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…)

January 23rd, 2014

HuffPost Ignoring PhotoJ Credits For Images of Kiev Clashes

Yesterday Huffington Post UK published “29 Incredible Pictures Of Kiev Transformed Into A Warzone,” but didn’t bother to caption or credit the images to the photojournalists who are risking personal harm to create them.

(Oddly, another gallery published by the Huffington Post empire using some of the same images did include proper credits and captions.)

Several news outlets are carrying wire images of clashes in Kiev between protestors and police. Among the photographers whose images are featuring prominently on the websites and front pages of major news media are Sergei Grits and Efrem Lukatsky, who are covering the protests for AP; Valentyn Ogirenko, Vasily Fedosenko and Gleb Garanich for Reuters; and Sergei Supinsky, Anatolii Boiko, Anatoliy Stepanov and Vasily Maximov for AFP/Getty.

Show some respect, HuffPost UK, while you count your clicks.

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 26th, 2013

Updated: Tragic Story of Former Photoj Inspires Upswell of Support on FB

Yesterday photojournalist Benjamin Lowy posted a photograph on Instagram and Facebook of a man he identified as a former photojournalist, who through a series of tragic circumstances found himself living on the street. Lowy shared his image of the man, named Scott Sutton, and recounted the conversation he and Sutton had on the street near Union Square in New York City. After Lowy told Sutton that he is a photojournalist, “the conversation took a turn to the surreal,” Lowy wrote.

Sutton told Lowy that he had once been a photojournalist as well. According to Lowy, Sutton told him he’d lost everyone close to him, including his wife, who passed away, and has been on the street for two years.

Many in and out of the photo community have shared the story and posted nearly 100 comments on Facebook. Several people have said they know Sutton and have offered to help him. “Very difficult to see him this way but any of us could easily find ourselves in the same spot,” wrote Patrick Whalen, a Wall Street Journal photo editor who said he worked with Sutton in the 90s.

As of this afternoon, Lowy wrote an update saying that since the post yesterday, “quite a few of his friends have contacted me from RIT – where he did his PJ grad schooling, and Archive Photos – where he was a darkroom tech in the 90′s. Currently we are all trying to figure out how to best help him, and I’ll be going back out today to try and find him.”

Lowy’s image and story are here, on his Facebook page.

Update: A previous version of this article stated that Sutton had worked as a photojournalist for Getty Images. A Getty representative told PDNPulse via email that Sutton never worked as a Getty Images photographer.

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

October 23rd, 2013

NFL, Getty and AP Hit With Copyright Infringement Lawsuit

Seven photographer are suing the National Football League and two image distributors–Getty Images and Associated Press (AP)–for copyright infringement over widespread use of their images in NFL ads, products and promotions without fair compensation, according to an October 21 report from Courthouse News Service.

The lawsuit, filed in federal court in New York, is a legal tangle because Getty and AP represented the photographers, and were authorized to license their work at the time of the alleged infringements. But the case boils down to allegations that Getty and AP breached their fiduciary duty to the photographers because of conflicts of interest.

Both distributors had incentive to curry favor with the NFL in order to gain and hang onto an exclusive contract to license images of NFL events to third parties for commercial use. Getty won the contract in 2007, then lost the contract to AP in 2009.

According to the lawsuit, the photographers “recently discovered that both Getty Images and AP granted the NFL nearly unfettered access to plaintiffs’ photo collections and, either expressly or by inaction, allowed the NFL to make free or ‘complimentary’ use of plaintiffs’ copyrighted photos.”

According to the Courthouse News Service report, the photographers are also accusing Getty of using bare-knuckle tactics to keep them from moving their images to AP, after AP won the exclusive NFL contract in 2009. Specifically, the plaintiffs allege that Getty threatened to stop marketing all of their sports images–including Major League Baseball photos–for commercial use, if the photographers moved their NFL images to AP.

Photographer Paul Spinelli is the lead plaintiff in the case. The other photographer plaintiffs are Paul Jasienski, David Stluka, Thomas E. Witte, David Drapkin, George Newman Lowrance and Scott Boehm.

AP and Getty both declined PDN’s request to comment about the lawsuit.

September 4th, 2013

John McCain’s iPhone Poker: A Brief History of Long-Lens Gotchas

©The Washington Post. Photo © Melina Mara/Washington Post

©The Washington Post. Photo © Melina Mara/Washington Post

Yesterday photographer Melina Mara of The Washington Post got a photo of Senator John McCain playing poker on his iPhone during the Senate hearing on military action in Syria. Mara’s photo is the most widely seen photo of yesterday’s meeting of the Senate Committee on Foreign Relations.

This isn’t the first time a sharp-eyed photographer has managed to zoom in and figure out what was on a politician’s mind during a long meeting.

© Rick Wilking/Reuters

© Rick Wilking/Reuters

There was the famous close-up of the note that President George Bush slipped to Secretary of State Condoleeza Rice during a 2005 UN summit, asking if he could get a bathroom break.

Reuters photographer Rick Wilking photographed the note, and the wire service enlarged the image to make sure the writing was legible before distributing the image.

In 2011, Mario Tama of Getty Images got a shot of the text of the speech Israeli Prime Minister Benjamin Netanyahu delivered to the UN General Assembly, including the revisions he had scribbled on the page– possibly while he was listening to the previous speaker, Palestinian President Mahmoud Abbas.

Tama told PDNPulse he shot over Netanyahu’s shoulder from a booth above the Assembly using a 400mm lens, and then zoomed into the image in Photoshop to read the words.

The takeaway for photographers: Bring a long lens with you, and remember to look down.

The takeaway for politicians: Look behind you.

Unless, that is, the politician doesn’t care who sees what you’re doing. After he was caught playing online poker during the hearing on Syria, Senator McCain made a sarcastic joke about the photo on Twitter.

May 15th, 2013

Tomas Munita, Bryan Denton to Receive Getty & Chris Hondros Fund Awards

Tomás Munita and Bryan Denton will receive Getty Images and Chris Hondros Fund Awards at a June 7 benefit and silent auction, the Hondros Fund has announced. The Chris Hondros Fund is a non-profit photojournalism organization founded by Christina Piaia to honor her late fiancé, who was killed in a mortar attack while covering the conflict in Libya in 2011. The Fund “advances the work of photojournalists who espouse [Chris Hondros's] legacy and vision, and sponsors fellowships, grantmaking and education to raise understanding of the issues facing reporters in conflict zones.”

Munita, a Chilean photojournalist who has worked in Latin America and the Middle East, among other places, is being honored for his “exceptional photographic ability coupled with a spirited commitment to the craft of photojournalism,” Piaia said in a statement. Munita will receive a grant of $20,000.

Denton, a photojournalist based in Beirut, was named a finalist for the award and will receive a grant of $5000.

“Chris was dedicated to documenting the compassion, violence and frailty that encompasses so much of our world today. It was through his personal vision and determination that were able to share some of the most powerful images from the large and small events that make up our common humanity,” said Hondros Fund board member and Getty executive Pancho Bernasconi in a statement. “The Chris Hondros Fund is proud to honor Tomás Munita and Bryan Denton and support their work to create a visual history that brings shared human experiences into the public eye.”

Related Articles:
Andrea Bruce Wins Getty Images & Chris Hondros Fund Award
Tim Hetherington, Chris Hondros: Remembering Them as They Lived