Microstock Calendar

Photographer Mannie Garcia has withdrawn his claim of copyright ownership to the photograph behind the famous Barack Obama "Hope" poster image.

The image is at the center of a lawsuit between Associated Press and and artist Shepard Fairey, who used the photograph without permission to create the campaign poster. AP sued Fairey for copyright infringement in 2009, but Garcia joined the lawsuit soon afterward claiming that he--and not AP--was the rightful owner of the image.

Garcia shot the image of then-Senator Barack Obama at the National Press Club in 2006.

Garcia alleged that because he was a freelance photographer on assignment for AP when he shot the image, and not an employee, he owned copyrights to the image. He also accused AP of acting in bad faith for registering the copyright to the image under its own name.

The AP has maintained all along that Garcia was an AP employee when he shot the image, making AP the rightful owner of the image. (Under US Copyright law, employers own the copyrights to works created by their employees.)

"The AP is pleased that Mr. Garcia voluntarily withdrew [his claim] without any payment or consideration of any kind -- this was not a settlement," the AP said when announcing Garcia's withdrawal.

One of Garcia's attorneys, Warren Zinn of Miami, says Garcia decided to drop his claim because "he didn't want to be consumed by it anymore."

When pressed about whether Garcia withdrew for lack of money to pursue his claim or because of doubts that he would win, Zinn said, "It wasn't anything like that. It was taking a toll, so he said, 'Forget it, I'm done, they can have the image. I just want to get back to my life.'"

Garcia was not immediately available for comment.

Garcia's withdrawal leaves AP's infringement claim against Fairey intact. A trial date has been set for March 21, 2011.

Back in May, we reported the case of AFP v. Morel, in which AFP allegedly downloaded and distributed photographer Daniel Morel's exclusive Haitian earthquake photos without permission. After he sought compensation from AFP, the wire service sued him for defending his rights too aggressively.

Now comes another case in which a photographer has accused AFP of stripping his credit off an image (shown here) that happens to show Barack Obama’s Chicago residence, and distributing the photo to third parties without the permission.

Photographer Wayne Cable filed suit against the agency for copyright infringement, Digital Millenium Copyright Act violation, deceptive business practices and other claims. He alleges that a Chicago luxury real estate firm hired him to photograph the interior and exterior views of a certain house, in order to put the images online and entice potential buyers. The Obama residence happened to be next door, so Cable photographed it as part of the exterior view shown here. He provided this and other images to his client with the stipulation that any use of the images—beyond displaying the images to sell the house-- had to be approved by Cable. He further stipulated that the photos had to include his credit line, and a hot link to his Web site. The client complied.

AFP found the picture of Obama’s house, allegedly stripped the credit and hot link off of it, and distributed it worldwide as the purported licensor, all without Cable’s permission.

AFP filed a motion to dismiss several of Cable’s claims, including the Digital Millenium Copyright Act claim. The DMCA makes it illegal to remove or alter copyright management information. AFP didn’t dispute that it removed Cable’s name and hot link; they argued instead that from a legal and technical standpoint, Cable’s name and hot link weren't copyright management information as defined by the DMCA.

The judge didn’t buy it, and in a decision handed down last week, he rejected AFP’s arguments for dismissal of Cable’s other claims, too. Cable still has a long legal fight ahead, but the preliminary decision in his favor clears the way for a trial.

Both cases raise questions about AFP's policy regarding the distribution of photos that don't belong to them. But so far, AFP has not responded to a request for comment.

A snowboarding photographer battled a company for months trying to get them to acknowledge that they had used his photo without permission or payment. The photographer, Chris Messervey, has now published his months of correspondence with the company on his blog in hopes of getting satisfaction.

Standard practice for snowboarding photographers is to accompany riders on their trips into the mountains, make images documenting the action, and then license those photographs to magazines and companies who sponsor the riders and whose gear appears in the photos.

Messervey did just that when he traveled this past February to Revelstoke, British Columbia with some snowboarders who were working on a film for the 2010–2011 winter season.

One of the riders mentioned to Messervey that one of his sponsors, the snowboarding apparel company Grenade, were looking for photographs of the rider in the next season’s gear. “It’s pretty standard practice that after shooting riders, you preview shots with them, they show their sponsors, if their sponsors are feeling the shots, they buy them for a price based on how they intend to use them,” Messervey wrote in a blog post recounting his experiences with Grenade.

