Judge Tosses Crazy Copyright Lawsuit Over Gigi Hadid Photo

from the as-expected dept

Last month, we wrote a fairly long post about some interesting elements (demonstrating the flimsiness of "copyright" existing for many photographs) in a copyright lawsuit filed against model Gigi Hadid for reposting a cropped paparazzi photo on her Instagram. As we noted in that post, despite all of the interesting arguments made regarding copyright and photos, it seemed clear that this case was going to get tossed on purely procedural grounds -- namely that the lawsuit, filed by a photo agency called Xclusive-Lee (who may or may not even hold the rights to the photo), was filed prior to the photo receiving a registration from the Copyright Office. Back in March, the Supreme Court said that copyright law is quite clear that you need to wait until the registration is obtained.

Here, that was not the case. It was filed before the registration was granted, and thus it's no surprise that (as first pointed out by the Hollywood Reporter) that this case was thrown out for that reason alone.

Assuming, without deciding, that Plaintiff has sufficiently pled that it owns a valid copyright in the Photograph, the Court concludes that Plaintiff’s copyright infringement claim should nevertheless be dismissed due to Plaintiff’s failure to comply with the registration requirement. As the Supreme Court has held, the registration requirement is “[a] statutory condition” under which a plaintiff must obtain registration of a copyright in a work “before filing a lawsuit” based on infringement of that work.

The judge mocks the weak attempt by Xclusive-Lee's lawyers to argue that because this lawsuit was filed before the Supreme Court made it's ruling, that the court can magically ignore the Supreme Court. Not how it works.

Acknowledging the holding in Fourth Estate, Plaintiff argues, in effect, that because it filed the complaint in this matter before the Supreme Court’s decision in Fourth Estate, and because prior to Fourth Estate, the Second Circuit had left “the application/registration rule . . . issue to the discretion of individual District Court judges”.... Fourth Estate should not preclude Plaintiff’s infringement claim in this case. The Court disagrees. There is no doctrinal basis on which this Court can decline to apply a Supreme Court decision that would otherwise apply merely because that Supreme Court decision was issued after the filing of the complaint at issue in this case. Indeed, Plaintiff cites no case law supporting its position. In Fourth Estate, the Supreme Court decisively held that § 411(a) requires a plaintiff to have already been granted registration from the Copyright Office prior to commencing an action for copyright infringement. See Fourth Estate, 139 S. Ct. at 888. Although Fourth Estate postdated Plaintiff’s filing of its complaint, it is nevertheless binding on all lower federal courts unless and until the Supreme Court decides to revisit it.... For this reason, Plaintiff’s observation that the Second Circuit may have provided for a different result prior to Fourth Estate is of no moment.

Ah well. Exactly as expected. Still, it will be interesting to see if the issues raised earlier do start to show up in future cases.

Filed Under: copyright, gigi hadid, photographs, registration
Companies: xclusive-lee

Crazy Copyright Suit Over Gigi Hadid Posting A Photo Of Herself To Instagram Shows Absurdity Inherent In Photo Copyrights

from the copyright-is-so-weird dept

One of the things about copyright that copyright supporters really hate to discuss is just how problematic the whole idea of getting copyrights on photographs can be. They basically have to twist themselves into all sorts of logical knots just to justify it in the first place. You can't get a copyright on factual information and -- some might argue -- what is a photograph but a capturing of factual information. That photograph is a factual representation of what the lens captured. To date, the way that courts have dealt with this fundamental problem is either (a) to ignore it, or (b) to construct flimsy logical houses of cards arguing that the copyright actually applies to things like the "framing" and (in some cases) lighting choices or decisions positioning of the objects in a photograph of the photographer (if those things were, indeed, done by the photographer). And you can kind of understand the thinking on that when the photographer really does "design" whatever is being photographed. But it gets more questionable when you're talking about "nature" photographs or just general snapshots walking around.

Some of this oddity is coming out in a somewhat weird, somewhat amusing case that the Fashion Law Blog has been following over the last few months. Reading through the filings in the case (some of which are embedded below) leads to a bunch of fairly absurd arguments (on both sides), many of which come out of the fundamental troubles with allowing copyright on snapshot photos in the first place. This case involves model Gigi Hadid, who is frequently photographed by the paparazzi. One day last fall, she was approached by a photographer and played along, "posing" for the photographer. The next day she found the photo online, cropped about 50% of the photo (so it was even more focused on her) and posted it to her Instagram feed. In January, an organization called Xclusive-Lee sued her for infringement.

There have been all sorts of procedural problems with the lawsuit, and I am expecting it to be tossed on those alone, without touching on most of the other issues that are popping up in the case, so let's start there. First off, as we discussed back in March, the Supreme Court has said that you can't sue until you have a copyright registration (and not just a mere application for that registration). In this case, the copyright in question has only been applied for, not issued. Xclusive-Lee's lawyers insist that because they filed the case before the Supreme Court ruled on that issue it's all fine and dandy, but that's not how the law works. Separately, the complaint doesn't establish that Xclusive-Lee actually holds the copyright on the image (it's not even clear who Xclusive-Lee is). Hadid's filings note that "Xclusive-Lee" did not take the photograph, and that's not even the name on the copyright registration form. And Xclusive-Lee has not provided any proof (such as a copyright assignment) to show that it holds the actual copyright here. That seems kind of like a big deal. Xclusive-Lee's lawyers insist that they don't need to show such evidence up front and can do it later, which seems like a weird response. Why not just show the copyright assignment upfront?

Separately, the judge has repeatedly had to scold the lawyers for Xclusive-Lee for not following the rules, which can't bode well:

I may not be a lawyer, but I would expect that judges don't very much like it when lawyers repeatedly fail to follow basic instructions.

For what it's worth, one of the lawyers for Xclusive-Lee is David Deal who has also been associated with Pixsy in the past. Pixsy is one of those scrape the internet and threaten to sue trolling operations out there.

