The New York City police department has returned camera gear belonging to a freelance photographer who was arrested August 4 after refusing to stop photographing police activity on a public street.

Photographer Robert Stolarik got his camera equipment back on August 10, the National Press Photographers Association reported on its Web site. Stolarik told NPPA, “The next things for me will be getting the charges dropped and having my credentials returned to me.”

Stolarik was charged with obstruction and resisting arrest after police told him to stop taking pictures at the scene of a street altercation. Solarik was on assignment at time for The New York Times. He identified himself to police as a journalist, and continued taking pictures.

He was then arrested and held overnight. NPPA and The New York Times protested Stolarik’s arrest as an act of intimidation–and a violation of his civil rights.

According to NPPA, New York Times attorney George Freeman is calling on the NYPD to “objectively investigate” Stolarik’s arrest. “We are fully confident that if they look at the facts, they will find that the officers who blocked, intimidated and assaulted Mr. Stolarik acted inappropriately and violated NYPD guidelines,” Freeman told NPPA.

Related story:
Police Intimidation Watch: NYPD Arrests Times Freelancer

Starting this week, web sites that have received high numbers of removal notices for unauthorized use of copyrighted content will rank lower in Google’s search results, the search engine giant announced on its Inside Search blog on Friday.

Because Google is the number one search engine, this could result in lower traffic for sites that regularly post copyrighted material without authorization. “Sites with high numbers of removal notices may appear lower in our results,” according to the post by Amit Singhal, Google Fellow and the Senior VP of Engineering.

As The New York Times Media Decoder column notes, Google’s new ranking system will only take into account valid copyright-removal notices sent to Google by copyright holders themselves.

To learn how to inform Google about a copyright infringement on any Google product (including its image search, web search, Google + and YouTube), visit the Google support page titled Removing Content from Google.

Google’s blog also reports that the company now receives copyright removal notices for over 4.3 million URLs a month. That’s as many notices as it received in all of 2009.  However, these notices come from just 1,636 copyright owners (check out this chart on Search Engine Journal). Most of the notices are coming from large media companies holding many copyrights.

©Thomas Barbèy. “Rhinal Congestion”

Muench Photography and Mountain Light Photography have filed a copyright infringement claim against a Las Vegas-based photomontage artist for unauthorized use of two of their photographs.

The artist, Thomas Barbèy, creates surrealistic photomontages. According to his Tumblr page, he uses  images that he shoots on his travels all over the world. He claims inspiration from René Magritte, M.C. Escher, and Roger Dean, and says, “I’m constantly asked about how I do [the montages], I would like to think that the pictures can be appreciated without any real knowledge of their technical virtuosity. The visionary inspiration and imagination is not a technical skill learned in school but rather to my personal belief a gift from God.”

And theft of other people’s photographs, allegedly.

©Muench Photography. “El Capitan in Winter, Yosemite National Park”

“He claimed he took all of these images himself, and he clearly doesn’t,” says Marc Muench, one of the plaintiffs, who is suing Barbèy in a federal court in Los Angeles.

“The claims in this lawsuit have no merit whatsoever,” says Barbèy’s attorney, Charles Harder.

According to the lawsuit, Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape) using an image by Muench called “El Capitan in Winter, Yosemite National Park.” Muench’s image appeared in 1993 in a book called National Parks of America (Graphic Arts Center Publishing Company). He also registered the image with the US Copyright Office that same year.

The lawsuit also alleges that Barbèy used a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” Rowell’s “Quadruple Falls” image was first published in 1997. Mountain Light registered the image with the US Copyright Office in 2009.

Barbèy sells his prints through his own gallery in Hawaii, as well as through an online retailer called Artifacts Gallery. “Pitcher Books” and “Rhinal Congestion” are priced at $1500 each on the Artifacts Gallery Web site.

Charles Harder says that his client’s use of the Muench and Mountain Light images is protected by “the legal doctrine of transformative use, as well as the doctrines of fair use and de minimis use.” The lawsuit tries to pre-empt a fair use defense by saying that Barbèy’s images do not “criticize, comment on, or otherwise refer the viewer to” the Muench  and Mountain Light photographs.

©Thomas Barbèy. “Pitcher Books”

Harder also says that the statute of limitations applies in this case. He is suggesting, in other words, that Muench and Mountain Light didn’t bring their claim to court soon enough, so it will be dismissed.

