From the PACA Update Archive
PACA Bi-Weekly Update
Prepared for and distributed to the Members of the Picture Archive Council of America
In This Issue:
IMPORTANT ASSOCIATION INFORMATION
PACA Legal Update
Copyright Office Seeking Comments On Section 108-The Copyright Exemption for Libraries and Archives:
The Copyright Office formed an independent study group in April 2005 to examine the issues associated with digital technology and whether the limitations and exemptions in Section 108 need to be revised to account for changes in digital technology. The Copyright Office is now seeking public comments on specific questions and has posted a Federal Register Notice located at http://www.loc.gov/section108/docs/FedRegnotice_Jan2007.pdf.
As I am a member of this study group, I cannot make any comments in any official capacity. However, I am very interested in members’ thoughts and concerns and would appreciate it if those interested would go to the website and read more. In particular, I am interested in what members think of Part B and C of the request for comments. Comments can be filed between February 1 and March 9, 2007.
Section 108 was written with the preservation of essentially text based works and excludes works of visual arts and audiovisual works (except for visual art incorporated in print works). Part B asks whether this limitation is valid anymore. Archives, libraries and museums have collections of visual works and would like more freedom to share what they consider to be part of our cultural heritage to their patrons in electronic form for research and study. Part C looks at what limitations on access there should be to digital works.
Koons admitted that he copied, scanned and superimposed the legs, feet and Gucci sandals from the photograph, and incorporated them into a collage, which he then gave to his assistants to make the painting “Niagara” at issue in this case. Niagara was part of a seven-painting series commissioned by Deutsche Bank for $2 million, and displayed first at the Deutsche Guggenheim Berlin and subsequently at the Guggenheim Museum in New York. In the painting, Koons merely altered the orientation of the legs from a 45-degree angle in the photograph to vertically downward. Koons described Niagara as featuring “four pairs of women’s legs and feet which dangle over a landscape. Below them is a monstrous chocolate-fudge brownie, served with a mound of ice cream and flanked by trays of glazed donuts and apple Danish pastries.” According to Koons, his painting comments on “the ways in which some of our most basic appetites—for food, play, and sex—are mediated by popular images.”
Whether this use of the photograph in the resulting painting is infringing or not, depends on whether Koons can satisfy the court that his use is exempt from infringement based on the fair use doctrine. This doctrine is where the rights of a copyright owner are balanced against the First Amendments right of free speech and free expression. According the Copyright Act, the court must examine four fair use factors in making a determination.
The Court’s Analysis Of The Four Fair Use Factors
The Court’s Fair Use Conclusion
The Court gave heavy weight to the transformative purpose and nature of Niagara. So what did Koons do differently this time? Unlike earlier cases, this time Koons took only parts of plaintiff’s photograph, changed them by placing them at a different angle, and incorporated them in a collage with other elements. However, the Court seems to shift the transformative analysis from the nature of the transformation to the purpose of the person making it. This would seem to make it very difficult to determine if a use would be fair without first asking the photographer what their purpose was in creating the photograph. However, the court had no issue with Koons never seeking permission or inquiring Ms. Blanch for her purpose. Such a shift could create a slippery slope. Many photographs are created for a narrow purpose, for example sports or commercials, and a user can easily profess a different purpose than that of the copyright proprietor. If a magazine cover featuring a male sports figure’s photograph is later used in an ironic collage billboard advertisement for women’s cologne, the purpose is clearly different; is that use fair? The shift in the court’s analysis to the purpose could be a dangerous move by pushing the balance between copyright owners’ exclusive rights and the public’s right to fair use in a direction that leaves copyright holders stripped of their right to make and license derivative works.
Simply because a photograph has not been previously licensed for an artistic use does not rule out the potential that it may be licensed for an art related use in the future. Particularly if you have a recently created image without any usage history, there would be no market in which to measure market harm. The fact that the image was used without a license in a market deprives the copyright owner of exploiting that market in the future. The court’s analysis of market harm heavily favored the infringer over the creator. One answer may be to list all uses, even artists reference as an available use for all images on a site, so there is an obvious market and license fee associated with the use.
This case pitted a wildlife photographer against an artist who specializes in bronze sculptures of wildlife. It answers the question whether any one artist can “own” a composition found in nature. The photographer, Dryer, argued that he was responsible for the composition of a mother mountain lion with a baby cub in her mouth. He described how he scouted a location for a perfect position on boulders against trees, mountain and sky, checked timing for natural sun lighting, arranged to have animal trainers place a mountain lion cub near the edge of a rock so that the mother mountain lion would pick her cub up in her mouth. The shot was entitled “Mother Mountain Lion with Baby in Mouth.”
Several years later, sculptor Jason Napier bought a small mini' reproduction of the photograph from Dyer at an art show in Arizona. That same year Napier began selling “Precious Cargo”, bronze monument and maquette size sculptures of a mother mountain lion holding a baby mountain lion with her mouth. Dryer thought that Napier “stole” his photograph and sued him in federal court in Arizona for copyright infringement. The artist made a motion to dismiss the claim, arguing that it only used the unprotected “idea” of a mother mountain lion holding her baby in her mouth. The federal court agreed and found there was no infringement of the copyright in the photo owned by Dyer. According to the judge, the similarities between the two works of art were only in the non-protectable elements of the copyrighted photograph.
