As we’ve reported in our coverage of photographer Patrick Cariou’s infringement claim against Richard Prince, Prince and his defenders argue that appropriation art does little harm to individuals from whom appropriation artists steal their raw materials. Their implied question: Where would civilization be without the great works of appropriation artists like Andy Warhol and Robert Rauschenberg?

Credit The Art Newspaper, a British publication, with taking on that argument. Yesterday they reported that Warhol, Rauschenberg and other big name appropriation artists quit stealing the work of others–and started getting licenses instead–after they got sued once or twice (or five times) for infringement.

“There is growing evidence—albeit rarely reported—that, although these artists may have started out as willing or unwitting outlaws, they decided that possibly infringing other artists’ copyright was legally unwise and potentially expensive, and they stopped,” writes Laura Gilbert for The Art Newspaper.

She reports that Andy Warhol faced lawsuits in the 1960s for unauthorized use of photographs by Patricia Caulfield, Fred Ward, and Charles Moore. He settled the claims out of court, and afterwards started asking for permission before incorporating works by others into his own creations. “He learned a lesson from the lawsuits,” Warhol’s gallerist, Ronald Feldman, told Gilbert.

Robert Rauschenberg was sued in the 1970s for unauthorized use of one of Morton Beebe’s photographs. After settling the suit in 1980, Rauschenberg reportedly quit appropriating the work of other artists. Jeff Koons, another appropriation artist who was famously sued (and lost) over the “String of Puppies” sculpture he copied without permission from a photograph, no longer uses the work of others without permission, his lawyer told The Art Newspaper.

Gilbert cites other examples, too. The message is that former art pirates with big names weren’t above the law, after all, and when they were sued into compliance, it wasn’t the end of appropriation art, much less civilization.

Richard Prince has already been held liable for infringement by a federal trial court judge. His appeal is pending. A victory for Prince, it seems, would put him in a special class of pirates with immunity, pretty much by himself.

Related:
Appropriation Artist Richard Prince Liable for Infringement, Court Rules
In Cariou v. Prince, an Appeal to Clarify a Crucial Fair Use Boundary

Photographer Daniel Morel, who had his exclusive Haiti earthquake images ripped off by Agence France-Presse and Getty more than two years ago, has released more evidence in his claim against the two wire services in his ongoing fight for justice.

The new details, which are part of a motion Morel filed last month asking the judge to hold Getty and AFP liable for infringement, were sent by Morel’s lawyer to PDN and several others. They are neatly summarized by Jeremy Nicholl on The Russian Photos Blog.

Nicholl leads off by quoting an internal e-mail from AFP deputy photo editor for North America Eva Hambach:  “AFP got caught with its hand in the cookie jar, and will have to pay.” Ten days after Hambach wrote that to a colleague in March, 2010, AFP slapped Morel with a lawsuit to gag him and punish him for publicly accusing AFP of violating his copyrights.

To re-cap, Morel–a native of Haiti and a former AP photographer–was in Haiti at the time of the January, 2010 earthquake. He posted exclusive images of the destruction on his Twitpic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them under the false credit through its own image service and through Getty. They did that even though editors at both companies knew that the images were Morel’s, and that they did not have his permission to distribute them.

Morel objected. His agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them.

With Morel continuing to insist that his copyrights had been violated, AFP sued, and Morel fought back. Getty and AFP have done their best to wear Morel down by dragging out the process, but the photographer has refused to give up. He has already won an important decision against AFP, which argued that anything posted on Twitpic is free for the taking, according to the Twitpic terms of service. The court summarily rejected that defense.

Meanwhile, Getty continues to try to hide behind the Digital Millenium Copyright Act. The company says, in effect, that it was merely a passive provider of server space to AFP so it shouldn’t be held liable as an infringer. On the grounds that Getty is AFP’s partner and an active marketer and distributor of AFP images, Morel is asking the court to reject Getty’s DMCA defense.

What it boils down to is a case of two companies bullying a photographer they got caught stealing from. AFP and Getty aren’t the first to move images without permission in a cutthroat business that has a history of steal-now-and-apologize-later tactics. What’s unusual is the unwillingness of the two companies to own up to their ethical lapse and legal breach by apologizing and quietly paying to settle it.

