Photographer Simon Crofts has a post about it (here), where he says:

“The Government’s idea is to take control of licensing and pricing of orphan works away from copyright holders and give it instead to one or more central licensing bodies.”

Hopefully it can be stopped, but judging how things have been going for photographers over there it doesn’t appear the government cares much for photographers.

UPDATE: From a reader.
http://www.copyrightaction.com/forum/uk-gov-nationalises-orphans-and-bans-non-consensual-photography-in-public?page=1

I know it’s a bit of a long read but the salient points are that in the UK new law:

1) Enacts orphan works without any definition of a. what constitutes an orphan work and b. what a reasonable owner search is
2) Makes it a crime to photograph in public if *anyone* who appears in the image objects to their image being taken!

WOW. WTF UK.

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Hi Rob,

I’m a photographer, regular reader and occasional commenter on your blog. One thing that I have been struggling with since starting my freelance career is legal issues. Two specific problems that have plagued me in the last six months are

- A top national news organization reprinting my work (at least four times that I have caught) and not paying, or responding to my calls.

- A Dutch Bank buying one of my photographs for a calendar and promptly stopping communication after receiving the file.

Today I emailed several photographer friends about this and all said that they have to use attorneys regularly to deal with the frequent use without compensation and misuse of their work. Given that this is a larger problem, I’m interested in your thoughts on it and gathering resources/recommendations for lawyers who specialize in copyright law in general and photographers in particular. I’ve seen your posts recommending the Online Media Legal Network who I am currently attempting to work with and discussion of fair use on the internet. This is an important, increasingly complex and ongoing conversation as the rules continue to shift and social networking makes digital images all the more ubiquitous and difficult (if not impossible) to control.

Any thoughts, referrals or opening up the discussion to the group at large would be very helpful.

All the best,

[Redacted]

So, I contacted Carolyn E. Wright, Esq. of the Photo Attorney Blog to see what she thought and wow, she did not disappoint:

Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don’t or think that they won’t be caught. Fortunately, you can take steps to combat infringement. But the steps you take may limit your ultimate remedies so be sure to first understand what are your options.

Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it – both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify and an attorney can help you with the analysis. You also may check Stanford’s Copyright and Fair Use website (here) for explanation and examples. While some uses by newspapers are fair use, others are not. The NPPA reports on a case where CBS’ use of Christopher Fitzgerald’s photo was not fair use (here).

Research the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find their name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. You also may be able to find a contact name by searching the website’s “who is” information (here).

Option #1 – Do Nothing
Now that you’ve documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving them the right to use the image. Be sure to designate the parameters of that use and include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website.

Option #3 – Prepare a DMCA Take-Down Notice
Pursuant to the U.S. Digital Millennium Copyright Act (”DMCA”) enacted in 1998, the Internet Service Provider (”ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your copyright notice on or at least adjacent to each photo as well as in the metadata of your files. Further, register your photos with the U.S. Copyright Office so that you will be eligible for statutory damages. It’s also important to put all of your licenses in writing, even if by email, and make the license contingent on payment of your invoice in full.

Where to Get Help
Legal help is expensive, but there are alternatives. First, an attorney is more likely to be willing to help you on a contingency basis (for a share in the recovery) when you are eligible for statutory damages. So be sure to register your copyrights timely. Some photography organizations provide legal assistance, as well, with educational materials and/or personal assistance.

As mentioned, the Online Media Legal Network is an option. In addition, most states have Volunteer Lawyers and/or Accountants for the Arts (”VLA” )organizations. As in New York, they serve “low-income artists and nonprofit arts organizations. VLA’s many other programs are more widely available to the entire arts community.” Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis’ VLA’s website provides a list of helpful publications and other great links, including other states’ VLAs. Find a VLA near you by searching on the Internet for “Volunteer Lawyers for the Arts” and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.

Also check with photographers in your area for recommendations for who they use. Since infringements have increased, more photographers have retained legal assistance.

__________________________________________

Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com.

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.

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Seattle photographer Mike Hipple found himself in the latter scenario when in February of 2008 he received a letter from the lawers of a sculptor named Jack Mackie. Apparently a photograph that Mike took 10 years previous and was selling as stock, featured a woman dancing along the sidewalk with a portion of Jack’s sculpture “Dance Steps on Broadway” visible. Mr. Mackie claimed copyright infringement in the letter.

My source for this information is a blog called “Mike Hipple Legal Defense Fund” (here) where Mike describes what happened and describes what he’s up against:

Interestingly, his brief flirtation with settlement came before my lawyer mentioned fair use. As soon as it was brought it up, Mr. Mackie refused to negotiate any further. Now I’m forced to fight this battle on behalf of myself and photographers everywhere—amateur or professional—who take pictures out in public. I don’t want to be here, but I can’t let Mr. Mackie bully away our important rights.

I should note that apparently Mike’s stock agency quickly settled with the sculptor using their insurance for these types of claims.

Without seeing the photograph in question this seems like an absurd case, but the problem with fair use as it exists now is that only a court can determine what constitutes fair use. That leaves Mike with the option to either fight it in court or settle. In an era where photographs are easily copied I think fair use needs a stronger definition.

More discussion on this case over at Photo Attorney. If you want to help Mike out, visit the legal defense fund blog.

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“A requirement to establish third-party liability for copyright infringement.”

“in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content”

Which Cory is interpreting to mean ISP’s have to police copyright and have to cut off internet access to accused copyright infringers or face liability.

