Category "copyright"

Exit Through The Gift Shop Star Mr. Brainwash Sued By Photographer

- - Art, copyright

If you haven’t seen the Oscar nominated documentary Exit Through The Gift Shop it’s well worth checking out and available to stream on Netflix. The film tells the story of Thierry Guetta AKA Mr. Brainwash a French appropriation artist who many believe is simply a made up character/actor created by British graffiti artist Banksy. The film also stars Shepard Fairey and goes into good detail on the history and rise of street art. What’s fascinating, if you read up on the hoax theory before watching the film, is that Banksy might have pulled off an elaborate modern “Emperor’s New Clothes” tale and certainly Guetta and to some degree the popularity of street art reads that way in the film.

Last week The Hollywood Reporter uncovered an ongoing lawsuit between photographer Glen E. Friedman and Guetta for his use of an iconic Run DMC image and THR draws parallels between the now settled AP vs. Fairey lawsuit. In an article for Boingboing (here) Sean Bonner explains why this use would not be considered “Fair Use” but the Fairey use would. It all hinges on the Friedman image being iconic where the Mannie Garcia image is thought of as “a random press image.” My problem with this perfectly logical argument is that you’re creating a new gray area for a type of use (fair) that is full of gray areas. At what point does an image become iconic or a clearer way of looking at it, at what point does it have value. Fairey admitted that he looked a thousands of images before settling on the perfect one (Garcia’s) so that indicates value. Any image an artist decides to use immediately has value, so in my opinion if an artist want’s fair use they need to transform it into something else or only use a small piece. Deciding if it has value is impossible and certainly not something we want the courts to decide. Visit the MOMA to see a blank canvas, ripped canvas and canned shit if you think otherwise.

Picture 3

Morel vs AFP and Getty: New Developments

- - copyright

For those of you following the case of Daniel Morel vs AFP and Getty there’s been a not-so-surprising ruling by the judge (on December 23rd) after AFP/Getty asked him to throw out the case.

To recap, Daniel Morel photographed some of the first images from the Haiti earthquake and posted those images on Twitter using a service called TwitPic (twitter has no images). All news agencies monitor twitter for breaking news so when AFP saw the images they tried to license them but were unable to reach Morel so they downloaded them and distributed them anyway (allegedly).

AFP hilariously tried to argue before the judge that they had a license to distribute the images because of the Twitter and TwitPic terms and conditions grants 3rd party licenses. In the transcript you can sense some incredulity coming from the judge as he questions their reasoning on this:

THE COURT: What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN: That’s true. There is a difference between owning a copyright and having a license granted. No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics. We have never argued that. We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties.

THE COURT: Mr. Kaufman, were there a number of news sources who asked Mr. Morel to pay for his pictures?

MR. KAUFMAN: Um-hmm.

THE COURT: Is that a yes?

MR. KAUFMAN: Yes, that is a yes.

THE COURT: Oh, good. All right. So if you want to apply your argument about what everybody else is doing, there were numerous news sources who were paying, right?

In this latest ruling Judge Pauley writes:

By their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to “Twitpic.com or affiliated sites.” AFP and the Third-Party Defendants do not claim they are partners of Twitter of affiliates of Twitpic licensed under the terms of service. Moreover, the provision that Twitter “encourage[s] broad re-use of Content” does not clearly confer a right on the other users to re-use copyrighted postings. Rather, that permissive language stands in contrast to the express, mandatory terms conferring a “license” and “rights” on Twitter. (See Twitter TOS at 2 (“you grant us a worldwide, non-exclusive, royalty-free license”); Twitter TOS at 3 (“you agree that this license includes the right for Twitter to make such Content available to other companies….”).) Although courts may find a license on a motion to dismiss where “[t]he terms for the governing contracts are clear,” Jasper, 378 F. Supp. 2d at 339, Twitter’s terms of service do not meet that standard. Accordingly, AFP and the Third-Party Defendants do not meet their burden to establish that they had a license to use Morel’s photographs.

and further down

However, AFP and the Third-Party Defendants do not claim that they were partners of sublicensees; rather, they characterize themselves as “users.” Moreover, the fact that Twitter “encourage[s] broad re-use of Content” does not “necessarily require” a Twitpic user to license his photographs to other users. That language is ambiguous and insufficient to establish on the pleadings that Morel “understood that the promisee [Twitter] had [the] intent” to confer a license on other users.

