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Public Outcry Causes Photographer to Drop Copyright Lawsuit
Dianna Russell, Photographer
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Robby Gallagher, Student/Intern, Photo Editor
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Brookings | SD | USA | Posted: 12:23 AM on 02.20.11 |
| ->> Agreed. |
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David Harpe, Photographer
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Denver | CO | USA | Posted: 4:05 AM on 02.20.11 |
->> "The station has also depicted Greenberg and Wolf as being in a rush to profit from the photo by registering copyright the first business day after the shootings took place, and by getting the Green family to sign a release on that same day to license the photo to the media."
Wow. Getting a release signed AFTER the shooting? |
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Chuck Steenburgh, Photographer
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Lexington | VA | USA | Posted: 7:57 AM on 02.20.11 |
| ->> Wonder what he said to the parents when he asked them to sign the release? |
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Keith Simonian, Photographer
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Martinez | CA | USA | Posted: 8:08 AM on 02.20.11 |
| ->> In a perfect world, what should have happened with respect to all the media outlets? |
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David Harpe, Photographer
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Denver | CO | USA | Posted: 9:26 AM on 02.20.11 |
->> http://pdnpulse.com/2011/02/public-outcry-stalls-lawsuit-over-portraits-of-...
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Greenberg also said on Friday that the Green family “had executed a document saying that they will support [Wolf's] efforts to sue and raise money for charity. He has their full cooperation and consent to pursue these claims.”
...
“My intent from the beginning always has been to use the proceeds from my creative work to make a charitable donation in Christina Green’s memory…At no time did I intend to profit personally from this tragedy.”
Wolf says he will turn over to charity all proceeds from the use of the images that he’s collected to date. He added, “I truly and deeply regret the additional distress this matter has placed on the Green family, and I apologize for that.”
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More to it than the original article implied. |
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Curtis Clegg, Photographer
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Sycamore | IL | USA | Posted: 9:41 AM on 02.20.11 |
->> Yes David there is indeed more than the article implied... one tidbit is that the first charity he contacted wants nothing to do with the photographers litigious proceeds:
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Executive Director Liz McCusker said she declined the donation after finding out the money was attached to a lawsuit.
"When we found out like everybody else that there was litigation associated with it, drawing into the Green family, we just couldn't be a party to that," McCusker said.
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From http://www.kold.com/Global/story.asp?S=14016475 |
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David Harpe, Photographer
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Denver | CO | USA | Posted: 10:12 AM on 02.20.11 |
->> He's probably wise to just "back away slowly" at this point, pay for a name change and set up shop somewhere on the other side of the country.
Lawsuits involving photos of a young shooting victim will not add up to a positive image no matter how charitable the intent or how legally valid the argument might be. |
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 11:19 AM on 02.20.11 |
->> Let me preface what I'm about to say that it is probably a good idea in the long run considering the backlash and possible future loss of business for the photographer to drop the copyright suits because he has become the villin in all this. Or was he unfairly made out to be a villin when you consider the nature of his targets?
Did KGUN attack the photographer and his attorney in a fair and balanced report? Or did the station do it because it is one of the guilty infringers and wanted the unknowing public on its side? And if that's the case, then for them to use their on-air platform to stoke the fire is a conflict of interest and destroys their credibility.
If the photographer was suing a family, charity group, church, etc., then filing suit would be a no-brainer bad idea. But the infringers are multi-million dollar companies who are experts in the realm of copyright and fiercely defend their own images when infringed on. They know better.
I agree that $125,000 is way too much to ask from a single paper like the Arizona Republic. But then Gannett's stance of paying a "standard licensing fee" would fall way short since infringement suits are usually 3x-10x the standard fee depending on the degree of abuse. And whose fee structure would be used? The photographer's or Gannett's? And what strings would be attached when you consider the rights-grabbing language that Gannett is known for?
