The defendants in the copyright lawsuit brought by photojournalist Daniel Morel are seeking a ruling from the federal trial court judge limiting their damages in the case. Attorneys for Agence France-Presse AFP) and Getty Images Inc. were in court on May 7, 2013, arguing that it is unfair that they should have to pay separate penalties for infringing upon Morel’s copyright by using the photos he had posted from his Twitter account.

Morel alleges that AFP used eight (8) of his aftermath photos from the 2010 Haiti earthquake without permission and then licensed them to Getty.  In response to a declaratory action brought by the defendants, U.S. District (SDNY) Judge Alison Nathan previously found that the terms of service set forth on the social media website did not grant the defendants the rights to such use.

Lawyers for AFP and Getty claim that since they are accused of participating in the infringement together – they should only have to pay a single penalty for each infringed work - where Getty’s alleged infringement came as a result of AFP’s improper use of the photos.

“If AFP and Getty are jointly and severally liable, there can only be one damages award against them under the plain language of the statute,” said James Rosenfeld, one of Getty’s lawyers. Morel’s attorneys countered that because Getty continued to use the photos even after AFP issued a ”kill notice” to take them down, that Getty should be liable to pay separate damages. “What did Getty do? They persisted,” said Joseph Baio, adding ”the jury should be able to determine if that was a separate act.”

The judge reserved her decision for a later date. The trial is scheduled to begin on Sept. 16,  2103 and will resolve the question of damages and other claims and defenses not already decided.

The National Press Photographer’s Association (NPPA) has, in response to a Notice of Inquiry (NOI) by the Copyright Office, submitted comments on the issue of orphan works and mass digitalization. The Copyright Office has solicited comments for use in advising Congress on how to address current issues involving copyright and orphan works.

These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with contributions from board member Greg Smith and NPPA intern Joan Blazich, discuss the issues currently facing visual journalists regarding copyright and propose solutions for creating a system which would treat copyright holders and users of orphaned works fairly and efficiently.

The comments state that “NPPA is gravely concerned that in seeking to address the frustration of ‘good faith users’ of Orphan Works in order to cure their potential liability and ‘gridlock in the digital marketplace,’ the Copyright Office may create a far more serious problem for authors/owners of visual works.” The comments also note that “As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”

NPPA attorneys Osterreicher and Calzada plan to attend the Copyright Office’s public hearings on orphan works once dates and times for those hearings are announced. As more visual journalists face situations in which their images are misappropriated under an ”orphan works” claim, the NPPA proposes that if any legislation is enacted, it must include language that protects authors from predatory practices by those who would infringe upon our members’ work with impunity under the protection of a new law.

“Photographers are lucky to have advocates like Mickey, Alicia, Greg and Joan, who spend a great deal of time examining these issues and and how they will affect our members and all those who create content,” said NPPA President Mike Borland.  “The orphan works issue won’t be resolved soon and it certainly won’t be resolved properly without our voice being heard,” he added.

In accordance with that goal, the comments recommend significant limitations on what works qualify as orphans and which users would be entitled to such  protection. In addition, the NPPA advocated for registration of any uses of orphan works, along with a bond or insurance requirement to protect rights holders’ financial interests in the event they come forward to make a claim.

To read the NPPA’s comments, click here. To read the Copyright Office’s current NOI, click here. To read about previous Copyright Office inquiries on the subject of orphan works click here.

The National Press Photographer’s Association (NPPA) has, at the request of the Copyright Office, submitted comments concerning the creation of a copyright small claims court system. These comments constitute the second round of commentary requested by the Copyright Office over the possibility of instituting a small claims copyright court system.

These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with a significant contribution by board member Greg Smith and NPPA intern Joan Blazich, discusses the issues currently facing photojournalists regarding copyright and presents potential solutions for creating a court system that would permit an efficient and cost-effective method of addressing copyright small claims.

“While much of the advocacy by NPPA deals with access issues and the right to photograph and record in public; it cannot be understated that without the ability to affordably protect one’s copyright visual journalists will soon be out of business,” Osterreicher said. “That is why it is so important that the Copyright Office support a new initiative that will address this critical issue,” he added.

The Copyright Office will hold public hearings on these issues in New York City on November 15-16, 2012 and in Los Angeles on November 26-27, 2012. It is holding these discussions to learn more about the topics listed in its August 23, 2012 Notice of Inquiry and the comments submitted in response to that Notice, as well as the comments in response to the initial October 27, 2012 Notice of Inquiry.

