Between the Cross-hairs

Common Dreams sent out a press release from photographer Jeffrey Sauger today. The text can be read here. Mr. Sauger of Royal Oak, Michigan and Jim West of Detroit were both arrested in Toledo, Ohio two years ago while covering "a rally by a small group of Nazis outside the Government Center building." According to the release, the police out-numbered the Nazis and the counter demonstrators by 5 to 1.

"Sauger was arrested on a charge of 'criminal trespass' as he tood in a media enclosure carrying professional cameras and lenses photographing the scene. Police charged that he lacked a 'temporary media permit' that had been issued to some journalists earlier in the day. Arriving later, carrying his own press credentials, Sauger said officers had told him he didn't need the pass.

"West was arrested as he stood, alone, taking photographs near a line of horses that was being ridden past and through counter protesters. He was charged with 'failure to disperse.'

"Charges of disorderly conduct against a third news photographer, Jeffrey Willis of the Toledo Journal, have been dismissed. Willis was also arrested while photographing the police response to a crowd of anti-Nazi protesters."

I note these are still photographers, not videographers for a TV station. More than 20 years ago, I was harassed by the DC police while covering an event for the Washington Post. The TV cameramen standing virtually next to me were not bothered. I have always theorized that they could have been on TV instantly but the paper wouldn't hit the stands until hours later. In this case, I suspect Mr. Willis was backed up by his newspaper's lawyers, whereas Misters Sauger and West are from out of town and were freelancers. They didn't have corporate lawyers backing them up.

Photographers have enough to do when on these kinds of assignments and the last thing a pro would be doing is interfering with the actual events. So they must have been photographing things that the police didn't want covered. The press release says the photographers were photographing how the police were treating the peaceful anti-Nazi protesters.

So the police were supporting the Nazi demonstrators?

I haven't uncovered any other coverage of this by the main-stream media. That's not a total surprise. Who cares about the rights of a couple of freelance photographers anyway? I do wonder if the National Press Photographers Association or Photo District News has covered this in any way. I don't recall seeing any squib in ASMP's literature, either.

Freelance photographers are really alone out on the front lines. They can make really easy targets for frustrated police officers.

Just Because You Own a Copyright...

I've given lectures to lawyers about this one: just because you own a copyright, doesn't mean you can do anything you want with a picture, particularly if someone's face is recognized. This comes up today because some minor in Texas discovered a photograph of herself being used in a large advertising campaign in Australia. The photograph was taken by the girls church youth counselor and posted to Flickr.

It seems that people who are foolish enough to put their photographs up on Flickr for "sharing," are finding their photographs used commercially, which is what happened to this photograph. Some moron at Virgin Mobile Pty Ltd., in Australia released a statement that "The images have been featured within the positive spirit of the Creative Commons Agreement, a legal framework voluntarily chosen by the photographers. It allows for their photographs to be used for a variety of purposes, including commercial activities." Right. But the subjects of those photographs have rights which they have not necessarily conveyed to a photographer.

Ms. Chang's photograph is now being used to advertising Virgin Mobile. In the U.S., there is absolutely no blanket right to use someone's image this way without their express permission and the damages can be substantial. In one of the articles I read, Ms. Chang's lawyer has handled cases like this before (I'm glad to hear) and expects a substantial return. I did do some brief checking about Australian law, and it would seem that Ms. Chang's position there is similar to the way it is here in the U.S.

I am not so sure the photographer, who didn't grant explicit rights to the photograph, will make out quite as well, but then, I haven't read the Flickr agreement to see how many holes I might be able to shoot through it. The photographer is not being sued by Ms. Chang. Apparently Virgin Mobile USA is.

I do note that the case has been filed in a state court in Dallas, which is the right venue for Ms. Chang, but probably not the right one for the photographer. Even if his theory of the case has to do with a breach of contract issue (Flickr photographers "Creative Commons" agreement has something to do with getting credit for usage, which didn't happen), it would seem to me that would have to be subsumed by any copyright claim that would attach to this issue. I truly would like to see the pleadings in this case.

So, get a model release--although even then it may not be enough. A few years ago, a professional model won at judgment of $15.6 million when he discovered his face on a Tasters' Choice label. Despite the fact that he had been paid for a 2-hour shoot back in 1986, his contract must have had provisions for actual use. The company used the photographs in the U.S. and Canada for many of the intervening years until Russell Christoff ran across a jar in his supermarket. He was able to collect a percentage of company profits for a 6-year period. I don't know what happened on appeal, but the company could not have been happy. Even a settlement would set them back more than the offer they made early on.

