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Photographers vs. NFL, AP & Getty: 2nd and 7

December 20th, 2013 by Mickey Osterreicher and tagged , , , ,

*********UPDATE****************

U.S. District Judge Robert W. Sweet ruled on August 13, 2015 that the photographers must amend their complaint prior to appealing the dismissal of their copyright claims to the U.S. Court of Appeals for the Second Circuit. The court declined to enter a final judgment in the matter, which it had dismissed last March, finding that the plaintiffs may replead their case and that a revised contract claim on the licensing agreements might avoid the need for a Second Circuit review.

“The plaintiffs indicate in their briefing that they intend to argue that the contracts ‘were invalid and unenforceable due to duress, coercion, unconscionability, and fraud’ and the court’s March 27 Order indicates that the argument may have significant merit,” Judge Sweet wrote. “A finding in the plaintiffs’ favor on their contract claims in the district court would thus significantly alter — or perhaps moot — their copyright claims in the Court of Appeals, rendering certification improper.”

In his ruling Judge Sweet noted that to preserve their copyright issue for appeal, the plaintiffs should “simply restate their copyright claims in their new complaint,” which could later be presented to the Second Circuit at the appropriate time. The court also granted a motion by Getty Images to compel arbitration of contract, copyright and antitrust claims which the plaintiffs are now pursuing.

In March the court granted the plaintiffs 20 days to file a new complaint and then approved a three-week extension for the amended pleadings to be filed. Then in May, the defendants claimed the photographers had missed that deadline and the case should finally be dismissed. But the judge disagreed, finding “the plaintiffs’ diligence in this case has been more than adequate, particularly as they have represented that they are prepared to file their second amended complaint within 48 hours of this motion’s resolution.

********* UPDATE ***************

U.S. District Judge Robert W. Sweet dismissed the lawsuit in a 129 page redacted Opinion finding that agreements between the NFL and AP along with Getty that allow the NFL to use photos royalty-free are not anticompetitive, writing “plaintiffs have failed to allege a plausible product market limited to NFL-related photographs at this juncture.”  He also found that  the photographers lacked standing and are barred from suing under antitrust laws “because their injuries are too secondary and indirect.” The judge also rejected the photographers’ claim that they “directly compete” with Getty and AP. “Plaintiffs are neither consumers nor competitors in the alleged market for commercial licensing of NFL-related photographs,” Judge Sweet wrote. “Indeed, the [amended complaint] clearly states that plaintiffs have always licensed the photos that they shot ‘on spec’ through third-party licensing agents . . . as such, Plaintiffs argument on this point must fail.”

The court also found that “while each Plaintiff retains copyright in his photos, he provides a broad copyright license to AP in all of his photos that are not rejected by AP.” Such a license allows the AP to “copy, disseminate and otherwise use” those photos. The judge noted that while their agreement requires AP to pay a royalty when it licenses the use of the photographers photos, it does not require that any royalty be paid where the AP receives no licensing fees itself. “the AP Contributor Agreements do not require AP to license the contributors’ photographs to third parties only through a ‘sale’ that would generate revenue and therefore royalties.” Judge Sweet wrote. “Nothing in the AP Contributor Agreements requires AP to issue only royalty-bearing sublicenses.”

The judge also dismissed the photographers’ copyright claims against the NFL because the agreement provided the AP with a valid license to use their images.

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In October seven photographers filed a copyright infringement lawsuit against the NFL, Getty Images and the Associated Press. This week the defendants responded with a motion to dismiss. The plaintiffs are Paul Spinelli, Scott Boehm, George Newman Lowrance, David Stluka, Paul Jasienski, David Drapkin and Thomas E. Witte.  They claim, among other things, that if they wished to continue licensing their NFL images for commercial uses, “they were forced to transition their NFL content from Getty Images to AP who had the contract with the NFL.” In turn, the complaint alleged that “Getty Images threatened to remove Plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with Plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after the expiration of its commercial licensing deal with the NFL.” The complaint stated “Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the exclusive rights to license NFL content in the future.” 

The photographers also viewed Getty’s threats as “a blatant attempt to leverage its exclusive licensing agreement with MLB and other sports entities in order to force Plaintiffs to leave their NFL content with Getty Images” and “Because certain Plaintiffs had significant non-NFL content at Getty Images, including significant MLB photo collections, Getty Images’ position forced Plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”

In its motion to dismiss the NFL claimed that the use of the photos “was fully within the scope of” its licensing agreements the AP  and Getty. AP claims in its motion to dismiss the lawsuit that the contracts it made with the photographers “licensed AP to make the uses of plaintiffs’ photographs” and also “authorized AP to issue sublicenses” to the NFL and others. In its motion, Getty also sought to dismiss the case and to “compel arbitration or in the alternative to stay the action.” Getty claims that its agreement with the photographers requires that they “arbitrate their disputes” and that the case should be put on hold “pending final resolution of the arbitration” in the event that the court does not grant the motion to dismiss.

Read the filed complaint here.

Posted in AP, copyright, copyright infringement, Getty Images, Motion to Dismiss, NFL, Photographers' Rights | No Comments »

NPPA Joins in Brief Supporting Photographer in Pivotal Copyright Case

December 18th, 2013 by and tagged , , , ,

The NPPA joined several other photographer and writer advocacy groups today in filing legal documents urging a New York judge to find that an artist who used a photographer’s images in art exhibits without permission did so in violation of copyright law.The decision in the case represents a test of a key legal doctrine, and will hopefully both clarify and place a reasonable limit on the “fair use” defense, which allows use of an otherwise copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research.

