Judge Dismisses Photographer’s $1 Billion Case Against Getty Images
Posted by Rebecca Blake on November 25, 2016
Earlier, we reported on the lawsuit brought by photographer Carol Highsmith against Getty Images and other parties when she discovered they were invoicing users of her photographs, which she had put into the public domain. Getty Images and another stock agency, Alamy, were licensing photographs taken by Highsmith, which she had put into the public domain in an agreement with US Library of Congress. Highsmith became aware that Getty and Alamay were licensing her photographs when she received an invoice from License Compliance Services on behalf of Alamy, accompanied by a letter claiming she was using the images without their permission.
Highsmith sued Getty and Alamy for $1 billion, stating that since Getty is a repeat offender in copyright violation, statutory damages should be trebled. The defendant’s legal counsel pointed out, however, that the plaintiffs were conflating copyrights with rights management. Since Highsmith had placed her photographs in the public domain, both Getty and Alamy are legally permitted to license the images, and Highsmith has no copyrights to assert on those images. (Public domain works may be commercialized, as in the Dover Publications Design Library collections of public domain clip art and images.)
Highsmith did not sue for copyright infringement, but rather for violation of provisions the Digital Millennium Copyright Act. According to Lexology, Highsmith’s lawsuit made three major allegations — that Getty, Alamy, and the co-defendants:
1) violated a provision of the Digital Millennium Copyright Act which forbids the alteration or removal of copyright management information (17 U.S.C. § 1202) Highsmith’s agreement with the Library of Congress stated that her credit line must be included with any use of her images. Getty and Alamy altered or removed Highsmith’s credit line, and added their own watermarks and credit lines);
2) engaged in false advertising under the Lanham Act by implying that they were working on concert with Highsmith;
3) similarly, violated New York General Business Law § 349, which forbids businesses from engaging in “deceptive acts or practices.”
On October 17, the judge presiding in the case, US District Judge Jed S. Rakoff, indicated that he was considering dismissing a number of Highsmith’s claims. According to Law360, the October 17 hearing largely focused on the claims relative to the New York General Business Law, indicating that the judge had already come to a decision on the other claims. In fact, on October 28, the judge dismissed all of Highsmith’s claims except those related to the New York General Business Law.
That left Highsmith’s lawsuit severely weakened. On November 16, the parties settled over the remaining New York State claims. (The terms of that settlement have not been disclosed.) The judge dismissed the case with prejudice, meaning that Highsmith is forbidden from filing another lawsuit on these grounds.
Below: Highsmith’s public domain image, which Alamay invoiced her for.
Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division
Update on Freelance Isn’t Free: NYC Mayor Signs Bill into Law
Posted by Advocacy Liaison on November 18, 2016
In a bright ending to a tough year, Mayor Bill DiBlasio of New York City signed the Freelance Isn’t Free Act into law on November 16. The law is the first of its kind in the nation, providing legal recourse for freelancers to pursue clients for non-payment. The law requires that employers supply freelancers with a contract for projects with a value greater than $800, and pay freelancers within 30 days of the submission of an invoice. The law also prohibits clients from extending an offer of payment lower than the agreed-upon fee. The law will go into effect in May of 2017.
The Freelancers Union is advocating to bring the law to other cities. Freelancers and their supporters are invited to sign the Union’s petition to bring the act nationwide. The Guild is a proud supporter of the Freelance Isn't Free initiative.
Relief for NYC Visual Artists: Freelance Isn’t Free Act Passes Unanimously
Posted by Rebecca Blake on October 31, 2016
On October 27th, the New York City Council unanimously passed groundbreaking legislation supporting freelancers: the “Freelance Isn’t Free Act.” Introduced by Councilman Brad Lander last December, the act redresses the growing trend of non- or late payment experienced by 71% of New York City freelancers, according to a survey conducted by the Freelancers Union. The bill requires employers to make payment within 30 days after a freelancer renders a bill, and gives freelancers recourse through the Department of Consumer Affairs or through small claims court to enforce their rights.
Below: Councilman Lander’s jubilant tweet:
Thrilled to report: "Freelance Isn't Free Act" to protect independent contractors from wage theft just unanimously passed out of committee! pic.twitter.com/jiKL7fNCp4— Brad Lander (@bradlander) October 26, 2016
Non-payment is a huge issue for freelancers nationwide, as documented by the Freelancers Union. In a nation-wide survey of over 5,000 freelancers conducted by the Union in July of 2015, 71% of respondents reported that they’ve had difficulty collecting payment over the course of their careers, and 50% of respondents said they’d encountered that within the previous year. Of those reporting difficulty in collecting payment, 34% were never paid. The survey results indicated that annually freelancers lose about $6,000 from nonpayment, and experience late payment on an average amount of $5,743. That’s a steep financial burden for most freelancers.
