Thursday, March 31, 2011

Oprah: Don’t Try This In Paris!

A federal judge in Pennsylvania has tossed out a book author's $100 million lawsuit against Oprah Winfrey for violating the copyright in the political booklet, How America Elects Her Presidents.

The judge in this case ruled that the use of questions from the book (which Oprah supposedly read out loud in a quiz session with a whiz kid first grader, who got the answers right... btw) didn’t constitute infringement.


The copyrightable thing was the compilation, the arrangement of the facts in the book. But apparently, the author didn’t copyright the book as a compilation. The facts, themselves, weren’t copyrightable and the judge agreed that the facts were “not original.”

(Oprah is pictured above in a publicity photo for her OWN cable network.)

In a copyright infringement case from France involving Carla Bruni, chanteuse and French first lady, the outcome may be different. Bruni is suing a French newspaper for publishing an audio clip of her performance of a classic French song, in connection with the songwriter's recent death. Certainly a topical use.

However, that country and many European nations have stronger protections for artists, known as “moral rights.”

According to Wikipedia: Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.”

Moral rights were first recognized in France and Germany and were later included in the Berne Convention in 1928. These rights respect the creator’s rights to attribution, anonymity, and the maintaining of the integrity of the work.

Apparently the audio clip that was posted by Midi Libre was a “draft version” of the song. While that kind of use might be protected as a news item and “fair use” according to US law, the enhanced protections for artists in France make Bruni’s case a plausible one.

I would include a photo of her here, but I'm scared.


Monday, March 14, 2011

Photo Libaries Cash In On Government Works

While doing some research about government-owned photos, I came across an interesting blog entry from The Online Photographer. Apparently, Getty Images (and other big image banks) license out images that they don't actually own any rights to, but simply obtained from the National Archives:

"It seems that Getty Images learned a few years ago that they could buy 4x5 negatives of images from the US National Archives for $5 each. They bought thousands. Now they are selling these same images through their stock agency and claiming copyright on them. The vast majority of the images in the National Archives were taken by government employees and are public domain."

And, as one blog reader comments:

"Getty Images and Corbis both license public domain content from the National Archives, Library of Congress and other government sources and have done for years. The agencies provide PD content on their sites with enhanced keywording and quick availablilty for professional usage. The Libray of Congress and the National Archives will provide images but not licenses."

There are several distinctions to be made here.

First of all, some photo and footage archives provide master copies of the images in their libraries, but do not claim to have all the rights (or any rights) to license the photography. They aren't the copyright holder, nor do they represent them. They are only a source for the masters.

Although they should tell you this, it is also your responsibility - ultimately - to find out if they are licensing this image to you and indemnifying you for any possible claims regarding the rights to the photography. (One simple way to do this is to read their license language, another is to have them sign your license to ensure you have the coverage that you need). It sounds like Getty is doing their due diligence, discovering that these photos are in the public domain (as the overwhelming majority are) and then providing not only a high-resolution digital image, but also a license which indemnifies the licensee.

Another copyright fine point to consider in the area of Government Works is when they are, or are not, eligible for copyright protection.

According to US Law, "Copyright protection... is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."

That means that a work created by the U.S. government or its employees cannot receive copyright protection, but a work done by someone outside the government with its copyright protection could be later transferred to the U.S. government, and in that unusual case, it could still have copyright protection.

Here's an example, courtesy of Photo Attorney (I feel like there should be a trumpet flair, enter... da da da daaa... Photo Attorney! ok, never mind). Anyway, this guy has some interesting points about this scenario. He cites the common practice of photographing public statues for postcards, and so forth, which copies would be unrestricted if the original work had no copyright protection, right? Copyright means, literally, the right to copy.

But, what if the statue wasn't made by the government or its employees, but was commissioned? Photo Attorney?

"Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The "government works exception" then allows the federal government to hold the copyrights for those works transferred to it by assignment."

He goes on to point out that some observers feel that the government may abuse this exception to get copyrights to which they might not otherwise be entitled. And suggests that you consult someone like, Photo Attorney! Not necessarily a bad idea.

The Vietnam Women's Memorial Foundation is using

the Government Works Exception as a basis to sue

those who have sold photographs of the memorial.

(Photo courtesy of iStockphoto.)

But, as far as using photography from the National Archives, the archives themselves point out that most of the photography is free of copyright. That would apply, similarly, to photography from US Govt agencies like NASA, US Fish and Wildlife Service, etc. Of course, one would have to carefully research each image from the archives on the respective government sites to ensure that the photo is in the public domain. And, other rights issues could apply. Even if they are copyright free, if people appear in the photos, they may have publicity or privacy rights, or other contractual protection (a model may have appeared in the photo and re-using that person's image commercially may require clearance, for example).

In the photo, above, of the Statue of Liberty... the statue itself is owned by the US Government. But, who took the photo? Aha! They will have rights to the photo, potentially, even though they don't owe anyone a dime for the right to take a picture of the statue. You will have to get the photographer's permission to use that photo, unless it's a photo taken by the government, itself. (Above photo is courtesy of the US Dept of the Interior, National Park Service, PD).


Best to consult your friendly, local clearance person. . . I bet he will be cheaper than Photo Attorney.

Courtesy of Smiley Face