Latest Misguided Lawsuit: Apple Hit With Copyright Infringement Claim For Third Party App

from the learn-to-sue-properly dept

I'm really beginning to wonder if there should be sanctions on plaintiffs who sue the obviously wrong party. We write about so many cases, where people sue whoever has the deepest pockets, rather than those actually responsible, that it's clearly an abuse of the law. The latest example, sent in by davebarnes, involves a photographer suing Apple, because an iPhone app from a third party developer includes some of his photos. Note that the guy did not sue the actual app developer: just Apple. I'd also like to see the argument that explains how getting this guy's photographs more publicity somehow "damages" him, but that's another story...

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Explaining Why 'If We Charge, People Will Pay' Thinking Is Misguided

from the go-King-go dept

Rose M. Welch points us to a wonderful writeup by King Kaufman at Salon (whose sports column I miss -- but the value of his work about the future of journalism more than makes up for it), concerning the news that Time Magazine used a stock photo it bought from iStockPhoto for a recent cover story. The photographer whose photograph was used was thrilled (as were some of the other photographers). However, there was also a group of photographers who went on to berate him (the photographer) for getting screwed over by a "multi-billion dollar company." Except, of course, they've missed the point. The photograph had already been taken (it didn't take any more work by the photographer to do this) and he was perfectly happy to get money he wouldn't have received otherwise -- even if it was a small amount. From there, Kaufman goes into beautiful beat down mode, and explains how the complaining photographers are flat-out wrong... while also comparing the situation to journalists who say the answer is to just put up a paywall and magically people will pay. It's so good, that I'm quoting a large portion of it, but go read the whole thing as well (and then follow that blog):

Saying that if photographers all refused to do stock photography they'd all get paid more is like saying that if restaurants all refused to give customers napkins without charging they'd all make a bundle on napkin sales. It's like saying that if local bands refused to play for drinks at dive bars, they'd all make good money playing music.

It's also like saying that if news organizations stopped giving away content on the Web, people would pay for news content online. It's absurd.

The posters in that forum who are making that argument are failing, or refusing, to understand basic economics, if not human nature. All photographers are not going to refuse to do stock photography. The ones who do refuse will simply be opening up the market for those willing to sell their pictures cheaply, either because they're not in it for the money or because they can make a profit on volume.

And those arguing that Time should have paid more for this stock photo because it sometimes pays more for other photos, or because it has a lot of money, are forgetting a little thing called supply and demand.

We should note, though, that because Time prints so many copies, it is likely it had to pay iStockphoto for an unlimited-run license, and that its cost was more like $125 than $30. Still nowhere near thousands, and we should also note that Lam, the photographer, was thrilled with his Time cover at a price of $30, and plenty of his colleagues were thrilled for him.

The same pricing dynamic is in play in journalism. The price is not set by how much time, effort, talent or experience went into making the product, and it's not set by how much money the customer has. It's set by supply and demand. The supply of stock photography is very large. The supply of general news content is huge.

If Time hadn't found Lam's stock photo of coins in a jar for $30, or $125, it would have found a similar photo for a similar price. If news consumers can't get their news online for free from their favorite news organization, they'll find it for free somewhere else.

What happened with Lam's photo is not a failure of the system, not a case of photographers eating their own and not a matter of big, rich Time magazine taking advantage of the little guy. I doubt those photographers would expect Time, because it has such a big budget, to pay $3 for a postage stamp or $20 a pound for the office coffee.

What happened with Lam's photo is simply the way the industry works. Time paid what it paid for that image because that's about what it was worth.

When the barrier to entry is low, the supply of goods is large and the alternatives available to the buyer many, the price is going to be low. Wishing it were otherwise, as the photographers are doing in that online forum and as opponents of free content do in Future of Journalism nerdland, will not make it otherwise.

Indeed. What Kaufman describes is the same sort of economic illiteracy that we run into in conversations all the time. People feel that because they don't like the way things work, they need to either blame those who are happy with the way things work or to blame those of us who are simply explaining the economics of supply and demand to them. It's a blame the messenger sort of thing. If I could create a world where photographers and journalists could magically make tons of money, I would. That would be great. But, that's not the world we live in, and pretending it is (or pretending you can simply start charging high amounts and people will keep paying) doesn't help matters. Instead, figuring out ways to understand the economics at play, and then looking for ways to take advantage of those basic economics, seems to make the most sense. This is not about what "should" happen or what people would "like" to happen. It's about what is happening, and learning to take advantage of it.

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Can You Re-Copyright Photos In The Public Domain?

from the not-good dept

Davis Freeberg wrote in to tell us about how a small publishing company, Summertown Sun, had issued takedown notices for public domain photographs that were put on Flickr. What appears to have happened is that a user, by the name of "Dazzlecat," posted some photos to Flickr that she believed were public domain photographs (vintage photographs from over a century ago). However, Summertown Sun sent a takedown claiming copyright ownership of those photos. That seems odd, since public domain is... public domain. Either way, Yahoo/Flickr obeyed the takedown notice and then also took down a followup altered image and blog post that trashed Summertown for the takedown, saying that it violated Flickr's terms of service. Yahoo is, of course, free to do what it wants -- and has the right to takedown whatever it feels violates its terms of service, but what's more interesting is the question of whether or not the images are in the public domain, and whether or not Summertown's takedown was actually legal.

