Q&A – Is a Manipulated Photo of a Sculpture Fair Use?

Q. Artist Jim Hodges has an installation on top of The Contemporary, Jones Center, art museum in Austin, TX, entitled “With Liberty And Justice For All.” Could I take a picture of the artwork, manipulate it with software, render it in a different physical environment and use it for commercial purposes? Would my new work be protected by copyright?

A. As explained by my November 17, 2009, blog, courts have disagreed as to whether photographs of copyrighted works are derivative works.  This also was the issue when sculptor, Jack Mackie, sued photographer, Mike Hipple, because Hipple “used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].”  Hipple had offered the image for licensing through stock agencies. Just before trial,  Hipple and Mackie settled their claims.

The U.S. Court of Federal Claims considered this legal issue in the Gaylord v. The United States case. The facts are convoluted, but, in sum, the artist of “The Column” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work. While the trial court first held that the stamp was a fair use, the appellate court ultimately held that the stamp was an infringement.

Fair Use Analysis
Assuming that a court would find that a photo of a sculpture is a derivative work, then would your use be a fair use? Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 USC Section 107.

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work. It’s not just whether the new work is different than the original but whether the new work has a different purpose (such as a book review rather than another book). Therefore, if your manipulation and use are transformative, then this would weigh for a finding of fair use.

A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right to control the first public appearance of works. In this case, Hodge’s work is published so this leans towards a finding of fair use.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. If you don’t use all of the words from the installation, your new piece would be more likely to be considered a fair use.

When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. Since your market likely would be different than Hodges’, your new work would be more likely to be considered a fair use.

Other Cases

Compare what Jeff Koons did with his use of Blanch’s photo in Blanch v. Koons.  There, Koons, an artist, incorporated a copyrighted photograph of a woman’s feet adorned with glittery Gucci sandals into a collage “commenting on the ‘commercial images . . . in our consumer culture.’” 467 F.3d 244, 248 (2d Cir. 2006). The court determined that Koons’ use was fair use in part because his collage was transformative. Id. at 252-53.  The Court reasoned that the collage and the photo had “sharply different” purposes and that the collage was intended to be a “commentary on the social and aesthetic consequences of mass media. Such transformation of a copyrighted work into a larger commentary or criticism fall squarely within the definition of fair use.”

Richard Prince is known as an “appropriation artist.” There have been many controversies from Prince’s use of photographs, such as those from Marlboro advertisements and Twitter, and he has a history of using other commercial works. In another case, Patrick Cariou, a French photographer whose work was published in the book, Yes Rasta, filed a copyright infringement lawsuit against Richard Prince, the Gagosian Gallery, and others alleging that Prince’s paintings incorporated Cariou’s photographs (thus comprising derivative works) without permission or authorization. The court held that some were infringements and others were not.

So whether your work would be deemed an infringement is something only a court can say for sure.

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7 Reasons Why You Should Add a Watermark to Your Photos

Here are 7 reasons to put a watermark (your name/contact information) on your photos (a copyright notice is even better).

1. Brammer v. Violent Hues, No. 1-17-CV-01009, 2018 WL 2921089 (E.D. Va. Jun. 11, 2018). http://illusionofmore.com/incoherent-copyright-ruling-should-anger-photographers/
2. Eliminates possible DMCA safe harbor protection of infringer https://www.photoattorney.com/reason-post-watermarks-photos/
3. You will have a DMCA claim for removal of copyright management information (“CMI”) when infringing (and you don’t have to have registered your photo in advance to recover under this statute). https://www.photoattorney.com/watermarks-can-be-music-to-your-ears/
4. It stops the innocent infringement defense. When you post your copyright notice with your images, then the infringer cannot claim that the infringement was innocent). https://www.photoattorney.com/stopping-the-innocent-infringement-defense/
5. Because it serves as a reminder that the work is protected.
6. The notice will interfere with the use of the work when it is placed over the major part of the photo.
7. A court is more likely to find that the infringement was willful when a copyright notice is posted with the photo, supporting maximum award of infringement damages. https://www.photoattorney.com/qa-where-do-i-put-my-copyright-notice/

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Courts Awards $1.9 Million Default Judgment to Photographer

On June 4, 2018, a judge in the Central District of California (Los Angeles) granted to Edgar Babayan a $1.9 million default judgment for copyright infringement of Babayan’s three photos. [Learn more about default judgment in my prior blog entry.] Woo hoo!

