Saturday, December 30, 2006

Holiday Musings

I've been so busy trying to get through the holidays and getting my beloved horse settled at his new home that I haven't even checked e-mail in over a week. It's amazing what can pile up in that time.

Rather than being less than a mile from my house, the horse is now being boarded up in Chatsworth at a facility in a neighborhood I'd never be able to afford in this or any other lifetime. He's now a few blocks from the home of science fiction writer Larry Niven and his wife Marilyn. I've been going to their home for parties for years and I had no idea that horses were being kept so nearby. There are beautiful arenas, trails into the hills and over to Simi Valley, and a whole lot of nice people. I've enjoyed the peace and quiet of being there on mornings when there are no lessons and the beautiful views of the San Fernando Valley. In the evening, the sunsets have been spectacular, but it does get cold once the sun goes down.

The speedy execution in Iraq is quite a contrast to our system which drags out for decades. I'm not shedding tears for Sadaam, but I would have been happier if the World Court had handled the trial. How different today is from what happened after WWII in Germany. No one questions the legitimacy of the Nurenburg Trials, do they?

I used to live on the same street that Gerald Ford lived on early in his career in Washington, but not at the same time. Nixon once lived in Park Fairfax as well. It was a townhouse rental development that turned into condos at the end of the 1970s. Located maybe 10 minutes from downtown DC in Alexandria, Virginia, it was a nice place to spend a few years. Ford was president when my ex and I moved to DC at the end of 1975. I photographed election night festivities in DC when he lost (things were much happier at the Carter party, which I also covered that night.) Those negatives must be in storage someplace. Perhaps the Digital Asset Managment seminar I'm taking in January will teach me to keep track of these kinds of things.

I'm working on my new year resolutions, which should include eating healthier and calling my mother more often. Don't know if they will, though. Best wishes for a healthy, happy new year and perhaps for peace. I'd add a couple of other wishes, but the CIA or FBI might want to question me later.

Thursday, December 21, 2006

Photography in the News

There was a nice article in this morning's Washington Post about a retired Department of Interior employee who has photographed the national Christmas tree every year since 1963 (he's in his 80s now) and is the "unofficial historian" of the tree. He does slideshow lectures at retirement homes and such about the tree. He's gone from stills to video over the years to document the tree. It's good to have a personal project.

The New York times did a review of a show of the work of the "Mexican Weegee," Enriquez Metinides (I hope I remembered that correctly.) I was not familiar with him before this morning, but I am always glad to be able to bring some cultural diversity to the classroom. Last spring, it was the work of an African portrait photographer whose work had been discovered.

As I prepare my materials for next semester's Photo 10 class, I look for photographers to add to the collection of artists from which my students will get two about which to write. For the first assignment, I randomly hand out cards which have the name of a photographer and one image by him or her and the student needs to turn in a 2 page report about the photographer the next week. For the second assignment, the students get to look at the cards and pick out an image they like (or, if they are sophisticated enough, they'll pick out one by the name of a photographer they recognize) and turn in a second report. Most students find it a good learning exercise and it is a not too painful way of becoming more visually literate.

I also make my students turn in a gallery or other show review for the last project of the semester. I've had them attend one-person presentations sponsored by APA or concentrate on one photographer or image in a show. Some of them have actually come away realizing how political photography can be and others never get a clue. One of the disappointments about teaching is that students sometimes just can't follow directions, no matter how clear you work to make them or how often you repeat them. I had one student who went up to the Getty for the Weegee show, decided she didn't like it, and wrote about some paintings instead. Nice piece about the paintings, but I wasn't teaching drawing.

There is sometimes surprise about having to write in a photography class, but I explain to the students that they will have to write no matter what they do, and, if they want to be photographers, they will have to learn to write captions, letters, proposals, etc. They need to get over whatever fears they have about putting things into words.

We lose our darkroom next month, prior to the start of the spring semester. I think it is a real shame, especially since students still want to take photography to learn how to process and print. We are going digital because the department is in Media Arts and the department head (a print journalist, not a photographer) believes that film is dead in the newsworld. He may be right, but there are things that can be taught so much better with analog equipment at a much more reasonable cost than in digital--at least right now. Unfortunately, when construction is complete on the campus, there will not be a replacement darkroom. As one of the art instructors here said to me "just because we have photography, we didn't stop teaching drawing or painting." I've read that a number of schools which made early decisions to go totally digital are desperately attempting to get funding to bring back film--and failing. I did a tour of Santa Monica College's excellent facilities and they have no intention of eliminating film. It also has excellent digital facilities. Good decision on the part of the department chair. I've already told a couple of potential students that they should look to Santa Monica if they want to experience the darkroom

Wednesday, December 20, 2006

And the Geek Shall Inherit the Earth

I went off to law school in 1989 to study copyright law. My mentor, a fine lawyer in D.C. who specialized in that discipline, called it geek law: most people don't understand it and it's an area in which most people have no interest. The first part is still true but the second is far from true. I'd be rich if I got a penny for every time I've heard or read mangled copyright or trademark law reporting, but the point is that intellectual property law makes the news on a regular basis these days. In part, that is because intellectual property is the only reason the U.S. has a balance of trade in its favor.

