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Posts Tagged ‘court’

Dutch court rules grandmother must remove photos of grandchildren from social media under GDPR

22 May

A Dutch court has ruled a grandmother must delete photographs of her grandchildren she shared on social media without consent from the children’s parents or pay a daily fine.

The BBC reports the legal battle ended up in The Court of First Instance of Gelderland after the grandmother refused to remove the images from Facebook and Pinterest, despite requests from the children’s’ mother to do so. According to the judge’s ruling, the images violate the EU’s General Data Protection Regulation (GDPR) and, more specifically, the Dutch GDPR Implementation Act (UAVG), which states that posting photos of minors under 16 years old requires their legal representative(s)’ consent.

The judge ruled that because the images were shared on social media, where a wider audience could view and potentially save the photographs, the photographs did not meet the ‘purely personal or household activity’ exemption found within Article 2(2)(c) of the GDPR. Lawyer Neil Brown chimed in with the following tweet to note that had the grandmother put restrictions in place in terms of who could see the images, she might’ve been clear under the ‘domestic purposes’ exemption, but because the courts could not determine how the images were protected, it ruled as it did.

If the grandmother doesn’t remove the image from social media, she will be required to pay a penalty of €50 for each day the images are still up, up to a maximum of €1,000. The ruling also prohibits the grandmother ‘from posting, displaying or otherwise distributing photographs of [the plaintiff’s] minor children on social media,’ with the same €50 penalty being applied up to €1,000 for each additional image shared.

Articles: Digital Photography Review (dpreview.com)

 
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New York court rules website didn’t violate image copyright by embedding Instagram post

16 Apr

A Manhattan federal court has dismissed professional photojournalist Stephanie Sinclair’s copyright claim against digital media website Mashable, ruling that it did not violate her copyright by embedding one of her Instagram posts on its website. The legal issue arose in 2016 when Mashable published an article on female photographers whose work includes the topic of social justice, putting Sinclair at #9 on its list.

According to court documents, Mashable contacted Sinclair in March 2016 and offered to pay $ 50 to license one of her images for use in its article on female photographers. Sinclair declined the offer, so Mashable instead embedded an Instagram post of the image that Sinclair had published on her public Instagram account.

Fast-forward to January 2018 when, according to the court documents, Sinclair contacted Mashable and demanded that they remove the embedded post from the article on the grounds of copyright infringement. Mashable refused to remove the Instagram post and 10 days later, Sinclair filed a copyright lawsuit against the publication and its parent company Ziff Davis, LLC.

The lawsuit raised questions over Instagram’s Terms of Service, its right to grant sublicenses for images uploaded to its platform, and whether sharing and embedding public social media posts without permission or a direct image license constitutes copyright infringement.

Instagram states in its Terms of Use that while it does not claim ownership of a user’s images, they grant the company a license to use it when they upload the content to the platform. Instagram says that when a user uploads images to its website…

‘…you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.’

Mashable argued that based on that Terms of Use, it had a valid sublicense from Instagram that allowed it to embed the image post on its website. The defendant argued, among other things, that:

‘…because Plaintiff uploaded the Photograph to Instagram and designated it as “public,” she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.’

Sinclair’s legal claim countered this, according to court documents, which cite multiple arguments, including a claim that because Mashable didn’t get a direct image license from the photographer, it shouldn’t have been able to get a sublicense for the content from Instagram. The court disagreed with that argument, however, with U.S. District Court Judge Kimba Wood noting:

‘Plaintiff’s right to grant a license directly to Mashable, and Instagram’s right, as Plaintiff’s licensee, to grant a sublicense to Mashable, operate independently. Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff—just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to “private” mode.’

As well, Sinclair had argued that it is ‘unfair’ that a platform like Instagram is able to force professional photographers to choose between keeping their accounts private or allowing the company to sublicense their publicly shared content because it is ‘one of the most popular public photo-sharing platforms in the world.’

Judge Wood acknowledges the nature of this issue, but ultimately states that:

‘Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.’

The copyright claim was ultimately dismissed, a conclusion that contrasts the ruling from a New York court in early 2018 on the case of an embedded tweet that featured an image of athlete Tom Brady.

In that case, the court found that embedding such tweets may constitute copyright infringement and the fact they were uploaded to a third-party server like Twitter didn’t change that. The basis of the latest ruling is different, however, focusing on the terms of use the photographer agreed to rather than the ‘server test’ used in the 2018 copyrighted tweet case.

Both of these legal claims follow a different legal case from 2007 in which the precedent was set for how the Internet of today operates: that a person or company who embeds content hosted by a third-party source like Facebook or Twitter are not in violation of copyright, but rather that the hosting company itself is liable.

