Friday, 7 April 2017

DMCA, Moral Rights and Photography


A New York photographer has filed a copyright infringement suit in the Southern District of New York against a media company owning four news websites, claiming it used one of his photographs without permission to illustrate articles. The case is Theodore Parisienne v. Beasley Media Corp., Inc., 1:17-cv-02407.

Plaintiff is a professional photographer who took a picture of a man being pulled in an ambulance. The man had been struck by a subway in Queens, New York, after allegedly robbing a teenager of her smartphone. Plaintiff licensed the photo to the Daily News, who used it to illustrate its article about this event. The newspaper credited Plaintiff under the photograph.
The complaint alleges that Defendant reproduced the photograph on its four news websites to illustrate its own report on the subway robbery and accident. Defendant did not credit Plaintiff for the photography.

Plaintiff claims this is copyright infringement, as Defendant did not have permission to reproduce and to publicly display the image, in violation of Plaintiff’s exclusive rights under Sections 106 and 501 of the Copyright Act, 17 U.S.C. §§ 106 and 501. That is a classic copyright infringement complaint.

DMCA as a moral rights law

The complaint also alleges that Defendant intentionally and knowingly removed the copyright management information identifying Plaintiff as the author, which had been published under the photo in the Daily News website. Plaintiff claims that this violated 17 U.S.C. § 1202(b) protecting the integrity of copyright management information.

It is interesting to see that 17 U.S.C. § 1202(b), part of the Digital Millenium Copyright Act (DMCA), is becoming a sort of de facto moral rights law, providing authors with an enforceable right of paternity. We reported on several others cases where Plaintiff used the DMCA to enforce their right of attribution, which is a moral right, see here, here, and here.

U.S. law provides limited moral rights under the Visual Artists Rights Act of 1990 (VARA). VARA only protects “works of visual arts” which are defined by Section 101 of the Copyright Act, 17 U.S.C. § 101. Photographs are ”works of visual arts,”and thus within the scope of VARA, only if they were “produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

This was not the case here. This is a picture taken on the spot, in the heat of action, as the man is pulled inside the ambulance by New York City emergency medical technicians. The purpose of the image is to inform. The author did not select the subject for its aesthetic value, nor did he direct the subjects to wear special clothes, to pose a certain way, nor did he have the time to select particular lightning or lenses.

That said, copyright law does not differentiate work of art from work of lesser aim. As Justice Holmes famously wrote in 1903, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations” and this certainly applies to photographs. As long as a photograph is original, it is protected by copyright, whether is a work of art or a news photo. These two categories sometimes overlap, as in this work by Weegee, but not always. As beautiful as Weegee’s works are [and ‘beautiful’ is not a legal concept], they were not taken for exhibition purposes and even they would be outside of VARA’s scope.

Will U.S. law ever provide comprehensive moral rights?

In our case, the work is protected by copyright, and the DMCA provides its author with a claim against Defendant for alleged falsification, alteration and/or removal of copyright management information, aka right of paternity. There is still no U.S. law which could serve as a substitute to provide authors a right in the integrity of their work, another moral right, and it is unlikely such law would ever be enacted in the U.S. The U.S. Copyright Office recently undertook a public study on moral rights for authors, specifically the rights of attribution and integrity. The public comments it has received so far are here. The U.S. Copyright Office has extended the deadline for the submission of written comments, which are now due no later than May 15, 2017.


Photo is courtesy of Flickr user Dade Freeman under a CC BY-NC-ND 2.0 license.

1 comment:

Fred von Lohmann said...

There is a significant remedial distinction between a "classic copyright infringement" claim and a 1202 claim, as the latter allows a plaintiff to recover statutory damages and attorneys fees, even in the absence of a prior registration for the work. Compare 17 USC 1203 and 17 USC 412. That may have more that a little to do with the sudden vogue for 1202 claims in cases like this.