I previously reported on a continuing thorny issue facing many photographers - whether, and to what extent, images of public buildings may be used in photography without the consent of the building owner (August 1998).
To some extent this issue has now been decided in favor of the photographer. The New York Stock Exchange sued a Las Vegas casino for trademark infringement. The casino used replicas of several of New York's most recognizable buildings in its motif, including of course, a facade of the New York Stock Exchange.
Judge Cedarbaum of the U.S. District Court for the Southern District of New York recently dismissed the case, finding that there was little likelihood of confusion because of a lack of "competitive proximity" of the various services offered. In a nutshell, the casino and the Exchange simply "do not compete directly, and they offer different services."
The Court further determined that, in essence, the New York theme at the casino was a parody and that the purchasing public would not be confused.
On another issue of great importance to the photography community, the Court also ruled that the Exchange's building facade was not distinctive enough to be protected, finding that many prominent public buildings had a similar classical facade with Corinthian columns and bas relief figures, such as the United States Supreme Court.
On another front, in a similar context, the owners of the unique building known as the Flatiron Building in New York objected when a venture capital firm known as Flatiron Partners wanted to use an image of the building's facade as its logo. Rather than fight the issue, the venture capital firm agreed to pay a license fee for such use, thereby avoiding a legal determination on the merits.
I am sure we will be hearing more on the subject.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. Email: Heckeresq@aol.com.
Welcome
to PhotoStoxSource.com. Here's where you'll
find information about photography legal cases, law, copyright, copyright infringement, photographer rights, and selling pictures.
Lost Slides and Copyright Infringement
I have previously reported on cases involving loss of slides and questions of evaluation, and on other cases involving copyright infringement. A new case in Washington State now has both!
The case involves Chase Jarvis, a photographer engaged in outdoor sports and active lifestyle photography, and K2, Inc. and its subsidiaries, the maker of skis and other sporting goods equipment.
The photographer had a relationship with the defendant for a number of years and provided photographs for limited use. They had both oral and written contracts depending upon the time frame and photographs concerned. At issue in this case were two written and various oral contracts.
The written contracts each contained a clause that stated that it constituted the entire agreement of the parties and could only be modified in a writing signed by the parties. This of course is a standard type clause and is called a "fully integrated contract". This is important because the photographer, after completing each photo shoot, submitted the images along with a standard Delivery Memo which provided for the customary $1500 per image liquidated damage clause in the event of loss or damage.
The Court found on the loss claim that 396 slides had not been returned but that the Delivery Memo containing the $1,500 evaluation could not be considered because it constituted an unacceptable oral modification of a written contract. Since the integration clause of the contract did not permit oral modifications, the Court found that the Delivery Memos, which were not negotiated in advance nor accepted by the defendant, were not admissible.
The Court then went on to consider fair market value of images used by the photographer, taking an average of licenses granted for various markets and various uses within the markets. The photographer's expert witness testified that it was impossible to know the value of the lost slides and what their potential value in the future might be. This was in part because the photographer was not able to identify which slides in particular were missing from all those submitted (a substantial portion of the submissions were in fact returned). In addition, the expert testified that perhaps 90% of the lost slides might have no value.
As a result of this and other evidence, the Court concluded that while some of the missing slides were potentially very valuable and might have generated thousands of dollars in licensing fees, others would have no value at all. The Court concluded that for all but one of the images the average value was $500. The one exception was where the defendant acknowledged that $1,500 was due and in that case the Court granted $1,500. The total awarded for the loss of slides was $199,000.
As to the copyright infringement, which consisted basically of use beyond the licensed term, the Court found that none of the uses occurred after registration of the copyrights with the Copyright Office and therefore the photographer was not eligible for statutory damages or attorneys fees. The Court made an analysis of the types of work and placed evaluation of the infringements for $40,107.
Although there are fewer and fewer cases involving loss of slides with the advent of electronic digital photography, these cases still occur and the courts clearly still, in the appropriate occasions, place substantial value to professional photography, as they should.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
Business
Notepad
STOCK PHOTO AGENCIES
can be an outlet for some of your pictures. Do agencies object to you marketing your own pictures when they also represent you? No, not the established ones. They encourage you to also market on your own. They want to share the sales with you, and also to share the setbacks. They know that a photographer who markets pictures on his/her own will understands the pitfalls (and glories) of selling ... Full
Story
Program maintains it's easy to earn extra
funds by establishing a photo business out of your home and
photographing local businesses, corporations, churches, schools,
sports teams, and families in your community.
STATES CAN INFRINGE YOUR COPYRIGHT!
The Eleventh Amendment to the constitution deprives federal courts of jurisdiction to hear lawsuits which are filed by citizens against any state. This extends to any agency of the state. This immunity is particularly harmful to Copyright owners when damages are sought, because the Copyright Act confers exclusive jurisdiction for such claims in federal court. Thus, the Copyright Act precludes suits seeking damages for copyright infringement in state court. Therefore, copyright infringement claims seeking monetary damages cannot be pursued in either federal or state court!
