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Authors Guild v. Google: Case Dismissed

November 14th, 2013 by Mickey Osterreicher

In a 30 page decision, Circuit Court Judge Denny Chin granted Google’s motion for summary judgment and dismissed the Authors Guild copyright infringement case against Google.

The authors had accused Google of digitally copying millions of books without permission for use in a searchable online library .

Earlier this year the U.S Court if Appeals for the Second Circuit sent the case back to Judge Chin after it held that he incorrectly  certified the  authors “class action” before determining Google’s “fair use” defense which he ultimately agreed with in today’s opinion. Unless another appeal is taken, this ruling will now allow Google to move forward with its plans.

The court adopted the argument that such scanning by Google provides a societal benefit and enhanced access to books while also protecting a “respectful consideration” of the authors’ rights. He also embraced the argument that such digitalization was  “transformative.” Judge Chin wrote, “Google Books provide significant public benefits,” adding, “Indeed, all society benefits” from “snippets” of these books being made available for online searches.

Today’s decision is the latest chapter in the case which was commenced in 2005, when authors and publishers sued Google over its digital books plan. The parties had reached a tentative $125M settlement  in 2011, but Judge Chin rejected it because he believed it raised copyright and antitrust issues by giving Google a “de facto monopoly” to copy books en masse. The publishers settled their claim against Google in 2012.

Posted in Author's Guild, copyright, copyright infringement, Fair Use, Google | No Comments »

Fallout from Asiana Air Prank Provides Lesson on DMCA Takedown Notices

July 26th, 2013 by and tagged , , , , , , , , , , , ,

Fallout from a prank associated with the tragic Asiana airlines crash is teaching a valuable lesson about copyright law and the fair use defense.

When a transpacific flight crash-landed at San Francisco International Airport earlier this month, preliminary media reports focused on the key questions, “Is everyone okay?” and “What went wrong?”

But even before authorities could clear the wreckage of Asian Airlines Flight 214, whose crash claimed the lives of three and left more than 180 injured, the story had taken a different turn.

Duped by an intern intent on playing a tasteless prank, KTVU in Oakland, California aired a list of names purported to be those of the pilots of ill-fated flight.  It quickly became clear that the list was nothing more than a racist joke.

asiana-racist-pilot-names

Hundreds of YouTube videos of KTVU’s snafu sprang up in the hours following the incident.  Obviously not anxious to see its gaffe immortalized, and concerned about the insensitive nature of the prank, KTVU filed “takedown notices” under the Digital Millennium Copyright Act in an attempt to suppress the content.

A DMCA takedown notice is a tool that allows the owners of digital content to request that a website operator or internet service provider take down media displayed without the owner’s permission.   If a website operator complies with a take down request, they are immunized from any legal action arising from the material in question.  This provides a substantial incentive for websites to defer to takedown notices.

The DMCA takedown notice is a remarkably effective tool for any creator of content to protect their work-product.  Its prolific use is evidence.  Google reports receiving more than 14 million DMCA copyright removal requests in the past month alone.

So why does a YouTube search of KTVU still yield dozens of clips of the Asiana Airlines debacle, many of those clips with millions of views?

It has to do with the way those clips are being used.  Copyright law allows the free use of a protected work for criticism, comment, news reporting, teaching, scholarship, or research.  So while the KTVU news clip is copyrighted content, those who want to voice an opinion on the situation by posting it to their YouTube account are entitled to do so.  The idea is to balance the author’s right to compensation for their work against the public interest in the spread of ideas and information.  In this case, people were clearly more interested in poking fun or expressing anger at KTVU than in profiting from the stations’ copyrighted content.

Given the digital photograph’s vulnerability to online misappropriation, professional photographers should be particularly aware of the fair use defense.  More often than not it will be the foundation of any defense to DMCA takedown notice, and in the case of legitimate fair uses, it will overcome the photographers claim of copyright infringement.

Whether a use qualifies for the fair use defense is determined on a case-by-case basis. A court will consider four factors in making its determination:

1)  the purpose and character of the contested use

2) the nature of the copyrighted work

3) the amount and substantiality of the portion taken, and

4) the effect of the use upon the potential market.

The Stanford University Libraries have put together an excellent in-depth analysis of the four factors, and Columbia University’s checklist can help in the initial evaluation of a fair use defense.

If you believe your work-product has been illegally used online and want to file a takedown notice, this quick guide explains the basic steps to putting together a claim.

Posted in copyright, copyright infringement, Digital Millenium Copyright Act, Fair Use, First Amendment rights, National Press Photographers Association, News Photography, NPPA, photographers, photojournalism, Uncategorized | 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 »

NPPA Submits Comments Regarding Orphan Works

January 26th, 2013 by and tagged , , , , , , , , , , , , , , , , ,

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.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, Photographers' Rights, U.S. Copyright Office, Visual Journalists | No Comments »

Ad Agency Sues Herman Cain, Simon & Schuster Over Book Cover Photo

January 24th, 2013 by Mickey Osterreicher and tagged , ,

A federal judge in the Northern District of Georgia has denied a motion to dismiss  in a copyright infringtement lawsuit by an ad agency against former Republican presidential candidate Herman Cain and publisher Simon & Schuster Inc. The amended complaint, filed in June 2012, claims that a photo, shot on behalf of Friends of Herman Cain, Inc. for use in his political campaign was published on the cover of Mr. Cain’s autobiography without permission.