Harder says there were “very minimal sale of the works at issue, so even if there was liability (which there is not), damages would be nominal.”

That might be the case for the Mountain Light image, which was registered after the alleged infringement, making Mountain Light eligible for actual damages only. But the Muench image was registered prior to the alleged infringement. So if a court holds Barbèy liable for infringement, Muench would be eligible for statutory damages.

Mountain Light’s operations manager was not immediately available for comment.

©Mountain Light Photography. “Quadruple Falls at Dawn, Glacier National Park, Montana”

A freelance photographer on assignment for The New York Times was arrested in the Bronx on Saturday night, after police got angry at him for refusing to stop taking pictures of another arrest, the Times has reported.

Photographer Robert Stolarik was accompanying two reporters who were conducting street interviews when they came upon a street confrontation. A police officer at the scene reportedly told Stolarik to stop taking pictures. He identified himself as a journalist for The New York Times, and continued taking pictures. A second police officer came along and “slammed” Stolarik’s camera in to his face, according to the Times story.  When the photographer asked police for their badge numbers, they took his cameras, dragged him to the ground, and arrested him.

According to a police report cited by the Times, police said they had ordered the crowd and Stolarik to move back “numerous” times, and that Stolarik “violently resisted being handcuffed.”

Stolarik received scrapes and bruises during his arrest, but was otherwise uninjured, according to the Times. He was released after several hours. A court appearance is pending.

A lawyer for the Times said, “This is an incident where it seemed the photographer was doing his job taking photographs, and the police overacted and attempted to intimidate him and block him, leading to his arrest.”

Update: In an interview with New York Magazine, Stolarik says he’s out $20,000 in gear and materials, and that the NYPD’s claims that he hit a police officer with his camera is untrue. Trade associations and a journalism organization have taken up his cause. Read more here.

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Police Intimidation Watch: Deputies Rough Up Nevada News Photographer
Police Intimidation Watch: Mannie Garcia Files $500K Lawsuit for Unlawful Arrest

Renowned underwater photographer Wes Skiles died in a 2010 diving accident because of faulty breathing apparatus that the manufacturer knew was prone to failure, his widow Terri Skiles alleges in a lawsuit filed last week in Palm Beach County (Florida) circuit court. She is seeking unspecified damages.

Terri Skiles also alleges that the manufacturer conspired to destroy evidence of that failure. Because of that, she says she will have difficulty proving that the manufacturer, its suppliers, and a distributor are to blame for her husband’s death.

Wes Skiles, a regular contributor to National Geographic, died July 21, 2010 at the age of 53 while diving near Boynton Beach, Florida, about a mile offshore with three other divers.  The Palm Beach County Medical Examiner ruled several months later that Skiles’ death was an accidental drowning. “There was nothing to indicate natural causes or outside forces,” the medical examiner’s chief investigator told the Palm Beach Post in November, 2010.

When Skiles died, he was using an O2ptima FX rebreather apparatus that he had borrowed from another diver. Terri Skiles alleges in her lawsuit that “Due to an unexpected catastrophic failure of the subject O2ptima FX rebreather during the dive, Wesley Skiles passed out underwater and died.” She is suing the manufacturer, Dive Rite, an affiliated online retailer called Dive Rite Express and Mark Derrick, the owner of Dive Rite Express. Also named as defendants are two companies that supply critical electronic components that Dive Rite uses to make the O2ptima FX rebreather.

Dive Rite declined to comment.

To read the about Skiles’ other allegations and her lawsuit, visit PDNOnline.

Related stories:
Underwater Photographer Wes Skiles Dies on Shoot
Death of Underwater Photog Ruled Accidental

Arguing that its Google Books program makes fair use of copyrighted books by providing an indispensable public service, Google has asked a federal court to dismiss The Authors Guild’s claim that Google is infringing the copyrights of authors on a “massive” scale.

Google has scanned more than 12 million books–many of them still under copyright protection–as part of its Google Books program. Google indexes every word of the scanned books. It then makes snippets of the books available in search engine results, according to keywords entered by Google search engine users.

“Google’s use of books is fair because it provides vast public benefits without any demonstrated harm to plaintiffs,” Google asserts in its motion, filed in US District Court in New York City on July 27. (Emphasis is Google’s.)

