Defamation, Girls, and pictures through a window: recent legal news affecting photography and copyright

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:

NYC mayoral candidate Joe Lhota steals photographers’ work for campaign ad

Screenshot of Joe Lhota campaign ad Can't Go Back with Q. Sakamaki image used without permission.
Screenshot of Joe Lhota campaign ad Can’t Go Back with Q. Sakamaki image used without permission.

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.

Who owns the copyright to Vivian Maier’s street photography?

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

 

UPDATE (9 Sept. 2014): A new possible heir has come forward in 2014 which may soon lead to lawsuits over the issue of Maier’s copyright.

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.