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In AFP v Morel Judge Denies Attorney Fees to Morel Trial Lawyers, Grants Lien by Former Lawyer

March 24th, 2015 by and tagged , , , , , ,

******************* UPDATE 03-24-15 ***********

In a surprise decision the trial court judge in the case denied Morel’s application for attorneys’ fees for his trial lawyers but granted the motion by his prior lawyer for her charging lien. “Briefly stated, Morel fought a fair fight and won. The fact that this was a close case on the merits, involving novel legal issues, persuades the Court that the purposes of the Copyright Act are not furthered by awarding fees and costs pursuant to § 505.”  Read decision AFP v Morel – attorneys fees 03-23-15

 

*************** UPDATE 10-05-14 ***************

On October 3, 2014, Morel’s lawyers filed a Memorandum of Law in Support of Daniel Morel’s Motion for an Award of Attorneys Fees and Costs against. Attorney Joseph T. Baio argued that as the prevailing party where the Court had already affirmed the damages that the jury had awarded, Mr. Morel is entitled to more than $2.3 million in fees and another approximately $200 in expenses. Additionally Mr. Morel’s previous attorney, Barbara Hoffman is seeking more than $700K in fees for her part of the case.  orm of a new trial on all issues.”

*************** UPDATE 01-29-14 ***************

On January 24, 2014 Morel’s lawyers filed a Memorandum of Law in Opposition to Defendants’ Motion for a Judgment as a Matter of Law. Attorney Joseph T. Baio argued that the court should stop AFP/Getty’s “continuing four-year war of attrition against Mr. Morel” and  deny their request “to eradicate the jury’s findings across the board, slash the amounts they must pay Mr. Morel, or order a ‘do-over’ in the form of a new trial on all issues.”

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Getty Images and Agency France-Presse have filed documents requesting a landmark copyright infringement verdict rendered against the media giants be overturned.

In the motion challenging the verdict, AFP and Getty’s lawyers claim, among other things, that no reasonable jury could have found that their clients willfully committed infringement.  The motion also disputes the jury’s allocation of actual damages (damages directly traceable to the copyright infringement) claiming the $275,000 was excessive and not supported by sufficient evidence.  AFP and Getty are seeking a reduction in damages or a new trial so the issue can be reheard.

Last November a jury essentially threw the book at Getty and AFP, awarding photographer Daniel Morel $1.22 million in damages on a claim arising from the media groups’ unauthorized use of Morel’s photos of the aftermath of the 2010 Haitian earthquake.

The case arose after Getty and AFP used images Morel posted to Twitter.  The groups falsely credited another user who had reposted the photos and claimed to own them. The damages awarded are the maximum allowed, increasing the impact of a case that had already captured the public’s attention as a test of the law’s treatment of intellectual property shared on social media.

Getty and AFP claimed that Twitter’s terms of service allowed supported their use of Morel’s photographs.  AFP went as far as to file suit against Morel, arguing that he was interfering with their business practices.

In 2011 a federal district court judge dismissed AFP’s claim and ruled that it, as well as Getty, had infringed on Morel’s copyright by publishing the photos without his permission, and the decision was heralded as a major victory for photographers who share content on the Internet. It was then up to a jury to decide the appropriate damages, that determination in part being premised on whether or not the group’s copyright infringement had been “willful”.

 

Posted in AFP, AFP v Morel, Agence France-Presse, Daniel Morel, Digital Millenium Copyright Act, Getty, Getty Images, Lawsuit, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Twitpic, Twitter | No Comments »

New Copyright Compendium bans works produced by “nature, animals, and plants” and implicitly uses monkey selfie as example

September 3rd, 2014 by and tagged , , , , , , ,

In the recently released U.S. Copyright Compendium, which lays out regulations about the registration process for copyrights, one sentence stood out from the rest of the 1200-page document, and is as follows: “The Office will not register works produced by nature, animals, or plants, which includes a photograph taken by a monkey.” It stood out because three years ago, David Slater, a British photographer, traveled to Indonesia to photograph monkeys. While there, he had his camera snatched by a monkey and the monkey ended up taking some amazing photographs with his camera. Slater published these photos, and later discovered that one of them was published on Wikipedia without his permission. Slater wanted the photo taken down, and while Wikipedia at first complied, another editor later revisted the decision and reposted the image, because the editor took the position that the photo was taken by the monkey and not Slater, thus making it public domain. A lively debate over whether Slater owned the copyright ensued. Slater maintains that he owns the copyright, noting that “there are many wildlife photographers that regularly employ animals to push the shutter button.  Pressure pads, trip wires, beam splitters – all devices attached to a camera that allows an animal to ‘take’ a photograph. In my case it was an attached cable release.”

