A student photographer has been cleared in court of disorderly conduct charges stemming from his arrest in New York City at the scene of an Occupy march in January, the Associated Press reports. Separately, prosecutors in Seattle decided to drop charges against a photographer arrested for allegedly assaulting a police officer there during May Day protest, The Seattle Times reports.

Video from the scene of the arrests helped clear the photographers in both cases.

In New York, police accused New York University photography student Alexander Arbuckle of blocking traffic at an Occupy protest march on January 1. He maintained that he was photographing from the sidewalk at the time of his arrest. At trial, the judge dismissed the charges after Arbuckle’s defense attorneys showed a video by another journalist showing police massing near people on the sidewalk, and then arresting them, according to AP.

In the Seattle incident, photographer Joshua Garland was accused of grabbing and twisting the arm of a police officer at a May Day protest in downtown Seattle. The Seattle Times reports that prosecutors decided they couldn’t prove the charges against Garland after his defense attorney showed a video of the incident. According to that same report, the attorney pieced the video together from “video segments posted on YouTube by witnesses and other footage shot by a local television station.”

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.

Photographer Carlos Miller, owner of the Photography Is Not a Crime blog, has learned that the Miami-Dade Police Department is watching him like, well, police states watch dissidents, just looking for reasons to arrest him.

Miller, who has been a tireless critic of police harassment of journalists, was the only person arrested when police cleared the Occupy Miami encampment in January. He recorded his arrest on video, and although police tried to erase it, he later recovered the file and posted it on his blog.

The incident left Miller wondering not only why he was singled out among other journalists for arrest, but also why he was arrested after police had cleared the encampment, broken ranks and were leaving the scene.

It turns out Miller wasn’t just being paranoid. As a result of a Freedom of Information Act request by a citizen, Miller got his hands on internal police e-mails that  show they were on the lookout for him.

Miller recently reported: “Eleven hours before I was arrested during the Occupy Miami eviction in January, the Miami-Dade Police Homeland Security Bureau sent an email to various police officers [including the arresting officer]… It included my Facebook profile photo [and]…the following statement about me: Carlos Miller is a Miami multimedia journalist who has been arrested twice for taking pictures of law enforcement.  He has publicly posted on social networks that he will be taking pictures today in order to document the eviction.”

The e-mail doesn’t instruct officers to arrest Miller, but other e-mails among about 200 released in response to the FOIA request suggest the law enforcement officials are looking for reasons to haul him in. For instance, after Miller posted a picture of the officer who arrested him on his web site, the head of the Miam-Dade Police Department’s Homeland Security Bureau sent an e-mail to a subordinate asking her to look into whether the posting of a police officer’s picture violated any laws. (Miller obtained the photo from a police web site that’s accessible to the public.)

In another e-mail exchange, a police officer tells the officer who arrested Miller, “Carlos Miller is on his high horse again.  He continues to post negative statements regarding law enforcement.  I will continue to monitor for additional information.” The same officer wrote in another e-mail to the arresting officer, “This guy is targeting you and I believe he is trying to get some monetary gain as well as publicity.”

Police also went online to monitor a panel discussion Miller participated in, and ended up putting out another notice about him:  “Carlos Miller stated he intends to to attend the RNC in Tampa August 27-30, 2012 to record and document the event. Proper notifications will be made for situational awareness purposes.”

Apparently, Carlos Miller is being scheduled for another arrest for daring to hold police accountable to the First Amendment. Stay tuned.

Related:
After Arrest, Photog Recovers Deleted Video File and Vows to Sue Police
Other Police Intimidation Watch stories:
Photog Sues Long Island Police Department
Photog Agrees to Community Service for Trespassing on a Public Street
Journalists Detained for Being Present at a Chicago News Event
Beating a Photojournalist on a Lisbon Street

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

A lawsuit filed by a disgruntled business partner of late fashion and celebrity photographer Francesco Scavullo has cast a spotlight on a charitable foundation that he established prior to his death in 2004, raising questions about the condition of Scavullo’s archive and the foundation’s fulfillment of its obligations under Scavullo’s will. Court papers and IRS filings suggest the foundation–which was supposed to keep Scavullo’s legacy alive–has gone dormant.

Philadelphia-based Motion Picture Group, a marketing group established before Scavullo’s death to help the photographer promote and license his archives, has sued the New York-based Francesco Scavullo Foundation for breach of oral contract in federal court in Philadelphia. MPG is seeking more than $150,000 in compensation for marketing efforts that it says it undertook on behalf of the foundation under informal agreements prior to an acrimonious split earlier this year. (more…)

Freelance videographer Philip Datz has sued Suffolk County (New York) and one of its police officers in federal court for violation of his constitutional rights over an encounter last July that ended in Datz’s arrest. He is seeking unspecified damages, and a court order to bar the Suffolk County police from interfering with journalists.

Datz, who contributes to Stringer News Service to provide footage for local TV news broadcasts, was shooting the scene of an arrest of a criminal suspect on a public street in Bohemia, New York last July 29 when Sgt. Michael Milton approached Datz and repeatedly ordered him to “go away.” The scene took place in public view. Datz asked where he could continue filming, but Milton said “no place” and told Datz he would “get locked up” if he didn’t leave.

After Datz moved farther down the street and continued recording, Milton arrested him, allegedly injuring Datz’s shoulder in the process. According to the lawsuit, police handcuffed Datz to a desk at a police station, and held him for two hours before charging him with “obstructing governmental administration.”

Prosecutors dismissed the charges in August, Datz says in the lawsuit.

Datz recorded the encounter with Sgt. Milton on this video, which Datz says is unedited:

In his civil claim, filed today in US District Court in Manhattan, Datz claims that his arrest and detention “was not a rogue event. Suffolk County police officers have a longstanding and ongoing pattern of unlawfully interfering with the recording of police activity conducted in public view.” Datz cites more than a dozen other past incidents where police allegedly prevented him from making video recordings of police activity in public.

Datz alleges that Sergeant Milton violated his First Amendment right to record official police activity in a public location, his Fourth Amendment right protecting him from unlawful search and seizure of his property (namely his video recorder), and his Fourteenth Amendment protection against unlawful arrest.

Datz is asking the court to declare that his constitutional rights were, in fact, violated by Milton and Suffolk County. He is also compensatory and punitive damages, a court order barring the county from interfering with the rights of its citizens and press, and a court order to compel the police department to implement a First Amendment training policy for its police officers.

Datz filed suit with the support of the New York Civil Liberties Union and the National Press Photographers Association.

A spokesperson for the Suffolk County police department declined to comment about the lawsuit, citing a department policy against commenting on pending litigation.