Search

A Tale of Two Cases: How Photographers Are Being Squeezed From All Sides

November 20th, 2013 by Mickey Osterreicher

Today was a picture perfect example of how photographers are being squeezed from all sides. On the front end photographers are being interfered with and arrested on an almost daily basis nationwide for doing nothing more than trying to do their jobs by photographing and recording matters of public concern on city streets.

In one such case a NYC Criminal Court jury acquitted photographer Jason Nicholas today on a misdemeanor count of Obstructing Governmental Administration. Mr. Nicholas was arrested in 2011 for allegedly interfering with NYNJ Port Authority Police while covering a news story. A previous trial resulted in a hung jury but the district attorney chose to re-try him. Afterwards Mr. Nicholas said, “this is a victory for us and a swift and resounding defeat for the police and prosecution!” “Now maybe we can get this to stop on behalf of all journalists,” he added.

On the back end where photographers works are being used globally without their permission, Daniel Morel was sitting in a federal courtroom a few blocks away from Mr. Nicholas. He is pitted against Agence France Press (AFP) (and Getty Images) in a copyright infringement case. Read about this case along with updates here.

Liability for infringement has already been established. The only remaining defendants in the counterclaim case are AFP and Getty Images, as the other defendants have already settled with Mr. Morel.  All that is left for the jury to decide is how much each of them (AFP & Getty) must pay in damages. Click here for a running blog of the six (6) days of testimony.

Attorneys for both sides are expected to make their closing arguments tomorrow morning in the Southern District of New York Courthouse located at 40 Foley Square in New York City. Judge Nathan’s courtroom is on the 5th floor for those of you able to attend.

So on one day within a few blocks of each other I was able to view some of the major challenges facing photographers around the world and also witness how two of them chose to stand up for their rights and by so doing take a stand against those who would violate our constitutional and copyrights.

 

Posted in Access, AFP v Morel, Agence France-Presse, Assault on Photographers, contracts, copyright, copyright infringement, Daniel Morel, False Arrest, First Amendment, First Amendment rights, Fourth Amendment rights, Getty, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording Police, retaliation for the exercise of First Amendment rights, social networking, Twitpic, Twitter | No Comments »

Photographer Ordered to Pay $266,000 to L.A. Times in Lawsuit

November 20th, 2012 by

Photographer David Strick, who sued the Los Angeles Times last year claiming infringement of his photographs, has been ordered by an arbitrator to pay the L.A. Times more than $266,000.
Strick had entered into a contract with the L.A. Times in 2007 to provide photographs to the newspaper. The L.A. Times declined to renew Strick’s contract in 2010, but continued to use some of Strick’s photographs. Strick alleged in his complaint that his agreement with the L.A. Times contained a “specifically negotiated” acknowledgement that “For the avoidance of doubt, LATIMES.COM acknowledges that the copyrights to the Photographs are owned by Strick.” To read Strick’s complaint, click here: http://www.scribd.com/doc/62136598/Strick-Suit-Part-1.

After the L.A. Times continued to use Strick’s photographers after declining to renew their contract with him, Strick challenged the newspaper’s use of the photographs, alleging that the use of these images was infringement. Despite a clause in the original Service Agreement calling for “quick and efficient” resolution to any disputes between the parties, Strick refused to engage in arbitration with the L.A. Times and instead filed in U.S. District Court. To read about Strick’s initial lawsuit, click here: http://www.thewrap.com/media/column-post/la-times-tries-force-arbitration-david-strick-copyright-suit-30043?page=0,0.

The arbitrator held in his decision that Strick’s refusal to abide by the Service Agreement, coupled with Strick’s “poor behavior” throughout the arbitration process, justified the dismissal of Strick’s case and the awarding of attorneys’ fees and court costs to the L.A. Times. The arbitrator, retired Judge Lichtman, noted in his opinion that “For reasons which remain inexplicable, claimant (Strick) chose to abandon and distance himself from the controlling licensing agreement as well as the agreed upon dispute resolution mechanisms contained therein.” The result is that while Strick arguably had valid infringement claims against the L.A. Times for violating the copyright provisions of their contract, Strick lost his case simply because he failed to abide by arbitration provisions that he had agreed to in signing the contract with the L.A. Times. To read more of Arbitrator Lichtman’s comments, click here: http://www.thewrap.com/media/column-post/la-times-wins-266k-photographer-david-strick-64816?page=0,0.

According to Photo District News, Strick issued a statement in wake of the arbitrator’s decision, stating that he was “devasted by today’s ruling,” Strick went on to say that this decision was “a technical ruling that allows a willful infringement to take place but bars me from redressing that infringement.” Strick has since announced that he will appeal the arbitrator’s decision. To read more on Strick’s reaction to this decision, click here: http://www.pdnonline.com/news/Photog-Claiming-LA-T-6067.shtml.