Congress has tried to get around this dilemma by amending the Copyright Act to authorize such a suit. However, two recent cases in Texas, Chavez vs. Arte Publico Press, and Rodrigues vs. Texas Commission on the Arts, have held that Congress does not have the constitutional power to grant this type of jurisdiction to the federal courts.
This constitutional restriction applies only to monetary damages, since states may still be sued in federal court for injunctive relief. This means you can stop a state from infringing your work, but you cannot collect damages. Accordingly, until or unless the law is modified, when dealing with a state entity you should take particular care to insure that your contracts contain provisions which will override these concerns.
As I previously reported in PhotoStockNOTES in January 2004, Judge Lewis Kaplan of the Southern District of New York decided that, in his opinion, the Eleventh Circuit Court of Appeals confirmation of the Miami verdict of $400,000 in favor of Jerry Greenberg against National Geographic Society was wrong. As a result, he upheld the determination that National Geographic's use of photographs, which appeared in various issues of its magazine, was not a revision of the original issues, but rather a new product in a new medium for a new market. Accordingly, Judge Kaplan rejected similar arguments presented by plaintiffs Douglas Faulkner, David Hiser, Fred Ward and other photographers in the New York case.
The Second Circuit Court of Appeals, covering New York, Vermont and Connecticut, has now affirmed Judge Kaplan's decision and rejected the reasoning of the Eleventh Circuit Court of Appeals in the Greenberg case.
The Second Circuit Court concurred with Judge Kaplan that the intervening New York Times v. Tasini decision by the United States Supreme Court raised questions as to the continued validity of the reasoning behind the Greenberg decision. Accordingly, it upheld the District Court's ruling that it had the authority to consider the merits of the cases before it even thought the same issues had already been determined adversely to National Geographic Society in the Miami case.
The Second Circuit then reached the same result as Judge Kaplan, that the National Geographic Society search engine was just a technological improvement, similar to a compilation of back issues in a stiff-bound volume with a searchable index, and therefore a permissible use of the photographs at issue. It declined to follow the Eleventh Circuit opinion in Greenberg because of the Second Circuit's interpretation of the Supreme Court decision in Tasini.
The plaintiffs plan to seek re-argument before the Second Circuit, and if unsuccessful, since there is now a split among the Circuits as to the interpretation to be given to the Supreme Court's decision in Tasini, to petition the Supreme Court to hear the case. Thus we may have yet another Supreme Court consideration of the continuing effect of new technology on photographic copyright issues.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
Of
Interest
HOME OFFICE PERKS . . .
KNOWING THE ROPES
TO PUT MONEY IN YOUR POCKET
Advance Notes: If you’re self-employed, you’re eligible for specific tax deductions that can, in effect, “give yourself a raise.” There are many tax deductions you can claim that relate right to the place you probably do much of your work, your home. Here are some tips from the book, “422 Tax Deductions,” by Bernard Kamoroff, C.P.A.
The IRS accepts that a “home” office can be in a house, apartment, loft, condominium, trailer, mobile home, or boat. The term also includes any separate structure that is part of your residence, such as a garage or barn. You can deduct the expenses directly related to your home office, such as utilities, insurance, property taxes, etc. You must, however, meet certain requirements for your home work space to qualify as a “home office,” and be eligible for these deductions. (See below).
The home-office rules apply to sole proprietors, partners, and owners of an S corporation. The ... Full
Story
BETTER VIDEOS COMING Canon, Nikon video-shooting SLR cameras ready for action
Two new SLRs can now shoot high-definition video, taking advantage of
the superior lenses (much better than video cameras,
way better than point-and-shoots) available for SLRs.
http://www.usatoday.com/tech/products/2008-10-01-slr-video_N.htm?csp=34
HOW DO THEY DO IT? Yuri Arcurs - Microstock Entrepreneur - Not content with an
annual microstock income of US$1.3 million and being the top selling microstock photographer, Yuri Arcurs is creating a microstock empire. Here's a summary of his new entrepreneurial activities.
http://www.microstockdiaries.com/meet-the-new-yuri-arcurs-microstock-entrepreneur.html
WHO SAID PHOTOGRAPHERS CAN’T WRITE? History in the Buffer - David Burnett, photojournalist, wrote this piece about his experience "in the buffer" covering the election night in Chicago. A remarkable diary of his election night experience.
http://werejustsayin.blogspot.com/2008/11/history-in-buffer.html
TAKEAWAY: When TIME Magazine made “the computer” the Man of the Year, they sent David Burnett to Pine Lake Farm to photograph me and my new Radio Shack TRS-80 Model II. You can see the picture TIME used at:
http://www.photosource.com/rohntime
