If you are reading this post directly from my blog, my avatar should appear - slowly to the right side of this post.
When a photographer takes your portrait, the photographer owns a copyright in the photograph. But can the photographer use your image in advertising without your permission?
I created the avatar from a photograph and a voice recording and it will live until I kill it. Or not. I have posted an image (a bad one) of the avatar below for future generations, since I will probably kill the talking one soon. It's a great novelty, but my execution is pretty amateurish and I am not entirely sure that it completely fits the Copyright Litigation Blog's overall tone.
For those future generations who aren't treated to the live-action version, my avatar's eyes move around and follow your cursor after I stop talking (the recording ends). If you leave the blog on the screen for a bit, you will see my eyes continue to follow your cursor around. During the sound recording, the avatar mimics my speech, moves its lips, eyes and head in an odd photorealistic way. One Copyright Litigation Blog fan described it as "creepy". I recorded a few messages, so you can listen more than once.
Technology will soon improve the 3d quality and the service would have worked better if I had a portrait where I was looking straight ahead. This is an attempt to make a 3d from a 2d photograph. Soon 3d will be here.
"Rights of publicity" or "rights of privacy" protects the name, likeness, voice and image of a person. As my avatar makes clear, such rights will become increasingly valuable in the virtual world, it will become easier to commit identity theft and impersonate living individuals - or replace them.
These rights are regulated by state, not federal law.
Remember, wait a bit. Then move your cursor around, my avatar's eyes will follow you.
Thanks to Patrick Hall @phfactorblog for pointing the Copyright Litigation Blog to this interesting meditation of a man whose copyrighted image of himself was stolen by thousands around the world and his mixed feelings as an artist. Great video.
A photographer owns the copyright in the image he creates.
In some jurisdictions and to some degrees, a person may own their "right of publicity" - that is the right to use their name or image in commerce.
You will enjoy Noam Galai's story and be astonished at the extraordinary revolutionary power of one man's photograph....and the power of the internet.
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Is making a stained glass window substantially similar to a copyrighted photograph fair use? Does it matter that the pose and costume is part of an ancient hula tradition? Copyright meets cultural heritage. Compare, decide and read what the court said. Last December I attended the first annual Federal Bar Association Hawaii Chapter Conference and got a chance to discuss the case with the judge who decided it. I hope to go to Hawaii again this December, it is probably the best place in the world to get CLE credit and talk to federal judges bedecked in leis...
Reece v. Island Treasures Art Gallery, Inc., 2006 WL 3804685 (D. Haw. 2006).
Purchase Copyright Litigation Handbook from West here
In Muench Photography, Inc. v. Houghton Mifflin, 2010 WL 1838874 (SDNY May 4, 2010) Chief Judge Loretta Preska made an unusual foray into the world of copyright registration. The decision, although correct, points out a glaring problem in our current copyright registration system. It is simply too expensive for photographers and freelancers to register their copyrights. When they try to game the system to save fees, it blows up in their faces.
It is all well and good that post-Berne we all own our copyrights, but unless we register them, we don't get statutory damages and attorneys fees. The practical underlying issue in the Reed Elsevier v. Muchnick case recently decided by the Supreme Court was that hundreds or thousands of freelancers whose works were infringed by the NY Times and other publishers by including them on electronic databases without permission hadn't registered copyrights to their individual articles. Most journalists still think that their publisher's registrations cover them, and it is not necessarily the case. If a commenter has the stats at hand (there are blogs devoted to that case), I'd appreciate them. Something like over 80 or 90% of the freelance journalist would have been shut out of the settlement if the Supreme Court hadn't reversed.
Muench Photography deals with the photographic analogue. Most photographers don't register their copyrights. There is a group registration process for compilations of unpublished works, so for $35 photographers may register a group.
Corbis, the image database, thought it had found a workaround. It put the photographs of numerous photographers into what it called an "automated database" then paid only one fee. Corbis had an agreement with the photographers that it would reconvey the rights to the photographs once they were registered. So Corbis could register 1,000 photos and pay only one filing fee.
But the problem is that Corbis registered under a provision that provided for the collective registration by a single author only. Since group registration is limited to unpublished collections this was probably seen as a workaround that would save photographers a fortune and put a minimal burden on Corbis.
There are not so many cases out there discussing the degree of deference that must be given to the Copyright Office (the attorney for Corbis got a letter from the Copyright Office ok'ing the procedure), so Judge Preska's opinion is worth reading, here is a small sample.
