SOPA And Photography

You have the DMCA so you don’t need SOPA (or PIPA).

Like many have suggested SOPA is like banning cars because bank robbers use them to get away. Overkill basically. And, in the wrong hands, ripe for abuse.

Also, there are some serious problems with the way SOPA is written, as Clay Shirky explains in the video below: It reverses the burdon of proof and doesn’t actually stop you from reaching a website. I think it will cause more problems than it solves.

Buuuuuuuuuut, let’s not kid ourselves here. As much as Hollywood and media conglomerates want to protect their businesses, Google and Facebook want to steal it. Nobody is fighting for your rights. They’re simply deciding who will be in control of the copyrighted material you produce.

This is a very difficult position for photographers to be in. You would like to take down rogue sites plastered with your copyrighted content when they don’t respond to DMCA notices and at the same time media conglomerates are finding ways to undermine your ability to make a living producing copyrighted content. Ultimately, I think it is best to not side with the Media Conglomerates. Their business model is dying. Breaking the internet will not fix it.

Remedies for Copyright Small Claims

If you’re taking some time off this week and next you might consider this interesting copyright development that Josh Blumental pointed me to:

The Copyright Office has been asked by Congress to study the obstacles facing small copyright claims disputes, as well as possible alternatives. Specifically, the Office is to undertake a study to: (1) assess the extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution.

The want to know “how copyright owners have handled small copyright claims” and look into obstacles and possible alternatives to the current process. That’s because, not all copyright holders have the resources to bring a federal lawsuit if there is infringement (more here).

There is a Submission Form that closes on January 16, 2012.

Bob Dylan’s Unoriginal Paintings

Seems that the Gagosian Gallery of Cariou v. Prince fame can’t stay away from artists using photography to make their art. This time it’s Bob Dylan who takes photographs, repaints them and then claims they are “firsthand depictions of people, street scenes, architecture and landscape.” How about secondhand Bob:

Read more at the and

Orphan Works Rears Its Ugly Head Again

Uh oh, looks like orphan works is going to be one of those perennials until something is figured out. To Recap, there are books, movies, music and photography in the possession of archives and libraries where the author is unknown or cannot be found. These “orphan works” are copyrighted and cannot be reproduced or incorporated into new works (e.g. a documentary containing footage and photographs) without violating copyright law. Recently google tried to scan and make available out-of-print/orphan books after reaching a settlement with publishers so that authors (and publishers naturally) would be paid each time a book is viewed online. The agreement was opt-out (meaning you had to tell them to remove your book which meant orphaned books would be included) which caused Judge Denny Chin of the US District Court to reject the deal because it went too far in granting Google rights to exploit books without permission from copyright owners.

Now, the Author’s Guild is suing the University of Michigan and other college libraries for their plan to digitize and make freely available, books whose author cannot be found. According to

The universities want to make digital copies of the orphan works available to their students and scholars beginning in October. Librarians say they will make a careful search for the author before they make a book available and that they will “turn off” the digital copy immediately if an author comes forward. They believe that these steps will make the sharing “fair use,” meaning they would not be liable under copyright laws that call for fines of thousands of dollars every time a work is copied.

Authors’ groups are having none of it. Author’s Guild president Scott Turow called the scheme a “preposterous ad-hoc initiative,” and the lawsuit says the plan risks the “potentially catastrophic, widespread dissemination” of millions of books. The suit was filed in New York federal court in the name of writers groups from the U.S., Australia and Quebec, and individual authors like Faye Weldon. The suit asks the court for a series of dramatic remedies, including the permission to seize millions of digital works from the Universities of Michigan and California and to order the schools to cease cooperating with Google. The search giant is working to scan all of the world’s books, a project that some librarians once believed would take more than a thousand years.

Paul Aiken, executive director of the Author’s Guild, defended the proposed measures by saying writers’ were worried about the “security protocols for seven millions books” and that the schools had disregarded the law by embarking on a maverick project with Google. “There’s nothing in the copyright law about orphan works—this is their own hand-drawn definition.”

There are serious problems with simply “turning off” a digital copy in the internet age, because once released it can be copied forever. And, I agree that’s a ridiculous application of fair use. The biggest problem with orphan works in general is that everything we put up on the internet is potentially an orphan in the future unless you carefully register it in a central database. People like Seth Godin who argue that there’s nothing wrong with sharing dusty old books whose author and heirs cannot be found are missing the point that someone (google) will be making money off these books and the probability that in the future we will be swimming in an ocean of work that is completely untethered from the author will make our current situation look like a joke. Copyright is a balancing act that providing benefits to the authors of new works and then limited use of that work to benefit society and further creation of new works. Finding the balance in orphan works will be an important part of this.