I am interested in seeing whether this helps professional photographers who are having a hard time competing with rank amateurs these days because of the Internet. My mother always said, why pay for milk when you're getting the cow for free.

A Bill to Restrict Use of Celebrity Images

I received the following advisement from ASMP in my e-mail. A prior e-mail had advised contacting the Senate, but didn't even mention the Assembly. Photographers in L.A. should have shown up at the office of sponsoring Senator Kuehl, but it's too late for that. She, like the governor, has her roots in acting (she worked under the name of Sheila James, and played Zelda on the old Dobie Gillis show) and I doubt that the governator's going to refuse to sign this bill. While my read on it is not quite the same as ASMP's, I suspect it will take a lawsuit to find out exactly how far the legislation actually goes to damage the value of older images.
**********************************
The California right-of-publicity bill (Senate Bill 771) has now passed in the Assembly. There are only two things we can do to improve the situation:

1. Call your Senator and ask that the bill be amended by deleting Subsection P, which is the provision that makes the legislation retroactive —- THIS MUST BE DONE BY FRIDAY.
2. Call the Governor and ask him to veto the bill.

It is crucial that you act right away! After Friday, it may be too late.

Please call your state Senator’s office. Here is where you can find his or her contact info:

http://192.234.213.69/smapsearch/framepage.asp

Governor Schwarzenegger’s main office telephone number is 916-445-2841.

Just tell the person who answers the phone that you are a constituent and admantly opposed to Senate Bill 771. Tell your Senator’s staff member that you want the bill amended by deleting the retroactive aspect, Subsection P. Tell the Governor’s staff member that you want him to veto the legislation.

It will only take a couple of minutes of your time, but those few minutes may save you years of problems.

Please feel free to pass this message along to other photographers you know who may not have received this message.

This is probably your last chance to prevent this bill from going through in its current form.

Thank you for your help and cooperation.

Fair(y) Use

Looking at the date of my last post, I have been incredibly remiss about this blog. I've been much better about the one you'll find on the link list to the right, but that one's not for legal issues (usually.) There's actually been some interesting developments in the law over the past couple of month and I will try to get to them here.

First off, though, I want to commend "A Fair(y) Use Tale" as a primer on copyright law before the Walt Disney Company does something to get it off line. I'm pretty sure that the creator of the video has a good argument for the fair use of the Disney material (it takes only as much as necessary to make its point, it doesn't interfere with the market for the original, it's transformative, it's educational, commentary AND parody.) That doesn't mean that he or she will avoid the wrath of the Mouse House because, as we learned from the Air Pirates case long ago, you don't f@#% with the Mouse. This video will teach you the basics of copyright law in about 10 minutes.

Viacom Takes on YouTube and the DMCA

The Digital Millennium Copyright Act (DMCA), one of the worst ideas every pushed through Congress, was passed in 1998 and has been the shield behind which ISPs have clustered when copyright holders seek restitution for blatant infringement of registered material. The DMCA has succeeded in protecting not only ISPs, but the individuals who actually post the material, often because ISPs refuse to cooperate with providing information which will lead to the actual infringers and ISPs often go out of their ways to avoid knowledge on the individual infringers true identitites. ISPs usually will take down the material which is identified under the formulaic "notice and take-down" provisions, but will do nothing to pro-actively prevent repeated infringements of the same material. The ISPs, hiding behind the formality of notice and take-down, require the demands be sent again and again rather than recognizing what is happening and setting up systems which can police repeated infringements.

Google and YouTube were sued by Viacom for massive copyright infringement recently, and finally some attention is being paid to the burden the DMCA notice and take down provisions place on a copyright holder when the same material is continually being reposted to the same web site. At what point is an ISP or other web entity going to be held accountable under the legal concept of constructive knowledge?

As Harlan Ellison's first attorney in his case against Internet infringement, I have first-hand knowledge of the difficulty of policing the Internet for infringement. You need to track down the infringement, track down the infringer, track down the ISP, find the agent for notice of infringement (and hope that the information on the Copyright Office web site is accurate--which AOL's was not), send the notice, make sure it is followed, and keep an eye out for a repeat posting of the material which was taken down, so the whole process can start over again. In Harlan's case, the same initial scans of his works are the ones which have been re-posted all over the world--the metadata gives it away every time.

The Ninth Circuit did address constructive knowledge in Harlan's case because a number of writers attempted to notify AOL, through its various technical support numbers, of what was posted on the alt.binaries.e-books newsgroups. Even though the individuals were not the writers of the actual books posted (and, consequently, had no standing to send a notice and take-down demand as outlined by the DMCA) my reading of the decision is that those phone calls gave AOL constructive notice of the infringement of copyrighted works on a newsgroup it chose to provide to its subscribers. That constructive knowledge is a benefit to a copyright holder trying to pursue damages under the DMCA.

In my perfect world (and, I suspect, that of Viacom) Google (which owns the service where you are reading this blog) and YouTube should find themselves liable where they have received notice at least once of material owned by the Plaintiffs. Google and YouTube may be even more culpable, since they have attempted to arrange licensing for the materials at issue and were not able to come to an agreement. Copyright law does not give a print-publisher the right to take material when an author says "no" and this same right should exist in the cyber world as well. If it doesn't, what is the incentive to actually register material under the U.S. copyright formalities. Frankly, what is the incentive to create if there is inadequate compensation for creating.

I have often said I'd be perfectly fine living under a patron system where I could make the photographs I want to and someone would pay me a nice stipend to cover the lifestyle I'd like to live. Unless my husband finally is compensated for creating Wolverine, I doubt that will happen in this lifetime. I earn my money for the photographs I take by licensing their reproduction and I have a small body of registered work which has earned me a nice income over the past 20 years, even if I don't pick up a camera much anymore. My work is infringed on the Internet and sometimes I have no idea how it has happened. Usually I do. The most common way is when the material has been copied from the Grolier's CD-ROM Visual Encyclopedia of Science Fiction, which was published in the early 1990s. I licensed over 100 portraits to that work and I occasionally run into them if I do a search on my name or the name of one of the subjects. My license to Grolier's was not a license for anyone else to copy, distribute, display, or otherwise use my photographs. Every such use without permission and payment is an infringement.

There are several things in the way of me effectively combating the war on my copyright: Under the DMCA, the deepest pockets are effectively protected. It is almost impossible to find out the real name and location of a specific infringer without an expensive fight against the ISP because the subpoena which was supposed to be available under it is ineffective (and, when I started Harlan's case, pretty much unavailable; the Clerk of the Court of the Central District of California had no idea what I was talking about and when rules were finally put into place the following year, the cost for one was the same as actually filing a law suit--not the intent of the law.) Once a work has been put up on the Internet, it is almost impossible (or beyond my ability to pay) to track every place it has been copied. Even if I can locate the infringers, many are in foreign countries and pursuit would cost more than I would be likely to recover. There are still foreign countries which don't recognize copyright rights. Life is too short to spend it all at war when the law is supposed to protect me.

In the U.S. there seems to be this perception that copyrights are all owned by big, greedy corporations so who could possibly care if they get ripped off. That was certainly the reaction about Napster when the music companies started going after the individuals who used Napster and its progeny to steal music. That's the reaction when the motion picture industry goes after the people who are "trading" digital copies of films.

The truth is that there are many, many individuals who are harmed by unfettered copyright infringement: writers, photographers, and illustrators who have no collective bargaining agreements and who rely on royalties or licensing fees to supplement their income after their initial compensation for a work and screen writers, actors, and directors who are subject to collective bargaining agreements which give them a (tiny) share of the revenue stream of television and motion picture productions.

I did a spit-take when I read the complaint against Google and YouTube because the studio invoked the "little people" who are harmed by the infringements. They won't give the writers, actors, or directors a percentage based on all revenues, only 20% of revenues, but, boy, those are the folks really harmed and why the suit is being filed. HAH! It reminded me of being in the Supreme Court for arguments in C.C.N.V. v. Reid and hearing the C.C.N.V. lawyers talk about how the homeless would be harmed if James Reid was the owner of the copyright of "No Room at the Inn" and not C.C.N.V. Sandra Day O'Connor, bless her, pointed out the big businesses (the computer industry and big publishing) which had come in on C.C.N.V.'s side because a narrow reading of the work for hire provisions as they applied to freelancers would cost their industries big time.

