## PhotoRESEARCHER Newsletter for November ## 398

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Key Words: Right to Sue | Research Tool | Changes | Image Search | Africatrek | Joel L. Hecker |

NEWSWORDS: Stock Imagery | Federal Court | Landfill Photos | Camera Phones | Eastman Kodak | Digital Photographs |

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The issue of who is required to be the plaintiff in a lawsuit for copyright infringement was recently expanded in Silvers v. Sony Pictures Entertainment, Inc. The United States Court of Appeals for the Ninth Circuit has ruled that a legal or beneficial owner of a copyright can transfer the right to an accrued cause of action for copyright infringement while retaining all other rights under copyright, and that such assignee can sue for copyright infringement.

  In plain English, this means a photographer can authorize a stock agency or other agent to sue for copyright infringement without having to give up or transfer the underlying copyright. The photographer need not be a party to the action.

  However, another, older case, from 1982, in the Second Circuit Court of Appeals, which covers New York, Connecticut, and Vermont, Eden Toys, Inc. v. Florelee, seems to suggest that the Copyright Act permits only the legal or beneficial owner of a copyright to sue for infringement. The Silvers court disagreed with this earlier decision.  We therefore are faced with a clear expression of the law which may or may not be followed throughout the country. The immediate impact of the Silver decision has been dramatic. Corbis, acting in part in reliance upon this decision has, as many of you already know, commenced copyright infringement litigation in its own name, on behalf of photographers, in a wide-ranging attack on copyright infringement in the celebrity poster industry, including Amazon.com. 

  This is but another example of copyright owners having their rights recognized and expanded, which is always a good thing for photographers and other copyright holders. Hopefully, all of the country will follow this lead and make the law conform.

Using Google as a Research Tool

TRAVELERS ABROAD

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Each month we send you a list of our photographer-members who are currently traveling abroad.

If you'd like a list of photographers who are travelling within the USA, contact us with your request.

Photoresearchers: Watch this column. To contact a traveling photographer call the number listed or the PhotoSource International office: 1 715 248-3800, x21.

Phil J. Wahlbrink
September 1 – January 18, 2004  Western France
February 1 – February 27, 2004

Northern Germany

Yan Xiaodong

September 14 – September 27, 2003 Italy

October 14 – October 29, 2003 France and Greece

Christian Burmester

September 19 – October 3, 2003 Thailand, Bangkok, Westcoast

C H A N G E S

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PEARSON NICHOLSON & ASSOCIATES (3406 Glasgow, Lansing, MI 48911) Contact person Charles Nicholson, President. Former phone and fax: 1 517 393 1100, 1 517 393 1101; current phone and fax: 1 517 663 2000, 1 517 663 2399.

DAVID TIETZ, Freelance Photo Research (8509 Daleview Drive, Austin, TX 78757) Former phone: 1 512 527 0291; current phone: 1 512 302 4737.

FINE EDGE PRODUCTIONS LLC, former address: 13589 Clayton Lane, Anacortes, WA 98221; current address: 14004 Biz Point Lane P.O. Box 972, Anacortes, WA 98221.

SPECTRUM STOCK INC (239 McRae Drive, Toronto, ONT M4G 1T7, CABADA) former phone: 1 416 425 8215; current phone: 1 905 309 8517.

SHEILA NORMAN, Freelance Photo Editor, former address and phone: 2192 Surrywood Dirve, Dublin, OH 43016, 1 614 799 2918.

AMERICAN JUDICATURE SOCIETY, former address, phone and fax: 180 N Michigan Ave Ste 600, Chicago, IL 60601, 1 312 357 8814, 1 312 558 9175; current address, phone and fax: 848 Dodge #468, Evanston, IL 60202, 1 773 973-0145, 1 773 338 9687.

ALP COMMUNICATIONS (1240 Bay St, Toronto, ONT, M5R 2A7, CANADA) former contact: Jane Evans, Designer; current contact: Christine Wong, Designer.

