Category "copyright"

How Ted Koppel and ABC TV Tried to Steal my Life Work

- - copyright

By Nate Thayer

December 8, 2013

I am banned by legal agreement to write the following: ABC Television/ Disney Corporation, after seven years in court, where they attempted to bankrupt me and ruin my reputation for objecting to them stealing fifteen years of my life work, buckled and paid me. They have the legal right to take back the money they finally paid me–which actually all went to lawyers and taxes–if I open my mouth.

Fuck them.

Good luck getting blood from a stone while trying to attempt to muzzle a free person in a free society while claiming you are an icon of the free press and free speech

So here goes…..

http://natethayer.wordpress.com/2013/12/08/how-ted-koppel-and-abc-tv-tried-to-steal-my-life-work/

Thx, Julian

Daniel Morel Awarded $1.2 Million For Willful Copyright Infringement

- - copyright

“I hope the internet is going to be a little safer now for all artists, all photographers,” he told PDN the day after the jury reached its verdict.

Morel also said he took personal satisfaction in defeating the teams of lawyers from AFP and Getty that he has been fighting for nearly four years.

“That was the most beautiful moment of my life, the look in their faces when they lost. They were so arrogant,” he said. “Those guys [AFP and Getty] knew I was small, and thought there was no way I could sue them, and they took advantage of me. They thought they were untouchable.”

Read more at: http://www.pdnonline.com/news/Morel-v-AFP-Copyrig-9598.shtml

 

Richard Reinsdorf v. Skechers Update

- - copyright

Looks like I missed an update to the Richard Reinsdorf’s $250 million dollar lawsuit against Skechers from February of this year (thx for the tip Josh). To recap from my previous post “Skechers Sketchy Defense For Ignoring License Terms“:

The suit started when Reinsdorf discovered that images he took for Skechers from 2006-2009 and licensed to them for very specific terms–six months use in North America for point of sale, magazines and certain outdoor advertisements–were being used for several years and included in ads overseas and on packaging and other unauthorized media. The suit states that Skechers “completely and utterly ignored the terms of the license.” (source)

First reported by TMZ back in September of 2009 it took an unusual turn in 2010 when Skechers filed a motion to dismiss claiming ownership of copyright because of “alterations they performed on the images from slight modifications in models’ skin tone to the substitution of models’ body parts and the addition of substantial graphic effects.” They asked the judge to dismiss because they couldn’t possibly have infringed on their own copyright.

If you want to read the motion to dismiss you can download it (here). It certainly would set a disturbing precedent in the photography world if something like this were to be allowed. In the discussion the judge states that “Skechers is correct that a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright” but that’s not what’s at issue here because “Contrary to Skechers’ assertions, the evidence in the record does not indisputably establish that Reinsdorf intended that his photographsbe incorporated into a joint work.” He simply gave them a limited license to their use. The motion to dismiss was denied.

A ruling on Skechers Motion for Summary Judgment dated February 6, 2013 (download it here) states:

Skechers has not demonstrated that the parties intended to be co-authors of the finished marketing images, which are, therefore, not joint works. Nor has Skechers demonstrated, as a matter of law, the lack of a copyright license agreement or breach of such argument. Accordingly, Skechers’ Motion for Summary Judgment is DENIED in these respects.

The expert opinions of Frank Luntz and Jamie Turner do not satisfy the requirements of Federal Rule of Evidence 702. Accordingly, Skechers’ Motions in Limine to exclude those opinions are GRANTED. Skechers’ objection to the Supplemental Report of David Connelly is SUSTAINED.

Given Plaintiff’s failure to adequately demonstrate a causal link between Skechers’ profits and its allegedly infringing conduct, Skechers’ motion for summary judgment on Plaintiff’s indirect profits claim is GRANTED. Skechers’ unopposed motion for summary judgment with respect to statutory damages and attorney’s fees is also GRANTED.

I found what District Judge Dean D. Pregerson has to say about joint authorship in this case interesting. While both parties intended that their separate contributions be merged into a unified whole this is different than an intent to be co-authors. The parties behaved in ways uncharacteristic of joint authors:

  • Reinsdorf charged for his time and effort plus usage of the photographs.
  • He attempted to limit Skechers’ use of its ads.
  • Skechers sought to prevent Reinsdorf from making use of the finished images on his personal website

Finally, you can see that Richard was unable to demonstrate a relationship between the images he took and the profits Skechers received from shoe sales. And… the kicker… “he failed to register his photographic works within the period contemplated by the Copyright Act”, so he’s NOT eligible for statutory damages and attorney’s fees.

