WHITE HOUSE PHOTOGRAPHER CAN PROCEED WITH INFRINGEMENT SUIT

The former White House photographer for President Clinton sued Gruner and
Jahr and Stern Magazine in the U.S. District Court in New York for copyright infringement. Back in June 2000, the Court found his complaint to be defective but granted him leave to replead. He did so and the infringement claims in his third amended complaint have now survived a motion to dismiss.

The underlying thrust of the claim was that the photographer granted an oral license permitting use of a photo of the President only in the context of an article on the White House Photo Unit, and only when accompanied by a caption written by McNeely.

The defendants are alleged to have used the image, without consent, alongside a "salacious" article about the President.

The Court reinforced the principal that a licensor may claim copyright infringement where a licensee uses copyrighted material beyond the scope of a valid license.

The Court also upheld the cause of action against Gruner + Jahr USA, which distributed Stern Magazine, as a contributing infringer. The allegations required are that it had actual or constructive knowledge of, or induced, caused or materially contributed to, the infringing conduct, which would be proved by the actual facts alleged.

CROPPING WASN’T ILLEGAL

The photographer did not fare so well on his other causes of action, however. The Court found that allegations of illegal cropping, and failure to give copyright and photo credit, do not constitute copyright infringement, although the latter might constitute a breach of contract.

In addition, since the image was registered within the copyright office after the infringement, the photographer's claims for statuting damages and attorney's fees were dismissed.

Since this decision was on a procedural motion and not on the merits, the upshot is that the basic copyright infringement claim survives, as a claim, and now has to be proven.

The moral, perhaps, is that photographers can protect their interests against copyright infringers, but the remedy is more powerful if the image is timely registered and the case will probably be handled more expeditiously and with less cost, if the complaint does not require any amendment