We contacted Hambach to ask her about the internal repercussions of her “cookie jar” e-mail. Was she taken to the woodshed for it? Is there any sign that AFP is taking stock of its policies with regard to recouping images? “I can’t talk about this now,” she said, ending the conversation at the mention of her e-mail.

A hearing on Morel’s motion for summary judgment is scheduled for July. The judge is unlikely to issue a decision before fall.

Several days ago, Pinterest announced a new feature that automatically credits and links back to content that Pinterest users re-post from Vimeo, YouTube, Behance and Flickr. The announcement was part of Pinterest’s campaign to counter perceptions that copyright infringement is part of its corporate DNA. But the announcement amounted to little more than window dressing, and could give Pinterest users a false sense of security.

Pinterest, as we pointed out in a recent story, puts all the liability for infringement squarely in the lap of its users. The service enables those users to “pin” content from anywhere on the web onto a virtual bulletin board. Average users don’t realize that what Pinterest encourages them to do–copy and re-publish digital content without permission–is a copyright violation. Not surprisingly, Pinterest doesn’t go out of its way to make that clear to its users.

The automatic credits and link-backs to Vimeo, YouTube, Behance and Flickr don’t give users any added protection. For one thing, content owners post videos and photos to those four sites expecting–no, encouraging–others to share their content. In other words, most people who use YouTube, etc. would sooner thank Pinterest users for re-posting (“pinning”) their digital files than sue them for infringement.

A real accomplishment on Pinterest’s part would be to add a feature that automatically credits and links back to every item re-posted by a Pinterest user. That might satisfy content owners who don’t mind others re-posting their photos, etc. as long as they credit the owners. And it might help people who object to having their content used without permission discover the unauthorized uses and put a stop to it: They could send a take-down notice to Pinterest, and demand payment from the Pinterest user who violated their copyright.

That would be bad for Pinterest’s business, of course. But Pinterest risks little by its very limited credit/link feature, which could ultimately hurt Pinterest users by sending them a dangerous message: that it’s OK to “pin” content without permission as long as you give the copyright owner credit.

That isn’t the case, as any copyright lawyer will tell you. Copyright law says you can’t re-publish a work without permission from the copyright holder. Giving the owner credit is no substitute for permission. Pinterest still has much work to inform its users of their legal risks, and help those users protect themselves.

Related:
Copyright Watch: The Liability-Proof World of Pinterest

You may not know the name of photographer Andy Duann, but you may have seen his work. Duann, a photographer with the CU Independent, the student paper of the University of Colorado Boulder, photographed the bear that fell out of the tree on the school campus after it was tranquilized by wildlife officials (landing gently on some pads below). The CU Independent distributed his images to the Associated Press (AP), the Denver Post, the Colorado Daily  and other outlets. As the Poynter.org mediawire reported on Friday, Duann claimed that the school had no right to resell the images, because he holds the copyright.

Today Poynter reports that, in light of Duann’s complaint, the AP has yanked his falling-bear photos, and issued an advisory to its members to scrub the pics from their archives.

What’s at issue here is whether the student photographer is considered an employee of the university’s paper—and thus his images are automatically “works for hire”—or an independent contractor—and thus retains copyright to the images unless he’s signed a work-for-hire agreement. The faculty advisor to the paper says Duann’s an employee, but an attorney for the Student Press Law Center says no. A student is not in an employee/employer relationship with his school, and federal law requires a specific work-for-hire contract, not a general understanding, for the copyright to be transferred from the creator. (The attorney, Adam Goldstein, also provides a succinct and clear explanation of when work-for-hire does and does not apply. You might find it useful the next time a client hires you for an assignment and says, “But why don’t we own the copyright?”)

Poynter reporter Andrew Beaujon explains that as soon as Duann saw his photo on the Washington Post and elsewhere, he headed to the university law school to find out his options.

Hey, don’t say the young photographers of tomorrow don’t understand their intellectual property rights!

You can read the whole saga, including the story of how Beaujon got inadvertently involved in the copyright dispute, at Poynter.org/latest-news/mediawire. You can see other photos of the bear in mid-air, not taken by Duann, here.