Reader Question: Licensing Images Shot On Private Property

- - copyright

A reader asks:

Hi Rob,

I’m an architectural/interior design shooter for the last 15 years and I’m still working in 4×5 film.

I’ve been approached by a stock company and they would like access to my catalogue of mid to high end residential exteriors and interiors. I’m usually hired by the architects or the designers, seldom the owners and the work has been for the clients “personal portfolio and marketing purposes”

I know I have the “copyright” because I was paid to photograph the residences with owners permission.

But, if one of the living room shots is licensed from the stock company and the property owner happened to come across “his” living room in a mag somewhere, can he drag me to the carpet and create a litigious tussle or a simple cease and desist.

I’d like to finally get a wee bit of money for potential stock usage.

I asked The Photo Attorney, Carolyn E. Wright if she could give us general advice on licensing images shot on private property for stock. Here’s her answer:

 

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

When considering whether you need permission of the owner to use photographs of the owner’s property (often referred to as a “property release”), you need to analyze what claims the owner can make against you.

Assuming that the property is in the United States, any potential claims will based on state laws, not federal rights. So the claims may vary, depending on the laws of the state where the property is located. However, each state’s laws are similar.

While some buildings are protected by copyright, the US Copyright Act provides an exception for photography of architectural works:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. See 17 USC 120. Therefore, you are allowed take and use exterior photos of a building or home when it is located in and is ordinarily visible from a public place. A home owner would not have grounds to keep you from photographing and using the photos for any purposes, including commercially. Such was the case when a California homeowner complained about photos of his home used to advertise mortgages: http://www.photoattorney.com/is-a-property-release-required-for-use-of-photo-of-house-for-an-advertisement/

When taking photos inside property, you are subject to trespassing laws. Specifically, your presence on another’s property is pursuant to a “license” to be on the premises. For example, when you invite someone to your home for dinner, that invitation does not extend to a “license” to drive your car or stay overnight, but would be specific or implied consent to sit in your living room and at the dining room table. At any point, however, you may revoke the license and ask your guest to leave your premises.

The ultimate question is whether the owner or manager of the property has given specific or implied consent for the photographer to take photographs there. You cannot misrepresent your purpose to enter a property and then take photos. For example, in the court case of Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999), ABC news reporters from the show, “PrimeTime Live” obtained jobs at several stores under fraudulent pretenses and then proceeded to surreptitiously film Food Lion’s unsavory food handling practices. After the program aired, Food Lion successfully sued the producers on the charge of trespass. However, if you are on the property and the owner sees but doesn’t stop you from taking photos, you have implied consent to do so.

If you have consent to take photos of property, then the issue is whether the owner has a right to restrict the use of them. An owner would be able to stop the use of the photos if the photographer and owner had an agreement that the photos wouldn’t be used in certain ways. If the photographer uses the photographs otherwise, then the owner would have a breach of contract claim.

Absent a trespass claim or contract regarding the use of the photos, no court has recognized a claim for using photographs of private property. Some have argued that a homeowner would have a claim for conversion, trademark infringement, or violating the right of privacy. But, for example, a South Carolina court found that The College of Charleston Foundation had no claim against Benjamin Ham for invasion of privacy or conversion for his taking and selling photographs of the College’s property, known as the “Dixie Plantation.” Significantly, the court noted that if Ham had taken the “Plantation Road” photograph from off the property with some sort of high-magnification equipment, the Foundation would have no cause of action for trespass, either. http://www.photoattorney.com/update-on-the-lawsuit-against-benjamin-ham-for-photographing-private-property/. Neither did photographer Charles Gentile violate the Rock and Roll Hall of Fame’s trademark for selling posters of the museum. http://scholar.google.com/scholar_case?case=8775495145817703769&hl=en&as_sdt=2&as_vis=1&oi=scholarr. Likewise, a German court recently upheld the right for a photographer to license photos taken of property at a park: http://www.photoattorney.com/german-court-finds-no-violation-for-photographing-and-licensing-photos-of-property/. A subsequent owner of property would not be able to prevent a photographer from licensing photos that a photographer had taken, as no other claim would bar their use.

