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    New Copyright Compendium bans works produced by “nature, animals, and plants” and implicitly uses monkey selfie as example

    September 3rd, 2014 by and tagged , , , , , , ,

    In the recently released U.S. Copyright Compendium, which lays out regulations about the registration process for copyrights, one sentence stood out from the rest of the 1200-page document, and is as follows: “The Office will not register works produced by nature, animals, or plants, which includes a photograph taken by a monkey.” It stood out because three years ago, David Slater, a British photographer, traveled to Indonesia to photograph monkeys. While there, he had his camera snatched by a monkey and the monkey ended up taking some amazing photographs with his camera. Slater published these photos, and later discovered that one of them was published on Wikipedia without his permission. Slater wanted the photo taken down, and while Wikipedia at first complied, another editor later revisted the decision and reposted the image, because the editor took the position that the photo was taken by the monkey and not Slater, thus making it public domain. A lively debate over whether Slater owned the copyright ensued. Slater maintains that he owns the copyright, noting that “there are many wildlife photographers that regularly employ animals to push the shutter button.  Pressure pads, trip wires, beam splitters – all devices attached to a camera that allows an animal to ‘take’ a photograph. In my case it was an attached cable release.”

    For an interesting analysis of the Compendium and the monkey selfie see: “Return to the Snapshots of the Apes,” by Terry Hart. Also see: “Wikimedia Says When a Monkey Takes a Selfie, No One Owns It,” by Louise Stewart. For a tongue-in-cheek read on what the monkey had to say see:  “A Statement Statement From the Monkey,” by Bill Barol.

    It is important to remember that the policy set forth in the U.S. Copyright Compendium is not binding upon the U.S. Copyright Office or the Register of Copyrights. It is only “the administrative manual of the Register of Copyrights concerning Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations, and provides instruction to agency staff regarding their statutory duties and expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.”

    While the Compendium is not law, it certainly does influence law making in the realm of copyrights. Therefore, concerned photographers should comment on the Compendium, through the federal register. According to the Copyright Office the Compendium “will remain in draft form for 120 days [from August 19, 2014] pending final review and implementation, taking effect on or around December 15, 2014.” The public may submit comments to the Copyright Office regarding the Compendium up until that date.

    Editor’s note: This article has been edited to clarify that Wikipedia initially complied with the takedown request, and later changed its mind, and to include a quote from David Slater.

    Posted in Cameras, copyright, copyright infringement, multimedia, photographers, photojournalism, U.S. Copyright Office | No Comments »

    Photo Agency Sues Blog for Copyright Infringement

    January 7th, 2014 by Mickey Osterreicher and tagged , , ,

    Mavrix Photo has filed a copyright infringement lawsuit against RollingOut.com and its owner Steed Media Group Inc. for publication of photographs of Beyonce and Kim Kardashian without its permission, consent or license.

    The complaint, filed on January 3, 2014 in the United States District Court for the Central District of California Southern Division, alleges among other things that the Defendants “have driven significant traffic to RollingOut.com in large part due to the presence of the sought after and searched-for celebrity images that frame this dispute. All of this traffic translates into substantial illgotten commercial advantage and revenue generation for Defendants as a direct consequence of their infringing actions.” The complaint further alleges that “Defendants’ acts of infringement are willful because, inter alia, the Defendants are sophisticated publishers with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation.”

    According to its website Mavrix Photo was formed in 1996 and “is a Global Celebrity News Photo Agency with an Online Image Database of more than 435,000 images and thousands of video clips.”  Steed Media Group is a print and digital advertising company “prevalent in most urban markets around the country.”

    Mavrix is demanding a jury trial and is seeking actual damages and statutory damages for willful infringement of at least $150,000 per photograph.

     

     

    Posted in Beyonce, California, copyright, copyright infringement, Kim Kardashian, Lawsuit, photographers, photojournalism | No Comments »

    AFP and Getty Seek To Limit Damages in Photographer Copyright Suit

    May 8th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

    ****** UPDATE 8/8/13

    According to reports the Washington Post Company, one of the last remaining defendants in the AFP v Morel copyright infringement case, is close to reaching a settlement agreement with Daniel More, who claims that the publisher used his photos of the 2010 Haiti earthquake without his permission. It also appaears that the other defendants, Agence France-Presse and Getty Images, Inc., cannot reach agreement and are expected to go to trial on Septmeber 16, 2013 in front of U.S. District Court Judge Alison J. Nathan.

