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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 »

NPPA Submits Comments Regarding A Copyright Small Claims Court System

October 22nd, 2012 by and tagged , , , , , , , , , , , , , ,

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:

Posted in copyright, Copyright Small Claims, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, U.S. Copyright Office | No Comments »

A strong example of why copyright matters

July 13th, 2012 by Alicia Calzada

We all talk about how important copyright is as a way to protect our income. However, copyright serves a greater purpose than just a revenue source. It permits the author/artist/creator to control how their work is used. Controlling the uses of your images is incredibly important.

Consider this recent case that is getting a lot of attention. Photographer Kristina Hill took an engagement photo  of a same-sex couple, which one of the grooms posted on his blog. A conservative group then stole the image and turned it into an anti-gay attack ad, targeting a politician for her vote in support of same sex unions.

The original photo by Kristina Hill

The mailer including the stolen, digitally manipulated photograph.

The couple, obviously was distressed. One of the men wrote in a blog post, “I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.” Given all that his community had been through to legalize gay marriage, he was angry that “someone, a stranger, will seek out your image on the internet… steal it and use it in an attempt to destroy others who support you.

So here we have a photographer, whose client was clearly devastated by a use of her photo that was never intended by the photographer or the client. Whether the issue is a wedding photographer protecting her clients from a hate campaign, a wildlife photographer wanting to keep his images from being used by organizations that harm the environment, or a journalist wanting to protect a sensitive source, copyright gives photographers the power to stop such use.

Unfortunately, as much as this incident is proof of the importance of copyright protection, it is also evidence that the system is broken.  Ms. Hill told Photo District News last week that she planned to pursue it, but was uncertain whether or not she has the resources to do so, given that a lawsuit could drag on extensively. She has since obtained representation from the Southern Poverty Law Center which sent a cease and desist letter on her behalf this week. Good for her for finding a solution to protect her clients by defending her images.

If there were ever a reason to pursue an infringement, theft of a photo which vilifies your client is it. The fact that Ms. Hill was faced with the possibility of not pursuing the infringer because of the cost shows how important it is to improve the system for obtaining relief from infringement. This is why the NPPA supports a small claims solution for copyright infringement claims. Regardless of whether or not there are provable financial damages, it should not cost tens of thousands of dollars to get an injunction against uses like this.

If copyright law is not enforceable, it is virtually useless.

 

 

Posted in copyright, Copyright Small Claims, Legal, photographers, Photographers' Rights, U.S. Copyright Office | No Comments »

NPPA meets with Copyright Office

March 23rd, 2012 by Alicia Calzada and tagged , , , , , , , , , , ,

Representatives of the National Press Photographers Association met a couple of weeks ago with attorneys from the United States Copyright Office to discuss copyright small claims solutions and other copyright issues important to photojournalists.

NPPA General Counsel Mickey Osterreicher, NPPA Executive Director Mindy Hutchison, and NPPA Attorney and Advocacy Chair Alicia Calzada took a break from the weekend’s Northern Short Course in Fairfax, Virginia to met with the General Counsel of the Copyright Office and two policy attorneys from the office in Washington, D.C.

Calzada and Osterreicher at the Copyright Office in DC. Photo by Mindy Hutchison.

 

NPPA submitted official comments to the Copyright Office back in January, outlining the challenges that photojournalists have relating to copyright claims, particularly smaller claims, and sharing the organization’s view of what we would like to see in a solution for small copyright claims. Friday’s meeting allowed NPPA to expand on the topics raised in the comments and answer questions from the Copyright Office.  Any small copyright claims solution would likely require passage from Congress.

Click here to read a copy of NPPA’s official comments to the Copyright Office.

 

 

Posted in copyright, Copyright Small Claims, District of Columbia, Legal, National Press Photographers Association, News Photography, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »