Amicus Brief Information

 

Periodically an artist, his or her heirs, or another rights holder will ask for support from an authoritative source such as the Guild to bolster their position in a legal matter. Either the Plaintiff or Defendant may ask the Guild to file or sign on to an amicus curiae brief on their behalf to support their side of the case.

Amicus curiae is “a phrase that literally means ‘friend of the court’ – someone who is not a party to the litigation, but who believes that the court‘s decision may affect its interest.” William H. Rehnquist, The Supreme Court

The Guild judiciously chooses to file or join an amicus curiae brief if the court’s decision in the case will set a broad legal or business precedent that will directly affect the interpretation of our copyright laws or business practices of artists and our clients in the market place.

Some Recent Cases:

 

Greenberg v. National Geographic (Spring, 2009)

Greenberg v. National Geographic, amicus brief in support of Plaintiff photographer Jerry Greenberg by Victor Perlman/ASMP, filed on September 29, 2008. Supported by the Graphic Artists Guild, the North American Nature Photography Association [NANPA], Stock Artists Alliance [SAA], National Press Photographers Association [NPPA], the Advertising Photographers of America [APA], and the Picture Archive Council of America [PACA].

This case presents the question of whether Section 201(c) of the Copyright Act accords a magazine publisher privilege to produce a digital compilation that contains exact images of its past magazine issues.

The brief reminds the court that freelance creators retain the copyrights to their individual works when those works are published in a collective work (such as a magazine). Creators grant limited privilege to publishers, as was recognized in the precedent infringement case NY Times Co. v. Tasini (involving freelance journalists), according to § 201(c) of the Copyright Act without relinquishing their rights to new collections of previously published works.

Defendant National Geographic Society refused to compensate freelance photographer Jerry Greenberg for republication of over 60 of his photographs in their electronic collection/reissue of over 1200 past issues of their magazine, titled “The Complete National Geographic.” Over 1 million copies of this CD-ROM collection have been sold. National Geographic has not paid any of the freelance photographers for the republishing of their photos.

Greenberg lost his initial infringement case when the court found that the Defendant publisher had “a privilege to publish a revision of the originally licensed works under 17 U.S.C. § 201(c).” The photographer appealed this decision and won in a jury trial. The jury returned a verdict of willful infringement and awarded the plaintiff the maximum statutory damages for willful copyright infringement: $400,000, or $100,000 for each occurrence. Other freelance photographers whose work was published in the magazine then filed suit. The court later overturned the Greenberg decision, declaring that the printed magazines were scanned and reproduced exactly identically in the digital collection, and therefore should be considered the same as the original use and not a revision under § 201(c). Greenberg appealed this decision, to which this current amicus curiae has been filed in his support, again.

The court’s denial of Greenberg’s infringement suit defies the decision in NY Times Co. v. Tasini, which should also serve as precedent for photographer Tom Dallal’s similar subsequent suit against the NY Times. The Guild was an amici in the Tasini case, and co-authored an amicus curiae brief with the ASMP in support of Dallal.

It is vitally important to our livelihoods as independent creators to demand that publishers and the courts uphold Section 201(c) of the Copyright Act to ensure our right to be paid for reuse and republication of our creative works. As more publications and periodicals find it necessary to publish online editions of their print publications in the 21st Century, and tap the market for digitized collections of earlier and archived publications, we must fight for our traditional income we deserve from this secondary market.

Amicus briefs filed by the Guild in 2008

 

Perfect 10 v. Google, the appeal. (US District Court for the Northern District of CA, No. CV-04-00371-JW) The Graphic Artists Guild & ASMP had filed an amicus curiae in support of owner of the Perfect 10 web site in his appeal of the lower court’s denial of copyright infringement suit against Google. Perfect 10 lost the suit in lower court, and the web site owner is appealing his case.

Greenberg v. National Geographic, the appeal. Photographer Jerry Greenberg has filed a petition to the U.S. Supreme Court for certiorari (legal review) of the dismissal of his appeal after losing his copyright infringement lawsuit against National Geographic. The ASMP is filing an amicus curiae brief in support of his request for the Court to hear his appeal. The brief is being co-written by attorneys Victor Perlman [ASMP] and Chuck Ossola.

Dallal v. NY Times (2005)

 

In a Summary Order filed on February 17, 2006, the Second Circuit Court of Appeals vacated Judge Hellerstein’s earlier decision (US District Court, Southern District of New York) on May 12, 2005 to dismiss the photographer’s copyright infringement lawsuit against the NY Times.

American Society of Media Photographers (ASMP) member, Tom Dallal, filed a copyright infringement lawsuit against the NY Times in May 2003, after the newspaper had repurposed/published his photos in their online edition without his permission for two years. The NY Times claimed the licensing clause on Dallal’s Invoice/Agreements stating permission for the newspaper to publish his photos “...one time only, ... first exclusive use, ...[in] a print run...” was not binding, even though they had signed the Invoice/Agreements and issued payment. Judge Hellerstein of the US District Court dismissed the case, and Dallal filed an appeal to the Second Circuit Court of Appeals.

Lisa Shaftel, of the Graphic Artists Guild, and Victor Perlman, Counsel for the ASMP, co-wrote an amicus brief in support of the photographer, filed by intellectual property attorney, Robert Clarida for the appellate court. Eric Vaughn-Flam, Dallal’s attorney, said that the Guild-ASMP amicus brief was instrumental in demonstrating to the judges that the free-lance photographer’s Invoice/Agreements were standard contracts used by illustrators and photographers and have been accepted in the publishing industry for decades.

Seen, Heard, Said...

During oral arguments before The US Court of Appeals, Second Circuit, on January 27, 2006, (with The Honorable Reena Raggi, The Honorable Peter W. Hall and the Honorable Edward Korman presiding), Judge Raggi said to NY Times attorney, Robert Penchina, “Is, is, am I to understand from that argument that you didn't understand that when someone complains about unauthorized use of a photograph that they’re complaining of a copyright violation? I mean, ah, you’re not a hardware store, um, if there would be a party that I would think would understand copyright, it would a newspaper, so I’m not sure I'm following the argument”

And

“Are you suggesting really that when a photographer sends you an invoice that’s got this comment on it about one-time use only and is griping all the time and saying things like you’re using it in an unauthorized manner, you gotta pay for it, that that's telling you, that’s giving you a green light to go ahead, I mean, is that what the reasonable inference from that is?”

The judges ordered the NY Times to negotiate a settlement payment for usage fees of over 1000 images created by Tom Dallal.

Publica v. Decarlo (2004)

 

The artist, Mr. Decarlo, drew the Archie comic book characters for decades. He also brought sketches of comics he’d created years earlier (Sabrina the Teenage Witch, and Josie and the Pussycats) to his employer, and while working for them, produced the comic books.

When his employer sold the rights for the TV shows, movies and licensing, they took the proceeds and profits. Unfortunately, Mr. Decarlo had only vague records demonstrating his prior ownership.

This suit concerned the rights of artists who perform “work for hire.” Typically, this means that the artist was hired to work for the employer to do a specific task, and therefore, the employer owns all work. Since the work predated Mr Decarlo’s employment, it was felt he was entitled to proceeds.

Mr. Decarlo, and his two sons, who also drew the Archie characters, have died. The widow (whose name just happens to be Josie) of Mr. Decarlo is still alive – and is the one in whose name the case was levied.

What’s important to creators is that a judge ruled against the Decarlo claim. The publisher claimed all rights because they can. The artist is, of course, at a disadvantage because of sloppy record-keeping, and the publisher used time and money to win this action. The Supreme Court chose not to take on the case, and there it died.

Xoom, Inc. v. Imageline, Inc. (2004)

 

In this case, Imageline sued Xoom for using copyrighted clip-art illustrations. However, the Fourth Circuit Court of Appeals in Richmond, VA ruled that, because the images were registered as a collection, Xoom only owed for the use of one image, i.e., counting the collection as a single piece of art.

Imageline appealed, asking that the court confer the same copyright protection to each image within a collection as any single image.

What matters here is that, in the original finding, when illustrated images are registered for copyright as a collection, individual images are only protected as a part of the collection and therefore only receive some of the protection that an individually registered illustration receives. Protection for Individual photographic images registered as a collection exists now, but apparently photographers had a better lobby than we illustrators.

In the end, it was decided that each image that is registered as part of a collection retains most protections under copyright law depending on how the original copyright was filed. However, they may not retain statutory rights. Without getting too legal, the real point here is that, if you are working with a collection of works, you may retain full rights over each image, but it’s best to ensure that each image is separately registered as well to maintain all of your rights.

Recording Industry Association of America v. Verizon Internet Services (2004)

 

The RIAA, on behalf of the copyright owners, sought a Section 512 subpoena requiring Verizon to provide the identities of two customers of Verizon Internet Services who engaged in aggravated copyright infringement. One customer made 600 copyrighted recordings, the other 800 copyrighted recordings, downloaded over their Verizon Internet connection using peer-to-peer utility software. Both of these individuals remained anonymous to the victims of their copyright infringement until a court order in 2003 that obligated Verizon to provide the RIAA with their identities. The issue in this appeal is whether and under what circumstances a copyright owner may utilize the procedural remedy Congress enacted to address this problem – the
“Subpoena to identify infringer” provision enacted in 17 U.S.C. § 512(h). Twenty-two Federal cases have been cited as legal precedent in support of the RIAA’s suit including A & M Records, Inc. v. Napster, Inc. (2001) and MGM Studios v. Grokster, Inc. The Graphic Artists Guild has signed on to an amicus brief along with a host of other arts and entertainment industry organizations in support of the RIAA's case on behalf of the copyright owners.

Recording Industry of America v. University of North Carolina at Chapel Hill (2003)

 

This case is very similar to the RIAA v. Verizon case. The RIAA has sought a Section 512(h) of the Digital Millennium Copyright Act subpoena requiring the UNC to provide the identity of a student suspected of committing copyright infringement by downloading copyrighted media files through the university’s internet system onto his computer using peer-to-peer software. The student is seeking to quash the subpoena. UNC argues that the subpoena should not apply to them because the copyrighted files at issue are not stored on their ISP’s system. The Graphic Artists Guild has signed onto an amicus brief with the Motion Picture Association in support of the RIAA to identify the person committing copyright infringement.

MGM Studios Inc., et al v. Grokster, Ltd. (2003)

 

As most of you know, this case involves software that enables users to copy music, movies, and art on the internet. The software maker maintains the software is for archiving purposes but also directs people to a site that tells them how to use the software for copying and sharing files.

The issue is pretty clear here for creators: this software encourages and facilitates intellectual property theft. The suit had many supporters on both sides, including major motion picture and music groups. Joining this effort cost us nothing and is a good show of support against those who attempt to steal intellectual property.

Update: Grokster closed the site, settled, and dropped out. Others stayed in, and, fundamentally, the ruling is that sites like Grokster need to advertise their services carefully and make sure that most users use the site legally, and that they discourage misuse.