     

    ****** UPDATE  5/22/13

    A federal trial court judge limited Mr. Morel’s damage claims against AFP & Getty finding that they are jointly but not individually liable because Getty’s alleged infringement stemmed from that of AFP.  Therefore they should not be held liable to pay separate penalties. This is a clear rejection by Morel that Getty should be held separately liable because it continued to use the photos after AFP’s”kill notice” to take them taken down.

    The decision reduces Morel’s damage claims to eight — with a possible award for each one of those claims rather than the multiplier factor Morel had proposed.

    “As with individually liable infringers, the statute authorizes a single statutory award per work for all infringements in an action against jointly and severally liable infringers, regardless of temporal or casual breaks in the course of those parties’ infringement of a given work,” said U.S. District (SDNY) Judge Alison Nathan.

    Morel’s attorney, Joe Baio, said that while he was disappointed in the ruling, he was please that the court “reaffirmed” the liability of the defendants and that Getty’s continued use of his clients photos despite the kill order may also support willful infringement finding.

    ********

    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.

    Posted in AFP, Agence France-Presse, copyright, copyright infringement, Daniel Morel, Getty, Lawsuit, photojournalism, Twitter, Washington Post | No Comments »

    Photojournalists and Pinterest

    June 19th, 2012 by Alicia Calzada and tagged , , , , ,

    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:

    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 at this link:https://en.help.pinterest.com/entries/21063792-Prevent-pinning-from-your-site.

    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.

    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.

    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.

    Posted in contracts, copyright, Photographers' Rights, photojournalism, social networking | No Comments »

    DC Taxicab Commission Adjusts Open Meetings Policy- Expressly Permits Recording

    August 4th, 2011 by Alicia Calzada and tagged , , , , , , , ,

    Five weeks after the NPPA sent letters to the D.C. Taxicab Commission, and U.S. Parks Police protesting an incident in which two journalists were arrested for taking pictures and recording a public meeting, the Commission reports that it has revised its policy on public attendance, photography and recording at meetings.

    The new policy states, in part,

    A member of the public, including any representative of the media, may record or photograph the proceedings of the Commission at an open meeting by means of a tape recorder or any other recording device so long as the person does not impede the orderly conduct of the meeting, by, for instance, creating excessive noise that impairs the ability of others to hear the proceeding or using excessively bright artificial light.

    The Interim Chairwoman of the  taxicab commission, Dena Reed,  notified the NPPA of the change in a letter this week. Reed was quoted in June in a Washington Post article as stating that the commission had banned videotaping of its proceedings because it was disruptive.

    Useful links:

    The entire “Open Meetings Policy and Protocol,” can be found on the DC Taxicab Commissions website at this link.

    NPPA’s Letter to the Taxicab Commission

    Washington Post article about the incident.

    Second Washington Post article about the incident and copy of a statement by Reed after the incident.

    Carlos Miller’s article and video regarding the original incident.

    Posted in Access, blogging, First Amendment, Legal, photographers, Photographers' Rights, photojournalism | No Comments »

    City of Ft. Lauderdale Agrees to Uphold Right to Take Pictures in Public

    June 21st, 2011 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

    The City of Ft. Lauderdale agreed on Monday not to interfere with photographers taking pictures near the set of the film “Rock of Ages.” At an emergency hearing in state court, the NPPA joined the South Florida Gay News and the Society of Professional Journalists as plaintiffs against the City, which had erected signs banning photography in public areas near a movie set. According to area photographer and activist Carlos Miller, at least one photographer was issued a citation for taking pictures from a public garage.

    The Agreed Court Order states that the city:

    “shall not prohibit or inhibit the taking of photographs at or from any public area surrounding, near or adjacent to the film set of the production of the film, “Rock of Ages. For the purposes of this order, the term “public area” shall includ any area where members of the public have a right to be, but shall not include areas that have been lawfully closed to access by members of the public.”

