Citizen Video Evidence Helps Two Arrested Photographers Have Their Cases Dropped

from the filming-police-is-a-right dept

Just as we've seen the DOJ come out and scold police for taking away people's rights by arresting people photographing or videotaping police, we have two separate stories (found via PetaPixel) of photographers who were arrested by police for taking photos of public protests, both of whom had their cases dropped due to videotaped evidence from others that was posted to YouTube.

The two cases were unrelated, but have a similar fact pattern (and one not particularly different than previous stories we've seen). One case, in Seattle, involved a photographer named Joshua Garland, who started photographing recent protests in downtown Seattle, and was arrested and charged with third degree assault supposedly for "grabbing a police officer's hand and twisting his arm." Garland's lawyer, Andrea Robertson, went on YouTube and was able to piece together videos of the incident, which she then showed to prosecutors, saying that the video footage made it clear "there was absolutely no way that the officer's account of events is what actually happened." Because of that, police dropped the charges.

Meanwhile, dealing with a similar issue in New York, photographer Alexander Arbuckle actually went to trial, where, once again someone else's YouTube footage helped exonerate him (and show that the police appeared to lie). In this case, he was charged with "disorderly conduct" (which we see a lot in cases where police arrest photographers for photographing or videotaping them. The police officer claimed, under oath in court, that Arbuckle was in the street and blocking traffic, leading to the arrest.

Thankfully (or, if you're the police, unfortunately), there was a lot of evidence contradicting that statement. This included Arbuckle's own photos, which were taken from the sidewalk, and (more importantly) a Ustream video from a guy named Tim Pool "showed that not only was Arbuckle on the sidewalk, so were all the other protestors." As the Village Voice notes, "the only thing blocking traffic on 13th Street that night was the police themselves." Here's the video, with the key section being from 31:50 until about 35:00.
As Petapixel points out, this certainly suggests that the police lied under oath.

Oh, and a bit of irony: Arbuckle was at that protest to try to document the cops' side of the story, saying that he felt the media had been unfair in covering the police, portraying them as aggressors, when he didn't believe that was true. Yeah.

Either way, this highlights a couple of related points:

1. Police across the country continue to arrest photographers on completely bogus charges -- despite courts (and the Justice Department) making it clear that this is legal activity. In at least some cases, it appears that they are then willing to lie about it in court.
2. Similarly, this demonstrates the importance of being able to photograph and film police while on duty, to provide evidence when there is wrongdoing. That the "wrongdoing" involved incorrectly arresting other photographers only serves to make this point even stronger.

It's really amazing to me how frequently we see stories like this. It's good that these two cases both got dropped, though crazy that either one existed in the first place, let alone that one of them went all the way to court.

Filed Under: alexander arbuckle, doj, joshua garland, photography, police, protests

Postal Service Could Be On The Hook For Millions For Daring To Memorialize The Korean War Memorial

from the it-should-have-been-$0 dept

A few years back, we wrote about how a sculptor who had been contracted by the US government to create the Korean War Memorial in Washington DC was suing the US Postal Service because it had released a stamp using a photograph of the Memorial. There were all sorts of issues with this, starting with the fact that the US government should never commission a monument in which it does not also get the copyright. Leaving it with the artist is ridiculous, because now we have a public memorial, which gets photographed a ton, and a single photographer artist has control over it? Why would the government allow this? The second problem was that this seemed like a classic case of fair use. The photo was clearly transformative from the original work, where most of the power of the photo is in other elements beyond the statue (the snow, the lighting, etc.). Unfortunately, however, the appeals court for the federal circuit (CAFC) made one of its all too typical bizarre rulings and decided that the photo was infringing. As we noted at the time, it rejected the transformative nature of the photo by claiming those were "nature's choices," which would effectively eliminate all nature photography from being covered by copyright.

That said, the case has continued, as the follow up fight was about how much the sculptor, Frank Gaylord, should get. The district court looked at typical licensing deals from the US Postal Service and realized they usually pay a couple thousand dollars. The highest amount it could find was $5,000, so they awarded him that. Gaylord appealed, asking for 10% of all revenue from the stamp, which he estimated would be around $3 million on the $30.2 million in revenue made already. That's a pretty big difference. CAFC has once again sided with him saying that the lower court was wrong to just award him $5,000, without taking into consideration how much Gaylord might have wanted to license the work for in the first place. The lower court will now have to reconsider, and the US taxpayer may have to pay this guy a ton of money yet again.

