Interesting facts in lawsuit filed against Richard Prince for Instagram based works Reply

The fine art photographer Donald Graham filed a complaint against the artist Richard Prince earlier this year for infringement of Mr. Graham’s exclusive rights in the acclaimed photographic work of art titled “Rastafarian Smoking a Joint” a copyrighted photograph.pic

An interesting twist to this lawsuit and claimed infringement is that the infringing use was part of a controversial show of Prince’s work at the Gagosian Gallery consisting of enlarged screenshots of people’s Instagram photos used without warning or permission – reportedly selling for $90,000 a piece.

After reading the complaint filed by Mr. Graham against Prince, here are a few interesting points that may factor into the next stage of this lawsuit or settlement:

  • Graham is a famous photographer whose work may have been known to Richard Prince before he included it in his show “New Portraits” (ironically titled) at the Gagosian Gallery.
  • Graham did not post his photo at issue to Instagram. (This is significant because by posting the photo to Instagram a user agrees to Instagram’s Terms of Use.)
  • Graham has never licensed the copyrighted photo at issue or made it commercially available for any purpose other than for sale to fine art collectors.
  • Prince and Mr. Graham’s wife exchanged tweets regarding the unauthorized use of the photo at issue. The Twitter exchange in a nutshell: Mr. Graham’s wife stated in a tweet that Prince appropriated Mr. Graham’s photograph & Prince tweeted a reply, “you can have your photo back. I don’t want. You can have all the credit in the world.”

Take a look at the images included in the “New Portraits” show (a small sampling above and a link below).  The photo at issue is clearly not your average profile picture or social media post. To me it stands out from the other images and seems possible that Prince might have known this image was Mr. Graham’s.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: The complaint Graham v. Prince. Artist Donald Graham’s website featuring the photo at issue: http://donaldgraham.com/PORTRAITS/5/caption/; a virtual tour of Prince’s exhibit New Portraits at http://www.richardprince.com/exhibitions/new-portraits_1/#/detail/10/; earlier posts on this controversial exhibition featuring Instagram photos http://wp.me/p10nNq-I0 and http://wp.me/p10nNq-En; more information on Instagram’s Terms of Use at http://wp.me/p10nNq-En; @iplegalfreebies and www.kasterlegal.com.

Photo Release for a Horse (of course) Reply

Photo releases are a useful tool for obtaining permission to photograph models (of all photo releasetypes and species) and to use the photos of the model for specific purposes.  While we may all think of beautiful people as models, horses and other animals can be models too.  A photo release may be needed from a horse’s owner to take and use photographs of a horse for specific purposes including publication, printing, selling, distribution and commercial use.

I recently read that the owner of horse-photobomber (featured in the prize winning photograph above) has demanded some of the prize money won by the folks who took the photograph and entered it into a contest.  While the photobombing probably wasn’t planned, obtaining a photo release before taking, using or entering the photograph in the contest would likely have avoided the dispute that has developed over the prize money.  The horse’s “smile” does add to the photograph.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: earlier posts on photo releases at https://iplegalfreebies.wordpress.com/category/photo-releases; a news article on the dispute: Photobomb Horse Owner Demands Share of £2000 Selfie-Prize at www.theguardian.com/uk-news/2016/feb/02/owner-photobomb-horse-demands-share-2000-selfie-prize?CMP=fb_gu; @iplegalfreebies and www.kasterlegal.com.

When Monkeys Sing & Pigs Fly (Copyright news update) 1

Screen Shot 2015-09-25 at 5.14.46 PM

monkey selfie is available on wikipedia.org

It’s been quite a week for U.S. Copyright law!  This week a judge in California ruled that the popular (and commercially valuable) song “Happy Birthday to You” is not protected by copyright.  If the judge’s ruling stands the Happy Birthday song will become part of the public domain.