Nobody knows what the future looks like from here but certainly some type of deterrent that makes people think twice about [illegally] downloading music, software, movies and even grabbing photos would be good for us. Cory is saying it would be impossible to run a service like Flickr, YouTube or Blogger but would you really care if those services didn’t exist? There’s plenty online I can live without and certainly if it means a robust media industry I’m all for it but I’m a little biased.

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From the NYTimes story (here):

Attorneys for Fairey have withdrawn and, in papers filed Friday in federal court in Manhattan, stated that he misled them. They also amended the original court documents, reflecting that Fairey used a different picture.

”Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009,” the papers say. ”After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.”

This has to do serious damage to any fair use argument because obviously he’s trying to cover something up. But, as I’ve discovered by following this case “how much is too much,” when you base your work on someone else’s work can only be determined by a court. In my mind the real test would be how much time and effort was spent by Fairey to find the perfect image to base his poster on and he’s already admitted that he looked at thousands before finding the right shot.

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1. Copyright protection comes from placing a “©” on your work.
a. Absolutely true. Why else would that little c be in the circle?
b. Sometimes true, depending on things I’m not really sure about.
c. Not true.

2. Copyright protection requires registering your work with the Copyright Office in Washington, D.C.
a. This is a trick question. It’s true that copyright protection requires registering your work, but you don’t have to do it at the Washington office. You can do it at one of the many affiliated offices through-out the country. In fact, I think I saw one just the other day.
b. Not true. I created it, it’s mine, and there’s nothing more I have to do.
c. Of course. Why else would your tax dollars go to support a federal copyright office?

3. Placing the work in an envelope and mailing it to yourself has the same effect as registering it with the Copyright Office.
a. No. If it did, why waste the ink to print this article?
b. Of course it does. If it didn’t, why waste the ink to print this article?
c. Yes. And if enough authors send in their tasteless dreck, the postal service may not have to raise rates again anytime soon.

4. If it’s on the Web, it’s free for the taking.
a. No. Stealing is stealing.
b. Sure, why not?
c. This is true, but only if I use a 28KB modem, and the copyright expires before I finish downloading it.

5. Copying just a little bit does not constitute copyright infringement.
a. Maybe.
b. Maybe.
c. Maybe.

6. Company names and slogans, such as Microsoft, Coppertone, “Just Do It,” and “Things Go Better With Coke” are protectable under the copyright law.
a. Sure, they all originated from companies that are crawling with copyright lawyers.
b. No, or it wouldn’t be a copyright myth.
c. What things go better with Coke?

7. Once I have copyright protection, it lasts forever.
a. Nothing lasts forever.
b. Define “forever.”
c. Yes, this much I know.

8. When I acquire a copyrighted work, I also acquire the copyright to it.
a. How else would museum shops stay in business?
b. Uh, isn’t this why Napster got in trouble?
c. This better be true; otherwise, I just severely overpaid for “A Bug’s Life.”

9. Sure, you can copyright a book, a movie, or a song, but there is no way you can copyright a house.
a. This must be true. Just drive through Orange County.
b. Not so fast. I’m from Orange County, and the houses are not all alike; those shades of beige are distinctly different.
c. This is false; you can copyright a building, but only if it was built less than a dozen years ago.

10. Once a copyrighted work goes into the public domain, I can reproduce it and claim the copyright for myself.
a. Uh — no.
b. Sure, but you need permission from the former owner first.
c. Yes, as long as the copyright had been held by the federal government.

11. The concept of “moral rights” does not exist under U.S. copyright law.
a. Oh, please. Is this going to get preachy?
b. No. Like snobby maître d’s, stinky cheese, and sautéed garden invertebrates, it’s a French thing.
c. Well, maybe it’s not called “moral rights,” but the same basic idea exists.

BONUS: Is this excerpt a violation of copyright law?
a. APE, you will be hearing from an attorney shortly.
b. No man, links are like internet money.
c. Yes this is a little too much but nobody who’s reading this and is the least bit interested in copyright will not hit that link to read the original material so I give you a pass unless they ask you to take it down in which case you better not get all offended and start spewing about how links make the internets run and go on a jag on your blog claiming you will never ever ever give them any of your valuable link juice…

Answers are (here).

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Link to the filing (here).

Really a fascinating and important case to watch.

fairey_ap_090709GarciaInterventionMemoLaw –

Thanks for the tip Ellis.

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Through these bouts of procrastination, I’ve often found stunning photographs, so much so I’ve gotten in the habit of printing faves out and framing them. If a user offers the original resolution for download, don’t let that go to waste. Download, print, frame!

And if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.

You might want to check with Keller on that one.

I don’t see a correction anywhere even after getting completely shelled in the comments. Now acknowledges a ” controversy surrounding the use and reuse of other people’s content on the Internet.” What an idiot x2.

Thanks for the tip Lane.

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thx Joerg.

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“Should photographers sign the agreement, they will be left with absolutely nothing – not even the possibility of marketing their works later in the form of archive photographs. This is because the contractual clauses are intended to secure free-of-charge use in all print and online objects of the publishing house. This would make untold publications possible for many years, in return for only a modest work fee that merely covers single, non-recurring use.”

You can read more on their blog (here).

Or better yet sign the petition (here).

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Copyrights & Campaigns blog has the story:

Perez Hilton né Mario Lavandeira may be the unlikeliest copyright enforcer on earth. The blogger rose to fame by posting photos of celebrities — without permission from the copyright owners — and defending himself from the inevitable lawsuits by claiming that his crude scribbling of penises, cocaine, and semen on the subjects’ faces rendered his conduct fair use.