    The movie, starring Tom Cruise and Catherine Zeta-Jones is being filmed in downtown Ft. Lauderdale, and the city had posted several signs in public areas stating that photography was strictly prohibited, even though those same areas were open to the public.

    Some area photographers staged a protest on Friday drawing publicity to the illegal ban, and news organizations reported that the signs were removed, but police were still enforcing the ban.

    According to the Gay South Florida News, one of the other plaintiffs in the suit, the city denied that it was interfering with the right to take pictures. However, the plaintiffs offered to provide witnesses to the contrary.

    Though the injunction is in place, the plaintiffs intend to proceed with the lawsuit seeking a declaration that the city acted illegally.

    A detailed report of hearing along with pictures, is available at the website www.journoterrorist.com.

    NPPA will continue to provide updates as the lawsuit progresses.

    The Agreed Order can be downloaded by clicking here.

    Posted in Access, First Amendment, Florida, law, photographers, photojournalism, trespass | No Comments »

    Why Journalists Should Dump Twitpic Now

    June 13th, 2011 by Alicia Calzada and tagged , , , , , , ,

    You may remember how last year AFP and Getty sued Daniel Morel, claiming that by posting photos on Twitpic, he had given them permission to use the images. A court ruled that he hadn’t, despite the onerous rights-grabbing Twitpic terms of service. While I always believed that AFP/Getty would lose, because they had no affiliate relationship with Twitpic, I remember wondering how long it would be before a photo agency partnered with Twitpic to monetize the Twitpic terms. I thought that if Twitpic had retained permission to sell images posted on their site, it was a small wonder that no agency had partnered with them to make money selling these images. Well, that day has come.

    While Twitpic is not the first social networking company with grabby terms of service, last month there was an important announcement. World Entertainment News Network (WENN) has become Twitpic’s “exclusive photo agency partner.

    • From their Terms of Service:

    by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.   [  http://www.twitpic.com/terms.do

    • From the New York Times:

    World Entertainment News Network, a news and photo agency, announced this month that it had become the “exclusive photo agency partner” of Twitpic, a service with over 20 million registered users that allows people to upload images and link to them on Twitter. The deal allows the agency to sell images posted on Twitpic for publication”

    Together that means that anything posted through twitpic is fair game to be licensed for a profit without your knowing or seeing any of it.

    Why this is bad for photojournalists

    • If you are a staffer at a newspaper, you don’t own the copyright to the images you shoot on the job. You may accidentally be giving away your company’s photos and getting yourself in a whole lot of legal trouble (each of these TOS contain indemnification clauses so if your company sues, you might end up involved and even liable).
    • if you are an independent photographer, posting images to Twitpic is the equivalent to giving your photos to an agency and not asking for any payment or promise of royalties. WENN can make thousands of dollars off of your pictures and they don’t have to give you a dime. While you still retain licensing rights, a potential user is more likely to just go to an agency. They certainly won’t be thinking about how they can make sure you get paid.

    Why is this a big deal now?

    Social networking sites have had rights-grabbing terms like the Twitpic terms for years, but this is the first time I have heard of any of them openly trying to use those terms to profit from those images beyond the scope of the service itself.  News organizations have certainly used images from social networking sites, but it is not usually clear how or if they have received permission or paid a licensing fee. However, Twitpic is perfectly clear: they make a profit, you don’t.

    The Quick Fix

    Fortunately there is an easy fix for twitpic. Follow the lead of celebrities like Ellen Degeneres and take your photos off now. There are several alternative sites that will host your images to post on twitter without onerous terms.

    – yfrog is integrated with twitter and easy to connect to from your twitter account. Their policy is simple: “ImageShack will not sell or distribute your content to third parties or affiliates without your permission.”

    – MobyPicture is another service that has similar terms.

    If you are a staffer, be sure to check with your employer about their social networking policies regardless of what service you use. News organizations are in love with social media and are pushing their employees to use it, but they should all be creating policies and preferences. With the latest Twitpic move, it would behoove news organizations to create a list of social networking options that don’t put the company’s content at risk.

    Twitter itself is starting to add picture sharing to its service. The twitter terms are as onerous as Twitpic, and they are even more straightforward about their intentions, noting that posting to Twitter gives them the right “to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services.”

    Posted in contracts, copyright, law, photographers, photojournalism, students | No Comments »

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