I read Sunday's paper and found a large piece about X17, Inc. suing publicity whore Perez Hilton for copyright infringement. Hilton is quoted about defending his rights and the rights of all bloggers to make "satirical or humorous use of newsworthy photographs." So far, what I've been able to gleen from the reports is that Hilton is making, at best, unauthorized derivative photographs and, at worst, committing a classic case of copyright infringement by reproducing, without permission, photographs copyrighted by X17, Inc.

The legislative history of the 1909 Copyright Act makes it quite clear that publishers like Joseph Pulitzer wanted to appropriate photographs deemed newsworthy without payment to photographers. That effort was actually rejected by Congress thanks to the efforts of independent photographers. If you can find a copy of the 1909 Act's legislative history, it is all there in black and white. I read it in law school when I was writing a paper on work made for hire. People like Perez and corporations which don't want to actually pay for the use of copyrighted material are making that argument all over again and the Internet has definitely contributed to this misdirected sense of entitlement.

Fortunately, the "fair use" provisions of the 1976 act are fact specific, and Mr. Perez's attorney will have a tough fight on his hands if X17, Inc.'s lawyer does his homework.

I'm hoping that the actual filings will be available to read on line. I'm very curious about the calculation of damages, which will shed some light on what business practices X17, Inc. follows.

The reports have stated that the damages claimed are $7.6 million for the unauthorized use of 51 photographs. That's approximately $150,000, or the upper reach of statutory damages, per image. In order to qualify for statutory damages, X17, Inc., must have registered the copyright to each of those images within 90 days of creation OR prior to the first infringement by Hilton. If Hilton's infringement occurred within 90 days of the creation of the photographs and they hadn't been registered at that point, X17, Inc. could still preserve statutory damages by registering the work before the end of that 90 day period. Unfortunately, the law doesn't adequately address the question of what happens when a work is illegally appropriated for publication and this first (unauthorized) publication occurs longer than 90 days after creation.

Lessons to take to heart: If you put it on the Internet, consider it published. Before you put it on the Internet, do a group registration of everything you shot in a session by putting it on a cd or dvd and sending it to the Copyright Office with the appropriate check and get it registered. Registration gets you the right to ask for statutory damages and attorneys' fees (which can be greater than the actual damages, believe me.) Set up a system in your studio for a 60 day registration cycle to take advantage of group registration. All the information and forms you need can be found at Someday, we'll actually be able to do registration and deposit on line, but that's not here yet.

Very few creators actually take the time to properly register their work and fewer yet have made the effort to engage in the systematic registration (and, if necessary, renewal) of their copyright interests. This is the key to the courthouse door.

Failing to register the work prior to the infringement is not a bar to litigation, just to statutory damages and attorneys' fees for plaintiffs (about which more some other time.) That means that X17, Inc. can register the 51 images after Hilton's infringement, but X17, Inc. can't ask the court for attorneys' fees and must prove the measure of actual damages for recovery from Hilton. They may be able to do this based on cancelled licenses or license fees already collected on similar images. Reaching actual damages equal to the statutory $150,000 per image will be tough because it is unlikely that every one of the 51 infringed images has equal value in the marketplace or even value close to $150,000 per infringement. I don't doubt that X17, Inc. makes considerable money from the photographs in which they specialize, but I think they will face a good deal of bias from a court or jury who simply doesn't like what they do, even if the individual judge or jury member gawks over a copy of the National Enquirer featuring X17, Inc. pictures.

Unfortunately, very few lawyers actually understand the business of photography and even fewer judges do. That's why there have been a number of reported rulings which have been extremely detrimental to photographers. Some are so bad that I wonder what the point of registration is if the courts won't recognize the inherent contractual relationship created by copyright registration: the creator pays $XX and U.S. law protects the creator from thieves. Big companies can shoulder the cost of copyright litigation, and often win by force of brute strength (Disney's great at this), but individual creators or small companies have a much harder row to hoe even if every fact and the law is on their side.

The American Society of Media Photographers (ASMP, and you'll see those letters a lot here) has made a concerted effort to support litigation to advance photographer's rights over the past 25 years. It has a network of attorneys who are knowledgeable about copyright law and the business of photography and many of them are willing to give advice to other attorneys who are handling copyright matters. It is better to quash this at the summary judgment stage than having to carry it on appeal.

I'm wondering if Mr. Hilton violated the DMCA by hacking his way past protections that X17, Inc. had in place to prevent infringement. That could be an interesting element of the pleading.