In sum, while some owners may whine about seeing photos of their property used commercially, the law won’t support their complaints.

Copyright Carolyn E. Wright, Esq.

California Labor Laws And Work Made For Hire Agreements

Question from a reader about California labor code and an answer from Carolyn and Leslie at the Photo Attorney.

Q. I’m sorry to bother you but I have a question that has not been addressed on any professional photography or photography related website that I can find. In CA the labor code makes work for hire when transferring the ownership of copyright illegal (civil and criminal liability) except in the case of an employer/employee relationship. How does this apply to photographers working in CA when doing small jobs? Is it legal to have work around language that assigns copyright to the person doing the hiring (meaning the agreement says everything a work for hire agreement would say but it doesn’t use the term work for hire); or is it a case of walks like and duck, quacks like a duck, it is a work for hire agreement and therefor illegal in the state of CA?

A. Thank you for this important question.  The issue is not that it’s illegal for an independent contractor to agree to a work made for hire agreement in California.  The problem is that when a photographer is hired under a work made for hire agreement, then the photographer, under California state law, is considered an employee rather than a independent contractor.   Specifically, California Labor Code section 3351.5(c)provides that one definition of an “Employee” is:

Any person while engaged by contract for the creation of a specially ordered or  commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.

California Unemployment Insurance Code Section 686 also states that:

“Employer” also means any person contracting for the creation of a specially ordered or commissioned work of authorship when the parties expressly agree in a written instrument  signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all of the rights comprised in the copyright in the work. The ordering or  commissioning party shall be the employer of the author of the work for the purposes of this part.

Once the photographer is an employee, the employer must pay unemployment and worker’s compensation insurance for the employee.  If not, the employer can be subject to one year in jail and up to $20,000 in fines (California Labor Code section 3700.5 and California Unemployment Insurance Code Section 2122).

But there is another way.

If the photographer is operating through a business entity (such as an LLC or corporation), then the Labor and Unemployment Codes don’t apply.  If the photographer is an individual/sole proprietor, then don’t use “Work Made for Hire” language in the Agreement.  Instead, you may assign the copyrights to another through language such as:

Photographer irrevocably transfers and assigns to the Client the copyrights created as part of the project.

Of course, if a photographer agrees to transfer copyrights, hopefully it will be for an appropriately large sum.  And when a photographer hires someone (like a designer) and wants ownership of the material created, also be careful not to violate these laws.  All of this is part of knowing your rights and responsibilities as a professional photographer!

Carolyn E. Wright and Leslie Burns, Law Office of Carolyn E. Wright, LLC (a/k/a the Photo Attorney)

 

Kickstarter Campaign Makes Art Off Images Found Online

- - copyright

Print designer Sabrina Chun of San Francisco has raised $66,000 for a kickstarter campaign (here) where she takes photographs off the web, changes them to black and white and prints them on 80lb card stock with a matte finish. When the campaign was published on the autoblog in early April someone noticed the Shelby image comes from well known car photographer Bruno Ratensperger (autoblog here). The kickstarter campaign was taken down after someone filed a copyright dispute, but it’s back and the Shelby image has been modified a bit (probably found another one that doesn’t belong to a working photographer).

Is this what the judges envisioned when they overturned the case against Richard Prince? People everywhere suddenly have photographs at their disposal as raw material for their artwork. A few modifications later and the meaning is changed! Ok, I’m being a bit facetious here, because I don’t believe that’s actually the case. Clearly Sabrina has not changed the meaning and would lose a lawsuit brought against her. It’s too bad so many people think the opposite including kickstarter.

Original image:

Original kickstarter image:

Modified kickstarter image:

Need a photo of some wallspace for your prints? No problem here’s one:

thanks for the tip Jake.

Altering Photographs Deemed Fair Use In Landmark Case

- - Art, copyright

A closely watched copyright case involving photographer Patrick Cariou and appropriation artist Richard Prince has taken an unexpected turn in favor of Prince on appeals. To recap: In December of 2008 photographer Patrick Cariou filed suit against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick’s Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. In March of 2011 US District Judge Deborah A. Batts ruled on the cross-motions for summary judgment and found that the use by Prince was not Fair Use and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.

According to many of the sites covering the case this caused quite a stir in the art world, because of the way the judge interpreted fair use. I liked the interpretation, because it offered guidance to artists wishing to appropriate work and claim fair use for transforming it. Essentially you had to comment on the original work to qualify. Simply using it as source material, as Prince admitted to doing, does not transform the work. Or as the judge put it at the time: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.”

The appeals court heard the case last May and wrote that a majority of Mr. Prince’s work manifested “an entirely different aesthetic” from Mr. Cariou’s pictures. “Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs,” the decision stated, “Prince’s crude and jarring works, on the other hand, are hectic and provocative.”  The court found that most of the works by Mr. Prince under consideration were permissible under fair use because they “have a different character” from Mr. Cariou’s work, give it a “new expression” and employ “new aesthetics with creative and communicative results distinct” from the work that Mr. Prince borrowed. (source NYTimes.com)

The court is essentially saying that someone must look at the new work and determine that it has a different character than the original to know if the work is transformed by the artist. And, if that weren’t bad enough they sent 5 of the works back to the lower court (one can be seen below) because they were so minimally altered they may not be considered fair use by a reasonable observer. Using the new appeals court standard the lower court will determine if they are in fact a “new expression”. What a mess.

(You can download the decision here)

Not sure what options Patrick has left but it seems that the courts have no interest in clarifying fair use so that people can make reasonable decisions without resorting to lawsuits to sort it all out. Given the variety of opinions on what constitutes art, relying on reasonable observers to determine if alterations to copyrighted photography constitute a “new expression” with “distinct creative and communicative results” seems absurd.

Reader Question: All Rights Contract

- - Contracts, copyright

A reader asked me a question about all rights contracts and I thought I’d see if anyone wanted to offer advice in the comments. My initial reaction to anything like this is “what’s in it for you?” If you’re not getting paid to give up your rights and you can’t use the images to market yourself then you get nothing out of the deal. I also believe it locks you in to this type of deal with this client going forward.

Last year I got a call out of the blue from an ad agency in [Redacted] for a photo assignment. I eagerly took it, turned in the work, and before they paid me they sent me a contact. The contract required me to transfer all rights to the photos. The main part I objected to was that I wouldn’t be able to use the work even in my own portfolio.

I’ve not gotten another assignment from them, but they sent me another contact … a work for hire contact. Again, all rights. Is this normal with ad agencies? I just e-mailed my contact at the company and pointed out that my rates are reasonable, I do good work and I meet deadlines. It hardly seems like it’s much to ask that I at least be able to use my own work to promote my own work.

As a commercial photographer, I’m very inexperienced, so I thought I’d see what your advice would be.

Judge rules AFP and WaPo Infringed Photographers Copyright By Pulling Images From Twitter

- - copyright

Late on Monday a Manhattan judge ruled in the Daniel Morel case against AFP and the Washington Post that both news organizations infringed his copyright by republishing images that he posted to Twitter during the Haiti earthquake 2 years ago (download the 58 page ruling from NPPA here).

The case was originally brought against Morel by APF, because he was complaining loudly that they stole his images off Twitter, so he then brought a counterclaim against AFP, Getty Images and the Washington Post. It’s certainly the case to watch when it comes to photography and social media. According to the NPPA blog (read the whole post here):

“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”

and

In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”

So, there’s more to come in this case, but everything is looking good for photographers who post images to social media sites, which brings up my next point. Remember when everyone was outraged that he posted breaking news images to twitter in the first place. The attitude was more “that’s what you get for not using proper channels” instead of support for photographers trying to carve out professional use of these services. Jeremy Nicholl didn’t forget and his post on this latest ruling (read it here) recalls this gem from Visa Pour L’Image Director Jean Francois Leroy:

a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough.

That’s not unsurprising given JF’s role in packaging and selling stories in the traditional manner and Twitter’s role in simply blasting it out to the internet. The key takeaway for me from all of this is that even Twitter is unsure what it’s business model will look like in the future, but professional photographers who use the service can help shape how these services will work. Help them understand the great value of professionally produced content. It’s still the wild west out there and it’s not going to be pretty, but photographers who experiment and defend their copyright should be applauded.

