September 5th, 2014

Photographers Settle Copyright Suit Against Google. But On What Terms?

A copyright infringement lawsuit against Google that began with a bang in 2010 and plenty of bluster by trade groups about protecting the rights of their members has finally ended with a whimper.

The American Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Advertising Photographers of America (APA), Professional Photographers of America (PPA) and several other trade groups representing photographers and visual artists have announced a settlement of their class action lawsuit over the Google Books program on (mostly) undisclosed terms.

“The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works. Further terms of the agreement are confidential,” NPPA announced today on its web site.

The lawsuit, almost identical to a separate lawsuit filed against Google by the Authors Guild, was a reaction to Google’s Books Search program. Under that program, Google has been working with several libraries to scan books and periodicals and make the content available through its search engine results. The plaintiffs sued in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

Under the terms of the settlement, NPPA says, Google admits no liability. And with no mention by plaintiffs about how a revenue stream from the Google Books program will be shared with visual artists going forward, it seems unlikely that today’s settlement included any concessions from Google to pay license fees for images scanned as part of its program.

Last November, a federal court dismissed the Authors Guild lawsuit on fair use grounds. That decision likely weakened the hand of ASMP and other photo industry plaintiffs in their claim against Google.

But ASMP and the other plaintiffs launched their lawsuit with high expectations.

ASMP said in 2010 that the goal of the suit was to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

When NPPA joined the lawsuit in 2013, NPPA’s then-president said in a prepared statement: “I feel it is the NPPA’s responsibility to protect that principle of ownership, and not allow companies like Google to infringe upon our rights uncontested.”

Advertising Photographers of America also joined the lawsuit in 2013. “Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs,” the APA president said at the time.

Meanwhile, the Authors Guild is in the process of appealing its copyright claim against Google to the US Court of Appeals for the Second Circuit in New York. NPPA said in its announcement today, “This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.”

Related:
Judge Dismisses Authors Guild’s Lawsuit Against Google
ASMP, Other Trade Groups Sue Google (for PDN subscribers)

November 14th, 2013

Judge Dismisses Authors Guild’s Copyright Lawsuit Against Google

A federal court judge has dismissed a long-standing lawsuit over the Google Books project, ruling that Google’s initiative to scan the contents of millions of books to make them searchable online falls within the bounds of fair use.

Bloomberg Businessweek has reported that Judge Denny Chin has dismissed a lawsuit filed eight years ago by the Authors Guild, which had claimed that Google was violating the copyrights of authors by scanning books without permission. A similar suit against Google, filed by photo trade groups, is still pending.

According to the Businessweek report, Judge Chin wrote in his ruling: “Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

Paul Aiken, executive director of the Authors Guild, told Businessweek: ““In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

The decision doesn’t bode well for a nearly identical lawsuit filed against Google in 2010 by ASMP, the Graphic Artists Guild, the North American Nature Photographers Association, the Picture Agency Council of America, and the Professional Photographers of America. Those organizations want to prevent Google from scanning visual works in books without permission from copyright holders.

They filed suit against Google after Judge Chin refused to allow them to join the Authors Guild lawsuit.

Eugene Mopsik, executive director of ASMP, told PDN that he could not make specific comments about the ASMP claim against Google, which is still pending.

But he said of the dismissal of the Authors Guild lawsuit, “I think that it’s a terrible expansion of fair use [doctrine] to the detriment of individual rights holders.” He added, “I think it will further contribute to abuse of the fair use statute by other businesses. A lot of entities will look at this and say, ‘If Google is allowed to use [copyrighted] works this way, why can’t we?’”

Related:
ASMP, Other Trade Groups Sue Google (subscription required)
APA, NPPA Join copyright Suit Against Google
Judge Blocks Google’s Divide-And-Conquer Strategy in Big Copyright Cases

August 22nd, 2013

Photography Trade Organizations Take Aim at Instagram Terms

Several professional photography trade organizations have banded together to study Instagram’s Terms of Service, and today the American Society of Media Photographers issued the following press release:

Photographic Community, Led by The American Society of Media Photographers, Deems Instagram Terms Too Far-Reaching

PHILADELPHIA, Aug. 22, 2013 (GLOBE NEWSWIRE) — The American Society of Media Photographers (ASMP), joined by National Press Photographers Association (NPPA), The Digital Media Licensing Association (PACA), American Photographic Artists (APA), This Week in Photography (TWiP), Professional Photographers of America (PPA), Coordination of European Picture Agencies Stock, Press and Heritage (CEPIC), Graphic Artists Guild (GAG) and American Society of Picture Professionals (ASPP), has mounted a campaign to address the far-reaching Terms of Use of the image sharing service Instagram. Since 2010, more than 16 billion images and movies have been uploaded to Instagram. The organizations believe that few of the users who share images on the site understand the rights they are giving away. ASMP has issued “The Instagram Papers,” information in the form of essays and analysis about the Terms of Use in which the key issue is that users should have the ‘right to terminate’ their agreement with Instagram, allowing them to remove permissions for the use of their identities and content at any time.

Specifically, the Terms of Use give Instagram perpetual use of photos and video as well as the nearly unlimited right to license the images to any and all third parties. And, after granting this broad license to Instagram, users also relinquish the right to terminate the agreement. Once uploaded, they cannot remove their work and their identity from Instagram. Additionally, in the event of litigation regarding a photo or video, it is the account holder who is responsible for attorney and other fees, not Instagram.

Moreover, while Instagram’s agreement includes the right to sublicense images, it specifically excludes the need to ever pay creators, regardless of the way the company may use or sell their work. The photographic community believes strongly that fair compensation for the creators of work is a vital component of a fair agreement.

According to ASMP Executive Director Eugene Mopsik, “While clearly benefiting Instagram, the rights of imaging professionals and general users stand to be infringed upon in an unprecedented way. We are concerned that not only have Instagram’s Terms of Use gone beyond acceptable standards, but also that other social media providers may use these onerous terms as a template for their own agreements.”

Peter Krogh, ASMP’s Digital Standards & Practices Chair, said, “As online services become larger repositories of intellectual property, power has shifted away from the user and toward the company provider. Unless changes are made by Instagram, we believe the terms will have a profound and negative impact on imaging professionals, publishers and general users.”

In the coming weeks and months ASMP, along with the other listed organizations, will continue to reach out to gain support in addressing these egregious terms before they become the industry standard.

Related: Bowing to Pressure from Users, Instagram Retracts New Terms of Use
Now That We Know Instagram Isn’t a Charity, What Would You Be Willing to Pay?