DPReview contacted Mickey Osterreicher, NPPA’s general counsel, for comment. He had the following to say about this New York ruling:

‘I have not had an opportunity to review the court’s opinion and order in this case so I do not feel it appropriate for me to comment. I will repeat something that NPPA has stressed for many years – photographers read and understand the terms of service or the terms of use on each and every social media platform before agreeing to them or posting on those sites. They also must continue to vigilantly monitor those terms as they are frequently changed and updated.’

Articles: Digital Photography Review (dpreview.com)

 
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Texas court says state institutions can use copyrighted material for free

16 Jun

A Texas appeals court has ruled that the University of Houston does not have to pay the photographer of a picture it has been using in online and print promotional materials. Houston photographer Jim Olive says the university removed copyright markings from an image downloaded from his stock library, failed to credit him when it was used and wouldn’t pay when he sent a bill, but the university claims it has sovereign immunity and that it can’t be sued.

The case surrounds an aerial image Olive shot from a helicopter hired specifically for making pictures for his library. In an online image search, he found the university was using it on its website and then in printed materials. When it failed to pay an invoice he sent for the usage Olive tried to sue the university, but it claimed that under the Eleventh Amendment it couldn’t be sued as it is a state institution.

In an attempt to get around this Olive tried to sue the University of Houston for taking his property – in which case even government agencies would have to compensate the owner. The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

The Court of Appeals though has said that the university’s actions didn’t comprise ‘taking’ and that Olive will have to pay the university’s legal costs.

According to a report in the Houston Chronicle, which described the success of the university as ‘a big win’, Olive said ‘It just doesn’t seem fair to me.’

If this ruling is allowed to stand it would seem that any state institution can use images and other intellectual property without having to pay the originators, a precedent that would be damaging to photographers across the country, because if that’s the case in Texas, it may well be true in all other states covered by the Eleventh Amendment.

The detailed ruling concerning the appeal heard in the Court of Appeals for The First District of Texas by Justice Richard Hightower can be read on CaseText, and the applications from the start of the case can be seen on the Copyright Alliance website. Ironically, the university has a page on its site to allow users to report copyright infringements – and to request permission to use UH intellectual Property.

Articles: Digital Photography Review (dpreview.com)

 
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Appeals court upholds photographers’ rights on ‘fair use’ online image thefts

01 May

The US Court of Appeal has reversed a controversial decision that allowed a company promoting a film festival to use a copyrighted photograph on its website without having to pay the photographer that took it. In the original ruling the District Judge of the Eastern District of Virginia allowed the fee-free grab of the image under the rules of ‘fair use,’ thus signaling it’s okay to lift pictures from a photographer’s website.

An exhibit provided in the appeal showing Brammer’s photo as it was seen on his Flickr profile. Note the clear ‘All rights reserved’ icon in the lower-right-hand corner.

Fortunately, in a new ruling, the Appeals Court has determined that the use of the picture was not acceptable ‘fair use’ and that Violent Hues Productions did indeed infringe the copyright of stock photographer Russell Brammer. In a test using four criteria the court found that Violent Hues Productions’ use of the image failed on all counts to pass as ‘fair use’. The court set out the criteria for fair use as being that the image shouldn’t be used for commercial purposes, whether the image had been transformed by the copier, how much of the image that was used and whether its use had an effect on its market value.

An exhibit provided in the appeal showing Brammer’s photo as it was seen on the Violent Hues’ website.

The image, showing a placed called Adams Morgan at night, was downloaded from photographer Brammer’s Flickr site and used by Violent Hues Productions to illustrate a ‘Plan Your Visit’ page on the website of the Northern Virginia International Film and Music Festival. The company initially claimed it didn’t know the image was copyrighted, despite Brammer using the words ‘All rights reserved’ beneath it. Violent Hues Productions also claimed the image was transformed by its cropping of it, and that the use was informational and of benefit to festival goers. The court ruled though that the cropping was done only to make the proportions of the image match others on the same page and that it didn’t constitute a ‘new expression, meaning or message’. The court also found that had the company paid Brammer for the picture its ability to inform festival goers would not have been hindered.

It was also ruled that ‘if Violent Hues’ behavior became common and acceptable, the licensing market for Brammer’s work specifically, and professional photography more broadly, might well be dampened.’

It was also ruled that ‘if Violent Hues’ behavior became common and acceptable, the licensing market for Brammer’s work specifically, and professional photography more broadly, might well be dampened’ and the court went on to state ‘If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work’.

In its conclusion the court said ‘What Violent Hues did was publish a tourism guide for a commercial event and include the photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet. Violent Hues’ affirmative defense thus fails as a matter of law. For the foregoing reasons, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.’

The ruling is especially important as it underlines that commercial bodies do not have the right to lift images from the Internet to use for their own ends without paying the photographer, and that photographers do have protection from those that seek to behave in this way. The court specifically acknowledged that ‘the Internet has made copying as easy as a few clicks of a button’.