So given all the procedural shenanigans described above, it would not surprise me at all if the case just gets tossed on those grounds. It seems like that would be the easiest (and most likely correct) way the court would go in this situation.

However, in Hadid's motion to dismiss, Hadid's lawyers also raise a fair use argument that is, shall we say, a little "out there." To be clear, I do think that there are credible fair use arguments for Hadid's usage here, but I'm not sure that Hadid's lawyers make that credible case. Instead, they suggest a bunch of things that if the court ever gets to a fair use analysis, could raise a lot of issues.

However, in dealing with the second fair use factor (the nature of the work), Hadid's lawyers strip away decades of everyone pretending that photographs deserve copyright and point out that it's simply capturing facts.

The published photograph here depicts Ms. Hadid smiling while standing in front of a non-descript building. See Compl., Ex. 1. It is not a studio composition but rather a quick “shot in a public setting,” and there is no allegation that the photographer “attempted to convey ideas, emotions, or in any way influence [the subject’s] pose, expression, or clothing.” Katz v. Google Inc., 802 F.3d 1178, 1183 (11th Cir. 2015). In such circumstances, the photograph is considered a factual work, not a creative one, thus favoring a determination of fair use. See id.; Otto v. Hearst Commc’ns, Inc., 345 F. Supp. 3d 412, 430 (S.D.N.Y. 2018) (second factor favored fair use where photograph at wedding was “spontaneously taken to document its subjects, as they were in the moment,” and where photographer “did not direct or pose the subjects of the photo, nor control the lighting or the background”).

To bolster that point, they argue that because Hadid "posed" for the photograph, she's actually partially responsible for some of the copyright-covered elements of the photograph (remember, earlier cases have held copyright on photographs can apply to the arrangement in the photograph, if done by the photographer). But what if that "arrangement" is done by the subject of the photograph? Uh, that would shake up copyright, and reminds me of the crazy Garcia v. Google case where the 9th Circuit (briefly, before fixing its bad ruling) decided that an actress in a film could hold a copyright in her own performance. Here, Hadid's lawyers argue that there's a stronger fair use argument because of Hadid's own contributions to the photograph and even hint that maybe she should be declared a "joint author." That, alone, would shake up the copyright world.

In fact, the second factor strongly favors Ms. Hadid here because Ms. Hadid posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect. See Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (elements of originality in photograph include “posing [of] the subjects”); see also Gillespie v. AST Sportswear, Inc., No. 97 Civ. 1911, 2001 WL 180147, at *5 (S.D.N.Y. Feb. 22, 2001) (jury could find defendant was joint author of photographs where defendant contributed to “clothing” and “poses” of models). Where creative features come not from the photographer but rather from the subject, holding the subject liable for infringement does not nothing to “foster” what the Copyright Act values....

Xclusive-Lee's lawyers hit back on that point arguing that this would more or less destroy copyright in lots of photographs:

The Photograph in this case is undoubtedly a highly creative and expressive, not factual, work. It is not just a mere snapshot of an individual on a street corner taken on a cellphone; the Photograph in this case is a highly creative work, involving a number of creative choices including timing, lighting, angle, composition, and others. Taken to its logical conclusion, the Hadid’s position would deem any photograph of a real-world location or individual to be a factual, thinly protected work.

Well, yeah. As noted up top, this is the whole myth about copyrights in photographs that lawyers and courts have sought to avoid discussing for years, so it's actually kinda cool that the issue is being raised here -- though I doubt the court will end up dealing with it.

Xclusive-Lee also hits back hard on the mere suggestions that Hadid might be a joint author:

Concerning Hadid’s assertion that she somehow maintains joint copyright in the Photograph because she noticed the photographer and smiled at the moment the photographer chose to snap the shutter is preposterous. Ms. Hadid is as much a joint copyright holder in the Photograph as the subject of a biography is joint copyright holder to the words used by the author to describe her life.

Hadid’s assertion tests the limits of cynicism because Hadid has gone out of her way to criticize photographers like the author of the Photograph as a necessary evil of the publicity she receives. []. Also, it is well worth pointing out Hadid makes a point of regularly copying these same street photographs (to be fair, Hadid regularly copies and posts runway images of her without license or permission of the copyright holders) of herself to her Instagram page []., which contribute to her online presence, popularity, and most importantly her marketability. If Hadid were genuinely interested in accomplishing the same thing but without being a serial copyright infringer, she could properly license the images or hire someone to take similar photographs of her liking. Instead, Hadid wants to have it both ways. She derides the individuals who capture photographs of her, then turns around and appropriates their work.

As if both sides of this equation aren't exploiting each other?

The other element of Hadid's fair use argument that is interesting, but seems highly unlikely to persuade the judge in the case, is to argue that posting to social media is, by itself, transformative:

According to the Complaint, Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it. Compl. ¶¶ 9-11. Her reposting thus reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.

That's certainly an interesting argument, but I'd be shocked if judges ruled that reposting images to social media for "personal purpose" is transformative from the photographer's interest in commercially exploiting the photograph. I'm usually first in line to defend a variety of things as transformative, but this argument seems unpersuasive. Of course, Xclusive-Lee's response to this point also misrepresents the current state of things with regards to transformativeness as well:

The purported purpose of Hadid in using the Photograph here is not even close to being transformative. Accordingly, under the language of Campbell itself, the second work must actually either make some critical use of, or change to, the original work to qualify as transformative. Hadid’s use of the Photograph here does nothing of the sort. The Photograph is a well-executed, candid, street photograph of Ms. Hadid. Hadid posted it in its original, barely cropped form for the purpose of depicting exactly that. Hadid has not claimed she copied and posted the Photograph for any of the established albeit narrowly defined statutory allowances, including commentary, criticism, reporting, or research.