I offered images to the Arizona Republic last month on two basketball players from Phoenix who attend different colleges and were going to play against each other in a game. It was not an assignment, but a licensing deal since the idea was mine. While my fee was acceptable, the paper insisted that I sign their freelance agreement giving the paper and Gannett all rights, in any form, for perpetuity, etc. They did not get my photos. Doing so would be like renting a car from Hertz and being able to keep the vehicle permanently for one daily rental charge.
While several hundred or a few thousand might be appropriate for the paper as a copyright infringement fee, larger corporations like AP could be on the hook for five figures because its distribution circle and uses by their media members are far more reaching and therefore more damaging in terms of marketing opportunities. Do you sell a great picture to AP for $200, or to dozens of papers individually for $200 each. Do the math.
Plus, the "fair use" exemptions under the copyright law do not apply in this case. If the girl was kidnapped and circulating her photo was done in hopes of finding her alive, then doing so would be for the greater good and fall into the nature of use category. But the girl was unfortunately already dead. Therefore any use of the image by the media is to sell more newspapers, raise TV ratings, increase web hits, etc. which are all commercial in nature -- the opposite of fair use.
Unfortunately, for the masses to attack the photographer for making a business decision to protect his property may be a sign of our times. But nowhere in the PDN article do I see any backlash against the family for trademarking their daughter's name which was reported a while back?
The trademark issue is a more personal one where future money through the control of the child's identity is a larger, far more reaching concern than the photographer wanting copyright control over 3rd party media outlets.
If Gannett really "respects intellectual property" which I'm sure other media will probably say too, then how about them killing the photographer's photo(s) out of their archive systems and never use them again without proper licensing from the creator? That would be the fair thing to do.
But will it happen? We'll know in December when all the year-end stories come out and on the tragic day's one-year anniversary. |
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Mike Ullery, Photographer, Photo Editor
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David Harpe, Photographer
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Denver | CO | USA | Posted: 12:32 PM on 02.20.11 |
->> Therefore any use of the image by the media is to sell more newspapers, raise TV ratings, increase web hits, etc. which are all commercial in nature -- the opposite of fair use.
You open up a pretty broad and interesting point.
Pretty much the only way ANY story gets covered is by way of for-profit media. Almost every TV, radio station, newspaper and magazine is a for-profit enterprise. The people who work at these outlets all get paid...none are volunteers. Even "public" broadcasting has managers and a board that make six figure salaries, and all of their staff gets paid.
It's a story with great public interest. In covering the story for the public - if the media does it well - they will sell more papers, have higher ratings, etc. Parent companies, by extension, will make more money.
As a result of covering the event, reporters and photographers will win awards, get raises and promotions, further their careers. All of this involves money...direct compensation for writing about and taking pictures of people suffering a tragedy.
If you believe in historical documentation of humanity, you have to believe coverage of this type of tragedy by the media is important - otherwise documenting it simply would not happen beyond a simple two-sentence encyclopedia/wikipedia-style statement, and this type of tragedy is far more than a two-sentence statement.
So when a tragedy like this happens, what is the line? Is it even possible to make the coverage of ANY tragedy truly altruistic? If you go beyond anything but just the basic facts of the case, is it all profiteering according to your argument?
It's a valid question you're asking...why is it that this photographer is being vilified for trying to make a buck when every other media outlet is making money with the coverage?
I think perception has a lot to do with it. In covering tragedies, the media becomes a part of the story - for better or for worse. I don't know of a single photographer that particularly likes to take a picture of a family mourning the loss of a loved one. But sometimes you have to do it to convey the story. Your face is behind that camera, and you have to live with her looking at you, or her boyfriend yelling at you, or her father calling you names. That makes you a part of it.
Having personally been in those kinds of situations, I can tell you that at that moment in time, money is the last thing I'm thinking about. For me, in those situations, I believed it was worthwhile to tell the story. I've tried to do the best job I could with as much sensitivity as I could. I always hoped the public in some way knew this when they saw the photo credit.
