Home > Commerce > Legal Resources > Legal Articles

Legal articles

Recent cases and decisions that affect the legal environment in which we work.

When the copyright owner can't be found

There is a real and on-going problem of what to do when the copyright owner cannot be located, or perhaps even identified. How does a potential licensor proceed when it is impossible to obtain permission to use such a work or even know whether it is still protected by copyright? This is the core problem that Orphan Works legislation seeks to address. Read more.

Google prevails in Perfect 10 thumbnail case

June, 2007 — The case poses two questions: Now that cell phones can display tiny images (and phone owners will pay to get them), are the thumbnails in a search engine still a fair use? And, when Google indexes a site showing stolen images, is that contributory infringement? In round one, the trial court said Yes and No, respectively. The appeals court called for further fact-finding, and now is being asked to address further key issues. Read more.

Appeals court confirms creator's rights in collage case

May, 2007 — In Jarvis v. K2, the Ninth Circuit Court of Appeals held that a collage of images is more than a simple assembly of independent contributions; it is a derivative work. Thus it does not qualify for special treatment under section 201(c). For the photographer who made those images, the ruling was good news. Read more.

ASMP urges High Court review of Faulkner case

October, 2005 — Last March, an appeals court ruled against the photographers who sued National Geographic over electronic rights (see story, Faulkner Court Rules Against Photographers. This would cause great economic hardship to photographers and other creative artists, and it contradicts the position of another appeals court in a similar case. ASMP is therefore urging the U.S. Supreme Court to accept the Faulkner case and sort out the confusion. Read more.

December 13, 2005 — We lose; the Supreme Court has declined to review Faulkner.

ASMP joins as amicus curiae in printing-ink case

August, 2005 - ASMP has joined with a number of other copyright owners' groups in asking the Supreme Court to overturn an awkward decision from the U.S. Court of Appeals for the Federal Circuit. The case, Illinois Tool Works Inc. v. Independent Ink, Inc., primarily involves patents, not copyrights. But to the extent that it becomes a precedent, it could make life a bit harder for all owners of intellectual property. Read more.

March 1, 2006 — We win; the Supreme Court (unanimously!) overturned the lower court ruling.

A win, but little payoff

July, 2005 - It is a sad fact that even if you win a copyright lawsuit, you may not get as much money as you think your images are worth. The case of IO Group v. Adkins shows how one court determined the amount of statutory damages, giving the winner only a Pyrric victory. Read more.

Another fair use ruling on photo thumbnails

June, 2005 - Pete Seeger said it plainly: "Plagiarism is basic to all culture." But where do you draw the line between useful borrowing and harmful infringement? A recent case, Bill Graham Archives v. Dorling Kindersley Limited, may point to an emerging trend. Read more.

A Court Accepts Triple-Fee Damages in Copyright Case

May, 2005 - In the absence of specific contract language, the courts have previously declined to use multipliers when calculating damage awards. Now, in Barrera, Burgos v. Brooklyn Music Ltd, a federal court has explicitly used a multiplier to set the amount of damages in a copyright-infringement case. Read more.

Faulkner Court Rules Against Photographers

March, 2005 - The U.S. Court of Appeals for the Second Circuit has ruled against a group of photographers who sued National Geographic for copyright infringement. The reason: The Tasini case (see above) changed the ground rules for interpreting the copyright law. But in this case, the new interpretation works against photographers. Read more.

Seventh Circuit Elevates Role of Attorneys' Fees

In the U.S., the traditional rule for civil trials has always been that each party pays its own lawyers. To be sure, a plaintiff will always ask for attorney's fees as part of his damage award. But what if the defendant wins? Or what if the plaintiff gets only a small award? A recent case in the Seventh District pushed tradition aside in favor of a "loser pays" approach to copyright cases. Read more.

Shooter's Rights Upheld Despite Technical Errors

If you file a tax return with "innocent" errors, you can expect Bad Things to happen. Fortunately, registering your copyrights is much less fearful. Not only does the Copyright Office allow you to correct any technical errors, but errors that do occur need not be held against you. Read more.

Joint Copyright Problems and Progress

By Michael D. Remer
Knowledgeable photographers have long understood the principle that they are the owner of the copyright in their images from the moment of creation -- that is, when the shutter clicks and the image is fixed on film. They also know that there are certain exceptions to this principle, such as work for hire and assignment of copyright. Another exception, which is gaining increasing importance and attention, is joint copyright. Here, the photographer does not lose the copyright altogether, but shares it with one or more other parties. Read the article.

Tasini Et Al. v. NY Times Et Al.

By Victor S. Perlman
In a 7-2 decision, the U.S. Supreme Court ruled that freelancers' work may not be used in electronic databases without permission. This gives creators a huge victory in a case that began in 1994 when National Writers Union president Jonathan Tasini and several other freelance writers sued The New York Times, Newsday and Time Inc. for unauthorized electronic use of their articles. Read the article.

Avoiding Copyright and Trademark Problems

By Andrew Berger
Photographers are increasingly turning to Web sites to market their work. Although the Internet provides photographers with access to buyers world-wide, Web sites may also expose photographers to unanticipated problems. If you choose the wrong domain name, post material on a site that infringes another's trademark or copyright or link to a site that you know contains pirated material, you may be subjected to embarrassing and expensive litigation. Read the article.

A Subject of Urban Legend

By Richard Weisgrau and Victor S. Perlman
We all know that using a person's likeness for trade or advertising purposes requires a release; people have a right of privacy. However, property has no right of privacy. So why is a property release needed? ASMP has never seen a statute or legal case that requires a release for property. The recommendation that you get one is based upon two legal theories. First, a person's identity might be connected to the property. Second, there is an offense called "conversion," which is using another's property to your own personal gain without the owner's permission. Read the article.

top