For an interesting analysis of the Compendium and the monkey selfie see: “Return to the Snapshots of the Apes,” by Terry Hart. Also see: “Wikimedia Says When a Monkey Takes a Selfie, No One Owns It,” by Louise Stewart. For a tongue-in-cheek read on what the monkey had to say see:  “A Statement Statement From the Monkey,” by Bill Barol.

It is important to remember that the policy set forth in the U.S. Copyright Compendium is not binding upon the U.S. Copyright Office or the Register of Copyrights. It is only “the administrative manual of the Register of Copyrights concerning Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations, and provides instruction to agency staff regarding their statutory duties and expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.”

While the Compendium is not law, it certainly does influence law making in the realm of copyrights. Therefore, concerned photographers should comment on the Compendium, through the federal register. According to the Copyright Office the Compendium “will remain in draft form for 120 days [from August 19, 2014] pending final review and implementation, taking effect on or around December 15, 2014.” The public may submit comments to the Copyright Office regarding the Compendium up until that date.

Editor’s note: This article has been edited to clarify that Wikipedia initially complied with the takedown request, and later changed its mind, and to include a quote from David Slater.

Posted in Cameras, copyright, copyright infringement, multimedia, photographers, photojournalism, U.S. Copyright Office | No Comments »

Additional Comments Filed by NPPA and Other Groups Following Orphan Works Roundtables

May 27th, 2014 by and tagged , , , , , , , , , , ,

Additional comments were filed by the National Press Photographers Association (NPPA) on May 20, 2014 on the issue of Orphan Works and Mass Digitization, as a follow-up to roundtable discussions held by the U.S. Copyright Office in Washington, DC on March 10-11, 2014. (See: http://www.copyright.gov/orphan/transcript/0310LOC.pdf and http://www.copyright.gov/orphan/transcript/0311LOC.pdf for transcripts of day 1 and 2 of those discussions).

The filing by NPPA supplemented additional post-roundtable comments submitted by the Digital Medial Licensing Association (PACA) on behalf of the Professional Photographers of America (PPA), the American Photographic Artists, Inc. (APA), the American Society Of Media Photographers (AMSP), the Graphic Artists Guild (GAG) as well as NPPA) in response to a Notice of Inquiry issued by the U.S. Copyright Office in February,  2014. These most recently submitted comments expanded on initial comments (submitted by NPPA to the Register on January 24, 2013).

The comments primarily responded to discussions at the round table from stakeholders who think that orphan works legislation is no longer necessary given their increased reliance on the doctrine of fair use. It is the position of the NPPA that, while the doctrine of fair use can be used as an affirmative defense, it is certainly is not broadly available to allow the use of photos without permission, credit or compensation. “This one size fits all approach appears to be what is turning Title 17 law on its head with copyright now becoming the exception to fair use. Rather than conducting a proper balancing of the four fair use factors, a number of courts have made such ruling once they determine that a use is transformative. NPPA asserts that this type of analysis was never intended to be applied as the sole determinative element in making a fair use ruling in an individual copyright infringement case, let alone in one involving mass digitization of millions of works,” wrote NPPA general counsel Mickey H. Osterreicher and advocacy committee chair Alicia Wagner Calzada (who is also an attorney) in their jointly drafted comments.