Also in California, a lawsuit was filed by PETA claiming that the copyright of photographs taken by a monkey (monkey selfies) should belong to the monkey. Presumably PETA should be allowed to collect and administer royalties from the photos on the monkey’s behalf.

It will be interesting to follow this monkey’s business… and these lawsuits.

BY: Vanessa Kaster, Esq.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com and www.kasterlegal.com

See also, another post on the monkey selfies at http://wp.me/p10nNq-b5; more posts on copyright law at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t; the “Happy Birthday Case” is Marya v. Warner/Chappell available at https://www.unitedstatescourts.org/federal/cacd/564772/244-0.html; The Washington Post article titled, “Monkey wants copyright and cash from ‘monkey selfies,’ PETA lawsuit says” by J. Moyer at http://www.washingtonpost.com/news/morning-mix/wp/2015/09/23/monkey-wants-copyright-and-cash-from-monkey-selfies-peta-lawsuit-says/; New York Times article titled, “’Happy Birthday’ Copyright Invalidated by Judge” by B. Sisario at http://www.nytimes.com/2015/09/23/business/media/happy-birthday-copyright-invalidated-by-judge.html; @iplegalfreebies and www.kasterlegal.com.

Avalanche of photos uploaded in a 24-hour period Reply

Image shared in Facebook

Image shared on Facebook

Seeing the printouts of photos uploaded to Flicker over a 24-hour period is a sobering visual of the amount of content uploaded and shared in one day (on just one of many online photo-sharing websites).  Mountains of photographs… from floor to ceiling… as part of an installation by Erik Kessels titled, “24hours in Photos.”

http://www.kesselskramer.com/exhibitions/24-hrs-of-photos and http://www.images.ch/2014/en/festival-en/program/artists/erik-kessels-3.  The photographs included in this second link are particularly amazing, because, the instillation appears to be in a church and echoes a “devotion” to online photo-sharing which may be an almost, automatic reflex for many folks.  Personally, I find the sheer volume of content that folks share online staggering (often without even considering the rights that may be given away by merely using and posting the photos to an online photo-sharing website or social media site).

Before sharing photos online, it’s always a good idea to read the Terms of Use of the website so that you are aware of how your photos may be used by other folks after you post them.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Other blog posts on Terms of Use for websites and social media at https://iplegalfreebies.wordpress.com/category/website-terms-of-use/.

Does Richard Prince’s New Exhibition Feature Instagram Photos? Reply

Each piece in Richard Prince’s new exhibition at the Gagosian Gallery on Madison Avenue in NYC appears to be a screenshot of someone else’s Instagram post that Prince has commented on and then printed onto canvas …and is selling through the Gallery.  This novel exhibition is fascinating; because, it is an example of mining content posted to a social media website under broad licensing and terms of use.

Social media websites generally allow users to post content, including photographs, under the website’s terms of use that grant a broad license to the posted content. Users generally retain ownership to posted content under the terms of social media websites. However, monitoring who uses the content and whether or not permission is needed when other folks use content posted to social media can get murky and varies depending upon the website’s Terms of Use.

For example, the Terms of Use posted to Instagram includes the following language:

“you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.”

“Any information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set. To change your privacy settings on the Service, please change your profile setting. Once you have shared User Content or made it public, that User Content may be re-shared by others.”