Update: Some copyright information for student photographers has been posted at Student Press Law Center, splc.org.

The Copyright Office is proposing to raise fees to register new works, and is currently seeking public comments on the proposed hike. The fee to file copyright registrations electronically would go up from $35 to $65. The fee to submit a paper registration would rise from $64 to $100. (These fees cover the cost of bulk registration of unpublished images.)

The Copyright Office is accepting comments from the public through May 14.  Concerned that the increased fees will discourage photographers from protecting their copyrighted works, the Advertising Photographers of America (APA) is encouraging photographers and other artists to voice their opinions now.

The Copyright Office’s proposed new fees and rules are spelled out in the Federal Register, which can be downloaded here in a PDF.

The Copyright Office claims it needs the fee increase to cover costs: “In fiscal year 2011, the Office recovered only 64 percent of its cost to process an online claim and only 58 percent of its cost to process paper applications.” And given that copyright registration service “benefits both copyright owners and the public,” the Office figures copyright holders will cough up the extra money.  Registering copyright before a work is infringed, for example, makes you eligible to collect statutory damages if you win an infringement claim in court. That’s useful clout when dealing with infringers.

The problem is, of course, that many creators fail to register copyrights until after they’ve seen their works copied, and want to take legal action. A higher fee isn’t going to encourage photographers to make registering and protecting their works part of their routine workflow, but how many photographers will it deter?

Comments on the proposed fee hike can be submitted using a form available here:
www.copyright.gov/docs/newfees/comments/

The estate of iconic music photographer James “Jim” Marshall filed a copyright infringement claim against Thierry Guetta (aka Mr. Brainwash) and Google for the unauthorized use of his images for advertising purposes. The brief states that copies of Marshall’s photos were used as part of a promotion for Google Music, a new online music service, as well as in derivative works.

According to the brief, for a Google event held at Guetta’s studio, the artist designed a backdrop using blown-up copies of photos Marshall made of musicians John Coltrane and Jimi Hendrix, which “constituted unauthorized reproductions and display” of the images. The backdrop was placed to the side of the stage where the announcement for Google Music was made, and therefore Google is also liable for copyright infringement since the images were used to promote its new product, Marshall’s estate claims.

Additionally, the brief states that Guetta used five of Marshall’s photos to make derivative works, some of which he is currently selling on his Web site. It appears that Marshall’s images of John Coltrane, Sonny Rollins and Stanley Turrentine, as well as his group shots of Thelonius Monk, Dizzy Gillespie, and Gerald Wilson, and Jimi Hendrix and Brian Jones, were screen printed on to paper and then altered by either changing the color palette or adding words to the background.

The brief is asking that all infringing works be turned over to the estate and that all profits derived from the infringing works be awarded to the estate. Additionally, its asking that any damages, attorneys’ fees and costs related to the trial be reimbursed.

This isn’t the first time Guetta has been accused of infringing on a photographer’s copyright. In June 2011, a federal judge ruled in favor of photographer Glen E. Friedman, who claimed that his image of hip-hop group Run-DMC was used as the basis of several works by Guetta. A settlement with Friedman has been reached, but the terms were not disclosed.

Additionally, Guetta has another copyright claim pending from photographer Dennis Morris. While Guetta admitted he did use Morris’s photo of Sex Pistol’s bassist Sid Vicious in derivative works of art, he claimed he did not know it was a copyrighted image. The two parties are currently working on a settlement agreement.

Neither Guetta nor Google responded immediately to a request for comment.

Update 4/27/12: Jim Prosser, manager global communications and public affairs for Google, responded to our request for comment by stating that Google has not received a copy of the complaint yet and therefore he cannot comment on it.

Correction: An earlier version of this post incorrectly stated that Sid Vicious was the drummer for the Sex Pistols. The text has been corrected.

Related Articles:

Judge Rules for Photog In Copyright Suit Over RUN DMC Photo

A federal court judge in Chicago has refused a textbook publisher’s request to dismiss a photographer’s claim of massive copyright infringement, saying Robert Frerck’s allegations that Pearson Education infringed about 4,000 of his photographs “are sufficient to put Pearson on notice.” The decision is likely to force the company to do what it has been trying to avoid: divulge its records so Frerck is able to identify all unauthorized uses of his images.

