Photographer Who Took Family Portrait Of Girl Shot In Tucson Suing Media For Using The Photo
from the copyright-abuse dept
We're all aware of the recent, tragic shooting in Tucson, Arizona and the fact that it resulted in the unfortunate deaths of a bunch of folks who just wanted to meet and speak with their local Representative. The really tragic story of Christina Taylor Green, a 9-year-old girl who was killed, was one that really captured the nation's attention. As part of that, the media often highlighted a family photo that the Green family had with Christina and her mother:
As for the specifics of the copyright situation here, as we've discussed before, while it doesn't really make much common sense, it is true that technically the photographer of such portraits usually owns the copyright. Whatever copyright is available automatically applies to whoever took the photograph (remember that the next time you ask a stranger to take your picture somewhere...). Some photographers will be willing to assign the copyright over to the subjects, but many insist on holding onto it, for whatever reason. That said, for the most part, the copyright issue becomes moot pretty quickly, because there's no real copyright dispute that comes up. The one most common is when people take such photos and try to get more prints of them, some photo shops will refuse any professional looking photo without a photographer's release.
That said, in this case, it's unlikely that Wolf has much of a case. The late registration is one issue, in terms of how much he could legally get if it was declared infringing, but the much bigger issue is that the media using such a photo in such a manner is almost certainly fair use. Fair use for reporting is pretty damn well established and you would think that any lawyer Wolf hired would inform him of this.
Separately, Wolf and his lawyer have claimed (differently, at different times) that he intends to give either some or all of the proceeds he receives from this legal shakedown campaign to charity. However, when the charity he named was told how he was getting the money, it smartly refused to accept that money. Of course, if the idea was just to give money to charity, why choose such an abusive, coercive means of getting the money? Why not take a positive step and use the photo to raise money for charity? Claiming (questionable) copyright infringement and demanding cash is not exactly the most charitable of gestures.
Along those lines, it makes you wonder who would choose to use Mr. Wolf as a photographer in the future, knowing how he might act at a later date. Who cares whether or not he's a good or bad photographer, if he's shown a history of exploiting tragic events and questionable copyright theories?
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Filed Under: christina taylor green, copyright, fair use, photograph
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Streisand Effect
He's trying damage control on his blog. There aren't any comments so he's blocking them or no one has thought to reach out to him that way. But the Tucson Weekly has quite a few people calling him some choice words.
I have my own that I'll keep to myself.
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Good News...
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Re:
Hello? Wake up peoples- the media feeds off content, and they PAY for it, this is just an excuse to get around licensing fees. Do you think they stopped the Viagra commercials while rotating this news story?
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Does he have a model release?
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Re: Does he have a model release?
This was also a major part of the Superman case that was used to determine who "owned" Superman.
If the work is done for hire then the person paying should own the copyrights. Period. If not, then all the other industries need to point to photography to get some rights to their work.
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Re: Re: Does he have a model release?
Would he even have the right to use it for commercial purposes? If he would then, everyone should think twice before getting a professional to take your picture, who knows where your picture might end up.
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Re: Re: Does he have a model release?
Actually, if you were a programmer you'd know that you sign away those rights in your contract. Oh, and derivatives for several years. So if you write code for something, then quit, and develop something similar the next year, you may be in legal hot water.
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Re: Re: Does he have a model release?
Actually, if you were a programmer you'd know that you sign away those rights in your contract. Oh, and derivatives for several years. So if you write code for something, then quit, and develop something similar the next year, you may be in legal hot water.
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http://www.kgun9.com/Global/story.asp?S=14028197&config=H264
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Re: I love the assumption
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Typical..
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Maybe we should cut him some slack?
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Re: Maybe we should cut him some slack?
This photographer seems similar informed about the repercussions of not strongly enforcing his copyright. He could instead leverage the spreading of the photo. He should have posted a visible display of Christina's photo on his website and/or in his store with a story about how he came to know Christina and her family, even possibly a testimonial from the family about how nice he was to Christina etc.