Instagram and other social media websites do give users ways to report violations including copyright infringements and can (and often do) disable or delete accounts of users who repeatedly violate other users and the website’s Terms of Use. Back to Richard Prince, I read that his Instagram account has been turned on and off more than once. Evidently, this has become a flattering statement regarding the artist’s edginess. Since, Prince is a celebrity artist; Instagram may earn virtual cache by having him as a user. As far as the folks whose Instagram photos appear to be featured in Prince’s exhibit (New Portraits, at the Gagosian) I recognized a few celebrity faces and haven’t read about any objections or lawsuits.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: for more information about Richard Prince and his exhibition titled New Portraits at the Gagosian Gallery through October 25th, see: http://www.gagosian.com/artists/richard-prince, http://www.gagosian.com/exhibitions/richard-prince–september-19-2014 and http://www.richardprince.com/bio/; for more information about the exhibit see: http://www.supertouchart.com/2014/09/23/first-look-richard-prince-new-portraits-at-gagosian-madison-ave/, http://hyperallergic.com/152762/richard-prince-inc/, http://www.vulture.com/2014/03/how-richard-prince-got-kicked-off-instagram.html; See also Instagram’s Terms of Use and Privacy Policy (note that the terms are subject to change): http://instagram.com/about/legal/terms/# and http://instagram.com/legal/privacy/#@iplegalfreebies and www.kasterlegal.com.

 

Inheriting Copyright – Who is Vivian Maier’s closest living relative? Reply

Copyright can be inherited and passed onto heirs just like other assets and property.  For example, the copyright in books, plays, music, photographs, speeches and other original, copyrighted and copyrightable materials may be bequeathed by will or pass at the death of the copyright owner as personal property by the applicable laws of intestate succession.   (Copyright does extend beyond the death of the author, photographer, playwright or creator of the work for a limited term – often life of the author plus 70 years).

Vivian Maier, self portrait

Vivian Maier, self portrait

As per a recent article in The New York Times, a court battle over the copyright to the recently discovered photographs taken by the deceased photographer Vivian Maier has begun.  Evidently, the young entrepreneur who has begun promoting, printing, displaying and using Vivian Maier’s photographs (after purchasing boxes of Vivian Maier’s negatives at auction) may not have tracked down, gotten permission from and paid the appropriate heir/s of Vivian Maier.  Who is Vivian Maier’s closest living relative?  This question will be key to the litigation.

This scenario of determining who the closest living relative is to a deceased creator (whose creative work was secret or unknown during their lifetime) may become more common now that the internet can be used as a fast and easy way to disseminate creative content and generate an online following and market for previously unknown works.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: The New York Times article titled, The Heir’s Not Apparent, by Randy Kennedy on 9/6/2014; U.S. Copyright Office Circular 12 titled, Recordation of Transfers and other Documents at http://copyright.gov/circs/circ12.pdf; U.S. Copyright Office Circular 15a titled, Duration of Copyright at http://www.copyright.gov/circs/circ15a.pdf; @iplegalfreebies and www.kasterlegal.com.

Reporting Copyright Infringement Claims to Facebook Reply

If someone infringes your copyright by posting your copyrighted photograph to Facebook without your copyrightpermission, it is possible to request that Facebook remove the photograph. The Terms of Use on Facebook’s website lists the steps, protocol and ways to make a claim of copyright infringement and request the infringing use of your photograph be removed. (Note, most social media sites have similar protocol for this outlined in their Terms which are usually posted via a link at the bottom of the webpage).

Here is some useful information from Facebook’s Terms of Use regarding the steps, protocol and ways to report copyright infringement and make the request to have a photograph (or other copyrighted material) removed if it is infringing (ie posted without permission and is infringing your copyright).

What should I include when submitting a report to Facebook alleging infringement of my copyright?

The fastest and easiest way to submit a claim of copyright infringement to us is to use our online form. It may be required by law that you include the following information:

  • Your complete contact information (full name, mailing address and phone number). Note that we regularly provide your contact information, including your name and email address, the name of your organization or client who owns the right in question, and/or the contents of your report to the person who posted the content you are reporting. You may wish to provide a professional or business email address for contact by users.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of the content on our site that you claim infringes your copyright.
  • Information reasonably sufficient to permit us to locate the material on our site. The easiest way to do this is by providing web addresses (URLs) leading directly to the allegedly infringing content.
  • A declaration that
    1. You have a good faith belief that use of the copyrighted content described above, in the manner you have complained of, is not authorized by the copyright owner, its agent, or the law,
    2. The information in your notice is accurate, and
    3. You declare, under penalty of perjury, that you are the owner or authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.
  • Your electronic signature or physical signature.

