It’s not just photographers and social media fans who like Instagram; lawyers love the photo-sharing site too. After Instagram announced a badly-written change to its terms of service that would apparently have allowed the Facebook property to sell contributors’ images without compensation, the lawyers brought out their briefcases. Even though Instagram quickly took down the new terms and reverted to the old ones, the lawyers filed a class action suit alleging breach of contract. Last month, Instagram applied to have the case thrown out.
That case may not lead anywhere, and if it did, it would benefit photographers at the expense of a big company. That doesn’t always happen. Photographers, amateur as well as professional, need to be wary of being sued just as much as they need keep an eye out for big firms trampling over their legal rights.
Wedding Photographer Sued for Missed Kiss
That happened earlier this year to Australian wedding photographer George Ferris of Studio Edge & Multimedia who found himself in court defending a lawsuit brought by two unhappy clients. Ferris, said the couple, Jarrad and Sheree Mitchell, had missed all of the most important moments of the wedding, including the ribbon cutting, the certificate signing and the pair’s first kiss as husband and wife. They withheld $400 of the $2,700 fee — and sued for $6,700.
Ferris countersued for $6,000, claiming the remainder of the fee, court costs and $63 for a meal that he bought at his own expense. The Victorian Civil and Administrative Tribunal showed a surprising amount of sympathy for the difficult work of wedding photography; it agreed with Ferris that capturing the kiss is a challenge. But ordered him to pay the Mitchells $750 for failing to supply the full value of the package he’d sold, and told the couple to compensate the photographer for the cost of his meal.
That’s the sort of case that haunts every wedding photographer. The photographer appears to have screwed up. If you’re blaming shadows and blur on flowers and flash bounce, and missing key moments of the event, you can expect clients to be unhappy — and you can be afraid that they’re going to overreact and demand a giant chunk of compensation.
User Uploads Images, Photographer Sues the Site’s Owner
But it’s not just clients who can reach too fast for their lawyers. Photographer Charlyn Zlotnik recently threatened to bring a suit against Les Irvin, owner of jonimitchell.com. According to a page that went up on the site, Zlotnick demanded between $25,000 and $600,000 in compensation after an anonymous user uploaded four of her images without her permission.
Irvin’s site includes a legal page that explains how copyright owners can claim infringement, and he removed the images from the site as soon as he was informed of a claim. That quick deletion and the fact that the images were uploaded by a user and not by himself should have been enough to clear him of any accusation of copyright infringement.
Despite some apparent initial obstinacy, Irvin’s plea for the site’s users to write to the lawyers and to the photographer pleading with them to drop the suit might have been successful. The site no longer mentions the suit and the plea has been removed. BoingBoing has noted that the photographer was recently caught up in a drugs bust, while the legal firm that sent the letter demanding compensation has been mentioned on watchdog sites Ripoff Report and Extortion Letters Info. There may have been a lot less law to this case than meets the eye.
Prepare the Evidence Before the Suit
Zlotnick’s attempt to catch some cash might have had little credit but a recent case about one iconic image has a lot more justice on its side and offers a number of lessons for photographers.
The photograph at the center of the case dates to 1991 and shows University of Michigan’s Desmond Howard striking the Heisman Pose after returning a 93 yard punt for a touchdown. The shot was taken by freelance photographer Brian Masck who initially licensed it to Sports Illustrated.
Last month Masck sued a long list of targets, including Sports Illustrated, Nissan, Getty Images, Champions Press, Photo File, Inc., Fathead, Wal-Mart, Amazon.com, and even Desmond Howard himself for violating his copyright, either by reproducing the image without his permission or for selling unauthorized copies.
Law professor Eric Goldman has written about the suit and noted that it raises a couple of interesting issues.
The first is that because there were three photographers at the game, and all captured the image in slightly different ways, in 2011 Masck altered the image so that he would be able to track its use:
He added two tells to the photograph. First, he removed the branding from the glove on Desmond Howard’s right hand. Second, he extended the lettering on the football. These small alterations do not appear to the untrained eye, but assist Brian Masck in tracking infringing uses of his photograph.
That’s an interesting little trick that other photographers would do well to emulate especially when they’re shooting the same scenes alongside other photographers. Watermarks can be removed but these small “tells” are much harder to hide.
The second point concerns the importance of registering images with the Copyright Office. Blaming bad legal advice, Masck didn’t register the image until 2011. That’s an error which would cost him the higher rate statutory damages.
Even without those damages though, Goldman believes that the actual damages and infringer’s profits should be both high enough and hard enough to prove for the parties to settle out of court.
That might suggest that turning to a lawyer when you think your copyright is being infringed is a good idea. Sometimes it will be. But street photographer Brandon Stanton come up with much more elegant response to an example of copyright infringement.
According to PetaPixel, Stanton was approached a few months ago by clothing firm DKNY who wanted to license 300 photos from his Humans of New York site to decorate its stores worldwide. The company offered a flat fee of $15,000. Believing that $50 per photograph was too low, Stanton rejected the offer.
That should have been the end of it. And it was until one of his fans sent Stanton a photograph of his images used to decorate a DKNY store in Bangkok.
Instead of demanding payment or calling his lawyers, Stanton told his Facebook page and asked his followers to share his demand that DKNY give a $100,000 donation to the YMCA in Bedford-Stuyvesant, Brooklyn. The company responded within 24 hours. The images, it said, had been used in an internal mock-up which that store had used by mistake. It apologized and donated $25,000 to the YMCA in Stanton’s name.
That’s not a decision that the lawyers will like but it should make photographers and social media fans happy.