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 SLewis@FeldmanGale.com or SLewis@ImageReflex.com.
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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