Photographers have not only been “Royally Robbed,” but the British government has violated their human rights, according to a UK group called stop43.org.uk. Photo trade groups in the US, including NPPA, ASMP, PPA, APA and PACA have predicted “a firestorm of international litigation.”

The cause of all the fuss? Changes in UK law that pave the way for regulations under which publishers and others can use orphan works–ie, photographs and other works for which the copyright owner cannot be identified or located–without violating copyright. The changes to the law also enable the British government to establish a central registry and licensing agency for visual works, analagous to the musical licensing agencies ASCAP and BMI.

The changes are part of the so-called Enterprise and Regulatory Reform Act, which provides a framework but few details of how the UK’s orphan works law and copyright registry might work.  The British government is expected to issue detailed regulations this fall. Meanwhile, the government says its intent is to make the licensing of intellectual property more efficient in the digital age, and that it will protect the interests of copyright holders at the same time.

Absent the details about how the law will work, however, photographers and other copyright holders are left to speculate on the actual consequences of the new laws. Reactions among photographers (and their trade groups) range from wariness to outrage.

“I’m not terribly worried at all” about the orphan works provision of the new law, says David Hoffman of Editorial Photographers UK. “It’s annoying there’s so much confusion, hysteria and anger about that.

“I’m much more concerned about [the collective licensing provision]. It takes control away” from photographers over who may license their images, for what purposes, and for how much. “But what control do I have anyway?” Hoffman adds, explaining that thousands of his images are used illegally. He estimates he loses tens of thousands of dollars’ worth of licensing fees each year as a result.

Paul Ellis of stop43.org also dismisses the orphan works part of the legislation as a “red herring.” Users of orphan works are likely to have to show that they searched diligently for the copyright owner of the work, and the government will still collect a fee for the use in case the rights holder ever steps forward. Ellis predicts almost nobody will bother licensing orphaned photographs.

“The system will be costly to use,” once licensing, search and administrative costs are added up, he says. “And if the costs of acquiring orphan works licenses are higher than a normal license fee, you’ve built an incentive to infringe.” (Courts in the UK award little more than a normal license fee for infringement, if an image owner bothers to sue and win, he notes.)

Ellis is far more enraged about the proposed registry, called an extended rights collective. The idea behind that is that the government would set prices for lots of small commercial and editorial uses of images, collect fees for those uses, and disburse the payments to copyright holders, provided they register. Ellis points out that anyone who doesn’t register won’t get paid. And although copyright holders may be able to opt out of the system, it might be a difficult to do that.

“The effect of this will be to drive down prices, and drive value out of creators’ pockets,” Ellis predicts. But there’s a bigger principle at stake, he says. “It utterly breaches the conception that the owners of property have the exclusive right to exploit that property. If you punch a hole in that principle, you’re on very shaky ground.

“Extended collective licensing is an arbitrary deprivation of property. The government is confiscating property,” Ellis says, asserting that it amounts to a human rights violation under international law, which he says guarantees “the right to peaceable enjoyment of your property.”

The major photo trade associations in the US, along with the Graphic Artists Guild, sent a letter last fall to UK officials objecting to the new laws on the grounds that images by US copyright holders would be swept up in the UK licensing system–and used in violation of international treaties as a result.

ASMP executive director Eugene Mopsik, who was one of the letter’s signatories, says of the UK’s new orphan works law: “It’s not the end of the world, but there are significant concerns,” although he adds that it is difficult to predict the effects of rules that haven’t been written yet. He agrees that the issues of orphan works and widespread theft of images online are issues that governments have to address. But he says, “The devil is in the details.”

Mopsik says metadata is easily stripped from digital image files, so under orphan works laws, photographers can easily lose control of their intellectual property through no fault of their own. Their work can be used in ways they find objectionable, and unauthorized uses can undercut their markets–and their income, he says.