In 2007 and 2008, artist Richard Prince altered and incorporated 30 of Patrick Cariou’s pictures into paintings and collages displayed in St. Barth’s and New York City.  Cariou captured the images, which appeared originally in his Yes Rasta collection, over the course of six years living amongst Rastafarians in Jamaica.  When Cariou discovered Prince’s work, he sued the artist for copyright infringement.

Prince defended the 2008 suit under the fair use doctrine, arguing that by incorporating the images into a new context, a collage or painting, he had “transformed” the pictures sufficiently to claim fair use. A U.S District Court judge disagreed, holding that the art did not transform the images in a manner that was meant to critique or otherwise comment on them.

The district court’s decision was almost completely overturned earlier this year, when the Second Circuit of the U.S. Court of Appeals found the lower court had applied an incorrect legal standard.

The court found that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative” and that 25 of the photographs Prince used were protected as fair use.  The remaining five images presented “closer questions” the court said, as alterations to their physical appearance was minimal. See earlier NPPA story here.

The question of whether or not a work is “transformative” is central to a fair use analysis, the court noted, as transformative works … lie at the heart of the fair use doctrine’s guarantee of breathing space.”  Applying an inclusive definition of the doctrine, the court found that a work could qualify as fair use even if it is not one of the aforementioned uses included in the copyright statute. The Second Circuit found that all that is required is that the work communicates “new expression, meaning, or message.”

Now, as the District Court prepares to reconsider copyright claims related to the remaining five works, the NPPA along with the American Photographic Artists, American Society of Journalists and Authors, American Society of Media Photographers, Graphic Artists Guild, Jeremy Sparig, Picture Archive Council Of America and Professional Photographers of America have all joined in amicus brief in support of Patrick Cariou in that the defendants in this case have not met their burden under the fair use defense with regard to the five paintings being considered on remand. 

NPPA General Counsel Mickey Osterreicher articulated this position in an affidavit to the court as part of the brief drafted by attorney David Leichtman of the law firm of Robins, Kaplan, Miller & Ciresi, LLP. “If a lawsuit is brought [under the Second Circuit’s standard] , original photographers seem to be facing a judicial system that continues to eviscerate their rights as copyright holders by ruling more and more unlicensed derivative uses as “fair use,”” Osterreicher said, “However, fair use was not meant to be an offensive assertion permitting infringers to believe that they have the right to misappropriate and infringe on copyright holders’ rights with complete immunity.”

Osterreicher also noted that a broad interpretation of the fair use defense threatens critical economic models of the photography industry, and categorically protecting works like Prince’s from claims of infringement sets a dangerous precedent.

“Along with inclusion in various media, NPPA members make images available for licensing for uses such as those of the works created by Prince. If Prince needed an image of Jamaica, or Rastafarians, these images could have been, and should have been, lawfully licensed easily and for the appropriate standard license fees,” Osterreicher said, adding, “Any image has the potential to be licensed for multiple purposes. To isolate ‘art reference’ or ‘art’ as special classes of use that no longer require any licensing, weakens the licensing model and opens the door to more and more unlicensed uses.”

Appropriately cabining the fair use defense is especially important today, in an environment where monitoring infringements is increasingly difficult, and their economic toll continues to mount.

“NPPA members must shoulder the burden of policing infringements while at the same time seeking and fulfilling photographic assignments, working on self-initiated projects and maintaining all of the tasks of running a 24/7 business. For many, losses due to infringement have been devastating,” Osterreicher said.

The NPPA will continue to monitor the case and report on any significant developments.

 

Posted in Access, copyright infringement, Daniel Morel, Fair Use, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Smithsonian Security Guards Confront Photographer Filming Protest

December 10th, 2013 by and tagged , , , , , , , ,

A veteran photographer is looking for answers after he was accosted by Smithsonian security guards while recording fast food workers protesting at the museum last week.

Kristoffer Tripplaar was at the Smithsonian’s Air and Space Museum to document workers who walked off the job and picketed Thursday as part of a national campaign demanding higher wages. Tripplaar was recording a confrontation between security officers and a fellow photographer, when he says he was pulled into the fracas.

Tripplaar says it started when a security guard pushed the other journalist towards him.  Worried that his equipment would be damaged, Tripplaar leaned forward to take the incoming blow with his body, and in the process collided with the officer.  A second officer quickly approached, claiming Tripplaar had struck his colleague, and a third tackled the photographer to the ground.

Tripplaar says the violent exchange was completely unwarranted, telling Photographer Is Not a Crime “I can’t emphasize enough that I did not lay a finger on the officer.”

Video of the incident shows three officers smothering the photographer, who appears to be trying to protect himself and his equipment.

Tripplaar’s description of the acting supervisor’s reaction to the incident seems to confirm that the security guards overreacted:

“As I was on the ground a security officer that identified himself as a supervisor came over, told them to let me go and offered to help me up. I told him I would not get up until he made the three security officers back off because I was afraid they would grab me again. Once they backed off, I got up and went back to photographing the protest.”

But the ordeal wasn’t over yet:

“Once the protest inside the food court wound down, I approached the supervisor who had helped me to ask for the names of the officers who had grabbed me, one of which was standing next to him. When I did that they both began pushing me towards a door saying it was time for me to leave.”

Tripplaar has contacted the Smithsonian’s press office to file a complaint, and says he’s shocked by the guard’s behavior.

“I’ve been doing this for almost ten years. I cover everything from the White House to the Capitol. I’ve done countless protests, some of them got pretty heated and a little pushy. And I’ve never, ever, ever had something like this happen to me. Ever.”

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »