August 13th, 2012

Self-Proclaimed Photo Montage Virtuoso Is Sued for Stealing Photos

©Thomas Barbèy. “Rhinal Congestion”

Muench Photography and Mountain Light Photography have filed a copyright infringement claim against a Las Vegas-based photomontage artist for unauthorized use of two of their photographs.

The artist, Thomas Barbèy, creates surrealistic photomontages. According to his Tumblr page, he uses  images that he shoots on his travels all over the world. He claims inspiration from René Magritte, M.C. Escher, and Roger Dean, and says, “I’m constantly asked about how I do [the montages], I would like to think that the pictures can be appreciated without any real knowledge of their technical virtuosity. The visionary inspiration and imagination is not a technical skill learned in school but rather to my personal belief a gift from God.”

And theft of other people’s photographs, allegedly.

©Muench Photography. “El Capitan in Winter, Yosemite National Park”

“He claimed he took all of these images himself, and he clearly doesn’t,” says Marc Muench, one of the plaintiffs, who is suing Barbèy in a federal court in Los Angeles.

“The claims in this lawsuit have no merit whatsoever,” says Barbèy’s attorney, Charles Harder.

According to the lawsuit, Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape) using an image by Muench called “El Capitan in Winter, Yosemite National Park.” Muench’s image appeared in 1993 in a book called National Parks of America (Graphic Arts Center Publishing Company). He also registered the image with the US Copyright Office that same year.

The lawsuit also alleges that Barbèy used a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” Rowell’s “Quadruple Falls” image was first published in 1997. Mountain Light registered the image with the US Copyright Office in 2009.

Barbèy sells his prints through his own gallery in Hawaii, as well as through an online retailer called Artifacts Gallery. “Pitcher Books” and “Rhinal Congestion” are priced at $1500 each on the Artifacts Gallery Web site.

Charles Harder says that his client’s use of the Muench and Mountain Light images is protected by “the legal doctrine of transformative use, as well as the doctrines of fair use and de minimis use.” The lawsuit tries to pre-empt a fair use defense by saying that Barbèy’s images do not “criticize, comment on, or otherwise refer the viewer to” the Muench  and Mountain Light photographs.

©Thomas Barbèy. “Pitcher Books”

Harder also says that the statute of limitations applies in this case. He is suggesting, in other words, that Muench and Mountain Light didn’t bring their claim to court soon enough, so it will be dismissed.

Harder says there were “very minimal sale of the works at issue, so even if there was liability (which there is not), damages would be nominal.”

That might be the case for the Mountain Light image, which was registered after the alleged infringement, making Mountain Light eligible for actual damages only. But the Muench image was registered prior to the alleged infringement. So if a court holds Barbèy liable for infringement, Muench would be eligible for statutory damages.

Mountain Light’s operations manager was not immediately available for comment.

©Mountain Light Photography. “Quadruple Falls at Dawn, Glacier National Park, Montana”

July 12th, 2012

Civil Rights Group Demands End to Use of Same-Sex Couple Photo in Anti-Gay Ad

© Kristina Hill

When wedding photographer Kristina Hill learned that her engagement photo of a same-sex couple had been used without her permission in a political flyer attacking same-sex marriage, she told PDN she wasn’t sure she had the resources to pursue a long legal battle. Now Hill and her clients have an ally. Southern Poverty Law Center (SPLC), the civil rights organization, yesterday sent a cease and desist order to Public Advocate of the United States, a right-wing political organization, demanding they confirm they are no longer using the image. In the order,  SPLC also says they are considering other possible legal action for infringing Hill’s copyright.

Hill’s photo shows Tom Privitere and Brian Edwards, a New Jersey couple, kissing. Public Advocate of the United States used the photo without the permission of Hill or her clients in a flyer attacking Republican Colorado State Senator Jean White, who had supported civil unions for same-sex couples. The photo, digitally altered to strip out the New York City skyline, appears under the words “State Senator Jean White’s idea of ‘family values?’”

Public Advocate had defended its unauthorized use of the image on the grounds that others “make fair use of our materials.”

SPLC has previously labeled Public Advocate “a hate group,” and noted in a statement released yesterday that it has “a history of attacking the LGBT community.” The statement quotes Christine Sun, deputy legal director at the SPLC, saying that the alteration and unauthorized use of Hill’s photo was “morally reprehensible.” Sun says, “This latest attack is the most vicious yet and should serve as a warning that your personal photos are not safe from anyone willing to stoop to the vilest level of harassment.”

