183 LEGAL UPDATE
November 20, 1998
Carl Purcell has settled his case against AOL out of court to the "mutual
satisfaction of both parties." Specifics about the settlement will not be
released. (See Articles 174 ,
100 , 83 .)
A few months ago Galen Rowell settled his case against Price Costco out of
court. "The settlement was amicable, but not what Rowell was originally
seeking." No specifics of the settlement were announced. (See original
article 33 .) We do know a couple things about this case.
First , the cost of pursuing such an action is hugely expensive. One
hundred separate documents, most of them multi-page briefs, were filed with
the court before the settlement.
Second , the Rowell image used had been previously published in a
book, and the book was registered by the publisher in the publishers name.
But, the court would not allow the publisher to re-assign the copyright to
Rowell after the infringement. To make matters worse, Rowell had a written
contract with his publisher that said the publisher would register the
copyright for the images in "Rowell's name."
After Price Costco settled with Rowell they also settled with Carr Clifton,
Jeff Gnass and Tom Till. According to the photographer's lawyer, Leonard
DuBoff, the parties "amicably resolved their differences," but the nature
of the settlement will not be released.
Federal judges are refusing to hear cases where publishers have re-used
images in a new manner, or a new product, without authorization or
additional compensation to the photographer. They are ruling that
publishers have the right under the copyright laws to make such re-uses
based on the Jonathan Tasini et. al. vs. New York Times et. al. decision
that was decided in New York's Second Circuit in August 1997. (See
September 1997 newsletter.)
Appeals of the Tasini decision and these other actions are pending, but no
dates have been set for any of the appeal hearings.
Photographers should definitely not rely on the copyright
registration of the publications where their images first appear.
As Rowell discovered in some cases publishers improperly register their
publications. In some cases they fail to register them at all.
Photographers must register their images before infringement if they
expect to collect statutory damages or attorney's fees. Otherwise, all
they can expect to get is actual damages, and it is almost impossible to
get an attorney to argue such a case if actual damages is the best
settlement that can be hoped for. Forget about the possibility of
registering "up to three months after" the infringement. Rarely will
Large corporations will drag out the legal process escalating
the costs and the risk to the small independent photographer. Then they
will move to settle out of court to avoid the risk of a precedent setting
decision. As part of the settlement they will insist on non-disclosure of
the terms, but by this time the terms will usually be so unfavorable to the
photographer that he or she wouldn't want to publicize the settlement
Be very specific in your licensing of rights and consider bringing a
contract action rather than one for copyright.
If you are publishing a book, a calendar, or your images are going in
a catalog, at the very least register those images before publication.