The problem of social media websites automatically stripping out any and all identifying metadata when images are uploaded to their sites, thus creating instant orphans of contemporary work, is also “an issue that needs to be addressed more seriously and, once properly resolved, would help rectify most of the orphan works concerns expressed by users,” the NPPA comments concluded.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, photographers, photojournalism, U.S. Copyright Office | No Comments »

Federal Court Hints Websites That Strip Metadata Could Face Copyright Liability

March 7th, 2014 by and tagged , , , , , , ,

A U.S. District Court in California recently hinted that online service providers who strip copyrighted photographs of their identifying information could forfeit “safe harbor” protection under the Digital Millennium Copyright Act.

District Judge Gonzalo Curiel found late last month that e-commerce vendor CafePress.com was not entitled to summary judgment on a claim it hosted and facilitated the sale of copyrighted photos, denying a request that an infringement case be dismissed under the DMCA’s safe harbor provisions.  The decision rested partly on the fact that when users upload photographs to CafePress.com, the website’s automated process strips the images of copyright information imprinted as metadata.

Cafe Press is a website that allows its users to upload images for printing on items like hats and t-shirts.  The plaintiff in the infringement case alleged that Cafe Press facilitated the storage and sale of the plaintiff’s copyrighted photographs of Alaskan Wildlife.  The plaintiff claimed that before the website disabled access to the images in response to the lawsuit, more than $6,000 in merchandise had been sold.

Under the DMCA, service providers that unknowingly store infringing images online are typically immune from damages, as long as they  meet requirements aimed at preventing violations.  Among those requirements, the provider must “accommodate and not interfere with standard technical measures” that copyright owners use to identify and protect their works.

Broadly speaking, “standard measures” are those that have been widely adopted by providers and copyright holders to prevent infringement.  Additionally, those measures must not overly burden providers.

Cafe Press disputed the claim that its upload process interferes by stripping the information, claiming metadata as an anti-infringement tool has not been “developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process.”

The court refused to accept this argument as a matter of law, holding that “[fr]om a logical perspective, metadata appears to be an easy and economical way to attach copyright information to an image.”  This means Cafe Press may be forced to defend its policy in later litigation.

The decision is a positive sign for photographers.  Within the industry, IPTC information stored in the metadata of photographs has proven one of the most effective and cost efficient tools for copyright holders to keep copyright information connected to digital images  Its legal relevance, however, its inexorably tied to the courts’s willingness to recognize it.  The Café Press decision is undoubtedly a step in the right direction.

Posted in Access, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

House Panel Hears Testimony On Fair Use Doctrine

February 3rd, 2014 by and tagged , , , , , , , , ,

As part of a continued effort to review and improve U.S. copyright law, a House panel this week held a hearing to consider the scope of the fair use doctrine, a key legal tenet that allows the unlicensed use of copyrighted works in certain circumstances.

Recently hired NPPA Executive Director Chip Deale and General Counsel Mickey Osterreicher were on hand as the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet heard expert testimony centered on the question of whether legislative action is needed to address fair use.

The majority’s conclusion: probably not.

The current four-prong test for whether a potential infringement is considered fair use balances society’s interests in the free exchange of information and creator’s property interests in their works.  Copyrighted works used for criticism, comment, news reporting, and research typically fall under the exception.

It’s nearly universal accepted that fair use is a critical aspect of American intellectual property law.  There is, however, some disagreement as to the manner in which it sometimes applied.  Particularly problematic in the eyes of some legal scholars is the increased weight courts appear to be assigning to whether a new work “transforms” the original.  The bar for what’s considered transformative has been relatively low on occasion; complete reproductions used for commercial gain have been allowed in cases where the works are being used for a new purpose or to exploit a novel market.

Columbia law professor June Besek testified as to her concern over this interpretation:

“[An] expansive view of what it means to be transformative has opened the door to claims that  making complete copies of multiple works, even for commercial purposes, and even without creating a new work, can be a fair use. This is a substantial departure from the long-prevailing view that copying an entire work is generally not a fair use,” Besek said.

Besek argued against the Supreme Court’s rationale in the Google Books case, a highly publicized decision in which the high court found that the Internet giant’s copying of millions of texts into digital format was fair use.

This “functional transformation”, in which a user does not substantially alter the content of a work, is beyond the scope of fair use, and risks unjustifiably interfering with author’s property interests, Besek said.

