Tag Archive: copyright
Defamation, Girls, and pictures through a window: recent legal news affecting photography and copyrightMar 25, 2014 by M. Scott Brauer 1 Comment »
There’ve been a bunch of legal developments in the world of photography and copyright in the past couple weeks. Here are a few things that have been on my radar that all have relevance to freelance and staff photographers in the US:
- A woman’s photograph was used in a New York State Division of Human Rights advertisement stating that she is HIV positive. The woman did not sign a model release, but Getty argued that the real culprit in the case is the State of New York. A judge recently ruled that the issue should be taken to trial rather than dismissing the case, as Getty had hoped. The woman seeks $450,000 in damages, according to the New York Daily News.
- A new law has made it illegal to take photos of people without their permission in Hungary. An April 2013 post on the New York Times’ Lens Blog has good coverage of other strict privacy laws around the world, including France’s principle of droit d’image. I haven’t read the original Hungarian law and don’t have extensive knowledge of privacy law around the world, but it seems that the new law in Hungary outlaws the taking of photos without permission, not just the publication of photos without permission; this seems like a new development in photography-related law. Recent legal efforts to regulate paparazzi behavior around celebrities’ children in California would similarly limit the act of photography and not just publication.
- A judge has dismissed the invasion of privacy lawsuit against Arne Svenson for his photographs through windows of a Manhattan apartment building. The judge ruled that Svenson’s photos are protected by the First Amendment. At the time the photos were first shown last year, The Atlantic Cities posted a comprehensive look at the issues surrounding Svenson’s work.
- Calumet Photo (website now down) filed for bankruptcy, leaving employees without pay or explanation. Calumet served as the only local photo rental house in many markets around the US, so their absence will be sorely felt by many working photographers. Calumet also did camera repair work, and many customers have been left wondering what will happen to their gear that was in for service at the time of the bankruptcy. Others had rented gear and now don’t know how or when to return it.
- The defamation lawsuit against Institute photographer and documentary filmmaker Lauren Greenfield brought by the subjects of her excellent documentary Queen of Versailles (wiki) has been thrown out. An arbitrator for the Independent Film and Television Alliance stated that “Having viewed the supposedly egregious portions of the Motion Picture numerous times, [the Arbitrator] simply does not find that any of the content of the Motion Picture was false.” By the way, I recently saw Greenfield speak, and she provided a fascinating and revealing look at her process and how her work, from this documentary to her early work on the French aristocracy to girl culture to rich children, fits together. If you’re near one of her lectures, I’d strongly recommend going.
- The 9th District Court of the United States recently ruled that Alaska Stock had valid copyright registration for images in its collection, despite only listing some of the image authors and titles. This one deals with the nitty-gritty of copyright registration, but it’s a departure from an earlier ruling by the U.S. District Court for the Southern District of New York regarding Corbis’ copyright registration on behalf of its contributors. You can read an explanation of all of this at Photo Attorney.
- A police officer forcibly removed Baltimore Sun photo editor Chris Assaf from public space outside the scene of a police-involved shooting. The Sun’s Darkroom blog has the story about what happened, and it fits right alongside other cases in which police have overstepped their bounds in limiting press access in public areas.
- The Beastie Boys and GoldieBlox have reached a settlement regarding the unauthorized usage of the Beastie Boys’ song Girls in a GoldieBlox ad (the music has now been replaced) that went viral last year. The ad was for a product that encouraged young girls to build and construct, and at the time, commentators felt that it was a positive appropriation of a misogynistic song. People argued “fair use” or that the Beastie Boys should just let it happen, despite a stipulation in Beastie Boy Adam Yauch’s will that read “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.” The settlement requires that GoldieBlox post an apology on their website (now visible at the bottom of the homepage) and donate a percentage of the company’s revenues to “one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls.” That strikes me as a great solution: the Beastie Boys’ art is not used against their will and donation achieves GoldieBlox’s (and hopefully everyone’s) goal of getting young girls interested in topics usually dominated by boys.
Released on October 15 as the New York City mayoral race heats up, Joe Lhota‘s newest campaign video “Can’t Go Back” uses still photography of violence in New York’s past to scare voters away from voting for his opponent Bill de Blasio. However, Lhota did not pay for the licensing of many (perhaps any) of these still images, which includes work by Richard Sandler, Matt Weber, Q. Sakamaki (image from Tompkins Square Park riot in 1991 above), and Eli Reed. Sandler and Weber have reached a settlement with the Lhota campaign, but Sakamaki and Reed have both told Newsday that they are still upset at the usage and infringement. Newsday has identified all of the images used in the campaign ad, finding that one is actually from Bloomberg’s term in office.
