Shepard Fairey Drama Twist

Sometimes a lawsuit is just a lawsuit.

But sometimes it is a soap opera. Sometimes, a lawsuit is an attempt to shape the laws, an attempt to get the public to wake up and take sides. And sometimes there is a cliff hanging twist and turn every time you think it is safe to turn off the internet. Fairey v. Associated Press, is all of the above, and the case has all of the elements of a good drama (except sex): politics, money, theft, lies, and art.

In the latest twist, Fairey has admitted that he falsified evidence and attempted to destroy other evidence. AP has also issued a statement, stating that the Fairey’s lawyers are attempting to withdraw from representation of Fairey. To them, I say: “what did you expect from a thief.”

Bad news for the copyleft- their “poster-child” for fair use has almost certainly ruined his case. There is nothing like lying to the court and violating discovery to remove all sympathy a judge might have for your case. Furthermore, he could be sanctioned to the point that he looses his primary defense. No matter what happens, he looks very guilty.

On Another Note:

When researching this news, I noticed an interesting article from the EFF that explains how as a part of the countersuit, the AP is also making a claim under the Digital Millenium Copyright Act for stripping the metadata from the photograph (see item 137 and 182 of the counterclaim document). I was not aware of this, but this will be another interesting element of the case to follow closely if this does not settle. Removing metadata is a violation of the DMCA. And yet nearly every newspaper website in America removes metadata from photos that it publishes. I have long criticized this practice- it creates orphans. But if AP wins on the issue of removing the metadata, media lawyers will have to wake up about the practices of news organizations relating to preserving metadata.

On Yet Another Note:

As I mentioned, this case has many twists and turns. Few legal posts I have seen evaluate the Mannie Garcia claim that he is the rightful copyright holder of the photograph. Here is one great article about it, though.

I have chart on work for hire that I created earlier this year. Without knowing more facts about Garcia and his arrangement with AP, it is hard to work through it, but you might find it useful.

Interesting Related Documents:

Fairey’s Initial Complaint

AP’s Answer and Countersuit

Fairey’s motion to amend the claim (with the details about Shepard Fairey’s change in story)

Mannie Garcia’s Motion for intervention.

More documents from the case.

Some “factoids” for you

For a little pre-summer fun. Check out this link.

Not a lot of bells and whistles, but kind of amusing, to see the errors we make in common phrases.

This fits with photoblawg because whether you are a journalist or a lawyer, your communication skills make all the difference in getting your point across.

I myself will be checking back with this Website (yes, it is supposed to be capitalized):

http://www.wsu.edu/~brians/errors/errors.html#errors

One that I always struggle with: judgment

Roxana Saberi reportedly released

Roxana Saberi has reportedly been released from prison! The Iranian-American journalist, who had been convicted of spying and jailed in Iran with a sentence of 8 years, was released when an appeals court, after pressure from the president of Iran, agreed with her defense that she could not be “cooperating with a hostile state” if there was “no hostiliy” between the U.S. and Iran. Her sentence was reduced and suspended.

Contributing to this victory: a change in tone between the new administration and Iran, upcoming Iranian elections, pressure from the U.S. president and secretary of state, and pressure from journalism groups.

Three cheers for some wonderful news on a Monday morning.

The copyright of “Happy Birthday”

Happy Birthday Ladies! Did you get a performance license for that song?

Did you know that someone claims ownership to the copyright to the song “Happy Birthday to You”?

It was referenced in the dissent of a well-known copyright case, Eldred v. Ashcroft.

In honor of the end of law school finals, here is some light summer reading for you.

A legal scholar did some digging and found out some interesting facts. Digging deeply into the authorship of the lyrics and the melody, technical legal issues, evidentiary issues and policy issues, the author provides a logical look at the facts of a song whose music was written in 1893, but was combined with lyrics and published in 1935.

So what is the answer- as in many legal issues, it’s complicated. I won’t spoil the ending for you, you can read the paper yourself. Reading like a soap opera for copyright nerds like me, it is not only a very interesting tale, but a great look at the history of copyright law.

Ultimately, until tested in court, we won’t have a definitive answer, and no one seems likely to challenge it (the article addresses why). In the mean time, the song earns over $2 million in licensing revenue every year.

Find the article at this link.

After taxes- Google books deadline looms

As you finish up with your tax deadline, another important deadline is looming.

The Google Book settlement with the Author’s Guild has May 5 opt out deadline. That is a less than 3 weeks.

What does this mean to you?

Well, if you want to be a part of the settlement, you don’t have to do anything. But you need to make a couple of decisions.

