Friday, May 7, 2010

Corbis' Copyright Registrations - Images "Not Registered" Court Finds

In a stunning move, the US District Court for the Southern District of New York, in a lawsuit has found that not only is the methodology of how Corbis was registering the copyrights to images and their database flawed, but also the registration of images by Corbis, on behalf of photographers under its contract are invalid, in it's summary judgement grantied for the defendants, Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company, in the case Meunch Photography Inc, v. Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company (09-CV-2669) filed May 4, 2010.

The issue at hand is Corbis' methodology for registering images, which it has been handling the same way for almost every photographer, because the contractual language has been the same, for a very long time. The problem is, Corbis relied on direction not consistent with the statues and, it seems, in direct contradiction to the intent and spirit of the copyright registration procedures, when executing their registrations. Further, the US Copyright Office approved these flawed registrations, apparently, at the urging of Corbis.

Photographers contracts included the following language, as outlined on the court's order:

The agreements "grant to [Corbis] legal title in [Marc and David Muench's] images selected and digitized by Corbis and included in the Corbis digital collection solely for the purposes of copyright registration." Id. (emphasis in original).) After registration, Corbis agreed that it would "promptly reassign legal title to [Marc and David Muench] with respect to [their] registered original film images . . . "
If you are a Corbis contributor, and If that language looks familiar to you, then the court has also just set forth a path for every copyright registration that included your image(s) you submitted to Corbis to be invalidated. I first became aware of this issue when I viewed, first-hand, several Corbis registrations, which included images from hundreds of photographers, including the iconic black-and-white image of John F. Kennedy Jr saluting his fathers casket as it processed by, made back in 1963. I later learned from the Copyright Office that the justification for the inclusion of that image by Corbis was that it was an addition to a database, and that, further, certain things (retouching/dust-spotting/metadata/etc) were the justifications for the registration. From my perspective, these additions were deminimus to the creative content as a whole, and should not have been valid grounds for a registration, and I immediately was concerned for every Corbis photographer.
(Continued after the Jump)

We have been monitoring this case because of it's long-reaching impact on the field of photography and copyright registration, and was just able to download the file from a document filing service. In the court order, the court specifically addresses the copyright registration procedures, tries where it can to defer to the interpretations of the Copyright Office, but ultimately finds that Corbis was in the wrong. In the order, the court analyzed the facts thusly:
The Court is faced with the novel question of whether the registration of an automated database--here, a compilation of photographs by different photographers--by a third-party copyright claimant that has been assigned the rights to the individual works for the purposes of copyright registration registers the individual works thereby permitting the individual photographers to sue for copyright infringement.
The court, rather than trying to interpret certain issues at hand, among many other reasons for invalidating Corbis' methodology, notes that "A plain reading of § 409 of the Copyright Act mandates that the copyright registrations at issue here contain the names of all the authors of the work..." which Corbis did not do, among other things.

Then, in the court order, the court writes:
"The Court is not persuaded by MPI/s "doomsday scenario" that by granting Defendants motion millions of copyright registrations will be voided. Nothing could be further from the truth. Because Corbis is the author of the compilation the registration of the compilation remains valid. The individual works, however, are not registered."
The order goes on:
"The Court's ruling, although a seemingly harsh result for MPI, is guided by the clear language of the Copyright Act. The Court does not fault MPI for its failed forts to comply with the registration process. Indeed, from the record presented to the Court, it appears MPI's actions were completely appropriately sought the approval of the Copyright Office to ensure compliance with the statute. Unfortunately, MPI received poor advice and is now deprived, at least at this juncture, of the ability to seek statutory damages with respect to the Images not registered by MPI."
The conclusion of the court is that:
"For the foregoing reasons, Defendants' motion for summary judgment [dkt. no. 32] is GRANTED in part and DENIED in part. Defendants' motion is granted with respect to all of the Images except those Images registered by David Muench in January 1996."
Understand - this court order is a "summary judgement", in other words, the court didn't even begin to hear the cases of both sides - the argument by the defendant was so overwhelming, that there was no reason to actually move forward with the case.

