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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

March 20th, 2014

Appeals Court Says Streamlined Photo Copyright Registration Procedures Are Legal

A federal appeals court has re-instated stock photo agency Alaska Stock’s copyright infringement claim against textbook publisher Houghton Mifflin, reversing  a lower court decision to dismiss the case on the grounds that the stock agency had registered its images improperly.

The decision means that Alaska Stock now gets the opportunity to try its copyright claims in court.

The case is a also victory for photographers and other copyright owners because it upholds a streamlined process for registering images in bulk as a collected work. Specifically, the court affirmed the authority of the US Copyright Office “to grant registration to individual stock photographs within a collection where the names of each of the photographers, and titles for each of the photographs, were not provided on the registration forms.”

“The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the [copyright] statue,” the US Court of Appeals for the Ninth Circuit said in its decision. “Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust.”

The ruling came in the case of Alaska Stock v. Houghton Mifflin Harcourt, which began in 2009 when Alaska Stock sued the publisher for using Alaska Stock images well beyond the scope of the original usage license. In particular, the publisher “greatly exceeded” the print run limit of the license it had paid for.

Houghton Mifflin challenged the claim on the grounds that Alaska Stock had improperly registered the images in question. (Federal law requires valid registration of any copyrighted work that is the subject of a federal copyright claim.)

Alaska Stock had registered the images in bulk, as a catalogue, listing names of only three photographers, and describing the images in general, but not listing a title for each photograph.

The district court agreed with Houghton Mifflin that Alaska Stock’s registration was “defective” because the agency had not provided the names of each of the photographers and the titles of each of the photographs in its registration application, as required “unambiguously” by law, according to the district court decision.

But the appeals court overturned that decision because it conflicted with a long-standing practice by the Register of Copyrights, undercut the legal authority of the Register of Copyrights to establish procedures of copyright registration–and amounted to a misreading of copyright law by the district court.

The appeals court noted that for more than 30 years, owners of collected works–notably magazines and newspaper publishers–have been legally registering both the collected work and the individual underlying works with one application, without listing all the authors or titles of the individual works. To do otherwise would put an undue burden on applicants and the Register of Copyrights, the court noted

The one caveat to that practice is that applicants for registration must own copyright to the collected work and all the underlying works, the appeals court noted.

In its decision, the appeals court also validated a 1995 letter from the Register of Copyright to the Picture Agency Council of America (PACA) prescribing a method for registering large catalogues of images. “The Register agreed that a stock agency could register both a catalog of images and the individual photographs in the catalog in one application if the photographers temporarily transferred their copyright to the stock agency for the purposes of registration,” the appeals court said in its ruling.

Alaska Stock did exactly that, asking its photographers to transfer copyrights to the agency for the purpose of registering the images in bulk, and then filing a registration application for a CD catalogue of images. (The agency arranged to transfer copyrights back to the photographers after the registration was completed.)

In reviewing the registration requirements spelled out under copyright law, the appeals court said the law requires only that copyright owners provide a title of the collected work and a description (not titles) of the underlying works. Alaska Stock met that requirement, the appeals court said, by registering the images as a collected work called “Alaska Stock CD catalog 4,” and by identifying the underlying works as “CD catalog of stock photos” on its registration form.

The appeals court said the statue requires the name of the author of “the work”–ie, the collected work, not every author of the the individual works. The stock agency met the requirement by listing itself [Alaska Stock] as the author of the collective work, the appeals court said.

The appeals court noted that Houghton Mifflin’s arguments have prevailed in several district court decisions in other similar cases, “but we do not agree with them,” the appeals court added.

In those cases, the courts threw out copyright claims because the registrations were “defective,” i.e., they did not list all the image authors and image titles.

Three of those cases were filed in the Ninth Circuit. One case was settled; two others are under appeal, and will probably be re-instated because of the Alaska Stock decision. “Judges in the Ninth Circuit have to follow the ruling of the court of appeals” in that circuit, says Maurice Harmon, who represents the plaintiffs in all the cases, including the Alaska Stock case.

A fourth case is on appeal in New York, which is in the Second Circuit. Judges there are not bound by the Ninth Circuit decision in the Alaska Stock case. But Harmon believes judges in other circuits “will take it into consideration.

“We think that at the court of appeals level, we’re starting to get momentum for all of these cases,” he adds.

Harmon also says, “It galls me that these [textbook] publishers, who use compilation registrations [to protect their own works], would turn their backs on the very thing they rely on to win a technical victory to take the courthouse keys away from photographers.

“But they know that once a photographer gets in the door of the courthouse, the publishers are not going to get away with this copyright infringement.”

Related:
After Flouting Print Run Limits, Publisher Faces Dozens of Lawsuits

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 6th, 2014

Getty’s Craig Peters on Why Free Images Are Good for Photographers, And for the Photo Industry

Following the announcement by Getty Images that the agency would be allowing non-commercial uses of its images free of charge, we interviewed Craig Peters, Senior Vice President of Business Development, Marketing at Content Images at Getty, to try and find out what the agency hopes to gain from this extraordinary decision.