In copyright infringement claims, the terms of a contract between the involved parties can quickly determine whether a claim for infringement will be deemed meritless or not. A photographer must be careful to not only review what the terms of copyright for his or her works may be, but also to note any provisions in the contract requiring arbitration. As a contract, once signed, is a binding agreement upon both parties, a photographer who signs a contract and then refuses to follow its provisions could easily end up with problems.

For claims which arise from a party not following a binding provision of a contract, both copyright law and contract provisions can allow a court or arbitrator to award attorneys’ fees and court costs to the prevailing party. This awarding of fees and costs is granted to compensate the prevailing party for the expenses it occurred in defending itself against the claim. As copyright infringement claims can be quite costly to file and pursue, the awarding of fees and costs can be very high.

Photographers should be aware of the terms in their contracts with other parties, and proceed cautiously when entering into such agreements. Choosing to not follow the provisions of a contract regarding how disputes will be handled can result in a significant award of attorneys’ fees and court costs against the losing party. Even if a photographer feels he or she has a strong claim for infringement despite the contract, provisions in that contract for arbitration may remain binding. In general, photographers should always read contractual agreements carefully, making sure to have any ambiguous language clarified. In the event that a photographer does wish to pursue an infringement claim and such a claim seems to be permitted under the contract, the photographer should be prepared to follow any provisions the contract may set out regarding arbitration or litigation. Although Strick’s situation is regrettable, it serves as a cautionary tale. To read more about Strick’s case, click here: http://www.thewrap.com/media/column-post/la-times-wins-266k-photographer-david-strick-64816?page=0,0.

Posted in contracts, copyright, Copyright Small Claims, Lawsuit, Legal, Licensing, Photographers' Rights | 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 | 2 Comments »

Farm Photography Bills pass in Iowa, Utah

March 10th, 2012 by Alicia Calzada and tagged , , , , , , , , , , , , , ,

The first two in a series of so-called “Ag-Gag” bills has been enacted into law. The bills, different versions of which have been pending in over half a dozen states, target animal rights activists but frequently are written in broad language that impacts other lawful First Amendment activity.

Iowa was the first state to pass a bill, in early March, making access to an agricultural facility by “false pretenses” illegal. It was heavily amended from its original version. The introduced version of the bill would have made recording while on the farm without the consent of the owner a misdemeanor (and a felony for a second offense) and made mere possession of photographs or video resulting from the earlier act a crime. Thankfully, that version did not pass- it would have been easily found unconstitutional. To put this into perspective, the only other category of photography that is a crime to possess is child pornography. In fact, just a couple of years ago, the Supreme Court ruled that it was unconstitutional to criminalize the possession of video depicting animal cruelty.

A bill making photography of farm operations without the consent of the owner illegal has passed in Utah. The Utah state senate passed HB 187 and it is headed to the governor for a signature. An amendment was made after the NPPA and several other groups protested the original language of the bill. The bill makes it a crime to photograph “agricultural operations” without consent of the owner.  There was no distinction in the original version of the bill for private vs. pubic property, and the wording left open the possibility prosecution for photographing animals grazing on public lands. The bill was amended to clarify that “agricultural operations” is “private property” and passed with that language. However the bill is still problematic as it takes a crime- trespassing- and makes it subject to a greater punishment (a Class A misdemeanor vs. a Class B misdemeanor) because the added element of a First Amendment activity is involved.

A bill pending in New York, would criminalize the “unauthorized video, audio recording or photography done without the farm owner’s written consent.” Like certain proposals NPPA objected to in the last, there is not even a limitation in this bill that the photographer be trespassing. As written, it would be a misdemeanor, punishable by up to a year in prison, or a fine of $1,000 to stand on the side of the road and photograph farm animals or farm.

Even bills which makes it a crime to take photographs on a farm while trespassing are problematic because an essential element of the crime is photography. It is a content-based restriction (with a specific list of what would be in the photograph that would convert an otherwise law abiding photographer into a criminal).

The application of these laws to photographic activity will be subject to constitutional scrutiny. NPPA will continue to monitor and oppose these bills as we have done in the past.

NPPA is drafting a model release for photographers in Utah and Iowa to bring to assignments on property that could be considered an agricultural operation, or otherwise subject to this law.

If you are aware of pending legislation that would affect photographers, please alert us at [email protected] or [email protected]

 

 

 

 

Posted in ag-gag, Cameras, contracts, First Amendment, Iowa, Legal, National Press Photographers Association, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Recording, Regulations limiting photography, Uncategorized, Utah, video cameras | 1 Comment »

WFH-101

July 29th, 2011 by Alicia Calzada

Work for Hire. To many it’s an ugly word. To others, it is just something they live with. What it shouldn’t be is ignored. If you are a freelancer, and you sign a contract providing for a work for hire, you need to know what it means. There are plenty of articles to tell you to avoid it and why, but this is intended to help you understand the basics.

What is a Work for Hire Contract?

Copyright is all about authorship. The author owns the copyright, that is, the right to copy and publish the work. When you are a staff photographer, the photos you produce on the job are automatically work for hire. The employer is consider the “author” and therefore they own the  copyright. So if it comes with a salary, benefits, insurance, and a 401(k), it’s probably a work for hire. The employer owns the copyright and all of the benefits that go with it, such as control over where and when it is published. The upside is that you have a salary, benefits, insurance and a 401(k).

