Archived posting to the Leica Users Group, 1998/06/16
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Might interest some of you...
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Date: Tue, 16 Jun 1998 15:16:30 -0400
Reply-To: Joe Traver <TRAVER@COMPUSERVE.COM>
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From: Joe Traver <TRAVER@COMPUSERVE.COM>
Subject: internet copyright lawsuit
To: NPPA-L@CMUVM.CSV.CMICH.EDU
Dear Friends,
Please feel free to pass this message along to any interested =
photographers, photo editors and others.
I brought this lawsuit in order to try to show that there is still =
copyright protection in the digital age. I'd like to alert as many =
people as possible of this example.
=2E..Bill Swersey
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D
(C) 1998, Editor & Publisher.
Friday, June 12, 1998
$3,500 TO FREELANCE PHOTOG For Image Taken From Web Site
by David Noack
The Boston Herald has paid $3,500 in an out-of-court settlement for =
grabbing a freelance photographer's work off the Discovery Online Web =
site and publishing it in the newspaper without the photographer's =
permission.
The agreement with the Herald, which was reached in late March, was =
sparked by a copyright infringement lawsuit filed in December 1997 in =
U.S. District Court in Boston by Bill Swersey, a New York-based =
photographer. He claimed the newspaper used the photograph he took for =
Discovery Online without his permission.
The legal arguments centered on whether the Herald had committed =
copyright infringement or was using the picture according to "fair use" =
standards. While the Herald settled the case, it did not admit to any =
wrongdoing or liability.
A Web Turnabout
In the area of online copyright and fair use legal controversies, it's =
usually newspapers that go after Web site developers for posting pictures=
=
and text taken, linked or framed from the virtual publication. But in =
this case, the print newspaper was the culprit.
Swersey is a freelancer who has shot for the New York Times, Time, =
Newsweek and other print publications.
The subject of the photograph was Dave Kerpen, an entertaining concession=
=
worker who was selling soft drinks last year at Boston Red Sox games at =
Fenway Park. Swersey was on assignment for Discovery Online =
(http://www.discovery.com), the Web version of the Discovery cable =
channel. Last July, he was retained to shoot "slice of life" pictures =
from around New England for an online "Picture of the Day" feature. He =
was paid less than $2,000 by Discovery Online for the work.
Photo Appears in Herald Weeks Later
The picture of the vendor balancing soft drinks on his head was published=
=
on the Discovery site on July 18. The photograph was licensed for =
publication with Swersey's permission. The Discovery Online Web site =
includes a copyright disclaimer link at the bottom of the page. A few =
weeks later, on Aug. 6, the same photograph appeared in the Herald, =
accompanied by some other photos and a story about Kerpen being fired =
from his job.
"I decided to pursue it in large part to make an example," said Swersey. =
"Because I thought it was a very important time to make a case like this.=
"
He first contacted the Herald to find out why the picture was used, but =
said he was given the runaround.
Would Have Wanted $150
Swersey, who also registered the photograph with the U.S. Copyright =
Office, said if the newspaper had called after the photo first appeared =
online and asked to use it, he would have charged only $150.
"Once it was used without my permission, I was going to take a lot more =
than $150, but maybe we would have settled for $500 to $1,000. I think =
they should get a slap on the wrist so they don't do that to anyone =
else," said Swersey, who is now in Russia organizing the InterFoto =
Photojournalism Festival, an annual event.
Robert Dushman, the newspaper's attorney, said they decided to settle the=
=
case, since going through a court trial would have been more costly in =
the long run.
"Although I thought we had a reasonably defensible claim it was going to =
cost us more to defend it than he was willing to settle for. I actually =
looked at this as a kind of a nuisance settlement," said Dushman, who =
noted that part of the deal also included the rights to use the =
photograph in the future.
While the settlement does not establish any legal precedent, Dushman said=
=
that maybe the newspaper should have pursued the case in court in light =
of all the publicity the issue has received.
Andrew D. Epstein, Swersey's attorney, said the Herald's "fair use" =
argument in using the photo was unfounded.
"It wasn't fair use. They closely cropped the photograph. They could have=
=
had somebody looking at the computer screen and there was the picture. =
They could have taken a picture of this vendor looking at the computer =
screen with his picture (at the ballpark) up on the screen. That might =
have been fair use. That would have been newsworthy. A picture of the kid=
=
looking at himself on the monitor," said Epstein.
He said the Herald cropped the photograph out of the Web page, making it =
appear like it was their picture.
"If the Herald has used the photograph with all of the surrounding =
Website information that is shown on the computer monitor, then the use =
may have been fair use. My contention is that the Herald overstepped the =
bounds of fair use and infringed Bill Swersey's copyright," said Epstein.=
~ ~ ~
David Noack is associated editor of MediaINFO.com.
(C) 1998, Editor & Publisher.
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