Articles: Digital Photography Review (dpreview.com)

 
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Wisconsin videographer sued for more than $14K after court rules he botched eight weddings

29 Mar

Wisconsin videographer Scott Sockett, owner of Say I Do Wedding Services, has been sued for more than $ 14,300 by multiple customers who allege he failed to provide the services they paid for. According to an exposé by local news organization TMJ4, Sockett was sued by nine customers and only one case was dismissed, leaving him with orders to pay back thousands of dollars.

TMJ4 spoke with three of Sockett’s former customers, each of whom alleged the videographer either failed to show up to the wedding or only provided some of the services that were paid for.

A screenshot of the latest complaint shown on Scott Sockett’s BBB profile.

In the case of customer Heather Timm, according to the report, Sockett delivered a wedding video that included clips from a different wedding. Another customer, Alexandra Moiser, claims she paid $ 1,400 for services that included videography, uplighting, a photo booth, and a DJ, but only the DJ made an appearance. And in the case of customer Michelle Heck, Sockett allegedly didn’t even come to the wedding.

Sockett’s business is listed by the Better Business Bureau with an ‘F’ rating alongside a dozen complaints, including the above complaint, alleging failure to provide services paid for, failure to provide refunds, and in some cases, failure to show up for the wedding. Below is a PDF document linked on Sockett’s WeddingWire profile under the business name S2 Wedding Solutions that highlights what the company offers.

Sockett spoke with TMJ4 as part of its report, stating that the company is ‘in the process of trying’ to issue refunds. However, existing complaints from past customers claim Sockett had promised them refunds, photos, and more repeatedly without following through on the claims. In addition, Sockett claimed a competitor is behind the bad online reviews and that those alleged customers ‘were never actually customers or clients of ours.’

Sockett also told TMJ4 ‘he has had people who are happy with his services’ and would email the news team a list of said parties. TMJ4 ends its article saying ‘We have not heard back.’

Articles: Digital Photography Review (dpreview.com)

 
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US Supreme Court rejects request to hear ‘Jumpman’ copyright suit against Nike

27 Mar

The U.S. Supreme Court will not hear Jacobus ‘Co’ Willem Rentmeester’s copyright case involving the Nike ‘Jumpman’ logo, the high court has announced. The reason for the court’s decision remains unclear, but it leaves in place the 2018 ruling by an appeals court that found Nike hadn’t infringed upon Rentmeester’s image copyright with its iconic ‘Jumpman’ logo.

The legal matter began in 2015 when Rentmeester filed a copyright lawsuit against Nike over its ‘Jumpman’ logo featuring a silhouette of athlete Michael Jordan. The logo was based on an image of Michael Jordan produced by Nike in 1985, which was itself allegedly based on an image Rentmeester took of Jordan as a freelancer for Time Magazine. The two images, while expressing the same idea, are different.

Nike had originally paid Rentmeester $ 150 to license two of his 35mm transparencies featuring Jordan. Following that, the company paid Rentmeester $ 15,000 for a two-year license to use its own image based on the one Rentmeester took after he threatened litigation. In 1987, Nike then created the Jumpan silhouette logo based on its Michael Jordan image and it has used that logo in the years since.

Rentmeester’s January 2015 copyright infringement lawsuit was rejected by a federal court in Portland, Oregon, in June 2015. According to that court, Nike’s image presented a different expression of the idea behind the two images and copyright law only protects the expression of ideas.

The legal spat went to an appeals court, which ruled in 2018 that Nike’s image didn’t infringe upon the protected expression in Rentmeester’s image. The appeals court stated that the subject’s pose cannot be copyrighted, which would prevent other photographers from taking images of the person striking the same pose. Elements like shutter speed, camera angle, and timing all contribute to the expression of the idea in Rentmeester’s image, the court said.

Articles: Digital Photography Review (dpreview.com)

 
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Supreme Court rules online retailers such as Amazon and B&H Photo can be required to collect sales tax

22 Jun

One of the biggest appeals of buying cameras, lenses and accessories online may no longer be around. As reported by the NY Times, the United States Supreme Court, in a 5-4 decision, has ruled states can now demand retailers to collect sales tax from online sales, regardless of the physical location of the business.

The ruling is the first time since 1992 that the Supreme Court has let states collect sales tax from retailers who don’t have a physical presence within their borders.

‘In Thursday’s ruling, the court effectively overturned a system that it created. In 1992, the court ruled in Quill Corporation v. North Dakota that the Constitution bars states from requiring businesses to collect sales tax unless they have a substantial connection to the state,’ says the NY Times in its report. ‘The Quill decision helped pave the way for the growth of online retail by letting companies sell nationwide without navigating the complex patchwork of state and local tax codes..