To prove copyright infringement, the photographer had to establish access, which was not in dispute, and substantial similarity. It was in establishing substantial similarity that the photographer’s case broke down. Arizona is in the 9th Circuit and uses “The Objective Extrinsic Test” to draw the line between similarities in ideas, which are not protected from similarity in copyrightable expression, which may be protected. The test requires the two works to be analyzed and dissected and compares such features as selection of subject, posture, background and lighting. In conducting this test, the only similarity was found to be in the photographer’s intent to show the idea of the protective nature of a mother mountain lion with her kitten. Since this was an idea, copyright law does not protect it. Further, very minimal protection is given to realistic depictions of live animals. (This is called “thin copyright”). What animals look like and do naturally is considered part of the public domain, something of the common heritage of humankind, not something that one artist can prevent others from depicting.
So what was protected by the “copyright” held by Dyer in his photograph? The elements of the photograph that he added to make it his own were protected. These include: choice of location, background, perspective, lighting/shading, timing, angle, framing, film and camera. None of these elements were used in creating the bronze sculpture. Additionally, he could have, if he had added something to them, gained protection for attitude, gesture, muscle structure, facial expression, coat and texture of the lions. But, what nature does on its own, is for all to enjoy and reap the benefits of. Dyer’s expert even explained to the court that the technique of placing a kitten near the edge of a cliff had been used many times to induce the mother to retrieve her kitten instinctively. Therefore, Dyer was just capturing a moment of nature, as far as the lions were concerned.
Additionally, and importantly, even if Dyer had succeeded on his copyright infringement claim, he wouldn’t have been able to recover statutory damages and attorney’s fees because he didn’t register the photograph for copyright protection with the federal copyright office until after Napier had already begun making and selling his Precious Cargo statues.
Member and Industry News
CORBIS NAMES GARY SHENK PRESIDENT
During his tenure with Corbis, Shenk has earned a reputation as an industry visionary with the passion and operational skills to transform and grow successful businesses. Most recently as SVP of Images, he has overseen Corbis’ image licensing business. Previously, Shenk led the growth of Corbis’ industry-leading Rights Services offering.
“Gary brings exactly the right combination of industry experience, entrepreneurial energy, and operational intensity that will enable Corbis to maintain its position as the fastest-growing major company in our business,” said Steve Davis, CEO, Corbis. “Under Gary’s capable leadership, we have significantly improved our product quality and execution in Corbis’ image licensing business. It is only natural in this intense competitive environment that we expand Gary’s role to drive our complete range of go-to-market activities.”
In addition to his new responsibilities as President, Shenk will continue to direct Corbis’ image licensing business including product management, strategic partnerships and photographer relations. Shenk will continue to report to Davis, and assumes some of the responsibilities formerly held by him in his dual role as President and CEO.
“Corbis thrives on creativity and with the greatest assets and the most talented people in the industry the opportunity before us is awesome,” said Gary Shenk, President, Corbis. “With strategic focus, a tight integration of critical go-to-market functions, and overall operational excellence, we are in a great position to lead the industry in fulfilling our customers’ needs for imagery and creative resources around the globe.”
Prior to joining Corbis, Shenk was a founder and general manager of one of Hollywood’s leading media licensing agencies, FlixMix, a wholly owned subsidiary of Universal Studios. Shenk began his relationship with Universal while he was a leader in the media and entertainment practice of The Boston Consulting Group. At BCG Shenk developed a digital distribution strategy for the world's leading music company. Shenk’s entrepreneurial talents served him well in Hollywood, where he was instrumental in establishing new licensing formats and brokering deals between studios and talent agencies. It was this success that led Corbis to recruit Shenk for its Rights businesses in 2003. Shenk led the new Rights Services unit of Corbis and executed a series of further acquisitions and business development successes that helped to reposition the company as a full-line creative solutions firm.
In 2005, Shenk took over the management of Corbis’ core image licensing business, where he spearheaded a transformation from an editorial focus to a combined editorial/creative offering. Under his leadership, Corbis has emerged as a leading provider of world-class historical, editorial, and creative photography. Among his other accomplishments Shenk holds an M.B.A in Finance from The Wharton School of the University of Pennsylvania, and a B.A in Social Studies from Harvard College.
BJ Formento and Richeille Formento co-founded the company. Both have worked for the major advertising and photo agencies and have combined their experience to form a company that was quoted by Jack Hollingsworth of Jack Hollingsworth Photography in his seminar about Wholly Owned Content as“an example of the way forward for the industry”. Eyecandy Images produces new, relevant and vibrant imagery for the emerging photography markets such as Asia, Latin America, and niche, understated photography worldwide.
BJ Formento of Eyecandy Images says, “It was great to be finally launching our product, especially amongst our peers. We were showcasing our images for the first time to our competitors at PACA with tremendous feedback, it was also a great way to meet potential partners and build great relationships to expand our distribution network.”
