## PhotoRESEARCHER Newsletter for July ## 394

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Key Words: Public Domain | Travelers | Photoshop for Photgraphers | Copyright Limitations | Photobuyer Changes | Scan Quality | Art Shay Sells Chicago | Theft Interpretation | Kodak Fault | Self Management |

NEWSWORDS: Mapplethorpe | Stock Revolution | Lewis Carroll | Photography Life Lessons | Deaf Photographer | Streisand Photo Case | Recovered Video | Kodak Halves Profit |

(If you do not wish to receive the PhotoRESEARCHER Newsletter, please see the instructions at the end of this newsletter.)

ISSN 1545-1275

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YOU AND THE LAW

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No Attribution Needed in Using Public Domain Material

By Joel Hecker

On June 2, 2003, the United States Supreme Court decided that the law does not require that attribution or credit be given to the original creator or source when public domain material is copied.

The case, Dastar Corp. v. 20th Century Fox Film Corp., concerned the repackaging of the Fox "Campaigns in Europe" videotapes which were based upon a 1949 television series and Dwight Eisenhower's book. The Dastar product basically copied Fox's videotapes, adding only a new opening sequence, and making minor changes, while claiming it was the producer of the video, without giving credit or attribution to the series or to the book.

The TV series aired in 1949. The copyright under the 1909 Copyright Act was for 28 years with an additional renewable 28 year extension. Unfortunately for Fox, this copyright for the TV series was never renewed. As a result, the copyright for the series expired in 1977 whereupon the material went into the public domain.

The Supreme Court was called upon to rule whether the failure of Dastar to give credit to the creator of the original series or the book in its use of the public domain material was a violation of that portion of the Lanham Act which prevents the unaccredited copying of a work.

The Court, in reversing the United States District Court and the Circuit Court of Appeals, looked to copyright law. It concluded that under copyright law there is no prohibition from copying a work that is in the public domain.

The Court stated that it "would be no simple task" to determine who would be in the line of origin and would therefore be entitled to attribution credit. In what may become a memorable phrase, the Court said, "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries."

The Court pointed out, however, that the defendant was not yet off the hook, since the copyright to the underlying book had been renewed. All of this litigation and expense could have been avoided had Fox simply protected its property by renewing the copyright. This is but another example of where a little precaution could go a long way towards protection of rights.

The decision means that, for photographs in the public domain, a user need not give attribution to the photographer. The Court did, however, state that it may be improper to falsify the origin as opposed to just not giving notification of origin.

We may hear more of this on a later date.

TRAVELERS ABROAD

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Photobuyers: Watch this column. For the e-mail address, phone or fax number of the traveling photographer, call the PhotoSource International office and ask for Deb Koehler (1 800 223-3860). For an expansion of this list: www.photosource.com and press the Travelers Abroad button, to learn of past international destinations of our photographers.

Erin Eberle

July 3 – July 10, 2003

Bolivia

July 10 – July 24, 2003

Brazil and Argentina

Debbie Jefkin

July 21 – August 15, 2003

La Paz, Lake Titicaca, Sucre and Potosi (Bolivia)

Ditta U. Krebs

September 1 – September 20, 2003

Frankfurt (Germany)

Mike Matlach

October 26 – November 14, 2003

India

January 4 – January 18, 2004

Burma

January 18 – January 28, 2004

Thailand

GOOD STUFF

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THE PHOTOSHOP BOOK FOR DIGITAL PHOTOGRAPHERS, by Scott Kelby. This book shows you step-by-step the exact techniques used by today’s cutting-edge digital photographers and retouchers. It also does something that virtually no other Photoshop book has ever done: it tells you, flat out, which settings to use, when to use them, and why. ($39.99; ISBN: 0-7357-1236-0) Contact: New Riders Publishing, 201 W. 103rd Street, Indianapolis, IN 46290. Phone: 1 800 545-5914.

COPYRIGHT

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Copyright Protection in Photographs Limited by the Real World

By Stephen Filler

As with all areas of intellectual property, copyright issues in photography often boil down to, "What can I protect?" and "What can I prevent others from using?" But in many ways, photography is unique. In contrast to works of music, literature and other visual arts, photographs contain relatively objective depictions of real world subject matter. Because photographs generally are not created from "whole cloth" -- but include subject matter that is in the public domain, owned by others, or not protected by copyright -- copyright in photographs is often not as broadly protective. In other words, it is "thinner," than other works of art.

A recent decision by the Ninth Circuit Court of Appeals illustrates the limitations in protecting real world elements in photographs ((Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 ((9<sup>th</sup> Cir. 2003)). Ets-Hokin was retained by Skyy Spirits to photograph its vodka bottle for advertising. Ets-Hokin delivered three photos, each containing a side-lit Skyy Vodka bottle displayed in front of a plain white or yellow backdrop. Instead of using these images, Skyy hired and used similar images from other photographers. Ets-Hokin sued, alleging that the newer images infringed his copyright.