You can read the ruling here.

I’ve argued here before, that sitting on the sidelines as these new technologies develop is bad news for photographers. The founders of Twitter and many other social media applications create these services with the intent of shaping them to fit their users needs. That’s become business 101 in the 21st century. The more professional photographers use these services the more they can represent the needs of those users.

For further reading on the subject I recommend the BJP Blog, Photo Attorney and David Walker.

Combating Online Infringement and Counterfeits Act

- - copyright

Dear Copyright Advocate,
This letter is about a bill that has been introduced in the Senate that will combat online infringement of copyrighted works. It’s called the “Combating Online Infringement and Counterfeits Act” or “COICA”. ASMP encourages you to sign a petition in favor of the bill.
Though some photographers have already done this, our efforts have not been enough.
The opponents of this bill have been active in mobilizing the masses to speak out against it. The result of their efforts is that it seems like the public is against this bill. Yet, we all hear everyday about how websites are illegally posting your creative works for others to take and how this affects your livelihood.
This bill would benefit all artists and creators! TAKE ACTION TODAY! Stand up for your rights!

WHAT CAN YOU DO?

  1. Speak up on blogs and listservs. Artists who speak out in favor of the bill on a website are often verbally attacked. Musicians, photographers and other artists need your support on this effort. Post blogs and comments on your own websites or on websites where you see these attacks.
  2. Contact your Senator and House Representative. Tell your congressional representatives to vote YES to the bill. Tell them your story and how piracy and infringement affect you.

    To find and email your Senator, go here.
    To find and email your House Representative, go here.

  3. Tweet this: Stop online piracy of art, music, movies, books, all creative works. Vote yes to Combating Online Infringement and Counterfeits Act #COICA
  4. Facebook this: The U.S. Congress is debating a bill that could help millions of artists around the world. If passed, the bill would allow the government to target and shut down “internet sites dedicated to infringing activities” which are “primarily designed” to access unauthorized copyrighted material. Tell your representatives to vote YES to the Combating Online Infringement and Counterfeits Act (COICA).

WHAT IS THIS BILL ABOUT?

  1. Check out this short video by independent filmmaker Ellen Seidler as she talks about how websites that are illegally hosting her movie are profiting. Yet, she is losing money. This bill will help shut down websites like these.
  2. The bill will not target minor violations of copyright. It will target “internet sites dedicated to infringing activities” that are “primarily designed” to offer or provide access to copyrighted material “without the authorization of the copyright owner.”
  3. The Attorney General will be able to request a court order to suspend the domain names of U.S.-based infringing websites. For non-U.S.-based websites, the Attorney General will be able to request a court order to require the ISPs to block the website. Credit card companies and networks providing ads to these sites will also suspend all activity with the infringing sites.
  4. A list of all the domain names that are found to be infringing copyright protected content will be posted on a “publicly available Internet site, together with other relevant information, in order to inform the public.”

REMEMBER PILFERED MAGAZINE?
Last February we made you aware of Pilfered Magazine, an online magazine that freely took images from photographers without their permission and didn’t credit or compensate the photographers. Because of your emails, Tweets, and postings on blogs and Facebook, the magazine was shut down in a weekend and has never reopened.
It is important that we take collective action on this bill too. Pilfered is not the only website that hosts and offers infringing material. This bill will help remove other websites like Pilfered from the internet.
ONE VOI©E: SPEAK UP FOR CREATORS’ RIGHTS

via, Jock Bradley

AFP v. Morel – Oral Arguments

- - copyright

There’s a transcript available from the oral arguments in the case where Agence France Press, Turner Broadcasting/CNN, ABC, Getty Images and CBS are suing Daniel Morel after they stole his images from Twitter immediately after the Haiti earthquake (Read all about this on BJP).

