June 23rd, 2014

Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case

 

©Kristina Hill

©Kristina Hill

Photographer Kristina Hill has won a $2,501 judgment for copyright infringement against Public Advocate of the United States, ending a federal case in Colorado over unauthorized political attack ads. The judgment was entered June 4 in the US District Court in Denver.

Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued Public Advocate of the United States in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political mailers produced in 2011 to defeat two Colorado lawmakers who supported same-sex marriage.

The mailers show images of Edwards and Privitere kissing each other. They were created from an engagement photo of the couple that the defendants found online and used without permission.

Kristina-Hill-Attack-AdHill alleged copyright infringement for unauthorized use of her photograph. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and state right-of-publicity laws.

The court dismissed the couple’s misappropriation claim in March on the grounds that the ads were primarily non-commercial, and because they related to a matter of public concern. Therefore, free speech rights under the First Amendment shielded the defendants from the couple’s claim, the court said.

But the judge rejected Public Advocate’s motion to dismiss Hill’s copyright infringement claims on fair use grounds, because the ads didn’t pass the legal tests for fair use.

According to court papers, Public Advocate finally agreed to accept a declaration from the court that it had infringed Hill’s copyright, “without any finding or admission that such infringement was ‘willful’” under federal copyright statutes.

Public Advocate agreed to pay Hill $2,501 to cover costs related to her claim. The judgment agreement notes that Hill was not entitled to attorneys’ fees because she didn’t register her copyright in the disputed image before the infringement.

For the same reason, she was not entitled to statutory damages, but was limited to actual damages, which tend to be much lower than statutory damages.

Hill was not immediately available for comment.

Related:
In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed
Richard Prince Settles with Photographer Patrick Cariou

 

April 4th, 2014

Appeals Court Upholds Copyright Infringement Damages Award to Louis Psihoyos

A federal appeals court in New York has refused a textbook publisher’s request to reduce a $130,750 award that a jury granted to photographer Louis Psihoyos last year for copyright infringement.

Psihoyos sued publisher John Wiley & Sons in 2011 for infringement of eight of his photographs. Claims over four of the images were dismissed before trial, but a jury found Wiley liable for willful infringement of two of the remaining images and awarded statutory damages totaling $130,000. At the same time, the jury found Wiley liable for non-willful infringement of a third image, and awarded $750. It concluded that Wiley’s use of the remaining image was not infringing.

Wiley appealed, arguing that the trial court erred because it refused to consider whether the jury award was reasonably related to Psihoyos’s actual loss. Wiley called it “an epitome of a run-away award” in one of its appeal briefs.

But the appeals court rejected Wiley’s argument, saying, “Although revenue lost is one factor to consider, we have not held that there must be a direct correlation between statutory damages and actual damages.”

The appeals court went on to say, “The District Court concluded that several of the relevant factors could explain the jury’s award based on the evidence…in particular, the evidence supported a finding of willfulness and that Wiley earned substantial profits, and the jury may have viewed Wiley as a repeat infringer in need of deterrence.

“In sum, we discern no error” in the District Court’s denial of Wiley’s request to vacate the award or grant a new trial, the appeals court said.

The appeals court also rejected Wiley’s assertion that the trial court should have thrown out Psihoyos’ claims on the grounds that the statute of limitations on those claims had expired.

The appeals court said that the Copyright Act’s statute of limitations “did not bar any of Psihoyos’s infringement claims” because he filed those claims within three years of discovering the infringements, as the law requires.

Wiley had argued that the clock for the three-year statute of limitations begins at the instant of infringement, not at the discovery of that infringement by the copyright holder.

Although the appeals ruling was an overall victory for Psihoyos, he also lost an appeal to restore his infringement claims for the four images that the trial court dismissed from the case.  The lower court dismissed those claims because Psihoyos  didn’t register the images before he filed his infringement claims, as required by law.

The appeals court said the trial court was correct to dismiss those claims because of Psihoyos’s failure to register them prior to filing suit.

March 6th, 2014

Getty’s Free Image Program: New Revenue Model, or a Surrender to Copyright Infringement?

Getty Images lit up the Twittersphere today with an announcement that it was making its archive available free of charge for bloggers and other non-commercial users. Some of the big questions are: What is Getty gaining by making images free to the public? How does Getty’s decision affect not only its own contributors, but all photographers? And are there any hidden costs to non-commercial users who take advantage of Getty’s free images?

Getty said in its announcement that it was releasing a new embed tool to make it easy for non-commercial users to share its images on websites, blogs and social media channels.

Getty CEO Jonathan Klein says in the announcement that the “easy, legal sharing…benefits our content contributors and partners.”

One benefit to the company and its partners is that by automatically crediting the images and linking them back to Getty’s website, the embed tool makes it easy to find and license the images for commercial use.

At the same time, the embed tool will also makes it easier for Getty to track non-commercial uses of its images, and the users who take advantage of the company’s offer of free images.

To read what Getty’s terms of service allow it to do with users’ information, and more on the implications of this new business for the perceived value of all images, see our news story, now on PDNOnline.

Related Articles

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ASMP To Getty Photographers: Time to Bail

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

April 18th, 2013

Man Infringes Copyright to Profit from Boston Bombing

Intent on making a quick buck from the Boston Marathon bombing, a self-publisher allegedly offered an e-book full of stolen news photos for sale on Amazon.com, titled “The Boston Bombings First Photos.”

The NPPA reported yesterday that the book, published by a man identified as Steve Goldstein, included more than 60 images used without permission from The Associated Press, Getty Images and The New York Times. Goldstein was charging $7.99 per download.

Amazon has removed the book, apparently in response to Digital Millennium Copyright Act (DMCA) take-down notices from copyright holders.

According to the NPPA report, a New York Times attorney sent a cease-and-desist letter to Goldstein. In his response, Goldstein wrote, “We will stop using the photos that you mention. Sorry for the use without permission.”

For more details, see the NPPA report.

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