Free Ride – How Technology Companies Are Killing The Culture Business

This new book titled Free Ride by Robert Levine a former features editor for Wired looks to be a must read for content creators. The book is currently available in the UK and goes on sale in the US onOctober 25th. Copyhype has a review of the book (here). What’s interesting and completely obvious once you start thinking about it, is this narrative about copyright being broken:

A conventional narrative has emerged of  the media and creative industries’ response to the internet and digital technology. Beginning around the mid-1990s, this story has been one of old against new: stodgy, corporate executives holding on to the past versus hip digital natives embracing the future. These technologies have rendered copyright law broken according to this story; existing media industries have failed to take advantage of these innovations, relying instead on using the law to prop up their dying business models. They have failed to adapt and sued those who have.

is nothing more than “a fight between the people who make money under the old system and the people who might make money in the new system.” Simple, right. As much as technology pioneers want us to believe that information wants to be free and that free is the “The Future of a Radical Price” the bottom line here is someone wants to make a buck that someone else is currently making.

The ideology of copyright critics masks nothing more than a simple economic struggle between existing content producers and emerging content distributors. As Levine points out in an interview at last June’s World Copyright Summit, despite all the high-minded academic arguments of the copyleft, no one has so far acted contrary to their economic self-interest.

I like this quote from Jaron Lanier (You Are Not a Gadget) on the Amazon site:

“This book thoroughly documents a wide-spread outbreak of cyber amnesia. Despite libertarian delusions, industries often get Free Rides, especially in their early days, but they eventually give back.  Taxpayers build roads, then get hired to build cars.  The Internet gives back a lot in exchange for its Free Ride, but one thing it defiantly isn’t giving back is a way for enough people to make a living. No matter how amusing or addictive the Internet becomes, its foundation will crumble unless it starts returning the favors it was given and still depends on.”

Will the internet ever give back? I think so. I’ve experienced it in my own tiny ecosystem.

Mert & Marcus Inspired By Jeff Bark?

The fashion world is abuzz over a Mert Alas & Marcus Piggott’s 46 page fashion story for Love Magazine entitled “What Lies Beneath.” They’re also talking about the inspiration it draws from Jeff Bark’s body of work “Woodpecker.”

You can see a couple of the closest comparisons between the two in the images below. Clearly the lighting, set, animals and overall idea come from Bark, but there is almost no exact copying of the images beyond that. Of course that’s plenty for many people to cry foul, and they have online, but the similarities do end and the fashion duo go on and do their thing with it. It’s always a little shocking to see famous photographers knocking other famous photographers off, but it’s not very uncommon in fashion.

(Berk on left)

(Berk on left)

via, Fashionista.

Who Owns This Idea?*

Ok, sorry I’m now on a complete jag here, but someone sent me this Cass Bird cover awhile back that has a nice lineage of the exact same idea.

Cass Bird 2011


Josphine Mecksper 2003


Douglas Kirkland 1975


Melvin Sokolsky 1960


When Is Too Much Copyright Bad For Photography?

I don’t want to get on a jag about copyright infringement here, but a lawsuit filed this week against Ryan McGinley illustrates how copyright can potentially impinge artist’s creative expression if taken too far.

Rachel Corbett of writes:

Artist Janine “Jah Jah” Gordon has filed a lawsuit in the U.S. District Court for the Southern District of New York against photographer Ryan McGinley for copyright infringement, arguing that 150 of McGinley’s photographs, including several used in an ad campaign for Levi’s, a co-defendant in the suit, are “substantially based” on Gordon’s original work.

There’s a lot of emotion wrapped up in this case as Janine and Ryan have both shown at the Whitney and several prominent galleries where Janine says he had “access to view and examine” her images. Additionally, when contacted Janine (here) she says she has been begging McGinley to stop copying her work since the 1990’s through dealer and close friend Chris Perez. Also, noted was an incident according to the complaint in 2003, when she ran into him at a PS1 opening and he responded with “a fearful gasp and speedy retreat into the crowd.” Like I said, it’s very emotional. McGinley’s prints also sell for 4 times the amount of his older more established counterpart.