Well, the times they are a changing. Lavandeira, who has morphed into a gay-rights activist, has now issued his own DMCA takedown notice over a TV ad posted to YouTube by the National Organization for Marriage, an anti-same-sex-marriage group. The ad still available on NOM’s web site focuses on the recent Carrie Prejean/Miss California USA imbroglio, in which Lavandeira played a starring role. The 30-second NOM spot uses about 3 seconds of footage from Lavandeira’s video blog where he says of Prejean, “She’s a dumb [beep], OK?” As NOM describes its spot:

The ad highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them “liars,” “bigots,” and worse.

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As a side note Fairey is doing the same thing with the Mannie Garcia image he used for his Obama poster and has gone so far as to claim he used an image that isn’t an exact match (story here). But, of course he also said he sorted through thousands of images to find the one he wanted to copy for the poster so that doesn’t really sound like “any image will do” now does it.

Cariou feels the same way because he can’t understand why Prince would use 22 of his images if there’s nothing distinctive about them. In the end I think this one will not land in the courts. Apparently Cariou has already received a settlement proposal and it’s just missing a few zeros. And, let’s all be honest here if you saw your photographs selling for $1.5-$3 million after they had been slightly altered “turned into art” wouldn’t you settle for a piece of the action? Or maybe it’s just a matter of paying a licensing fee plus a penalty for not getting it in advance and all will be fine.

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I pulled a few relevant passages out of the transcript for you here.

–How did Shepard Fairey decide what image to use as the basis for his poster?

Mr. FAIREY: Well, I looked through a lot of photographs, but I had an initial concept that I’d like to divide Obama’s face in highlighting shadow between tones of blue and red. So, it was really the direction of the gaze which I felt looked presidential, looked like Obama had some vision and some leadership, and that combined with the way that the light was falling.

–Why did he decide to sue the AP?

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.

And the meaning of their art pieces is completely different than the original intention of the source image and adds a new layer, a new value. It’s transformative, and I think it should be fair use. And I felt that I needed to fight the AP not for myself only, but for a whole group of artists that would be self-censored, probably, because they can’t afford the photos and they don’t want to be in a legal entanglement over using those types of images to communicate a message.

–What was Mannie’s reaction when he found out the image was his?

Mr. GARCIA: Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto the Internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it, doesn’t mean it belongs to you.

–Mannie also talked about his dispute with the AP over who owns the copyright. I haven’t heard or seen the AP produce the contract or agreement with Mannie that says they own it so I assume they can’t find it or there’s problems with it.

–And finally Terry talks with a law professor about fair use.

Professor GREG LASTOWKA (Rutgers School of Law-Camden; Visiting Professor, Columbia University): One thing that’s really important about fair use, they need to understand, is the Supreme Court has said that each fair use case needs to be decided individually, and there are no bright-line rules. And that’s one of the things that’s most frustrating about fair use because if you look at these four factors for fair use, none of them are strictly controlling, and you can find a case that has, you know, one of these factors going one way or the other and a finding of fair use or no fair use.

–Terry asks him about the recent Facebook uproar.

Prof. LASTOWKA: I see it as very relevant because I think the reaction of the public to something like, you know, Facebook’s changing the terms of service, the fear that someone else is going to be able to monetized the creative work that you’re uploading to Facebook shows that we all feel like we are authors and proprietors of the content that we create. So, yeah, I think it’s very relevant because it shows the public’s reaction when their own authorial interests are at stake.

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In order to become friends with Mark you need to grant him rights to whatever you upload to their servers forever.

The story about facebook’s revised TOS  is making the rounds (I think the consumerist broke the story) and even garnered a response from the Zuck hisself (here) that I discovered on Harrington’s blog. In general all these sharing sites use similar language for their Terms of Service and User License Agreements because most of them have no clue how to handle the situation they’ve created for themselves with copyrighted material and figure it’s just easier to grab a license and sublicense.

I hope all the attention this issue is getting will force Facebook and other companies that allow you to upload images (pretty much everyone) to figure out better ways to restrict how content is used, where it’s displayed, where it’s stored … translated, cropped, scanned, edited…, so they don’t have to be so lazy and grab all the rights instead. After all none of these sites are worth a damn without the content people add to them.

Jim Goldstein has a good post all about the terms (here).

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… I’m not sure what there is to discuss unless AP figured out a way to change copyright law.

From a story on Breitbart (here):

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Thanks, Thomas.

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Photographer Mannie Garcia had this to say over on Tom Gralish’s Philadelphia Inquirer photographer blog:

“Of the iconic poster he said, ‘I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture. I thought, ‘that’s familiar.’ I would see it and say that’s cool, but it did keep sticking in my head.’ He was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

“I talked with him again this morning, and he is still proud his photo is the basis of the painting that now hangs in the National Portrait Gallery, a part of the Smithsonian Institution, in Washington, DC – the first portrait of the new president to enter the national collection.”

I followed a post by Carolyn E. Wright of the photo attorney blog where she brings up “thin copyright- where there is not much original copyrightable expression in a particular work” (here) to a discussion on Madisonian.net (here) where a commenter (Bruce Boyden) has this to say:
“The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.”

“To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.”

“Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. ”

and Carolyn had a comment earlier in the thread where she says:

“It’s a common excuse for copyright infringement – the photo wasn’t anything special and anyone could have shot it. That begs the question – then why didn’t they?”