1) Your first decision-does this affect me as a photographer? It may or it may not. According to the Google Settlement Page FAQ’s:

The settlement covers:

“all persons and entities that, as of January 5, 2009, own a U.S. copyright interest in one or more Books or Inserts that are “implicated by a use” authorized by the Settlement.”

“Photographs, illustrations, maps, paintings and other pictorial works in Books are covered by the Settlement ONLY when either (a) the U.S. copyright interest in the pictorial work is owned by a person who is also a copyright owner of the Book containing the pictorial work or (b) the pictorial work is an illustration in a children’s Book (see below). For example, if a copyright owner of a Book on photography is also a copyright owner of photographs in that Book, those photographs are covered by the Settlement. However, the Settlement does not cover any other photographs in the Book whose copyright is owned only by persons who are not copyright owners of the Book. Similarly, if a history Book contains a series of maps where the copyrights to those maps are owned only by persons other than a copyright owner of that history Book, those maps are not covered by the Settlement.”

2) If you believe you are covered by the settlement, you have a second decision. Do you want to participate?

How do you decide if you like the deal or not. Well, you have to know what google is authorized to do under the settlement AND what benefits you will receive. According to the Google Settlements FAQ page (run by Google), the following applies:

1. “What is Google Authorized to do Under the Settlement?
   Under the Settlement, Rightsholders authorize Google, on a non-exclusive basis, to:

   Cash Payments. Google will pay a minimum of $45 million to compensate Rightsholders whose works Google has scanned without permission as of May 5, 2009. Rightsholders of works Google has scanned without permission as of May 5, 2009 are eligible for Cash Payments, which will be at least $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert. A “Principal Work” is the main work in a Book (that is, the part of the Book that does not include forewords, afterwards, footnotes and other material).”

   • Continue to digitize Books and Inserts
   • Sell subscriptions to an electronic Books database to institutions;
   • Sell online access to individual Books;
   • Sell advertising on pages from Books;
   • Display portions of Book in a “preview” format to encourage sales of online access to Books;
   • Display Snippets from Books; and
   • Display bibliographic information from Books.

2. What Benefits Are the Rightsholders Receiving from the Settlement?

   63% of Revenues Earned in Google Book Search. Google will pay rightsholders 63% of all revenues Google receives from the commercial uses Google makes of the Books.

   Establishment of the Book Rights Registry. Google will pay $34.5 million to establish and maintain a Book Rights Registry, to locate rightsholders and create a database of their contact information and copyright interests in Books and Inserts, and to collect revenues from Google and distribute those revenues to rightsholders, and for notice and settlement administration costs.

   Right to Manage Books and Inserts in Google Book Search. Rightsholders will have the right to determine whether and to what extent Google may use their copyrighted writings.

My concerns about the settlement:

The Payment: $60 cash payment to scan your book and make it available online is not very much, compared to the purchases of the book which you will lose. While author’s will supposedly get 67% of the profits, it is not clear how they will determine who gets those profits or where the money from true orphan books will end up. Will they track the books that are read on their online service and distribute to those authors? It is important that there be a procedure in place that connects the use of each individual book with the author.

The Book Rights Registry: This should benefit creators. It is important that there be safeguards in the registry for privacy reasons. However, one of the main obstacles to paying creators is finding them, so this will definitely help.

What price will the the access be: This appears to be the million dollar question. While libraries are concerned about this number being too high (it currently costs $50 to access some law books on Lexis Nexis), author’s should be concerned about this number being too low. If someone won’t buy my book because they can get it online for $2, maybe I am losing a lot of money. Then again, maybe that is more than I would have gotten from a hard-copy sale. And maybe, like iTunes, more people will by my book because it cost less, and I will ultimately profit. But it is hard for an author to make that decision without more facts.

Right to Manage Books: This is what makes this settlement acceptable to me. If I can determine to what extent Google can use my copyrighted work, I control my work. This means if it is driving down my profit, I can adapt. But clarity on the amount of rights you can exercise would be helpful.

Magazines: Read my post below about magazines. While this settlement claims to be only about books, I am deeply concerned that similar online distribution of magazines is being accomplished by Google.

For more information:

Article about who is opposed to the settlement (includes a quote from Vic Perlman).

Blog post from the Advertising Photographers of America.

Article on Author’s Link.

This New York Times article discusses some of the philosophical objections to the settlement, including concerns that Google is creating a monopoly of access to “orphan” books.

The Author’s Guild, which is one of the organizations that initiated the suit. Keep in mind that they helped shape the terms of the settlement, so they believe it is fair. They have a large number of resources on their settlement page.

Google also has a settlement page.

I am a strong believer in the mantra “consider the source,” so while these resources may be accruate, you should seek out information and evaluation from a third party that is representative of creators.

