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

August 16th, 2012

Photo Montage Artist Settles with Mountain Light; Muench Drops Copyright Suit

Mountain Light Photography has accepted a $2,600 settlement offer from Thomas Barbèy, and Muench Photography has withdrawn its infringement claim against the photo montage artist, according to court records in the case.

Muench and Mountain Light filed a joint claim of copyright infringement against the Las Vegas-based artist, alleging unauthorized use of two separate photographs. The case was filed in US District Court in Los Angeles.

Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape), allegedly using parts of an image owned by Muench called “El Capitan in Winter, Yosemite National Park.” Barbèy was also accused of using 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.” (Photos here).

Mountain Light accepted Barbèy’s settlement offer of $2,600–including $1,600 in damages and $1,000 for attorney’s fees–along with Barbèy’s promise to stop marketing the “Pitcher Books” image. (Mountain Light had no possibility of winning statutory damages in court because it had not registered the “Quadruple Falls” image prior to the alleged infringement).

Despite offering payment of $1,600 for damages, Barbèy said in court papers that his offer was not to be construed as an admission of liability for infringement, or an admission that Mountain Light had suffered any damages.

Meanwhile, Muench’s attorneys have filed notice with the court that Muench Photography was dismissing its claim against Barbèy.

Attorneys gave no explanation for dismissing the claim, and they were not immediately available for comment. Muench Photographer was also not immediately available for comment.

Barbèy has admitted use of the Muench and Mountain Light Images in comments he has posted to the PDNPulse blog. He said he created the montages “well over a decade ago.”

His attorney told PDN last week that the claims against Barbèy were without merit. The attorney said Barbèy would successfully defend against them on fair use grounds, and by invoking the statute of limitations for copyright claims.

Related story:
Self-Proclaimed Photo Montage Virtuoso Is Sued for Stealing Photos

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 31st, 2012

With Much Ado About Public Service, Google Pleads Fair Use in Big Copyright Case

Arguing that its Google Books program makes fair use of copyrighted books by providing an indispensable public service, Google has asked a federal court to dismiss The Authors Guild’s claim that Google is infringing the copyrights of authors on a “massive” scale.

Google has scanned more than 12 million books–many of them still under copyright protection–as part of its Google Books program. Google indexes every word of the scanned books. It then makes snippets of the books available in search engine results, according to keywords entered by Google search engine users.

Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.)

The Authors Guild originally sued Google for copyright infringement in 2005, alleging the search engine company is scanning books without permission from authors for its own commercial gain. The guild says the Google Books program undermines the ability of authors to license and sell their books. It is seeking a court injunction to stop the Google Books program. The American Society of Media Photographers has filed a similar but separate lawsuit against Google in 2010.

In making its fair use argument, Google paints itself as a beleaguered public servant, prevented from advancing human knowledge by specious claims of copyright infringement.

“Google Books is an important advance on the card catalogue method of finding books,” the company says in its motion. “The advance is simply stated: unlike card catalogues, which are limited to a very small amount of bibliographic information, Google Books permits full-text search, identifying books that could never be found using even the most thorough card catalog. Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

Google says that users cannot download the entire text of the books that show up in the search engine results. It only leads them to relevant books which they can purchase elsewhere if they wish.

The scanning and indexing of the books is fair use, Google argues, because the end use (thorough indexing of every word of every book) is “highly transformative”:  Google search engine users can search for information and get results showing snippets from all books containing the search terms. “Indeed, it is no overstatement to say that Google Books has transformed scholarly research,” the company says in its motion. “Google Books yields a literally unprecedented public benefit, and that benefit militates strongly in favor of a finding that Google’s scanning,indexing, and snippet display constitute fair use.”

Google does not mention that its apparent fit of civic virtue is driven by the potential to turn a profit by scanning and indexing the copyright works of authors. Those who use the Google Books index would effectively provide Google with personal information every time they did a search. That information could be sold to marketers, or used by Google to push highly targeted advertisements to Google search engine users.

But Google waves its hands to distract the court’s attention from all of that: “Google’s status as a commercial entity does not tip the scales against a finding of fair use…Much more significant is that a student or professor (or indeed anyone who finds a Library Project book on Google Books) is engaging in precisely the sort of use historically favored as noncommercial.”

Google and The Authors Guild had reached a tentative agreement in 2009 to settle the case. It would have allowed the Google Books program to continue if authors were allowed to opt out. But the judge in thee case rejected the agreement. He said the agreement would have to be ‘opt in’ for all authors (rather than opt out) in order to comply with copyright law.

Google has rejected an ‘opt in’ system as too cumbersome, so the Authors Guild suit has continued. The ASMP lawsuit is also pending.

Without commenting directly on Google’s motion, attorneys for The Authors Guild say they have filed their own motion for summary judgment. That motion is not yet available for public review, however.

Related stories:
Judge Block’s Google’s Divide-and-Conquer Strategy in Big Copyright Case
ASMP, Other Trade Groups Sue Google (subscription required)