The Art Law blog has more (here) including this tidbit:

“”This would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm”

which leads to this from Time magazine (here):

“I would think Fairey would not have much trouble proving that it was his pulsing three-color reinterpretation of the Obama photo that elevated it from press conference news photo to icon.”

and finally a bunch of law professors get in on the debate (here):

“changes in color and style have been held not fair use before, see Rogers v. Koons”

I am of course fascinated by the debate… you may not be.

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Patrick Cariou appears to have a better case than I first thought. Take a look at these examples where Richard uses most of the image and then add to that the possibility that Patrick’s images have appeared in a gallery at some point in time. There certainly is a case for harm to the potential market for the original copyrighted work which along with the amount of the image used is the main test for infringement in this case (that’s how I see it anyhow).

Here’s my previous post:

Cityfile has the exclusive (here) on a lawsuit filed by photographer Patrick Cariou against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here).

Unlike the most well known instance (here) where Prince appropriated another photographers work for his art, the images he used this time are owned by an individual photographer (from Patrick’s book Yes Rasta) and not a corporation. This should be a very interesting test of fair use because from what I can tell he’s taken only parts of Patrick’s images combined them with other images on a canvas and painted upon them.

I think this is going to be a tough case for Patrick because of the following:

“The fourth fair use factor – effect upon the potential market or value of the copyrighted work – considers the extent of harm to the market or potential market for the copyrighted work caused by the new work. This test evaluates the potential as well as actual financial harm to the original copyrighted work, as well as to current and potential derivative works.

The United States Supreme Court has declared this fair use factor the most important element of fair use. Therefore, those who wish to use another’s copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.” (from PubLaw.com)

I’ve tried to argue in the past that photographers enjoy the benefits of fair use all the time when taking pictures that have copyrighted material in them but Richard Prince certainly takes this idea to the extreme every time.

gagosian

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“Over time, as we scan more articles, you’ll see more and more magazines appear in Google Book Search results. Eventually, we’ll also begin blending magazine results into our main Google.com search results, so you may begin finding magazines you didn’t even know you were looking for.”

Official Google Blog post is (here).

In a related story:

“… the high court, without comment, let stand rulings that Tasini — which bars publishers from selling published articles to Internet databases without securing new copyright permissions from freelance contributors — did not prohibit publishers from selling their digital archives on CD-ROMs without securing new copyright contracts.”

Read about it (here).

Thanks for the tips John.

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For nearly a decade he had been struggling to explain — to his family, to nonartist friends, to himself — why he devoted so much of his time and energy to something as nonremunerative as poetry.

The predicament of all artists living “in an age whose values are market values and whose commerce consists almost exclusively in the purchase and sale of commodities.” For centuries people have been speaking of talent and inspiration as gifts; Hyde’s basic argument was that this language must extend to the products of talent and inspiration too. Unlike a commodity, whose value begins to decline the moment it changes hands, an artwork gains in value from the act of being circulated—published, shown, written about, passed from generation to generation — from being, at its core, an offering.

If creative work doesn’t necessarily have any market value, how is the artist to survive?

In the course of writing “The Gift,” Hyde underwent an intellectual transformation on this subject. He began the work believing there was “an irreconcilable conflict” between gift exchange and the market; the enduring (if not necessarily the happy) artist was the one who most successfully fended off commercial demands. By the time he was finished, Hyde had come to a less-dogmatic conclusion. It was still true, he believed, that the marketplace could destroy an artist’s gift, but it was equally true that the marketplace wasn’t going anywhere; it had always existed, and it always would. The key was to find a good way to reconcile the two economies.

Copyrights are utilitarian things. They generate money to pay a mortgage and buy groceries and continue working. Extended too far beyond their practical usefulness, copyrights not only contradict their original intent; they also wall creators off from the sources of their inventiveness. Genius, Hyde believes, needs to “tinker in a collective shop.”

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I’ve been asked a few times by readers “What’s fair use and what’s illegal when using photography that’s not yours on a blog?” I can’t actually answer that question, because I’m not a lawyer, but I would like to help bloggers understand the best practices for using photography that doesn’t belong to them, so when I saw this “Code of Best Practices in Fair Use for Online Video” (here) I thought I should create one for photography (and not 16 pages long), since it doesn’t already exist. There’s really no end in sight to the practice of bloggers writing about a photograph or a photographer and then posting a picture, so don’t you think it’s time we set down some guidelines on what acceptable and what’s not? I’m going to post the best practices guide on the url http://www.fairusephoto.com and I’d like it to represent what photographers and photo industry bloggers feel is acceptable. Here’s what I think:

Nearly all the photography in the world is copyrighted and belongs to the person who took the picture.

The absolute best practice for using photography that doesn’t belong to you is to ask for permission first.
Oh, you thought there was more? Email or call the photographer and ask for permission. It’s that simple.

If you are looking to cite “fair use” as a way to publish copyrighted images without permission because you believe it falls under the following:”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” then you should follow these best practices:

Always include the photographers name and links to both the image(s) you are writing about and their portfolio in your story or in the caption to the image.

The destination of the anchor link for the image should be the page where the image was found (most blogging platforms have the anchor link to a larger size image so this has to be changed manually).

The bare minimum number of images should be used to make your point. You want to pique the readers interest so they visit the photographers site to see a full selection of images.

Use a screenshot of the image (instead of downloading the file used on their site) and include as much of the surrounding page as possible so it’s obvious that the image came from another website.