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Re: Maybe we should cut him some slack?
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Normally, I'd support the photographer
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Re: Normally, I'd support the photographer
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Re: Normally, I'd support the photographer
As the law stands now, you are quite correct, and this is the precise reason I am so leary of ever hiring a professional photographer service.
The more interesting question is what the law ought to say. If I have paid for your services in creating it, been a subject of the photograph, and had at least artistic veto power over the end product, and perhaps directly contributed to the artistic decision making process as a whole, then it seems that copyright should either not exist or should vest in me.
I greatly respect the work of photographers that create true works of art, such as Ansel Adams. I strongly support their ability to copyright their work. But for those, they often work hard to preplan a shot, often have great control of the setting, lighting, props, any models involved (and pay them, rather than being paid by them) to create those works of art.
I think the average portrait studio type of shoot for the average family does not have enough artistic elements so that it ought to qualify for copyright, and that if it does it should vest in the family who both commissioned and contributed to the creation of the picture. (Note: This is not to denigrate at all the skills of family portrait photographers, a good one will take much better pictures than a bad one. But it seems to me that those skills are much more technical than artistic and used far more to achieve the family's vision than the photographers.)
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Re: Normally, I'd support the photographer
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Judgment granted
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Re: Judgment granted
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Re: Re: Judgment granted
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Work for Hire
The 1976 copyright act set aside "work made for hire" as an exception to the rule that copyright is assigned to the actual author and instead is assigned to the employer be that an organization or an actual person. I would think that a professional photographer taking portraits could easily be considered as employed by the paying customer and the work should qualify as work for hire because it follows a prescribed formula and meets the specifications and expectations of the customer. Plus it is essentially the subject of the portraits that has the creative control and the photographer is merely providing the setting, equipment, and technical expertise in producing high quality photographs. I would think that in the absence of any signed contract stating otherwise, the photographs would be considered a work made for hire and the copyright would belong to whomever paid for the photograph.
After all it is not the director, the cameramen, or the editors that own the copyright to a Hollywood film, but the studio who hired them. And I'd bet anything that if any of them didn't explicitly sign away copyrights in the employment agreement, then any court in the country would still rule against them if they tried to claim copyright on any portion of the movie.
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Re: Work for Hire
Even so, "fair use" literally screams out as an affirmative defense that would almost certainly carry the day by a motion to dismiss the complaint at the pleading stage.
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Re: Re: Work for Hire
I am not a lawyer, but I do not think fair use would let you sustain a motion to dismiss. Motions to dismiss normally arise due to things such as lack of jurisdiction or failure to state a claim upon which relief may be granted.
An affirmative defense is a matter upon which judgment is granted, so I think at best a summary judgment (or judgment as a matter of law) could be gained. But for summary judgment to carry the day, there would have to be no questions of material fact. That may be the case here, but I do not think there is enough information to determine that.
So, I agree that fair use would almost certainly work as a defense, but the newspapers could not use it for dismissal. They would at least have to go to the point where a motion for summary judgment could be filed (after the discovery phase) and might very well have to go through a full trial.
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Re: Re: Work for Hire
I could be wrong, as I am not lawyer, but in the fifteen to twenty years I've been in IT, I've hired many IC's for different jobs and when they left we maintained and owned everything they did for us. I would think (hope!) this would apply in this type of situation.
I cannot believe that it is legal for a photographer to have the rights to sell the pictures of my grandson to every and any one he so wishes? TFOH!!
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Re: Re: Work for Hire
I've done a bit of contractor work, and while it's true that when you are a contractor, you're not exactly an employee...you're still very much comparable to a temporary employee, and the work you are doing is still for the company that signed your contract. Seems like whether or not he was a literal "employee" or not, he still fits the bill as an employee of the family in the legal sense as far as this is concerned...
Disclaimer: I'm not a lawyer, but I am using a little bit of common sense here, so I wouldn't be surprised if it is totally wrong given the current state of the U.S. Legal system.