In the SPLC statement, Hill says she took the engagement photo to document her clients’ love. “When I saw how my image was used, I was sad for Brian and Tom. I was angry that someone would take my work, distort it and use it to reflect the opposite of what it was meant to express.”

Related Article
Wedding Photographer Might Sue for Copyright Infringement Over Anti-Gay Attack Ad

June 5th, 2012

The Most Tasteless Copyright Infringement Ever?

Copyright infringement is so commonplace these days, it’s hard to shock us, but this flyer posted around New York’s East Village managed to do it.  The flyers for Centaur Moving show copies of Don McCullin’s award-winning photo of a Turkish woman mourning her dead husband, killed in the civil war in Cyprus in 1964. What does a photo of grief, death and war have to do with furniture movers?

After photographer Ashley Gilbertson tweeted a photo of the flyer, we called Centaur Moving for information (and walked over to Second Avenue to grab a camera-phone pic of one of the flyers). A man who identified himself only as Roger, the company’s manager and dispatcher, answered the phone. Roger said that he had hired an artist who does guerilla advertising, and knew nothing about the ad. Asked if he knew the origin or content of the photo, he said, “I have no idea. I just gave him a few bucks.” We have been unable to reach the guerrilla ad guy.

In PDN’s “Heroes and Mentors” issue, McCullin talked candidly about his frustration that his 50-year career as a photojournalist has done so little to end violence or conflict, and the psychic toll that he has paid for witnessing the horrors of war. It’s hard to imagine he envisioned the fruits of his labors being misappropriated to promote a man with a van.

The flyers stirred some quick action. When photographer Yunghi Kim saw Gilbertson’s Twitpic, she got in touch with Jeffrey Smith at Contact Press Images, the agency that represents McCullin. Smith says, “I responded by sending a cease and desist letter” to the moving company on Sunday. We took a quick look this morning, and the flyers seem to have been torn down—though whether they were removed by a contrite Roger, a rival moving company, or outraged photographers, we’ll never know.

Related article
Heroes & Mentors: Don McCullin and Eugene Richards

April 26th, 2012

Jim Marshall’s Estate Sues “Mr. Brainwash” and Google for Copyright Infringement

John Coltrane Jim Marshall Thierry Guetta Mr. Brainwash

The estate of iconic music photographer James “Jim” Marshall filed a copyright infringement claim against Thierry Guetta (aka Mr. Brainwash) and Google for the unauthorized use of his images for advertising purposes. The brief states that copies of Marshall’s photos were used as part of a promotion for Google Music, a new online music service, as well as in derivative works.

According to the brief, for a Google event held at Guetta’s studio, the artist designed a backdrop using blown-up copies of photos Marshall made of musicians John Coltrane and Jimi Hendrix, which “constituted unauthorized reproductions and display” of the images. The backdrop was placed to the side of the stage where the announcement for Google Music was made, and therefore Google is also liable for copyright infringement since the images were used to promote its new product, Marshall’s estate claims.

Google Music Event

Additionally, the brief states that Guetta used five of Marshall’s photos to make derivative works, some of which he is currently selling on his Web site. It appears that Marshall’s images of John Coltrane, Sonny Rollins and Stanley Turrentine, as well as his group shots of Thelonius Monk, Dizzy Gillespie, and Gerald Wilson, and Jimi Hendrix and Brian Jones, were screen printed on to paper and then altered by either changing the color palette or adding words to the background.

Jimi Hendrix Jim Marshall Thierry Guetta

The brief is asking that all infringing works be turned over to the estate and that all profits derived from the infringing works be awarded to the estate. Additionally, its asking that any damages, attorneys’ fees and costs related to the trial be reimbursed.

This isn’t the first time Guetta has been accused of infringing on a photographer’s copyright. In June 2011, a federal judge ruled in favor of photographer Glen E. Friedman, who claimed that his image of hip-hop group Run-DMC was used as the basis of several works by Guetta. A settlement with Friedman has been reached, but the terms were not disclosed.

Additionally, Guetta has another copyright claim pending from photographer Dennis Morris. While Guetta admitted he did use Morris’s photo of Sex Pistol’s bassist Sid Vicious in derivative works of art, he claimed he did not know it was a copyrighted image. The two parties are currently working on a settlement agreement.