The complaint alleges that he copied her subject matter, lighting, composition and ideas:


There’s no doubt in my mind that seeing Ryan McGinley come up on your heels and churn out similar looking images would be a painful experience. But, this is where copyright hurts photographers. There’s nothing that hasn’t been done before so if you’re not allowed to draw inspiration from and take little parts of other photographers and artists work there’s nothing to take pictures of. I think the case will be impossible to prove in court, but I would guess the point is not to win but to raise awareness, get him to stop and go somewhere else for inspiration.

Jay Maisel Defends His Copyright And Is Attacked For It Online

A few weeks ago there was news that Jay Maisel had successfully defended his copyright against someone claiming “transformation” by turning his original Miles Davis cover photograph into pixel art. It was another victory for photographers in the fight over “fair use,” an idea that is very important but also extensively misused by people who don’t understand it. Millionaire internet entrepreneur Andy Baio and stockbroker Andrew Peterson (AKA Thomas Hawk), of San Francisco investment company Stone & Youngberg, are a couple of those people. Andy made a chiptune tribute to Miles Davis’ Kind of Blue called Kind of Bloop and he used Jay’s cover image to create his own to go with it. Maisel sued and Baio settled instead of going to court to “cut his losses.” He wrote a post on his popular blog entitled Kind Of Screwed, where he tries to explain how his cover art would qualify for fair use.

I’m going to pick apart Andy’s argument, but first I need to mention that the post got the internet all worked up over copyright and Jay Maisel’s name has been drug through the mud by people like Andrew Peterson (AKA Thomas Hawk) “Photographer Jay Maisel Extorts (Opinion) $32,500 Out of Andy Baio” and Hyperallergic “Breaking: Millionaire Extorts $$$ From Artist, Street Artists Strike Back.” The Russian photos blog has an excellent wrap up of the disgusting antics “The Photographer, The Entrepreneur, The Stockbroker And Their Rent-A-Mob” followed by Doug Menuez “SLANDER, STUPIDITY & THE MINDLESS MOB ATTACKS ON JAY MAISEL

By far the best and most recent explanation of how fair use is interpreted by the courts can be found in the filing by Judge Deborah A. Batts in Patrick Cariou’s successful lawsuit against Richard Prince that I wrote about (here).

The 4 factors that make up fair use are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
i. Transformative Use
ii. Commerciality
iii. Bad Faith
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Note: Only a court can determine fair use.

Reading what Andy Baio has to say about his cover art, he claims the transformation is the most important part of what he’s done, but fails to recognize that “the purpose and character of the use” includes transformation but also commerciality and bad faith. The cover was commercial so that rules out the obvious nonprofit educational use of copyrighted work. Then there’s the bad faith element which asks if they tried to obtain permission or a license in the first place. Evidently there was some bad faith involved, because Andy called Jay’s office but did not ask to use or license the image. Finally, the courts say a transformation must comment on the original and not simply use it as source material. Additionally, making a derivative work is not the same as transforming, so simply recasting it is not enough. So how did he transform the image? He claims that by using NES-style pixel art to capture the artistic essence of the original album cover with “a fraction of the resolution and color depth of an analog photograph” he transformed it. Here’s how Judge Batts would respond “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960 F.2d at 310.

The final 3 factors are where Andy’s argument goes completely off the tracks. He says that Jay’s image “is creative, it’s also primarily documentary in nature” to which Judge Batts would say “it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments. He used the entire image. And, finally he says that “It’s obvious the illustration isn’t a market substitute for the original” but Judge Batts would say “the Second Circuit has previously emphasized, the ‘potential market’ for the copyrighted work and its derivatives must be examined, even if the ‘author has disavowed any intention to publish them during his lifetime,’ given that an author ‘has the right to change his mind’ and is ‘entitled to protect his opportunity to sell his [works].'”

Yes, Andy you would have been screwed in court as well and given photographers another case to cite when protecting their copyright. The crazy thing about the whole debacle is that he licensed all the cover songs from Miles Davis’s publisher but didn’t do the same with the image. He didn’t think he would have any issues copying the images. That’s because you don’t mess with the music industry when it comes to copyright, now maybe the same will be said to photographers thanks to Jay Maisel.

UPDATE: Andy Baio and Jeremy Nicholl (Russian Photos Blog) weigh in on the comments of a TOP post (here).

Your Images Are Stolen, Now What?

My post on google’s new search by image feature (Google Announces New Image Search) had a few photographers wondering what to do after discovering images of theirs had been used thousands of times online. You can refer back to the primer called Photography, Copyright, and the Law written by Carolyn E. Wright that I referenced here: What To Do When Your Image Is Stolen Online. I also found a post on this topic over on Jeremy Nicholl’s Russian Photo’s Blog called: The 10 Rules Of US Copyright Infringement. In that post he tells how in January of this year he found one of his photos on the website of a major US media company and he hired Barbara Hoffman of the Hoffman Law Firm to handle the matter. The outcome was a five figure settlement for a 468 pixel wide image used illegally on a site he’d never heard of. Here are his 10 tips:

1. Register your images at the US Copyright Office. “…the USA has a dual copyright system: major protection and zero protection.”

2. Make your copyright information visible.

3. Google Alerts is your friend.

4. Grab all the evidence.

5. Don’t contact the infringer directly. “Did they contact you before heisting your property? So why would you call to warn them you’re on their trail?”

6. Hire a lawyer. (Note: his recommended list here)

7. There’s no such thing as a small infringement. “The substantial penalties for infringement under US copyright law are meant as a deterrent.”

8. Your small-time infringer may be a bigger player than you think. “a few seconds research revealed that both sites are owned by one of the world’s largest media companies”

9. Be forensic. “Identifying repeated infringements demolishes any “isolated case” defence and shows the site infringes as a matter of custom and practic”

10. If you have an agent don’t expect them to protect your copyright.

Visit his blog (here) to read the whole story.

A few people pointed me to this new post where Jay Maisel recently collected from a lawsuit.

What To Do When Your Image Is Stolen Online

Having your images stolen online is not an “if,” but a “when” will it happen type of situation that you should be prepared to take action on. If you plan to run a photography business then you should plan to hire a lawyer now and again. If you cannot hire one then you should marry one, trade photos with one or be best friends with one.

I get a weekly email from photographers who have their images stolen and used on a site that appears to generate revenue. Several months ago I ran into this primer called Photography, Copyright, and the Law written by Carolyn E. Wright the and published on Ken Kaminesky’s blog (Read the entire post here). This excerpt from the post answers the question of what to do when you are infringed upon:

Q: What happens when a copyrighted photo is used without permission?

You have several options when you find that your photo has been infringed.

Option #1 – Do Nothing

You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit

…if the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

Option #3 – Prepare a DMCA Take-Down Notice

Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself

When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter

When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 – File a Copyright Infringement Lawsuit

Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

TwitPic Plans To Sell Your Images So It Can Profit

A story in TechCrunch EU highlights a blowup over the ToS (Terms of Service) of Twitpic the photo sharing app for Twitter that many people use to share breaking news images from their phone–images like Daniel Morel’s Haiti images and subsequent lawsuit (here) and also the first image of the plane landing in the Hudson river. TwitPic amended their terms to coincide with an announcement that they’ve partnered with news agency WENN to sell the images people post. According to, “The new licensing deal ensures that users retain the copyright but by uploading photos service, the company is able to exploit the photos for commercial gain.”

The changes to Twitpic’s ToS that will impact users the most as reported by Hawke’s Bay Today are:

“…you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of…” and “…after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.”

Twitpic is not the only photo sharing app with heinous ToS’es. According to

picplzColoryFrogInstagramFlickr, and Lockerz (fka Plixi), all have similar clauses to those of Twitpic

picplz users agree to, among other things,

“the right of the service “and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content in connection with: (i) providing and promoting the Service; and/or (ii) exercising the rights granted in these Terms.”

Both stories point to MobyPicture as the solution for photographers who want to retain their rights. According to TechCrunch EU:

They’ve just now tweaked their ToS conditions thus:

“Content Ownership:
All rights of uploaded content by our users remain the property of our users and can in no means be sold or used by Mobypicture or affiliated third party partners without consent from the user. This means Mobypicture will NEVER sell the rights to your shared photos and videos. Your content is yours!”

As these companies try to figure out what they can get away with and how they can become profitable it’s important for professional photographers to voice their opinion to help them understand the needs and concerns they have for using their service. It looks like deleting your Twitpic account and moving to MobyPicture is a good way to do that.

Judge Rejects Google Books Settlement

Judge Denny Chin of the US District Court rejected a deal google reached with publishers to split the proceeds from books who’s authors could not be found. Sound familiar? Yeah, that’s basically orphan works for books.

Google reached the settlement in 2008, agreeing to pay $125 million to establish a registry to allow authors and publishers to register their works and get paid when their titles are viewed online. The deal resolved a consolidated lawsuit in which authors and publishers sought to block the company from scanning books and making them searchable online.

The plaintiffs alleged that Google’s book-search project violated copyrights.