Although both serials and automated databases are considered collective works,FN7 each is governed by separate registration requirements. Serials are governed by 37 C.F.R. § 202.3(b)(6) as well as Circular 62.FN8 Automated databases, on the other hand, are governed by 37 C.F.R. § 202.3(b)(5) and Circular 65. Neither Circular 65 nor § 202.3(b)(5) contains language similar to that found in Circular 62, i.e., that the copyright registration filed by the claimant extends to the independently contributed works if all of the rights in the work have been transferred to the claimant. Moreover, any argument that the registration of the automated databases, considered compilations, covers the individual works of the compilation pursuant to § 103 is belied by the text of § 103 which states that “copyright in a compilation or derivative work extends only to the material contributed by the author.” 17 U.S.C. § 103(b) (emphasis added). The cases MPI cites to support its reading of the statute only underscore the fact that the registration of a collective work reaches the individual works only when the author of the collective work authored each of the individual works. E.g., Szabo v. Errisson, 68 F.3d 940 (5th Cir.1995) (musician's registration of his collection covered each of his individual songs which comprised the collection); Educ. Testing Servs. v. Katzman, 793 F.2d 533, 539 (3d Cir.1986) (“[T]he fact that the registration was for compilations does not preclude protection for the material therein contributed by the author.”); Carell v. Shubert Org., Inc., 104 F.Supp.2d 236 (S .D.N.Y.2000) (group registration of makeup designs covered individual works, but copyright owner was designer of individual designs within the group); Woods v. Universal City Studios, Inc., 920 F.Supp. 62, 64 (S.D.N.Y.1996) (author who filed registration for collective work was the same author of the individual works that were the subject of the infringement). Accordingly, the Court rejects MPI's interpretation of the Copyright Act.
Judge Preska was constrained by the statute and regulations to make the decision she did and noted that it might not have been the wisest policy choice on Congress' part.
Photographers and freelance journalists need legislative relief to make registration affordable and sensible. Paying $35,000 and filling out the paperwork to register 1,000 images is prohibitive and is not justifiable in today's digital economy.
Detail from Todd Latimer's Midnight Rider - Full image here.
§ 202. Ownership of copyright as distinct from ownership of material object
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
(emphasis supplied).
§ 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
The 11th Circuit basically tossed out the bolded language in a recent decision captioned Latimer v. Roaring Toyz, Inc., 2010 WL 1253090 (11th Cir. April 2, 2010) and radically expanded the doctrines of implied license and constructive delivery.
Here's the scenario, wildly oversimplified:
Artist paints artwork onto motorcycle. Knows it will be used in photography, stream of commerce. Motorcycle company gets no release. Artist is not plaintiff, has nothing to do with the case, but 11th Circuit spends a lot of time on him.
Plaintiff is motorcyle photographer. Takes photos at motorcycle company's request. Orally grants certain publication rights and thinks he owns/reserves the rest. Photographer has granted first publication rights to Two Wheel Tuner mag. Instead of distributing his high quality digital files per his instructions, company distributes them to press who unwittingly publish them, including defendant Hachette's Cycle World.
Motorcycle company who uses photos claims that they were unauthorized derivative works because the photographer didn't have a release from the guy who made the paintings on the motorcycle.
11th Circuit finds that the fact that motorcyle photographer delivered photographs without clear reservation of rights grants an implied license to motorcycle company to do whatever it likes. FURTHER finds that anyone downstream has "constructive delivery" from the photographer and can do whatever they like without getting written permission.
Here is the 11th Circuit's new rule:
"Thus, an implied license will be limited to a specific use only if that limitation is expressly conveyed when the work is delivered"
In other words, if you deliver your photograph to someone and YOU don't write down that they can't do whatever the heck they want with it, you lose your copyright to that person and to anyone they give it to.
This case is really a breathtaking blow to photographers who often deliver their works hoping that a potential client will fall in love and license them. Since the photographer said he knew that Kawasaki "might" use them, the 11th Circuit threw out his affidavit as a "sham".
In other Circuits, one must generally obtain written permission to use a photograph, the implied license doctrine is narrowly construed.
In addition, the 11th Circuit held that the photographer must prove that he gave the motorcycle company a course in copyright law to prevail:
Kawasaki asserts that Latimer did not expressly communicate to Kawasaki any restrictions on the use of the photographs. However, Latimer contends that all of his communications with Kawasaki went through Roaring Toyz and that he granted Kawasaki permission to use the photographs for a specific purpose-a media display at Bike Week. Thus, the question here is whether Latimer delivered a warning adequate to put Kawasaki on notice that certain uses of Latimer's photos would constitute copyright infringement.
