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.

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.

Multimedia in the Courtroom

The news industry knows the impact of multimedia presentations. So do prosecutors and district attorneys.

One controversy brewing in the legal industry is the use of multimedia presentations during the penalty phase of a trial. Typically, in a murder case, those who knew the victim can talk about that person, so that the jury gets a sense of the loss to society before they decide the penalty. Often, they will also show pictures and in some cases, a slide show or multimedia presentation.

Such was the case in Kelly v. California. Douglas Kelly was convicted of killing a 19-year-old woman, Sara Weir. During the penalty phase, a 20-minute multimedia presentation was played, showing pictures and video of the victim throughout her life, set to music by Enya, with her mother’s voice narrating. The defendant got the death penalty. His attorneys appealed, claiming that the videotape was unduly emotional.

Sometimes such multimedia presentations as evidence is not permitted, and the California Supreme Court mentioned cases where they have excluded such presentations. Those exclusions were because the videotapes were irrelevant, and in one case involved a paid actor.

But the videotape in Kelly was ruled to be acceptable by the California Supreme Court. Even though the soft music was probably overboard, the California Supreme Court ruled that in light of the trial as a whole, it was not enough to have a significant impact on the jury as a whole.

The U.S. Supreme Court refused to review the case on further appeal. But two of the nine justices wrote strong statements urging that the high court should have granted review (it takes four justices to agree for the court to accept a petition).

Justice Stevens said, “when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.”

He added that “their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants”

Justice Breyer, who called the presentation tasteful and “above all, moving,” said, “any decision to impose the death sentence must be… based on reason rather than caprice or emotion,” thought that the court should have reviewed the case to help lower courts create better guidelines.

Want to decide for yourself? The U.S. Supreme Court has posted the video:

http://www.supremecourtus.gov/opinions/video/kelly_v_california.html

My opinion… The circumstances of the crime were such that this presentation could have been done in a far more “overdone” manner. The mother never seemed to choke up and there was not a big build up at the end that would really knock you out. Yeah, it’s emotional, but I can’t imagine how the story of a woman who was murdered, told by her mother, could be presented in a way that is not emotional.

I have covered many a murder trial, and they all make you want to go home and hug the people you love. They make you cry. Period.