The Authors Guild originally sued Google for copyright infringement in 2005, alleging the search engine company is scanning books without permission from authors for its own commercial gain. The guild says the Google Books program undermines the ability of authors to license and sell their books. It is seeking a court injunction to stop the Google Books program. The American Society of Media Photographers has filed a similar but separate lawsuit against Google in 2010.

In making its fair use argument, Google paints itself as a beleaguered public servant, prevented from advancing human knowledge by specious claims of copyright infringement.

“Google Books is an important advance on the card catalogue method of finding books,” the company says in its motion. “The advance is simply stated: unlike card catalogues, which are limited to a very small amount of bibliographic information, Google Books permits full-text search, identifying books that could never be found using even the most thorough card catalog. Readers benefit by being able to find relevant books. Authors benefit because their books can be more readily found, purchased, and read. The public benefits from the increase of knowledge that results.”

Google says that users cannot download the entire text of the books that show up in the search engine results. It only leads them to relevant books which they can purchase elsewhere if they wish.

The scanning and indexing of the books is fair use, Google argues, because the end use (thorough indexing of every word of every book) is “highly transformative”:  Google search engine users can search for information and get results showing snippets from all books containing the search terms. “Indeed, it is no overstatement to say that Google Books has transformed scholarly research,” the company says in its motion. “Google Books yields a literally unprecedented public benefit, and that benefit militates strongly in favor of a finding that Google’s scanning,indexing, and snippet display constitute fair use.”

Google does not mention that its apparent fit of civic virtue is driven by the potential to turn a profit by scanning and indexing the copyright works of authors. Those who use the Google Books index would effectively provide Google with personal information every time they did a search. That information could be sold to marketers, or used by Google to push highly targeted advertisements to Google search engine users.

But Google waves its hands to distract the court’s attention from all of that: “Google’s status as a commercial entity does not tip the scales against a finding of fair use…Much more significant is that a student or professor (or indeed anyone who finds a Library Project book on Google Books) is engaging in precisely the sort of use historically favored as noncommercial.”

Google and The Authors Guild had reached a tentative agreement in 2009 to settle the case. It would have allowed the Google Books program to continue if authors were allowed to opt out. But the judge in thee case rejected the agreement. He said the agreement would have to be ‘opt in’ for all authors (rather than opt out) in order to comply with copyright law.

Google has rejected an ‘opt in’ system as too cumbersome, so the Authors Guild suit has continued. The ASMP lawsuit is also pending.

Without commenting directly on Google’s motion, attorneys for The Authors Guild say they have filed their own motion for summary judgment. That motion is not yet available for public review, however.

Related stories:
Judge Block’s Google’s Divide-and-Conquer Strategy in Big Copyright Case
ASMP, Other Trade Groups Sue Google (subscription required)

Community service and a $500 fine for this phone throwing bad boy. ©It Books

A Louisiana  judge has ordered actor Russell Brand to perform 20 hours of community service and pay $500 in court costs for throwing a photographer’s iPhone through a plate glass window last spring, the Associated Press has reported. The community service is not specified, but could involve “charitable work with people suffering from additictions,” according to the report.

Brand allegedly snatched photographer Timothy Jackson’s iPhone and threw it through the window of a New Orleans law office as the photographer tried to take his picture last March. Brand was in New Orleans on a film shoot at the time.

Shortly after the incident, Brand made light of his actions on his Twitter feed with a post that said: “Since Steve Jobs died I cannot bear to see anyone use an iPhone irreverently, what I did was a tribute to his memory.”

Brand turned himself in to police after they put out a warrant for his arrest.

His attorney entered a plea of not guilty yesterday on charges of simple criminal damage to property. His attorney told the court that Brand was “harrassed,” according to the AP report.

The charges against Brand will be dropped if he completes the community service requirement by August 31, although it will not be supervised by the court. Instead, Brand’s attorney has told the court that he (the attorney) will provide proof to the court that Brand has completed the service.

Related stories:
Russell Brand Charged for Throwing Photog’s iPhone Through Window

Russell Brand Faces Arrest for Destroying Photog’s iPhone as Tribute to Steve Jobs

To settle a right-to-photograph lawsuit filed by an aspiring photojournalist and the ACLU, the Washington DC Metropolitan Police Department has issued a general order stating that “a bystander has the right under the First Amendment to observe and record [DC police officers] in the public discharge of their duties.”