The New York City hearings will be held at the Jerome Greene Annex of Columbia Law School, 410 West 117th Street, New York, New York 10027. The November 15 hearing will take place from 9:30 a.m. to 5:30 p.m. and the November 16 hearing will take place from 9:30 a.m. to 3:30 p.m.

The Los Angeles hearings will be held in Room 1314 of the UCLA School of Law, 405 Hilgard Avenue, Los Angeles, California 90095. The November 26 hearing will take place from 9:30 a.m. to 5:30 p.m. and the November 27 hearing will take place from 9:30 a.m. to 3:30 p.m.

NPPA attorneys Osterreicher and Calzada plan to participate in those meetings to advocate for NPPA’s proposals. As many photojournalists face situations involving copyright claims that amount to a limited amount of damages, the NPPA strongly supports the creation of a copyright small claims court system by the Copyright Office that would permit photojournalists to resolve such claims in an expedited and cost effective manner.

Read NPPA’s comments here:

The National Press Photographers Association (NPPA) has submitted comments to the Intellectual Property Enforcement Commission (IPEC) detailing recommendations that would improve copyright protection for visual images.

The 16-page document, which was submitted following an open request for comments from IPEC, highlighted numerous measures specifically aimed at giving photographers recourse when their images where pirated.

“Most photojournalists view our profession as a calling,” the comment states.  “None really expect to become wealthy in this line of work, but most do expect to earn a fair living, support themselves and their family and contribute to society. Copyright infringement reduces that economic incentive dramatically.”

One recommendation put forth in the comments was to track takedown notices for websites hosting pirated images in order to hold search engines liable when they continue to list those infringing websites in search results.  In a move indicating that this recommendation may soon become reality, Google announced on the same day that the comment was submitted, that it would drop the search rankings of sites with multiple takedown notices.

“Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site,” the Google Search blog said.  “Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily.”

The NPPA comments proposed increased accountability for Internet Service Providers (ISPs) in addition to search engines.  The comments also proposed enacting statutes targeting news aggregators and their use of hyper linking, encouraging metadata schemas that would enable easier identification of image ownership, and creating a small claims solution for copyright infringement.

The comments stressed that the loss of staff positions at newspapers nationwide and the increasing copyright infringement of images by the public have undermined the value of photojournalism and made it more important than ever that photojournalists have their images protected.

“The end result of the continued devaluation of journalism, and photojournalism, is that communities suffer,” the comment states.  “Important stories on public spending, public welfare, health and safety will not be told with the vigor and thoroughness of years past.”

NPPA’s comments can be viewed at this link.

Advocacy Chair note: NPPA Intern Justice Warren contributed significantly to this effort.

The National Press Photographers Association (NPPA) received clarification from Pikes Peak International Hill Climb (PPIHC) today regarding PPIHC’s credentialing process for photographers and its policy on copyright ownership of photographs taken at the event.

PPIHC’s clarification comes in response to a letter sent by the NPPA yesterday after photographers had expressed concerns over PPIHC photograph policies.

“I have received a number of inquiries from members concerned about the language and terms set forth in this agreement and I have my own questions regarding the applicability and propriety of these requirements and ‘grant of rights’ as they pertain to photojournalists,” said Mickey H. Osterreicher, general counsel for NPPA.

PPIHC’s “Photo Rights Agreement” states that “PPIHC owns the rights to any photos taken and copies of the photos will be provided to the Pikes Peak International Hill Climb upon request.”  The agreement further states that there is a $250 fee to obtain “2012 photo rights.”

Neither PPIHC’s photo rights agreement nor its official media guide makes a distinction between commercial and media photographers in regards to credentials and fees.  In a conversation with Osterreicher, a PPIHC spokesperson explained that the photo rights agreement does not apply to photojournalists, but only to photographers who sell their photos to the public.

Osterreicher said that, while it is encouraging that PPIHC will not charge photojournalists or assume ownership over their photos, the fact that the agreement applies to “non-commercial” photography may still confuse photographers, who typically associate the term with editorial photography.  Osterreicher also expressed concern that freelance photographers may be denied credentials, as the PPIHC credential application states that accreditation may only be issued to “approved” news organizations.

Though the application period for obtaining media credentials closed in June, PPIHC has expressed the intent to reopen the credentialing process in light of the race’s rescheduling due to the recent and widespread Colorado wildfires.  Osterreicher said that the rescheduling offers an opportunity for race organizers to clarify their policy in a way that prevents confusion and encourages access for photographers, which in turn will benefit the PPIHC with more media coverage.