Instagram Plans To Sell Your Photos Commercially Without Paying You

- - copyright

Instagram issued a new Terms of Service yesterday (here) that will allow the company to use your photos commercially without any compensation to you:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

You have until January 16, 2013 to opt out and delete your account.

I also found this next part troubling:

posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service;

Couple thoughts on this beyond the obvious WTF that many of you who use the service and sell images professionally will have.

According to Cnet, once the deadline has passed you’ve given them a license and irrevocable right to sell any images you’ve uploaded in perpetuity.

Facebook paid 1 billion dollars for Instagram which came out to be $30 per user. Selling everyone’s photos seems like an easy way to make all that money back.

At over 1 Billion images and counting, doesn’t this make Instagram the largest stock photo agency in the world?

Most companies require royalty free worldwide licenses to your images in order to display them on your account and move them around the world on their servers. This is the first time I’ve seen a license to display images commercially. It can’t possibly stand up to the anger they’re about to experience. On the other hand a billion dollars is a lot of money. This will get them there faster than anything else. Could this be a shift in “free” services who want multi-billion dollar valuations and exits for their investors? This could just be the beginning.

UPDATE: Statement from Kevin Systrom co-founder, Instagram (here)

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.
 

Report On Copyright Reform Is Published Then Retracted

- - copyright, The Future

Late on Friday November 16th, the Republican Study Committee, which is the caucus for the House Republicans, released a document debunking various myths about copyright law and suggesting key reforms. By Saturday it was taken down after, according to Tech Dirt, Hollywood and the recording industry got wind of it and hit the phones.

It’s worth reading to better understand the position of those who want serious reform. Certainly, since the creation of the internet and all these devices for storing and viewing copyrighted work, some reform is in order. The battle to come is over the amount of protection the creator receives vs the public’s ability to use the work. It’s a fine line and in my opinion too much shift in the public direction will have serious consequences for content creators.

rsc_policy_brief_–_three_myths_about_copyright_law_and_where_to_start_to_fix_it_–_november_16_2012

Full Tech Dirt story is here.

Who Owns The Images When You Take Pictures As An Employee

- - copyright

I received the following question from a reader:

I was the staff photographer at a small Canadian magazine and recently quit to start a freelance career. My former publisher has asked me to remove all images in my portfolio and stock site, claiming they own all images I took while employed there. The thing is, I didn’t sign any contract that says they own any of these images. Do you have any thoughts on this or have anyone in Canada who specializes in copyright law that I may be able to contact?

I don’t know anyone who specializes in copyright law in Canada but I do know Carolyn E. Wright, AKA the Photo Attorney (http://www.photoattorney.com), who I recommend to anyone looking for an attorney who specializes in photography and copyright. I asked her to answer the question for US employees because I thought it would be helpful, but if anyone knows how it works in Canada please chime in on the comments.

If you are an employee in the United States, the copyrights to the photos that you take as part of your job responsibilities belong to your employer, not you.  When your employer owns the copyrights to the photos, it’s as if you didn’t take them.  You have no rights to use them, even for your own portfolio unless your employee gives you a license for such use.

If you are not an employee of an organization, you own the copyrights to the photos you take, even if the organization hired you to take the photos unless you have signed a document (including via an email) stating otherwise.  In that case, the hiring company will own the copyrights as a “work made for hire.”  See 17 USC 101.

Sometimes, however, you may have a dispute with a company whether you are an “employee.”  The court inCCNV v. Reid addressed this issue. There, the court explained:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

In addition, it’s important whether the organization issues a 1099 or a W-2 to you.   To help with understanding this law, the Copyright Office has prepared Circular 9.

If you are a full-time employee and do some part-time shooting for the company (because you have the “big camera”) and/or shoot on company time, it is a judgment call as to whether the photography is within the scope of your employment. But if you get a statement/agreement in writing from your employer to confirm that it isn’t, it will be helpful later if there is any dispute.

Why Social Media Sites Need An Unlimited License To Your Images

- - copyright

Here’s the most clearheaded explanation I’ve ever found of the TOS rights grab that’s become standard for any social media site where you upload your content (images):

In a world where sharing a photo is strictly a matter of getting another copy made and mailing it, or getting it published, copyrights are pretty easy to keep track of and these laws hold up pretty well. Sending a physical photo to your grandmother goes like this: you either put the picture in an envelope and send it, or you get a copy made yourself and send that.