All right, that should give you enough reading material until the tax extension deadline (yes, I filed for an extension for like the 5th year in a row).

Cheerio! Alicia

Why your trademark is important and an interesting story to go with it.

I recently read a case about a company called Polaris Pictures Corp. This is not to be confused with Polaris Images, the reputable picture agency. But when I first heard of this case, that was the first thing I wondered. This is why trademark law is important.

There is a good reason why you wouldn’t want to confuse the two companies. First of all, PPC was barely a business at all. At best, they had an interest in some screenplays. You don’t want your clients accidentally calling this company.

Secondly, the company, was involved in some rather dramatic alleged scams involving insurance and a million dollar yacht. Not good pr to be associated with.

There is more than one case involving this company, but this one has a pretty good summary . It reads like a daytime drama.

This case is also an example of why I love it when an opinion is written by someone with good writing skills. Being a good writer is very important being a good lawyer and judge. The “truth is better than fiction” quality of this case would be lost on the wrong writer.

Magazine Death Pool

A magazine on the list at www.magazinedeathpool.com

Well, just to make us newspaper fans feel better, there is a blog called the Magazine Death Pool which is tracking the various magazine closings.

Some of these truly look like they deserved to go, but some are a bit of a surprise.

The blog itself seems to have lasted quite a while

A Disturbing Equation

I have been seeing several trends over the past few years. I hope that others are doing the math.

2+2=4. And that’s what scares me.

So here is what I am seeing:

- Fewer and fewer staff photographers and reporters at newspapers across the country = less independent reporting = more reliance on “self-reporting” by subjects. This is often seen in the form of handout photos, whether from the government or from PR agencies or from corporate communications offices.

- Media acceptance of “press passes” as a permissible means of the government deciding who gets a right to report the news, even in a public place + More restrictions on granting of press passes by the government, especially by non-traditional media + the closing and reduction in coverage of many newspapers = Fewer watchdogs of the government and more control of the message by the government.

- More restrictions on access by government and corporate entities + media cooperation by accepting “hand-out” photos = more and more cases of photos appearing in traditional media that are actually manipulated or staged or, at a minimum, edited to make the subject look favorable.

Don't be a dunce! © Alicia Wagner Calzada

If you add up these three things, then you have this:

fewer independent journalists

+ more restrictions on access

+ more news provided by the newsmaker

+ more manipulation of the “news” by the newsmaker

_____________________________________

= a deeper walk down the slippery slope of control of the message by the subject, AND a steep decline in truthful, accurate, reliable information available to the public.

How can a nation make decisions about it’s government without accurate, truthful information. It can’t.

So who’s fault is it?

It is natural for anyone in power to want to control the message. But it is the job of the media to not cede that control. The media is failing. Furthermore, citizens are failing in demanding this of their media and of their government.

I’ll be looking to see how the Obama administration treats access. I am optimistic, but this is not a Democrat vs. Republican issue. It is something that happens with power. I challenge journalists everywhere to take a bigger stand.

It is our jobs. Don’t be a dunce.

Comparing the First Drafts of History

On any day that follows a moment in history like yesterday’s inauguration of Barack Obama, newspapers are at their best. And it is a great exercise to look at the different front pages to see what they all look like, which photos were used the most, etc.

For several years, the Newseum has made this easy, by showcasing the front pages of nearly every major newspaper in the country.

You can see how the Inauguration coverage looks at http://www.newseum.org/todaysfrontpages/default.asp

They do this every day, and archive the special days so you can also pick a day that has historical significance for you, such as the day Pope Benedict was chosen (or the day the Phillies won the world series).

A quick glance at the gallery view of today’s front pages shows that a photo taken by Chuck Kennedy of the McClatchy-Tribune Photo Service with a remote camera was one of the most popular. It is a great image, and there is an article about how the photo was made on the NPPA website.

Coldplay accused of copyright violation

Joe Satriani is suing musical group Coldplay for violating his copyright.

This article about the conflict highlights the importance of access in copyright cases.

Decide for yourself by watching this or other Youtube comparisons. I like this particular one because it plays them both and then combines them. Perfect harmony.

This article also led me to an interesting website on copyright, the UCLA copyright Infringement Project, which lists important copyright cases, mostly music related, and includes samples of both songs in various cases.

Although these cases relate to music, the concepts of IP and sampling crossover.

A $5.4 Million case against Michael Bolton had a nice summary of the basics of an infringement case:

A copyright plaintiff must prove

(1) ownership of the copyright; and

(2) infringement – that the defendant copied protected elements of the plaintiff’s work. See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (citation omitted).

Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had “access” to the plaintiff’s work and that the two works are “substantially similar.” Id.