But he says ASMP is not opposed to orphan works laws provided that photographers are given certain protections, including the exclusion of any commercial uses under orphan works legislation, requirements that users search diligently enough for copyright holders, and requirements that users post notice of their intent to use an image–so photographers have a chance to learn if their images are about to be classified as orphan works.

How good or bad it the orphan works law ends up being for photographers, Mopsik says, depends upon how lawmakers define terms like commercial use and diligent search.

Jeff Sedlik, co-founder, president and CEO of the PLUS Coalition, is also opposed to collective licensing systems that are opt-out (like the UK system seems to be) rather than opt-in. But he believes it is incumbent upon copyright holders to register their works, in order to prevent those works from becoming orphans because the metadata is inevitably stripped away. But the registry must be centralized–or consist of registries in different countries that are all connected together and searchable at once–in order to effectively protect copyright, he says.

A French magazine could be shut down and a photographer sent to jail over the publication last year of photographs of Britain’s Prince William and his wife, Kate Middleton, sunbathing while on vacation in France. The magazine, called Closer, published topless images of Middleton that were allegedly shot by photographer Valerie Suau.

French authorities are investigating the publication of the photos, which may have been a violation of French law. If charged and convicted of violating the royal couple’s privacy, Suau faces up to one year in jail and a fine up to 45,000 euros (about $60,000). Closer could be shuttered for as long as five years.

Prosecutors are also investigating Suau’s employer, a French newspaper called La Provence, which published some of the sunbathing images, although none showed Middleton topless.

The royal couple had been sunbathing on private property when Suau allegedly photographed them. The publishers of Closer have said in their defense that the images were shot from a public road.

After the images appeared in France, authorities there ordered Closer not to publish any more of them. But the images appeared in other European publications.

The suppression of the images in France and ensuing investigations reflect that country’s strict privacy laws, which bar the publication of photographs of individuals without their permission–even if the photographs are shot in a public place.

The royal family has invoked the death of Prince William’s mother–Princess Diana–to stir outrage over the sunbathing photos. The photos, according to an official statement from the royal family, are “reminiscent of the worst excesses of the press and paparazzi during the life of Diana, Princess of Wales.”

Princess Diana  died in a car crash in Paris in 1997. Several paparazzi and news photographers on motorcycles were chasing the car she was riding in when it crashed. Although the driver of the car was later found to have been drunk, and manslaughter charges against the photographers were dropped after an investigation, many people still blame them for the princess’s death.

Three of the photographers were eventually found guilty of violating France’s privacy laws because they photographed Princess Diana and her companion, Dodi Al Fayed, inside the car after the accident. Those photographers were ordered to pay a symbolic fine of one euro each.

A federal appeals court has ruled that artist Richard Prince did not infringe photographer Patrick Cariou’s copyrights by reproducing several dozen of Cariou’s images without permission. The appeals court said 25 out of 30 works by Prince at the center of the dispute made fair use of Cariou’s photographs.

The decision reversed a lower court ruling that held Prince liable for infringement.

Click here for the full story.

Intent on making a quick buck from the Boston Marathon bombing, a self-publisher allegedly offered an e-book full of stolen news photos for sale on Amazon.com, titled “The Boston Bombings First Photos.”

The NPPA reported yesterday that the book, published by a man identified as Steve Goldstein, included more than 60 images used without permission from The Associated Press, Getty Images and The New York Times. Goldstein was charging $7.99 per download.

Amazon has removed the book, apparently in response to Digital Millennium Copyright Act (DMCA) take-down notices from copyright holders.

According to the NPPA report, a New York Times attorney sent a cease-and-desist letter to Goldstein. In his response, Goldstein wrote, “We will stop using the photos that you mention. Sorry for the use without permission.”

For more details, see the NPPA report.

American Photographic Artists (APA) and the National Press Photographers Association (NPPA) announced today that they are joining an ongoing class action lawsuit against Google, alleging that the Google Books Search program is a violation of the copyrights of photographers and other visual artists.

Under the Google Books Search program, Google has been working with several libraries to scan books and periodicals and make the content available through search engine results. But a group of plaintiffs–including photographers and photo trade associations–filed a class action lawsuit in 2010 to stop Google from copying, scanning or displaying copyrighted photos and other visuals in printed publications without permission.

“I feel it is the NPPA’s responsibility to protect that principle of ownership, and not allow companies like Google to infringe upon our rights uncontested,” NPPA president Mike Borland said in a statement issued today by NPPA.

The lawsuit was spearheaded by American Society of Media Photographers (ASMP). Other lead plaintiffs include the Graphic Artists Guild, Picture Archive Council of America (PACA), Professional Photographers of America (PPA), the North American Nature Photography Association (NANPA), and a number of individual photographers.

ASMP said when it filed the lawsuit that the goal is to make sure photographers are “fairly and reasonably compensated” when their works are distributed through Google search results.

In joining the lawsuit, APA national president Theresa Raffetto said in a prepared statement: “Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs.”

©Kristina Hill

A New York wedding photographer and a New Jersey gay couple who are jointly suing an anti-gay group for unauthorized use of an engagement photo (shown at right) are now going after a Colorado gun rights advocate, too.

The Denver Post reports that attorneys for the gay couple, Brian Edwards and Thomas Privitere, have filed papers in a Colorado federal court to add Dudley Brown and two gun groups–Rocky Mountain Gun Owners and the National Association for Gun Rights–to their lawsuit.

Edwards and Privitere, along with photographer Kristina Hill, sued a Virginia-based group called Public Advocate of the United States (PAUS) last year for unauthorized use of Hill’s engagement photo of the couple in political attack ads (shown below). The ads, distributed as campaign mailers in Colorado, were part of an effort to unseat candidates who had supported a push for same-sex unions in the state.

During the discovery process in the case against PAUS, the plaintiffs learned from e-mail records that Dudley Brown was behind the mailers, and that he worked with PAUS to distribute them, according to the Denver Post report. Brown is founder and executive director of Rocky Mountain Gun Owners, and executive VP of the National Association for Gun Rights. He allegedly used e-mail accounts associated with both organizations to correspond with PAUS about the campaign mailers.

The Denver Post report quotes one e-mail in which Dudley told PAUS: “What I propose is that [PAUS] pay for mailing. … My staff and I would do all the work, but we’d want [PAUS] to sign off, put its name on the dotted line, and pay for the mailings. I would counsel mailing slick and glossies, with the ‘two men kissing’ photo.”

The plaintiffs are charging infringement of Hill’s copyright and unlawful appropriation of the likenesses of Edwards and Privitere.

Related:
Anti-Gay Group Sued for Unauthorized Use of Photo in Attack Ads

Anti-Gay Group Pleads Fair Use, Free Speech in Infringement Case

Christopher Sharp (frame grab from ACLU video)

A federal court has smacked down attempts by the Baltimore City Police Department (BPD) to harass and intimidate a photographer who is suing the department. The photographer is suing over civil rights violations, because police stopped him for photographing a public arrest.

Christopher Sharp won a protective order in US District Court in Maryland last month, barring the BPD from pursuing a “witch hunt” into his past. Sharp has charged the BPD with violating his constitutional rights when officers confiscated his cell phone and erased a video he’d made of police making the arrest in 2010.

In defending against Sharp’s claims, the BPD requested old drug test results, cell phone records, and employment records. The BPD also interviewed his ex-wife’s boyfriend and mother.

Police said their requests for drug test results (which were from 2007), and other information about Sharp were meant to establish Sharp’s competency and credibility as a witness.

Sharp told the court he believes the police inquiries are meant to embarrass him, and to get him to drop his claims.

The court agreed with Sharp, and issued an order against BPD’s evidence requests. “The rules of discovery do not sanction a broad sweep into the lives of parties–a veritable witch hunt–in hopes of uncovering some ‘dirt,’” the judge wrote in her order.

