Headline: "Local photographer sues over photo of shooting victim"

<p>Are any of you going to try and explain why the second photographer, the creator of the images in the three articles originally linked to, should not own copyright of those new work images?</p>

 

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<p>Are any of you going to try and explain why the second photographer ... should not own copyright of those new work images?</p>

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<p>Scott: Do you consider your use of a photocopier to reproduce the page of a book to be the act of creating new work? Simple yes or no, please. Conveniently, you'll also be answering your own question.</p>

 

No problem.

 

www.copyright.gov/circs/circ14.pdf

 

"The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright of that material."

 

And if the argument is that these are not derivative works, just straight copies, well, then that is simply pure copyright infringement.

 

Nothing sets my teeth on edge more than to see the phrase "fair use". People use that to cover all ills.

 

"i paid $6,500 for this Ansel Adams photo so I should be able to make and sell copies for $100. That is only fair."

 

Unfortunately, one can usually find a judge to agree with that. Judges should base their rulings on the law not on their opinions. "It is the opinion of this court ..."

<p>Matt,</p>

<p>No of course I don't, but I don't consider Princes work to be original either, and I have been proven to be wrong on that one, it has been shown his work is considered to be original.<br>

I do consider the photographers image as linked to in the three articles an original work though. He has used the photograph as a subject in a bigger image bringing different context and meaning to it. Are you suggesting that in my looting scenario the painter should maintain copyright?</p>

<p>James,</p>

<p>That is the case for derivative works, we have already covered that. Now find a similar thing that covers appropriation.</p>

<p>Look we all agree that appropriation is wrong, but I just pointed out that it is true. Now where the line is drawn is not as clear as you guys are believing.</p>

<p>Again, with regards the specific image linked to.</p>

 

<p>Are any of you going to try and explain why the second photographer, the creator of the images in the three articles originally linked to, should not own copyright of those new work images? Because I can find hundreds of examples where similar images do the same thing, I can even show you a video of a highly respected and regarded world famous photographer taking a picture of a picture. Nobody would claim that he does not own copyright on the image he took.</p>

 

<p><a name="00YDa1"></a></p>

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<p>Are any of you going to try and explain why the second photographer, the creator of the images in the three articles originally linked to, should not own copyright of those new work images?</p>

</blockquote>

<p>It has already been explained that adding additional or different creative attributes is more than mere copying and could become the basis of a new work while mere copying will not. If mere copying were enough, the entire copyright system would collapse since nothing could be protected. The whole notion that copying is a creation of a new copyright is absurd.</p>

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<p><em>the copyright was owned by Philip Morris, they tried to claim copyright privileges but lost because it was shown that Princes use did not interfere with the copyrighted objects intended use.</em><br /> <em><br /></em><br /> The only way Philip Morris could have "lost" a copyright "claim" is through the judicial process. Where is the court case that Philip Morris lost?</p>

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<p>Still waiting for a cite, link or other identification of the case.</p>

"Appropriation" seems to be a term embraced by the artistic community. It sounds so much nicer than "copyright infringement". It would seem to have no part concerning this thread. The editors using the photo were not concerned with an artistic interpretation, they just wanted to crop and use the photo as they saw fit. Copyright infringement is a violation of federal law. But, one really sees it brought to the federal bar. Most suits are brought in civil court for damages not for criminal violation of federal law. Perhaps if some federal prosecutor is sitting around with nothing better to do he could bring a The People vs. Richard Prince action. A few years in the slammer might do Mr. Prince a lot of good.

 

Too many judges mush everything up by giving their own point of view rather than a strict adherence to the law. "It is in the best interest of the artistic community..." "The general public is best served if ..." Then we have a precedence based not on law but on how one particular judge was feeling that day.

<p>Back to the original issue, there is a big public backlash against the photographer for supposedly taking advantage of some poor victim for 'greed'. They have no idea that the case, whether it has merit or not, has nothing to do with the girl and is about a big media outlet allegedly stealing his work and using it for their own business purposes. The public doesn't see subject of the photo as incidental but to be the crux of what the case is all about.</p>

<p>The lesson... be careful of the public's ignorance and perception of copyright laws. Winning the battle may cost you the war.</p>

<p>Manuel, the family's feelings on the issue are another red herring. They are not the ones harmed by the action. The fact that they say they do not understand the motive for the lawsuit is evidence only that normal people do not understand intellectual property.</p>

<p><em>"It has already been explained that adding additional or different creative attributes is more than mere copying and could become the basis of a new work while mere copying will not." </em></p>