The rider showed one of Messervey’s images to Grenade, who published it on their blog. Messervey didn’t receive a request for permission to publish the image, nor was he credited.

When he approached Grenade about payment for use of the image, a representative of the company was initially cordial, Meservey says, but put him off. Months later, he had still not received payment. The correspondence between Messervey and the company, which Messervey published on his blog, escalated into acrimony on both sides and threats of legal action, and ended with the company’s CEO accusing Messervey of being unstable simply because he was trying to protect his work.

Grenade has since taken Messervey’s photograph down off its site. He has still not been paid for the usage.

A snowboarding photographer battled a company for months trying to get them to acknowledge that they had used his photo without permission or payment. The photographer, Chris Messervey, has now published his months of correspondence with the company on his blog in hopes of getting satisfaction.

Standard practice for snowboarding photographers is to accompany riders on their trips into the mountains, make images documenting the action, and then license those photographs to magazines and companies who sponsor the riders and whose gear appears in the photos.

Messervey did just that when he traveled this past February to Revelstoke, British Columbia with some snowboarders who were working on a film for the 2010–2011 winter season.

One of the riders mentioned to Messervey that one of his sponsors, the snowboarding apparel company Grenade, were looking for photographs of the rider in the next season’s gear. “It’s pretty standard practice that after shooting riders, you preview shots with them, they show their sponsors, if their sponsors are feeling the shots, they buy them for a price based on how they intend to use them,” Messervey wrote in a blog post recounting his experiences with Grenade.

The rider showed one of Messervey’s images to Grenade, who published it on their blog. Messervey didn’t receive a request for permission to publish the image, nor was he credited.

When he approached Grenade about payment for use of the image, a representative of the company was initially cordial, Meservey says, but put him off. Months later, he had still not received payment. The correspondence between Messervey and the company, which Messervey published on his blog, escalated into acrimony on both sides and threats of legal action, and ended with the company’s CEO accusing Messervey of being unstable simply because he was trying to protect his work.

Grenade has since taken Messervey’s photograph down off its site. He has still not been paid for the usage.

A photographer recently tipped us off about a Chinese Web site that is publishing the work of photographers without their knowledge or permission. The site is branded as if it were produced by Leica, but according to a Leica representative they have nothing to do with it. “Leica Camera always respects the rights of artists and does not support the unapproved publication of artwork,” a Leica spokesperson told PDN via email.

Leica did not, however, comment on whether they would pursue legal action to have the site taken down.

An Austrian store that apparently sells Leica cameras and photographic prints is the site’s only sponsor.

A few of the photographers whose work is used on the site are: Phillip Toledano, Steve McCurry, Marcus Bleasdale, Annie Marie Musselman, Robbie Cooper, Kosuke Okahara, Dominic Nahr and Michal Chelbin.

The site is also marketing an app, downloadable for free through the Apple iTunes App Store. When you open the app a grid of famous photographs, including Annie Leibovitz’s image of Yoko Ono and a naked John Lennon, appear on the screen.

Work by Stephen Shore, Lynn Goldsmith, Jonas Bendiksen, Erika Larsen, Sebastião Salgado and others appear in the “A Pic a Day” section of the app. In the app’s “Magazine” section, entire photo essays appear, many of them current. For instance, Sebastian Liste’s 2010 Ian Parry Scholarship-winning essay on homeless families inhabiting an abandoned chocolate factory in Salvador de Bahia, Brazil, appears.

Photographers we’ve spoken with had no idea this Web site existed and was using their work, nor were they aware of the app, and we’re assuming that none of the photographers whose work is being used gave permission.

Does your work appear on the site?

A photographer recently tipped us off about a Chinese Web site that is publishing the work of photographers without their knowledge or permission. The site is branded as if it were produced by Leica, but according to a Leica representative they have nothing to do with it. “Leica Camera always respects the rights of artists and does not support the unapproved publication of artwork,” a Leica spokesperson told PDN via email.

Leica did not, however, comment on whether they would pursue legal action to have the site taken down.

An Austrian store that apparently sells Leica cameras and photographic prints is the site’s only sponsor.

A few of the photographers whose work is used on the site are: Phillip Toledano, Steve McCurry, Marcus Bleasdale, Annie Marie Musselman, Robbie Cooper, Kosuke Okahara, Dominic Nahr and Michal Chelbin.

The site is also marketing an app, downloadable for free through the Apple iTunes App Store. When you open the app a grid of famous photographs, including Annie Leibovitz’s image of Yoko Ono and a naked John Lennon, appear on the screen.