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Re: Work for Hire
Also, the use of photographs in journalism is open, you do not need a release form for them.
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Big business does the same!
Or the running of films after an actor / actress dies ?
This is a case of someone following the business model that has been around for years.
Its sick, its wrong and it stinks ... but while the children are raised to think its right we will see things like this.
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Re: Big business does the same!
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I can imagine the ad copy now... "If I don't exploit your daughter's death, I'll give you tens pounds of free coffee!"
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Re:
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What do you expect ...
SSDD
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Re: What do you expect ...
HAHAHAHAH - and cab drivers will soon be non-existent since everyone can now buy cars.
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Canada's copyright law used to be the reverse - the person hiring you to do their portraits kept the copyright unless you're contract states otherwise. I haven't really kept up as well as I should have with the changes, but that's always the way I've worked and continue to do so. Families own their portraits, not me, unless I've obtained the rights to use them.
Anyone doing what this guy has done makes me feel like I need a shower.
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That "guy" needs to be fined or jailed.
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Pat yourself on the back for your photographs never being the center of national attention.
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These copyright entitlement extremists really make me sick
If I buy a car who owns it? Me, the salesman, the dealer, the manufacturer, or the people who assembled it? To goto a real extreme, maybe my car is just a "copy" of the original design and is owned by the person who came up with the concept.
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WTF?
It just highlights the the fustercluck that is copyright.
I find it amazing that you don't need to get the photographers permission to additional copies...or do you?
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Re: WTF?
Think about it in terms of record contracts. While when you're commissioning a specific work it seems obvious that you want to be able to claim ownership of that work, the reverse may also be true for artists under general contract. Just because you do something while being paid doesn't necessarily mean the person paying you should be able to claim ownership.
'I wrote the song while waiting for the gig to start, but I was writing it for my solo album'.
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Re: WTF?
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Seriously?
What exactly do you think the newspapers that use the phote are using it for? For its emotional value? For its artistic value?
No, to sell more papers. Get off your high horse, a tragedy for one is business for another. It has always been this way and always will be this way.
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Re: Seriously? Yeah Seriously
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Re: Seriously?
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work for hire vs copyright
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What's the problem?
Next, we have the problem of absurd copyright. Why should a studio photographer retain copyright? In the end it will not benefit this guy, and with today's technology, anyone can easily make their own copies of such material, hawkeyed wal-mart employees notwithstanding. WHy complicate the situation as if it were an RIAA circle-jerk?
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Re: What's the problem?
Add to this not being the only instance of abuse happening and you get a pretty uglify picture of why copyright is so bad.
It is used to:
- Censor others(i.e. silence criticism, hide information from the public).
- Intimidate normal people.
- Take away others people's rights of ownership.
- Extort money from people.
- Make criminals out of innocent people.
That is mostly what copyright is used for, and to stroke the ego of people.
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Re: What's the problem?
Lets go to the streets and see how many people think that copyright law should allow somebody else to hold the rights for your families portraits.
And that is why copyright is getting a bad name and creating so much backlash.
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Re: Re: What's the problem?
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Re: What's the problem?
At the end of the day, the photographer is in no position to make this claim or dictate it. Money talks. Ask the photographer. No ownership of photo for customer = no deal thus no job.
Just start educating people. Photographers that operate in this way do so from taking advantage of ignorance.
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Fair Use
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I imagine Mr. Wolf will be spending a large amount time in reflection and bemoaning the clarity of hindsight.
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Wow - what an asshole
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fair use is regularly abused by press exploiting an image while selling television. Of course these laws are largely established and funded by those who'd be guilty of misuse, and that won't change, until people get annoyed enough by not being able to purchase copies or duplicates of family portraits (which is illegal).
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What a bastard Mr Wolf is
To try and cash in on this families grief is an extremely low act.....
However glad to see Mike Masnick copyrighted this article.....that's the proper use of copyright, not exploitation of the dead.....
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