|
| Posted by: Madman
- [14139157] Sun, Mar 16, 2008, 22:53
Fascinating story. link
The AP distributed three of those images, in one of which she is wearing a bikini, and issued a disclaimer authorizing the use of the photos only with reports or commentary on the Spitzer scandal. The photos were also restricted from commercial sale.
"The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy," said Associated Press National Photo Editor V.W. Vaughan. "We distributed the photos that were relevant to the story. Those photos did not show nudity, nor were they explicit."
And from the Photo District News ... link
When a prostitute hired by former New York Gov. Eliot Spitzer was identified Wednesday, news outlets eagerly published photos grabbed from her MySpace profile.
Can they get away with that?
Three attorneys who specialize in copyright law say media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.
"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument."
...
"If these are the only images available, they might go for thousands and thousands of dollars on licensing," Hecker says. "I think the probability would be that this would not fall under fair use."
Heh. Free photos on Myspace! Or not ... |
| | | 1 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 00:31
|
I hope they get busted. The courts have ruled several times that news organizations cannot take copyrighted material (particularly photos) without permission simply because they themselves designate them as "newsy."
The non-nudity plays no part in the thing.
|
|
| | | 2 | Seattle Zen
ID: 529121611
Mon, Mar 17, 2008, 00:56
|
I don't know. If you put up a photo on MySpace and you designate it "Public", I think you've given away any private ownership. Wouldn't that be the same as printing a pile of fliers, leaving them on the flier table at your local library with a "Take One" sign above it, then complaining when someone takes one and makes copies of it and distributes it themselves?
|
|
| | | 3 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 01:13
|
No, just because you put it up on the web doesn't mean you lose copyright ownership. And remember, the AP isn't claiming there is no copyright. They are claiming that the newsiness of the story grants their use as being fair.
No one puts up a photo on myspace with the understanding that it will be reproduced by commercial enterprises without permission. The understanding is that the photos will be viewed on the myspace web page only.
|
|
| | | 4 | Madman
ID: 230542010
Mon, Mar 17, 2008, 09:06
|
I was just shocked that the AP distributed the photo; in one link (sorry, not sure if it was one I used), they indicated that they specified it was not for "commercial sale" ... it's like they just totally trampled over the rights of whomever took the photo.
I also wonder if Dupre was given the copyright over the photos; it's not entirely clear to me who really owns the images. Therefore, I'm not sure SHE can win a suit against the news organizations, no?
I'm also not entirely clear what the "public figure" aspect has to do with it, unless the people who actually took the photos made a deal with the AP without her consent ...
|
|
| | | 5 | Mattinglyinthehall
Leader
ID: 01629107
Mon, Mar 17, 2008, 09:15
|
The courts have ruled several times that news organizations cannot take copyrighted material (particularly photos) without permission simply because they themselves designate them as "newsy."
What cases are you referring to, PD? I'm not a lawyer but it looks like a prety strong case for Fair Use to me.
|
|
| | | 6 | sarge33rd
ID: 76442923
Mon, Mar 17, 2008, 09:17
|
According to your first link in the OP, and a subsequent Google of "Wesley Mann", Mann is the photographer who took the pics and then sold them to "Contract Press Images".
Admittedly, my knowledge of copyright law is limited, bit it seems to me that the photographer, NOT the model/subject, owns those photos and the rights to them.
|
|
| | | 7 | sarge33rd
ID: 76442923
Mon, Mar 17, 2008, 09:19
|
meant to attach this link:
photos taken for publicity purposes
If they were indeed taken for the purpose of "promoting her singing", then they were publicity shots and intended for distribution in the first place. Yes?
|
|
| | | 8 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 10:16
|
Unless the model signed away her rights (which, as a model she almost certainly would not) she would own the rights of publicity on the images of herself.
The intended use of the photos are not the issue sarge, the actual use is. If you were to put up a photo of your family on your website, the unstated intention is that you are promoting your family in doing so. Does that mean a commercial entity can come and take your photo, claiming you are in the news and therefore cannot tell them no?
MITH: I thought I had a case bookmarked, but I don't find it. Will dig around. Essentially, nobody (particularly not a commercial new organization) can take a piece of copyrighted work that is ancillary to their story (such as a copyrighted photograph to illustrate their piece) and claim "fair use" on it simply by calling it under some sort of umbrella news. Particularly when the basis for the claim is, essentially, self-certifying. News companies can make the claim that news is what they say it is, which would turn copyright exclusivity on its head.
|
|
| | | 9 | Mattinglyinthehall
Leader
ID: 01629107
Mon, Mar 17, 2008, 10:40
|
Unless the model signed away her rights (which, as a model she almost certainly would not) she would own the rights of publicity on the images of herself.
Is that the case with certain kinds of publicity photos (headshots and such)? Normally the photographer is the rights-holder to any professionally taken photograph. For example if you get a family photo taken as Sears, the photographer (or in that example, the company - Sears) owns the exclusive rights to your family portraits.
I have some familiarity with copyright and fair use issues. For about 5 years I was the newsroom production coordinator at a cable TV network (where I am still employed). During that time my primary responsibility was to obtain materials produced outside the network for the purpose of using them on our air. Obviously, Fair Use is something that came up a lot.
The basic measure for a Fair Use case is that the material itself must be topical -- i.e. the material is the news.
I dug up some of my old notes from meetings with general counsel and from reading through I think now this case is probably a bit murkier than I first thought.
Photos are actually a bit trickier than something like an excerpt from a song or a movie because you're usually using the entire work as opposed to a sample of it. As our former GC pointed out in one seminar, the amount and substantiality of the portion used in relation to the entire work is one of 4 primary factors in determining whether the use of a copyrighted work is not actionable despite the absence of a license. The other three being: the purpose and character of the use (whether the material itself is topical), the nature of the copyrigted work amd the effect of the use upon the potential market for the work. That last one probably also supports action against outlets that used the photos.
|
|
| | | 10 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 10:53
|
Not for publicity shots for a particular model. Normally the shots are done for-hire so that the use of the images by the model (or their rep) are not unnecessarily restricted. Normally for-hire works are paid for with some kind of flat fee arrangement, then the model is free to use the images so long as the photographer is credited. You're right that Sears photos are ccopyrighted by Sears. But a model wouldn't go to Sears (not only because of quality, but because the intention isn't to put the image on their mantle but to distribute it as they want or need to).
The question of fair use with photos is this: Is the photo the news, or is it secondary to the news? The story is the news, not the photos. The news agencies chose to illustrate the news with photographs by expanding their definition of "news" to cover someone else's copyrighted work.
pd
|
|
| | | 11 | Boldwin
ID: 3013265
Mon, Mar 17, 2008, 10:57
|
PD
I understand your point I think but what if the only available photos were the ones on her myspace. Wouldn't newsworthiness trump copyright or would they be required to hunt her down and photograph her?
|
|
| | | 12 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 11:06
|
They would be required to either get permission (that is, license the images from her) or take their own photographs. The news companies are making the point that no other photos appear to be available, but this itself isn't enough to overcome the need to obtain permission (like the argument about the "newsy" nature of the photographs, the issue is self-generated. The fact is they really, really want the photos and want them right now).
Sounds like she's holed up, however. This, in the end, could be a good thing for her. I sense a future Big Brother, Celebrity Edition coming up for Ms Dupre!
|
|
| | | 13 | Mattinglyinthehall
Leader
ID: 01629107
Mon, Mar 17, 2008, 11:07
|
Right. But note that a news story can be written to ensure a fair use argument for a copyrighted work. As you said the distinction (the first one) comes down whether the work itself is the news. The revealing of the identity of the woman Spitzer trysted with is definitely news, which is why I initially said the case for fair use looked strong.
It's the other factors I found in my notes that lead me to question it.
By the way if my initial opinion was correct the window for material remaining topical is reletively small. For a TV Network or daily publication newspaper for example, it shouldn't be more than 48 or maybe 72 hours, possibly less. For a weekly, I believe they can get away with printing it in the issue released after the story broke.
|
|
| | | 14 | Perm Dude
ID: 22253156
Mon, Mar 17, 2008, 11:11
|
Yeah, I meant to add in my note to you that cable/TV news is a little different than print/internet news. The nature of the former is video & photos, so there might be a stronger argument there.
But the actual problem seems to be coming from a traditionally-print oriented outlet. I'm going to drop a note to some NYC copyright lawyers I know to see if they can sense where this is going. Typically this all ends with a settlement.
|
|
| | | 15 | Seattle Zen
ID: 49112418
Mon, Mar 17, 2008, 11:54
|
All this buzz is certainly going to drive up the price for her photo spread in either Playboy or Penthouse, both of whom haven't had a buzzworthy photo spread in ages and ages.
Unless she's too modest to pose nude...
|
|
| | | 16 | sarge33rd
ID: 76442923
Mon, Mar 17, 2008, 13:32
|
At $5500/hr, her modesty is clearly for rent.
|
|
| | | 17 | biliruben
ID: 33258140
Mon, Mar 17, 2008, 15:06
|
It wasn't her body. She has a great personality.
|
|
| | | 18 | Boldwin
ID: 3013265
Mon, Mar 17, 2008, 15:26
|
They loved her for her mind.
|
|
| | |
|
|