What a work-for-hire contract does is create the same kind of relationship between a client and someone who is not an employee. In other words, the client gets the benefit of the copyright and total control over the work. But you don’t get a salary, insurance or a 401(k).  Not just any photo assignment is eligible for work-for-hire agreements. Rather, only “collective works, motion pictures, translations, supplementary work, atlases, and test material” can gain work-for-hire status which basically transforms the client into the author. Even if a work falls into a category making it eligible for WFH status, there must be an express agreement, signed by the photographer.

Is it a WFH?

How do you know if you are agreeing to a work for hire? First, as noted above, if you are an employee whose job it is to take pictures, this is a work for hire automatically. If you are a freelancer, the language in a work-for-hire contract will specifically say “work for hire” or “work made for hire.” Sometimes it will be a little more subtle and state that you are assigning the copyright, which has a similar practical effect. Most WFH contracts actually say both.

Signed Contract Required for WFH

It is important for both editors and photographers to know that outside of the context of employment, a work for hire only arises in circumstances where there is a signed contract and only is available in certain circumstances. There is no “implied” work  for hire. A client cannot tell you that “work for hire” is their policy and by working for them you automatically agree to it. You must actually agree to it in writing, before the assignment. Furthermore, a client cannot tell you after you have already shot the assignment that you must sign a WFH contract to get paid (this could be an ineffective modification, unless there is additional payment offered).

The Gray Areas

So, if you’re a full time staff photographer, it’s clear you’re in a work-for-hire when you are on the job. If you sign a work-for-hire contract for a photo assignment for a publication, you are probably in a work for hire. But there may be some less exact circumstances that you find yourself in.

I created this 3-step chart a couple of years ago to help clarify when something might legally be a work for hire, and when it isn’t. The chart examines a series of factors that make it more or less likely that it might be a work for hire. Click below to download it.

Work for Hire chart

“Work for hire” not the only words to avoid.

It is important to note that while “work for hire” ensures a transfer of copyrights, it is not the only way you can end up transferring your rights. Some contracts simply state that you “assign” your copyright to them. This also must be in writing, but it has the same effect. You should also watch out for contracts that give the client the “exclusive” right to use the photo. You may still retain the copyright in that case, but it’s pretty useless if you don’t have the right to use the photo.

It’s important not to be intimidated by this language, but to learn about it, and learn to spot it. If you are like most photographers, you will find that giving up your copyright is rarely a good deal, but many photographers also have decided that in a business, everything has a price, and there are some circumstances that warrant it. While photography can feel very personal, it is important to approach such business decisions from a business perspective.

Happy Shooting!

Posted in business, contracts, copyright, photojournalism, students | 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 | 2 Comments »

Licensing “social media” use

May 25th, 2010 by Alicia Calzada and tagged , , , , , ,

There is an interesting blog post/discussion on APhotoEditor.com about whether or not social media is considered covered by an “internet” usage license. It is a great topic, and really important for photographers to think about. Whenever something is vague in your contract, it might be interpreted differently than you intend, either by a client, or a judge. Neither is a good result. Remember too, that your client is the company, not the person. One quick “downsize” and the person who you have an “understanding” with is no longer there to enforce that understanding.

As interesting as the original post is, be sure to read the comments for some interesting points. The post has responses from photo buyers, whose opinions are likely to be similar to your clients. The comments include solutions from photographers.

In my opinion, one of the most important things to consider in this situation is that if you allow clients to post photos on “social media” websites, the images will be subjected to the terms and conditions of those social media sites. You don’t know what those are, and therefore can’t monitor them or pull your images down if they become too grabby.

Remember just a few weeks ago, we discovered that AFP thinks that any photo posted on Twitter (it was actually TwitPic) is free for the taking (I don’t agree). Does that mean that giving your client the right to post on social media= giving AFP all rights to you picture? Something to think about, and yet another reason why it is important that the Twitter case comes out in favor of the photographer.

There must be a balance. Social media usage is something that will be valuable to clients. I think that you should either clarify that it is a separate charge, or as one commenter suggested, increase your internet usage fee and clarify that it is included. Social media is also a very BROAD term, and applies to many different things out there. Finally, some social media sites allow the person who uploads to select a “creative commons” license, which really does give the farm away. Most social media sites also strip the metadata from your images, creating an instant orphan work.

Some options: 1) Have a internet usage license that excludes social media; 2) increase “internet” price to account for the additional uses that clients will now have; 3) have a “social media” license that specifies the social media sites to be used; 4) request that any images be posted along with specific copyright info; 5) provide a separate set of low resolution files specifically for social media use; 6) stick with the status quo, and let the chips fall where they may (just don’t get mad later).

Either way, be clear about what you intend and what your client expects. That is how you keep your client and stay in business.

Posted in contracts, copyright, Legal, photographers | No Comments »

« Previous Entries