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TV Networks Play Fast and Loose with Photographers' Copyrights

by David Walker



A flurry of recent copyright claims against TV networks for unauthorized use of still photographs raises an obvious question: Why are media corporations with a self-interest in protecting the principles of copyright so reckless with the copyrights of others? Is it a matter of business expedience—i.e., fighting lawsuits is easier and cheaper than purchasing licenses? Is Big Media giving in to the “information wants to be free” anarchy?

At least three new claims were filed in July. New York photographer Delphine Fawundu Buford filed suit on July 22 in New York federal court against Fox News for airing her copyrighted photo of Assata Shakur, a former Black Panther who was convicted of murdering a New Jersey state police officer in 1973. Shakur escaped from prison in 1979 and fled to Cuba.

Fox commentator Bill O’Reilly displayed Buford’s photo without permission on his popular TV program, The O’Reilly Factor, when he was criticizing President Obama for inviting hip-hop artist Common to the White House. The connection? Common is a supporter of Shakur, according to O’Reilly.

According to Buford’s complaint, Fox flouted her copyright because they were anxious to distribute the image as quickly as possible “for the sole purpose of ‘beating’ [the] competition.” Buford is seeking both actual and statutory damages.

In another lawsuit filed July 29 in a St. Louis federal court, Missouri photographer Marcie Cobbaert has charged that the Lifetime and A&E television networks used at least four of her photographs on the Web site for the reality TV show Project Runway, which appears on Lifetime, without permission. Lifetime allegedly attached its own credit to the images. Cobbaert had photographed various fashion designs by Laura Kathleen Planck, who became a contestant on Project Runway and provided Cobbaert’s images to the show. Planck is also named as a defendant. Cobbaert is seeking unspecified damages for infringement of her copyrights.

Meanwhile, Michael Eastman has also filed suit in federal court in St. Louis against NBC Universal Media, Bravo Media, Warner Brothers and others for the unauthorized use of one of his copyrighted images on Bravo Network’s Million Dollar Decorators program. He’s not claiming outright theft, though: Million Dollar Decorator’s producers sought—and got—Eastman’s permission to broadcast one of his images of a dilapidated Havana ballroom. But Eastman claims he was intentionally misled to believe he was approving the display of an original, limited-edition black-and-white print of modest dimensions that the show’s producer had acquired from an art dealer. Instead, Bravo producers enlarged the image to create a “floor-to-ceiling [color] ‘mural’ of inferior quality” and broadcast it “worldwide.”

“But for Defendants’ fraud, Mr. Eastman would have never signed the Clearance Agreement” granting permission to display the photograph,” his claim asserts. He is seeking actual damages—which he estimates at $75,000—as well as statutory damages.

Three claims in quick succession could be dismissed as a coincidence, but there have been others that suggest that something more than coincidence is at play.

Tucson photographer Jon Wolff’s images of a nine-year-old girl who died in the shootings in Tucson last January 8 were widely used without permission by print, Web and TV stations without permission. When Wolff demanded payment, then threatened to sue, the perception was that he was trying to profit from a tragedy. He was vilified, and didn’t sue because of public pressure against him. But news organizations had trampled his copyrights nonetheless.

Bay Area photographer Ken Light lost his claim against Al Gore’s Current TV network after it allegedly used Light’s image of a Texas death row inmate on its Web site without permission. Because he wasn’t up for an expensive, time consuming copyright battle in federal court, Light tried suing Current TV in small claims court on state law violations. Current TV bombarded the state court with technical and legal defenses. The judge threw the case out without explanation. Light wasn’t able to pursue his claims in federal court, so Current TV—which probably spent more in legal fees to fight Light’s claim than it would have had to pay him for an image license up front—stands effectively absolved of any theft.

Meanwhile, freelance journalist Jason DeCesare of Philadelphia has sued CBS, NBC, Fox, Disney and Comcast for unauthorized used of his images of a local TV newscaster named Larry Mendte. DeCesare had photographed and interviewed Mendte, who was caught up in an e-mail hacking scandal involving a co-worker, for a publication called Phillyist. He also posted the images on his Flickr page.

“A couple of years passed, and I totally forgot about it,” DeCesare says. Then one night he saw a commentary on Mendte’s case on a local TV station. He Googled Mendte’s name, and found his images all over the Web on sites owned by major networks, as well as in clips of local TV broadcasts that appeared on YouTube. He believes the images were lifted from his Flickr site.

He has already settled for an undisclosed sum with TheInsider.com, a Web subsidiary of CBS. His claims against NBC, Fox, Comcast and Disney (owners of ABC, which allegedly used his images) are still pending. As we talked, he was Googling his images—and discovering new infringements that he was anxious to report to his lawyer.

DeCesare surmises that the infringements are a matter of corporate expediency, not policy.

“You have some low paid intern who does a Google search to find an image, and doesn’t care about the copyright,” he says. “I think they’re like the guy who jumps the subway turnstile. They’re hoping nobody’s watching them, and nobody’s going to catch them stealing.”

“TV networks are just another outlet. They need to put together that manic, eye-bleeding shit behind the anchor’s head, so they pull together a collage of nonsense by getting photographs off the Internet,” says Conor Corcoran, a Philadelphia attorney who represents DeCesare.

He continues, “I don’t think it’s economically feasible to do the right thing ahead of time. Sometimes that happens, but it’s smarter financially to steal [images] and wait to get caught on the back end.” Corcoran adds that the cost of paying a settlement after the fact or even litigating a claim is easier and less expensive than tracking down rights holders for permission in advance.

New York attorney Ed Greenberg, who is representing Buford in her claim against Fox News (and also represented Wolff, the Tucson photographer), says copyright infringements by big media organizations are now rampant for three reasons. First, news outlets didn’t used to share content because they were owned separately, but now they share content widely in print, on the Web and on TV with sister media companies. Technology also makes sharing easy and fast. So infringements are, in effect, multiplied through many channels quickly.

Second, Greenberg says, “Those who work at entertainment companies have been raised to download off the Web without consequences. They have no clue” that it is illegal, or don’t care if they do know.

Finally, Greenberg explains, “Companies know that photographers don’t register their [copyrights], and they know that odds of getting a lawyer’s letter [if they infringe a photographer’s copyright] are less than 1 in 100. . . .Their odds of getting away with copyright infringement are very high because photographers don’t do anything about it, or what they do is ineffective.”

Greenberg’s advice? Register all of your images with the U.S. Copyright Office. That makes photographers eligible for statutory damages for infringement, which in turn makes it easier to force infringers to pay settlements without a costly lawsuit.

Greenberg insists that registering images—even thousands of them “takes five minutes. It’s not a big deal.” Which is easy for him to say, of course.

But until a lot more photographers take the trouble and expense to register their copyrights, and then police them, the vast army of image infringers is likely to grow even bigger, enlisting small-timer users and big TV networks alike as it marches on.

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PDN July 2014

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