FREELANCERS ARE NOT EMPLOYEES

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Most photoresearch freelancers, consultants, free agents, and self-employed professionals are independent contractors. People who sell their services to other businesses on a contract basis, usually for a temporary time or for a specific project, are called "independent contractors." They are in business for themselves, just like any other individually-owned business providing a service. Independent contractors are not employees. When you hire an independent contractor, you do not withhold taxes, pay employment taxes, or file payroll tax returns for that individual. You pay the contractor his or her fee in full. The fee is fully tax deductible as a business expense for you. (If the fee(or total amount over the course of the year) is $600 or more, you do not need to provide the person with a 1099 tax form at the end of the year.) If you are a freelancer working periodically for a company -- you are probably considered an independent contractor and not working for hire. If your superior wants to re-use one of your photos for another purpose in the future and not pay you --you can always say, "I'm an independent contractor. I own the copyright for all the photos I take for this company." If his retort is, "No, you are a regular employee of this company," your response would be, "Then if I'm an employee, I expect company benefits."

Accountants, the IRS, and the Tax Courts have been arguing for years over who should be classified as an employee and who should be classified as an independent contractor. Entire books have been written on the "independent contractor vs. employee" controversy. There are serious risks to businesses that misclassify employees as independent contractors, and significant costs may be at stake. If you are unsure how you are classified, get advice from a tax professional. –RE

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Federal Appeals Court OK’s Online Image Search Engine

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Individuals or businesses who display images on the Internet should be aware of an important decision in July by the United States Appeals Court in California.

In the continuing saga of Kelly v. Arriba Software Corporation, the Court of Appeals for the Ninth Circuit in California, affirmed its prior ruling that an internet image search engine that copied and displayed thumbnail images was not a copyright infringement but rather a fair use. The Court also reversed its prior decision and remanded to the trial court the question of whether defendant’s display of full-sized images -- through inline links from third party sites -- was a copyright infringement.

Plaintiff Kelly is a professional photographer who displayed images on his website, and defendant Arriba, now known as Ditto.com, operated an internet search engine that searched for and displayed images.

Arriba used a web crawler to search the web for images, and then downloaded copies of the images to its computers. Arriba then generated smaller, lower resolution thumbnails for display, and deleted the originals. When a user entered a search term into the query box, Arriba’s servers displayed thumbnails responsive to the search. After Arriba copied Kelly’s images into its database and made thumbnails returnable by search on the Arriba site, Kelly sued for copyright infringement.

The Court found that Arriba had copied Kelly’s images and displayed thumbnails without Kelly’s permission. Nonetheless, the Court ruled that this was not copyright infringement because the copying and display of the thumbnails was fair use.

Want to read more of this article? Go to: http://www.photosource.com/researcher/federal.html

Photography IN THE NEWS

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TrendWatch Graphic Arts has released a new report detailing the growth, use,

and acceptance of stock imagery. According to the report, use and acceptance

of stock imagery continues to rise slowly and steadily among all segments of

the graphic arts community.

http://ep.pennnet.com/Articles/Article_Display.cfm?Section=OnlineArticles&SubSection=Display&PUBLICATION_ID=29&ARTICLE_ID=187986

A federal court judge who earlier slammed Peggy Gentieu's lawsuit

against Getty Images as meritless, frivolous, and a waste of time has

now ordered the photographer to reimburse her former stock agency

http://www.pdn-pix.com/news/

Committee to take Mission Bay landfill photos to Coastal Commission

The aerial photographs, from the Fairchild Aerial Photography

Collection, were taken between 1951 and 1959 and show dumping at

different intensities at different locations at the landfill.

http://story.news.yahoo.com/news?tmpl=story&u=/030923/31/5cul9.html

Camera Phones Prove Popular

Mobile phones with embedded cameras outsold conventional digital cameras

for the first time in the first half of 2003,

http://story.news.yahoo.com/news?tmpl=story&u=/pcworld/20030922/tc_pcworld/112576

Nasdaq Endures Worst Weekly Loss of Year - Eastman Kodak Co. fell 75 cents,

or 3 percent, to $21.40, after the company said Thursday it was slashing its

dividend to focus resources on developing the digital photography market.

http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030927/ap_on_bi_st_ma_re

/wall_street_84

Business Week Magazine Overhauled - the new design opens up more white

space on the pages, uses larger headlines and new typefaces, and features

more photography.

http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030925/ap_on_bi_ge/busin

ess_week_redesign_1

Digital Photographs Become Coffee-Table Books

http://www.nytimes.com/2003/09/29/technology/29RICK.html

Want to read more of this article? Go to: http://www.photoaim.com/pitn.html

QUOTE OF THE MONTH
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"There are always two people in every picture: the photographer and the viewer." 