Despite her disagreement with increasingly broad applications of the doctrine, Besek said she believed legislative action to alter the fair use doctrine was unnecessary.  She suggested separate action might be taken to specifically address the digitization of texts.

American University law professor Peter Jaszi agreed that Congressional revision isn’t needed at this time, arguing that a “flexible, open-ended fair use doctrine is well suited for application to digital mediums.”

Kurt Wimmer, who serves as the General Counsel for the Newspaper Association of American, put an even finer point to the sentiments that seemed to be shared by the others who testified:

“Court decisions interpreting fair use have not always been perfect, but overall we have faith that the long arc of the common law will, over time, result in workable fair use decisions for all members of the digital ecosystem and for the public we serve,” Wimmer contended.

This understanding of the fair use, as a self-correcting doctrine that should be allowed flexibility to adapt to the medium’s in which operates, will be tested when a judge reconsiders photographer Partrick Cariou’s copyright suit against artist Richard Prince.  Cariou sued Prince after the artist integrated Cariou’s pictures into an exhibit without permission.  Claims as to the all but five of the works have been dismissed.  The legal standard the court applies as to the works “transformativeness” will be important signal as to the breadth fair use doctrine moving forward.  In December, the NPPA joined several other advocacy groups in filing documents supporting Cariou.

Fair Use Photo Joe Keeley (left) Listens as NPPA General Counsel Mickey Osterreicher (center) makes a point and NPPA Executive Director Chip Deale (right) looks on at a break in the hearing “The Scope of Fair Use” held by the Subcommittee on Courts, Intellectual Property and the Internet, Tuesday January 28, 2014 (Photo by John Harrington)

Posted in Access, First Amendment, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Photo Agency Sues Blog for Copyright Infringement

January 7th, 2014 by Mickey Osterreicher and tagged , , ,

Mavrix Photo has filed a copyright infringement lawsuit against RollingOut.com and its owner Steed Media Group Inc. for publication of photographs of Beyonce and Kim Kardashian without its permission, consent or license.

The complaint, filed on January 3, 2014 in the United States District Court for the Central District of California Southern Division, alleges among other things that the Defendants “have driven significant traffic to RollingOut.com in large part due to the presence of the sought after and searched-for celebrity images that frame this dispute. All of this traffic translates into substantial illgotten commercial advantage and revenue generation for Defendants as a direct consequence of their infringing actions.” The complaint further alleges that “Defendants’ acts of infringement are willful because, inter alia, the Defendants are sophisticated publishers with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation.”

According to its website Mavrix Photo was formed in 1996 and “is a Global Celebrity News Photo Agency with an Online Image Database of more than 435,000 images and thousands of video clips.”  Steed Media Group is a print and digital advertising company “prevalent in most urban markets around the country.”

Mavrix is demanding a jury trial and is seeking actual damages and statutory damages for willful infringement of at least $150,000 per photograph.

 

 

Posted in Beyonce, California, copyright, copyright infringement, Kim Kardashian, Lawsuit, photographers, photojournalism | No Comments »

Photographers vs. NFL, AP & Getty: 2nd and 7

December 20th, 2013 by Mickey Osterreicher and tagged , , , ,

*********UPDATE****************

U.S. District Judge Robert W. Sweet ruled on August 13, 2015 that the photographers must amend their complaint prior to appealing the dismissal of their copyright claims to the U.S. Court of Appeals for the Second Circuit. The court declined to enter a final judgment in the matter, which it had dismissed last March, finding that the plaintiffs may replead their case and that a revised contract claim on the licensing agreements might avoid the need for a Second Circuit review.

“The plaintiffs indicate in their briefing that they intend to argue that the contracts ‘were invalid and unenforceable due to duress, coercion, unconscionability, and fraud’ and the court’s March 27 Order indicates that the argument may have significant merit,” Judge Sweet wrote. “A finding in the plaintiffs’ favor on their contract claims in the district court would thus significantly alter — or perhaps moot — their copyright claims in the Court of Appeals, rendering certification improper.”