The transcript is available on the duckrabbit blog (here) and I would encourage you to visit and see what he’s got to say about it. He’s also done an excellent job engaging JF Leroy (Director of the Visa Pour L’Image photofestival) in a debate over Daniel Morel’s posting of valuable news images on TwitPic/Twitter. JF told the British Journal of Photography (BJP) “Photographers have to accept their responsibilities. You can’t put your images on Twitter and not expect them to be taken up by others” and duckrabbit has hounded him about this statement and gotten several responses (latest one here).

Obviously this is going to be an important case for photographers so I’m posting the latest developments as they come here. Of great interest to me is how content distributors are suffering because of the ease at which content moves on the internet and they’re fighting hard to claim some kind of right to distribute un-credited things floating around. Obviously this is not how copyright law works so they’ve not got a leg to stand on but it’s interesting to see how their lizard brain works in the oral arguments:

THE COURT:  What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN:  That’s true.  There is a difference between owning a copyright and having a license granted.  No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics.  We have never argued that.  We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties. Twitpics doesn’t talk about third parties.  It is silent as to that.  So you look to the other part of the equation, the Twitter, which does specifically talk to Twitter’s use, its partners’ use, and the user’s use. And it says when you put — other social networks and other sites don’t have this language.  You can — if you look at one or the other, this language happens to be very broad. It is what Twitter and Twitpics are all about.  It is the broadcast — re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it’s what people do at these sites.  It is not matter of stealing.

I don’t expect someone holding a photography festival in the south of France where content is shown to prospective clients in person to like or understand what is going on here just as I would expect AFP to be very aggressive in finding a way to make money off distribution of content, even if that mean stealing it. I only hope Twitter takes notice to what is going on here and that photographers rally around Daniel and that we try to turn these new social tools into something useful and profitable for photography.

There is the conclusory assertion that ABC removed copyright management information, but all of the exhibits in the complaint itself or in the counterclaims themselves show that there was no copyright management information on the photo, there was no copyright management information that would have come along with it when you download it, and therefore nothing was removed.  There is no case that says that you have to reach out and add additional information that may have appeared elsewhere on the page, and that allegation of violating through the removal of copyright management information doesn’t state a claim absent something there that was actually removed, which couldn’t have happened.  And if we downloaded and saved, we got what was there.  Whether we should have taken it or shouldn’t have taken it is a different issue and will come up later in the case.  But for the purposes of copyright management information, if you look at all of the exhibits depicting the image, there is no copyright management information on it and no case says we need to also pull information from elsewhere on the page.

MS. HOFFMAN:  The only thing I wanted to say is that all of the defendants here aggressively defend their own copyright and that the — that the claim that I just said, that Mr. Morel — and it probably is not worth repeating — but when Mr. Morel put up those images, it is not really any different than ABC, CBS, CNN wanting everybody to come to their sites to watch the Olympics or the tennis championships, and they aggressively defend copyright in those programs, even though they want all the world to see it, for the purpose of selling sponsorships.

Oh, the irony.

Daniel Morel And AFP Go To Court Today

- - copyright

Photographer Daniel Morel whose Haiti images were swiped off Twitter by Agence France-Presse is going to court today “in a case that could set precedent in online copyright legislation and impact photographers around the world.”

AFP has been joined in its claim against Morel by Getty Images, CNN, ABC, and CBS. Together they’re asking the court to rule the the photographer should not be allowed to pursue his claim that they stole his Haiti earthquake images.

Read about it on nppa.org and also my previous post (here).

Print Your Friends Facebook Photos

- - copyright

Photographer Rob Greer let me know about this potentially troublesome feature Walmart, Target and other online printing outfits are adding where you can print your friends facebook photos. I assume this will not be allowed if there is enough objection to it, so let them know what you think. I found this video describing a way to block the feature:


via.