According to its website, the PPIHC is the second oldest motor sports race in America.  NPPA attorney Alicia Calzada said that a general concern stemming from events such as PPIHC, which largely takes place on public roads, is that their organizers place restrictions on photography although the event is taking place in a public place where anyone has a right to take pictures.

“No permit should be needed to take pictures from public streets and sidewalks- although given safety issues inherent in racing, local police can certainly impose reasonable time, place and manner restrictions on these places,” Calzada said.

Well-known journalism commentator Jim Romesko got snagged with a cease and desist letter from the New York Daily News, and writes about it here.

Like many others, Romenesko used the Daily News’ photo of Alec Baldwin when writing about the incident between Baldwin and their photographer earlier this week.

The blogger complied with the publication’s request, which was to instead use a watermarked image that was provided with the cease and desist letter, but I’m not sure that he entirely got the point. In his post, he commented that “just out of curiosity, did you get ABC’s permission to post these photos? Or did you do as I did with your photo, which is give credit.”

While I have no idea whether TNDN was authorized to use the ABC photos (newspapers license work all the time, so I have no reason to think that they didn’t), what I do know is that any newspaper, or blogger, who thinks that they are complying with copyright law as long as they “give credit” lacks understanding of copyright law.

Some have asked whether Romesko’s use might qualify as fair use, and the answer is no. He was not commenting on the photo, he was commenting on the events in the photo. Which makes it no different than any other news photo use. Commentary on the photo would be “look at the dexterity and skill and quick response the photographer taking this picture must have had to catch this moment.”

Kudos to the Daily News for asserting their copyright and hopefully Romenesko will get permission next time he wants to use a photo. Frankly he got let off the hook pretty easily compared to some. After all, it’s what keeps the industry that he reports on in business.

Recently, I was asked to review Pinterest by Mark Loundy. I thought I would share with our readers my conclusions after signing up and reviewing the social networking site.

Photographers have two different concerns regarding Pinterest. The first is whether or not to participate in the service. The second is whether to encourage others to “pin” your photography and whether to object if and when they do.

1) Using Pinterest- by using Pinterest, you warrant that the images that you pin are yours and that you have a right to use them. This is at complete odds with the pinterest browser “pinning” tool, which enables you to grab photos from virtually any website and pin it to your “pinboard.” Photographers should be aware that they are putting themselves at risk by using Pinterest.

If you follow Pinterest’s “Best Practices” which are recommendations from the company, you are doing something called “in-line linking.” This means that you are not pulling the photo off of the site and hosting it in your site, rather you are using code to provide somewhat of a window to the host website.  Because copyright protects not just the copying, but the display of images, this could still be a copyright violation. In a very famous case from about five years ago, the Ninth Circuit held that Google was not violating copyright through its “google images” service, which utilizes in-line linking. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146, 1167 (9th Cir. 2007).  An important distinction is that google images are thumbnail images  (as are the images that propagate when you post a link on Facebook) while Pinterest posts are large images and the use on pinterest is akin to an article or content you might find on a news website. Furthermore, unlike Google Images, Pinterest does not provide a transformative service like the Google image search, rather it enables average users to use photos in a way that they would also be used in the marketplace.  So while there may be some defenses available to the Pinterest user, there is no guarantee that it would apply.  Photographers who use Pinterest must realize that they are probably violating copyright when they post others’ images.   Like everything, a decision to use Pinterest should involve a risk – benefit analysis.

2) Being the subject of “pinning.”

If you want to avoid being subject to “pinning” there are a couple of options:

1. Pinterest has a code that you can insert into your website’s html code that blocks pinning. The addition is <meta name=”pinterest” content=”nopin” /> (with the brackets), and is found in the help section of pinterest.
2. The problem with relying on “opt out” is that this is not the way copyright works. Google books has a similar “opt out” policy and I believe that both policies turn copyright on their head. Copyright works by requiring the user to get permission from the copyright holder. The concept of copyright falls apart if you require the copyright holder to opt out of every potential user who had developed an opt out policy.
3. You can also use a web company, software or code that is resistant to in-line linking, such as PhotoShelter’s website service. This is a better solution as it protects you not only against pinterest, but similar services. With new social media companies popping up every day, your best bet is to display your images in a manner that makes them difficult to rip off, but that still provides good SEO.
4. Of course these options are only helpful with websites that you control, which still leaves you out in the cold in regards to the work that you have licensed to a client for use online. There is also a DMCA takedown procedure for pinterest.

Many photographers have decided that Pinterest has value that makes it worth allowing pinning.  Whether or not you want to allow it is a personal decision that should be based on your business model.