According to his Complaint for Copyright Infringement, Babayon had taken “before and after” photos to show the effects of Babayon’s anti-aging face cream product. Thereafter, Babayon claimed that defendants Honest Creams LLC, a New York limited liability company, and its owner, Allen Yeganian, copied the photos onto defendants’ website to sell defendants’ anti-aging creams, as shown below:

Babayan’s Photos at issue on Defendants’ Website

Because the defendants never answered the complaint or defended the suit after being served, the court entered default. In his motion for default judgment, Babayon submitted declarations showing that more than 18,000 customers had purchased Honest Creams through the site displaying the infringing photos, generating a profit of around $1,910,963.

With that evidence, the court entered judgment for the profits plus costs. Now Babayon will look for ways to collect this huge judgment from the defendants.

 

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Binded.com not so bound

I raised concerns about Binded.com last August about the accuracy of its copyright registration service. What I didn’t expect is that registrations wouldn’t be submitted at all.

To test Binded’s service last fall, I submitted a photo to be registered. Today, I received the following email from Binded’s founder:

_______________________________________________________________

_______________________________________________________________

I’m sorry that Binded’s team has had health issues.

I have not received the registration certificate from the US Copyright Office for my photo and it doesn’t appear as registered on the Copyright Office website. I have asked Binded for a refund.

If my photo has been infringed, I won’t be eligible for statutory damages because it wasn’t registered. Fortunately, I have only one photo that is vulnerable because of Binded’s failure. I hope other photographers are not at risk with photos that they assumed had been registered by Binded.

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Copyright Office Wants to Increase Registration Fees

The Copyright Office (“CO”) is proposing a new fee schedule. The proposed fees reportedly would help the CO recover a significant part, though not the whole, of its costs. The CO is providing an opportunity to the public to comment on the proposed changes  before it submits the fee schedule to Congress. Written comments must be received no later than 11:59 p.m. eastern Time on July 23, 2018 at https://www.copyright.gov/policy/feestudy2018/.

The current and proposed fees (along with the calculated cost of the Office to process) for registrations for photographs are:

Group registration of unpublished photographs (GRUPH) (up to 750 published photographs) — current: (this is a new fee); proposed $100; cost $284

Group registration of published photographs (GRPPH) (up to 750 published photographs) — current: $65 (paper), $55 (electronic); proposed $100; cost $284

Group registration of updates and revisions to photographic databases — – current: $65 (paper), $55 (electronic); proposed $250; cost n/a

The CO believes these new fees will achieve greater cost recovery while maintaining a relatively low fee on a per-work basis for photographers. Specifically, the per-photograph cost is currently $0.07 if the applicant registers the maximum number of photographs (i.e., 750). The proposed new fee raises that cost only slightly to $0.12 per
photograph if the maximum number of works are registered.

The Office also is proposing significant fee increases for the group registration options that apply to databases. The Office currently charges $65 (paper application) or $55 (electronic application) per application for group registration of updates and revisions to photographic databases. These CO asserts that these applications are quite costly to process, in part because there is no limit on the number of works that may be included in each submission.

Read more about the CO’s proposal at https://www.gpo.gov/fdsys/pkg/FR-2018-05-24/pdf/2018-11095.pdf

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Court confirms sovereign immunity for state government employees

Several years ago, I wrote about sovereign immunity protection for those who commit copyright infringement, along with a way to recover for the infringement. Indiana courts recently confirmed that the law is valid there.

Specifically, this issue arose for a professional photographer, Richard N. Bell, also is an attorney, who regularly uses the courts to battle copyright infringement. His photograph of the Indianapolis, Indiana skyline is regularly infringed. Check a recent article about his work here.

In 2016, Bell sued Indiana University asserting a claim for copyright infringement and unfair competition and seeking damages and declaratory and injunctive relief. In his Amended Complaint, Bell removed Indiana University as the defendant and added Jay Hess, the Dean of the Indiana University Medical School, claiming that “Hess individually failed to properly supervise his subordinates who created a website for the World Wide Web at pediatrics.IU.edu to promote and advertise the Indiana University School of Medicine Residency Program and used the Indianapolis Photo on the website pediatrics.IU.edu.”

