Saturday, May 4, 2013

The Legal Lens: Troubling Developments and Narrowing Rights

The Legal Lens
with Samuel Lewis

Q. We took a short break since our last discussion.  Have there been any recent legal developments impacting photographers?

A. There have been a few troubling developments.  The first relates to legislation passed in the UK which permits the government to pass regulations relating to “orphan works.”  As we discussed a few months ago, orphan works include photographs and other copyrightable material where there is no easy way to identify or locate the photographer responsible for the creation of the image or work.

The legislation authorizes the British government to enact regulations that will grant licenses for orphan works.  These licenses will permit the use of a work—a photograph—as if the owner of the rights granted the license.  To put this into more personal terms, suppose that an advertiser found one of your images on the web.  If the advertiser is unable to identify that you own the rights to the image, or that you created the image, or even if they see a name but are unable to locate the right Al Diaz, the advertiser will qualify for a license if it can show that a diligent effort was made to locate you.  At that point, the advertiser will be able to use the image by paying a license fee to the British government, who in turn may deduct administrative costs from the license fee and hold the balance until you can be located.

This legislation may also be an indication of where the law is headed in the U.S.  While orphan works legislation was proposed and failed in the U.S. a few years ago, the Copyright Office has once again gone through the process of gathering information regarding orphan works that may result in another effort to pass orphan works legislation in the U.S.  Given the potentially significant consequences this sort of law may have on photographers, it is important to follow the issue and, where appropriate, voice concerns to lawmakers.

Q. What about IPTC caption information?  I’m putting caption information, including a copyright notice, in all of my images.  Is there a way to keep the IPTC caption from getting stripped off?

A. At least as it stands now, there is no way to keep the IPTC information from getting stripped off.  When you’re dealing with a standardized file format like a JPEG, you’re dealing with a file that contains distinct markers which enable software to read and/or modify the EXIF and IPTC fields.  Since those markers are more or less standard to the format, it is a trivial matter for a programmer to create a program to read the image file, search for the specific marker, and eliminate the data stored with that marker.  The only way to prevent information like a copyright notice or contact information from being stripped out is to store it somewhere other than the typical fields for such information, and this may result in more photographers watermarking their images.

It is also important to realize that some social media websites strip off or prevent access to the IPTC and EXIF information. This is especially true with social media sites like Facebook, Flickr, and Twitter, which strip off some or all of the EXIF and IPTC information, or fail to properly display the information.  The result is an image that can be downloaded without any meaningful way of identifying the person who created the image.

There is a final point worth mentioning here.  Simply including a copyright notice may not be sufficient to increase the likelihood of a potential user of an image finding the photographer who created it.  Photographers who don’t currently include some sort of contact information or link to a website with contact and licensing information should probably begin including this sort of information when editing the IPTC fields.  However, while adding this sort of information will help locate the photographer, the information will only be available if has not been stripped off by one of the social media services.  Thus, photographers should test whether EXIF/IPTC information is available for images uploaded to the various social media sites they use; if the EXIF/IPTC information is removed, careful consideration should be given to whether to upload images to that particular site.

Q. You mentioned there were a few troubling developments.  What else is new?

A. Peter Cariou’s case against appropriation artist Richard Prince suffered something of a setback.  Cariou sued Prince over his unauthorized use of Cariou’s photographs from the book Yes Rasta.  The trial court found that Prince had infringed Cariou’s copyrights, and entered judgment in favor of Cariou.  Now, a federal appeals court has reversed that judgment, and determined that 25 of the 30 pieces of Prince’s artwork fell within the fair use exception to copyright, and thus, do not infringe Cariou’s rights.  The appeals court also criticized the approach the trial court took when analyzing fair use issues, and sent the issue of the remaining five pieces of Prince’s artwork back to the trial court for a determination as to whether those constitute an infringement or fair use (including whether the artwork is transformative in nature).

Photographers should continue to watch how this case develops.  The remaining five pieces of artwork were only minimally altered, and there is a question “whether such relatively minimal alterations render [the artworks] fair uses (including whether the artworks are transformative) or whether any impermissibly infringes on Cariou’s copyrights in his original photographs.”  If the court ultimately finds that Prince did not infringe any of Cariou’s copyrights, such a decision may have significant consequences for anyone who creates images.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a professional photographer who has covered sporting events for more than twenty-five years.  He can be reached at or

Note:  The information appearing in this blog entry is not, nor is it intended to be, legal advice, and should not be construed as such.  Rather, the information is provided solely for educational purposes by providing general information about the law.  This blog is not a substitute for legal advice from an attorney licensed to practice in the state where your business is based or where you live. 

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