Of the BPD request for the drug test results in particular, the judge wrote,  “Even if the hair follicle test indicated that there were drugs in the plaintiff’s system in 2007–some three years before the subject incident, the court fails to see the relevance [to the civil rights case at hand], but certainly sees that such a request could be viewed as an attempt to intimidate.”

She said the phone records and employment records were also irrelevant to the case.

With regard to police interviews of Sharp’s ex-wife’s boyfriend and mother, the judge explained in court papers that normally such interviews by police are acceptable. But because police attorneys had interrogated Sharp “to the point of harassment,”  the judge expressed concern that police would “overstep the bounds of zealous defense” in other interviews. For that reason, the judge ordered the BPD and its attorneys to seek court permission before interviewing any third parties as part of their investigation of Sharp’s claims.

Sharp alleges in his lawsuit that the BPD violated his First Amendment right to record the police in public. He also alleges violation of his Fourth and Fourteenth amendment protections against unlawful search and seizure and deprivation of property without due process.

Previously, he won resounding support for his claims from the US Department of Justice, which opposed efforts by the BPD to have Sharp’s claims thrown out of court. The DOJ also provided the BPD with a written blueprint for changing its policies, explaining to the BPD that citizens have a constitutional right to record police carrying out their public duties, and that it is illegal for police to seize and delete the recordings.

A trial date for Sharp’s case has not been set.

Related:
Department of Justice Warns Police Against Violating Photographers’ Rights

In what appears to be a tit for tat legal action in a messy business divorce, celebrity and pop art photographer David LaChapelle has been hit with a $75 million lawsuit by the former manager he sued last year for about $3.5 million.

Fred Torres, who managed LaChapelle’s relationships with clients, galleries and museums until last fall, alleges that the photographer breached their photographer/agent agreement, stole Torres’s customer lists, and is refusing to pay millions of dollars in expenses and commissions due to Torres.

Torres filed his lawsuit March 27 in state supreme court in Manhattan.

He alleges that LaChapelle fired him without notice, destroying Torres’s reputation and business in the process. Torres claims that he’s owed more than $5 million in expenses for printing LaChapelle’s work for exhibitions and print sales, and upwards of $20 million in past and future commissions for exhibition contracts and print sales that he brokered.

Torres also claims that LaChapelle surreptitiously hired away Torres’s employees in order to help him (LaChapelle) steal Torres customers lists and other proprietary data. Torres values the stolen information at $40-50 million.

“In or about mid-2012, the photographer defendants created a plan to try to steal [Torres's] extensive share of proceeds and steal its business,” Torres says in the lawsuit.

In addition to naming LaChapelle as a defendant, Torres also names the Paul Kasmin Gallery, which is LaChapelle’s new exclusive agent, and the former employees who allegedly conspired with LaChapele to steal customers lists and stored prints.

Torres is seeking $55 million in damages from the Paul Kasmin Gallery.

The damage claims include punitive damage, because the alleged actions of the defendants were “the product of malice, ill will, and spite,” Torres says in court papers.

Torres says in his lawsuit that he dated LaChapelle in the 1990s, after which they continued a business relationship. In 2008, when Torres opened a gallery and began representing works by other photographers, too, he and LaChapelle signed a brief written agreement to formalize their business relationship.

LaChapelle claimed in his lawsuit against Torres late last year that Torres was withholding $2.8 million owed to LaChapelle for sales of his prints. He also alleged that Torres owed him $755,000 worth of personal loans, and that Torres was refusing to return 800 exhibitions prints that were stashed in storage facilities around the world.

LaChapelle’s claim against Torres is still pending, and the photographer has not yet responded to Torres’s counter-claim.

