Who owns video feed of Congress- You Do!

So, I am studying for finals, which means my mind often goes on short stream-of-consciousness vacations and sometimes leads to eureka moments. But usually, it just leads to semi-eureka moments. Like this one.

I have been researching the efforts to restrict coverage of high school sports by the state associations (state actors). If you take their argument to the extreme you would be accepting the notion that a city council could have an “official” photographer or videographer, and restrict other media in the manner and amount that the media broadcasts what it covers. That would be absurd, right?

Which made me think- what about C-SPAN? I have been to Congress, and there are not gaggles of live television crews there. Is the high school sports association just following the C-SPAN model? The short answer is no.

C-SPAN broadcasts the video feed of Congress, but they do not own it or assert any rights over it. The U.S. government produces the feed of Congress (which is somewhat problematic- but a different argument), and since there is no copyright in material produced by the federal government, the video feed is public domain. Neither CNN or anyone else has to pay a licensing fee to Congress, or to C-SPAN to use or broadcast the video.

To read about the video from Congress, C-SPAN and copyright, check this link.

Being specific- and the definition of “public relations use”

I don’t know if I have mentioned it before, but a contract can’t conceivably have all of the possible terms available in the universe (although some try). So if a term is missing from a contract, or if it is ambiguous, the court will try to fill in the blanks. In other words, the court will interpret any part of your contract that is unclear. For that reason, you should be clear about the important parts- like usage.

In my research, I came upon a  case which is a good example of how clear usage terms can make all the difference in a lawsuit. The case is Steve Altman Photography v. United States, 18 Cl. Ct. 267 (Cl. Ct. 1989)

Basically what happened was that the photographer and his client, a government agency, had an ongoing relationship and a subsequent dispute over a couple of different uses. Two parts of the case interested me. The photographer claimed that the agency violated his copyright twice, once by releasing an image to a magazine and again by using a (separate) photo in an annual report. Both allegations combine to make a good lesson.

“PR Use” and Release to a Magazine

I simply hate pages with lots of text and no photos. So here. Enjoy. © 2008 Alicia Wagner Calzada

For the first allegation, the photographer had granted “public relations use” for an assignment. The agency gave a copy of a photo from the assignment to a magazine. Was the copyright violated?

First, the court, without more specific indications of the intentions of the parties (at the time of the contract), interpreted “public relations” based on the dictionary definition:

“”Public relations” refers to the “business of inducing the public to have understanding for and goodwill toward an . . . . institution.” Webster’s New Collegiate Dictionary, 932 (1975).” Id.

Second, because the photographer came up with the terms, the court construed the contract most favorably to the other party- basically, as the person drafting the terms, you have a responsibility to be clear, and you don’t get to benefit from being vague. Thus the court found that releasing the photos to the magazine fell under “public relations” use.

More Specific Usage Terms- “1982 annual report”

In the same case the same photographer had also licensed some photos for an annual report, specifically “to be used in 1982 annual report and for P.R. release.“

Because these terms were more specific, when the agency use the images in the annual report for a different year (1983), the court ruled that there was a copyright infringement.

So you see how being specific made all of the difference. Imagine if the client had used one of the photos from the first instance in an annual report. The court could have used the second contract as proof that annual report use was not included in public relations use. Or it could have decided that the absence of a specific limitation meant that there was no limitation.

Moral of the story, be specific, lest someone else is left to read your mind. After all, if you end up having a judge interpret your contract, you have lost the client.

If you use a general license, list the possible uses. If you need help filling in the blanks, a great resource is PLUS (Picture Licensing Universal System). They have an awesome feature called the “License Generator” which you can use to fill in the usage section of your contract. Try It!

Happy Shooting.

-A

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.

It’s photo week at the Supreme Court of the United States

Photographers should be paying attention to the Supreme Court this week…

Tasini continued…

Oral arguments were heard today in Reed Elsevier v. Muchnick. This case is connected to our old friend Tasini v. New York Times, which some say started the whole rights grabbing trends of the modern day newspaper contract. While this case won’t really have as much of an impact on photographers, it is interesting because of the connection. It involves the authority of the court over copyright cases and settlements when the rights holders haven’t registered their copyright. It also involves an enormous class of journalists. Here is a summary of the oral arguments (note to self: research why people keep hyphenating “freelancer”) and here is a transcript of the oral arguments.

If the court rules that a federal court cannot approve a settlement involving rights-holders who have not registered, it seems inevitable that this will affect the Google Books settlement.

The Dog-fight Video Case

In another case that is important to photographers, the U.S. Supreme Court heard oral arguments Tuesday about whether or not a law that bans visual depictions of cruelty to animals is a violation of the First Amendment.

U.S. v. Stevens is the first case ever to be prosecuted under a federal law that bans any “depiction of animal cruelty” if such cruelty is illegal in the place where the depiction is created, sold or possessed.

It has been many years since the Court found that the government interest in preventing child pornography was so great that it overrode any First Amendment rights of the child pornographer, a rather appropriate finding. By making the expressive act illegal, the motive for the abuse is diminished. Child pornography involves abuse of a child and the photography itself is abusive. The law is clearly narrowly tailored and serves a compelling government interest.

This law is not so well orchestrated. For example, the defedant, Stevens, was not involved in any animal abuse, he merely edited together footage that he obtained from others.

While well intentioned (many attacks on the First Amendment are), I think this law is certain to be struck down. First of all, I don’t believe that our government truly has a compelling interest in preventing cruelty to animals. If it did, much of the way our nation produces meat would be illegal (yes, I am a vegetarian). Second, the law is in no way narrowly tailored. There are many possibilities of perfectly legal activity that could get a person caught up in this law. And there are loopholes that would make illegal a video or photograph of something that was legal where it occurred (say bullfighting in Spain). I once photographed a ritual sacrifice of a sea turtle in a Fijian village. It was gross. It was brutal and cruel. But it was important to document. Those pictures could get me in trouble with the feds under this law.

If you don’t believe me, just take a look at the list of hypotheticals the justices posed to the attorneys in this case. The article in the New York Times says it all.

The transcript, full of hypotheticals, is here.

An article about the NPPA signing an amicus brief urging the court to hold the law unconstitutional is here.

One of my favorite things to listen to is a Nina Totenberg report on Supreme Court arguments. Her review of this weeks oral arguments is available here.

Copyright Petition to Obama

The Copyright Alliance, a group that promotes copyrights (good guess, right), has launched a campaign to collect petition signatures asking the Obama Administration to promote policies that respect and advance copyrights. It does not ask for anything specific, so there is little room for excuse or debate on this one. Step up.

http://www.copyrightalliance.org/letter

It takes about 20 seconds.

SEC credential restrictions improved

The SEC has once again changed its credentialing policies for this season. This time it appears to be a much better change. According to the SEC, the new policy has “additional flexibility in internet news coverage, uses of photographic images, access to video images for television newscasts and special shows and clarification in the provisions of blogging”

The new policy can be found at this link:

http://www.secsports.com/doc_lib/0910_media_credential_policy.pdf

There is also a good article on editor and publisher website, clarifying the restrictions that were lifted:

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1004007242

Finally, it is worth reading this general article by the Associated Press Sports Editors group: “Here’s what you need to know about credential issues“

Also worth reading for freelance photographers is this post by John Harrington about the lesson that photographers can learn from the AP, who refused to give up its rights. The irony is painful. And yes, the rights are clearly valuable.

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

Magazines on Google

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

Reminder: this should not be considered legal advice. See disclaimer.

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.