Initially Skyy claimed that Ets-Hokin had no independent copyright in the images separable from Skyy’s underlying right in the bottles. But three years ago, the Court held that Ets-Hokin’s many photographic judgments made his images sufficiently "original" to be copyrightable.

Although Ets-Hokin won the earlier battle, he recently lost the war. In March, the Court ruled that even though his images had copyright protection, the newer images were not infringing, as a matter of law, and dismissed his lawsuit.

The Court specifically found that the newer images were very similar to Ets-Hokin’s. But the similarity arose because both images shot a similar real world object -- the Skyy bottle -- that was unprotected by copyright. The Court stated that there can be no copyright infringement resulting from similarities that arise because "the idea underlying the work can be expressed only in one way" (the doctrine of "merger"), or where "the expression embodied in the work necessarily flows from a commonplace idea" (the doctrine of "scenes a' faire").

The similarity of the images was "inevitable, given the shared [and unprotectable] concept, or idea, of photographing the Skyy bottle." In contrast, the court found that the elements that were protected by copyright -- the lighting, angles, shadows, highlights, reflections and background -- were all different.

CHANGES

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FLORIDA WILDLIFE (620 S Meridian St., Tallahassee, FL 32399-1600) has ceased publication.

SUNSET MAGAZINE (80 Willow Rd, Menlo Park, CA 94107) former phone: 1 415 321-3600; current phone: 1 650 321-3600.

PACE COMMUNICATIONS (1301 Carolina St, Greensboro, NC 27401-1022) former phone and fax: 1 336 378-6065, 1 336 275-2864; current phone and fax: 1 336 383-5658, 1 336 383-5699.

NEWBRIDE EDICATIONAL PUBLISHING, former address, phone and fax: 333 E 38<sup>th</sup> St 8<sup>th</sup> Fl, New York, NY 10016, 1 212 652-0238, 1 212 867-5968; current address, phone and fax: 11 East 26<sup>th</sup> St, New York, NY 10010, 1 212 478-1706, 1 212 478-1771.

BUSINESS NOTEPAD

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SCAN QUALITY "You may think you know how to scan a photo for evaluation for a photo researcher, but unless you have someone who is knowledgeable about scanning to evaluate your work, don't send the images to a potential client." That was the message Bob Nover, photo researcher at McDougall-Little/Houghton Mifflin in Boston, wants stock photographers to hear. "It's quite simple, - if the scan we receive is not up to par, we don't want to see the original. I usually see two faults: the exposure is off, and the scanning quality itself. The images look soft, not sharp at all. I'd be wasting my time if I took the chance to wait to see if the original [slide] was better." -RE

SHOOTERS

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The City of Chicago has purchased six of photographer Art Shay's images (for $1000 each) of Chicago life in the 50's. The photos depict the grim hangouts of author, Nelson Algren. The images will be used to decorate a new arts center in Chicago.

INTERPRETING THOSE PHOTO THEFTS

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Is image thievery on the Web a hazard?

There's no need to experience sleepless nights worrying whether an image-thief is going to run off with photos. Why? The stories you hear about web image thievery are of three kinds: 1.) Individual admirers of a photographer's photos, grabbing them for their personal website or fraternity/sorority room wall, or 2.) Print-on-demand vendors who fill orders for calendars, posters, greeting cards, placemats, jigsaw puzzles, coffee mugs and t-shirts, or 3.) Entrepreneurs who are supposedly ignorant of copyright law.

Reputable publishers stake their reputation on their integrity in dealing with their image suppliers. No reputable publisher is going to "steal" an image and publish it in 15,000 textbooks, coffee table books, or other material.

Can a photographer or publisher protect himself from the three types of thieves mentioned above? Well, yes, they can buy expensive image-protection software. With what results? You could eventually engage themselves in an expensive lawsuit with an infringer who will probably be penniless and make you penniless (attorney's fees) in the long run.

Leave the court suits to the major stock agencies which are already making headlines by going after infringers, not to make money, but to provide copyright education to the public. Every time an infringer loses a lawsuit, it makes for good reading in the newspapers and magazines, and increased understanding. We in the photo industry are the beneficiary, and at no legal costs to us. –RE

WHAT'S THIS? KODAK ADMITS FAULT? You've seen it, that disclaimer that comes along with each roll of film that states that if the images are lost or damaged, the customer is entitled only to a new roll of film and the development cost. Well, a man in Potters Bar, a suburb of London, England, took Kodak to task recently saying the disclaimer had no legal force. Kodak settled out of court in June 2003 for reportedly $10,000, enough for Mark McCarthy to re-do his vacation in the Grand Canyon and Las Vegas. And take another roll of film. –RE

DO YOU MANAGE YOURSELF WISELY?

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Advance Notes: "Procrastination is the art of keeping up with yesterday." -Don Marquis. Here are some management tips that will help you avoid the dreaded "procrastination."

Here are some self-management principles for photo researchers.

ASK AROUND. Don’t reinvent the wheel. There’s a goldmine of information waiting for you out there to tap, for example, the ASPP website. Or, with the entrepreneur next door who’s already been there. He knows the pitfalls and the obstacles, especially if he’s failed. Everyone loves to be an expert. Weigh his opinions against others, and then come to a consensus. If you don’t want to consult a local competitor, phone someone in another similar-sized city that is travelling the same highway.

ELIMINATE THE LOSERS. Take time to analyze what’s working for you and what’s not. Parts of your research business are moneymakers, others are not. Don’t let sentiment or the tired phrase, "We’ve always done it this way," drag you down.

LOOK LIKE A PRO. You don’t get a second chance at a first impression. If you want first class treatment from your photo suppliers, give them first class treatment. Get into the digital arena. Employ delivery techniques of the 21<sup>st</sup> century.

DO YOUR HOMEWORK. Jumping in with two feet and enthusiasm is fun and romantic, but unless you’ve checked to see if water is in the pool, you’re in for some disappointments. If your enthusiasm is still high after you’ve done your basic business plan, you’ve got a winner.

GET IT DONE. It’s easy to slip into the habit of narcotizing yourself with the evening news or a sitcom. (I haven’t watched a TV news program since 1995. I rely on weekly news magazines for my information on current issues.) Change your habits in 2003. Buy a $5.95 quartz alarm to beep the same time every evening to remind you and others in your household that it’s "Research Time."

UNDERSTANDING MARKETING. Your research services will sell if you position yourself effectively. Super umbrellas won’t sell on sunny day, but poor ones will sell easily in the rain. Your success in this century will be built on not only your researching know-how worth to a client, but your ability to find that client’s needs and fill them.

RELAX. Some of your best self-management comes when you are not managing yourself. Develop a deep interest in some hobby or pastime that has no relationship to your research business. You’ll find the time spent away from your enterprise will afford you a fresh approach and new insights.

BE BUDGET-MINDED. You’ll succeed if you have the cash flow available to pay the office, computer and Internet bills. Don’t fall into the Madison Avenue trap of buying a new car, new clothes, new office equipment, over the counter drugs, high-calorie ‘goodies’, and other creature comforts that are supposed to make your life fulfilling. If you donate your cash to these dollar-gobblers, you have no excuse to say, "the cost of getting into freelance research is too high."

FAIL BUT DON’T QUIT. Are you afraid you are not going to make it? Fear of failing is one of the greatest deterrents to beginners in any freelance field. That’s why not too many succeed; they never get up after they’ve been knocked down. Most successful people in any field have failed many times. The difference between them and the ones who fail is that the ones who "make it" never quit. Many of the success stories are still in business not because they are extra good, but because the rest of the competition gave up and quit.

PLAY NOT WORK. There’s a saying; "The luckiest people sweat the most." Yes, it’s going to mean long hours. But don’t translate that to mean work. If you love what you’re doing, it’s mostly play. Choose your area of research by first asking yourself, "What area of research do I love most?" Then find if there’s a market for research in that interest area. If there is, it’ll be mostly play.

START TODAY. Most people spend their time preparing, rather than doing. "One for the money, two for the show, three to get ready, four to get ready, five to get ready…" Take the leap. Start today.

GONE FISHIN'

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If you're a person who loves fishing, you know that when a warm coaxing breeze urges you to come sit on the bank of a lazy river or in a rowboat on a lake stocked with walleye, you have to grit your teeth to resist. Your salaried position won't allow you such luxuries. Duty calls. Small office/home office workers carry a passport in their pocket that's unavailable to corporate workers. It's a ticket that says, "Gone Fishin'."

It's a Post-It-Note they tack up on their office door that says, "Gone Fishin'". Downsizing in corporate America is having a beneficial effect on many Americans, who, when faced with early retirement or losing their jobs, thought the end was near. But they discovered a beginning, one they probably never would have experienced if they hadn't been forced into a position where they had to strike out on their own.

The beauty of being an independent freelance researcher is that you can have the best of both worlds. As a researcher supplying photos to the specialized publisher of your choice, you can justify the time you spend at your favorite venue. You are always working, -and enjoying it.