Neither Guetta nor Google responded immediately to a request for comment.

Update 4/27/12: Jim Prosser, manager global communications and public affairs for Google, responded to our request for comment by stating that Google has not received a copy of the complaint yet and therefore he cannot comment on it.

Correction: An earlier version of this post incorrectly stated that Sid Vicious was the drummer for the Sex Pistols. The text has been corrected.

Related Articles:

Judge Rules for Photog In Copyright Suit Over RUN DMC Photo

February 24th, 2012

Shepard Fairey Pleads Guilty to Criminal Charges in AP Copyright Suit

Here’s a new installment in the long saga of AP’s copyright infringement suit against artist Shepard Fairey, creator of the Obama “Hope” poster. Fairey has plead guilty to a federal criminal charge for destroying documents, falsifying evidence “and other misconduct” in his civil litigation with Associated Press two years ago, the US District Attorney in Manhattan has announced.

Sentencing is scheduled for July 16. Fairey faces a maximum of six months in prison, and fines of $5,000 or more.

The full news story, including excerpts from the US Attorney’s statement on Fairey’s plea, is now on PDNOnline.

July 23rd, 2010

Snowboarding Photographer Labeled “Unstable” By CEO For Trying To Protect Copyright

A snowboarding photographer battled a company for months trying to get them to acknowledge that they had used his photo without permission or payment. The photographer, Chris Messervey, has now published his months of correspondence with the company on his blog in hopes of getting satisfaction.

Standard practice for snowboarding photographers is to accompany riders on their trips into the mountains, make images documenting the action, and then license those photographs to magazines and companies who sponsor the riders and whose gear appears in the photos.

Messervey did just that when he traveled this past February to Revelstoke, British Columbia with some snowboarders who were working on a film for the 2010–2011 winter season.

One of the riders mentioned to Messervey that one of his sponsors, the snowboarding apparel company Grenade, were looking for photographs of the rider in the next season’s gear. “It’s pretty standard practice that after shooting riders, you preview shots with them, they show their sponsors, if their sponsors are feeling the shots, they buy them for a price based on how they intend to use them,” Messervey wrote in a blog post recounting his experiences with Grenade.

The rider showed one of Messervey’s images to Grenade, who published it on their blog. Messervey didn’t receive a request for permission to publish the image, nor was he credited.

When he approached Grenade about payment for use of the image, a representative of the company was initially cordial, Meservey says, but put him off. Months later, he had still not received payment. The correspondence between Messervey and the company, which Messervey published on his blog, escalated into acrimony on both sides and threats of legal action, and ended with the company’s CEO accusing Messervey of being unstable simply because he was trying to protect his work.

Grenade has since taken Messervey’s photograph down off its site. He has still not been paid for the usage.

July 23rd, 2010

Copyright Infringement? There’s an App for That

A photographer recently tipped us off about a Chinese Web site that is publishing the work of photographers without their knowledge or permission. The site is branded as if it were produced by Leica, but according to a Leica representative they have nothing to do with it. “Leica Camera always respects the rights of artists and does not support the unapproved publication of artwork,” a Leica spokesperson told PDN via email.

Leica did not, however, comment on whether they would pursue legal action to have the site taken down.

An Austrian store that apparently sells Leica cameras and photographic prints is the site’s only sponsor.

A few of the photographers whose work is used on the site are: Phillip Toledano, Steve McCurry, Marcus Bleasdale, Annie Marie Musselman, Robbie Cooper, Kosuke Okahara, Dominic Nahr and Michal Chelbin.

The site is also marketing an app, downloadable for free through the Apple iTunes App Store. When you open the app a grid of famous photographs, including Annie Leibovitz’s image of Yoko Ono and a naked John Lennon, appear on the screen.

Work by Stephen Shore, Lynn Goldsmith, Jonas Bendiksen, Erika Larsen, Sebastião Salgado and others appear in the “A Pic a Day” section of the app. In the app’s “Magazine” section, entire photo essays appear, many of them current. For instance, Sebastian Liste’s 2010 Ian Parry Scholarship-winning essay on homeless families inhabiting an abandoned chocolate factory in Salvador de Bahia, Brazil, appears.

Photographers we’ve spoken with had no idea this Web site existed and was using their work, nor were they aware of the app, and we’re assuming that none of the photographers whose work is being used gave permission.

Does your work appear on the site?