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|| SportsShooter.com: Member Message Board
Copyright fight in Tucson
Mike Ullery, Photographer, Photo Editor
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Piqua | OH | USA | Posted: 10:57 PM on 02.11.11 |
->> From what I understand:
Little girl dies. The family sends recent portrait taken by Tucson studio photographer to media outlets. Photographer sues media outlets for copyright violation.
By the "letter of the law", this is an infringement of the guy's copyright. My question is, wouldn't you make exception for a situation where the photo is being used in a news story about a kid who was killed?
Oh, and it gets even stickier when the photographer says that he wants to donate money to charity. Charity then says, "no way."
http://www.kold.com/Global/story.asp?S=14016475 |
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John Korduner, Photographer
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Baton Rouge | LA | United States | Posted: 1:06 AM on 02.12.11 |
->> Huh???
The family understood enough about intellectual property that they trademarked the name of their deceased child....but then proceeded to unwittingly violate the copyrights of the family photographer? Charity or not, who want's any part of the ensuing storm?
This is a great scenario for use in exhibiting the importance of semantics. There's a big difference between agreeing to "accept" something that may not benefit you in the future, as opposed to simply making an "exception" to overlook a detrimental action that is about to occur.
This theme resurrects itself in SS threads so often it gets tiresome. Is something legal/illegal, right/wrong, or moral/immoral? In this situation, it sounds like there's a solid argument to support the idea that it's morally right to overlook an illegal action... when we apply those three variables to the Patch thread, the credentials threads, or even the "provide your free photos to a non-profit or educational institution threads," we seem to have enough material for this site to run forever. |
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Patrick Fallon, Student/Intern, Photographer
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 6:36 AM on 02.12.11 |
->> This is going to be an interesting case to watch and see what accusations and excuses are thrown about.
If a child goes missing or is kidnapped, then the first fair use exemption of the copyright law might be used by the media: "The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes." In this case you're dealing with finding the child before any harm comes and there is the moral greater good involved (purpose and character).
However, when the status of the child is known (ie dead), then there aren't any extenuating circumstances that would qualify as fair use. Use of the photo(s) is now commercial (to sell newspapers, gain web hits for advertising ratings, etc.). Thus, the lawsuit.
Several years ago some wire agencies and many newspapers adopted the policy of not touching studio made type photos whether they be prints or copying them out of yearbooks. That has changed a bit to where those giving out the handout photos may be asked to sign a release stating that the person doing so has the legal right to give out the image(s). This lets the media off the hook as it places the copyright infringement onto the shoulders of whoever is passing out the picture(s).
This is where the accusations and excuses will fly in court. Will fair use be offered up? Were releases signed by the parents? What attempt was there to locate the studio and ask for permission? Did a wire service get the image from a member newspaper who didn't get permission thereby making the agency a secondary infringer? Then the subsequent member newspapers as innocent 3rd party infringers because they got the image off the wire. And while the parents trademarked the child's name, did they release the girl's photo before or after they thought of the trademarking? If after, then playing dumb about legalities may be moot.
There is also a big difference between this case and Jon Bonet. Back then there were morning and afternoon papers, but no Internet. A photo could be wrongly released and be killed hours later before papers went to press resulting in no harm no foul. But now with near instantaneous publication on the web, there is no margin for error checking -- especially when everyone is grappling to be first to achieve ratings and page hits which translate into advertising revenue.
Unfortunately, while people are generally aware that copying and distributing music can result in hefty infringement lawsuits, they have no qualms about sharing photographs even though both arts are protected by the same copyright law. The difference is that the music industry keeps a tight rein on their product while many media publishers will use every tactic to get away with unlimited use in any form whatsoever for perpetuity (sound familiar?).
Yes, this is going to be an interesting case to watch and see what the outcome is. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 7:40 AM on 02.12.11 |
->> I can't agree with the notion that getting a signed statement from the parents that they have the rights lets the media outlet off the hook. The infringement is made by the entity publishing the image not the individual providing them the image. They chose to publish it, and due diligence or not they are responsible. The statement, if properly constructed with a hold harmless provision may provide the media outlet recourse for recouping damages if they are ultimately held liable, but as for providing them protection from a lawsuit, I'm doubtful (but certainly open to evidence to the contrary.) They are still going to get sued, and if they lose, will need to seek recourse against the parents.
For example, if you look at the form that your local wal-mart photo center makes customers sign, you will note that it is not a release, but rather an indemnification form, which specifically provides that the individual signing it will indemnify and hold harmless wal-mart and its agents. (Which I found out after my daughter called me from their counter because they refused to print the images I took of her before prom last spring without me signing the form).
That said, I'm certainly not an attorney, I'm sure Mr. Korduner can provide a much more cogent view.
On the original topic.
Unfortunately Mr. Wolfe seems to be bearing the brunt of Tuscon readers' wrath, as they believe he is a profiteer - though these same readers are giving a complete pass to the news outlets who seem to have adopted a policy of worrying about working out licensing fees after the fact in their own rush to profit from the event. I don't personally believe that there is any credible claim that it wasn't evident that the image in question was not professionally produced, and thus the question of copyright and proper licensing should have been raised prior to use. Now this guy is being excoriated by the citizens of Tuscon - in large part due to the way that news accounts are presented by the very entities that may well have infringed upon his copyright.
Unfortunately his business is likely to suffer, at least in the short term, from him simply attempting to protect his rightful property. Nothing I've read suggests that he intended to reap a windfall from this tragedy. The parents were obviously cognizant of the fact that many would, and thus they trademarked the name, presumably to prevent such profiteering. |
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Curtis Clegg, Photographer
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Sycamore | IL | USA | Posted: 8:31 AM on 02.12.11 |
->> From the link Mr. Ullery posted it's not entirely clear if there is a link between the trademarking of the girl's name and the copyright infringement suit. The segue between the two topics is not clear.
Remember, this is the girl who was born on 9/11/01 and who was shot and killed by the same gunman who targeted Congresswoman Gabrielle Giffords. I cannot blame the family for not wanting others to profit from their daughter's name. |
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 9:09 AM on 02.12.11 |
->> The handout release form used by AP and maybe others stipulates that the person/entity supplying the photo(s) acknowleges he/she/it has the legal authority to distribute the image(s) as either the copyright owner or with the authorization to do so on behalf of the copyright owner. Therefore, should the true copyright owner claim infringement, the media's out is that they have a signed document stating they had authorization to use the picture. And if there's a problem with that, then the handout supplier gets sued by the copyright owner for fraudulent misrepresentation thereby leaving the media off the hook for copyright infringement. At least that's the way it has worked so far.
Will that work with copying photos out of yearbooks? Probably not because the image is also part of a publication that is in itself copyrighted.
There is also another out that is commonly used by the media. Instead of making a closeup copy of the studio photo, you make a picture of hands holding the studio photo. Doing so means you're not copying the photo; you're making a picture of someone holding the photo which makes you the copyright owner of the hands/photo picture. However, if you later crop out the hands to show the studio photo only, you can find yourself in trouble for illegal copyright infringement. It all has to do with the crop on whether the image is a copy or a new work. |
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