Work by Stephen Shore, Lynn Goldsmith, Jonas Bendiksen, Erika Larsen, Sebastião Salgado and others appear in the “A Pic a Day” section of the app. In the app’s “Magazine” section, entire photo essays appear, many of them current. For instance, Sebastian Liste’s 2010 Ian Parry Scholarship-winning essay on homeless families inhabiting an abandoned chocolate factory in Salvador de Bahia, Brazil, appears.

Photographers we’ve spoken with had no idea this Web site existed and was using their work, nor were they aware of the app, and we’re assuming that none of the photographers whose work is being used gave permission.

Does your work appear on the site?

Video sharing site Vimeo has announced that it has added Creative Commons licensing options for its members. The new feature enables video creators to specify--and thereby limit--the rights of others to copy, distribute, and make derivatives of videos posted to Vimeo.

Vimeo says it has added Creative Commons licensing options because those licenses are "a highly desired feature by the Vimeo community." The feature will also distinguish Vimeo from competing video sharing sites, namely YouTube, which don't give contributors the option to restrict how their uploaded works are used by others.

But is Creative Commons an actual benefit to creators, or is it giving creators (and sites like Vimeo) a false sense of security and control?

Creative Commons is a non-profit organization that was established to make it easy for people to share, remix and re-use copyrighted works with the blessing of creators, while still enabling creators to retain control of certain copyrights--primarily commercial usage rights.

To use Creative Commons licenses, users on Vimeo or any other site that supports CC attach a combination of four basic CC licensing components to their work. The broadest is Attribution, allowing any use of the work so long as it is attributed to the copyright holder. A so-called Share Alike option allows derivative works as long as they are distributed under a CC license identical to the license for the original work. Non-Commercial and No Derivative Works options bar commercial uses and derivative works, respectively.

Attribution never hurts, and may help commercial licensees track down creators and pay them. And there's an argument to be made that people will respect you--and the copyrights you reserve--if you allow some free but limited usage rights to your work.

However, the efficacy of Creative Commons licenses have yet to be tested in court. CC licenses are contracts, which work only when both parties agree to them. It's not clear, for instance, how much protection a CC license would give a creator in a case where a user went beyond the scope of the license and then said they didn't understand its limits.

Seattle photographer Mike Hipple reports that he has run out of money to defend himself against a copyright infringement claim by a sculptor, and he's now trying to raise money by selling a self-published book.

"My lawyer recently [quit] on me because I cannot keep up with the legal costs," Hipple says. "I've found another lawyer to assist me, this time on a pro-bono basis thankfully, but I still have a lot of costs" for expert witnesses, depositions and other expenses.

Hipple is being sued for infringement over the stock image shown here. It depicts a dancer interacting with bronze footprints embedded in a Seattle sidewalk.  Jack Mackie, one of the sculptors who created the footprints to illustrate the "Mambo" dance, filed the claim against Hipple last year.

Hipple shot the photograph in 1997, and distributed through his stock agency, AGE Fotostock. Mackie discovered it in 2007.

Hipple says he has tried without success to settle the case with Mackie.

Hipple's first lawyer argued that the sculpture is a "derivative" representation (of dance step instructions) that lacks enough originality to qualify for copyright protection.

Hipple said he's also arguing that his use of Mackie's work is allowed in this case under the Fair Use doctrine. "If this doesn’t qualify as fair use of the sculpture, I don’t know what does," he said.

Fair Use is an exemption in the copyright law for certain uses, such as criticism, comment, and news reporting. It is decided on a case-by-case basis.

Hipple's fund-raising book, called Dailies, is a 40-page collection of personal images that Hipple is selling for $32.95 on Blurb.com. More information, including a preview of the book, is available at http://www.blurb.com/books/1386481.

Hipple also maintains a blog where he has set up a legal defense fund.

Update June 11, 2010: Mackie's original complaint is available here. Hipple's motion to have the case dismissed, which was denied, is here. A more complete file of the case documents can be accessed at www.pacer.gov.

For image users who don't understand copyright, model releases, and other rules and legal risks associated with using stock photography, Getty images has launched a new educational site to explain everything in simple terms.

Called Stockphotogrights.com, the site features a video called "Image Rights Explained Visually." In just over three minutes, the video explains in an easy-to-understand way that not only do images have to be licensed, but image users have to protect themselves by making sure the images have all necessary model, property, and trademark releases.