So, can we convince the federal government of a rather simple idea going forward: if you have someone create a memorial or statue or piece of artwork for public display, part of the deal is they put the whole thing into the public domain. If they don't like it, find another artist. The fact that this work is not in the public domain is a travesty. The fact that the photo is not considered fair use on the sculpture in the first place is a travesty. The fact that he may end up getting another batch of money for this is a travesty. And all of it could have been avoided if someone (anyone) in the US government realized ahead of time that artwork created for public display should belong to the public.

Filed Under: cafc, frank gaylord, korean war memorial, photography, transformative work, usps

AFP Back To Claiming That Twitter's Terms Of Service Allow It To Take And Sell Anyone's Twitpic Photos

from the they-can't-be-serious dept

Two years ago, we wrote about one of the most bizarre copyright lawsuits we've ever heard of. News giant AFP (Agence France Presse) -- for reasons that I still cannot begin to comprehend -- decided to proactively sue a photographer, Daniel Morel, after it (AFP) had taken his photos (of the earthquake in Haiti) from TwitPic without permission, and distributed them for sale via Getty Images. So why did AFP sue? Because Morel contacted them upon discovering this, demanding lots of money. And what was AFP's reasoning? Well, it tried to claim that Twitter's terms of service allowed this. There were all sorts of problems with that idea. First of all, the photo was on Twitpic, not Twitter, and the two are different companies. But, more importantly, neither of the terms of service from Twitter nor Twitpic (AFP eventually figured out the difference) allowed AFP to do what it claims. The AFP appeared to deliberately misinterpret the terms of service, which simply give Twitpic the right to make use of the images -- but that does not extend to third parties automatically, which is what AFP implied.

Oh, and did we mention that AFP itself has a history of copyright maximalism, including suing Google for merely linking to AFP stories, with AFP's headline showing in Google News?

And, while a judge eviscerated AFP's claims about TwitPic's license, it appears that AFP is back to relying on that as the crux of its legal argument.

And, it gets even worse. During discovery, Morel seems to have received a bunch of pretty damning evidence from AFP suggesting that the company knew all along what it was doing. There was the fact that AFP's director of photography for North and South America reached out to Morel prior to downloading the images. The same guy apparently copies other images from other sites. Multiple people seemed to suggest from the very beginning that they shouldn't use these photos -- including the Director of Photography at Getty, who pointed out that Morel regularly used rival photo agency Corbis. There was also some other damning evidence, including editing the copyright management info, and uploading the image under multiple names, and only issuing a kill notice on one name.

Oh yeah, and then there was the fact that someone inside the AFP sent an email saying:

Anyway, AFP got caught with a hand in the cookie jar and will have to pay.

And this was before AFP decided to sue Morel. Perhaps the company should have just paid up in the first place.

Filed Under: licensing, photography, tos
Companies: afp, getty images, twitpic, twitter

Sometimes Photos Are Just Facts, And Copying Is To Be Expected

from the knowledge-spreads dept

Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant:

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.

But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.

So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.

Filed Under: alex wild, copying, entomology, knowledge, photography

There Are So Many Ways Machines Can Hurt You... And There Are Warning Stickers For Them All

from the beware-of-warning-sticker dept

What would you do if you found yourself at the LA Convention Center in the middle of WESTEC -- a trade show for machine manufacturers? Well, if you're my friend Jean from Notcot, you would go around and take a ton of pictures of the warning labels found on a bunch of the machines.

There's something oddly fascinating about all of these. I've included some more below, but there are a lot more in the original post. It's like a virtual museum of warning labels. Of course, it makes you wonder (or, maybe it just makes me wonder) who designs the warning labels, and how they settle in on the graphic choices. Similarly, figuring out exactly what you warn about could be a challenge. I like the one that says you have to wear goggles just to observe this machine. I suddenly have the urge to put warning labels on all my gadgets.

Filed Under: machines, notcot, photography, warning labels, westec

What Quilting's Legal Battles Can Teach Us About Copyright

from the paradise-lost dept

Last year Techdirt wrote about Leah Day, who was trying to introduce a free model to quilting -- apparently a bold thing to do. Sadly, it seems that the ownership mentality is nonetheless spreading in her field, as she reports in this really excellent new blog post entitled "Copyright Terrorism":

Copyright issues seem to be cropping up with increasing frequency in the quilting world and I for one would like to try to stem this flow, or at least open your eyes, to the very real threat looming for our craft.