Sending your grandmother an email photo, though, might involve copying your photo five or six times; first to Google’s servers, then to another server, then to an ISP’s CDN, then to AOL’s servers, then to your grandmother’s computer. As far as you’re concerned, this feels exactly like dropping an envelope in the mail. As far as copyright is concerned, it’s a choreographed legal dance.

And so these sites have to get your permission — a license — to copy and distribute the things you post. Just to function as advertised, they need your permission to “use” and to “host,” to “store” and “reproduce.” What they don’t necessarily need is the right to “modify” and “create derivative works,” or to “publicly perform.” That is, unless they need to make money. Which of course they do.

Read the whole post here: http://www.buzzfeed.com/jwherrman/you-dont-own-anything-anymore

It’s a common concern among professional photographers who contemplate participating in social media that these “rights grabs” run counter to how you conduct yourself in the real world and you shouldn’t participate. My concern is if there’s nobody using the service who understands licensing and the value or granting a license there will be nobody to raise a stink if they ever do anything that’s overreaching with their unlimited license. If enough professionals are involved their voices will be heard if that time ever comes.

New Fees Proposed For Copyright Registration

- - copyright

I received the following mass email from Stephen Best, APA National CEO and I’m sure many of you did too but it looks important enough to bring up here

The United States Copyright Office has proposed “new fees for the registration of claims, recordation of documents, special services, Licensing Division services, and processing of FOIA requests.” This includes the registration of photographs using form VA through eCO or paper filings.

The basic change for photographers would be an electronic filing that now has a fee of $35 would go to $65. A paper filing that now is $65 would go to $100. APA is concerned that increased fees will deter the registration of images by photographers because of the higher cost.

Making the registration process more expensive is not a way for the Copyright Office and the Library of Congress to fulfill its mission “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (U.S. Constitution, Article 1, Section 8)

The Notice of proposed rulemaking on Copyright Fees is found here, 77 FR 18742. http://www.copyright.gov/fedreg/2012/77fr18742.pdf

The CO Office is providing an opportunity for comments before they submit the fee schedule to the US Congress for review. Comments should be submitted electronically to the Office of the General Counsel in the Copyright Office no later than May 14, 2012.

Comments are to be filed electronically and a comment form is posted on the Copyright Office Web site at http://www.copyright.gov/docs/newfees/comments/.

Let the Copyright Office know how strongly you feel. Submit comments to the US Copyright Office.

Skechers Sketchy Defense For Ignoring License Terms

- - copyright

A case in which photographer Richard Reinsdorf files a federal lawsuit against Skechers to the tune of 250 millon dollars seems to be flying under radar as it crawls through the courts. A reader alerted me to it months ago and I recently went back to see whats developed.

The suit started when Reinsdorf discovered that images he took for Skechers from 2006-2009 and licensed to them for very specific terms–six months use in North America for point of sale, magazines and certain outdoor advertisements–were being used for several years and included in ads overseas and on packaging and other unauthorized media. The suit states that Skechers “completely and utterly ignored the terms of the license.” (source)

First reported by TMZ back in September of 2009 it took an unusual turn in 2010 when Skechers filed a motion to dismiss claiming ownership of copyright because of “alterations they performed on the images from slight modifications in models’ skin tone to the substitution of models’ body parts and the addition of substantial graphic effects.” They asked the judge to dismiss because they couldn’t possibly have infringed on their own copyright.

If you want to read the motion to dismiss you can download it (here). It certainly would set a disturbing precedent in the photography world if something like this were to be allowed. In the discussion the judge states that “Skechers is correct that a co-author in a joint work cannot be liable to another co-owner for infringement of the copyright” but that’s not what’s at issue here because “Contrary to Skechers’ assertions, the evidence in the record does not indisputably establish that Reinsdorf intended that his photographsbe incorporated into a joint work.” He simply gave them a limited license to their use. The motion to dismiss was denied.

The latest I could find was an order granting Reinsdorf an extended discovery cutoff of May 15, 2012 (here). This will certainly be a case worth watching. I’ll be interested to see what the judge thinks of the $250,000,000 price tag, the limited license terms and Skechers sketchy defense that advertisements are a joint work and can be used where ever and how ever they want.