Entrepreneurs know that leaving corporate America and striking out on their own is not always a paradise. But when demands and pressures begin to mount, they know they can get the fishin' pole out of the closet, pick up their fishing tackle and laptop, and go out to the river and do some research. –RE

BUSINESS NOTEPAD

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INFRINGERS BEWARE. That's the message Corbis recently sent to the websurfing public when it won a big settlement from Ofoto, a web print-on-demand company owned by Kodak. The lawsuits results, which barely paid for the legal costs, sent a message to would-be-infringers that it is illegal to capture a non-public domain photo on the web and use it for commercial purposes. Corbis initiated the case in 2001 after it noticed large amounts of its photos on Webshots, (now gone bankrupt), an image file-sharing site then owned by the Web portal Excite@Home. Many Corbis photographers' images were infringed. As one Corbis photographer put it, "By persuing this suit, Corbis established a precedent. I think a lot of potential infringers will think twice before doing that to us again." –RE

PRIVACY SUITS work both ways. Barbara Streisand, the singer, objected to her Malibu home being photographed from the air, and sued fellow environmentalist, Ken Andleman, for $10 million. ``I don't need permission to take a picture of her house," Andleman said, "if it is taken from a public place,'' he said. ``And the airspace is a public place.''

"I would say she has zero chance of winning,'' said attorney Terry Francke, of the California First Amendment Coalition in Sacramento. "The law of privacy, even the paparazzi extensions of it, is not about taking pictures of structures. It is about people.''

ON-LINE

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Going Digital

There must be a lot of researchers and photo suppliers going digital. And I can prove it. How? Kodak, the king of film, and who has seen their cash cow shrink, has picked up the assets of Applied Science Fiction, Inc. One of ASF's prime technologies is a process that converts film (without the usual lengthy development process) into digital images within minutes. Kodak is installing this technology, called Digital PIC, in their 18,000 US kiosks. This will permit the film user to go from unprocessed film to digital photos on a CD in seven minutes. The hope is to keep film sales going strong, at least for a little longer. You may already have Digital PIC in your town now. But beware, the original film negative is destroyed in the process. To counteract this, ASF calls the DigiPix CD a "digital negative." Each photo is digitized into three files: 1,600-by-2,496, 1,268-by-1,978 and 512-by-768. In other words, the top resolution is roughly equivalent to that of a 4-megapixel digital camera file, while the lowest is Web-and e-mail-ready. The CD automatically displays a thumbnail index when inserted into a computer and includes a slide show utility.

Gee, Ollie, It's Really Bad Out There!

At a recent conference in D.C. to discuss the issue of unwanted commercial e-mail (spam), the Federal Trade Commission's Eileen Harrington said of the situation, "Things are worse than we imagined."

Imagine that, spam is really bad. According to one anti-spam company, 45 percent of the e-mail sent in March was spam. Some have gone as far as proposing a (US) National Anti-Spam Registry, similar to the federal tele-marketing do-not-call list. Since spam is readily sent from anywhere to anywhere in the world, such a national list would do little good. As with the real burglers, a bigger lock just attracts a bigger hammer. But on the bright side, spam may be helping with the national trade deficit. Motohiro Tsuchiya, a communications professor at the International University of Japan, joked about the 80 percent of spam (mostly in English) coming into Japan, "We are now importing more spam from the United States."

WORDING IS IMPORTANT

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When National Geographic illustrations editor Kathy Moran began to assemble photos for the July issue on sexual selection, she e-mail some 250 photographers and photographic agencies around the world, asking for help. But a quarter of the e-mails bounced back unread to Kathy and her assistant, Leah Boonthanom. Eventually they learned why: Many automatic e-mail filtering systems read the subject line, "Sexual Selection Article," to mean that National Geographic was sending them pornography. "We'd probably have been better off calling it 'The Birds and the Bees,'" Kathy says.

QUOTE OF THE MONTH

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Watch for developments in the field of stock photography in PhotoAIM's

PHOTOGRAPHY IN THE NEWS

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You'll be the first to know…

Note: If the URL is long, it may extend to two lines. In that case - clicking on it won't work. Instead, "copy and paste" the URL.

Mapplethorpe photography

OnRequest Images Revolutionizes the Stock Photography Industry

Dreaming in Pictures: The Photography of Lewis Carroll

Life lessons from a photography teacher's darkroom

Delaware: Deaf sisters' photography gets exposure

Arts, Photography,Technology May Help Dementia Patients

Photog Wants Streisand Suit Thrown Out

More recovered shuttle video released

Delaware: Deaf sisters' photography gets exposure;

Photographer's ex-wife charged in photo theft

Kodak Halves Profit Outlook

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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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## PhotoRESEARCHER Newsletter monthly newsletter is produced by PhotoSource International, Rohn Engh, Director, who is solely responsible for its contents.

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ask for Deb Koehler

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394

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