What is this threat? Where is it coming from?

It is coming from within our own ranks. Quilters with a certain penchant for copyright and legal wrangling are turning our open, creative craft into a mine field of rules, regulations, licensing, attribution, and copyright lockdown that it's enough to make anyone set down their rotary cutter and sell their sewing machine.

She then goes on to describe a recent case that perfectly summarizes the growing insanity beginning to infect the world of quilting:

The basic story goes like this: Emily Cier wrote a book called Scrap Republic for C&T Publishing. Moda, a fabric manufacturer sent her lots of fabric for free to create the quilts in this book.

So far, so good. But things got more complicated when somebody tried to build on that work -- which is precisely how art has always proceeded:

C&T Publishing randomly flipped through the book and picked a photo of one of the quilts, enlarged the image and printed it on the front of an eco tote bag.

Keep in mind, the fabric used in the quilts were obvious. The pieces they were cut into were large, making it very clear which line of fabric each quilt is created from.

The quilt used for the eco tote just happened to have been created using Kate Spain's Fandango fabric. Kate saw the bags and decided they violated her copyright of her fabric line.

Kate Spain then initiated a lawsuit against C&T Publishing and Emily Cier and demanded both the eco totes AND the books be destroyed.

Now things get murky because on her blog, Kate Spain denies starting a lawsuit, but it's obvious on both C&T's and Emily Cier's blog that a real, big, scary lawsuit was initiated. C&T Publishing ended up taking the blame and came to some accord with Kate Spain.

Day then points out just what a mess this is if people try to think in terms of ownership:

Let's work backwards: the tote bag was printed with a PHOTOGRAPH which was taken by a photographer for the book. Whoever that person was, they aren't credited in the book.

The QUILT was designed and created by Emily Cier.

The FABRIC used in the quilt was designed by Kate Spain.

Who really own the copyright?

She contrasts this mentality with the fashion industry, where there is no copyright (despite the continuing attempts to bring it in.) There, creativity is not only blossoming in a way that is hard to match elsewhere, it has created a huge, profitable industry many times larger than all the copyright companies put together, as the well-known TED talk on the subject emphasized.

She points out where the current obsession with ownership is taking her field:

If we lock up this industry, we will lose something powerful, something essential, something that brought me to quilting in the first place: freedom.

Freedom to play with fabric. Freedom to experiment with different shapes and layouts. Freedom to play with new techniques and materials. We can lose the freedom to create.

Because if you have to check with 5 different fabric designers and the quilt pattern designer AND the free motion quilting designer in order to make your quilt, how likely are you to do it? Even the idea of asking, even words like "licensing," are enough to send many people packing. Off to find another hobby the lawyers haven't ruined yet.

Finally, she offers her own vision of how things could be:

If you post something: an idea, a technique, a pretty picture, whatever, man up and give it away for free.

REALLY free. As in copyright free - as in anyone can use whatever you post for ANY reason.

What's the worst that can happen? Someone might teach your technique or idea. More people will learn it and enjoy it than you could ever reach alone. Is that such a terrible thing?

Several times in her commentary, Day raises another key issue: that of attribution. As she points out, artists need their work to be attributed, so that people can give them credit, and maybe contact them to buy or commission more work. It's the absence of attribution, not the absence of copyright, that can be problematic -- and not just for quilters, but also for the photographers that take pictures of their work, and the designers of fabrics that might be used as raw materials.

It's really a wonderfully rich post, which touches on many aspects of copyright and creativity, and I urge you to read it -- along with the forthright comments (already there are 142 of them.) It provides another example, alongside the fashion industry, of a field that is currently flourishing without copyright, but that is under threat from those who have bought into the story that assigning ownership to something as insubstantial as ideas somehow promotes creativity, when in fact all it does is to shut it down through a creeping, paralyzing fear of infringement, as Day so vividly describes.

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Filed Under: attribution, leah day, photography, quilting
Companies: c&t publishing

Yet Another Story Of A Guy Arrested For Filming Police

from the when-will-they-learn dept

We've had a bunch of stories lately concerning people being arrested for filming or photographing the police while they're doing their job in public. This is pretty ridiculous, and thankfully courts have started to make it clear that this is a First Amendment violation. Of course, we also just had the story of the city of Boston having to pay $170,000 to one of the people it arrested for filming them. And yet, the message still hasn't reached the police, who seem to keep on arresting people for pointing a camera in their general direction.

JJ sent over a ridiculous story from Philadelphia where a Temple student was arrested for photographing the police, which he actually did as part of his photojournalism class, where he had a "night-photography" assignment. When he saw the police pull someone over near where he lived, he went over with his camera and started taking pictures. What happened next seems positively ridiculous:

As Van Kuyk tells it, he grabbed his camera and began taking photos of the occurrence. After being told to move away from the scene, Van Kuyk distanced himself but continued to take photos, he said. However, an officer soon after demanded Van Kuyk to stop taking photos, he said.

“He was pushing me, and I kept taking pictures and he didn’t like it, and he…got real aggressive and threw me to the ground,” Van Kuyk said.

When his girlfriend, Meghan Feighan, tried to pick up the camera, she was arrested and held for nearly 18 hours, he said. Van Kuyk was arrested and held for nearly 24 hours.

The National Press Photographers Association sent a letter to the police commissioner decrying this behavior, noting that just a few months ago, the commissioner, Charles Ramsey, had actually sent out a memo to police officers, reminding them that they can be "photographed, videotaped or audibly recorded" when in public.

Unfortunately, that hasn't stopped the prosecution of these two individuals from moving forward. The girlfriend agreed to "settle" her case, paying $200 and agreeing to 12 hours of community service, for daring to pick up her boyfriend's camera after he'd been shoved to the ground. However, Van Kuyk is still facing charges -- including one potential felony charge for "hindering apprehension." One hopes that the court here agrees with the appeals court in Boston. Either that, or the prosecutors in Philly learn about the $170,000 Boston just had to pay out...

Filed Under: filming, first amendment, free speech, journalism, philadelphia, photography, police, punishment

Photographer Appeals Ruling Saying It's Not Infringement To Have Vaguely Similar Photos

from the judge-didn't-understand-copyright-law? dept

Last summer, we wrote about a simply ridiculous lawsuit from a photographer, Janine Gordon, against another photographer, Ryan McGinley, claiming copyright infringement for taking photos that were at best marginally similar. Seriously, the similarities between these photos is hard to see in most cases, and any claims of actual copying seem almost totally non-existent:


Thankfully, the judge made pretty quick work of it, completely slamming Gordon for thinking McGinley's photos infringed, and pointing out that:

the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions

Throughout the ruling, the judge eviscerates Gordon's arguments, calling her claims "infirm." You might think that Gordon would get the hint. Instead, she's appealing the ruling and insisting that it's the judge who doesn't understand copyright law. As ArtInfo quotes and summarizes from the appeal:

"The District Court improperly dismissed my law suit because it did not apply the copyright law correctly," it reads, adding that the previous decision "exhibited a lack of intrinsic comprehension of art, and its expression or intended expression." Gordon claims that the court ignored the copyrightable elements of her work and that its judgement rested on the content rather than the stylistic decisions of her photographs: "the District Court’s focus on the similarity in subject matter, which was only part of my artistic choice, was a great error."

Of course, if you read the original court ruling, nothing could be further from the truth. The ruling talks about the "artistic choice" argument too, and found it lacking. Hopefully, the appeals court makes quick work of this as well. As Artinfo notes, McGinley's lawyers certainly don't seem particularly worried.

Filed Under: copyright, janine gordon, photography, ryan mcginley

Top Photographer On Why He Doesn't Care If His Stuff Is Pirated

from the why-can't-everyone-be-this-sensible? dept

Trey Ratcliff is an extremely successful photographer, who specializes in HDR photography. His blog Stuck in Customs is the top travel photography blog on the internet, with over a million views each week.

Naively, then, you might expect him to be a typical artistic fat-cat who regards every act of piracy of his photos as a personal insult that in a just world would be avenged by amputation of limbs and life incarceration at the minimum. Actually, he uses Creative Commons licensing for all his work, and has just written a wonderful post with the self-explanatory title "Five Reasons Why I Don't Care if My Stuff is Pirated - A New Way of Thinking", pointed out to us by Paul Newport, where he states:

All of my stuff is pirated. Everything from my HDR Video Tutorial to eBooks to Apps. Fine. It's all there on PirateBay and MegaUpload and all that stuff. Here are the reasons why I don't mind

He then goes to list five reasons that show a deep understanding of why piracy happens, and why it isn't necessarily so bad for those whose works are pirated. For example, Ratcliff points out:

Theft of bits are like the Tic Tacs that get stolen from the 7-11. It's the cost of doing business on the Internet.