“The images are a very modern and different take on an existing format. At Eyecandy images our desire is to produce the most creative images with a multicultural edge so needed within the market and many of our peers stated that we were as good as, if not better than Photonica” says Richeille, Creative Director.
The new, innovative and daring images are available for purchase from EyeCandy Images e-commerce website which will be fully active at the end of November. In the meantime, check out their collection so far at www.eyecandyimages.com.
About Eyecandy Images
Contact: Maurice van de Mosselaar
What are Tag Clouds?
John McDonald, Vice-President Marketing, Masterfile Corporation says, “Tag Clouds can reduce the amount of time you spend thinking of keywords to filter large generic searches, like ‘woman’ or ’man’ or ‘people’. If someone else has searched for ‘woman portrait eye contact’ in the past, you can simply click a link to refine your search. The introduction of Tag Clouds is yet another way we are enhancing the user experience on Masterfile.“
For further information, contact:
Our 2007 line up includes the following:
The Deadline for World Showcase deadline is fast approaching (December 15th ). Don’t miss out on this unique opportunity to get your agency in front of thousands of potential buyers in both US and Europe. This beautifully designed catalog will be distributed at all 2007 Picturehouse events. For more details, click here. Special rates apply for all Picturehouse participants and PACA members, so please contact either Michael or Deborah for your special discount code!
Thank you all for your continued support!
“By any of these standards Niki would qualify for this award”, according to ASPP Executive Director, Cathy Sachs. Niki has served as the editor of the ASPP quarterly magazine, The Picture Professional since 1992. “Over the years that I have worked with her in this role, not only has she has shown calm, thorough, reliable professionalism, but also a real passion to keep making the magazine the best that it could be.” The writers who have been featured in The Picture Professional not only have appreciated her excellent editing, support and encouragement, but also have commended her for her insight into the trends and information most pertinent to ASPP’s diverse membership.
Niki’s commitment to quiet excellence has been echoed by so many of the colleagues with whom she has worked. Her career as a picture professional has taken her from text and photo editing, to writing and reviewing, and recently her own publishing enterprise, Loupe Media. In all these guises she has shown integrity, discipline and a devotion to photography. Nature and the natural world have always been one of her main passions. This has led to a long involvement with NANPA (North American Nature Photography Association) where she has won many awards, served on the Board of Directors, and made numerous contributions, including even running their entire three-day Summit program in 2002.
A colleague, Sharon Cohen Powers, has known and worked with Niki for the past 20 years, and is currently her partner at Loupe Media. “She has an amazing work ethic, and you can always count on her to complete any assignment given her, on time, no matter what. That’s a rare quality in our industry." But in case all this sounds too angelic, she adds, “and she has a wicked sense of humor!”
The Picture Professional of the Year award will be presented to Niki on the occasion of the ASPP/NY chapter’s Holiday Party on December 11th at the Essex Restaurant, 120 Essex Street, New York City. The award will be presented at 7:30 p.m. Although the Party is by invitation to ASPP members only, please contact email@example.com to attend as a guest.
The event has been sponsored by Getty Images, Corbis, Digital Railroad, The Image Works, AGPix, The Picture Desk, agefotostock; as well as Index Stock, Veer, Punchstock, Glasshouse Images, SuperStock, and Photo Researchers.
ASPP is a community of image experts committed to sharing their experience and knowledge throughout the industry. This non-profit association provides professional networking and educational opportunities for those who create, edit, research, license, manage or publish pictures. For more information go to www.aspp.com or contact the Executive Director Cathy Sachs at firstname.lastname@example.org.
New York, NY– The PLUS (Picture Licensing Universal System) Coalition has announced the release of an integrated system of image licensing standards for use by all industries that create, distribute or use images. Launched here at the annual Photo Plus Expo trade show in New York, these international standards were established by the largest collaborative effort in the history of image licensing. For the first time, publishers, designers and art buyers will use a universal set of standards to license and use images from photographers, illustrators and stock agencies.
“The PLUS Coalition has created a universal language for image licensing," says Jeff Sedlik, President and Co-Founder of the PLUS Coalition. “Now everyone everywhere can work from the same page when licensing assignment and stock images.”
Supplementing last year’s release of the PLUS Picture Licensing Glossary, PLUS has released four additional licensing standards: The PLUS Media Matrix, PLUS Packs, PLUS License Data Format, and PLUS-ID System. The four new standards have been developed cooperatively by participating trade associations and stakeholders in the photography, illustration, advertising, design and publishing communities.
The Coalition officially unveiled these licensing standards at a special multi-industry event presented by the PLUS Coalition and its partners, on Saturday, November 4, during Photo Plus Expo.
Importantly, the PLUS system does not standardize fees or pricing. PLUS standards promote clear and precise communication, leveraging current technologies to allow license information to travel within digital image files. Designed for the global marketplace of the 21st century, PLUS makes image licenses easy to understand, and easy to use.
For additional information about PLUS and how to use these new licensing standards, visit http://www.useplus.org.
STOCKFOOD, INC. HAS OPENING IN KENNEBUNK, MAINE OFFICE
Please contact Susan Esther, HR Manager at 310.605.1400 Ext. 245 or send resume with salary history to email@example.com.
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