<p>So we are agreed, the second photographer owns copyright on the image he took of a family member holding the original photograph. If the image linked to <a href="http://www.kgun9.com/global/story.asp?s=14017124">here</a> is uncropped then the original photo covers no more than 25% of the second photographers image. If that second photographer is legally allowed to sell that image, and nobody would say he isn't, at what stage would a picture editor not be allowed to crop it? Cameras are plenty good enough, and web and news print low resolution enough, to make almost any crop from the second photographers file, it certainly didn't need a different close up of just the first photo.</p>

<p>All I have tried to say is this is not a straightforward copyright claim. It is not an unauthorised use of an original image (in so much as we are actually talking about the use of a second image). It is not a piracy issue.</p>

<p>The far subtler point is, when is a crop of a legitimate photograph an infringement of another persons work? And if you consider it is an infringement, who is liable, the photographer or the editor?</p>

<p>James,</p>

<p>I agree, the wrong precedent has been set, but it has been set. But we need to be very careful what we ask for. Once everything starts to get copyrighted it will do nothing but restrict photographers freedom to photograph all the things we can photograph now.</p>

 

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<p>So we are agreed, the second photographer owns copyright</p>

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<p>I didn't say that. http://www.lostrepublic.us/Graphics/DoubleFacePalm.jpg</p>

 

<p>Scott, are you paying no attention at all? The photo you linked is not the one complained of. Of course the second photographer owns the right to the photo of the person holding the photo - the part that's problematic is the other image that's been circulated, that the second photographer took by holding the camera orthogonal to the framed photograph and using it to copy the original photograph. It's not a crop of this or any other legit shot. It's a straightforward, for commercial purposes, unaccredited, unauthorized, unpaid for copy. Just type Christina Taylor Green into Bing image search and you will see dozens of copies of the photo.</p>

<p>No, Scott is not paying attention to what the entire issue is actually about. He's agreed (in passing, because he's had to) with the actual point in discussion, but is having a parallel conversation that isn't germane, and is then drawing an odd cautionary conclusion that doesn't actually apply to the topic at hand. It doesn't matter. We can reasonably discuss if the photographer is being a bit tone deaf in how he's communicated through his lawyer, but with respect to the infringement and protection of his IP, he's dead on. And as mentioned above, the distraught family's lack of a solid background in copyright law is completely beside the point.</p>

<p>Thanks guys,</p>

<p>I expected more form you Matt, I didn't expect more from John though, and he didn't disappoint.</p>

<p>After doing the Bing search I see two, more prolific, images. One has a pinker caste (A), the other a greener caste (B). They were obviously, originally, taken at the same time but are different images.</p>

<p>Now do any of you deny this photographers copyright to <a href="http://littlebytesnews.amplify.com/2011/01/10/a-face-of-hope-christina-taylor-green-91101-1811-taken-too-soon-by-the-face-of-terror-parents-kids-tcot/">this image</a> ©?</p>

<p>If you don't, and I had thought we were agreed that we didn't, I would like to point out that image © has been used cropped down to just the included photograph, at the very least. This is easy to confirm because of the shadow across the bottom of the frame. Now my camera could easily provide a still tighter crop, in fact I believe the pinker image (A) is a very heavy crop of image ©, the angle, WB and pink caste are the same.</p>

<p>If this is correct, then is the photographer of image © really guilty of infringement? Is the editor?</p>

<p>Who is to say image (B) is not a similar crop? I can find no wider views of image (B) but that doesn't mean anything, certainly the image quality doesn't reflect an uncropped image.</p>

<p>So rather than keep saying the same thing over and over again, "it is a clear cut copyright infringement". Explain to me why image © is not an infringment but a crop of it, image (B), is.</p>

<p>Well I made yet another mistake!</p>

<p>Image (A) and image (B) are the same image. So as far as I can see all the reprints could have come from image ©.</p>

<p>Of course, the second photographer can take and have the rights to image C. If the original photographer tried suing over that, he might or might not win - it would depend on a lot of factors, some of which are subjective. However, an editor who crops it to show just the original photo may be liable for copyright infringement, and none of this addresses the other image that is just a copy. I'm not going to go back to find any of the sites that had a sufficient enlarge feature to demonstrate this, but I assure you that there are copies being used that are high enough quality and resolution that they can not be crops of any of the images I've seen of somebody holding the photo.</p>

<p>But <strong>IT DOESN'T FREAKING MATTER.</strong> If you copy somebody's photo and use it in your publication without permission, it does not matter exactly what method you used to do it, you can be held liable. I've seen cases where plaintiffs won judgments against defendants who copied their photos with a camera, a Xerox, a scanner, a pencil and a stained glass window. Yes, it's possible to be liable for infringing somebody's photo if you make a stained glass window based on it. You can go on Flickr, find somebody's photo, print it, photograph that print and include that photograph in your magazine, and if you get sued you're probably going to lose.</p>

