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Judge Dismisses Copyright Challenge to Google’s Digital Books Program

November 14th, 2013 by and tagged , , , , , , ,

Google has dodged a major legal challenge to a controversial but popular feature that makes millions of books available online.  A federal judge today said the Google Books program does not violate the copyright privileges of authors.

Google Books uses high-tech scanning technology to convert books to digital format, and then posts versions of the works online. Most of the time, Google makes a book available without getting permission from or compensating its author.

The case has bounced around the court system since 2005, when the Author’s Guild and others sued Google over its digital text program. The parties came close to settling in 2011, but a judge concerned that it would grant Google a monopoly in the area threw out the deal.

U.S Circuit Court Judge Denny Chin issued his decision rejecting the copyright claim against Google this morning, finding the digital books program was “fair use.”

The fair use defense allows the use of copyrighted works for criticism, news reporting, scholarship, research, and other areas that represent a public benefit rather than a commercial exploitation.  Judge Chin explained that fair use is good public policy because it “provides sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences.”

Judge Chin highlighted several factors he believed warranted granting the defense, including:

1)   Google’s use is transformative, taking physical copies of books and converting them to fully indexed, and searchable digital documents.

2)   The digital books do not supercede or supplant the original works.  The online copies are usually limited “snippets” and do not allow users to read a book cover-to-cover.

3)   Google receives limited commercial benefit from the use.  It does not sell ads or charge a fee to use the feature.

The judge found that overall, Google Books is an important research tool that expands access to knowledge and helps preserve the texts themselves.

The decision paves the way for Google to move forward with its program, with a potential roadblock in the future if Author’s Guild decides to appeal.  However, with 8 years and millions of dollars in legal fees already spent, such a move may not be in order.

Posted in Author's Guild, copyright, copyright infringement, Google, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights | 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 »

NPPA Sends Recommendations to IPEC Regarding Copyright Protections

August 24th, 2012 by Advocacy Intern and tagged , , , ,

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.

Posted in blogging, copyright, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Photo Websites and Misappropriation of Likeness

July 23rd, 2012 by Alicia Calzada

One question that I have long felt to be open is whether or not a news photographer, whose business is taking pictures of people, could be liable for misappropriation of likeness for using someone’s image without consent on a website designed primarily to sell that photographer’s services, or the images themselves.

First, let me explain a little bit about “misappropriation of likeness,” also referred to as the “right of publicity.” This is one of the privacy torts. Basically, every person has the right to control the commercial use of their “likeness,” that is, the picture of themselves – that is why Michael Jordan was paid to endorse Nike. Commercial use can mean use in trade, or use in a way that proposes a transaction. A photographer’s website, when it exists solely to promote that photographer’s professional services and licensing, is a website promoting a product and service.

There is a First Amendment exception to the right against misappropriation, so of course, the subjects of your photographs have no right to control your use of those images in a First Amendment use, such as in a newspaper, book, documentary movie, or news website.

This photo of well-known author Sandra Cisneros can be used without her permission for an article about her or her books. However, it couldn’t be used without permission for an advertisement to sell shawls, her signature accessory. (Photo by Alicia Wagner Calzada)

But that all changes when the same photo is used for commercial purposes, to sell a product or service. If I were using a photo of Shirley Jones to market my business selling psychedelic school buses, I would need her consent. Knowing this, the question arises, if I use a photo of Shirley Jones walking the red carpet, to market my photos of Shirley Jones,  do I need her consent?

A court in California said no, at least not in the circumstances of one case, and last week an appeals court agreed. Jones sued Corbis for violating her right of publicity because they displayed her name and image without her consent on their website as sample images of what could be licensed. The display of the images of Jones was for the purpose of selling a product (the product is a license for the photo of Shirley Jones). All of the photos in question were taken at a red carpet event.

In California, a person can consent to the use of their name or likeness in writing, but the consent can also be implied. The trial court ruled that Jones consented to the taking of the photos, knew that such photos were widely distributed, and in fact, in “at least one of the events at which the pictures were taken, a notice was posted at the entrance of the red carpet. The notice stated that by entering the premises, [Jones] consented to being photographed, and her name, voice and likeness being exploited by any and all means in connection with the event without limitation.” Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 11-56082, 2012 WL 2884790 (9th Cir. July 16, 2012).

The court held that “It is undisputed that [Jones] voluntarily posed for photographers, who she knew would display her images to prospective buyers, for over 40 years without objection. It was well understood in the entertainment industry that potential customers would not purchase images they could not see before the purchase.” Id.

Furthermore, Shirley Jones “knew and understood that photographers on the red carpet could employ third parties to assist them in distributing her photos.” Id.

Of course, this does not mean that Jones’ publicity rights do not exist in regards to the advertising and marketing of other products. The court specifically noted that it’s ruling was limited to holding that the singer/actress consented to the display of her likeness “for the purpose of distributing the images themselves.”

What does this mean for photographers who want to use images of people on their websites? Well, it doesn’t answer all questions, but when a celebrity or other person consents to their photo being taken, they might also be consenting to the use of their image for the purposes of selling the license to that photo. To me this means, if the photos on your website are available to be licensed, and the person in the photo consented to the taking of the photo, you are that much closer to winning on this issue. For this reason, it might be useful to clarify that all of the images on your website are available to be licensed.

Importantly this case involved an interpretation of California law, and did not address the issue of photos taken without the consent of the subject, or photos that promote a photography business but aren’t available for license. But it is still useful information when making decisions on using photographs.

Posted in copyright, First Amendment, Lawsuit, Licensing, Misappropriation of Likeness, Newsgathering, Paparazzi, photographers, Photographers' Rights, photojournalism | No Comments »