Ethical and Legal Concerns in a Digital World


David and Goliath in the Media World

Posted in ethical issues,general concerns,legal issues by digitalprof on January 6, 2006

A Freelance Photographer Wins A Major Ruling against A Media Giant:Right(s) Win-Out

In light of the current onslaught on author’s rights as evidenced by the GOOGLE Library Project, and the continuing mis-appropriation of photographers work by publications and websites worldwide, a photographer from Tennessee has recently established a groundbreaking precedent in a case against a “flagship” newspaper in Northern California.

Photographer Christopher R. Harris, a professor in the College of Mass Communication at Middle Tennessee State University, Murfreesboro, TN filed suit when he discovered that a photo of Southern author Walker Percy, that he had shot originally while on assignment for Esquire Magazine, was used in a book review by the (San Jose) Mercury News. What was most troubling to Harris was that he had never been contacted by the Mercury News for rights to use the image, and was never paid for any such use. Additionally, the Mercury News had removed his copyright notice from his photo credit when they published the “pirated” photo, thus possibly violating an aspect of the Digital Millenieum Copyright Act under Federal Copyright statutes.

Harris, who still leases stock photos from his collection of images shot over a 25-year career, derives part of income from such leases. Professor Harris is well know for his long-term work with the New York Times, TIME, Newsweek and other national and international publications.

He was one of the first photographers to work with GAMMA/Liaison photo agency, with offices in New York and Paris. Due to the agency’s international scope of representation, the distribution of his many stories, and assignments by GAMMA/Liaison led to his work appearing in literally hundreds of publications worldwide.

Confronted with the legal dilemma of someone “pirating” his work Harris then hired the Silicon Valley law firm Tech & Trial Law Group. Robert Spanner and Susan Kalra , known experts in intellectual property, were attorneys in this suit.

At a hearing on this case in mid-Summer 2005 Judge Breyer hinted that this could be an important case in author/photographer rights. Judge Breyer stated for the record that,

“On the one hand, this case looks like a very small case. I don’t know whether the copyright fee would have been 50 bucks or a hundred bucks, or whatever it is. I don’t know, but it’s not a large amount. So I must believe that what is at stake here is the principle of whether a newspaper writer can take a photograph from a book and publish it without permission of the copyright holder, and I guess there’s sort of a further – there’s some further arguments as to in publishing the photograph, the copyright notice was eliminated, cropped.” (emphasis added)

In its later motion for summary judgment the Mercury News introduced evidence that its practice of accompanying book reviews with copyrighted photographs taken from the book being reviewed was common to other metropolitan newspapers (The Los Angeles Times, The Philadelphia Inquirer and others) throughout the country, and that the practice was legal under the “fair use” defense.

That motion was denied in a ruling by, Northern District of California (9ThDistrict) Judge Charles Breyer on January 2, 2006:

“Defendant argues that use of the photo was the equivalent of a pictorial quotation from the book and similarly falls under the fair use exception. Yet the photograph was obviously marked as a copyrighted photograph in the book, both on the page the photograph appeared and then again in the credits in the back of the book. In other words, the photograph was a copyrighted work within a copyrighted work. … As a result, the Court cannot say as a matter of law that use of a copyrighted photograph in a book review, in which the book clearly states that the photograph is copyrighted, constitutes fair use. Accordingly, defendant’s motion for summary judgment is DENIED. (emphasis added)

In plain English, Judge Breyer ruled that no one could successfully claim “fair use” if the claim contained copying copyrighted photographs. The exclusive rights to those copyrighted photographs resides with the copyright holder,i.e., in most cases the photographer.

According to Robert A. Spanner, lead counsel for the plaintiff,

“a photographer’s right to limit distribution and reproduction of his or her copyrighted photographs is a fundamental tenet of copyright law, and the notion that a newspaper can override that right and freely reproduce and distribute – without a license and for free – photographs which the photographer had licensed to a book publisher for a fee, would obviously be a matter of grave concern to the photographers’ profession. Mr. Harris stood up for the rights of his fellow photographers because he believed it was the right thing to do, and we are gratified that his efforts have been vindicated.”

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2 Responses to 'David and Goliath in the Media World'

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  1. Lile Elam said,

    This is a really interesting case and will be an important one for
    all artists in reguards to protection of ones’ art..

    It is actually going on up in San Francisco this week up in the
    9th Districk Court there.

    Am hoping that good things come from this.

    -lile

    http://www.art.net/lile

  2. Lile Elam said,

    Yesterday, this case ended and I, as an artist, am troubled by the outcome.

    After just 45 minutes of consideration, the jury came to the conclusion that the use of this artist’s work by the SJ Mercury News was “fair use”.

    The work that was in question was a photo that was copyrighted by the artist and this news paper published the photo without the artist’s permission or consent. The photo was printed in a book that the paper reviewed. And they took the image internal to the book and published it with the book review in their paper. The copyright that went with the photo was removed when printed in the paper. And no mention of the photo or it’s subject matter was made in the review.

    When the artist confronted the paper, they said that they were unwilling to compensate the artist and suggested that the artist “sue” them if he wanted to persue the matter. So he did just that!

    All artists should be aware and concerned about the outcome of this case. The courts have sent a clear message that copyrights do not protect an artists published works.

    This will most likely cause artists to be less willing to share their art
    in a public medium such as books and websites on the Internet.

    -lile

    Webmaster of Art.Net
    http://www.art.net
    lile @ art . net


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