As we reported today on PDNOnline,  Getty has released a new embed tool to make it easy for non-commercial users to share images from Getty on websites, blogs and social media channels. The new tool enables Getty to collect data on those users and and push ads through the embed viewer. We asked Peters how ad revenue will be shared, what this new business model means for the perceived value of images, and whether Getty is changing its position on enforcing copyrights on images.

(We used the image above for free, using Getty’s Embed tool)

PDN: Getty has various collections, from different sources. What images are excluded from this free usage initiative?
Craig Peters: It’s hard to give you a specific answer. The vast majority of images are in, [unless] we have restrictions from the photographer or copyright owner.

PDN: Are news and celebrity images available as soon as Getty uploads them?
CP: They’re made available as soon as they’re uploaded.

PDN: Why is Getty giving up on the idea of charging everyone–even small non-commercial users– for use of images? (more…)

February 19th, 2014

Trunk Archive Buys Bernstein & Andriulli, Gallery Stock

Image licensing agency Trunk Archive has acquired Bernstein & Andriulli (B&A), the photographers’ rep firm, and its sister company Gallery Stock, Bernstein & Andriulli announced today.

Howard Bernstein said in a prepared statement that Trunk Archive’s image collection and service capabilities “make [Trunk Archive] the perfect partner for future growth and offers many strategic opportunities to our artists.”

B&A represents about 45 photographers. The firm also represents illustrators, directors, hair and makeup artists and stylists. Gallery Stock represents about 120 commercial, fine-art and editorial photographers for secondary sales of their images.

B&A and Gallery Stock will continue to operate under Bernstein’s direction, and retain their brand identities, according to the announcement.

Trunk Archive CEO Matthew Moneypenny said in the statement that the combined companies will give clients “unprecedented access to the world’s most creative and thought-provoking imagery,” but he provided no specifics.

Trunk Archive represents more than 250 photographers around the world for secondary image sales. Founded seven years ago by Moneypenny, a former Art + Commerce image licensing agent, It has offices in New York, Los Angeles, Paris, Sidney, Hong Kong, Beijing and Shanghai.

Related:
(Re)Sales Opportunities (subscription required)

March 15th, 2013

Stalked for Protecting Copyright, Author Gets Restraining Order

Extortionletterinfo.com founder Matthew Chan

Extortionletterinfo.com founder Matthew Chan

An author who was stalked and bullied online for her efforts to enforce her copyrights has won a permanent protective order against the perpetrator, Matthew Chan, who is also in the sights of stock photo agencies for thwarting their efforts to enforce photographers’ copyrights. The restraining order reflects an increasingly vitriolic tone and no-holds-barred personal attacks against copyright holders and their attorneys on Chan’s website, extortionletterinfo.com (aka ELI).

A Georgia state court judge issued the restraining order against Chan on February 28, at the request of Linda Ellis of Marietta, Georgia. Ellis writes and markets inspirational poetry, and is the author of several books. As a result of her efforts to protect her copyright by issuing demand letters to individuals and organizations who published her work without her permission, she was subject to attacks by Chan and his followers on the ELI website.

The court said Chan’s actions “placed the petitioner [Linda Ellis] in reasonable fear for [her] safety, because [Chan] contacted [Ellis] (and urged others to contact her) and posted personal information of the petitioner for the purpose of harassing and intimidating [her].” (more…)

December 10th, 2012

A Stock Agency is Actually Raising Its Royalty Rates. Why?

London-based stock photo distributor Image Source has announced that it will pay a higher royalty rate–60 percent, compared to its usual 40 or 50 percent–for all images it accepts from its US contributors from now through December 31, 2013.

Could the pendulum in the moribund business of stock photography be swinging back, more than a decade after stock distributors began cutting royalty rates? One promotion doesn’t make a trend, but the Image Source promotion got our attention because stock prices and royalty rates have fallen so far, that few photographers are producing rights managed stock anymore. There’s simply not enough money in it.

So why is one agency raising royalties? Image Source CEO Christina Vaughan says, “We are on a mission and that is to get all professional photographers excited about stock again when all we ever hear is about microstock, agencies cutting their margins and general doom and gloom.”

The company’s recent acquisition of Cultura, a Euro-centric stock photo agency also based in London, provided Vaughan with the impetus to encourage rights managed stock production in the US. “I thought it would be a great opportunity for us to reinvest in the premium space and demonstrate to great photographers that great photography still has a place.”

Vaughan says Image Source is trying to encourage production in the US market in particular because the agency needs to update its rights managed images for that market. The timing is also right, because now that the US presidential election is over, Vaughan says, “we are anticipating growth and renewal in the US and we want to ensure our collection continues to be on the pulse, creatively and commercially.”

US contributors will be paid 60 percent royalties for the lifetime of all images accepted from December 1, 2012 until December 31, 2013. Images produced prior to December 1 paid royalties ranging up to 50 percent. The agency will revert to those lower rates starting in 2014.

The question now is whether other distributors will make similar offers to refresh their own rights-managed collections–and keep their best contributors from defecting to Image Source.