The end result should always be that readers, who find the photograph interesting, click to visit the photographer’s site.

Please understand that this is a best practices guide and following this guide does not exempt you from copyright infringement and potentially a lawsuit from the copyright holder. It is ultimately up to the courts to determine if your use was “fair use.”

Here are some resources for further exploring copyright and fair use:

Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code.

Copyright Term and the Public Domain in the United States, 1 January 2008.

Summaries of Fair Use Cases.

US Copyright Office- Can I Use Someone Else’s Work? Can Someone Else Use Mine?

Let me know what you think.

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So, Jody writes a story for slate (here) about the plagiarism and uncovers a writer and possibly publisher who nab stories online and re-appropriate them for their tiny (20,000) unsuspecting audience.

After the story comes out the publisher is inundated with emails and the stories about the plagiarism spread around the blogosphere (here, here, here and here).

The Bulletin ceases publication and the writer issues a statement (here).

Does anyone think they can get away with this shit anymore? Do you really think you can steal someone’s words (pictures and designs too) and not get caught in 2008?

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One of the photographers who’s work was stolen, Richard Sharman, sent me the following:

A website run by brewing giant Heineken was leeching hundreds, if not thousands of copyright photos through the flickr API and posting them to promote the Oxegen music festival in Ireland.

The website at, www.heinekenmusic.ie was pulled after Heineken Music Ireland started receiving demands for payment from photographers for the unauthorized commercial use of copyright material.

There is active discussion about this at several flickr groups including (here) that was set up specifically to discuss the matter. There are a number of screenshots there of the website and the use of copyright images.

There was a comment on their blog which appears to come from within the company about the problem with the heinekenmusic.ie website:

Normally our player should’ve only display photos with commercial CC license, he’re gone something terribly wrong and we’ve currently disabled the flickr photos module on the player. We’re currently looking into the thread on Flickr and see what we can do for the photographers …
I’m sorry if we’ve offended photographers …

Finally, it appears that Heineken is sending settlement emails to the photographers who contacted them with the following offer: “Accordingly, we would be willing to pay in full and final settlement an amount of €15 per image allegedly used” which might get a few to go away but no those who make a living shooting pictures.

You have been warned.

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UPDATE (here).

The Senate is “hotlining” the Orphan Works Bill at this very minute, which means it could pass within the hour.

PLEASE CALL BOTH OF YOUR SENATORS IMMEDIATELY and ask them to either vote NO or put a hold on the Bill.

S. 2913: Shawn Bentley Orphan Works Act of 2008

Whether you’ve called before, or have never called, this is is the moment, the second where it counts. This cannot wait, you need to call NOW.

This could be your last chance to make a stand for the protection of copyright.

Here is a link providing contact information for Senators/Representatives:

http://www.visi.com/juan/congress/

Thank you,

Constance Evans
APA National Executive Director

Julia Graham
APA|NY Regional Director

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Whether or not you think it’s worth 3.4 million dollars is irrelevant. The value of a Richard Prince re-photograph has nothing to do with what’s depicted in the photograph. It has everything to do with the number of editions made (2 plus an artist proof in this case) and the reputation and stature of the artist within the community of collectors, curators and gallerists. Becoming the sole private owner of one of these photographs, when the other edition lives in a museum, is certainly worth millions to collectors.

You should embrace Richard Prince because he’s exercising a right all photographers enjoy and need. The ability to photograph copyrighted and even trademarked objects and sell the pictures for a use that doesn’t interfere with the copyrighted objects intended use–if he’d used those pictures to sell cigarettes then there’d be a problem. When you take a picture of a street scene and there are people wearing t-shirts with slogans, listening to ipods, talking on cell phones, billboards with advertisements in the background, cars, buildings and then you sell that photograph you don’t have to worry about lawsuits from all that copyrighted material.

I’m sure it’s not a very pleasant feeling to be the photographer (video of Sam Abell) who’s work Richard re-photographed, who now have to stand around and watch as their pictures hang on museum walls and set new records at auction. But, this is such a fundamental right photographers enjoy that without it we’d all be screwed.

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“Call to Action on Orphan Works: ASMP urges you to contact your Senator in opposition to S.2913, the Senate version of the Orphan Works bill. Now is the time. We continue to support the House version, H.R. 5889.”

I think they both suck and have already written the Senate and the House.

Via, Photo Attorney.

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SECTION 1. SHORT TITLE.

This Act may be cited as the `Orphan Works Act of 2008′.

SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.

(a) Limitation on Remedies- Chapter 5 of title 17, United States Code, is amended by adding at the end the following:

`Sec. 514. Limitation on remedies in cases involving orphan works

`(a) Definitions- In this section, the following definitions shall apply:

`(1) MATERIALS AND STANDARDS- The term `materials and standards’ includes–

`(A) the records of the Copyright Office that are relevant to identifying and locating copyright owners;

`(B) sources of copyright ownership information reasonably available to users, including private databases;

`(C) industry practices and guidelines of associations and organizations;

`(D) technology tools and expert assistance, including resources for which a charge or subscription fee is imposed, to the extent that the use of such resources is reasonable for, and relevant to, the scope of the intended use; and

`(E) electronic databases, including databases that are available to the public through the Internet, that allow for searches of copyrighted works and for the copyright owners of works, including through text, sound, and image recognition tools.

`(2) NOTICE OF CLAIM FOR INFRINGEMENT- The term `notice of the claim for infringement’ means, with respect to a claim for copyright infringement, a written notice that includes at a minimum the following:

`(A) The name of the owner of the infringed copyright.

`(B) The title of the infringed work, any alternative titles of the infringed work known to the owner of the infringed copyright, or if the work has no title, a description in detail sufficient to identify it.

`(C) An address and telephone number at which the owner of the infringed copyright may be contacted.

`(D) Information from which a reasonable person could conclude that the owner of the infringed copyright’s claims of ownership and infringement are valid.

`(3) OWNER OF THE INFRINGED COPYRIGHT- The `owner of the infringed copyright’ is the legal owner of the exclusive right under section 106 that is applicable to the infringement in question, or any party with the authority to grant or license that right.

`(4) REASONABLE COMPENSATION- The term `reasonable compensation’ means, with respect to a claim for infringement, the amount on which a willing buyer and willing seller in the positions of the infringer and the owner of the infringed copyright would have agreed with respect to the infringing use of the work immediately before the infringement began.

`(b) Conditions for Eligibility-

`(1) CONDITIONS-

`(A) IN GENERAL- Notwithstanding sections 502 through 505, and subject to subparagraph (B), in a civil action brought under this title for infringement of copyright in a work, the remedies for infringement shall be limited in accordance with subsection (c) if the infringer–

`(i) proves by a preponderance of the evidence that before the infringement began, the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement–

`(I) performed and documented a qualifying search, in good faith, for the owner of the infringed copyright; and

`(II) was unable to locate the owner of the infringed copyright;

`(ii) before using the work, filed with the Register of Copyrights a Notice of Use under paragraph (3);

`(iii) provided attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if such owner was known with a reasonable degree of certainty, based on information obtained in performing the qualifying search;

`(iv) included with the use of the infringing work a symbol or other notice of the use of the infringing work, in a manner prescribed by the Register of Copyrights;

`(v) asserts in the initial pleading to the civil action the right to claim such limitations;

`(vi) consents to the jurisdiction of United States district court, or such court holds that the infringer is within the jurisdiction of the court; and

`(vii) at the time of making the initial discovery disclosures required under Rule 26 of the Federal Rules of Civil Procedure, states with particularity the basis for the right to claim the limitations, including a detailed description and documentation of the search undertaken in accordance with paragraph (2)(A).

`(B) EXCEPTION- Subparagraph (A) does not apply if, after receiving notice of the claim for infringement and having an opportunity to conduct an expeditious good faith investigation of the claim, the infringer–

`(i) fails to negotiate reasonable compensation in good faith with the owner of the infringed copyright; or

`(ii) fails to render payment of reasonable compensation in a reasonably timely manner.

`(2) REQUIREMENTS FOR SEARCHES-

`(A) REQUIREMENTS FOR QUALIFYING SEARCHES-

`(i) IN GENERAL- For purposes of paragraph (1)(A)(i)(I), a search is qualifying if the infringer undertakes a diligent effort to locate the owner of the infringed copyright.

`(ii) DETERMINATION OF DILIGENT EFFORT- In determining whether a search is diligent under this subparagraph, a court shall consider whether–

`(I) the actions taken in performing that search are reasonable and appropriate under the facts relevant to that search, including whether the infringer took actions based on facts uncovered by the search itself;

`(II) the infringer employed the applicable best practices maintained by the Register of Copyrights under subparagraph (B); and

`(III) the infringer performed the search before using the work and at a time that was reasonably proximate to the commencement of the infringement.

`(iii) LACK OF IDENTIFYING INFORMATION- The fact that a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright is not sufficient to meet the conditions under paragraph (1)(A)(i)(I).

`(B) INFORMATION TO GUIDE SEARCHES; BEST PRACTICES-

`(i) STATEMENTS OF BEST PRACTICES- The Register of Copyrights shall maintain and make available to the public, including through the Internet, current statements of best practices for conducting and documenting a search under this subsection.

`(ii) CONSIDERATION OF RELEVANT MATERIALS AND STANDARDS- In maintaining the statements of best practices required under clause (i), the Register of Copyrights shall, from time to time, consider materials and standards that may be relevant to the requirements for a qualifying search under subparagraph (A).

`(3) NOTICE OF USE ARCHIVE- The Register of Copyrights shall create and maintain an archive to retain the Notice of Use filings under paragraph (1)(A)(i)(III). Such filings shall include–

`(A) the type of work being used, as listed in section 102(a) of this title;

`(B) a description of the work;

`(C) a summary of the search conducted under paragraph (1)(A)(i)(I);

`(D) the owner, author, recognized title, and other available identifying element of the work, to the extent the infringer knows such information with a reasonable degree of certainty;

`(E) a certification that the infringer performed a qualifying search in good faith under this subsection to locate the owner of the infringed copyright; and

`(F) the name of the infringer and how the work will be used.

Notices of Use filings retained under the control of the Copyright Office shall be furnished only under the conditions specified by regulations of the Copyright Office.

`(4) PENALTY FOR FAILURE TO COMPLY- If an infringer fails to comply with any requirement under this subsection, the infringer is subject to all the remedies provided in section 502 through 505, subject to section 412.

`(c) Limitations on Remedies- The limitations on remedies in a civil action for infringement of a copyright to which this section applies are the following:

`(1) MONETARY RELIEF-

`(A) GENERAL RULE- Subject to subparagraph (B), an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work.