Despite my sarcasm about the complaint, I stand firmly with the plaintiffs in this case. Google's motto may be "Don't be evil," but there is a clear disconnect between what they are doing and the reality that it is evil to allow individuals to steal on a massive scale and to do nothing more than follow the letter of the law. If the court in this case recognizes the importance of constructive knowledge, there's a change that Google will have to acknowledge the spirit of the law as well.

All this being said, I like Google and YouTube as products and I wouldn't mind working for Google (which is said to be one of the best companies to work for in America) if it starts paying for the content upon which it is built (that includes the absurd scanning project where they expect copyright owners to have to opt-out rather than being asked for permission.) Google is awash in money, and some of it should go to the copyright owners. If a copyright owner doesn't want its material used, Google should graciously find other content. There's plenty out there for the right price.

A Bite of the Apple

The big news is that Apple and Apple Corps have settled their on-going litigations (going back 20 years) over trademark rights. This is why I pratice copyright law.

First of all, I've never confused the computer company with the music company and god knows their logos look nothing alike. I don't think that the two logos have any likelihood of confusion at all. I was looking at the granny smith this morning and I have to ask: didn't the Beatles' Apple used to show the cut inside of the Apple on its vinal labels and wasn't there something actually risque about the look? Nevertheless, that's a far cry from the rainbow-striped bitten logo of the computer company.

Back when the issue was that the computer company agreed it wouldn't go into the music business, I confess I saw trouble ahead. I mean, how could Apple not believe it would someday be involved with music. So, I was a bit surprised by the recent court rulings (and certainly by its reasoning) that Apple Corps lost.

I think both companies are better off with a settlement now rather than after dragging this through the appeal process. Apple makes money, Apple Corps makes money, and possibly the world of iPod users (or which I am not one) gets to hear the Beatles through itty-bitty head phones. Me, I'm trying to locate a new turntable and stylus so I can listen to my original Beatles (yes, purchased 1964-1970), some in the original mono.

Why Register?

I was having dinner with a friend who's been representing a photographer who sued Court TV for using a photograph of his after he refused to license the photograph to him. The case settled after my friend beat out the summary judgement motion of the other side. The case took a lot out of him, and since it was a settlement, he couldn't talk about it. I hope he saw compensation for the work he did, because he took it on a contingency and I didn't think the facts were going to let him get statutory damages or attorneys fees.

From the papers I read as it was going on, one of the arguments the other side made was that it was fair use to use the photograph because it was a newsworthy event. In fact, the photo was a wedding picture and the wife was convicted of murdering (or having had murdered) her husband. (It's been a while since I read over the papers.) I worry every time I hear the argument that some news organization thinks it should be able to use photographs without compensating the photographer because of "news." I know there are judges out there who believe that or who simply don't grasp the importance of licensing photographs to a photographer's business health. They just don't get it.

Back when the 1909 Copyright Act was working its way through Congress, the big newspaper men of the day tried to get a news exception for the use of photographs, meaning any photograph they deemed "newsworthy" could be published without permissiosn of or compensation to a non-employee photographer. In those long ago days, a small group of photographers managed to convince Congress to reject this move. I was amazed when I discovered this when reading through the legislative history of the 1909 Act, because photographers were far less involved with shaping the Copyright Act of 1976. Fortunately, ASMP and other organizations have been far more active in Washington on behalf of photographers during the past 20 years than they were during the middle of the 20th century.

Back to the question of "why register?" Because excellent lawyers like my friend can't afford to take on contingency cases without the likelihood of recovering their fees and the best insurance that will happen is when a photographer has a registration which was made before an infringement takes place. That registration will most likely avoid litigation of any kind, or at least stop it at the summary judgement stage--early in the proceedings.

Today at the workshop, Seth Resnick addressed the registration matter as part of the work-flow process. Every time he processes his digital files, he's automatically making the low resolution jpegs which will be sent off to the Copyright Office on a cd. I expect that when he covers this a little more tomorrow, he'll let the class know how often he sends material to Washington. I spent some time advising a couple of photographers to do it on a 60 day cycle, to make sure the registrations take place during that 90 day window after first publication. I advise they be done within 60 days of creation. It's cheap and easy to register unpublished images, but so few images are really unpublished anymore, with photographers uploading to web galleries. Make no mistake--that's a publication..