<p>Do we really have to keep going over this? I understand that you don't believe that using a camera to copy somebody else's photo can make you liable for copyright infringement. I had a roommate in college who liked to say "Fortunately, my reality does not hinge on your belief."</p>

<p>Andrew,</p>

<p>It does matter. Find the sites, provide links, the search you embarrassingly kept referring me to does not illustrate your point, it illustrates mine.</p>

<p><em>"it would depend on a lot of factors, some of which are subjective."</em> that is all I was trying to point out from the beginning, this is not as clear cut as you all think, even the crops.</p>

<p><em>"I understand that you don't believe that using a camera to copy somebody else's photo can make you liable for copyright infringement."</em> You obviously have not been reading my posts. I have said several times I 100% believe copying with a camera is wrong, I believe Prince et al are all wrong and appropriation is wrong. But I have only tried to point out that it happens. This case is not as clear cut as you guys keep insisting.</p>

<p>If you copy somebodies photo, even if it is copyrighted, and you use it in a way that does not affect it's original use, or, if you can claim fair use, <strong>you could very well get away with it</strong>, <strong>even in court</strong>, that is all. Many people have and they have made millions from it. And that is wrong.</p>

<p>Your point is that <em>there might be some possibility of them getting away with it</em>? This is the most pointless thing I've engaged in since yesterday, when I read a magazine article that included a discussion of how many FPS Ansel Adams would want his DSLR to have if he were around today. I'm out.</p>

<p>You may have expected more from me, Scott, but I'm still beating my head on the desk, hoping to understand what you're actually trying to achieve. It doesn't seem to have any bearing on the actual matter at hand. That was the basis for my "not germane" comment. That someone "could very well get away with" infringing on another's copyright is true ... sort of like "you never know when we might get bad weather" is true. The guy is defending against plain-as-day infringment, and the only news is that the manner in which the issue is being reported, discussed, and mis-understood by a wider audience with their minds on the family and the lost girl is distracting from (and distorting) the meaning of the photographer's legal actions.</p>

<p>Guys, why isn't this fair use? </p>

<p>Notice, it's a newsworthy event, in the public interest, to report that someone slain in a murder would be represented by a relative holding a copy of that person's picture. Also, the lawyer for the photographer himself said that his client would make no money off of this. Making money off of the image is a predicate for meeting the definition of "publication." Copyright.gov covers that part pretty well. If you're not selling the image, and no one is taking away your sales by reproducing your image, then there is no infringement. Infringement is horning in on someone's sales territory, not just copying by itself. Infringement is a commerce problem more than it is a mechanical act of copying. </p>

<p>It seems to me that in order to prove infringement, that the photographer will somehow have to prove that he was trying to sell that image at the time. So, was he making money, or trying to, by selling copies of that picture to news organizations? I looked over the first five paragraphs of several of those stories, and ten pages of these posts here, and I haven't seen anyone say that he was trying to sell that image. If not, then how is it published?</p>

<p>I'll usually rant against anyone who does anything but pay the photographer, but it sounds to me like this is probably going to get called fair use. That incidental use stuff James brought up sounds like it's going to come up, I think. </p>

<p>Is it a derivative work, exploited unfairly, or is it reporting what a newsworthy victim lawfully possesses?</p>

<p>Andrew the family is not harmed? They lost a daughter and have not gotten over their grief if they ever will and you say it is a red herring. I think some of you have lost sight of life and have focused on mammon. The public is not ignorant they see what the photographer is doing for what it is, a person who sees an opportunity to make some money out of someone's tragedy.<br>

.............................<br>

Today, the family of Christina Taylor Green released the following statement:<br>

"<em>Jon Wolf, as we have painfully learned, showed poor taste in his choice to litigate over the usage of his photograph of our little girl Christina-Taylor Green. Our intent was not to allow others to profit from the Jon Wolf image but to allow the media to portray our daughter in the best light possible and to tell her story. It is unfortunate that he has chosen to litigate over the use of his photograph at this time, or at all, in light of the fact that our family is still mourning and grieving the loss of our daughter."</em><br>

http://www.kvoa.com/news/jon-wolf-to-halt-filing-legal-action-over-green-photo/</p>

<p>If he's not going to take any reward, then he's not receiving compensation. So, how is that "selling"? If he's not selling, then how is copying his work an "infringement"? If you can't buy it, because they're not selling it, then how is it that the image needs the commercial protection of copyright law?</p>

