As many of you may know, the late photographer Sam Shaw created and was the copyright owner of some of the most famous pictures of Marilyn Monroe, including the classic shot of her standing over a subway grate, in connection with the 1955 movie, The Seven Year Itch.
Marilyn Monroe died in 1962. In her will, she left substantially all of her assets to Lee Strasberg, the well-known teacher, director and producer. He in turn bequeathed these rights to his wife upon his death. She inherited these rights in 1982, and, in turn transferred them to a management company called Marilyn Monroe, LLC.
The various representatives of the Monroe Estate have always asserted that they own the right of publicity to her likeness and image and brought suit in the state of Indiana when some photographs were sold in Indiana for commercial purposes.
A number of actions were brought by both parties in various states which were eventually consolidated in the United States District Court for the Southern District of New York. That Court has recently determined that the representatives of the estate of Marilyn Monroe do not have any descendible postmortem publicity rights.
The Court came to this conclusion by first determining that Marilyn Monroe was either a resident of New York or California at the time of her death and that she could not have been a resident of the state of Indiana. Since the state of residence at the time of death determines which state law applies, the Court then looked to the laws of California and New York in effect in 1962.
The Court concluded that neither New York nor California recognized any postmortem publicity rights at the time of her death. Therefore the subsequent enactment of such a statute in California was irrelevant since Marilyn Monroe could not dispose of a property interest through her Will which did not then exist. This is so because a person can only pass such property owned by the decedent at the time of the decedent's death and, since there was no existing right to postmortem publicity at the time of her death, she obviously could not dispose of a non-existing right.
Accordingly, the Court held that Marilyn Monroe was unable to bequeath publicity rights in 1962, since California did not recognize such rights until 22 years later (New York still does not recognize such rights).
The Indiana Right of Publicity Act, passed in 1994, creates a descendible and freely transferable right of publicity that survives for 100 years after a personality's death, regardless of the personality's domicile, residence or citizenship. The Court found, however, that this Indiana statute was not applicable since it was passed over thirty years after Marilyn Monroe's death and therefore could not have created a right transferable under her Will.
As a result, the court dismissed those claims relating to descendible postmortem publicity rights. This just goes to show that some things just never end!
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.
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Court Interprets Basis for Statutory Copyright Infringement Damages
As you are probably aware, the 1976 Copyright Act authorizes the Court, in its discretion, to award statutory damages of up to $30,000, which may be increased up to $150,000 per infringement, if the infringement is willful. To be eligible for statutory damages, a plaintiff must, of course, have registered the underlying image prior to the infringement or within three months of first publication.
The U.S. Court of Appeals for the First Circuit (comprising Maine, Massachusetts, Rhode Island and New Hampshire), in reversing the District Court, has changed the prevailing interpretation of measuring statutory damages under the Copyright Act for at least those states comprising the First Circuit.
The case, Hernandez, et al v. Sonolux Records, involved the production of 186 recordings of two copyrighted songs by Guillermo Venegas-Lloveras, a noted composer, on sixteen different albums. After the defendant defaulted, a judgment was entered for statutory damages of $1.6 million. This was calculated at $100,000 for each of the sixteen albums.
The defendant moved to set aside the default and the damage award on the grounds that the Court erred in its calculation. A second judge denied the motion to set aside the default, but reduced the award to $200,000, using the defendant's theory of calculation. Both sides appealed.
The issue on appeal involved the Copyright Act provision for recovery of statutory damages, when the party is eligible, which states that a plaintiff may recover such damages "for all infringements involved in the action with respect to any one work, for which any one infringer is liable personally."
The second District Court Judge, and the Circuit panel, interpreted this statutory language as basing damages upon the number of works that are infringed (in this case the two songs), and not on the number of infringing works (the sixteen albums).
The Circuit Court upheld the default, and the theory of calculating damages, but remanded the case to the District Court for a recalculation of damages since the first judge might have awarded up to $150,000 per infringement (and not $100,000) if he had known there were only two infringements.
This decision is limited to statutory damages. If actual damages are greater, a plaintiff may still seek the higher award. Although this decision is only law in the First Circuit, its reasoning may be followed by the other courts. Since the law is still evolving, we may probably hear more on this in the future.
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
PHOTOBUYERS are looking for you.
Not every buyer looks for a pretty sunset
or a placid lake scene. In fact they seldom do. They know exactly where they can
find one. What they DO look for are those hard-to-locate pictures that
their authors write about. It just may be in your database. But how do you know
they’re looking for one of your pictures? If you are just starting out in stock
photography, you may ... 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.
Fair Use
The ultimate test of fair use is whether the copyright law's goal of promoting the Progress of Science and Useful Arts would be better served by allowing the allegedly infringing use than by preventing it.
