Photographer Who Took Family Portrait Of Girl Shot In Tucson Suing Media For Using The Photo

from the copyright-abuse dept

Fri, Feb 18th 2011 12:07pm — Mike Masnick

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:

What you might not know is that the professional photographer, who took this photo, apparently seems to think this is an "opportunity." After Christina's unfortunate murder, photographer Jon Wolf of Tucson decided to register the photo at the Copyright Office and then threaten and/or sue a bunch of media properties for showing the photo without licensing it (thanks to Eric Goldman for sending this over). It's hard not to be sickened by someone who would so brazenly try to capitalize on such a tragedy.

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

62 Comments

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Christopher Gizzi (profile), 18 Feb 2011 @ 11:55am

Streisand Effect
I don't think this guy is going to get the rewards he felt he'd get. Legal fees, bad press, probably some nasty things said about him, and loss of business is what he'll get for being so cruel and thoughtless. Not licensing fees.

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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Dark Helmet (profile), 18 Feb 2011 @ 12:12pm

Good News...
Her grandfather is Dallas Green of MLB managerial fame. Whatever happens, it won't be a lack of money that prevents this family from stuffing a brick sideways up his giggy....
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The eejit (profile), 18 Feb 2011 @ 12:13pm

It's immensely stupid and tasteless, but I can't exactly argue about someone digging their own grave (possibly literally).
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John Doe, 18 Feb 2011 @ 12:18pm

Does he have a model release?
Unless he has a model release to use the photo for commercial purposes, I doubt he could sell it anyway.
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Anonymous Coward, 18 Feb 2011 @ 12:19pm

He withdrew the suit after the family spoke out against it.

http://www.kgun9.com/Global/story.asp?S=14028197&config=H264
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Thomas (profile), 18 Feb 2011 @ 12:20pm

Typical..
of bottom feeding lawyers and their clients.
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Rob (profile), 18 Feb 2011 @ 12:20pm

I looked up the guy's website and found this statement from him: http://jonwolfphotography.blogspot.com/2011/02/regarding-christina-greens-portrait.html - even if a charity donation was his intent from the beginning, it seems like a pretty odd way to go about it.
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John Doe, 18 Feb 2011 @ 12:30pm

Maybe we should cut him some slack?
I don't know if he was trying to profit off a tragedy so much as fell victim to the ownership mentality. "His" photo was being used without him getting paid and in today's ownership society, that just isn't right. He probably feels like he should be getting paid for every use of his photo. So I wouldn't be so hard on him, he is just expecting what every other content producer expects.
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DecentDiscourse (profile), 18 Feb 2011 @ 12:33pm

Normally, I'd support the photographer
But this wasn't a situation where the image was taken by the media and used without permission. It was handed to them by the family who, it turns out, didn't have the rights but that shouldn't be held against them or the media. It's a slippery slope when you start waiving rights, though. What if somebody makes a made for tv movie (tacky, yes, but it's just a hypothetical) and used the picture in promoting it? In that case, they should pay for that picture. It would be up to the shooter to decide what to do with the proceeds and from reading his statement its pretty clear he never intended to profit from it.
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weneedhelp (profile), 18 Feb 2011 @ 12:36pm

Judgment granted
Judgment granted from the court of TechDirt, Mr. Wolf shall receive for no less than 365 days, a swift kick in the nuts within 3 min of waking up to remind him of what an asshole he is.
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TheStupidOne, 18 Feb 2011 @ 12:37pm

Work for Hire
I am a little confused about this, so if someone could please clarify with any court decisions or actual law I'd appreciate it ...

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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Joe Public, 18 Feb 2011 @ 12:39pm

Big business does the same!
Is this any different than the releasing of Michel Jacksons hits (+ Books & Video's) after he died?
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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weneedhelp (profile), 18 Feb 2011 @ 12:49pm

Re: I love the assumption
"TUCSON (KGUN9-TV) - The photographer who owns the rights to the famous family portrait of Christina-Taylor Green"
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Ima Fish (profile), 18 Feb 2011 @ 12:49pm

"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"

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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Brian Schroth (profile), 18 Feb 2011 @ 12:50pm

Re: Normally, I'd support the photographer
No, from reading his statement, it's clear that now that he has been near-universally criticized for trying to profit from it, he would like everyone to think he was not trying to profit from it.
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Matt Bennett, 18 Feb 2011 @ 1:01pm

WTF
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Anonymous Coward, 18 Feb 2011 @ 1:07pm

Re: Work for Hire
No, the photographer almost certainly is not an employee, but an independent contractor. As such, it would not be a work for hire and rights would be retained by the photographer.

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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TimothyAWiseman (profile), 18 Feb 2011 @ 1:13pm

Re: Normally, I'd support the photographer
"But this wasn't a situation where the image was taken by the media and used without permission. It was handed to them by the family who, it turns out, didn't have the rights but that shouldn't be held against them or the media. "

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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TimothyAWiseman (profile), 18 Feb 2011 @ 1:20pm

Re: 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."