Frerck filed suit last August, and said he licensed the publisher usage rights to various photos between 1992 and 2010. He says the licenses were limited by the number of copies, distribution are, language, duration, and media (print or electronic.)

Frerck alleges that the uses often exceeded the license terms, and that the unauthorized uses weren’t an innocent administrative oversight. “Pearson often knew, from its pre-publication plans and its experience with prior editions, that its actual uses under the licenses would exceed the permission it was requesting and paying for,” Frerck asserts in his claim.

In addition, he claims, the publisher used some photographs with no license at all. Frerck says he doesn’t know the extent of those unauthorized uses, but asserts that “Pearson has created, or easily could create, a list of its wholly unlicensed uses” during the discovery process of the case.

He alleges that two Pearson Curriculum Group employees–Julie Orr, Image Manager, Rights and Permissions and Maureen Griffin, Photo Commissions Editor– have already testified that the company has printed textbooks in excess of photo license limits, and used images in some instances without permission.

“Pearson’s business model, built on a foundation of pervasive and willful copyright infringement, deprived Plaintiff and thousands of other visual art licensors of their rightful compensation and unjustly enriched Pearson with outlandish profits in the process,” Pearson alleged in his complaint.

Frerck’s claim is one of many filed against textbook publishers in recent years for unauthorized use of images, and uses far beyond the limits of usage licenses. Frerck cites claims by ten other photographers and stock agencies–including Norbert Wu, Louis Psihoyos, Grant Heilman Photography, DRK Photo, Pacific Stock and others–that are currently pending against Pearson.

Anticipating Pearson’s response, Frerck alleged in his own claim that the publisher’s strategy for getting claims dismissed is to argue that copyright owners can sue only for infringements for which they can provide evidence at the time they file their claims. And that’s exactly how Pearson sought to have Frerck’s claim dismissed. But Pearson hides its infringements from copyright owners, Frerck argues, so copyright owners can’t produce evidence unless a claim is allowed to go forward, forcing Pearson to divulge its records of image use. Judge Robert M. Dow, Jr. agreed, saying Frerck provided enough evidence of specific infringement to make all of his claims “plausible.” (Civil Action No. 1:11-cv-5319)

Related:
After Flouting Print Run Limits, Publishers Face Dozens of Lawsuits

Music producer Quincy Jones has filed court papers denying that he infringed photographer Michael D. Jones’s copyrights when he used a portrait (shown at right) the photographer had shot in 1995.

The music producer says the photographer shot the disputed image on a work-for-hire basis, and therefore doesn’t own the copyright. Quincy Jones also says that even if Michael Jones does own the copyright, the photographer transferred rights to the image for use by Quincy Jones and other defendants.

The photograph, showing Quincy Jones at a recording session, appeared in ads for a line of audio headphones. Michael Jones says he provided an 8×10 print to Quincy Jones, who allegedly provided it to Harman International, the headphone manufacturer, without the photographer’s permission. The image also appeared in a music book.

Harman International, which is a co-defendant in the case, has also denied Michael Jones’s copyright infringement allegations on the grounds that the images were works for hire.

The defendants have yet to produce a work-for-hire agreement signed by the photographer. Without that, they may have to prove that the photographer’s working conditions amounted to a work-for-hire arrangement. Quincy Jones has hinted that he will try to do that by asserting that Michael Jones was “paid in full” for his services, and that he did the work with photographic equipment supplied by the Los Angeles recording studio that allegedly hired him.

The studio, Qwest Records, was a joint venture between Quincy Jones and Warner Brothers Records.

Michael Jones has alleged that he was not paid in full for the 1995 shoot because he refused at the time to sign away his rights to the images. He has also alleged that representatives for Qwest tried to “strong-arm” him in 2010 to accept $6,500 for all rights to the disputed image. The photographer says he refused, but Quincy Jones–and Harman–say that Michael Jones accepted the offer. Quincy Jones also denies that Qwest representatives “attempted to strongarm” the photographer.

A court date has not been set.