<p>No registration? Where's the proof of past commercial protection requiring attention of the law?</p>

<p>Was he, like, trying to sell that photo at $1500 a pop to commercial stations or something? And, did they end-around his sales offer by recording this woman holding that photo? I don't know, but I don't expect that's plausible.</p>

<p>It just sounds like the photographer is not going to pass muster. He's unprepared for success with a copyright claim. It's just not passing the stink test. If he's not going match up with some of the basic ideas about copyright law, then what's going to happen? He'll be seen as not only unprepared, unwilling to accept compensation and basically unvictimized; but, also seen as a villain who is harassing someone victimized by murder. We'll maybe see what happens, but I think this guy is going to get a legal paperwork smackdown in return for his efforts; I'd expect that he'd lose.</p>

<p>That un-victimized aspect is going to come into play with some evaluations. No victim; no crime; no need for a trial or a determined outcome. Where's the grievance? Even actions, like offering to donate proceeds to charity, only undermine his commercial claims; it'd go back to the no profit-no sale idea, above. </p>

<p>The weeping victim holding the family photo is going to play out as fair use in reporting of a national event. With no commercial interest active, and no registration, there'll be no provable commercial infringement. This thing has "flunk" written all over it.</p>

<p>Of course, I have no expectation that being right or not being right would ever influence any of the lawyers involved. They'll all be right when they charge their fees. Good night, Gents.</p>

<p>Matt,</p>

<p>I am not trying to achieve anything. All I have ever tried to point out is that this <strong>is not a clear case of copyright violation</strong>, it might seem to be by most posters understanding of the copyright rules, but as I have said, that is not how similar instances have been interpreted in the courts. There are very justifiable reasons that the second image can be claimed to be either an appropriated work or an instance of fair use. Both these have been successfully used before to defend actions like this. That means <strong>it is not necessarily against the law</strong>, and by getting away with it I don't mean getting away with breaking the law, I mean it as circumventing what most posters understand to be the law. Most posters are not in line with what has proven to be.</p>

<p>I suppose I am trying to say, guys, your bedrock understanding and belief of copyright law has been shown to not apply too often. You might be rooting for the first photographer, but I don't think he can win in court.</p>

<p>None of this has been about my feelings on the particular case.</p>

<p>To be honest this is the comment that drove my obstinacy.<br>

<em>"If you guys did any amount of research of all before jumping, you might have gone to, say, this: <a rel="nofollow" href="http://www.bing.com/images/search?q=Christina+Taylor+Green" target="_blank"><link></a> and seen that <strong>many or most news organizations used a full copy</strong> of the photo and used it in various places. Some have large versions you can click on that show that somebody held up the photo in reasonable light and used a quality digital camera to make a copy." </em>it has proven to unsubstantiated. I could pull the detail shown in those images from the second photographers image© if I had the full file.</p>

<p>I don't believe the second photographer did anything wrong at all, I believe he could easily claim 'appropriation' or 'enough difference' to be called a new work. I believe the cropping has been done by editors, there are so many slightly different versions it would seem logical, and I doubt if those editors are too worried about losing a case with regards fair use.</p>

<p>Both John and Scott are talking sense here.</p>

<p>Looks like a <a href="http://www.eurweb.com/?p=84659">less local photographer feels like suing too</a>.<br /> I would love to take a photograph of a Richard Prince photograph of a photograph hanging in a gallery, and then sell it as my own. <br /> -----<br /> Regardless if the photographer in this case was / is right, he's still wrong.</p>

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<p>Making money off of the image is a predicate for meeting the definition of "publication" Copyright.gov covers that part pretty well. If you're not selling the image, and no one is taking away your sales by reproducing your image, then there is no infringement.</p>

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<p>Yes, copyright.gov, indeed, covers this pretty well. It contradicts it entirely...</p>

<p><em><strong>></strong>"publication" is the distribution of copies or phonorecords of a work to the public by sale <strong>or other transfer</strong> of ownership, <strong>or by rental, lease, or lending. The offering to distribute copies</strong> or phonorecords <strong>to a group</strong> of persons f<strong>or purposes of further distribution, public performance</strong>, <strong>or public display</strong>, constitutes publication.<</em></p>

<p><em> ><strong>Publication is not necessary</strong> for copyright protection< </em></p>

<p><em>><strong>No publication... is required</strong> to secure copyright<</em></p>

<p>Even if the quote framed above were accurate, the photographer almost certainly paid for providing the use of the image. In any event, publication and sales are relevant but not in the way the quote says.</p>

<p> </p>