According to Newsday, a spokesperson from the campaign says they found the images on flickr and they were tagged as “royalty-free,” and that they did their best to contact images owners given that information. That seems like a object lesson in the difficulties faced both by photographers and image users.
“In Illinois, if a person dies without a will, their property goes to their closest living relatives. But if they literally have no living kin anywhere in the world, then the decedent’s property will ‘escheat’ to the State of Illinois. That rarely happens, though, because the law is written so that the property will go to the decedent’s relatives, even if they are very distant.” – Steven Dawson, a trusts and estates lawyer with Bryan Cave LLP, speaking to Gapers Block
We’ve written about Vivian Maier before (first all the way back in 2009), and you’ve probably read or seen much more. I just saw one of the traveling exhibitions of her work at Brandeis University outside Boston, and it’s well worth going to see her work in person, if you can. There’s a recently-released documentary (trailer above, IMDB) that seeks to get the bottom of just who this woman was. There may be a biopic in the works. There have been exhibitions and publications of her work all around the world. Two books have anthologized her photos: Vivian Maier: Street Photographer and Vivian Maier: Out of the Shadows.
All of these books and movies and exhibitions stem from three separate collections of Maier’s work bought at auction after her death. The larger and more well-known collection is John Maloof’s, but Jeffery Goldstein also controls a substantial number of images (here’s a piece on Lens about that collection. A third man, Ron Slattery, bought a smaller collection of negatives and prints in 2007, before Maier’s death, though I can’t find a link that collection. A forthcoming book, Vivian Maier’s Fractured Archive, tries to make sense of all of these different collections and the woman herself.
The question remains, however, of just who owns the copyright to these photos. Ordinarily, copyright of unpublished works with a known author stays in place for 70 years after the death of the creator. Maier died in 2009, which means her copyright belongs to her heirs until at least 2079. But because Maier left no will and had no known heirs, the ownership likely goes to the state of Illinois, where Maier died. As Chicago-area web publication Gapers Block reports, “First, the state could do nothing, which would allow the owners of her work to continue with their ventures. Second, if the state decides it is the rightful owner of Maier’s work, cease and desist letters will be sent to the current owners explaining the laws of succession, how the state is now the main beneficiary, and that any selling of her work needs to stop and all profits made would need to be paid to the state.”
Maier’s photographic legacy now is worth thousands, if not millions, of dollars, so the state and the stewards of the various Maier collections have a compelling interest to maintain and exercise their ownership of these materials. It will be interesting to see how this legal situation plays out over the coming years.
You might not know that the President of Chechnya is pretty active on Instagram (181,248 followers as of this writing). The posts are mostly from official meetings and his travels. Yesterday, a post featured a beautiful photo of sheep on a hillside in the Alps. The photo was actually taken by Herbert Schroer, who posted about the image theft on twitter and instagram. Ordinarily, addressing a copyright issue such as this would involve a pretty straightforward plan of action, but what do you do when the violator is the president of a far-off country?
“In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, paintings, writing, publications, photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times. (Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws.)” -useless notice going around Facebook right now
Facebook has always had a pretty sketchy set of user guidelines (seriously, read that link!). They can do pretty much whatever they want to do with whatever you post or upload onto the site. Photos, messages, ridiculous cat pictures, whatever…. By virtue of having a facebook account, you have already given facebook the worldwide, sublicensable, royalty-right to do anything they want with photos, video, and text. Here’s the relevant copy from their terms of service:
“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacyand application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” Facebook’s terms of service
Any copyright notice, especially one referring to the nonexistent “Berner” convention (it’s the Berne Convention for the Protection of Literary and Artistic Works), will do nothing for you. You only have 3 ways out of this agreement with facebook: 1. Don’t have a facebook account, 2. Negotiate a special agreement with facebook (good luck!), or 3., Delete your facebook account.
Well, I’ll admit to a mistake when I’m wrong. Thanks to Colin M. Lenton for writing in to let us know that AOL’s StudioNow looks ok for photographers. The contract for video work is a Work For Hire arrangement, but the photo contributor contract allows for 3 levels of rights transfer for photography: buyout, limited exclusive license, and non-exclusive license. Read the relevant bit here:
“For each engagement, StudioNow shall acquire: (a) ownership rights; (b) an exclusive license; or (c) a non-exclusive license to all work performed under the applicable engagement. The type of rights granted or assigned by Filmmaker shall be designated by StudioNow and such designation shall appear in the engagement packet or assignment as applicable.” -StudioNow photo contract, accessed on 16 December 2011
The standard wariness for approaching a job still applies. If the contract calls for a buyout, make sure you’re getting compensated for giving up your copyright. Fees should be quite high for such an arrangement, but copyright, like everything, can have a price. For limited exclusivity or non-exclusivity, fees should be less. Be aware of your copyright.
As it looks now, StudioNow might well be a good opportunity for photographers looking to get into corporate and advertising work.
UPDATE (20 March 2013): TurnHere is now known as SmartShoot and remains a rights grab.
We try to publicize good opportunities for photographers through the blog here and our deadline calendar. In deciding whether or not to include a contest or call for entry on our calendar, we look at the terms and conditions of submitting work to the contest. A good contest, in line with Pro-Imaging’s Bill of Rights Standards for Photography Competitions, promotes the winners’ work while respecting them and their work. Usually, this means by entering or winning a contest, the photographer retains all rights to his or her images and that the contest and its sponsors can use the submitted or winning images only to publicize the contest and its winners and only for a short time period. All of the contests on our calendar conform to these basic guidelines.
But we see a lot of contests that have bad conditions for entry, usually in the form of a “rights grab,” which you’ve also probably encountered in contracts for assignment photography. A “rights grab” takes your copyright away from you, preventing you from reselling your work ever again and, potentially, from even showing your work in your portfolio. It’s a dirty tactic, and it’s sad to see how many photo contests have rights grabs. A good rule of thumb is that any contest run by a travel-related company (airlines, luggage companies, resorts, etc.) is a rights grab. For the organizations in charge, running these contests is a quick, easy and cheap way to build an image library for its future use. Why should an airline company, for instance, pay fees to photographers to take pictures of tropical destinations when all of their paying customers will just send in their travel pictures for free? It’s a bad deal for photographers. Your rights have value. Here’s a short mention of one photographer earning upwards of $140,000 by relicensing images to the same client over 8 years. Had the photographer worked under a buyout, work-for-hire, or other rights grab situation, he would have made nothing beyond the initial fee. Had he submitted them to a rights-grabbing photo contest, he would have made nothing at all.
I thought I’d share two rights grabs that recently caught my attention because they at first seemed like interesting opportunities for me to gain exposure and future work.
National Geographic’s My Montana contest features a pretty standard rights grab. It’s particularly sad to see National Geographic taking advantage of photographers in this way, especially since the organization has been so supportive of photography and photographers since the beginning of the craft. Here’s the rights grab, from the contest’s rules‘, Section 4:
Submission of an entry grants Sponsor and their agents a license and right to use, publish, adapt, edit and/or modify such entry in any way, in whole or in part, and to use such entry alone or in combination with other works, as solely determined by Sponsor, in commerce and trade and in any and all media now known or hereafter discovered, worldwide, including but not limited to the Website, without limitation or compensation to the Entrant and without right of notice, review or approval of any such use of the entry.
Reading that section, it’s clear that by entering a photo in the contest, you give National Geographic and the State of Montana the unlimited, perpetual, worldwide right to use and publish your photos anywhere for any purpose. National Geographic could publish your photos in one of their books, or sell it as a poster on their website, and you wouldn’t see a dime. If Montana’s Office of Tourism wants to put your photo on a billboard in Times Square or on the side of a train in Minneapolis, they don’t have to pay you. And they could do it now, next month, or 300 years from now, and you wouldn’t know. I personally know the value of this. Montana’s Office of Tourism recently contacted me to license a photo for this year’s winter tourism guide (page 9 of this PDF). It was a very small usage, but it paid for rent. Had I submitted the photo to the contest, it wouldn’t have won and they could have used the picture for free. I would have lost twice, and possibly many times in the future, too.
I tried contacting National Geographic through the contest website and twitter, but have not gotten a response.
About a month ago I received an email from TurnHere with the subject line: “Hiring Professional Freelance Photographers.” The email said, “We’re growing our network of professional photographers and like what we’ve seen of your work. TurnHere provides paid shoot jobs to our photographers on behalf of some of the world’s premier brands (Google, Microsoft, Audi, . . .) and we’d like to invite you to apply to our network as part of our early access program.” Corporate work is a growing part of my business, and it looked like an interesting opportunity. After seeing the website, it looked even better: more than $12 million paid to creatives, $100,000 made by a single person this year, 600+ jobs currently available through the system. Sounds great! But the Independent Contractor agreement is really ugly. For instance, Section 4.a and b:
TurnHere is the sole and exclusive owner of, and Independent Contractor hereby irrevocably assigns to TurnHere all Deliverables, regardless of whether such Deliverables are specified in any Project description, and all rights, title, interest, and ownership throughout the world in any Deliverable, including all Intellectual Property Rights in and to any Deliverable. Independent Contractor hereby irrevocably and unconditionally waives all enforcement of each of the foregoing rights. All Deliverables are and will belong exclusively to TurnHere, with TurnHere having the right to obtain and to hold in its name, any and all Intellectual Property Rights. … In jurisdictions such as Canada, where moral rights may not be assigned, Independent Contractor irrevocably and expressly waives in favor of TurnHere and agrees never to assert any and all “moral rights” that it may have in any Deliverable.