Latimer v. Roaring Toyz, Inc., 2010 WL 1253090, 11 (11th Cir. April 2, 2010).
It should be noted that the 11th Circuit purported to give a victory to the photographer, but the burdens of proof that have been spelled out are highly problematic and appear to be inconsistent with the plain language of the Copyright Act and a body of case law that generally puts photographers in the driver's seat when there is an unauthorized publication of their works.
The Photoattorney blog found some good news in the decision, read here.
For a wildly different view from Kevin Smith at Duke, look here.
A totally different angle at Exclusive Rights blog here.
Professional photographer Dan Heller has written a very thoughtful and constructive piece about how the Copyright Office might incorporate ICANN-type concepts into the copyright registration process found here. I am a big fan of the Copyright Office in many ways. Unlike many, I usually see attempts to "privatize" government functions as a way to steal from taxpayers and undermine the professional civil service. For example, I think HMO's are simply criminal in structure, and I think that private prisons should be abolished immediately.
Heller makes powerful arguments that today's copyright system prices most photographers and certain content producers out of the market and is inefficient. At $35 or $45 a pop, and high recording fees for transfers, certain content creators simply opt out of the system. Photographers may register multiple images for one fee, but there are restrictions. With the phenomenon of user-generated content exploding, Heller points out another copyright constituency that is priced out, is opting out, and that the system was not built for.
As a litigator it has pained me to inform clients over and over that they can't get statutory damages. It is clear to me that approaches embracing new technology, recognizing the new scope of copyright itself, and harnessing the power of the internet need to be adopted to the commercial and consumer reality of the online experience. Heller is right about there being no reasonably effective remedies for the little guy out there.
If you could protect all of your creative output for, say, a reasonable monthly fee and make it easy to digitally track and monitor, wouldn't that be a great option?
Heller has sketched, in a provocative and powerful essay the outline of a new type of automated copyright registration system that certainly bears study. His selected model is the ICANN system, which I am not sure satisfies my desire to have one, central entity to be searched and act as a reputable register (if you have ever chased domain name hijackers who have taken your client's domain offshore you will understand my reluctance to endorse domain name registration as a flawless model).
There is also something attractive in the deposit system: you can deposit works and still have them unpublished and secret for practical purposes, but you have a secure government record that it is what you've claimed as yours, even if unpublished. I am not sure that an ICANN-type system could provide the type of physical custody and certainty that the US government provides.
I think that the Copyright Office would do well to give Heller's proposal some serious consideration and launch a pilot program, particular for groups like photographers. By providing careful oversight of an outsourced operation like the one Heller envisions, I think that the Copyright Office might find that more people could receive fair legal protections at a reduced cost and that more creators and users would be encouraged to be good copyright citizens.
If you would like to earn CLE (Continuing Legal Education) credits online, my publisher, West has made available online a course I delivered in Eagan, Minnesota. Below, you can find a video excerpt.
Anyone putting up a website or a blog is a "publisher" these days, so it helps to know the principles involved. What can you publish? What will get you in trouble? How do you analyze problems that arise in using content created by others?
Copyright Law and Publishing Content Provider: Clarion LegalDuration: 2 hours 0 minutes Program Description: This session is comprised of practical, hands-on examples designed to give participants the analytical tools with which to confront copyright issues facing publishers.
If you would like more information or want to enroll in this program, click on the program title listed above or paste this link into your web browser:
In 2005, a Richard Prince photograph of a Marlboro cigarettes advertisement was auctioned for over $1.2 million - a world record. He photographed the Marlboro ad without permission removing the identifying marks. In a 1977 essay, Prince proclaimed that he was "practicing without a license" - referring to his practice of stealing other people's pictures and publishing them as his own.
Prince is having a one-man show at the Guggenheim museum, titled "Spiritual America". The title of the show comes from disturbing nude photograph of a prepubescent Brooke Shields taken by photographer Gary Gross that Prince "rephotographed" and presented in a gilt frame in a gallery on the Lower East Side. The photograph is part of the Guggenheim show and reprinted in its catalog.