In his ruling Judge Sweet noted that to preserve their copyright issue for appeal, the plaintiffs should “simply restate their copyright claims in their new complaint,” which could later be presented to the Second Circuit at the appropriate time. The court also granted a motion by Getty Images to compel arbitration of contract, copyright and antitrust claims which the plaintiffs are now pursuing.

In March the court granted the plaintiffs 20 days to file a new complaint and then approved a three-week extension for the amended pleadings to be filed. Then in May, the defendants claimed the photographers had missed that deadline and the case should finally be dismissed. But the judge disagreed, finding “the plaintiffs’ diligence in this case has been more than adequate, particularly as they have represented that they are prepared to file their second amended complaint within 48 hours of this motion’s resolution.

********* UPDATE ***************

U.S. District Judge Robert W. Sweet dismissed the lawsuit in a 129 page redacted Opinion finding that agreements between the NFL and AP along with Getty that allow the NFL to use photos royalty-free are not anticompetitive, writing “plaintiffs have failed to allege a plausible product market limited to NFL-related photographs at this juncture.”  He also found that  the photographers lacked standing and are barred from suing under antitrust laws “because their injuries are too secondary and indirect.” The judge also rejected the photographers’ claim that they “directly compete” with Getty and AP. “Plaintiffs are neither consumers nor competitors in the alleged market for commercial licensing of NFL-related photographs,” Judge Sweet wrote. “Indeed, the [amended complaint] clearly states that plaintiffs have always licensed the photos that they shot ‘on spec’ through third-party licensing agents . . . as such, Plaintiffs argument on this point must fail.”

The court also found that “while each Plaintiff retains copyright in his photos, he provides a broad copyright license to AP in all of his photos that are not rejected by AP.” Such a license allows the AP to “copy, disseminate and otherwise use” those photos. The judge noted that while their agreement requires AP to pay a royalty when it licenses the use of the photographers photos, it does not require that any royalty be paid where the AP receives no licensing fees itself. “the AP Contributor Agreements do not require AP to license the contributors’ photographs to third parties only through a ‘sale’ that would generate revenue and therefore royalties.” Judge Sweet wrote. “Nothing in the AP Contributor Agreements requires AP to issue only royalty-bearing sublicenses.”

The judge also dismissed the photographers’ copyright claims against the NFL because the agreement provided the AP with a valid license to use their images.

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

In October seven photographers filed a copyright infringement lawsuit against the NFL, Getty Images and the Associated Press. This week the defendants responded with a motion to dismiss. The plaintiffs are Paul Spinelli, Scott Boehm, George Newman Lowrance, David Stluka, Paul Jasienski, David Drapkin and Thomas E. Witte.  They claim, among other things, that if they wished to continue licensing their NFL images for commercial uses, “they were forced to transition their NFL content from Getty Images to AP who had the contract with the NFL.” In turn, the complaint alleged that “Getty Images threatened to remove Plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with Plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after the expiration of its commercial licensing deal with the NFL.” The complaint stated “Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the exclusive rights to license NFL content in the future.” 

The photographers also viewed Getty’s threats as “a blatant attempt to leverage its exclusive licensing agreement with MLB and other sports entities in order to force Plaintiffs to leave their NFL content with Getty Images” and “Because certain Plaintiffs had significant non-NFL content at Getty Images, including significant MLB photo collections, Getty Images’ position forced Plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”

In its motion to dismiss the NFL claimed that the use of the photos “was fully within the scope of” its licensing agreements the AP  and Getty. AP claims in its motion to dismiss the lawsuit that the contracts it made with the photographers “licensed AP to make the uses of plaintiffs’ photographs” and also “authorized AP to issue sublicenses” to the NFL and others. In its motion, Getty also sought to dismiss the case and to “compel arbitration or in the alternative to stay the action.” Getty claims that its agreement with the photographers requires that they “arbitrate their disputes” and that the case should be put on hold “pending final resolution of the arbitration” in the event that the court does not grant the motion to dismiss.

Read the filed complaint here.

Posted in AP, copyright, copyright infringement, Getty Images, Motion to Dismiss, NFL, Photographers' Rights | No Comments »

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