That’s hard to parse, but what it means is that you never own any pictures you take as part of TurnHere and that you can’t even show them as part of your portfolio. More than that, there’s no requirement that your work will be credited to you once it’s used in an advertising campaign. You’ll get paid (though I don’t know the rates) but you’ll have nothing to show afterward. Everything you do for the job becomes the property of TurnHere. This hurts you in a couple of ways. You can’t relicense any of your pictures to the original client or future clients. This may not seem like a big deal when you’re looking at a commission and don’t have a lot of other work, but subsequent licensing fees can and should be a part of your future business. I know a couple of photographers who’ve recently paid for cars and houses through corporate use of photos that started out in an editorial assignment.
Steer well clear of TurnHere and any other such deals. By taking part in such a scheme, you’re crippling your future earnings and making it difficult even to market yourself through your previous work. TurnHere suggests that by working through them, you’ll be able to associate yourself with some of the world’s top brands, but reading the above excerpt of their agreement about “moral rights,” your name will not be associated with the pictures you make for these companies. The only way to get work is to show your previous work. Here, you don’t have the right to show your photos without permission of TurnHere after the fact. By agreeing to work for TurnHere, you’ve pulled the rug out from under yourself before you’ve even begun.
I emailed back and forth with a representative from TurnHere to try to figure out what was going on here, and they seemed receptive to input from potential contributors. But communication died off without getting an official response from the company.
The sad fact is that rights grabs are becoming more and more common. The good news is that sometimes you can negotiate away a rights grab in a contract. I’ve had to do just that a few times this year. In a couple of cases, I was successful and achieved a decent fee for a limited usage of my work. In other cases, I’ve had to turn down the work because it was a bad deal for me. And I’m not a copyright absolutist. Everything can be had at a price. If someone wants to pay a million dollars for perpetual, exclusive rights to a photo shoot, I’m all ears. I have sold full copyright to one image in my career, and it was for a very nice fee.
Contests with terms such as in National Geographic’s My Montana contest and assignment contracts such as TurnHere’s make the future sustainability of a photographer’s career all but impossible. The best way to protect yourself is to educate yourself and keep your rights. You never know what images will sell down the line, and you don’t want to decimate your future earnings. A good place to start with learning about contracts and rights is with John Harrington’s excellent Best Business Practices for Photographers book. And here are a few tips on how to avoid a rights grab and how to deal with rights grabbing photo releases common in the music industry.
UPDATE (20 March 2013): TurnHere is now known as SmartShoot and remains a rights grab.
Google Image Search recently received a major upgrade in the form of a search by image function. By uploading an image to the search engine, or using an image url, Google finds images that it thinks are the same or similar. Reverse image search isn’t new–TinEye has been doing it for a while–but Google’s massive indexing capabilities make it a cut above the rest. These tools are useful for finding the source of images online, and for photographers, offer a powerful opportunity to find copyright violations. But uploading an image each time you want to do an image search can be tedious. Enter src-img.
Now, once you’ve found an infringement, you’ve got to figure out what to do about it. Photo Attorney Carolyn Wright offers both a list of ideas of what to do once your work has been infringed, and, on the PhotoShelter blog, ways you can protect your images from infringement online.
“[B]y their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites. . . . the provision that Twitter ‘encourage[s] and permit[s] broad re-use of Content’ does not clearly confer a right on others to re-use copyrighted postings” -Agence France Presse v. Morel, 10 Civ. 2730 (WHP) (S.D.N.Y.; Dec. 23, 2010)
A judge has ruled that Twitter and Twitpic’s licensing terms do not extend to third parties, that Morel has a valid copyright infringement claim, and that any information identifying the copyright holder (so-called “copyright management information”) must be distributed alongside copyrighted material. All three of these rulings are a boon to photographers and other content creators and should have influence well outside the bounds of Twitter and Twitpic. Eric Goldman’s blog has the best analysis of the ruling that I’ve found, though the New York Observer’s “Hands of my blizzard Twitpics” gets an honorable mention. The court’s full ruling is available here.
The Photojournalists’ Cooperative is shaping up to be a great resource. A facebook group now numbering well over 2,000 members, the Cooperative is designed as a place
“to give freelance photographers a platform where they will exchange ideas and help each other maintain high standards as they navigate the dramatically changing business of photography in the areas of: image licensing, contracts and copyright protection.”
The group admins are an impressive array of working photographers, and the membership is a diverse range of people from those just entering the industry to well-established photojournalists. There’s a little more information at lightstalkers, and much more in the facebook group. Membership is open to anyone, but you must have a facebook account. And while you’re logged in to facebook, consider linking up with us, too.