-- Ansel Adams

AFRICATREK, AN AMERICAN PHOTOGRAPHER’S ODYSSEY THROUGH AFRICA, by Jason Lauré with Ettagale Blauer. In his book, "Africatrek," Jason Lauré shares his experiences working as a freelance photojournalist in Africa over the past twenty-five years, and captures the political and social progress and upheaval of the African continent. He has been privy to authentic ancient ceremonies of many of Africa's cultures, including the Kuomboka of the Lozi people in Zambia, and a Samburu circumcision ceremony in Kenya. (6x9 with nearly 200 color photos). ($14.95; ISBN: 0-620-29212-1) Contact: Jason Laure Photography, 8 W. 13th St, New York, NY 10011. Phone/fax: 1 212 691-7466.

OLD FRIENDS, Great Dogs on the Good Life, by Mark J. Asher, a book celebrating older dogs. Each portrait is accompanied by each dog’s name, age, and longevity secrets. Their pearls of wisdom are sassy, presumptuous, hedonistic, nonchalant, and reckless. These are dogs that know how to live life to the fullest, recognize their priorities, and are still going strong. This book is a fine example of how a stock photographer can choose to photograph a focussed aspect of a topic which will appeal to a certain segment of the public. ($14.95; ISBN: 0-8118-4002-6; 96 pages; hardcover) Contact: Chronicle Books LLC, 85 2<sup>nd</sup> Street, 6<sup>th</sup> flr, San Francisco, CA 94105. Phone: 1 415 537-4200.

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Legal Aspects of Photography
Rights Management, Permissions, and Changing Terminology

An American Society of Picture Professionals Seminar

• New York attorney Joel L. Hecker, the country's leading specialist in photography law, and Jane S. Kinne, ASPP Legal Chair and one of the photo industry's foremost advocates of photographer's rights, will conduct this landmark seminar on contemporary legal issues regarding the use of photographic images in print and electronic media, in the following cities.
• Washington, DC - December 5, 2003
• New York City - Date to be announced in 2004.

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ON-LINE

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By Bill Hopkins

Playing the SPAM-game.

Is your e-mail program Outlook Express? Then read on.

One way to combat SPAM in your inbox is to not even open e-mails unless you know the sender, otherwise delete them straight away. Outlook Express can make that difficult since the usual mode is to automatically display the contents of each message you view. Depending on your version, you can set your view to be only headers, making it easy to delete suspicious e-mail without ever opening it. The best way to do that is to add a button to your OE toolbar so you can quickly switch between the headers-only mode and the preview mode (generally OE6 with SP1 and later). To set it up, right-click on the toolbar and select Customize. In the left pane, select the Preview toolbar button and click on the Add button, and close the toolbar customize window. Now you can easily toggle between the header-only view and the regular preview mode by just clicking on the new Preview button. Another option is to stop OE from displaying HTML code, which can cause programmed beacons to fire (automatically alerting the message sender that they've just found yet another valid e-mail address even before you open the e-mail), scripts to run, and images to download (which on a dial-up connection can be a real pain in the posterior!). To prevent display of HTML code, click on Tools, Options, and click on the Read tab. There is a setting for "Read all messages in plain text" which will display your incoming e-mail in plain text, with none of the graphics. Of course, you may actually end up seeing very little, as most SPAM e-mail consists almost entirely of graphic images, the better to get through anti-SPAM filters.

Now that the Homeland Security Department has issued an advisory that terrorists might use electronic items such as CD players, digital cameras, laptops and similar devices to carry out their attacks, expect longer lines at airport security checkpoints across the land. Davis Stempler, president of the Air Travelers Association, predicted inconveniences for travelers. Gee, really!?

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PhotoRESEARCHER Newsletter is a free newsletter for photo researchers. It consists of excerpts from the 8-page newsletter, PhotoStockNotes, available for subscription at $3 per month. (Back issues are available free each month on our Web site.) Both newsletters feature carefully researched coverage of trends, methods and the latest information that can help you in your photo research. Feel free to forward this issue of the PhotoRESEARCHER Newsletter to fellow photo researcher friends.

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398

Next Month: Photojournalism: The Last Bastion of Creative Freedom

"You continue to be an inspiration to me. You’re the best example of someone who has thru the years continued to explore and make good use of the very latest technology. And your web page is extremely well done."

–Bob W. Smith, Photographer, Dallas TX