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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Anonymous Coward, 18 Feb 2011 @ 1:27pm

Pretty sick. One more checkmark on the evil side of capitalism.
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Hephaestus (profile), 18 Feb 2011 @ 1:27pm

What do you expect ...
We are seeing this with everyone in the content industry. He is in a profession that is soon to be gone because everyone has a camera in their phone. His livelyhood is going away. He is following the same path as the rest of the content industry, fear, frustration, competition, law suit.

SSDD
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Gracey (profile), 18 Feb 2011 @ 1:33pm

That sucks. I hope very few families hire him in future. As a photographer who also does family portrait work, I have never bothered to claim a copyright against a family who made their photos public.

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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Lion XL (profile), 18 Feb 2011 @ 1:50pm

Re: Re: Work for Hire
Independent Contractors is 'work for hire'. even more so than an employee. When you hire an independent contractor, it is for a specific task for specific length of time. I would think that I PAY you for a specific task and/or production would meet the requirement '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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CommonSense (profile), 18 Feb 2011 @ 1:50pm

Re: Re: Work for Hire
Don't independent contractors need to be hired to do work?? I don't think this is a case where he went out, took the picture, and then went to the family and said "Hey, this is a nice photo of you, I'll sell you a copy if you want."
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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AR (profile), 18 Feb 2011 @ 1:50pm

These copyright entitlement extremists really make me sick
My problem with this is that he WAS paid. By the people in the picture. He provides a service, photography, thats all. The people who paid him to take the pictures own them (and the supposed rights) not the photographer. It was taken in a private sitting, not just out in public (and those rights are debatable). This is not an "opportunity" for him to "double down".

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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AR (profile), 18 Feb 2011 @ 2:00pm

Re:
Good for you. thats the way it should be. I hope you keep being successful in your work.

That "guy" needs to be fined or jailed.
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Krusty, 18 Feb 2011 @ 2:07pm

WTF?
How you can hire someone to do a job for you give them money AND THEY RETAIN THE RIGHTS TO THE WORK YOU PAID FOR is unfreakingbelieveable.

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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Lion XL (profile), 18 Feb 2011 @ 2:08pm

Re: Big business does the same!
It is very different...and I won't bother to tell you why, I'll leave that as an exercise in common sense and simple logic, and when that fails hopefully your brain will explode from all the feed back...
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Anonymous Coward, 18 Feb 2011 @ 2:17pm

Re: What do you expect ...
"He is in a profession that is soon to be gone because everyone has a camera in their phone."

HAHAHAHAH - and cab drivers will soon be non-existent since everyone can now buy cars.
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Anonymous Coward, 18 Feb 2011 @ 2:18pm

Re:
"I have never bothered to claim a copyright against a family who made their photos public."

Pat yourself on the back for your photographs never being the center of national attention.
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Anoymous R US, 18 Feb 2011 @ 2:31pm

Seriously?
I love this quote: "It's hard not to be sickened by someone who would so brazenly try to capitalize on such a tragedy. "

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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Anonymous Coward, 18 Feb 2011 @ 2:47pm

Re: Judgment granted
I like this idea, but I think you should change it up a but and say instead that he should be woken up by three minutes of swift kicks in the nuts for no less than 365 days.
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Chuck Norris' Enemy (deceased) (profile), 18 Feb 2011 @ 2:56pm

Re: Normally, I'd support the photographer
He may not profit directly from the money but he will be able to claim the charitable donations on his income tax returns as a deductible which, if he has any smarts, will donate at annual intervals not to exceed allowable deductible amounts.
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AR (profile), 18 Feb 2011 @ 2:59pm

Re: Seriously? Yeah Seriously
The photo was not taken by a person in, or acting as, an employee of a news agency. It was given to them by the family. It was paid for by the family. It was the decision of the family to provide it. Even if there was a possible "rights" claim by this "guy" he should have sued the family for distributing the photo, not the news agencies for publishing it. But that would look even worse for his "cash grab". The rights over "news photos" can be debatable, but this was a private photo provided to them.
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Chuck Norris' Enemy (deceased) (profile), 18 Feb 2011 @ 3:01pm

Re:
How is this capitalism? If anything government granted copyrights allowed his behavior.
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PRMan, 18 Feb 2011 @ 3:04pm

Re: Does he have a model release?
If a programmer does something for hire, there isn't a court in the world that would say that they own the copyright. So why do photographers get to?

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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vivaelamor (profile), 18 Feb 2011 @ 3:08pm

Re: WTF?
"How you can hire someone to do a job for you give them money AND THEY RETAIN THE RIGHTS TO THE WORK YOU PAID FOR"

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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FuzzyDuck, 18 Feb 2011 @ 3:22pm

Re: Re: Does he have a model release?
I was thinking the same thing. Wasn't he paid to take that picture by the subjects in the picture? It certainly wasn't his initiative to make that picture.

