands, it could encourage other photographers to play legal hardball with news agencies that rush to distribute breaking news images without permission, while hoping to negotiate fees with copyright holders after the fact.

Related:
Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

November 22nd, 2013

Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

A jury has awarded photographer Daniel Morel $1.2 million in damages after deciding that Agence France-Presse (AFP) and Getty Images willfully violated his copyright. The award is the maximum amount of statutory damages possible under the law. AFP and Getty Images were also found liable for 16 violations of  the Digital Millenium Copyright Act. The verdict was read in Federal Court in Manhattan this afternoon, Morel’s attorney, Joseph Baio confirmed.

Throughout the trial, which  began on November 13, attorneys for Getty Images and AFP had argued that the distribution of Morel’s images was not willful infringement but the result of mistakes.  Lawyers for AFP and Getty Images had suggested an award of $275,000. That amount was based on a photographer’s day rate of $275 multiplied by 1,000, attorney Joseph Baio told Rangefinder’s Lindsay Comstock.

The case began in 2010 when Morel alerted AFP and Getty Images that they were distributing his exclusive images of the January 12, 2010 earthquake in Haiti without his permission; Morel received no payment for the use of his images.  A Federal Court judge ruled in January that AFP, which originally distributed his images, had infringed his copyright. The jury trial that was to determine whether or not the infringement was willful, and what statutory damages should be awarded to Morel.

Lindsay Comstock at Rangefinder reports that Morel’s lawyer described the photographer as “delighted” with the verdict, while the defense was “dumbfounded.”

Related Articles
In TwitPic Copyright Claim, Daniel Morel Seeks $13.2 Million from AFP, Getty

AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules

November 22nd, 2013

After Closing Arguments, Verdict Expected Soon in Morel v. AFP and Getty Images

 

© Daniel Morel/courtesy of Daniel Morel

© Daniel Morel/courtesy of Daniel Morel

The jury is expected to announce its verdict today in the trial to determine damages in the copyright infringement case  photographer Daniel Morel brought against Agence France-Presse and Getty Images, following yesterday’s closing arguments by lawyers for all sides in the case.

The case began when Morel alerted AFP and Getty Images that they were distributing his exclusive images of the January 12, 2010 earthquake in Haiti without his permission.  The images were published and broadcast by many news outlets. Morel did not receive payment for the almost 1,000 downloads of his images licensed by Getty and AFP, according to his attorney, Joseph Baio.

Morel sued the agencies for infringement. Federal District Court Judge Alison Nathan ruled in January that AFP and The Washington Post, which published images distributed by Getty, were liable for infringement.  The trial to determine damages began November 13 in Judge Nathan’s courtroom  in Manhattan.

Lindsay Comstock of Rangefinder covered the closing arguments  yesterday (and also spoke to Morel during a break in the proceedings about his stance against the two media giants).

As Comstock notes in her report of the day in court,  the lawyers for both AFP and Getty urged the jury to award damages based on the notion that the corporations “made mistakes” in their sale of the images.

You can read her full report of the closing arguments and see images Morel provided at the Rangefinder blog, PhotoForward.

Related Article
In TwitPic Copyright Claim, Daniel Morel Seeks $13.2 Million from AFP, Getty

AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules

November 21st, 2013

Media Protest White House Limits on Photographers

Visual press release? President Obama and Vice President Biden met with Israeli and Palestinian negotiators in the Oval Office, July 30, 2013. Media organizations say their photographers were excluded on the grounds that it was a "private meeting." The White House issued this photo by staff photographer Chuck Kennedy afterwards.

“Visual press release”? President Obama and Vice President Biden met with Israeli and Palestinian negotiators in the Oval Office, July 30, 2013. Media organizations say photojournalists were barred because the administration declared it a “private” meeting.  The White House issued this photo by staff photographer Chuck Kennedy afterwards via Flickr.com.

More than three dozen news organizations and journalists’ trade associations have submitted a joint letter of protest to the Obama administration, charging it with denying the news media the right to photograph and videotape President Obama while he is performing his official duties.

“We write to protest the limits on access currently barring photographers who cover the White House,” the letter to White House Press Secretary Jay Carney began. “We hope this letter will serve as the first step in removing these restrictions and, therefore, we also request a meeting with you to discuss this critical issue further.”

To get Carney’s attention, the letter includes an indirect threat of legal action on First Amendment grounds. It says the restrictions on photographers “raise constitutional concerns,” and goes on to cite a 1980 Supreme Court ruling that protects the First Amendment right of the press to access information about the operation of government.

The letter was delivered to Carney today. It was signed by all major TV news networks, wire services, major newspapers, as well as American Society of Media Photographers, National Press Photographers Association, and other organizations.

“As surely as if they were placing a hand over a journalist’s camera lens, officials in this administration are blocking the public from having an independent view of important functions of the Executive Branch of government,” the letter says.

It accuses the administration of excluding photographers by labeling the President’s meetings as “private events.” The letter lists 8 examples of meetings that amounted to “governmental activity of undisputed and wide public interest,” including meetings between the President and the Congressional Hispanic Caucus, Israeli and Palestinian negotiators, and other officials, dignitaries, and activists.

After all but one of the meetings, the White House issued official White House photos of the meetings, according to the letter.   “You are, in effect, replacing independent photojournalism with visual press releases,” news organizations complained to Carney in the protest letter.

The letter says that previous administrations were more transparent, and adds, “[T]he restrictions imposed by your office on photographers undercut the President’s stated desire to continue and broaden that tradition.”

The White House did not immediately respond to requests for comment about the letter.

The Obama administration has been subject to past criticism for its handling of the press.

For instance, the Committee to Protect Journalists says in a recent report, “Despite President Barack Obama¹s repeated promise that his administration would be the most open and transparent in American history, reporters and government transparency advocates said they are disappointed by its performance in improving access to the information they need.

“”This is the most closed, control freak administration I¹ve ever covered,’ said David E. Sanger, veteran chief Washington correspondent of The New York Times.”

The Times was one of the 38 organizations that signed today’s letter of complaint to White House Press Secretary Jay Carney.