August 15th, 2012

Getty Images Sold to Carlyle Group for $3.3 Billion

Getty Images, the largest stock photo archive, has been sold to private equity firm the Carlyle Group for $3.3 billion, according to Bloomberg, Reuters, and other sources. The sale comes three months after Hellman & Friedman, the private equity firm that has owned Getty Images since 2008, began preparations to sell the stock agency.

According to a statement released today by the Carlyle Group, Getty co-founders Jonathan Klein and Mark Getty will invest “significant equity” in the company.

Hellman & Friedman was reported to have paid $2.4 billion to buy Getty in 2008. According to news reports back in May, the firm was hoping to get as much as $4 billion for the agency.  (Full disclosure: Hellman & Friedman also owns Nielsen, parent company of PDN.)

In the past year, Getty Images has taken several cost-cutting measures. These included introducing  new terms to its contracts with photographer/contributors, cutting back royalties it pays to photographers,  and telling contributors that rights-managed images that had not sold well would be moved to royalty-free collections, while the royalty-free images would be sold as part of subscription packages. Through a statement, Getty Images told PDN that changes to its contributor contracts were needed “so that more content can be used in more ways that help our business meet current and future customer needs and grow sales.”

Related Stories
Getty IPO On Hold as $4 Billion Private Equity Sale Looms

Getty Images Preps for IPO?

ASMP to Getty Photographers: Time to Bail

July 18th, 2012

Celebrity Smackdown II: Shirley Jones Consented to Red Carpet Images, Appeals Court Affirms

A federal appeals court has upheld a decision to dismiss a lawsuit against Corbis by actress Shirley Jones, who charged that the photo agency violated her rights of publicity by marketing images of her without permission. The appeals court also refused to vacate an award of attorney’s fees to Corbis totaling $357,533. The decision was handed down Monday by the US Court of Appeals for the Ninth Circuit in Pasadena, California.

Jones originally sued Corbis in November, 2010, arguing that by offering images of Jones for license on its web site, the agency was making commercial use of her likeness without her permission, in violation of California state law.

In throwing out Jones’s claim last year, a federal district court in Los Angeles signaled that celebrity photo agencies can carry on business as usual, without worry that celebrities can sue them for displaying images for license without consent. (Users of those images still have to get consent if they intend to use the images for commercial purposes, such as to promote products or services.)

“The district court found that Jones consented to Corbis’s placement of sample photographs of Jones on its web site for the purpose of selling copyright licenses to those images,” the appeals court wrote, on its way to affirming the decision from the lower court. “Jones admitted that she intended for the photographs at issue to be distributed to media outlets and was not surprised that the photographers would use a third party distributor. She also admitted that she had not placed limits on how such photographs could be distributed…Jones provides no reason why Corbis should have questioned her apparent consent to her photographs being distributed.”

The appeals court judges didn’t bother to address other defenses Corbis had raised before the district court–including First Amendment rights, Copyright Act pre-emption and public affairs exceptions to right of publicity–because Jones failed to prove Corbis distributed the red carpet images without her consent. In other words, Jones effectively gave Corbis consent, so the court did not have to consider other defenses that Cobis had raised.

When the district court originally dismissed Jones’ claim, the judge ordered her to pay the photo agency’s legal costs. Jones challenged the lower court’s award of $357,533, but the appeals court let the award stand, explaining that the photo agency’s accounting of its costs for defending against the actress’s claims were reasonable.

Related story:
Celebrity Smackdown: Walking the Red Carpet Is Consent, Judge Says

July 5th, 2012

Getty IPO On Hold as $4 Billion Private Equity Sale Looms

Earlier this year Getty Images, the largest stock photo agency, retained Goldman Sachs and JPMorgan Chase to evaluate the possibility of a sale or an initial public offering (IPO). According to reports published yesterday by The Wall Street Journal and Reuters, Hellman & Friedman, the private equity firm that owns Getty, is preparing for the second round of a bidding process that would see the stock agency sold to another private equity firm for between $3.5 and $4 billion. (Hellman & Friedman also owns PDN parent company Nielsen.)

Unnamed sources for the Wall Street Journal said the IPO was on hold while private equity firms Kohlberg Kravis Roberts & Co. L.P. and TPG, among others, evaluated their interest in purchasing Getty. Earlier this year KKR invested $150 million in European microstock agency Fotolia.

Hellman & Friedman was rumored to have paid $2.4 billion for a majority stake in Getty Images in 2008, which was publicly traded at the time.

According to the Reuters report, Getty “has seen little growth in earnings before interest, tax, depreciation and amortization (EBITDA) since Hellman bought it but has enjoyed increasing demand for its online imagery products and services.”

Since Getty became private, the agency has made several moves that may have been geared to making the company look more attractive to potential buyers in the lead up to a sale or IPO. The cost-cutting measures have affected its contributing photographers, and the agency has also gone through rounds of layoffs. For instance in November of last year, Getty introduced tough new contracts, cutting back royalties it pays to photographers, telling contributors that rights-managed images that have not sold well will be moved to royalty-free collections while the royalty-free images would be sold as part of subscription packages. The move drew the ire of photographers’ trade associations ASMP and APA, as well as a lengthy string of comments on our blog.