When I was doing that type of work, I always believed it was important for tragedy to be illustrated because otherwise the true magnitude of it can and will be lost. Saying in a headline that a drunk driver killed a family of four is one thing. Showing a picture of the mother mourning the death surrounded by photos of her children sends another, more powerful message. That message is important if we are to truly understand what's going on around us. It allows us to make needed changes, and sympathize with the victims. IMHO.
And maybe that's why this photographer is being vilified. He is not directly involved in the story or the coverage of the story. He took a picture years ago of a young girl who is now dead. A picture which would have little or no value to anyone outside of her family unless she had died in this way. His only connection to the event is a chance, incidental, PAID encounter with the young girl and her family years before. Now he's trying to put a dollar figure on this chance encounter and make someone pay money using lawyers and copyright law.
Maybe this photographer really did have honorable intent when he started down this road. Maybe there were conversations with the family where he even asked their permission to do this in a for-charity way. However it went down it was handled poorly. All things considered, I don't know how you could structure such an approach in a way where it wouldn't be perceived as profiteering, even if you have permission from the family. Anytime you use a lawyer to extract payment for whatever reason, people see it as a money grab. |
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Logan Mock-Bunting, Photographer
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Washington | DC | USA | Posted: 1:28 PM on 02.20.11 |
->> I want to *bump* Keith Simonian's question, as I don't have a clue to the answer either:
"In a perfect world, what should have happened with respect to all the media outlets?"
Should media outlets always check to see if a handout image has been properly released?
Run with what they have - as soon as they have it - and ask questions later?
Does a photographer have rights to an image when it straddles such a public/private realm?
How should they protect those rights, and collect (or donate) the revenues? |
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Gavin Werbeloff, Photographer
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San Francisco | CA | USA | Posted: 1:57 PM on 02.20.11 |
->> In my mind, there are a few phases of this story:
The first is that the photographer retained the copyright for a for-hire portrait shoot. Is this common practice? While in this case is looks almost prescient, why would you hold onto a portrait copyright, unless it's someone who's already well-known, especially when you'd need an additional release to use it.
Second is the release that the photographer had the parents sign. Points back to the first phase, but from a strictly business standpoint, this looks very smart from his point. Insensitive and callous, yes, but good business. He had the copyright (I'm not sure why), and made sure he could utilize it.
The third is that the large news outlets used the copyrighted image without licensing it. If this weren't a picture of a tragically murdered 9 year old, I have no doubt who everyone on this board would side with. The big news outlets are clearly in the wrong here, and are making excuses for their bad behavior by trying to label Greenberg as a greedy opportunist (pot meet kettle).
In an ideal world the big media outlets would pay the licensing fees up front and none of this would have happened. Unfortunately, they've been getting used to the "look mom my photo is in/on (insert media outlet here)" model where they a lot of stuff for free. They are clearly in the wrong here. The only question is whether what Greenberg did was in bad taste. Personally, I don't see the purpose in holding onto copyrights for a portrait shoot, but if it's industry norm, so be it. |
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 3:15 PM on 02.20.11 |
->> Logan and Gavin...
To hold out for money when it involves a missing child or person where your photo could make a life or death difference, then mass distribution under one of the fair use clauses (the nature of the use) of the copyright law would be allowed. However, in this case where use of the photo makes no difference whatsoever -- the girl is already dead -- then any use of the image is commercial in nature (sell papers, get ratings, etc.). Therefore protecting one's copyright ownership is strictly a businesss decision.
So why is the photographer wanting to profit from his work so wrong when those stealing his image(s) for they own company's benefit is okay? They're the same, but that's not the spin -- especially by the TV station who stoked the fire against the guy.
As to retaining copyright on portrait shoots, that's just good sense and a business decision. I do employee portraits for companies where I turn over 5x7 digital files of everyone photographed, and I retain ownership of the copyrights. Why? Why do publications insist on all rights in any form forever? Because you never know what the future may bring. Today's employee could be tomorrow's senator or serial killer. With copyright ownership I have a chance for future revenue as slim as it may be; without ownership I have zero chance. It's a business decision.