Perhaps Many Photographers Don’t Understand The Value Of Usage

A reader sent me this story, so that it might instill confidence in young photographers like herself. I think you will find that it does that:

I worked with one of the local college’s ex-students on a shoot for a magazine editorial about a year ago. The ex-student lied about having my permission and gave the image to the college, which then used the image on a billboard advertisement that wraps around a 20 story building on a very busy road in the city. It is a recognizable image of mine, and shows the faces of two models from a local agency. It was actually one of the models who spotted it first and I received a very embarrassing phone call from her agent who asked me how that shoot ended up on a billboard.

I went online and researched some suggestions of how I could handle this, but I couldn’t find much available. Crawling through some forums, I found that a few photographers had their images stolen and placed on a billboard, and they charged $500 for the use. The billboard was already up there for 1.5 months and it was supposed to be up there for 3 months total. I called the model agency and they told me that they ended up with $1500 for each girl for a year’s usage. They said that they knew the figure was low, but at least they would receive some pocket money.

I also consulted with a couple of local creative agencies who also offered some advice. They were helpful at first, although once they started talking to the college they decided to back off. I think they probably thought it wasn’t worth it (despite that I offered them the incentive of a commission). They were perhaps scared of losing a potential client over a nobody photographer like me.

So I spoke with the college directly and they asked me to come in to discuss this and negotiate a pay-out. I didn’t want to go in – I couldn’t see a reason to apart from them using this opportunity to intimidate me. They were a little manipulative over the phone, suggesting that my photograph would potentially be featured there for 12 months and it would be great exposure for me if I didn’t charge too much. I offered them $1500 per month, which they thought was ridiculous (I thought what they paid the model agency was ridiculous!). They told me the billboard space was only costing them $2700 per month. So I said I’d seek further advice and come back with a figure. They were desperate to get me to come in.

After much research, I found that it’s tricky to put a price on usage. I found the best advice to be 10 – 30% of the marketing budget (from small to large scale). In this scenario, they hadn’t commissioned this shoot and it wasn’t just about using my image, it was also the humiliation I went through explaining to my team members (particularly the model agency) how the image got into the advertiser’s hands. It also concerns the disassociation of my image to me (now known as the face of that college and it impacts my professionalism – even the creative agency that I sought advice from assumed I stupidly gave the files to the college (I had given them to the ex-student to use for his portfolio).

So I went with my gut instinct, and ended up charging them a figure that I thought was fair. I wrote them a letter a week later, explaining my situation, the inconvenience this has caused me, my humiliation to those involved, and that I thought after all this the figure was fair. I stuck with this:
2.5 months and they take the image down – $1500 per month = $3750
3 months – $1500 per month, $4500
12 months – $1250 per month, $15000

In the end, they decided they wanted my image for 12 months. After a few emails back and forth, I ended up settling on $9000. That’s ok, it’s a little less than what I was asking for but it’s a little more than 30% of their budget for the billboard space, I didn’t want to pursue this any further so I was happy to settle on that. They even offered me the incentive for future work with them.

After a google search, it seems like this problem occurs often and perhaps many photographers don’t understand the value of usage.

Michael Grecco Combats Illegal Downloads With The Electronic Version

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I heard from Michael Grecco about his new ebook on lighting and wanted to know more about finding the original book on torrent sites and how that spurred him on to create an electronic version. Here’s what he had to say:

In 2006, I released a book that grew from a very well received lecture series called “Lighting and the Dramatic Portrait” that I gave at the Photo Plus Expo. The goal of the book was to describe what I had learned about lighting over the course of my career. In writing the book I made the decision to hold nothing back. The book went on to be a best seller, briefly hitting number 291 on Amazon (out of the millions of books they have). We sold over 30,000 copies worldwide. I was thrilled with the results and, to this day, the book continues to sell

A few years ago a friend recommended that I start a “Google Alert” for my name and projects. Google will send you an email anytime you are mentioned on the Internet, which is an amazingly useful tool to monitor the Internet coverage of yourself and your projects. I discovered that “Lighting and the Dramatic Portrait” was very popular on torrent download and share sites. At the time, I just smiled and thought there was little to do about it; I guess it was just nice to be popular.

