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Mountain Light Photography has accepted a $2,600 settlement offer from Thomas Barbèy, and Muench Photography has withdrawn its infringement claim against the photo montage artist, according to court records in the case.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