That is, the actual loss is trivial (bits are practically free), and you learn to live with it because of the counterbalancing benefits. He also has a belief in the innate goodness of people:

Many people that pirate stuff now from me just don't have any money. But, they like me and want my stuff.

After all, that's why they pirate it. And if/when they eventually get their finances sorted out, they'll remember Ratcliff's generosity in allowing them to download his stuff for free without conducting a witchhunt as a result, and pay it back by buying from him. As he says:

Pirates are not cretins riddled with immoral behavior in every part of their life. These are all generally good people who would gladly support me, their friendly local neighborhood artist, if they could easily afford it. They can't now, but they will be able to some day...

He mentions another very practical reason not to dismiss pirates as the enemy:

Pirates have friends that have money. It's still word-of-mouth, the most effective friend-to-friend marketing in the world. If pirates like what you do, they'll tell their friends.

That's an important point: even if the pirates don't buy stuff now, they may well spread free publicity that drives sales elsewhere. If you vilify pirates, you are spurning an important part of your unofficial marketing department.

Finally, Ratcliff gives one central reason why he's not really that worried about piracy:

Last, and most important, as soon as I opened everything up, our business has grown and grown.

But he also notes:

piracy is not the reason that revenues are increasing, but they are not hurting revenues

The curious thing is, the same is true of the music and film industries, which continue to thrive despite all the online piracy, as Techdirt has pointed out in the past.

In other words, everything that Ratcliff says in his extremely wise post about photography also applies to music and films. But whereas he accepts the need for "A New Way of Thinking" as he puts it, and can even see that piracy is beneficial to him in many ways, the copyright industries cling to their traditional perspectives, and insist on fighting this "scourge" with ever-greater ferocity in the face of their continuing failure to expunge it – with huge collateral damage to the rest of us, as SOPA and PIPA make clear.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: embrace, photography, piracy, trey ratcliff, word of mouth

Can You Infringe On Da Vinci? Judge Seems To Think So

from the the-public-domain-is-dead dept

JJ sends over this ridiculous story of a federal court issuing an injunction to stop the display of a photo of a da Vinci painting on a website, because it might be copyright infringement. As you may recall, Leonardo da Vinci died in 1519. One would think that any work he created would now be in the public domain. In this case, we're talking about a painting called Salvator Mundi, which only recently was "authenticated" as being done by da Vinci (though, I'm still really skeptical concerning the whole art "authentication" business). Apparently very few people have actually seen this "newly discovered" da Vinci. The small company that was set up to own the painting and any money that comes from it, Salvator Mundi LLC (SMLLC), hired a photographer to create photographs of the image, but then wanted to massively control the promotion of the painting.

SMLLC is claiming copyright on the photograph of the painting, arguing that while it may not hold the copyright on the painting itself, it can still hold the copyright on the photograph. Of course, that's only true if significant artistic decisions were made in making the photograph... and then the copyright would only cover those pieces. Either way, someone got ahold of the photo and posted it to her own website. SMLLC claimed that this was infringing. The woman, Laura Sotka, tried to explain US copyright law the lawyers, who responded by suing.

The case is now ongoing... and the court's first big move is to issue a preliminary injunction, blocking the dissemination of the copyrighted photographs. Of course, that seems a bit extreme, especially if she's later found to be doing everything legally. Of course, it's not entirely clear what SMLLC thinks it's doing here either. Hiding the painting away doesn't contribute to culture and it certainly doesn't help make people any more interested in checking it out. And without more details it's difficult to say if SMLLC really has a legitimate copyright claim, but I find it unlikely. It is worth pointing out that under Bridgeman v. Corel, a photograph of a public domain image can not be protected by copyright. So unless there's something amazingly creative that the photographer did, SMLLC probably does not have a legitimate claim here. What's unfortunate is that the courts have been dragging such a silly case on for so long -- and, in the meantime, the woman being sued still has to live with such a bogus claim hanging over her head.

Filed Under: copyright, da vinci, photography, public domain, salvator mundi