The order instructs police not to interfere with anyone photographing police activity as long as the photographer is standing in a public setting or private facility where they have the right to be, and as long as they are not interfering with police activity.

The order also reminds police that still and video photography “of places, buildings, structures and events are common and lawful activities.” And it spells out the limited terms and conditions under which police can seize recordings for evidence.

For photographers and civil rights activists fighting what they perceive as a rising tide of police intimidation and interference against photographers nationwide, the order represents progress. It follows closely a blueprint for police policy to protect the rights of photographers that the US Department of Justice issued earlier this year.

The DOJ blueprint was directed at the Baltimore Police Department, which is being sued for unlawfully seizing, searching and deleting the contents of a citizen’s cell phone after he used it to record police officers making an arrest. The Baltimore Police Department subsequently issued an order declaring that citizens had the right to photograph police activity. But the DOJ said the Baltimore order didn’t go far enough to protect photographers’ (and citizens’) rights because it wasn’t specific enough.

The order issued last week by the Washington DC police department follows the DOJ blueprint almost to the letter, spelling out citizens’ constitutional rights, providing explanations and examples of legal activity and limited exceptions.

The lawsuit lodged against DC police was similar to the case in Baltimore. Jerome Vorus, a student and aspiring photojournalist, began photographing a traffic stop in the Georgetown neighborhood of DC in June, 2010. Police officers told him he was not allowed to photograph, and detained him for half an hour. With help from the ACLU, Vorus sued police for violating his rights. Vorus and the ACLU dropped the claim last week after police agreed to issue the order protecting the right of citizens who photograph the police.

The case in Baltimore, meanwhile, is still pending.

Related stories:
Department of Justice Warns Police Agains Violating Photographers’ Rights
Police Intimidation Watch: Mannie Garcia Files $500K Lawsuit for Unlawful Arrest
Police Intimidation Watch: Photographer Sues Long Island Police Department
Police Intimidation Watch: Boston to Pay $170K for Wrongful Arrest of Videographer

Give state prosecutors in Miami Dade County, Florida credit for moxie, if not for unintentional Orwellian humor.

Photojournalist and First Amendment activist Carlos Miller, who is facing charges for resisting arrest during a police raid on an Occupy encampment last January 31, says the Miami Dade County prosecutors have offered to drop charges against him–if he agrees to produce a video promoting the county.
(more…)

A federal appeals court has upheld a decision to dismiss a lawsuit against Corbis by actress Shirley Jones, who charged that the photo agency violated her rights of publicity by marketing images of her without permission. The appeals court also refused to vacate an award of attorney’s fees to Corbis totaling $357,533. The decision was handed down Monday by the US Court of Appeals for the Ninth Circuit in Pasadena, California.

Jones originally sued Corbis in November, 2010, arguing that by offering images of Jones for license on its web site, the agency was making commercial use of her likeness without her permission, in violation of California state law.

In throwing out Jones’s claim last year, a federal district court in Los Angeles signaled that celebrity photo agencies can carry on business as usual, without worry that celebrities can sue them for displaying images for license without consent. (Users of those images still have to get consent if they intend to use the images for commercial purposes, such as to promote products or services.)

“The district court found that Jones consented to Corbis’s placement of sample photographs of Jones on its web site for the purpose of selling copyright licenses to those images,” the appeals court wrote, on its way to affirming the decision from the lower court. “Jones admitted that she intended for the photographs at issue to be distributed to media outlets and was not surprised that the photographers would use a third party distributor. She also admitted that she had not placed limits on how such photographs could be distributed…Jones provides no reason why Corbis should have questioned her apparent consent to her photographs being distributed.”

The appeals court judges didn’t bother to address other defenses Corbis had raised before the district court–including First Amendment rights, Copyright Act pre-emption and public affairs exceptions to right of publicity–because Jones failed to prove Corbis distributed the red carpet images without her consent. In other words, Jones effectively gave Corbis consent, so the court did not have to consider other defenses that Cobis had raised.

When the district court originally dismissed Jones’ claim, the judge ordered her to pay the photo agency’s legal costs. Jones challenged the lower court’s award of $357,533, but the appeals court let the award stand, explaining that the photo agency’s accounting of its costs for defending against the actress’s claims were reasonable.

Related story:
Celebrity Smackdown: Walking the Red Carpet Is Consent, Judge Says