Cheap Music For Your Videos

- - copyright

A lot of photographers are making videos now. Many of the videos I see and get sent are using copyrighted music which clearly has not been licensed, which is lame. When I saw this new service called Friendly Music that is looking to “reduce the inefficiencies of the music licensing business” I thought I’d highlight it for everyone. Now, for $1.99 you can buy a non-commercial license to go on your BTS and test videos and continue to live by the Golden Rule.

Friendly Music lets you upload your videos to YouTube or other websites without having to worry about whether they’ll be muted or taken down because of the music they contain. Friendly Music gives you over 30,000 copyright-cleared songs to choose from by artists from all over the world.

friendlymusic

Sam Abell’s Cowboy Photo For Sale Again *not by Sam

- - copyright

Jen Bekman is selling the Sam Abell cowboy picture, that was originally shot for Marlboro cigarette advertisements, as part of her 20 x 200 project (here).  Compared to the prices Richard Prince’s prints fetch (millions) these seem quite reasonable at $20 for the small and $1000 for the large. And, hey none of these snobby art world small editions either, there’s 730 total available in all the different sizes. Incidentally the photographer/artist on this run is Greg Allen. He’s got a post up (here) explaining his actions where he states:

I have no claim on the image, or the idea, or the technical skill of making them, and yet I feel incredibly proud of these prints, which are these beautiful, physical things.

Of course I’m writing this all tongue-in-cheek because it seems sort of absurd and dangerous for someone who sells photography for a living (Jen) to endorse printing and selling jpg’s you found on the internet (say, the 20×200 website). Then again I’ve heard a few photographers comment that they’d like to get back at Prince by reselling what he’s selling. So, there you have it.

Picture 1

Here’s Sam talking about Richard Prince from a PDN interview:

Update: AP vs. Shepard Fairey

- - copyright

I just saw this update in the AP lawsuit against Shepard Fairey:

The judge presiding over the ongoing lawsuit between street artist Shepard Fairey and the Associated Press concerning the use of a photo of then-candidate Barack Obama told the parties they should settle and that “sooner or later” the wire service would prevail, the AP reported. But it didn’t convince the opposing sides, who appear as ready as ever to see the case through to at least the next level.

via paidContent.

AFP Steals Photographers Haiti Images Then Sues Him

- - copyright

Ok, this one is strange but follow me for a moment because this could be a big case for photographers.

Haitian Photographer Daniel Morel was in Port au Prince when the earthquake struck and captured some of the first images of the destruction that he then transmitted out. An amazing effort was made by Daniel to get the images out under the circumstances and he used Twitter to do it.

APF (Agence France Presse) found the images after another twitter user stole them from Daniel’s account. APF download the images and distributed them with that other users name in the credit. The images appeared on newspapers world-wide.

Daniel went after AFP, Getty and those who used the images for copyright infringement. AFP is apparently suing Daniel for “antagonistic assertion of rights” because of  the way he pursued the copyright infringers using attorney Barbara Hoffman.

You can read AFP’s complaint and Morel’s answer over on Dan Kennedy’s, Media Nation. I originally found the story on 100 Eyes Blog.

What’s interesting is that AFP is claiming the Twitter TOS, where he gives Twitter “a nonexclusive license to use his photographs” gives them the same right. Not sure how they came to this leap of faith where images distributed by twitter can be printed on the front pages of newspapers, but we will soon see what the court thinks about it. I’m also surprised that they didn’t go for a fair use defense. The courts have ruled both ways when newsworthy images are used without permission and generally news organizations will place getting the images in front of their viewers well before clearing the rights. You can read more about that on the Photo Attorney blog (here) where Carolyn writes “it’s clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.”

What’s clear is that professional photographers need a method for releasing images in these types of situations and that AFP is used to bullying citizens when swiping images from social networks to distribute over the wire and when they ran into a pro they got the horns.