One of the most well known instances of not having to pay sales tax on items in the photography world is B&H Photo. Based on the 1992 Supreme Court ruling, customers who live outside of the state of New York aren’t required to pay sales tax on any gear purchased online at B&H. On a large-ticket item, such as Canon’s $ 10,000 400mm F2.8 IS II lens, that saves a customer just over $ 887 dollars, based on New York’s 8.875% sales tax rate. If states are to follow through on putting in place the effects of this new ruling, the effects of which are immediate based on the Supreme Court’s decision, the sales tax rate applied to purchases would vary from state to state, depending on where you’re ordering from.

This new ruling will also affect online retailers such as eBay and Amazon, the latter of which has used sales tax avoidance as a means of negotiations with states where it’s interested in building distribution centers.

Articles: Digital Photography Review (dpreview.com)

 
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Monkey copyright lawsuit finally over, court rejects PETA’s claims

25 Apr
Photo: David Slater

PETA’s “monkey selfie” copyright lawsuit has finally, finally reached a satisfying ending. On Monday, a three-judge panel with the Ninth Circuit Court of Appeals ruled that only humans can pursue copyright infringement claims, upholding a lower court’s decision after a judge refused to let PETA settle its way out of this likely conclusion.

In its ruling, the court said:

Affirming the district court’s dismissal of claims brought by a monkey, the panel held that the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs known as the “MonkeySelfies.” … The panel held that the monkey lacked statutory standing because the Copyright Act does not expressly authorize animals to file copyright infringement suits.

The ruling follows the Ninth Circuit’s decision earlier this month to reject PETA’s settlement dismissal request.

PETA had argued that the macaque named Naruto, not camera owner David Slater, owned the copyright because it took the image itself. Courts had expressed skepticism about PETA’s argument, also questioning whether the organization had a suitable relationship with the monkey to sue on its behalf.

In September 2017, PETA announced a settlement with Slater; it asked the Ninth Circuit Court to dismiss the case and vacate the lower court’s ruling. However, in a decision earlier this month, the Ninth Circuit indicated that it had rejected the request because it seemed to be PETA’s way to avoid establishing a precedent. The court had also stated:

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

The ruling doesn’t impact PETA’s settlement with Slater, which requires the photographer to donate 25% of future revenue from the image to charities that protect crested macaques in Indonesia.

Articles: Digital Photography Review (dpreview.com)

 
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Federal Court confirms (again): Police can be photographed in public

11 Jul

Following in the footsteps of the US’s First, Fifth, Seventh, Ninth and Eleventh Circuit Courts of Appeals, judges for the Third Circuit Court of Appeals have unanimously ruled that individuals have a First Amendment right to photograph and video record police officers in public. The decision follows multiple cases involving law enforcement retaliation against individuals who were recording police activity in public.

The ruling, which was filed on July 7, 2017, details two cases in which Philadelphia police officers interfered with individuals who were recording public law enforcement activity.

The first case involved Amanda Geraci, who was filming the arrest of an anti-fracking protester when an officer ‘pinned’ her against a pillar, blocking her ability to record the arrest. The second case involved Richard Fields, who was arrested after refusing to stop recording public police activity.

On behalf of the court, and per the document filed last week, Judge Thomas Ambro wrote, “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”

There may be exceptions to this right, the judge notes, such as times when a “recording interferes with police activity.” However, in the absence of that concern, the Court finds that “under the First Amendment’s right of access to information, the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.”

Articles: Digital Photography Review (dpreview.com)

 
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FAA offers drone registration refunds following court ruling

09 Jul

In 2015, the FAA issued the Registration Rule mandating that small drones used for recreational purposes had to be registered with the Administration. This was the law of the land until the U.S. Court of Appeals for the District of Columbia Circuit vacated the FAA’s Registration Rule for these small drones (called ‘model aircraft’) in May of this year, saying the requirement ‘directly violates’ Section 336(a) of the FAA Modernization and Reform Act signed by President Obama in 2012.

Thanks to that ruling, small drone owners who registered their aircraft are now eligible for a refund.

Earlier this week, the FAA announced that small drone owners who operate their unmanned aircraft for recreational purposes can choose to have their FAA registration deleted and to receive a refund for the registration fee—a whopping $ 5.

This deletion and refund, however, only applies to drones that are ‘exclusively in compliance’ with Section 336: that is, for small aircraft that are solely operated for recreational purposes. And, for what it’s worth, the FAA says it still encourages these model aircraft owners to voluntarily register their drones, so if you already registered your drone you might want to remain $ 5 poorer and leave your registration intact.

If, on the other hand, you do want a refund, you’ll need to print, fill out and mail in this form to the FAA—the mailing address is located on the bottom of the second page.

Articles: Digital Photography Review (dpreview.com)

 
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