Regarding why the media outlets didn't seek permission and licensing, they know the deal. They know the risks and penalties. Some companies like AP and others have release forms for any and all handouts that state whoever is providing the photo(s) has the right to do so. Whether this was done in this case, I don't know. Other media outlets I've talked to about this know the procedures, but go ahead and violate copyright anyway on the theory if they get caught, they pay a nominal fee; and if they don't get caught, that's money saved by not licensing in the first place. It's a business decision.
Yes, in the ideal world everyone would honor the work of others and license usages up front. But we're in the real world where doing so is the legal thing to do regardless. |
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Andrew Spear, Photographer, Assistant
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Athens | OH | United States | Posted: 3:40 PM on 02.20.11 |
| ->> Why would the photographer not own the copyright? He made the images initially, and to continue making money off of it, the family would go to him for reprints etc. If he gave the copyright up, it would be a one-time transaction and not a potentially continuing small stream of income. Build a lot of those up and you're making money. Always hold on to your copyright. |
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Patrick Fallon, Student/Intern, Photographer
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Columbia | MO | USA | Posted: 6:48 PM on 02.20.11 |
->> "Personally, I don't see the purpose in holding onto copyrights for a portrait shoot, but if it's industry norm, so be it."
*facepalm*
As I said before..
JonBenét Ramsey and the "pink sweater photo" sets a good historical example of this situation - where images were given to the police and/or media, in violation of professional photographer copyrights. In the case of JonBenet, that story, those photos, were published all over the world, in almost every newspaper and TV station you could imagine.
Heres poynter's take:
http://www.poynter.org/uncategorized/76899/story-behind-the-picture-who-own.../ |
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Darren Whitley, Photographer
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Northwest Missouri | MO | USA | Posted: 7:28 PM on 02.20.11 |
->> We are all collectors and disseminators of data. If you collect the data, you have a right to be reimbursed for use of that data. Just because it's so important to a news organization does not give them the right to trespass. If they created the data, then they'd have the right to it. Newsworthiness is value and that value should be paid for.
The news organizations should take the high road, but because they have attorneys so they'll go ahead and violate a photographer's copyright in the name of fair use and that's not just. And then to slander his name when they're batted about over copyright... OMG.
I think most of us hate corporate and judicial bullying. The dollar amount for use of the image was also probably out of line. If he's already ruined for suing, sue away. |
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Gavin Werbeloff, Photographer
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San Francisco | CA | USA | Posted: 10:08 PM on 02.20.11 |
| ->> Just to clarify: If you are doing a portrait shoot of someone who is already famous or likely to be famous, which would mean any photo of them is likely to be more valuable, holding onto the copyright is a no brainer. In the case of a parent bringing their kid into a portrait studio, I guess you could make the argument that you never know who is going to be famous, so hold onto everything. That being said, if the subject is a minor, you are still going to have to get a release form the parents should these photos end up being valuable for a further purpose. As a blanket policy, of course photographers should hold onto copyrights, but in the case of portraits like these, the argument is diminished. |
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Andrew Spear, Photographer, Assistant
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Athens | OH | United States | Posted: 10:26 PM on 02.20.11 |
->> Actually, in an instance such as this, the photographer does not need a release. All of the infringed uses were editorial in nature- newspapers, magazines, television news. He would only need a release to sell the images for commercial use.
Hanging onto the copyright only entails not giving it away. You shouldn't be giving clients the copyright anyway, no matter who it is. A full copyright buyout would be in the tens of thousands of dollars, which I doubt anyone would pay for a portrait of their child. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 10:21 AM on 02.21.11 |
->> There is no serious legal question that Wolf is within his legal rights. This is really about taste and sensitivity.
--Mark |
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 11:08 AM on 02.21.11 |
->> Mark...
