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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 »

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 »