Related:
David LaChapelle Sues Former Manager
David LaChapelle Sued for $3 Million by Former Gallerist
Rihanna Settles Copyright Lawsuit with David LaChapelle
PPE 2012: David LaChapelle Gets Personal

Shortly after we published our Lighting issue, in which we featured Cade Martin’s use of HMI lights to shoot the Starbuck’s Tazo tea campaign, photographer Rodney Smith cried foul. He sent us an e-mail saying that many people had contacted him to say they thought Martin’s work, including the image we ran on our cover, copied Smith’s work.

Smith directed us to a post on his blog in which he had written, “What I’m really not sure about, is why someone would applaud or even hire a vision that is by it’s [sic] very nature ‘second-rate.’” Smith didn’t name Martin or PDN specifically, but his blog post went on to say: “I realize that there is always much in life to imitate and the urge to do so is enormous, yet I also realize that to be original one has to look deep within themselves and find what no one else can copy, a very private voice.” The post appears with an image by Smith of a woman sitting in a fancy house in streams of sunlight, surrounded by teacups.

Smith also told PDN that Starbucks had contacted him about shooting for the campaign, though he couldn’t remember when.

The question Smith seems to be posing on his blog is: How could PDN have featured work that shares similar propping and subject matter as an image created previously? The answer is: We hadn’t seen Smith’s image. We know a lot of Smith’s black-and-white work, but hadn’t seen—or at least didn’t remember—the work that Martin’s resembles.  So, if we had see Smith’s images first, would we have asked Martin to explain the lighting techniques he used to create another model-with-teacups image?  Probably not.

In the plethora of images that surround us daily, we are constantly seeing projects, photo stories and campaigns that resemble works we’ve seen before. Comparison is inevitable, and we tend to privilege whichever example we saw first, and ignore the one we saw later. And at a time when ad agencies and clients are cautious of greenlighting any idea that isn’t tried and tested, photographers who manage to squeeze something fresh and inventive to their depiction of familiar themes and visual symbols are more likely to grab our attention.

We’re frequently sent pairs (or trios) of similar-looking photo projects by outraged readers who think they’re clear-cut examples of copyright infringement. But these similarities rarely rise to the legal definition of infringement, because the subject of a photograph isn’t protected by copyright law.  Recently an appeals court judged who ruled against a photographer in an infringement case expressed sympathy with “the frustration of photographers …whose works are afforded a limited copyright because they are comprised substantially of unprotected content.” As the Supreme Court has stated, “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”  Inventing new photographic material whole cloth, without reference or regard to the models of the past – from Rembrandt to the latest photography show – is nearly impossible in photography, and it would produce aridly self-referential work. The creativity of photographers who “build freely” on models from the past helps their work stand out, and push the medium forward.

Martin wouldn’t respond to our request for comment, beyond saying that he’s proud of his contribution to the campaign and the accolades it’s received. We appreciate that he gave so much time to sharing techniques and lighting advice, both with to and with our readers.

* Photos, above: © PDN/photo by Cade Martin (left); © Rodney Smith (right).

Related Article:

Lighting Recipe: Cade Martin’s Whimsical Advertising Work

Extortionletterinfo.com founder Matthew Chan

An author who was stalked and bullied online for her efforts to enforce her copyrights has won a permanent protective order against the perpetrator, Matthew Chan, who is also in the sights of stock photo agencies for thwarting their efforts to enforce photographers’ copyrights. The restraining order reflects an increasingly vitriolic tone and no-holds-barred personal attacks against copyright holders and their attorneys on Chan’s website, extortionletterinfo.com (aka ELI).

A Georgia state court judge issued the restraining order against Chan on February 28, at the request of Linda Ellis of Marietta, Georgia. Ellis writes and markets inspirational poetry, and is the author of several books. As a result of her efforts to protect her copyright by issuing demand letters to individuals and organizations who published her work without her permission, she was subject to attacks by Chan and his followers on the ELI website.

The court said Chan’s actions “placed the petitioner [Linda Ellis] in reasonable fear for [her] safety, because [Chan] contacted [Ellis] (and urged others to contact her) and posted personal information of the petitioner for the purpose of harassing and intimidating [her].” (more…)