UPDATE: Getting more interesting. Images uploaded to TwitPic and linked in twitter. TwitPic has a T&C that says © remains with the photographer. Story here: http://www.1854.eu/2010/04/agence_france_presses_slap_to.html

Freelance Writers And Photographers In A Standoff With Bauer Publishing

- - copyright

Bauer, a German-owned publisher which bought music magazines Kerrang!, MOJO and Q in December of 2007 from Emap is trying to impose a new contract on freelancers working for those titles. Over 200 contributors to the three magazines have refused to sign the new contract which contains clauses that “provide Bauer with an unlimited lifetime financial indemnity in the event of legal action arising from their work” and “to acquire licenses from their subjects for the company to use their image for its own profit as and when it wishes.”

In a cover letter delivered with the contracts, Bauer issued the ultimatum that after April 16th any contributors who do not sign will no longer be commissioned.

Here’s a copy of the contract someone sent to me a month or so ago:

BauerContract

I received a press release signed by several of the freelancers standing up to Bauer that states:

A committee of the freelances affected has been attempting to enter into dialogue with Bauer since the first draft was issued late in February, but the company has rebuffed every overture. “Their behaviour is bizarre and counter-productive,” says Iggy Pop’s biographer Trynka, who was previously responsible for overseeing MOJO and Q syndication and contracts. “As contributors, we share Bauer’s need for their titles to remain profitable, and are offering Bauer permission to use some material on the iPad and similar digital platforms for no extra payment.”

Attempted rights grabs like Bauer’s are far more than an assault on a specific group of music writers and photographers – they undermine the viability of freelance journalism as a whole. Freelances bear a significant proportion of the risk in most media businesses because, behind their commission-by-commission availability, they pay for their own equipment, office space and training. Without any of the statutory sickness, holiday, maternity and paternity pay rights of staff, the only asset their work produces is their stock-in-trade: copyright ownership, as acknowledged by UK law. Will Bauer’s magazines sell more copies if they push these contracts through, so losing the services of many of their most expert, reliable and popular contributors? Will musicians and other showbusiness talent stand idly by and see their quotes and photographic likenesses commoditized and put on sale by a publishing company? In business terms, it doesn’t make sense.

More at British Journal of Photography and London Freelance.

The other magazines Bauer purchased from Emap, include Empire, Heat, Closer, Grazia, Max Power, MCN, Match!, FHM and Zoo. All are expected to see a similar contract unless this one is defeated.

UK Photographers Defeat Clause 43, US Photographers Sue Google

- - copyright

Yeah, what up mutherf-ers. Don’t be messing with photographers.

Thanks to the work of thousands of photographers up and down the country, campaigning and writing letters to MP’s we have defeated the offending Clause that would have had a devastating effect on the livelihoods of freelance photographers.

via, London Photographers Branch.

On Wednesday, the American Society of Media Photographers and other groups representing visual artists plan to file a class-action lawsuit against Google, asserting that the company’s efforts to digitize millions of books from libraries amount to large-scale infringement of their copyrights.

via, NYTimes.

UK Close To Approving Orphan Works

- - copyright

Several readers alerted me to The Digital Economy Bill (here) in the UK which contains Orphan Works language that “will allow the commercial use of any photograph whose author cannot be identified through a suitably diligent search.”

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.

Photographers- How To Deal With Infringements

- - copyright

I received this note from a reader:

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.

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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.

The Other Side Of Fair Use

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Most discussions about fair use revolve around people wanting to use photographs without paying or obtaining permission for the use. Of course there’s another side to fair use that photographers benefit from, which is when a picture has copyrighted or trademarked material in it.

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.

A Secret Copyright Treaty

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I’m not sure how much of this is true but Cory Doctorow at Boing Boing is reporting that a secret copyright treaty has been leaked (here) and there’s some very interesting language in the draft text (again, who knows if it is true):

“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.

Shepard Fairey Admits He Lied About Which Photo He Used

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FaireyvsGarciaIn a strange twist to an important case with strange twists (photographer Mannie Garcia claims AP has no rights to the image) Shepard Fairey admits that the image he used for his iconic poster was the image that everyone and their dog knew he used: The image that’s an exact match to the poster.

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.