The book “This is Herman Cain!: My Journey to the White House,” was published in October 2011, during Cain’s presidential campaign for the Republican nomination. Adventure Advertising, LLC filed suit in January, 2012.

As in many copyright infringement lawsuits the parties disagree over whether the user of the photo had asked for and received permission to publish it and whether such use was licensed by the rights holder.

The judge’s ruling will allow discovery to move forward.

Posted in copyright, copyright infringement, Photographers' Rights | No Comments »

UPDATE: AFP v Morel Copyright Infringement Case

January 16th, 2013 by Mickey Osterreicher and tagged , , , , , , , , ,

***** UPDATE 10/18/2013 – In a case already full of twists and turns, presiding U.S. District Judge Alison J. Nathan, had harsh words for the attorneys representing Daniel Morel in his copyright infringement lawsuit against remaining counterclaim defendants AFP and Getty. According to reports the counterclaim plaintiff’s attorneys Barbara Hoffman and Joseph T. Baio have attempted to involve the court in their dispute over Hoffman’s access to the terms of the confidential settlement agreement that was recently reached with the Washington Post (see update below).

Hoffman and Baio each sent letters to the court asserting their position (see Hoffman Letter and Baio Letter) In her one page Order addressing the “letter dispute,” Judge Nathan admonished the lawyers for having “failed to meet and confer in a professional and reasonable manner before burdening the court with this dispute.” She then ordered them to meet and confer “for no less than one hour in an effort to come to a reasonable and professional agreement. Failure to abide by this requirement may result in sanctions.”

As can be read in the dueling letters (above) Hoffman, who earlier represented Mr. Morel on a contingency fee basis, has claimed a charging lien on any settlement agreements. Baio, whose law firm, Willkie Farr & Gallagher, LLP, now represents Morel expressed concern about confidentiality terms.

In two other late developments, Roger Netzer, of the same law firm entered an appearance of counsel of record for Mr. Morel on October 17th and Matthew R. Farley filed a motion for admission pro hac vice (a legal term literally meaning “for this turn” and usually referring to a lawyer who has not been admitted to practice in that court but may be permitted to represent a party in that case).

The trial is still scheduled to begin on 11/12/2013.

 

****** UPDATE 10/3/2013 – This week the presiding judge dismissed claims against the Washington Post Co., one of the defendants in the copyright infringement case, after the parties reported they had reached an undisclosed settlement. In her two-page order, Judge Nathan dismissed the claims against the Post with prejudice and without costs, which means that neither party were responsible for paying the others’ costs or attorneys’ fees. The order also barred remaining defendants AFP and Getty from being able to deduct any payment of the Post settlement amount from any future award of damages to Morel.

The trial is scheduled to begin on 11/12/2013.

**********************

New York District Judge Alison J. Nathan has ruled (AFP-Morel Decision 01-14-13) that news service Agence France Presse (AFP) and The Washington Post Co (the Post) infringed upon photojournalist Daniel Morel’s copyright by their unauthorized use of his photos of the 2010 Haiti earthquake aftermath.

Mr. Morel had uploaded the photos in question to TwitPic.com by linking them to his Twitter account because the country-wide devastation to electricity and Internet connections forced him to use this more public method. Further complicating the matter, shortly after Morel posted his pictures online they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. A number of agencies including AFP then credited Suero for the photos.

In the original Complaint, filed in 2010 AFP sought a declaratory judgment that it had not infringed upon Morel’s copyrights and included defamation claims against him as well. Morel then counter-claimed that AFP, the Post, Getty and other news organizations had distributed his images without his permission.

In its answer AFP argued that it was a third-party beneficiary of the license agreement between Morel and Twitter, by claiming that Twitter’s Terms of Service (TOS) granted it a license as one of Twitter’s “other users.”

“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”

In making its ruling the court observed that “the dispute between the parties with regard to liability for direct infringement turns on Counterclaim Defendants’ affirmative defenses, namely their claims that (1) by posting the Photos-at-Issue on TwitPic/Twitter, Morel granted them a license, (2) Getty is entitled to the benefit of a DMCA safe-harbor, and (3) Getty has not engaged in volitional conduct sufficient to impose liability.”

In an ironic twist this recent decision comes two years to the date after District Judge William H. Pauley III issued his Decision denying AFP’s motion to dismiss Morel’s counter-claim suit. In that earlier proceeding Judge Pauley also concluded that the express language of the Twitter and TwitPic TOS did not provide an express license that protected AFP.

In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”

Because there remain genuine issues of fact the Court denied Mr. Morel’s claim for summary judgment regarding DMCA violations and also limited his recovery under that Act should he prevail at trial. After careful analysis the Court also concluded “that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

Judge Nathan further rebuked AFP by stating “in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that ‘you retain your rights to any Content you submit, post or display’ and ‘what’s yours is yours – you own your content.’”

This case serves as a cautionary tale about just how important it is to read and understand any TOS before clicking “agree.” These were the Twitpic TOS at the time that Morel uploaded his images: “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.” You should also read the current TOS which have been substantially modified, due in large part to this case.

Morel settled with counter-claim defendants ABC, CNN and CBS in 2011. A conference is set for February 1, 2013, at 4:00 pm to discuss further scheduling of this matter.

 

Update: Morel’s attorneys have released a press release, stating in part that “Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following trial.”

Posted in AFP v Morel, Agence France-Presse, copyright, copyright infringement, Daniel Morel, Digital Millenium Copyright Act, Getty, photographers, Photographers' Rights, photojournalism, Twitpic, Twitter, Washington Post | No Comments »

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