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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 »

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 »

‘Misappropriation’ Art or Transformative Fair Use? It’s Complicated!

October 17th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

In the ongoing copyright infringement case by photographer Patrick Cariou against “appropriation artist” Richard Prince, both sides have filed briefs respectively supporting and opposing the August 21, 2013 petition for a writ of certiorari filed by Cariou, appealing the April 2013, ruling in the case by a three judge panel of the United States Court of Appeals for the Second Circuit. That decision reversed and vacated a 2011 lower district court order involving the application of the fair use doctrine to artistic works. Cariou originally published his photographs in 2000 in a book entitled Yes, Rasta, while Prince’s work was exhibited in 2008 as Canal Zone collages.

In his petition to the Supreme Court, Cariou argued that the Second Circuit ruling placed too much emphasis on whether Prince’s works could “reasonably be perceived” by the judges as transformative rather than properly balancing the traditional four factors involved in determining fair use.

Cariou also stated, “the Second Circuit majority’s ‘I know it when I see it’ approach [to fair use], should it become widely adopted, risks tilting that balance against copyright owners (particularly photographers who may not have aggressively marketed their easily-copied digitized works).”

Cariou also expressed concerned that if the Appeals Court ruling stands it would make copyrights “dependent upon the unpredictable personal art views of randomly assigned judges.”

In his opposing brief, Richard Prince cautioned against “a narrow interpretation of Campbell [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)] that is inconsistent with the goals of copyright and that, if followed, would create a bright-line rule limiting fair use to parody and satire, thereby eviscerating this court’s repeated and well-reasoned rule of law that no bright-line rules exist in the fair use analysis.”

Responding to that argument, Cariou’s attorney said the Second Circuit ruling “distorts Campbell [and] unduly elevates ‘transformative’ into a conclusory buzz word that renders superfluous other important parts of the Copyright Act.”

In that ruling the majority held (with a dissent in part by one of the judges) that the use of copyrighted photographs “as raw material” in creating new “artistic” works may be considered “transformative” fair use even when such works do not “comment . . . on aspects of popular culture closely associated with” the photographs or the photographer who took them.  Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

The district court had initially granted Cariou’s motion for summary judgment, finding that the artwork had infringed upon his copyrighted photographs. The lower court had also entered an injunction compelling “the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.”

But the Court of Appeals disagreed with the lower court analysis of the fair use factors and found that whereas “the district court imposed a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works,’” they believed the proper determination is “if ‘the secondary use adds value to the original – if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” (Internal citation omitted). They also found that “for a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner or for a different purpose from the original’” (Internal citation omitted).  With regard to the transformative nature of the work, the court thought it also critical to determine how the work in question may be reasonably perceived by the reasonable observer as compared with the original work.

To illustrate how difficult these types of decisions are, the case involved 30 pieces of artwork, but the appeals court was only able to make a determination on 25 of them, remanding the remaining 5 pieces back to the lower court for application of “the proper standard” so as to “determine in the first instance whether any of them infringes on Cariou’s copyrights or whether Prince is entitled to a fair use defense with regard to those artworks as well.”

In a five page dissent Judge John Clifford Wallace agreed that the lower court’s finding was flawed, but believed that all of the works in question should be remanded for further reconsideration and factual determination under the legal standard just articulated by majority.  He also opined that “perhaps new evidence or expert opinions will be deemed necessary by the fact finder—after which a new decision can be made under the corrected legal analysis.”

Judge Wallace also took the majority to task for employing its own “artistic judgment” when comparing the transformative nature between the two works. He cautions against departing from aesthetic neutrality in that he would feel “extremely uncomfortable” for him do so in his “appellate capacity,” let alone his “limited art experience.”

Noting the court had appeared to move away from that foundational imperative in determining fair use he cited the admonition by Justice Oliver Wendell Holmes that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

Court watchers believe that the odds of the high court taking this case are slim because no split decisions exist among the other circuit courts regarding fair use. The other factor that mitigates against the court granting the petition is the argument by Prince that the Appeals Court decision is consistent with the Supreme Court precedent on fair use established by Campbell.

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