In a response to the original complaint about the takedowns, Summertown tried to defend itself by claiming:

We claim copyright on images we have creatively altered, which includes hundreds in our collections; such alterations remove them from the public domain. In addition we offer all of our images under the terms of a license agreement, regardless of copyright status, which is common practice in the image industry in recognition of considerable expenditure of production work, money, and other resources in making our products available.

That seems troubling -- and not quite right to me. You can't "remove" something from the public domain (Congress can apparently, but that's another issue). You can alter a work and then copyright the alterations if they are significant changes. Minor tweaks and alterations are not copyrightable and certainly the underlying original image is still very much in the public domain. Now, looking over the Victorian photographs that Summertown offers, many of them do not seem to have major alterations at all. Some appear to be colorized, so perhaps (maybe?) they could claim that the colored part of the images are copyrighted, but even that might be a stretch.

Furthermore, the fact that Summertown engages in the "common practice" of putting forth a license, regardless of copyright status, is rather meaningless. If it's in the public domain, it's in the public domain. You can't pretend the public domain doesn't exist just because you add a license to something. If that were the case, there would be no public domain at all.

I've run this by a few copyright lawyers I know, and most agreed that Summertown's position seems tenuous, though it really does depend on what photos, specifically, were uploaded to Flickr. So, without knowing exactly which images were placed in the Flickr stream, it's not 100% clear that Summertown violated the DMCA with a false takedown (it's against the law to send a takedown if you don't actually own the copyright), but if the photo in question really did not have significant alterations, then it seems likely.

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EU Court Says Simply Taking Someone's Photo Can Violate Their Civil Rights

from the who-did-what-now? dept

I'm definitely a big supporter of privacy rights, but sometimes it seems that big time privacy rights supporters go too far. The latest is that an EU court on human rights has declared that simply taking someone's photograph can be a violation of their privacy. In the past, laws in Europe have said that you can't necessarily publish a photo of someone without their permission, but merely taking the photo was allowed. No longer. In the press release about the decision, the court explained its reasoning:

"The Court reiterated that the concept of private life was a broad one which encompassed the right to identity. It stressed that a person's image revealed his or her unique characteristics and constituted one of the chief attributes of his or her personality. The Court added that effective protection of the right to control one's image presupposed, in the present circumstances, obtaining the consent of the person concerned when the picture was being taken and not just when it came to possible publication."

Now, I could potentially understand such reasoning in private settings, but the statements above don't seem to limit the issue to private settings. The situation in the case itself also highlights what's a gray area between public and private. It involved a hospital that photographed a newborn baby -- as it does with all newborn babies. The parents protested and demanded the negatives, claiming that the photograph violated their baby's privacy rights -- and the court agreed. What's troubling is the implications of such a ruling, that you simply cannot photograph anyone without their official approval. This will almost certainly lead to new lawsuits, and even begins to raise some other questions. If it's a violation of someone's privacy rights to photograph them, at what point is it a violation of their rights just to see them?

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Is Putting Every Frame Of A Movie Into A Photo Copyright Infringement? Should It Be?

from the questions,-questions,-questions dept

There's been a bit of buzz going around the blog/social media world over someone who made a photograph that shows a snapshot from every second of the movie The Big Lebowski (most of the posts about it erroneously claim that it's every frame of the movie, but a quick scan through the images shows that it's more like one frame every second -- i.e., approximately 1 frame out of every 30). What's interesting to me, though, is that the photo is listed under a Creative Commons license -- and I'm wondering if Universal Studios (NBC Universal) knows about this, and if it would freak out. It's difficult to see how this photo could possibly hurt the commercial viability of The Big Lebowski. It's quite clear that, if anything, it's a celebration of the movie.

And that's one of the key points of conflict that people run into with copyright these days. So many efforts by fans to celebrate, promote or otherwise share some aspect of a movie is often viewed as copyright infringement by the copyright holders. Hopefully, Universal chooses to overlook this creative endeavor -- or, even better, help promote it. But, given the way NBC Universal has reacted in the past, somehow that seems unlikely.

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History Locked Up... Thanks To Copyright

from the too-bad dept

And here's yet another story of important content that could be put to use, unfortunately being totally locked up thanks to copyright. A few readers sent in the story of the Brooklyn Historical Society refusing to let someone putting together a book of photographs of the Canarsie section of Brooklyn use some old, historically relevant, photographs, because of fears over copyright. The photos in question were from well over 100 years ago, and no one has any idea who owns the copyright -- but rather than risk getting sued for infringement, the Historical Society has said no to using the photos in the book. This is the sort of situation that could be solved with orphan works legislation, but there's a vocal contingent of photographers who loudly are attempting to block that legislation, often falsely stating what the orphan works bill would actually allow, claiming that companies will "steal" their photos. So, instead, we sit around, unable to see important historic photos. I'm sure that's what the framers of the Constitution had in mind.

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Is A Photograph A Derivative Work Of The Object In The Photo?

from the you-would-hope-not dept

There's an interesting discussion going on over at William Patry's blog, questioning whether or not a photograph should be considered a "derivative work" of the object or objects in the photo. The courts appear to be somewhat split on this. The importance of this concerns whether or not the photograph itself can be covered by copyright -- and also whether or not the photograph can be considered infringement itself. If the photo is considered an unauthorized derivative work, then it's entirely possible that whoever holds the copyright on the object in the photo could claim that the photo itself is infringing. Remember, in the past there's been some concern about the legality of photographing copyrighted sculptures. A derivative work is supposed to be for something that "recast, transformed, or adapted" the original work, and is normally used for something like a translation of copyrighted material. However, does a photograph really recast, transform or adapt the object? Or is it an entirely separate work?

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