`(B) FURTHER LIMITATIONS- An order requiring the infringer to pay reasonable compensation for the use of the infringed work may not be made under subparagraph (A) if the infringer is a nonprofit educational institution, library, or archives, or a public broadcasting entity (as defined in subsection (f) of section 118) and the infringer proves by a preponderance of the evidence that–

`(i) the infringement was performed without any purpose of direct or indirect commercial advantage,

`(ii) the infringement was primarily educational, religious, or charitable in nature, and

`(iii) after receiving notice of the claim for infringement, and after conducting an expeditious good faith investigation of the claim, the infringer promptly ceased the infringement,

except that if the legal or beneficial owner of the exclusive right under the infringed copyright proves, and the court finds, that the infringer has earned proceeds directly attributable to the infringement, the portion of such proceeds so attributable may be awarded to such owner.

`(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION- If a work is registered, the court may, in determining reasonable compensation under this paragraph, take into account the value, if any, added to the work by reason of such registration.

`(2) INJUNCTIVE RELIEF-

`(A) GENERAL RULE- Subject to subparagraph (B), the court may impose injunctive relief to prevent or restrain any infringement alleged in the civil action.

`(B) EXCEPTION- In a case in which the infringer has prepared or commenced preparation of a work that recasts, transforms, adapts, or integrates the infringed work with a significant amount of the infringer’s original expression, any injunctive relief ordered by the court–

`(i) may not restrain the infringer’s continued preparation or use of that new work;

`(ii) shall require that the infringer pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work; and

`(iii) shall require that the infringer provide attribution, in a manner that is reasonable under the circumstances, to the owner of the infringed copyright, if requested by such owner.

`(C) LIMITATIONS- The limitations on injunctive relief under subparagraphs (A) and (B) shall not be available to an infringer if the infringer asserts in the civil action that neither the infringer or any representative of the infringer acting in an official capacity is subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106, unless the court finds that the infringer–

`(i) has complied with the requirements of subsection (b); and

`(ii) has made an enforceable promise to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright.

`(D) RULE OF CONSTRUCTION- Nothing in subparagraph (C) shall be construed to authorize or require, and no action taken under such subparagraph shall be deemed to constitute, either an award of damages by the court against the infringer or an authorization to sue a State.

`(E) RIGHTS AND PRIVILEGES NOT WAIVED- No action taken by an infringer under subparagraph (C) shall be deemed to waive any right or privilege that, as a matter of law, protects the infringer from being subject to suit in the courts of the United States for an award of damages to the legal or beneficial owner of the exclusive right under the infringed copyright under section 106.

`(d) Exclusion for Fixations in or on Useful Articles- The limitations on monetary and injunctive relief under this section shall not be available to an infringer for infringements resulting from fixation of a work in or on a useful article that is offered for sale or other distribution to the public.

`(e) Preservation of Other Rights, Limitations, and Defenses- This section does not affect any right, limitation, or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the infringement contemplated by the infringer if the owner of the infringed copyright cannot be located, that provision applies instead of this section.

`(f) Copyright for Derivative Works and Compilations- Notwithstanding section 103(a), an infringer who qualifies for the limitation on remedies afforded by this section with respect to the use of a copyrighted work shall not be denied copyright protection in a compilation or derivative work on the basis that such compilation or derivative work employs preexisting material that has been used unlawfully under this section.’.

(b) Technical and Conforming Amendment- The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

`514. Limitation on remedies in cases involving orphan works.’.

SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

(a) Establishment of Database-

(1) IN GENERAL- The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

(2) PROCESS AND STANDARDS FOR CERTIFICATION- The process and standards for certification of the electronic database required under paragraph (1) shall be established by the Register of Copyrights, except that certification may not be granted if the electronic database does not contain–

(A) the name of all authors of the work, and contact information for any author if the information is readily available;

(B) the name of the copyright owner if different from the author, and contact information of the copyright owner;

(C) the title of the copyrighted work, if such work has a title;

(D) with respect to a copyrighted work that includes a visual image, a visual image of the work, or, if such a visual image is not available, a description sufficient to identify the work;

(E) one or more mechanisms that allow for the search and identification of a work by both text and image; and

(F) security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database.

(b) Public Availability- The Register of Copyrights–

(1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and

(2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.

SEC. 4. EFFECTIVE DATE.

(a) In General- With respect to works other than pictorial, graphic, and sculptural works, the amendments made by section 2 shall apply to infringements that commence on or after January 1, 2009.

(b) Pictorial, Graphic, and Sculptural Works- With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall–

(1) take effect on the earlier of–

(A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or

(B) January 1, 2013; and

(2) apply to infringing uses that commence on or after that effective date.

(c) Publication in Federal Register- The Register of Copyrights shall publish the effective date described in subsection (b)(1) in the Federal Register, together with a notice that the amendments made by section 2 take effect on that date with respect to pictorial, graphic, and sculptural works.

(d) Definition- In this section, the term `pictorial, graphic, and sculptural works’ has the meaning given that term in section 101 of title 17, United States Code.

SEC. 5. REPORT TO CONGRESS.

Not later than December 12, 2014, the Register of Copyrights shall report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the implementation and effects of the amendments made by section 2, including any recommendations for legislative changes that the Register considers appropriate.

SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

(a) In General- The Register of Copyrights shall conduct a study with respect to remedies for copyright infringement claims by an individual copyright owner or a related group of copyright owners seeking small amounts of monetary relief, including consideration of alternative means of resolving disputes currently heard in the United States district courts.

