31
Photog Settles for $72,000
August 6, 1996 -
Mary Allen has received a $72,500 settlement for unauthorized use of her 1989
campaign portrait of Rudy Giuliani, current mayor of New York City.
In 1989 Allen was paid $275 for rights to use the portrait for campaign
purposes such as press release distribution and display in neighborhood campaign
headquarters.At the time the campaign was offered several billing options,
including an "all rights" buyout, but choose the least expensive option with
very limited rights for the "1989 Mayoral campaign" only. Allen also sold the
campaign 200 prints for a fee of $600.
Early in the 1993 campaign Mary Allen solicited further work from Giuliani's
1993 campaign committee, noting the success of her image for the 1989 committee.
She was treated abruptly and discourteously, and informed that the 1993
committee had "all the photographs it needed."
Her photo was later circulated again during this campaign without her
authorization
Initially, in 1993, it was unclear whether the campaign committee had copied
the 1989 photo and was re-releasing it, or whether the publications that had
received copies in 1989 had retained those photos in their files and were simply
reusing them. The latter would have been a legal use of a PR picture handed out
in 1989. This question was answered when the photo appeared in a publication
that did not exist in 1989.
With this evidence a letter was written to the 1993
Campaign Committee alerting them to the possible misuse and suggesting a
possible commission to provide an official portrait of the incoming Mayor as a
means of settlement. There was no response to this letter.
In late 1994 the image appeared on a poster (estimate 5,000 to 10,000 copies)
posted in the Bronx promoting a town hall meeting. It was later learned that
similar posters were used in 12 previous "Town Hall" meetings by the Community
Assistance Unit. In no instance was permission for the use of this image
requested, a credit line provided, or payment made to Mary Allen.
Unique Features
Photographers should note some of the settlements unique features.
(1) First, it was agreed that Ms. Allen's reputation had been injured as a
result of actions taken by low level staff. At one point she was threatened
with "never working again in the City of New York," and word went out to many in
the political arena not to use her as a photographer.
To rehabilitate her good name there was an apology as part of the settlement
which is as follows:
"Giuliani for New York and Friends of Rudy Giuliani regret the unauthorized,
albeit unintentional and inadvertent use of the image of Rudy Giuliani created
by Mary Allen. All claims against the committees have been resolved amicably by
Mary Allen and the committees, and any future use of the image by the committees
will be accompanied by Mary Allen's copyright."
In addition the settlement included an agreement by the Friends to mail a
fundraising solicitation to between 1,000 and 2,000 business and civic leaders
including the photograph. Ms. Allen has the right of prior approval over what
is said in this mailing. The primary purpose of the mailing is to promote Mary
Allen as a political personality photographer in the City of New York.
(2) The second unique feature was the role that the concept of moral rights or
"driot moral" played in the final settlement. This concept has been a strong
part of copyright in Europe since the 1928 Berne Convention. These moral rights
are sometimes considered antagonistic to the property rights of owners,
particularly if the copyright holder is different from the original creator.
While property rights to copyright my be transferred, the moral rights belong
solely to the creator and are not transferable.
Protection of certain minimal moral rights became mandatory when the U.S.
became a signatory to the Berne convention in 1988.
According to the Graphic Artist Guild: "The doctrine (of moral rights)
traditionally grants to artists and writers four specific rights:
- the right to protect the integrity of their work to prevent any modification,
distortion or mutilation that would be prejudicial to their honor or
reputation;
- the right of attribution (or paternity) to insist that their authorship be
acknowledged properly and to prevent use of their names on works they did not
create;
- the right of disclosure to decide if, when and how a work is presented to the
public; and
- the right of recall to withdraw, destroy or disavow a work if it is changed or
no longer represents their views."
In this case the moral rights of the photographer were violated by not giving
proper accreditation to the work and by altering the work. It was argued that
the photographer's personal reputation was damaged on both counts.
The work was altered due to cropping and to repeated copying of the image which
resulted in a much more contrasty reproduction.
Moral rights also protects the creator from certain retaliatory actions that
might result from the dispute. In this case the actions taken to try to
influence others not to use Ms. Allen were deemed as a violation of her moral
rights.
According to the settlement, the $72,500 was apportioned as follows: $6,250
respesents loss of actual fees for Mary Allen's services, reproduction rights,
and all other business losses; and the some of $66,250 represents injury to Mary
Allen's reputation, including the loss of the opportunity to enhance her
reputation.
If the reader is considering using "moral rights" as an argument for a claim,
it should be noted that in the past most "moral rights" claims have been for
"fine arts" work and there may be elements of the law that specifically exclude
commercial and applied arts work. This case was an out of court settlement and
may not be helpful as a legal precedent. Check the law carefully before jumping
in.
(3) There is an important tax advantage to a "moral rights" settlement. Moral
rights or "injury to reputation" is viewed as a "personal injury" settlement and
such settlements are tax free under the U.S. tax code. Thus, the $66,250 part
of the settlement is tax free.
(4) Again, as we learned in the Peter B. Kaplan case against Time, Inc. a few
months ago, it doesn't take a lawyer to get a good settlement. In this case
Joseph H. Meyerson, a friend of Ms. Allen, helped her prepare the necessary
documents and file the $2.50 form called a "Notice of Claim Against the City of
New York."
During the neotiations Meyerson twice tried to strike a deal with mayoral aides
that essentially would have given Allen only future assignments. Both times he
got the brush off. "I was told by someone that 'Anybody who would sue Rudy will
never do business with us," Meyerson said. "Penny wise and pound foolish."
The problems in this case resulted from decisions made by low level staffers
acting on behalf of the Mayor. Mr. Meyerson has nothing but praise for the
actions of Mayor Giuliani in the case. "When he was informed of the facts of
the case he agreed immediately that Ms. Allen had been wronged and ordered his
legal counsel to negotiate a fair settlement," said Meyerson.
Mr. Giuliani's past experience with intellectual property law may have
benefitted Ms. Allen. When he was U.S. Attorney in New York he was a strong
defender of intellectual property rights and brought several actions against
individuals and organizations for stealing software.
(5) The picture in question was not registered at the copyright office until
after the infringement occurred. While we certainly advise photographers to
register their work as soon as possible after creation and preferably before the
initial use, the fact that the image was not registered in advance did not
affect the ability to get a significant settlement in this case.
(6) While it is very difficult to control rights and usage of any image that is
used for press release purposes, Ms. Allen has demonstrated the value of clearly
defining in invoices, and other paperwork delivered to the buyer, the rights
being sold with this type of use.