This is blatantly misrepresenting fair use. Fair use is not in any way limited to "narrowly defined statutory allowances." Indeed, Section 107 clearly uses "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," (note: a longer list than Xclusive suggests) as representative examples. It explicitly says "for purposes such as" highlighting that those are examples, not an exclusive list. This is not "fair dealing" -- which has narrowly defined statutory allowances. It's fair use, which has long been applied by looking at the whole of the situation, rather than through any "narrowly defined statutory allowances."

Even so, I'm not convinced that the re-posting is "transformative" under fair use -- though I would argue that there are other reasons why it should be declared fair use. I just don't think Hadid's motion lays those out very well.

Still, this is an interesting case, even just to see the slightly nutty arguments on both sides. I fully expect the judge to go the easiest and most direct route of tossing it out for the failure to get the registered copyright (let alone failing to show that Xclusive-Lee holds the copyright) and not for any element in the fair use argument. However, if the case does move forward, it certainly could shake up copyright law if the court starts to dig in on some of those fair use arguments...

Filed Under: copyright, copyright registration, fair use, framing, gigi hadid, joint authorship, photographs, transformative
Companies: david deal, xclusive-lee

FBI Decides To Ruin A Man's Life Over Nude Photos Of His Legal Girlfriend He Took Seven Years Ago

from the government-still-full-of-vindictive-assholes dept

You can be in a consensual, legal relationship but still end up a sex offender. That's how child porn laws work. It's legal to have sex, but illegal to take pictures. In Ohio, a 27-year-old man was arrested on child porn charges for taking pictures of his then-17-year-old girlfriend. (h/t Guy Hamilton-Smith)

The affidavit [PDF] from the FBI is a harrowing deliberate misconstruing of the actual events, written in service of destroying a man's life. It makes the man appear to be some sort of child porn-producing fiend, when, in fact, it was just him taking photos of his girlfriend.

As will be shown below, there is probable cause to believe that Edward R. Marrero used a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct and such visual depiction was produced using materials that had mailed shipped and transported in and affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 2251(a).

[...]

On May 18, 2017, Affiant interviewed the pubescent female (Victim). The Victim admitted to being the ex-girlfriend of Marrero. The Victim identified herself and Marrero in a photograph in which Marrero’s hand and mouth were on the Victim’s breast.

On June 28, 2018, affiant telephonically interviewed the Victim. The Victim admitted that the photographs were taken in Cuyahoga County when she was under the age of 18.

Oh, and this:

The Kodak EasyShare camera was not produced in the State of Ohio.

So, there's your "interstate" charge. Because the pictures were taken with a camera not "produced" in Ohio (but obviously sold in Ohio), the government is pretending this satisfies the clause needed to generate a minimum 15-year-prison term.

It all seems very damning, but here are the facts:

Edward Marrero, 27, said while testifying Thursday that he took the photos in April 2011, according to an affidavit written by FBI agent Lisa Hack. At the time, she was 17 years old and he was 20, authorities say.

Marrero is no longer in a relationship with the woman. He testified that he knew she was underage when he took the photos, the affidavit states.

The age of consent in Ohio is 16 years old, but federal law states it is illegal to create, share or possess sexually-explicit images of anyone under the age of 18.

The relationship was completely legal. The pictures somehow aren't, even though no one could legally call the relationship (as it existed seven years ago) "exploitation" or "enticement." But they can call the photos illegal and they can retcon the consensual relationship into a predator/prey dynamic using federal child porn charges.

The testimony referenced above wasn't meant to incriminate Edward Marrero. He was testifying on behalf of another person facing child porn charges. When he detailed the pictures he took while in a consensual relationship with a 17-year-old, the feds decided to swear out an arrest warrant. While Marrero was informed of his Fifth Amendment rights, he most likely thought what he stated in court wasn't incriminating (because the girlfriend was over the age of consent) or that the government would view his statements rationally and not immediately move to have him arrested.

As Guy Hamilton-Smith pointed out on Twitter, the federal government is being as punitive as possible, as quickly as possible. Marrero's initial appearance was greeted with immediate detention and he's been placed in the custody of the US Marshals. All this is happening over photos taken seven years ago by people in a consensual relationship. The accused wasn't producing child porn by any rational definition of the statute. But it can be read in irrational ways to ruin lives just because.

Filed Under: child porn, edward marrero, fbi, photographs, teenagers

Multiple German Courts Rule Photos Of Public Domain Works Are Not In The Public Domain

from the and-no,-you-can't-take-your-own,-either dept

Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.

For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.

The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.

These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.

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

Filed Under: copyright, germany, photographs, public domain
Companies: wikipedia

Why Making A Peace Sign In Public Is Now A Security Risk

from the and-not-just-for-political-reasons dept

The British have a number of traditions. Some, such as drinking tea, are famous around the world. Less well-known is a habit of revealing highly-confidential information by carrying pieces of paper in public that photographers using long-focus lenses are able to snap and then magnify to read. The Guardian wrote an entire article on the subject, detailing how numerous embarrassing leaks occurred in the UK because people forgot to put the documents they were holding in some kind of opaque folder. On one occasion, an anti-terror operation had to be brought forward when Britain's most senior counterterrorism officer walked around with top secret documents on display -- a blunder that cost him his job.

This mistake is so common that there are notices by the door of the UK Prime Minister's residence at Number 10 Downing Street reminding people not to walk out with confidential material that is exposed. The fact that there is a photographer with a long-focus lens who hangs around outside No 10 in the hope that they do precisely that shows how often they ignore this warning.

Although the Brits have practically turned this activity into another weird sport alongside cricket, it's not unknown in the US. For example, the following happened at the end of November last year:

Potential Donald Trump cabinet pick Kris Kobach accidentally leaked Department of Homeland Security plans when posing for a press photograph with the president-elect. Using photo editing tools, a zoomed-in view on the documents being carried by Kansas Secretary of State Kris Kobach reveals a plan to put Trump’s hard-line immigration platform into practice.

Aside from the carelessness of the people involved, the problem has arisen because long-focus lenses are now so powerful and commonly-deployed that it is relatively easy to capture a high-quality image of an exposed document so that its contents can be read. That's a problem that will only get worse as camera technology advances, especially combined with digital enhancement techniques. If this story on the BBC's website is to be believed, it's not just documents that are now at risk as a result:

A Japanese researcher says doing the peace sign in a photo could lead to your fingerprints being stolen.

They might be easy to recreate if your digits are "in focus with strong lighting".

That claim is from Isao Echizen, from the National Institute of Informatics (NIII), who says prints could then be made "widely available".

That's clearly a big problem at a time when fingerprints are increasingly being used to unlock digital devices, and to provide access to sensitive data. The British experience shows it's hard enough to shield confidential papers; keeping fingerprints out of high-resolution photos seems like an impossible task.

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

Filed Under: fingerprints, photographs, privacy

Photographer Learns To Embrace The Public Domain... And Is Better Off For It

from the it's-a-fucking-lighthouse dept

There are constant debates over the value of the public domain. As you know, in the US, Congress has repeatedly expanded and extended copyright law to effectively wipe out the public domain. No new works have gone into the public domain because of copyright law (other than works by the Federal government) in many years, and that likely won't change for many years either. The only way works go into the public domain these days are through some sort of public dedication, such as by using the Creative Commons CC0 license -- though very careful lawyers may remind you that even this is not technically putting the work in the public domain. Under the current Copyright Act there really isn't a way to officially put something in the public domain. A copyright holder can only make an effective promise that the work should be treated as if it's in the public domain by declaring it so.

The fact that the law is so hostile to the public domain is no accident. If you look at the history of the debates about copyright shows the legacy copyright industries being actively hostile to the public domain, and making a variety of silly, nonsensical (and flat out wrong) arguments about the public domain. They've argued that putting works in the public domain removes all value from the work. They've also claimed that putting works in the public domain will cause it to be over-utilized, since it's free, thereby harming its value in a different way. The fact that these two arguments seem to conflict with each other was more or less ignored. And then you even have the extremely ridiculous claims that the public domain is theft of private property. Paul Heald has done some tremendous research on how all of the hyperbolic statements about how awful the public domain is simply aren't true. But that's looking at historical data.

It appears that some content creators are realizing the value of the public domain as well. A Swiss photographer, Samuel Zeller has written an absolutely brilliant piece on how much value he's received by putting many of his works into the public domain via CC0 licenses (he also uses CC-BY licenses on many of his other photos). Zeller focuses on a wonderful tool that I've made use of many times myself over the years: Unsplash, which is an absolutely amazing community of photographers all sharing their brilliant photos (in high res) under CC0 public domain dedications (as an aside, if you sign up for it, Unsplash will send you a regular email every week to 10 days showing a selection of their latest photos, and they tend to be stunning). Zeller explains his own discovery of Unsplash:

About two years ago I stumbled on Unsplash, a website with free (do whatever you want) high resolution photos. I love the concept instantly, people could just upload their images and give them away for free under a Creative Commons CC0 license.

So Far, I uploaded 184 images on my Unsplash profile, they've been viewed over 63,000,000 times and downloaded over 613,000 times.

Just insane numbers.

And from that, good things result:

The amount of traffic Unsplash generate to my portfolio is huge. The number of referrers I have is constantly growing, many websites and blogs use my images and give a link back. My website is no longer just a small island in the sea that nobody see, it's a fucking lighthouse...

My latest and biggest client found me because of Unsplash, in fact I never really searched for clients, they found me in the first place. (isn't that what every photographer dream of?)

From there, Zeller addresses the common myths around why you shouldn't give your work away for free. First up, by giving away his photographs this way, is he losing money?

It is a a matter of perspective. If I put all my images on a stock photography website I could make some money out of it.

But stock photography is dying, people pay less and less for images. I know, I worked for years in a design agency where we regularly had to buy images for clients, and our clients budgets were always getting smaller.

Why should I need to sell images if I have clients paying me to shoot specific images? To me working for a client face to face is rewarding, way more than making money on digital sales to people I will never interact with.

This goes back to a point we've been making for years: your past work acts as an advertisement for your ability to be hired for future work. And if you give that work away for free, it acts as free advertising. Zeller seems to have discovered that to a fairly extreme level.

On to the next myth: giving away your work means that it somehow "loses value."

This is something people asked me before and the answer is: no.

My photography keep improving, more people stumble on my work and I've got more contacts, more projects and clients than before.

An image has value because someone has an use for it. It has absolutely no value if it's sitting uselessly in my hard-drive or if it's just on social media waiting to get liked. Sure it has emotional vlaue but don't get me wrong, I need money to live and pay the bills.

the images I give away for free are like a teaser of what I can do. Think of it as a "try before you buy" option.

Later he notes:

There's no point in being talented if nobody can see what you do.

Now you can make a totally reasonable argument that Zeller's situation doesn't necessarily apply to everyone. There is a combination of both skill and luck in getting your work so widely recognized. If you're just not that good, it's going to make things that much more difficult. And even if you're good, sometimes you just don't get seen anyway, but that's got nothing to do with copyright. Freeing up images certainly increases the opportunity that people will discover your work. If luck is the issue, freeing up images is like giving luck many more chances.

The other argument, obviously, is that photography is different than other creative works -- and that's absolutely true. However, I will note that independent photographers historically have often been the most aggressive and vocal about wanting stronger and stronger copyright protections and being against relatively modest improvements to copyright law. Many have become so focused on licensing images they've taken in the past that they haven't even considered alternatives or how freeing up images and how that might help.

Anyway Zeller's photographs are pretty damn awesome. Check out his Unsplash page and his larger archive of photos as well. Here's one of his many cool photos, because I feel like we shouldn't write a whole post about him without including at least one image:

Filed Under: copyright, free, photographs, public domain, samuel zeller, unsplash

Disney Grapples With Light-Side/Dark-Side, Retracts Toy DMCA, Resubmits It, Is Probably Our Father, Aaaah!

from the toy-story dept

It's a struggle that Disney ought to know quite well, having taken over the Star Wars franchise. The struggle between good and evil; the light side of the force... and the dark side. And it looks like we're all getting a front row seat to the internal strife of Disney via the ongoing silliness surrounding the image of a Star Wars toy accidentally released to the public by a retailer.

