113 NAFP LOSES FIRST ROUND TO ASSOCIATED PRESS
January 6, 1998
In early December the National Association of Freelance Photographers lost the
first round in their suit against Associated Press.
NAFP members claim they own the copyright to images which they produced on
freelance assignments for Associated Press. They are seeking a share of the
payments for secondary usages of their images when rights are licensed to
non-members of the AP. AP normally charges a per image fee for such uses.
U.S. District Judge Denise L. Cote dismissed five of six counts in NAFP's claim
against AP, but indicated that copyright ownership claims could still be brought
by specific plaintiffs.
The primary complaint was that AP required the photographers, as a condition of
sale, to surrender copyright and future earnings from the resale of their
The fundamental issue in the case was whether AP's legend on the face of every
check transfers the copyright when the photographer endorses the check for
The legend in question reads: "In consideration of the transfer of any and all
copyrighted ownership in the news materials described above. Endorsement
Judge Cote dismissed NAFP claims on the grounds that NAFP does not meet the
requirements of legal standing. Given that there will be slightly different
considerations in each plaintiffs claim she concluded NAFP would be unable to
testify as to these agreements and understandings. She held that individual
plaintiff's need to be named in order to provide actual facts on a case-by-case
"We are disappointed in the ruling," said Kevin Larkin, president of NAFP, "but
we're encouraged to see that the judge does see merit in our claims." The judge
indicated that AP's check legend might not be sufficient to transfer copyright
depending on the understanding of the photographer through all other related
"The fact that the NAFP does not have legal standing to represent our members
simply means that we will have to re-file some of our charges naming individual
plaintiffs rather than the organization as plaintiff," Larkin continued.
According to Judge Cote's 32-page decision, AP claimed, and the plaintiffs
conceded, that the use of "a legend on a check, may be effective to
transfer copyright under the proper circumstances." This point was
substantiated by case law cited in the decision.
Thus, the key issue in future cases will be the circumstances of check
endorsement as well as any agreements or understandings that were made prior to
receiving the check.
[This case brings to light the fact that there are some instances where a
check endorsement can actually transfer copyright. To the best of my knowledge
the general understanding among non-lawyers in the industry has been that check
legends were not sufficient to transfer copyright. This decision indicates the
opposite may be true.
Therefore, photographers should take care to scratch out all such legends before
endorsing and depositing any checks. Future cases may provide a clearer
understanding of what is and isn't permissible.]
"Although the ruling appears to be a preliminary victory for the AP, we are
confident that freelance photographers who oppose transfer of their copyright to
AP will ultimately prevail on this basic issue now that the court has indicated
individual photographers can prevail on the merits when they demonstrate there
was no intent to transfer copyright to AP," said Paul Hurschmann, NAFP executive
vice-president and a plaintiff in the suit.
Judge Cote also dismissed charges of antitrust, monopoly and restraint of trade
stating in effect that plaintiffs' allegations would establish that AP's conduct
could be detrimental to competitors (i.e. freelance photographers) but not to
competition itself, which is a prerequisite under the law.
A charge of copyright infringement by plaintiff Paul Hurschmann remains under
consideration. A similar charge of copyright infringement by plaintiff Kevin J.
Larkin was erroneously dismissed (AP did not ask for its dismissal and conceded
that it was properly brought).
Larkin's had applied for a copyright registration certificate, but had not
received the certificate prior to the court action.
Judge Cote said that a copyright infringement occurs only if the individual had
acquired a certificate of registration in advance from the U.S. Copyright
Office, and thus dismissed his application.
New charges are likely to be brought by several more individual plaintiffs
seeking a declaratory judgment on copyright ownership under guidelines outlined
in the decision, whereby individual plaintiffs could prevail on the merits of
"It is unfortunate that we must prolong our legal efforts, but we believe that
the law is on our side and we simply need to refocus our charges and our claims
as to what our entitlement to relief should be. This battle is by no means over.
The ultimate ownership of copyright to the images remains to be decided."
For more information and the full text of the decision see the NAFP web site at: