Legal Updates 1998

1. GASPERINI JUDGEMENT UPHELD
The decision in Gasperini came out yesterday. The appellate court upheld the district court's latest decision in which many of the images were considered unique and therefore worth $1500. There was a minor discrepancy between the jury's award based on 300 slides and the judge's decision that was based on 310 slides. This was the only issue returned to the trial judge. This decision supports the value that unique, professionally edited slides of professional photographers are worth $1500. Jonathan Abady, Mr. Gasperini's attorney, personally called yesterday to thank PACA and all its members for their continued support during this long arduous court battle.

2. PACA REPRESENTED IN COPYRIGHT REGISTRATION HEARINGS
On Thursday, October 1, 1998, I appeared on PACA's behalf at public hearings
held at the US copyright Office, Library of Congress, on the subject of the proposed fee increases for Copyright Registration. Under the proposed fee schedules, the fee of $20 per application would increase to $45 per application. Under an alternative schedule the fees for individual authors would increase to $35 per application, the fees for non-individuals would be higher to compensate. Mary Beth Peters and members of the Fee Analysis Task Force Group held hearings and received comments from various panels of speakers. Representatives from a small publisher (Warren Publishing), The Graphic Artist Guild, the National Writers Union, American Society of Journalists and Authors, the Professional Photographers of America, American Society of Media photographers attended the hearings and made presentations. The concern that the proposed fee increases would disproportionately harm individual authors such as writers, illustrators and photographers was unanimous. The fact that no statutory damages or attorneys fee can be obtained without registration prior to an infringement leaves these groups without adequate remedies in the event of infringements.
In addition, I recommended that a realistic group registration for photographers be considered that would include both published and unpublished works, that the registration of catalogs be less complicated to cover the underlying work and that the statute requiring registration as a condition of statutory benefits be re-examined in light of the fee increases. I submitted a written report on PACA's behalf at the hearing as well. Further comments can be made until October 5, 1998. Hopefully the concerns of the various groups represented will be considered before any increases are enacted. I will keep you updated as to any further developments from the Copyright Office.

3. MORE INFORMATION ON TRADEMARKS
In furtherance of PACA's concern regarding the recent trend for owners of buildings to assert a trademark registration in buildings and control the use of photographs of buildings, such as the Chrysler building or the Flat Iron building, I spoke with Lynne Beresford, the Attorney -Advisor from the Patent and Trademark Office; Office of Legislation and International Affairs. She confirmed our understanding of current trademark law, that buildings in general are not proper trademarks. A trademark must identify goods or services. In most instances, a building simply identifies the building. Exceptions are the orange roof of Howard Johnson or McDonald's Golden Arches in which the structure identifies a business. She is willing to be a liaison to the organization and will contact me if the office writes any policy papers on this issue.

4. ALTA VISTA
Last month at the PACA International Meeting, it was brought to the members' attention that Alta Vista had developed a web crawler called AV Photo Finder that could search images from web sites and bring them up on the viewers' screen. In the general web search, two URL's were provided. The first brought you to the web site where the image was located. The second URL image permitted the display and viewing of the image without any reference to the web site, removing the image from any identifying material including copyright information. At Allen Russell's request, I contacted the intellectual property attorneys' at Compaq (who now own Alta Vista) on behalf of PACA. I explained who PACA was and expressed the members concern regarding potential copyright abuse of images. The attorney agreed to review the matter and get back to me. When we spoke again, he agreed that Alta Vista would remove the second URL that permitted a stand alone display of the image. I think this demonstrates the benefit of approaching some issues the new technology brings as a group and urge members to keep an eye out for similar activity.