Prince likened his taking of others' photographs to sampling someone else's 8-track tape, he could manipulate his "8 -track photographs" in the following way:
1. the original copy 2. the rephotographed copy 3. the angled copy 4. the cropped copy 5. the focused copy 6. the out-of-focus copy 7. the black-and-white copy 8. the color copy
Prince's show is interesting, disturbing, and challenging. In Nancy Spector's catalog essay, she likens Prince's acts to the act of Marcel Duchamps submitting a urinal as part of an art show (Duchamps called this "readymade") - and this act is widely considered with opening up and introducing the art of the 20th century. Is Prince a Warholian or Duchampian genius - or a fraud? If auction prices, income, and museum shows are a measure - Prince is a genius of the highest order. He certainly has his critics, though.
As we move into a world where digital photography and sophisticated consumer-level photo retouching software is available, appropriating and manipulating images has become a widespread phenomenon. His appropriation may foreshadow the copyright battles of the future, and a weakening of the visual artist's copyright.
But as you go up the Guggenheim spiral, you will note less wholesale appropropriation, and more borrowing of bits and pieces. Once an artist is successful and no longer judgment proof . . . remaining an outlaw becomes problematic. His latest series consists of scanning faces from the works of De Kooning and sticking pornographic cut-outs onto the bodies.
Maybe we will all see "moral rights" in a different light after this show. See it and judge for yourself.
I saw a collection of 5 Brigitte Bardot films in Barnes & Noble bookstore priced at $39.99. I didn't buy it, but I was glad to see that the French seem to be waking up to the possibility of exploiting their copyrights in the U.S. market in an attractively-packaged, competitively-priced way.
The United States has historically viewed French copyrights with suspicion. French laws have always included bells and whistles denied to our local authors and creators. They offend our puritan values by protecting frivolous things like fashion designs, designers, and the "moral rights" of artists and authors to the "integrity" of their works. Blank cassette tapes were taxed and rights paid to musicians' collecting societies because music would be copied to them without paying additional royalties.
But banish the thought that such prejudice prevails in Gotham: the Second Circuit is hip to French law. In Sarl Louis Feraud International v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007), the Second Circuit considered a situation where the district court threw out a French judgment without even looking at what the French law was. Neither the appellate nor the respondent briefed the Second Circuit on what French law it was that the district court found unconstitutional. The case involved a U.S. company that published photographs of French fashion designs on the internet. The U.S. company permitted a French judgment to be entered against it. The French court ordered a fine of 50,000 francs per day (France converted to the Euro on January 1, 2002). In the Southern District of New York, the Defendant succeeded in dismissing an action to enforce the French judgment.
The defendant, whose burden it was to show that the French law was repugnant to the law of the State of New York argued "there is simply no way for this Court to know what substantive law was actually applied in France and on what ground Defendant was found liable."
The court looked at the default judgment, which cites the French Intellectual Property Code. It then apparently sua sponte hopped onto the internet, and found the French Civil Code at http://www.legifrance.gouv.fr/. It then cited:
Article L122-4 Any complete or partial performance or reproduction made without the consent of the author or of his successors in title or assigns shall be unlawful. The same shall apply to translation, adaptation or transformation, arrangement or reproduction by any technique or process whatsoever.
Sacre bleu! Quel horreur! That certainly sounds repugnant. It took me some navigation on the French government website, but sure enough, after pressing the little British flag buttons under "Droit Francais" and next to "Les Codes" and drilling down FIVE levels, I too, found the provision under the rubric "Patrimonial Rights" in English
But then the court cited another French Civil Code that has an odeur of "fair use":
Article L122-5Once a work has been disclosed, the author may not prohibit: 1°. private and gratuitous performances carried out exclusively within the family circle; 2°. copies or reproductions reserved strictly for the private use of the copier and not intended for collective use, with the exception of copies of works of art to be used for purposes identical with those for which the original work was created and copies of software other than backup copies made in accordance with paragraph II of Article L. 122-6-1, as well as copies or reproductions of an electronic database; 3°. on condition that the name of the author and the source are clearly stated: a) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated; b) press reviews; c) dissemination, even in their entirety, through the press or by broadcasting, as current news, of speeches intended for the public made in political, administrative, judicial or academic gatherings, as well as in public meetings of a political nature and at official ceremonies; d) complete or partial reproductions of works of graphic or three-dimensional art intended to appear in the catalogue of a judicial sale held in France, in the form of the copies of the said catalogue made available to the public prior to the sale for the sole purpose of describing the works of art offered for sale. A decree by the Conseil d’Etat shall determine the characteristics of the documents and the conditions governing their distribution. 4°. parody, pastiche and caricature, observing the rules of the genre. 5°. acts necessary to access the contents of an electronic database for the purposes of and within the limits of the use provided by contract.