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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laughingdragon, 18 Feb 2011 @ 3:35pm

work for hire vs copyright
If you pay for sitting it's your copyright If the photographer takes photos hoping to sell your pits then he has a limited copyrighted H e car prevent you copying the image but cannot sell your image. Te sell your image to others requires you selling or licensing that right to the photographer and you must have signed a release. Newspaper reporting, using a photo of a family photo is fair use.
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MD, 18 Feb 2011 @ 4:15pm

What's the problem?
First, this is standard; every studio photographer retains copyright. The problem is the media that received a portrait (presumably with the copyright notice stamped on the back) and ignored the situation. I doubt Channel 9 would let it slide if everyone used their footage without attribution, credit or payment. Professional screwing professional...

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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Robert, 18 Feb 2011 @ 5:30pm

Fair Use
It could be fair use since there are exceptions for current news events. This is why media harvest Facebook accounts when there's breaking news.
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Anonymous Coward, 18 Feb 2011 @ 5:48pm

You would think that self interest alone would cause people to avoid this kind of blatantly dickish behavior. Reprisals for this sort of thing tend be both swift and unforgiving in the new global village.

I imagine Mr. Wolf will be spending a large amount time in reflection and bemoaning the clarity of hindsight.
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abc gum, 18 Feb 2011 @ 5:57pm

re: Jon Wolf

Wow - what an asshole
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Anonymous Coward, 18 Feb 2011 @ 7:56pm

Re: What's the problem?
And that just shows how copyright is ridiculous.

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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Anonymous Coward, 18 Feb 2011 @ 8:00pm

Re: What's the problem?
The problem is that copyright should transfer that right automatically to the costumer in the case of family portraits.

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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Kzandstra, 19 Feb 2011 @ 1:53am

Re: Work for Hire
Depends on the agreement used at the time of purchasing the photos;.. most invoices state that the photography studio keeps rights to the photographs and that all reproductions need to go or be cleared and produced through them.

Also, the use of photographs in journalism is open, you do not need a release form for them.
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Dan, 19 Feb 2011 @ 5:28pm

On his blog he says the family of the little girl agreed to this prior to his sending out the notices.
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Alan Williams, 19 Feb 2011 @ 11:44pm

Re: Maybe we should cut him some slack?
This reminds of the Neil Gaiman story published recently. Gaiman's initial objection to unauthorized copies of his work was due to the mistaken notion that by allowing it he would lose his copyright. He later found out unauthorized copies actually increased his brand.

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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Anonymous Coward, 21 Feb 2011 @ 6:47am

Re: Maybe we should cut him some slack?
That's what happens if you listen to bullshit from people like TAM lol.
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Anonymous Coward, 21 Feb 2011 @ 6:56am

Re: WTF?
It makes people feel important. And they believe it. Hence, the outrageous mentality exhibited by these people.
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Anonymous Coward, 21 Feb 2011 @ 6:58am

Re: Seriously?
Yeah, stop being angry at wrong things!!!
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Anonymous Coward, 21 Feb 2011 @ 7:04am

Re: What's the problem?
imo the ONLY reason they get away with it is because almost everyone who uses these photographers is completely unaware they do not own the photograph... and naturally the photographers are not very forthcoming with that information.

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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DanVan (profile), 21 Feb 2011 @ 7:18pm

Just goes to show what utter scumbags we have in todays society. This guy will forever have his name on the internet as a deep-seeded douchebag. Good job.
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weneedhelp (profile), 25 Feb 2011 @ 12:43pm

Re: Re: Judgment granted
Make it so!
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vidor, 3 Mar 2011 @ 5:55am

Re:
You gotta look at this in context- do you think the media outlets are NOT cutting to Advertisements every 2 minutes?
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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well, 18 Jan 2012 @ 7:57am

the flipside to this, (sorry I came here due to a "now I know" fact email) is that without these laws a media outlet, or the recipient of the photo, can sell duplicates of something they didn't create.

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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Edward McCain, 18 Jan 2012 @ 4:49pm

Re: Re: Does he have a model release?
>If a programmer does something for hire, there isn't a court in the world that would say that they own the copyright. So why do photographers get to?

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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Edward McCain, 18 Jan 2012 @ 4:49pm

Re: Re: Does he have a model release?
>If a programmer does something for hire, there isn't a court in the world that would say that they own the copyright. So why do photographers get to?

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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Shine (profile), 1 Feb 2012 @ 11:29pm

It's sad that people are disputing over something like this while a family is grieving for a lost loved one.
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Jennifer, 10 Mar 2012 @ 4:58pm

Re: Re: What's the problem?
I disagree. Photographers think of their images as their artwork. Yes a family has contracted them to take the images, but you are forgetting what would happen if the copyright was transferred to the client. Suddenly, that photographer can no longer use the photograph for any advertising. If they have the photograph on their website or in any ads they could be sued by the family for using the photograph. How would that be fair?
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DavyJones (profile), 2 Sep 2014 @ 8:34pm

What a bastard Mr Wolf is
What a scheming sad and sick individual 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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