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UPDATE: It appears that the ASMP and PPA are in favor of the bill. Here’s a quote from an email I just received “Making a decision to support any Orphan Works Bill isn’t easy. However, both PPA and ASMP, the only two organizations representing photographers that have actively participated in these discussions, have determined that opposing the proposed House bill would place photographers at greater risk. We believe that supporting the House bill will prevent us from ending up with a law that is far worse.” Visit the ASMP (here).

Here’s the email from the APA:

BREAKING NEWS, May 7, 2008 – The House is meeting today 2:00 p.m. Wednesday, May 7, 2008, 2141 Rayburn House Office Building markup of H.R. 5889, the “Orphan Works Act of 2008″

This means that if you oppose the House Bill as it stands, it is extremely important to make your voice heard before that meeting begins.

At this time, it is understood that the House believes that photographers and other visual artists including their trade associations are in agreement with the current bills. APA opposes both the House and Senate bills as written.

Please take a moment to be heard via a prepared letter of your choice, or by including your own reasoned thoughts in a professional courteous manner.

This link (here) will allow you to be heard.
Scroll down about half way to see “For Photographers”.

It is important to be heard. It is your future.

Martin Trailer
National President

Constance Evans
National CEO

ORPHAN WORKS LEGISLATION IS BACK!

APA’s Position on the Orphan Works Act of 2008

From the onset, APA has been actively engaged in the effort to help solve the orphan works dilemma. We made public our support for the crafting of an amendment that would permit use of verified, i.e. true, orphaned works for certain uses, by way of procedures that are clearly defined in the statute or regulations, while retaining remedies for use by copyright owners in the event of abuse.

APA, in seeking to represent the best interests of its members, takes the position that the legislation offered in both bills — S.2913 and H.R.5889 — does not achieve the goal as we believe was originally intended, and instead provides a distinct road map for the infringement of contemporary works by living artists worldwide. If left unchanged, this legislation has the potential to destroy the businesses and livelihoods of thousands of photographers, other visual artists, as well as the collateral small businesses that serve the industry, and are dependent on, creators.

Therefore, APA is asking its members and all concerned individuals to take action by writing your members of Congress to voice your concerns. PLEASE go to this resource page on Orphan Works for sample letters (scroll down for the photographers’ letters) and the ability to automatically contact your specific members of Congress. Great thanks to the Illustrators’ Partnership for making this site available.

The full text of is available as a pdf download (here).

And both the House and Senate versions of the bill are available as pdf downloads on the APANational.com homepage here

Be informed. Be involved.

Thank you

APA National CEO
Constance Evans

APA National President
Martin Trailer

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Teens appear to be willing to curtail illegal downloading when told they face fines or jail time.

This finding, among many in a survey published by Microsoft (NSDQ: MSFT) on Wednesday, is the basis for the software company’s new campaign to teach teens respect for intellectual property rights.

[...]Microsoft’s survey found that about half of the teenagers surveyed (49%) said they are not familiar with the rules and guidelines for downloading content from the Internet. Only 11% understood the rules well, and of those, 82% said downloading content illegally merits punishment. Among those unfamiliar with the law, only 57% supported punishment for intellectual property violations.

[...]Nevertheless, Microsoft wants to correct teens’ woeful ignorance. To do so, it has turned to Topics Education, a developer of custom curricula, to create a curriculum called “Intellectual Property Rights Education” for middle school and high school teachers. The Microsoft-sponsored curriculum consists of Web-based resources and case-study driven lesson plans that aim to engage students about intellectual property issues.

Read about it (here). Via, Slashdot.

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Through most of copyright’s history, we had two de facto systems: industrial regulation (governing what big companies did with each others’ stuff) and folk-copyright (the rules of thumb that most of us understood to be true).

[...] We need to stop shoe-horning cultural use into the little carve-outs in copyright, such as fair dealing and fair use. Instead we need to establish a new copyright regime that reflects the age-old normative consensus about what’s fair and what isn’t at the small-scale, hand-to-hand end of copying, display, performance and adaptation.

This makes sense to me for a couple very important reasons. Your average citizen doesn’t understand or care about copyright and when an overhaul comes in the form of either a vote or some type of legislation we’re going to have a hard time convincing people that they shouldn’t do what they’ve always done. Also, giving up low end fan violations will prevent the erosion of fair use and keep other less desirable uses from getting in that door.

A commenter on Boing Boing (here) pointed me to this excellent article published in the February, 2007 issue of Harpers (here) by Jonathan Lethem.

It’s worth noting, then, that early in the history of photography a series of judicial decisions could well have changed the course of that art: courts were asked whether the photographer, amateur or professional, required permission before he could capture and print an image. Was the photographer stealing from the person or building whose photograph he shot, pirating something of private and certifiable value? Those early decisions went in favor of the pirates. Just as Walt Disney could take inspiration from Buster Keaton’s Steamboat Bill, Jr., the Brothers Grimm, or the existence of real mice, the photographer should be free to capture an image without compensating the source. The world that meets our eye through the lens of a camera was judged to be, with minor exceptions, a sort of public commons, where a cat may look at a king.

[...] A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. In this regard, few of us question the contemporary construction of copyright. It is taken as a law, both in the sense of a universally recognizable moral absolute, like the law against murder, and as naturally inherent in our world, like the law of gravity. In fact, it is neither. Rather, copyright is an ongoing social negotiation, tenuously forged, endlessly revised, and imperfect in its every incarnation.

The bottom line here is that it’s not going to be long before we see either legislation or a court ruling and photographers need to do whatever they can to achieve the best possible outcome.

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