Yes, this is also about taste and sensitivity. So does that give the media outlets the right or excuse to pilfer the photographer's work? Absolutely not. They could just as easily contacted him beforehand -- or afterwards -- to strike a licensing deal. That would have been the moral, ethicial and legal thing to do. But they didn't, leaving it to the masses to force a public outcry to change his mind and let the media giants off their legal responsibility hooks.
As to an earlier post on why hire a lawyer, if it was between you and me then probably not at first. But when your bullies are multimillion dollar corporations, you would be stupid not to have an attorney. I seriously doubt AP approached the graphic artist who did the Obama poster with an invite to lunch; lawyers were almost surely part of the internal and external infringement discussions from the get go.
Unfortunately, the emotions around the death of the child have muddied the waters into a no-win situation for the photographer who is legally deserving. It's still not too late for the media companies to step up and do the right thing. But will they? |
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Wesley Hitt, Photographer
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Fayetteville | AR | USA | Posted: 11:49 AM on 02.22.11 |
->> What if he had taken the image to a media outlet like Getty to have them license the image. The child was already somewhat famous.
Then all of the other media outlets would have had to pay royalty fees to use the image in any of their outlets. TV, web, print, etc. The photographer would have been paid a percentage.
How is that different from what the photographer is trying to do now? Get paid for the usage of a photo that he took. |
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Andrew Spear, Photographer, Assistant
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Athens | OH | United States | Posted: 12:09 PM on 02.22.11 |
->> It isn't much different. The only difference is if he had taken it to Getty, he'd be getting a cut of the royalties. Keeping in mind what Patrick said about JonBenet- if you're the only person that has something, you can pretty much set the price.
Getty would've helped him distribute it, but it doesn't appear that he needed the help, if he's dealing with hundreds of infringement cases.
I suppose having it distro'd with Getty would have given him more credibility in litigations with the infringers, and perhaps the general public. Then it diffuses into the company fighting for infringement, not just some photographer. |
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Eric Canha, Photographer
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Brockton | MA | United States | Posted: 1:12 PM on 02.22.11 |
->> Gavin it's not that uncommon to have parents sign releases for a child's portrait session. Many studios have the release incorporated into their contract. I have complete model releases for 80% of the portraits that I shoot and 100% of the wedding that I photographed over the last 20 years. You're right you NEVER know who the person in front of the lens is GOING to be five, ten or twenty years later.
For that matter even if I DIDN'T specifically state that I was the copyright holder, as long as my contract doesn't assign the copyright to the parents, it's still mine. You don't have to declare ownership. The model release is a different thing altogether, it has been in my contract since the early days when I was advised to put it there by one of the instructors in p school. Only rarely had anyone questioned it.
E |
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Phil Hawkins, Photographer
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Fresno | ca | usa | Posted: 1:46 PM on 02.22.11 |
->> This has nothing to do with the little girl's tragic death. It has to do with copyright violations.
Did the Arizona Republic give away the paper in it's vending machines the day the story was reported?
Did the TV outlets and radio stations give free advertising to their clients the day it was reported?
Did the EMTs who responded to the call work free that day?
Did the police officers who managed the scene work for free that day?
Did the ER personnel at the hospital who treated the victims work for free that day?
Of course not. ALL profited from the occurrence. So, where's the outrage over THAT situation?
Then why is there such an outrage over a photographer who is trying to protect his rights? This is not an issue of sensitivity... If ANY of the aforementioned people were told they forfeited pay that day due to "sensitivity", there would be hell on earth over it.
I say proceed with the lawsuit and damn the torpedoes. |
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Israel Shirk, Photographer, Assistant
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Boise | ID | US | Posted: 2:11 PM on 02.22.11 |
->> Since it got bumped already...
Portrait photographers don't hold copyright just in case someone someday becomes famous, so they can sell out to an agency or whatever other editorial crap you can think of. That's the furthest thing from their minds if they're in the business to take a profit. They'd never come even on keeping that much junk archived.