As Corbis photographers, priority #1 right now should be to quantify which of your images were accepted by Corbis (and may now have invalid registrations) and begin the process of registering properly those images, as they are the most at risk of infringement right now, since it's open season on Corbis' images. If infringed, at any time in the past, and until you submit a new registration, you may find yourself without statutory damages and attorneys fees because of the Corbis error.

Priority #2 will be to quantify how much money you will have to spend to do this, and see if your contract allows you to recoup that money, or if the best course of action is a class action lawsuit (if it can be brought, subject to the terms of the contracts signed by the individual contributors, of course.)

Here's the entire 24 page order:
Usdc Sdny 09cv2669 Order

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Tuesday, May 4, 2010

World Press Freedom Day - It Starts In Our Own Backyard

The President today, on World Press Freedom Day, said that "World Press Freedom Day is observed every year on May 3 to remind us of the critical importance of this core freedom...It is also a day for us to sound the alarm about restrictions on the media as well as the threats, violence or imprisonment of many of its members and their families because of their work."

Truer words on this subject cannot be spoken, yet before we encircle the world, we must mind the issues in our own backyard. Such is the case of Jonas Lara, a former Marine who served overseas, and returned to study photography, and who graduated with a degree. Lara, directed his considerable talents on documenting the underground world of graffiti artists, and has made some remarkable images during this ongoing project. (His blog can be found here).

After Lara had convinced the artists to allow him to photograph them (no small task), he recieved tips as to where they would be, and went there on his own to shoot it, in much the same way that, say, Mary Ellen Mark documented the prostitutes of Bombay (here), a photojournalist sometimes can find themselves present during illegal activities. In another example, just two weeks ago the RFK Center for Justice and Human Rights (info here) awarded Laura Bauer, Mike McGraw, and Mark Morris of the Kansas City Star an award for their piece "A New Slavery” Human Trafficking in America,”, a " revelatory series [that] exposes America’s weak enforcement system that fails to stop a modern day slave trade of thousands of victims of human trafficking." Simply being in the same place where a crime is being committed does not make everyone within a short measurable distance also guilty of that crime.

And to be perfectly clear - Jonas did not set up the shoot, did not encourage, the artists, did not paint. The artists would have been there with or without Jonas. Jonas merely documented the scene.

(Continued after the Jump)

Journalism is being redrawn before our very eyes, and simply because Lara was not working for a mainstream/well-known media conglomerate on a socially powerful human interest story (and some might suggest that the grafitti artist is a powerful human interest story anyway) doesn't mean that he's not worthy of protection as a member of a free press. Apparently, the police CONFISCATED AND searched his camera and used the images they saw to make further arrests and it seems they are suggesting that those images are evidence. I submit that those images were viewed and information obtained without a warrant, and in violation of Lara's First Amendment rights, and should not only be excluded as evidence, but (and I am not a lawyer here), but any arrests made by these "ill gotten gains" should be thrown out, as the evidence was not legitimately obtained.

Lara's public defender, David Gottesmann seems to be doing his client a disservice, if, as PDN reports (here) , "David Gottesmann, has so far refused to consider his rights as a photographer as part of the defense. “Every time I bring [photographer’s rights or First Amendment rights] up, he just laughs at me,” Lara says."

The NPPA, an organization that represents the rights of American press photographers, should be involved in this issue, for certain, as well as the Reporters Committee for Freedom of the Press. At a time when staff photographers are being let go left and right, freelance photographers working on stories on specific assignments (and accepting all liabilities for that assignment as per most contracts) or on projects that, when completed, they will propose to a media outlet or publish on their own, are the new lifeblood of the National Press Photographers Association, and as Lara is looking at a criminal conviction, someone of skill and talent defending the rights of photographers - again, especially freelancers - should be on this case, post haste.

The President closed his remarks saying "But for every media worker who has been targeted there are countless more who continue to inform their communities despite the risks of reprisal. On World Press Freedom Day, we honor those who carry out these vital tasks despite the many challenges and threats they face as well as the principle that a free and independent press is central to a vibrant and well-functioning democracy."

Amen. In the meantime, Jonas is inable to afford an attorney that doesn't laugh at his first amendment discussions or takes him seriously, so we should all step up and help him out. To do so, donate here.

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