As you are undoubtedly aware, before the advent of digital imaging, there were a number of lawsuits arising out of the loss or damage of photographic images, both in negative and slide formats. Since digital imaging has largely replaced the use of film there obviously has been less opportunity for clients to lose or damage original irreplaceable photography. That is not to say, however, that cases do not still occur.
The latest decision concerning the failure to return original images involved a case brought by photographer Lloyd Shugart in Federal Court in Seattle, Washington, against Propet USA, a shoe company. The case alleged claims for copyright infringement, removal of copyright management information under the Digital Millennium Copyright Act, and failure to return original images.
The case also stands for the proposition that one should leave well enough alone when faced with potential adverse consequences of taking action!
A NEW TWIST
The photographer photographed Propet's shoe products for advertising between 1999 and 2005 pursuant to what he alleged to be limited licenses. When the photographer asked Propet to make payment for using the photographs outside the scope of the usage agreement, Propet sued the photographer for a determination that it had the right to do what it did and to prevent the photographer from licensing the images to anyone else
Propet obviously did not consider the possibility that it had to return the original images to the photographer, claiming it either owned the photographs it paid the photographer to produce, or it had an unlimited license to use them. The photographer then of course counterclaimed for failure to return the images, copyright infringement for use beyond the license terms, and removal of copyright information. The latter claim emanated from the fact that Propet removed certain copyright information contained in the metadata.
The jury, after trial, found for the photographer and awarded actual damages for copyright infringement in the sum of $12,800, $500,00 for statutory damages, another $500,000 under the Digital Millennium Copyright Act and $303,000 for failure to return his original images.
Since the case will undoubtedly be appealed both as to liability on each claim and to the amount of damages awarded, we will be hearing more about it in the future.
The case certainly is instructive to the extent that original images still have value in this digital age, and pursuing situations where clients or others fail to return them is still in the photographer's best interest.
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
Re-publication Permits Privacy Suit to Proceed
Although the language of each state statute may vary, the use of a
person’s name, portrait or picture in a photograph cannot be used for
advertising, commercial or trade purposes, without the person’s written
consent.
This is called the Right to Privacy. The time to bring a lawsuit for
invasion of the Right to Privacy is one year from the first publication
in New York and most other states, but is subject to what is called the
single publication rule. Under this rule, the statute of limitations
begins to run on the date the material at issue is first published or
used. Accordingly, subsequent distributions or uses of the images does
not constitute a separate publication or continuing wrong which would
extend to the date the initial claim accrued.
The purpose of this rule is to avoid an endless tolling of the
limitations statute. For example, a distribution of a work to a library
would be the initial date for statute of limitations purposes, and that
initial date would not be extended each time the ... Full
Story
COST OF TRAVEL OVERSEAS is always prohibitive for the stock photographer
just starting out. One way to skirt around this problem is to become a
Travel Agent.
CAMERA CATCHES NURSING HOME WRONGDOING. Deb Hamilton suspected her grandmother Armeda Thomas was being mistreated at the facility, so she set up a hidden camera that captured some disturbing evidence, such as an aide walking in with a meal then eating the food herself as Thomas laid in bed.
http://www.lex18.com/Global/story.asp?S=9466418&nav=EQlp
WATERMARKS, er uh, FINGERPRINTS. - The PhotoshopDisasters blog has a collection of actual ads made from images that are overlayed with the iStockphoto watermark.
TAKEAWAY: Who knows, in the future, maybe watermarks will become designer symbols like an NIKE check mark or “AS SEEN ON CNN.”.
http://www.pdnpulse.com/2008/12/are-people-scoffing-at-your-watermark.html
Jerry Kennelly, who sold his Stockbyte imaging business to US-based Getty Images two years ago for $135m (USA) at the time), is preparing to launch a major new online venture backed by a multimillion euro investment.
TAKEAWAY. The Microstock model was good to Kennelly. Let’s see what he comes up with in 2009.
http://www.ukpreneur.co.uk/1442/a-light-shines-brightly-for-kerry-entrepreneur/
WHO IS THE WINNER ? Win a Trip For Two to Maui - By just entering this contest Popular Photography takes exclusive license of your photo. Read the contest rules, "exclusive" license means 'you' can't use your photo.
http://www.photoattorney.com/
QUICK READ. Google Is Scanning Magazines Into Their Database - From Google: "Today, we're announcing an initiative to help bring more magazine archives and current magazines online, partnering with publishers to begin digitizing millions of articles from titles as diverse as New York Magazine, Popular Mechanics, and Ebony."
http://www.aphotoeditor.com/2008/12/10/google-is-scanning-magazines-into-their-database/