The site also covers licensing in a more detailed FAQ format. The "What you need to know" information covers the basics of copyright and warns image users what could happen to them if they ignore it. Another section of the site provides image users with a checklist of procedures to follow when licensing images. There are case studies that tend to emphasize how image users were shielded from various types of legal claims arising from images they had licensed from reputable stock agencies.

Yes, Stockphotorights.com is a bit self-serving. The message is that terrible things can happen to you if you don't license images properly, but fortunately there are licensing agencies--Getty and its brands are mentioned often--that help protect you from the legal risks. It will also be a challenge for Getty to get image licensing information to people who don't even realize they need it in the first place. (The agency will be spreading word and the video through various forums and and online networks so stockphotorights.com pops up in Web searches.)

But a journey of a thousand miles starts with the first steps, and Getty is approaching the public awareness campaign in a way that few other industry groups have: They are appealing to the self-interest of image users--and providing them with clear, simple, and actionable information about licensing. To the extent that the campaign succeeds, it will benefit the entire industry.

May 20 update: Shutterstock says it is an "active partner" in Stockphotorights.com, and that it has provided some of the site's content. Getty says, "This is very much an initiative conceived and launched by Getty Images."

Photographers who have participated over the years in Corbis’s copyright registration program may have less copyright protection than they think—or need. The reason is because the bulk copyright registration forms that Corbis filed starting in the mid 1990s are missing a crucial piece of information: the names of most of the photographers.

Photographers Marc and David Muench learned that the hard way last week when a federal court in New York rejected their copyright claim (09-CV-2669) against textbook publisher Houghton Mifflin Harcourt. The Muenchs alleged that the publisher used approximately 180 of their images beyond the scope of a usage license. But the court said the Muenchs didn’t have grounds to sue because their images weren’t properly registered.

Corbis had registered the Muench images as part of various compilations in 1997, 1999, 2001, and 2006. By contrast, the court said that 20 images that David Muench had registered himself “appear to be properly registered,” so the Muenchs can pursue their infringement claim for those images.

“Because the Copyright Act is clear on its face, i.e., a copyright registration must contain certain pieces of information, including the author’s name, the registrations at issue here cover only the database as a whole (the compilation), but do not cover [the Meunschs’] individual contributions,” the court said.

The compilation referred to was a collection of images Corbis created in order to registering copyrights all at once. Corbis started the bulk registration program so it could pursue infringers on its own behalf, but the program was also billed as a benefit to photographers because it streamlined the cumbersome copyright registration process.

Under the terms of the program, photographers were asked to assign their copyright temporarily to Corbis for the express purpose of the bulk registrations. Corbis then registered the images as a compilation under its own name, without listing the individual photographers whose images made up the compilation, and then transferred copyright ownership back to the photographers.

The company’s decision to forego naming each photographer was based upon an advisory letter from the US Copyright Office. On behalf of Corbis and other stock agencies, the Picture Archive Council of America had asked the US Copyright Office to affirm the validity Corbis’s bulk registration process. The copyright office responded that it preferred--but did not require—registration applications to name all of the photographers.

Marc and David Meunsch cited that letter in support of their claim, but the court flatly rejected the Copyright Office’s interpretation of the registration requirements. “The interpretation [of the Copyright Office] conflict with a plain reading” of US Copyright statutes, the court said.

Corbis Director of Communications Dan Perlet says that “Corbis, PACA and others believe that this decision regarding the bulk registration process is incorrect and that it will be reargued, in which case Corbis will likely file an amicus brief supporting the bulk process.”

But he notes that Corbis has been listing the names of all photographers in its bulk registrations since February 2009—the month before the Muenchs filed their lawsuit. The Corbis bulk registrations since then aren’t affected by the Muench ruling, Perlet says.

For photographers who participated in the agency’s registration prior to that, “Corbis recommends that contributors wait to see the outcome of the appeal,” Perlet says. If the appeals are unsuccessful, he adds, then Corbis will go back and provide any supplementary information or re-register the images to make sure the registrations are valid.

Corbis has not said how many photographers—or images—are part of its bulk registration program.

Meanwhile, Advertising Photographers of America (APA)—which questioned the validity of Corbis’s bulk registrations several years ago—said in a press release yesterday,“[Corbis] ineffectually ‘registered’ an unknown large number of images that has resulted in a significant increase in vulnerability for photographers that have used this system through Corbis.”

APA added, “This emphasizes the importance of registering ones own images.”