How do I report a claim of copyright infringement?

Submitting a claim of copyright infringement is a serious matter with legal consequences. Before you report a claim of copyright infringement to us, you may wish to reach out to the individual posting the content. You may be able to resolve the issue simply by bringing it to their attention without contacting Facebook at all.

If you are unsure whether the content you are reporting is infringing your legal rights, you may wish to seek legal guidance. Keep in mind that submitting intentionally misleading reports of infringement may be punishable under the Digital Millennium Copyright Act (DMCA) in the United States or similar laws in other countries.

If you believe your copyright is being infringed, the fastest and easiest way to report that to us is to use our online form. Alternatively, you can choose to use traditional (and slower) methods, such as mail, to contact our designated agent. In that case, you will need to ensure you include all elements of a complete copyright claim in your report.

Note: You do not need a Facebook account to submit a report.

However, if you or someone else has posted the photograph to Facebook with permission, and other folks are re-posting and using the photograph on Facebook this is a different situation and may not be an infringement of the copyrighted photograph.  (More on this topic is available in an earlier post at http://wp.me/p10nNq-ni  and in Facebook’s Terms of Use).

This post was inspired by a question that I was asked on a recent visit to the LA Photographic Club – thank you for inviting me to join y’all and welcoming me as your guest.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: More posts on the topic of copyright in photographs; Reporting Copyright Infringements on Facebook at https://www.facebook.com/help/231463960277847 and https://www.facebook.com/help/400287850027717/; Section 5 of Facebook’s Terms of Use lists terms relating to “Protecting other People’s Rights” at https://www.facebook.com/legal/terms?ref=pf; @iplegalfreebies and www.kasterlegal.com.

Using my photo? Did I inadvertently give rights away by posting it online? Reply

It’s so easy and fun to share photographs online that folks often give away rights to their photographs without even realizing it.  HOW DOES THIS HAPPEN?  The terms, conditions and licenses that the photographer agrees to when posting a photograph to various social media and photo-sharing websites often grant other folks broad rights to use posted photographs.  Keep in mind that every social media and photo-sharing website has different terms, conditions and licenses that are agreed to automatically simply by USING the website and POSTING photographs and other content.  These terms, conditions and licenses are modified and updated frequently.

teen's flicker photo

Photo: Justin Ho-Wee Wong

Here is an interesting and fairly haunting example:  A photograph of a teenager was taken by her youth counselor and posted to his to Flickr account under a broad Creative Commons license that allowed others to use his work in any way, including for commercial purposes, if they credited the photographer. (See the inserted photo).  A slightly edited version of the photograph ended up in an advertising campaign for Virgin Mobil Australia. A lawsuit followed.

THE TAKE AWAY: Read the terms, conditions and licenses that you are agreeing to when using and posting photographs and other content to social media and photo-sharing websites.  Most popular social media and photo-sharing websites, including FACEBOOKPINTEREST and TWITTER have fairly broad terms, conditions and licenses that change frequently.  Websites post their terms, usually at the bottom of the webpage. These same terms that often give other folks broad rights to use posted content,  also contain the steps to follow if your photographs or other content are being used without your permission on the site and you want to request that it be taken down.

This post was inspired by my friend Mel and a host of social media comments about a photograph that ended up on a series of KEEP CALM shirts.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Articles about the Virgin Mobil example above from the Sydney Morning Herald and The New York Times; photo of a Virgin Mobil Ad; Flickr’s Creative Commons licenses at https://www.flickr.com/creativecommons/; other blog posts on photo copyright at https://iplegalfreebies.wordpress.com/category/copyright-photos; @iplegalfreebies and www.kasterlegal.com.