If you recall, our original post detailed how Disney was apparently abusing the DMCA process to take down the photographs of Justin Kozisek, contributor to Star Wars Action News. The photographs were of a toy that was in and of itself something of a spoiler due to the outfit the character is wearing. Pretty much everyone speculated that Disney was using the DMCA process to avoid the spoiler reaching audiences before the release of the latest film, which is, of course, not what the DMCA process is for. Also, most people were happy to agree that claiming copyright on images of a legally purchased retail item was Jar Jar Binks level absurdity. Well, Marjorie Carvalho, who runs Star Wars Action News, tried to reach out to Disney to see what was going on.

She wrote a polite e-mail to the Disney company e-mail address listed in her DMCA notice, explaining exactly what happened. While Carvalho didn't get a direct reply, her message seemed to have worked. Last night her account got a late e-mail from Facebook stating that "The Walt Disney Company has retracted their intellectual property report."

"All we did was write a letter, and a few hours later, it was retracted," she said in an interview with Ars this morning, pleased with the result. "It pays to take the high road and get your facts in order, rather than overreacting. I feel good about it, and it's nice that they're recognizing they made a mistake."

The light side jedi is humble and knows the best course of action when he or she is at peace. Carvalho's email must have had a tranquilizing effect on Disney, allowing it to turn away from the darkness. Much as Vader rendered himself useful for thirty seconds by tossing Emperor White Raisin or whatever his name was down a galactic laundry chute that for some reason had been installed in an Emperor's throne room, Disney realized its error and became good again.

For about an hour or so. The dark side is tempting, after all. According to the Ars Technica article linked above:

Not 10 minutes after getting off the phone today, Carvalho informed Ars that the image was taken down again. Disney sent an identical DMCA notice.

"For reasons we can't understand—Disney has now RESUBMITTED the claim, again removing the pictures (that they restored this morning)," she told her followers on Facebook.

This time, Facebook removed the entire post, not just the photo. It also administered a punishment to Kozisek, banning him from posting on the site for three days.

Yes, with the kind of speed that would impress a tie fighter pilot, Disney went from pulling the DMCA takedown to re-submitting it. Meanwhile, as Disney goes through this phase of self-discovery, images of the toy that it had hoped to censor exist roughly everywhere anyway, including in the reporting that has been done on this whole stupid episode. In other words, the only thing that Disney has managed to accomplish throughout this whole thing is to look bumbling and silly, and to Streisand Effect news about the toy all over the internet.

Filed Under: dmca, photographs, star wars, takedowns, toys
Companies: disney, facebook

The Crazy Permission-Asking Media Scrum That Descends When Photographic News Happens On Twitter

from the insanity-in-the-making dept

As you may have heard last week, a British Airways plane caught fire as it was taxiing on the runway preparing for takeoff. Thankfully, everyone on board escaped with just a few minors scratches and bruises. The plane wasn't so lucky. However, there were lots of other people around on other flights witnessing the whole thing and -- not surprisingly -- many of them have Twitter accounts. And, as has become fairly standard when visual news breaks somewhere with people around, they started tweeting photos. Here's David L. Somers at 4:16pm:

Just landed in Vegas to see this...plane on fire on the Tarmac...people still onboard and running off! pic.twitter.com/ul10hFFw9j

— David L. Somers (@DL_Somers) September 8, 2015

And here's Bradley Hampton at 4:17pm:

Plane on fire on LAS runway! @FoxNews pic.twitter.com/iQiHzV22Bq

— Bradley Hampton (@Bradley_Hampton) September 8, 2015

And here's Eric Hays at 4:20pm:

Just landed in Las Vegas, plane is on fire. People were on boaard but it looks like they all got off in time. pic.twitter.com/0AN5HvBB5G

— Eric Hays (@ericmhays) September 8, 2015

There were a bunch of others as well, but those were three of the earliest that got the most attention.

Now, some of us might marvel at this amazing world we now live in, where everyone can be a broadcast reporter should news suddenly happen around them. It's kind of amazing. But, perhaps even more fascinating is the somewhat insane mainstream media scrum that immediately follows. All three of these guys were almost immediately bombarded with news producers from TV, newspaper and online media, all asking for permission to use their photos. This is just a sampling because if I posted them all, i think my hand would cramp up from cutting and pasting so many embed codes. Notice that a bunch of the requests come from the very same news organizations, many asking if they can use it on all platforms/affiliates and such:

@DL_Somers Hi David. May we get your permission to use this photo?

— FOX5 Las Vegas (@FOX5Vegas) September 8, 2015

@DL_Somers can we please use your pic on @23ABCNews? thx in advance either way

— Justin Burton (@jburtonnews) September 8, 2015

@DL_Somers David, may KING 5 in Seattle use your photo, with credit?

— KING 5 News (@KING5Seattle) September 8, 2015

@DL_Somers, Hi, I'm a reporter for @ABC's @WNTonight. Glad you're okay. May we have permission to use this photo on all platforms?

— Erin Dooley (@erindooley) September 8, 2015

@DL_Somers Hi David, may Fox 10 in Phx have permission to use this photo as well?

— Linda Fox 10 (@lindawfox10) September 9, 2015

@DL_Somers I'm sure you're annoyed by these requests... but can we also use this pic on-air tonight? Thanks.

— Seth Kaplan (@Seth_Kaplan) September 8, 2015

@DL_Somers Hello! Can we please have your permission to use this photo on-air and online?

— ABC7 News (@abc7newsBayArea) September 8, 2015

@DL_Somers can we use this picture?

— FOX21 News (@FOX21News) September 9, 2015

@DL_Somers hey there -- i'm with @KATUNews, may we use this image on air?