The court found that the Eleventh Amendment immunity bars actions against state agency officials acting in their official capacities. State officials act within their official capacities and within the scope of employment if their actions, “to an appreciable extent, further the employer’s business.” Katz-Crank v. Haskett, 2015 U.S. Dist. LEXIS 33905, at *7 (S.D. Ind. Mar. 18, 2015). Since all of Hess’ conduct at issue fell within the scope of his employment as the Dean of the Medical School of Indiana University, the court held that Hess is entitled to Eleventh Amendment sovereign immunity and Bell’s claim is barred. See the order here.

Bell fared better in another of his cases (BELL V. POWELL No. 1:16-CV-02491-TWP-DML, 2018 WL 1070296 (S.D. Ind. Feb. 23, 2018)) because he sued the individual directly responsible for the infringement even though Bell’s photo was posted on a government website.

In the case, Bell alleged that Powell is “individually responsible for the content of the website http://www.in.gov/ipac” and “individually authorized the copying and republication of the Indianapolis Nighttime Photo without permission from the Plaintiff on [Powell’s] website http://www.in.gov/ipac/2331 in order to advertise conferences taking place in Indiana.” While Powell asked the court to dismiss the case, the court found that because Bell’s allegations asserted a personal and direct involvement by Powell, Bell’s allegations were sufficient to allow a claim for copyright infringement against Powell in his individual capacity to move beyond the motion to dismiss stage.

So the conclusion still rings true when a government entity has infringed your copyright: sue the individual responsible for the infringement. Sovereign immunity does not protect governmental employees sued in their individual capacity, even for employment-related acts. As long as the government is not responsible for paying the damages, courts generally have not extended immunity to government employees if the judgment against them will be paid only from their personal funds.

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Creative Highway: Great Resource for Photographers

I’m excited to partner up with my friends at Creative Highway (the same folks that bring us 5DayDeal) because they are curating a high-quality resource for photographers like us – creatives who want to spend less time hunting the web and more time learning how to do our passionate work better than ever.

Creative Highway has a one-stop shopping with the best photography educators available.
They are adding new products every week, so be sure to visit often and browse around – there’s lots to check out.

BONUS: Over the next few weeks they’ll be giving customers some freebies, and there’s a chance to win some software as well, so head on over and check it out!

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World Intellectual Property Day 2018: Women in Innovation and Creativity

The U.S. Copyright Office will celebrate World Intellectual Property Day with a special event on Thursday, April 26, 2018, at 10:30 a.m. in the historic Coolidge Auditorium in the Jefferson Building in Washington, DC. This year’s theme, as announced by the World Intellectual Property Organization (WIPO), is “Powering change: Women in innovation and creativity.”

The Copyright Office’s program will feature an impressive array of prominent speakers discussing the myriad ways women have shaped creativity and innovation. Congresswoman Judy Chu, co-chair of the Congressional Creative Rights Caucus in the U.S. House of Representatives, will provide featured remarks.  Michele Woods, head of the Copyright Law Division of WIPO will then moderate a lively panel discussion featuring Kate Flannery (actor, The Office), Judy Herrmann (photographer), Michelle Hurd (actor, Cagney and Lacey, Blindspot, Law & Order SVU), Georgia Stitt (composer and lyricist, Snow Child), and Julie Swidler (EVP, Business Affairs and General Counsel, Sony Music Entertainment).  Acting Register Karyn Temple will provide introductory remarks.

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Q&A – Copyrighted Items in Photos

Q. How does someone capture family memories that often include copyrighted items (photos/art, patterns on clothing and wallpaper, toys, etc.) without infringing copyright or resorting to only taking pictures of family members in solid colors in front of a white wall?

A.  Yes, copyrighted works often appear in photos. Fortunately, copyright law includes the doctrine of “fair use,” which allows the use of copyrighted works in certain circumstances.

The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” Four factors are considered to determine whether the inclusion of copyrighted works in a photograph qualifies under the doctrine of fair use:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or for educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the copyrighted material that is used; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

If the copyrighted material that appears in your photo satisfies an examination of the fair use tests, you do not have to get permission to use it. Until a court rules whether the use is a fair use, you can’t know for sure. However, sharing snapshots of family and friends on social media with your family and friends would be considered to be non-commercial and would not affect the licensing market of the copyrighted works. Further, the copyrighted works usually are in the background or are incidental to the photo. A quick review of cases reveals no infringement claims for any such uses. Therefore, feel free to take and share more photos of family and friends!

 

 

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