US Copyright Fees increase tomorrow (5/1/14) 2

The US Copyright Office fees are set to increase tomorrow on May 1, 2014.  This increase includes some changes to the $35 fee for a basic copyright registration.  Currently, filing an online copyright registration for “an original work of authorship” via the US Copyright Office’s electronic filing system costs $35.  As of May 1, 2014 this basic copyright registration will be divided into two new categories. Some basic copyright registrations will still cost $35 and some will cost $55.  As of tomorrow, the $35 registration fee will be limited to apply only to works which have: a “single author, same claimant, [consist of] one work, not [a work] for hire.”

(Bargain hunters may want to take advantage of the lower fees today!)

new fees

image from US Copyright Office Website

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

For more information see, the US Copyright Office website at www.copyright.govearlier blog posts on the topic of “copyright” at www.iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/ ; @iplegalfreebies and www.kasterlegal.com.

 

Vivian Maier- Publishing a newly discovered photo treasure-trove 2

Finding Vivian Maier, is a fascinating, documentary film about a talented street photographer who kept her photographs secret… and was recently discovered when a young entrepreneur purchased boxes of her negatives and undeveloped film on a hunch at auction. This situation raises an interesting copyright scenario; because, Vivian Maier took her photographs from the mid-1950’s-1990’s but they are only now being “published” and made available to the public for viewing, sale and distribution. The “publication” of a work is an element in copyright registration that can often seem mysterious for a first-time copyright registrant. Let’s take a look at the publication element in US copyright registration by using Vivian Maier’s newly discovered photographs as an example.

showing at the IFC in NYC

showing at the IFC in NYC

Here is background on Vivian Maier and her photographs: “Now considered one of the 20th century’s greatest street photographers, Vivian Maier spent her life as a nanny, secretly taking over 100,000 photographs. Hidden during her lifetime, Maier’s work was discovered by pure chance when amateur historian John Maloof ended up with a stash of her photo [negatives] at an auction. Fascinated, he searched for more—and for the story behind the woman. Now, this unsung art- its strange and riveting life and work are revealed through never-before-seen photographs, films and interviews with dozens who thought they knew her.”   [the synopsis of the film, Finding Vivian Maier, as posted on the IFC website at http://www.ifccenter.com/films/finding-vivian-maier/] [the film gets 2 thumbs up].

What is copyright publication?
Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first distributed to the public. [Quoted from the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html]

Why is the publication date of a copyrighted work important?  Because, the publication date of a work may impact the duration of copyright protection vested in a work. This is especially true for works, like many of Vivian Maier’s photographs, which were created before January 1, 1978 but only recently published. Here are details on how long copyright protection endures:

  • Copyright Protection for Works Originally Created on or after January 1, 1978.  A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records),the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter. [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date. These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the life­plus­70 or 95/120­year terms apply to them as well. (Many of Vivian Maier’s newly discovered and published works likely fall into this category).  [Excerpt from US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]
  • Copyright Protection for Works Originally Created and Published or Registered before January 1, 1978.  There is quite a bit of variation in copyright terms vested in works created and published before January 1, 1978. The longest term of copyright protection for these works was for 95 years [See page 6 of US Copyright Office, Circular 1 at http://www.copyright.gov/circs/circ01.pdf]

For Vivian Maier’s newly discovered and published works, they will likely benefit from a longer term of copyright protection; since, they have recently been published some twenty to sixty years after they were taken.

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

See also: Information about Vivian Maier at http://www.vivianmaier.com/about-vivian-maier/; the US Copyright Office website at http://www.copyright.gov/help/faq/faq-definitions.html; US Copyright Circular 1: Copyright Basics at http://www.copyright.gov/circs/circ01.pdf and http://www.copyright.gov/circs/circ01.pdf#page=3; show times for seeing Finding Vivian Maier at the IFC in NYC at http://www.ifccenter.com/films/finding-vivian-maier/; @iplegalfreebies and www.kasterlegal.com.