Can a court just hop on the internet and figure out the law of another country sua sponte? It seems un-American and likely to start a riot in Congress among the Freedom Fries crowd. The answer is yes. Although the Second Circuit didn't cite Rule 44.1 of the Federal Rules of Civil Procedure, it provides:
Rule 44.1. Determination of Foreign Law. A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.
The Second Circuit agreed with the lower court's finding that copyright laws are "not matters of strong moral principle". But on the record before it, the court did not see a finding that the French law was "vicious wicked or immoral, and shocking to the prevailing moral sense."
The Second Circuit remanded for an analysis of "whether the intellectual property regime upon which the French Judgments were based impinged on rights protected by the First Amendment." Analogizing to libel judgments, the court held:
In deciding whether the French Judgments are repugnant to the public policy of New York, the district court should first determine the level of First Amendment protection required by New York public policy when a news organization engages in the unauthorized use of intellectual property at issue here. Then, it should determine whether the French intellectual property regime provides comparable protections.
The court noted that the fair use doctrine is coextensive with the First Amendment, and that the district court would have to determine whether the Defendant's use fell within the fair use doctrine as set forth in 17 U.S.C. 107.
Last Friday I was blocked from walking down the Fifth Avenue sidewalk in front of the Apple store. The Iphone madness was going on. I saw a television advertisement for the Iphone while at the gym showing the user playing around with the New York Times. I confess, I had a moment of Iphone envy. But if I bought a toy like that, I would never use it.
I have recently been playing around with some features on my Blackberry 8700. There is a browser called Opera Mini that you can download for free. It greatly speeds up the internet connection and makes searches much quicker. I had a hard time installing it, until I read the fine print on the help page that gave me very simple instructions on configuring the telephone.
The Opera Mini browser also collects RSS Feeds. The previous RSS aggregators I used did not include images. But in testing the Opera Mini browser, I subscribed to this blog and was delighted to see that the images posted were crystal-clear and in color, rivalling the display that the Iphone advertisements showed. Very pleasing to the eye. The Opera Mini also had high-quality color access to the New York Times with a very readable interface.
As video and photo quality improve, the PDA and cell phones will be at the forefront of copyright and royalty litigation.
If you go to http://www.ditto.com/ and type in "Napoleon Bonaparte" the video search engine will pull up twelve "thumbnail" images of the late, great Emperor. "Thumbnails" are small, low resolution images that since the Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) have been assumed by courts to be commercially valueless. An example is found at left.
Enter "Perfect 10" a producer of photographs of naturally-beautiful naked women. Perfect 10 sued Google because Google operates a video search engine that gathers thumbnails in response to search queries.
Perfect 10 argued that it had created a market for thumbnails: selling thumbnails to users of cell phones who wanted to use naturally beautiful naked women as wallpaper.
Perfect 10 convinced a California District Court judge to enjoin Google from using its video search engine pending the outcome of the trial. The court found that Google's use of the thumbnails was probably copyright infringement and not "fair use" because of Perfect 10's new commercial use for the hitherto worthless thumbnails.
On May 16, 2007, in Perfect 10, Inc. v. Amazon.com, Inc., ---F.3d---, 2007 WL 1428632 (9th Cir. 2007), the Ninth Circuit reversed. The decision analyzed very carefully why gathering thumbnails, which are mere URL instructions, is really not copying (doesn't violate "display" right and doesn't violate "distribution" right of copyright owner), and how the video search engine's use of the original copyrighted works is "highly" transformative. A careful look at Napoleon's face above might lead the average viewer to agree.
Folks who obssess over Napster, Grokster and all of that will have a field day reading this decision which then covers secondary liability (contributory and vicarious infringement) (Google raised the argument that its video search engine had a substantial non-infringing use). Essentially Perfect 10's argument was that people other than Google were posting Perfect 10 images to their websites without permission and that Google's search engine was then re-copying and re-distributing these infringing works. The Ninth Circuit found that "Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps."
N.B. - The Ninth Circuit found that Perfect 10 had not really shown that their market for thumbnails was being harmed by Google or that Google users were using thumbnails to create their own wallpaper. When a plaintiff who can show these facts comes back to court in a few years, we may have a new rule of thumb.