Then I thought, why not offer the book digitally? My book agent checked the contract and we both agreed that I had retained the electronic rights. When the book was first published by Watson Guptill (great publishing house- they did a fantastic job!), no one understood the value of digital rights, so the issue never made it into the contract. I consulted, my 19 year-old son, Dakota, who is into game design, to see if this was something he could program. Dakota did the coding of the book; we worked together on optimizing the images in size and resolution so that they looked great. We also re-did the lighting diagrams, taking them up a notch by giving them more details and making them read better on the device. Then we added a bonus chapter for purchasers of the eBook.

In retrospect, I understand that the torrents were infringing my book, but as we investigated, some sites actually did not have the book available- they were just using the name to entice people to subscribe to their torrent site. Researching who actually had the book, and who did not, was a huge undertaking. But what I realized was that these sharing sites were telling me that there was an unfulfilled demand for a serious photography book, in an electronic format, about lighting. We expect, with the eBook release of “Lighting and the Dramatic Portrait,” for the electronic theft to disappear as photographers find the original–and superior–version available at an affordable price.

If the book continues to be successful, we are looking to provide other photographers with our publishing and marketing infrastructure to help them publish their books electronically through our newly formed company, Naked Editions. I am curious to learn what your readers think.

How Long Until Pinterest Is Sued Into Oblivion Like Napster?

- - copyright

Pinterest, the hot new social sharing platform has a serious problem when it comes to the medium it’s designed to share. Despite careful wording on their about page that you agree not to post, upload, publish, submit, provide access to or transmit any content that infringes, misappropriates or violates a third party’s copyright… many (most) of the images on the site do just that. Several lawyers have weighed in on the controversy advising:

“…you should never pin an image on Pinterest for which you don’t own the copyright interest or for which you have not obtained a license from the copyright owner.”

– Jonathan Pink, a California-based intellectual property lawyer with Bryan Cave LLP via, WSJ.

Federal copyright laws give the author of any copyrighted work (which includes photographs and copyright attaches automatically as soon as the work is created) the sole and exclusive right to publish and reproduce such work.  So, basically, when you see a photograph that you love, you do not have any right to publish or reproduce that photograph unless you took the photo or got consent from the photographer to use the photo.

…in my humble opinion, the only “safe” conclusion here, for me, is to either get off of Pinterest or pin only your own work or work you have a license to use.

–  Kirsten Kowalski via, ddkportraits.com

If that’s not enough, Pinterest CEO and co-founder Ben Silbermann has completely deleted his boards: http://pinterest.com/ben/ even though he was named #2 in a list of 21 must follow Pinterest users on mashable.com.

On the flip side we have a very exciting way to share photography that some photographers like:

Photographers need to look beyond their own nose when it comes to social media web sites and copyright concerns. I’ve written about a fair number of photography rights grabs here on my blog and there have certainly been cases where there have been egregious violations of copyright that photographers should have been concerned about. By and large Pinterest has not proven to me they fit in that category. In addition social media web sites and the Internet as a whole are great tools to be exploited by photographers. Don’t be afraid of having your work seen. If you look beyond your own nose you’ll see these new tools and sites can be creatively applied to enhance your business versus kill it. Being creative isn’t just about taking photos its about creatively enabling your work to be found.

–  Jim M. Goldstein via, Pinterest – Seeing beyond your own nose

I even have it on good authority that top creative directors are actively pinning and competing to have the most creative boards. My source tells me that it’s not impossible to imagine a future where your pin board is part of your resume.

So, I agree that there’s potential here to make a great service for sharing, driving traffic to, and bookmarking photographers. But they just haven’t figured out how to do it without running afoul of copyright laws.

Then there’s the separate matter of their heinous terms:

We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.

Facebook has similar terms:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

And so does Twitter:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

My prediction is that before they get sued into oblivion they will figure out a reasonable way to get it to work. But for those who think whiny photographers or outdated copyright laws are to blame, I’ll leave you with one last set of quotes to chew on:

For the first 1,500 years of the last two millennia, man was generally poor. Though there were empires and kingdoms, the gross world product (GWP) was largely flat. For generations, people did not experience any major change in their living standards.

And then something changed: the Western world introduced stronger property rights, including intellectual property rights, which allowed people to pursue new ideas, firm in the knowledge that success could bring financial rewards.

Today, all of the contemporary advanced economies have strong property rights, and data shows a strong correlation between property rights, productivity, living standards and innovation.

via  Ndubuisi Ekekwe – Harvard Business Review.