The judge said it went too far in granting Google rights to exploit books without permission from copyright owners.

He did have a solution for the publishers and google. Rather than opt out the copyright owners should be given the chice to opt in. “I urge the parties to consider revising the [settlement] accordingly,” Judge Chin wrote.

UPDATE: The full opinion is here (PDF).

Read more:, thx David Laidler.

Richard Prince Loses Fair Use Argument

In December of 2008 photographer Patrick Cariou filed suit against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick’s Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. Several of the pieces, as you can see from the comparisons below ,were barely changed under the “artist’s” hand.

Yesterday, US District Judge Deborah A. Batts ruled on the cross-motions for summary judgment:

Defendants Richard Prince, Gagosian Gallery,  Inc., and Lawrence Gagosian seek a determination that their use  of Plaintiff’s copyrighted photographs was a fair use under the relevant section of the Copyright Act, 17 U.S.C. §§ 107(1)-(4), and that Plaintiff’s claim for conspiracy to violate his rights under the Copyright Act is barred by law. Plaintiff seeks summary judgment in his favor on the issue of liability for copyright infringement.

She found that the use by Prince was not Fair Use, the conspiracy claim was found to be barred by law and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.

I’m sure there will be an appeal, but this is quite a victory for photographers and the judgment is fascinating reading for fair use buffs (download it here), What I really found interesting is how badly most people (myself included) interpret the transformation part of appropriating works. Everyone talks about adding value through transformation but the reality is that you must be commenting on the original image or expression in some way. This line quoted from Rogers vs. Koons puts the nail in the idea of adding value as some kind of transformation “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Transforming a picture of President Obama into a poster does not qualify nor does commenting on commercial advertising by taking close up shots of cowboys in cigarette advertising images.

I’ve included some highlights from the 38 page filing:

Some of the paintings, like “Graduation (2008)” and “Canal Zone (2008),” consist almost entirely of images taken from Yes, Rasta, albeit collaged, enlarged, cropped, tinted, and/or over-painted, while others, like “lIe de France (2008)” use portions of Yes, Rasta Photos as collage elements and also include appropriated photos from other sources and more substantial original painting.

In total, Prince admits  using at least 41 Photos from Yes, Rasta as elements of Canal  Zone Paintings

Other than by private sale to individuals Cariou knew and liked, the Photos have never been sold or licensed for use other than in the Yes, Rasta book. However, Cariou testified that he was negotiating with gallery owner Christiane CelIe (“CelIe”), who planned to show and sell prints of the Yes, Rasta Photos at her Manhattan gallery, prior to the Canal Zone show’s opening. Cariou also testified that he intended in the future to issue artists’ editions of the Photos, which would be offered for sale to collectors.

when CelIe became aware of the Canal Zone exhibition at the Gagosian Gallery, she cancelled the show she and Cariou had discussed. CelIe testified that she decided to cancel the show because she did not want to seem to be capitalizing on Prince’s success and notoriety, and because she did not want to exhibit work which had been “done already” at another gallery.

Defendants assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them. Unfortunately for Defendants, it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments. See,~, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 {1884}

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts ….” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8). At the Constitutional level, while the “Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship” such that “the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use

although “the monopoly created by copyright … rewards the individual author in order to benefit the public[,]” on the other hand “the monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.”

Now, looking into the 4 factors that make up fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The judge weighs each one:

1. The Purpose and Character of Prince’s Use of the Photos

i. Transformative Use

the fact that a work “recast[s], transform[s], or adapt [s] an original work into a new mode of presentation,” thus making it a “derivative work” under 17 U.S.C. § 101, does not make the work “transformative” in the sense of the first fair use factor.

The cases Defendants cite for the proposition that use of copyrighted materials as “raw ingredients” in the creation of new works is per se fair use do not support their position, and the Court is aware of no precedent holding that such use is fair absent transformative comment on the original. To the contrary, the illustrative fair uses listed in the preamble to § 107 ­ “criticism, comment, news reporting, teaching [ …], scholarship, [and] research” – all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

“If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960 F.2d at 310. The Court therefore declines Defendants’ invitation to find that appropriation art is per se fair use, regardless of whether or not the new artwork in any way comments on the original works appropriated. Accordingly, Prince’s Paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince’s Paintings are instead infringing derivative works.

