Legal Update - November 1998

Posted on 11/20/1998 by Jim Pickerell | Printable Version | Comments (0)

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.

Lessons learned

  • 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

    this work.

  • 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

    anyway.

  • 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.


  • Copyright © 1998 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

    Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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