Related:
Quincy Jones Co-Defendant Denies Copyright Infringement Claim
Photog Sues Quincy Jones for Infringement, Says He Was “Strong-Armed”

©Michael D. Jones. The photographer says this portrait of Quincy Jones, shot in 1995, was recently used without permission in ads for audio headphones and other applications.

A co-defendant in the copyright infringement case against celebrity music producer Quincy Jones has denied the infringement claims, which were filed in February by Los Angeles photographer Michael D. Jones.

Harman International, which allegedly used a portrait of Quincy Jones without the photographer’s permission to promote a line of its audio headphones, says that Michael Jones shot the portrait under work-for-hire terms. Therefore, the photographer doesn’t own the copyright to the images and can’t claim infringement, Harman says. (The company has yet to produce evidence of a work-for-hire agreement, however.)

Harman adds that even if Michael Jones does own the copyrights to the image, he transferred those rights to Harman. As evidence of that, Harman points to a rights transfer contract drafted by its attorneys, but Michael Jones’ signature is conspicuously absent from that contract.  For good measure, Harman says its use of the portrait was “fair use,” so Michael Jones’s permission wasn’t required.

“Any and all uses that it made of any such photographic images were authorized, lawful and not infringing of any alleged rights,” Harman asserts repeatedly.

Harman says it is responding to the claims only for itself, not Quincy Jones or the other defendants, including music publisher Hal Leonard Corporation, which also used the portrait.

But Harman’s response presages those of the other defendants, and the dispute is likely to boil down to two questions: whether Michael Jones photographed Quincy Jones under a work-for-hire arrangement, and if not, whether Michael Jones subsequently transferred usage rights to the defendants.

Michael Jones says he shot the images in 1995 during several sessions at Qwest Records. He provided Quincy Jones with some 8×10 prints, but alleges he was not paid for shooting the last two studio sessions because he refused at the time to sign over his rights to the images.

Years later, in 2010, a Qwest Records executive allegedly offered Michael Jones $5,000 for what amounted to a copyright transfer of one of the images so Harman could use it to promote a line of audio headphones endorsed by Quincy Jones. The photographer says he demanded $10,000 for a license, and that he subsequently refused a counter-offer of $6,500. Allegedly without any license agreement, Harman ended up using the images anyway.

A court date has not been set.

Related:
Photog Sues Quincy Jones for Infringement, Says He Was “Strong-Armed”

Artist's rendering of the billboard Madalyn Ruggiero attempted to put up for six weeks in West Hollywood.

Television personality and talk show host Ellen Degeneres—and her show’s lawyers—were not amused by an Ohio freelance photographer’s recent publicity stunt, and their legal action has cost the photographer thousands of dollars.

Photographer Madalyn Ruggiero created a small business by putting costumes on her dog, Denali, photographing him, then selling greeting cards bearing the images. Buoyed by the success of her cards and Denali’s 27,000+ Facebook fans, Ruggiero bought billboard space in West Hollywood in an attempt to get Ellen Degeneres to put Denali on her TV talk show. “Ellen,” the billboard read, “Denali the dog wants to meet you!”

Just days after the billboard went up on February 13, the show’s lawyers ordered the billboard company to take it down because, they argued, it traded on Degeneres’s name and likeness (Ruggiero dressed Denali up to look like Degeneres for the billboard).

Ruggiero says that the billboard company’s lawyers sought and received approval from Warner Brothers, which owns and produces Degeneres’ show, prior to putting up the billboard. The ad should have been displayed for six weeks but was up for only a few days.

“I was shocked and confused why my harmless billboard was removed,” Ruggiero says. “When I spoke with the billboard company they were very cold and told me nothing.”

The LA Times, Today Show and MSNBC have all published stories about Ruggiero’s run-in with Degeneres’ lawyers.

“I meant no harm with my billboard,” Ruggiero explains. “I am disappointed and confused. Denali is getting old and I thought trying to get Denali on Ellen’s would be fun. I always thought she was a huge dog lover, but I was mistaken.”

Now Ruggiero is out thousands of dollars for a publicity stunt gone awry. Should Ruggiero have known better? Maybe. Should we be surprised that Degeneres responded with legal threats rather than a sense of humor? Probably not.