— Mila Mimica (@MilaMimica1) September 8, 2015

@DL_Somers Hi, I'm with NBC Bay Area? Is it OK to use photos on all NBCU platforms w/ credit to you? thx!

— NBC Bay Area (@nbcbayarea) September 8, 2015

@DL_Somers I work for Channel 13 in Las Vegas. Can we use your picture on our newscast?

— Tessie Sanchez (@vegassanchez24) September 8, 2015

@DL_Somers Andres here with CNN, Can we use your photo permanently on all our platforms and affiliates?

— Andres Gonzalez (@andago101) September 8, 2015

@DL_Somers Hi David - may we please use this photo on @itvnews?

— Stephen Jones (@SteveJonesITV) September 8, 2015

@DL_Somers Is this your picture? If so, please can we use it for our coverage on Sky News (UK), obviously with a credit? Let me know, thanks

— Huw Borland (@SkyNewsHuw) September 9, 2015

@DL_Somers Hi, I'm requesting on behalf of all media agencies in Kenya, can we use this photo on all our platforms before it's stolen?

— *Michael Shoe Maker* (@ki_bet) September 9, 2015

@DL_Somers Hi David! Here's another request from the CBS in San Diego... Can we add it to our story?

— Paco Ramos (@kicknpac) September 9, 2015

@DL_Somers Hi, I'm with the NY Daily News. Could we have permission to use this pic if we credit back to you? Thanks.

— TWLevinson (@TmasReports) September 8, 2015

@DL_Somers Hi David - can we use your picture on @SkyNews platforms? Thanks

— Tom Boadle (@TomBoadle) September 9, 2015

@DL_Somers Would it be OK for FOX11 in Los Angeles to use your photo? We can give you a credit.

— Steve Herren (@Pasadenanews) September 9, 2015

@DL_Somers Hey David. I'm with NBC News. May we have permission to use your photo across all our platforms? Thank!!

— Gemma (@GemmaDiCas) September 8, 2015

@DL_Somers May CBS News use this photo for affiliates, web, international and network thanks stay safe!

— Sammy Rose Been (@Sammy_Roses) September 9, 2015

@DL_Somers CAN CBS USE THIS PIC?

— david parrish (@dparrishcbs2) September 8, 2015

@DL_Somers CBS in Las Vegas, can we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@DL_Somers we are SaferSkies Nigeria do we have your permission to use this picture on our site and sister publications? @NLIGlobal1

— Safer SkiesNG (@SaferSkiesNG) September 9, 2015

@DL_Somers my name is Rugba Karika with NTA 2 channel 5 news. Please can I have your permission to use this picture? Thanks in advance.

— Elyon (@fega_RK) September 9, 2015

@DL_Somers hi I work for saudi channel 2 , may I get your permission to use this pic?

— Mawzez! (@Sooma_4) September 9, 2015

@DL_Somers hi david CBS Channel 2 news here can we have permission to use this photo? we will credit u on allmedia platforms plz let us know

— Jen P (@Jenwestbay) September 9, 2015

@DL_Somers AMAZING PIC DAVID! can we show on the news in Orlando tonight?

— ERIN DREW KENT (@ERINDREWKENT) September 9, 2015

@DL_Somers @7ANQ_ hi david , can we use your pic on @spagov ?

— ): #56 (@milani_1899) September 9, 2015

@DL_Somers Hi May I have permission to use this photo on all platforms?

— AZoooz (@AZIZALALI1) September 9, 2015

@DL_Somers Hi David did you take this pic? Could we please use it for our FOX News coverage?

— John Potratz (@johnpotratz) September 9, 2015

@DL_Somers Hi David. I work for the NBC station in Houston (KPRC-TV). May we have permission to use your photo?

— Steve Lulgjuraj (@EPSteveL) September 9, 2015

@DL_Somers Hi David. I work for Reuters and we're reporting on this. Would you mind following me so I can DM you about the picture? Thanks.

— George Sargent (@georgesarge) September 9, 2015

@DL_Somers Hi there! I'm from WCBS News New York...can we use this photo on air and all platforms? We will credit you!

— Ariana Induddi (@Ariana_Induddi) September 8, 2015

@Bradley_Hampton Hi Bradley... FOX31 in Denver would like to see if we can get permission to use your photos on air and online.

— KDVR FOX31 Denver (@KDVR) September 9, 2015

@Bradley_Hampton I work for NBC Bay Area News. Can we please use your photos. We would credit you.

— Anthony Leong (@anthonyleong83) September 8, 2015

@Bradley_Hampton Hi Bradley, I work for ABC11 in North Carolina, can we use this picture online and on-air?

— Taylor Lisenby (@TaylorLisenbyTV) September 9, 2015

@Bradley_Hampton @Bradley_Hampton Hi Bradley, Can we use your images with credit at The Australian? Many regards, hope everyone is safe

— Marc Dodd (@marcdodd) September 9, 2015

@Bradley_Hampton Bradley, Kelsey from CBS News here. May we have permission to use your images of this event on our platforms w/ credit?Thx

— Kelsey Gore (@KGoreCBS) September 8, 2015

@Bradley_Hampton I'm with CBSNews - May we use your plane on fire photos for affiliates, web, international and web? Thanks stay safe

— Sammy Rose Been (@Sammy_Roses) September 8, 2015

@Bradley_Hampton Andres here with CNN, Can we use your photo permanently on all our platforms and affiliates?

— Andres Gonzalez (@andago101) September 8, 2015

@Bradley_Hampton Are you okay? If so, can CNN use this photo?

— Adrienne (@adriennelu15) September 8, 2015

@Bradley_Hampton Hi, I'm with the NY Daily News. Could we have permission to use your pics if we credit back to you? Thanks!

— TWLevinson (@TmasReports) September 8, 2015

@Bradley_Hampton @FoxNews would like to use for Cox Media Group, with credit

— Bonnie Buck (@bonniebuck) September 8, 2015

@Bradley_Hampton Hi, can NBC Bay Area use these photos across all NBCU platforms with credit to you? thanks!

— NBC Bay Area (@nbcbayarea) September 8, 2015

@Bradley_Hampton Oh no! HOpe everyone's ok. Can we share this photo on our platforms? You'll be credited.

— Fresco News License (@frescolicense) September 8, 2015

@Bradley_Hampton hi Bradley, Polly with @Newsweek. Can we use this photo with credit?

— Polly Mosendz (@polly) September 8, 2015

@Bradley_Hampton Bradley, may KING 5 in Seattle use your photo, with credit?

— KING 5 News (@KING5Seattle) September 8, 2015

@Bradley_Hampton Hi Bradley, I work with NBC News. Can we have permission to use your photos across all platforms? Will credit you. Thanks!

— Michelle Cho (@mcho24) September 9, 2015

@Bradley_Hampton Hi Bradley. Can we use your pics on BBC News please?

— James Cook (@BBCJamesCook) September 8, 2015

@Bradley_Hampton What a picture! Can FOX31 in Denver get your permission to use on air and on http://t.co/bBIlMoRQV7 with credit to you?

— KDVR FOX31 Denver (@KDVR) September 8, 2015

@Bradley_Hampton Hi Bradley, may we use your photo w/ credit at @wsvn?

— Brandon (@Launerts) September 8, 2015

@Bradley_Hampton Hi Bradley--Can we have permission to use South Florida Reporter with credit to you?

— Media Alert (@MediaAlert) September 9, 2015

@Bradley_Hampton May the European Pressphoto Agency move your photos on our wire with credit to you?

— Matt Campbell (@EPAFOTOG) September 9, 2015

@Bradley_Hampton Hi Bradley, hope everyone is alright, can we use please?

— Alexander Ward (@alexanderj_ward) September 9, 2015

@Bradley_Hampton Hi Bradley, I work for 10News in San Diego. Can we use your photo online if we credit you?

— Stacy Haynes (@StacyeHaynes) September 8, 2015

@Bradley_Hampton Great photo. May we use your photos with credit for our news coverage? Please reply. TX

— MailOnline Pictures (@MailOnline_Pics) September 8, 2015

@Bradley_Hampton CBS in Las Vegas, can we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@Bradley_Hampton Can Demotix news agency in the UK syndicate this photo and the others you have to our media clients with a credit to you?

— Matthew Richards (@forestmat) September 8, 2015

@Bradley_Hampton hi bradley, can we use your photo with credit in Manfouha, (Riyadh, Saudi Arabia) newspaper!

— مجلاد (@jallad) September 9, 2015

@Bradley_Hampton hi CBS Channel 2 news here, can we have permission to use this photo we will credit you on all media platforms. thank you!

— Jen P (@Jenwestbay) September 9, 2015

@Bradley_Hampton Hi there! I'm from WCBS News New York...can we use this photo on air and all platforms? We will credit you!

— Ariana Induddi (@Ariana_Induddi) September 9, 2015

@Bradley_Hampton can we use this image on our platforms for Newsday please respond thanks and great photo Bill Perlman Newsday Photo Editor

— Newsday Photography (@newsdayphoto) September 9, 2015

@ericmhays Hey Eric. Can KTLA use your pic with on screen credit to you? Thanks.

— Nidia Becerra (@nidia_b) September 8, 2015

@ericmhays can we please use your plane fire pic on @23ABCNews? - thx either way in advance

— Justin Burton (@jburtonnews) September 8, 2015

@ericmhays Hi Eric, may we have permission to use this photo on-air and online?

— ABC7 News (@abc7newsBayArea) September 8, 2015

@ericmhays We hope everyone is okay! Can we share this with news outlets on our platform? All uses will credit you as the photographer.

— Fresco News License (@frescolicense) September 8, 2015

@ericmhays ----- Is this ok if WBZ-TV in Boston uses?

— Chris (@ChrisNWBZTV) September 8, 2015

@ericmhays Are you okay? If so, can CNN use this photo?

— Adrienne (@adriennelu15) September 8, 2015

@ericmhays Hi Eric. I'm with ABC/KGO in San Francisco. May we air your photo?

— hjtuggle (@hjtuggle) September 8, 2015

@ericmhays hey there -- could we please use this photo on @KATUNews?

— Mila Mimica (@MilaMimica1) September 8, 2015

@ericmhays Glad to see you’re OK. Can KMGH-TV in Denver use this image for all of our platforms? Please let us know.

— 7NEWS Denver Channel (@DenverChannel) September 8, 2015

@ericmhays Can we use your pic with credit on Sanook News (Thailand) ? Thanks.

— Sanook! News (@SanookNews) September 9, 2015

@ericmhays Sir, may MMB air this photo?

— Анхны Индиго© (@anhniiindigo) September 9, 2015

@ericmhays Can we use your photo? What's your #? THanks.

— Chuck (@CNNEditorChuck) September 8, 2015

@ericmhays Hi Eric I'm with ABC News. Wondering if we have permission to use this photo on all ABC platforms with courtesy? Thanks!

— Emerald Zellers (@EmeraldZellers) September 8, 2015

@ericmhays CBS in Las Vegas, may we use your picture?

— Rebecca Krshul (@rebeccanicolle) September 8, 2015

@ericmhays newsday would love to use your photo in our paper tomorrow, can you give us permission? with credit of course photo@newsday.com

— Newsday Photography (@newsdayphoto) September 9, 2015

@ericmhays can we use this photo on all of our platforms @WAOW in Wisconsin? We'll give you credit.

— John Laughrin (@jlaughrin_WAOW) September 9, 2015

@ericmhays Hi, I'm with the NY Daily News. Could we have permission to use this pic? Thanks!

— TWLevinson (@TmasReports) September 8, 2015

@ericmhays Hi Eric, can KDVR/KWGN in Denver use your picture with credit? Thank you!

— 小鬼。 (@svmmmer) September 8, 2015

What's kind of amazing is that all three guys basically sat around after all this graciously giving permission to most of the requests over and over and over and over and over again. Some of the requests were more detailed. Some asked the tweeters to get in contact to sign something. The most forward one was the AP who actually sent a "social media release form" as an attached image to a tweet:

@Bradley_Hampton Please reply if you agree with attached statement so @AP can use your photo of plane fire. Thanks. pic.twitter.com/84npYJ5XBw

— Joseph Altman (@APaltman) September 8, 2015

The Weather Channel wanted Eric to "verify" his permission:

@ericmhays may we have permission to feature your photo? Verify here: https://t.co/HKODFM0luo

— The Weather Channel (@weatherchannel) September 8, 2015

A bunch of other people noticed the nutty scrum and had fun with it, including jokingly asking for permission to retweet, to share on other social networks, to describe on the radio, to draw the picture, to look at and (my favorite) to look at and then not have nightmares about flying.

So what to make of all this? On the one hand, it seems like a fairly strong graphical representation of permission culture these days. In nearly every one of these cases, the news organizations in question would likely have extremely strong fair use protections. And it doesn't look like any of the three guys above were looking to profit from their photos. To some extent, having taken and posted the photo may have actually been more of a nuisance for them, since they all then had to spend time responding to all those requests. As filmmaker Nina Paley has discussed in the past, permission culture gets super annoying when everyone has to keep asking, and you just want them to be free to use it. But, of course, in an age where every news organization is afraid to get hit with a massive damages award in a copyright lawsuit, they're all going to ask.

That system seems fairly broken. We have at least some solutions for this. Creative Commons can handle some of it, but Twitter has no way to officially designate a CC license on a photo you've posted. That would certainly help a lot. But, overall, the whole thing just seems silly. These photos are news -- and they're initially being posted on public social media for a reason -- because those who took them wanted them to be shared and spread. It seems silly that we need such an insane level of permission gating that every news agency on the planet has to bother these guys to ask for permission.

Filed Under: airplane, copyright, fire, journalism, las vegas, news, permission, permission culture, photographs, social media, twitter

Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission

from the but-I-didn't-think-anyone-would-do-the-thing-I-told-them-they-could-do! dept

A far-too-common story of alleged copyright infringement by a corporation comes to an unexpected resolution. Photographer Art Dragulis took a photo of a rather rustic Maryland scene and uploaded it to Flickr. (from the filing)

Roughly four years later, he discovered Kappa Map Group was using his photo for the cover of its Montgomery County atlas, unbeknownst to him, and as such, also unrecompensed.


Lawsuit-filing ensued. Dragulis claimed Kappa Map Group had no right to use his photo commericially. Seems an almost open-and-shut case, what with any number of entities deciding "anything showing up in a Google image search" = "royalty-free stock photography." And in most cases, this would have been rather straightforward if the photographer himself hadn't undermined his infringement claims years before he ever raised them.

As the opinion notes, any copyright protections Dragulis might have enjoyed were explicitly waived by his choice of licensing back in 2008.

Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.

Dragulis chose to license this picture under Creative Commons BY-SA-2.0, which allows commercial use of the photo in exchange for attribution. As Kappa pointed out in its initial response to Dragulis' filing, it followed the terms of the license explicitly.

Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”

So, everything was exactly what Dragulis wanted, except that he apparently never expected a commercial company to take him up on his CC offer. When one did, it was time to sue. The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome.

Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.

Dragulis heads a little further into the weeds with his arguments, claiming that the "share-alike" portion of the CC license demanded Kappa Map Groups offer its atlas under similar terms -- i.e., for free and with a similar license attached. The court finds this unpersuasive, pointing out the CC license terminology Dragulis invoked only refers to "derivative works," which KGM's atlas isn't. Instead, the court finds the atlas to be a "collective work," one that incorporates the photo "in its entirety in unmodified form."

Dragulis loses on all counts, even with the court entertaining his very belatedly-raised argument that the minimal cropping of his original photo by Kappa somehow made the use of his photo a "derivative work."

If there's a moral to this legal incident, it's this: know the terms of your licensing before you agree to use it. If you want to use a more altruistic licensing form like those offered by Creative Commons, by all means, do so. But don't act like a commercial entity owes you something for complying with the terms you expressly agreed to. Licensor's remorse isn't a legally-recognized tort.

Filed Under: art dragulis, copyright, licenses, photographs, share alike
Companies: creative commons, flickr, kappa map group

Germany Says Taking Photos Of Food Infringes The Chef's Copyright

from the no-#foodporn-please,-we're-german dept

Over the years, Techdirt has had a couple of stories about misguided chefs who think that people taking photos of their food are "stealing" something -- their culinary soul, perhaps. According to an article in the newspaper Die Welt, it seems that this is not just a matter of opinion in Germany, but established law (original in German):

In individual cases, shared pictures may be illegal. At worst, a copyright warning notice might come fluttering to the social media user. For carefully-arranged food in a famous restaurant, the cook is regarded as the creator of a work. Before it can be made public on Facebook & Co., permission must first be asked of the master chef.

Apparently, this situation goes back to a German court judgment from 2013, which widened copyright law to include the applied arts too. As a result, the threshold for copyrightability was lowered considerably, with the practical consequence that it was easier for chefs to sue those who posted photographs of their creations without permission. The Die Welt article notes that this ban can apply even to manifestly unartistic piles of food dumped unceremoniously on a plate if a restaurant owner puts up a notice refusing permission for photos to be taken of its food.

It's sad to see this kind of ownership mentality has been accepted by the German courts. As a Techdirt article from 2010 explained, there's plenty of evidence that it is precisely the lack of copyright in food that has led to continuing innovation -- just as it has in other fields that manage to survive without this particular intellectual monopoly, notably in fashion.

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

Filed Under: chefs, copyright, food, foodporn, germany, infringement, photographs