Prince testified that he doesn’t “really have a message” he attempts to communicate when making art.

ii. Commerciality

As a result of these and other marketing efforts, Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery. Seven other Canal Zone Paintings were exchanged for art with an estimated value between $6,000,000.00 and $8,000,000.00. Gagosian Gallery sold $6,784.00 worth of Canal Zone exhibition catalogs.

This Court recognizes the inherent public interest and cultural value of public exhibition of art and of an overall increase in public access to artwork. However, the facts before the Court show that Defendants’ use and exploitation of the Photos was also substantially commercial, especially where the Gagosian Defendants are concerned.

iii. Bad Faith

Prince’s employee contacted the publisher of Yes, Rasta to purchase additional copies of the book, but apparently neither Prince nor his employee ever asked the publisher about licensing or otherwise sought permission to use Yes, Rasta or the Photos contained therein legitimately. Nor did Prince attempt to contact Cariou by email and inquire about usage rights to the Photos, even though Yes, Rasta clearly identified Cariou as the sole copyright holder and even though Cariou’s publicly-accessible website includes an email address at which he may be reached. Under these circumstances, Prince’s bad faith is evident.

Moreover, since the record establishes that the Gagosian Defendants were aware that Prince is an habitual user of other artists’ copyrighted work, without permission, and because the record is equally clear that the Gagosian Defendants neither inquired into whether Prince had obtained permission to use the Photos contained in the Canal Zone Paintings nor ceased their commercial exploitation of the Paintings after receiving Cariou’s cease-and-desist notice, the bad faith of the Gagosian Defendants is equally clear

2. The Nature of the Copyrighted Work

“The statutory articulation of this factor derives from Justice Story’s mention … of the ‘value of the materials used.’ Justice Story’s word choice is more communicative than our statute’s ‘nature of,’ as it suggests that some protected matter is more ‘valued’ under copyright that others. This should not be seen as an invitation to judges to pass on [artistic] quality, but rather to consider whether the protected [work] is of the creative or instructive type that the copyright laws value and seek to foster.”

Here, the Court finds that Cariou’s Photos are highly original and creative artistic works and that they constitute “creative expression for public dissemination” and thus “fall[] within the core of the copyright’s protective purposes.”

3. The Amount and Substantiality of the Portion Used

In a number of his Paintings, Prince appropriated entire Photos, and in the majority of his Paintings, Prince appropriated the central figures depicted in portraits taken by Cariou and published in Yes, Rasta. Those central figures are of overwhelming quality and importance to Cariou’s Photos, going to the very heart of his work.

4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work

Defendants’ protestations that Cariou has not marketed his Photos more aggressively (or, indeed, as aggressively as Prince has marketed his Paintings) are unavailing. As the Second Circuit has previously emphasized, the “potential market” for the copyrighted work and its derivatives must be examined, even if the “author has disavowed any intention to publish them during his lifetime,” given that an author “has the right to change his mind” and is “entitled to protect his opportunity to sell his [works].”

Finally after the judge ruled that they violated Patrick’s copyright and are liable:

That Defendants shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies. That Defendants shall notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c)



Copywriters Have Never Heard Of Copyright… Ironically

Webcopyplus a Vancouver based website copywriting firm recently discovered that, yes, “works no longer need a copyright notice to have copyright protection.” The Canadian outfit specializes in writing website copy that will score high on organic search results. Apparently they also use the internet as a stock resource to drop generic images onto their customers sites, since you know, photographs are merely decoration to their faustian search term acrobatics.

Anyway, a vigilant photographer caught them using one of his images and had his lawyer send a Cease and desist to their client. The letter demanded that they:

1.    Immediately cease and desist all unlicensed uses of the image, and delete all copies from computers and digital storage devices.
2.    Remit almost $4,000 to his trust account.

I’ll let you read the entire story (here) but the kicker on the whole thing is that the photographer had registered the image with the U.S. Copyright Office and the copywriters were “able to confirm the image was copyright registered and the lawyer’s client was the rightful owner.” So they “opted to settle for $4,000.”


Gap Pulls A Shepard Fairey

Here’s a little serendipity for your hump day. This landed in my email box yesterday (thanks Michael Mahoney) just after I’d argued that the value of an image is difficult to determine. Gap appears to have found what I’m sure they consider an unremarkable image of a Jaguar on Flickr (here) and converted it to a graphic for kids onesie’s here and here. And, if you follow Shepard Fairey’s fair use argument where he claims to have transformed something unremarkable into something remarkable (and very commercial to boot) then Gap could argue along those very same lines. Since the AP decided to settle with Fairey we’ll never know what the courts think.

Picture 3