This article originally appeared in the 2.21.13 issue of Metroland.
A week or so ago I got a very agitato
email from the proprietor of one of those fine live music
clubs in town. He’d just received a
nastygram from a purported professional photographer hundreds and hundreds of
miles away claiming that the club had stolen the photographer’s intellectual
property, to wit, a photograph of a musician. The club had posted the photo on
its website for a gig that took place last May.
The ominous letter said there was no question that this infringement was
because the photograph
appears on the photographer’s website with a big copyright notice and
watermark, so the damages could be as high as $150,000, with an additional
award of attorneys fees, blah, blah, and blah blah. The letter included a copy of the original
photograph, a screen capture of the club’s website showing the photo, and what
was claimed to be the copyright registration certificate for the photograph. The photographer said that litigation was
“imminent” if the club didn’t immediately cough up $5000. Then there was a page and a half of various
detailed technical demands on how to electronically preserve all the damning “evidence.” Or something.
lord. All this for a couple weeks of
displaying a little photo on a website for a music club in Albany, New York.
finished laughing, I did a little digging and found out that the club’s
web-person got the supposedly-purloined JPG from the band that the musician was
appearing with, and the band got it from the musician’s Facebook page. And the JPG lacked any copyright notice or
watermark. So the web-person assumed
this was a promotional photo and used it for exactly what promotional photos
are used for: to promote.
does this leave things? Well, if the
photo really was created by this photographer, OK, the club probably
infringed. Copyright infringement does
not require any intent on the part of the infringer, i.e. you can infringe
without knowing you’re infringing. So
there’s that. But, the law also provides that
if the infringer shows that he or she had no reason to suspect that he or she
was infringing, the court can declare an “innocent infringement” and cut the
damages to as low as $200.
what I think we have here. The club’s
web-person was given a promo pic from the band.
All bands have promotional photographs, and they all carry an implied
license that the photos can be used in various ways to promote the band. Duh! There was no reason to think this was anything other than
business as usual, no reason to think that this particular photograph (which
wasn’t extraordinary or special in the least) was anything but a standard
So I told
Mr. Big Pro Photographer not to get his undies in a bundle and to just go
This is a little like what I deal with all the time with clients getting nailed by photo
licensing libraries, most notably the Getty Archive, which has “enforcers”
combing the web for unauthorized commercial uses of its hundreds of thousands
of images, and then shaking down the perps for thousands of dollars in
retroactive license fees. Typically, the
images were found elsewhere on line, through Google images or the like. Which doesn’t make it legal, something many people don’t understand, and their ignorance
can be costly. Just because something is hanging out there in the internet doesn't mean you can just grab it and use it for whatever you want, even though that would seem to be the natural order of things. Except here the club was provided
the photograph by the band, which ostensibly had some legal authority to allow
the photo’s use. The home team is
innocent. We'll see what happens.
this with the matter of jazz singer – bassist Esperanza Spaulding and her
boom-box. She’s sitting on the boom-box
on the cover of her Grammy-winning album Radio
, she’s referred to it as her “totem”, and she’s selling
t-shirts and other merch with the image of the boom-box on it. Except it’s not a real boom-box, but a
sculpture—a wooden box covered with photographs so that it resembles a boom-box.
Spalding bought the sculpture from a Brooklyn art gallery.
photographer who provided the sculptor with the boom-box photos asked that
Spalding license the images and credit him, she's refused, and the photog, an avowed Spaulding fan, has now sued Spalding in
federal court for copyright infringement.
As well he should. The fact that
Spalding purchased the physical sculpture doesn’t give her any rights
whatsoever to the copyright
sculpture or the images on it, any more than buying a CD gives you ownership rights
to the songs on the CD. And of course
Spalding and her team know this. So,
unless there’s some facts here we’re missing (this is all based on a New York Post
article earlier this week,
so it’s very possible that there are), Spalding’s refusal to pony up to a
fellow artist with a legitimate beef is not just sad, but reprehensible.
Paul Rapp is an
entertainment lawyer who’s looking forward to hitting things with sticks with
his Blotto mates at the WCDB anniversary party next Friday at Valentine’s Music
Hall and Beer Joint.