They keep copyright to sell prints, products, and protect themselves from having their images ripped off by a lesser photographer for their 'portfolio'. |
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Richard Uhlhorn, Photographer
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Chelan Falls | WA | USA | Posted: 2:14 PM on 02.22.11 |
->> In reading this thread I am amazed that he was called out for registering that image immediately. For professional photographers, that is a normal business practice and this image will no doubt have legs for many years to come. It's called protection for your intellectual rights/creativity, whatever.
The real problem are the media outlets that used the image without even considering payment. Secondly, all of those individuals out there who thought he was being greedy, etc., should read copyright law, or at least try to understand a little better why a photog would copyright such a photo. What if Eddie Adam's photo had not been copyrighted.
He probably should have taken the high road right off the bat and contacted each media outlet using the image and asked for standard compensation. The next letter could be more of a demand letter. Of course he could also have contacted a news agency like Getty and let them handle the distribution.
I don't really know the answer either in this case, but I feel for him in this battle. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 5:52 PM on 02.22.11 |
->> "... Portrait photographers don't hold copyright just in case someone someday becomes famous,... They'd never come even on keeping that much junk archived."
I'll disagree with you on this one, Israel. I have every negative, transparency and digital file (except those few exceptions lost in hard drive crashes) that I've shot as an independent photographer (translation: I own the rights to all of it). My archive starts when I was in high school circa 1977, the year I bought my first slr. I would venture to guess that I'm not the only odd ball around here either ;-) It was pounded into my head by my early mentors to save every image just in case it would become valuable, monetarily or historically, in the future for whatever reason. |
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Richard Uhlhorn, Photographer
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Chelan Falls | WA | USA | Posted: 11:08 PM on 02.22.11 |
->> Like you Clark, I have most everything I've ever shot except for what I lost once in a divorce (just received some of that back after 23 years).
Recently I received an email from a couple whose wedding I shot over eight years ago. Their home burned down and they lost everything. Did I still have the wedding photos? Two days later I sent them a DVD of their wedding.
So archiving images, even though they may never be famous, is an important step in running a business. |
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Eric Canha, Photographer
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Brockton | MA | United States | Posted: 10:42 AM on 02.23.11 |
->> I have to agree with Clark... Photographers are the consummate pack rats. If I shot it I still have it. I have this image in my mind of a local photographer who upon his retirement was photographed standing in front of his garage. Every inch of that garage (2 stalls if I remember correctly) was jam packed with negs and contact sheets going back to the 40's and beyond.
RIP Stan, that photo of you will live in my memory forever. |
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Israel Shirk, Photographer, Assistant
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Boise | ID | US | Posted: 11:25 AM on 02.23.11 |
| ->> I didn't say you wouldn't keep it... I said you'd never come even on it... I know how you guys are ;) |
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Doug Pizac, Photographer
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Sandy | UT | USA | Posted: 1:21 PM on 02.23.11 |
->> Here's a classic example on why you keep everything you shoot.
Three presidencies ago a young woman wearing a beret was seen and photographed hugging a man as he worked the line thanking supporters. Nobody knew her name; she was of little consequence.
Being the time of early digital camera use, these images were recorded electronically except for one photographer who shot film. A while later this woman's name became famous. Was there a plethora of images of her hugging the president and girl on the wires and in papers worldwide? No. They had been erased because of their lack of value vs the cost of hard drives -- which were a lot more expensive back then than today. I know some of the shooters who had hit the delete button back then and now wish they didn't. But there was a key image that became very valuable and iconic for the one photographer because ALL his film was filed away.
This was the turning point when many photographers, agencies and others began archiving everything regardless. Others haven't learned their lesson yet.
If you save an image, it can become valuable in the future; but if you throw it away it will never have a chance to be of any worth. |
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Israel Shirk, Photographer, Assistant
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Boise | ID | US | Posted: 8:12 PM on 02.23.11 |
->> You forgot to mention that it was Monica Lewinsky and Bill Clinton.
Hope you guys have fun arguing, I'm going to go watch a movie :) |
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