The act redresses non- and late payment of New York City freelancers by several means:
• Clients (not freelancers) are required to issue a contract for any freelance work that will total $800 or more over a 3-month period;
• Payment must be made within 30 days after serviced or rendered, or within an agreed-upon date;
• Clients cannot press freelancers to accept a lower fee in exchange for timely payment;
• Freelancers can file a complaint with the Department of Consumer Affairs, or bring a court action against deadbeat clients;
• If the court rules in the freelancer’s favor, the client may have to pay legal fees and fines up to double the owed amount; and
• Repeat violators may be fined by the city up to $25,000.
For the act to be written into law, it must be signed by Mayor Bill DiBlasio. However, indications are that will happen, and support for the bill is widespread, as evinced by the unanimous vote. NYC Public Advocate Letitia James is a vocal supporter of the bill, which she and 32 City Council members co-sponsored. The Gothamist also reported that in an email communication, City Hall spokesperson Rosemary Boeglin indicated support for “laws that protect all New York City workers.”
In addition to conducting the payment survey, the Freelancers Union ran an extensive campaign to publicize and promote the act. Union founder Sara Horowitz co-wrote an op-ed on the issue with Brad Lander, the Union marshaled freelancers to rally at City Hall, and Union members testified before the city council. The Freelancers Union also ran an online petition supporting the act, published freelancer payment horror stories, and posted “The World’s Longest Invoice,” a running tally of the amount owed to freelancers.
Now that the act is practically a reality, the Union isn’t done. They’d like to take the initiative national, encouraging freelancers to propose similar legislation in their municipalities. They’ve kept up their petition to “Bring the Freelance Isn’t Free Act to your city.” So far almost 10,000 freelancers have signed it. The Graphic Artists Guild was proud to back the Freelance Isn’t Free act in New York City. We hope to have the opportunity to do so elsewhere.
Statement on Removal of Registrar of Copyrights by Copyright Alliance
Posted by Advocacy Liaison on October 24, 2016
On October 21, Dr. Carla Hayden, Librarian of Congress, announced the removal of Maria Pallante as Registrar of Copyrights. With small copyright claims legislation introduced in the House and copyright law under review, the change in Copyright Office leadership comes at a sensitive time. The Guild is working with other creators’ associations to formulate an appropriate response, and to advocate for greater protection for visual artists. The Copyright Alliance, of which the Guild is a member, released a statement that echoes our concerns:
Copyright Alliance Statement on Today’s Changes in the Copyright Office Leadership by New Librarian of Congress
Washington, D.C. – October 21, 2016 – The new Librarian of Congress, Dr. Carla Hayden, today announced that Register of Copyrights and Director of the United States Copyright Office, Maria Pallante, has been removed from office. The following is a statement by Copyright Alliance CEO Keith Kupferschmid regarding the announcement:
“We are most grateful for the dedicated service that Maria Pallante has provided during her tenure as Register of Copyrights. Serving since 2011, Register Pallante’s commitment to evidence-driven policymaking and public involvement in the policy process should serve as a model. She has recognized the importance of copyright to both the U.S. and international creative communities and worked as a steadfast advocate for modernizing the Copyright Office and its technology initiatives. It has been an honor to work with Register Pallante.”
Kupferschmid concluded by stating: “We are surprised and concerned by today’s news, which comes at a time when the Office and others are considering many potential changes to the copyright system and law. As the national search for a new Register of Copyrights commences, we are committed to assisting the new Librarian and the Chairman and Ranking Members of the House and Senate Judiciary Committees with this important process, and view it as an excellent opportunity to continue the dialogue on the future of the U.S. Copyright Office. We support Karyn Temple Claggett’s appointment as the Acting Register and believe that her appointment will allow us all to be deliberate and take the time necessary to find the next Register.”
ABOUT THE COPYRIGHT ALLIANCE
The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over 1.8 million individual creators and over 13,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit www.copyrightalliance.org.
Workgroups Present to the International Design Community at ico-D Platform Meetings
Posted by Rebecca Blake on September 09, 2016
ico-D, the International Council of Design, represents the interests of design associations, educational institutions, and promotional organizations globally, and the Guild has been a member since 2007. The ico-D Platform Meetings were held late August in Pasadena, CA, providing an opportunity for members to meet and discuss the work of the organization’s professional and educational workgroups. As head of the workgroup on National Design Policy, the platform meeting was both an opportunity for us to connect with international designers, and the culmination of a lot of hard work.
The ico-D “platforms” were established to provide an opportunity for members to work on projects in between the organization’s annual member meetings. Platforms were established for each of the categories of ico-D members: Educational, Professional, and Promotional. At the first Professional Platform meeting (which the Guild is part of), ico-D member associations listed three topics they wanted to focus on: National Design Policy (NDP), Communicating the Value of Design (CVD), and Design Certification (DC). Workgroups were established for each topic last summer, and as the Guild’s representative to ico-D, I was asked to head the NDP group.
During the past year, the workgroup met frequently via Skype, often at odd hours to so that members from Malaysia, Indonesia, Canada, South Korea, the US, and Australia wouldn’t have to miss their sleep to participate. We also conducted interviews with designers involved with the design policies of their home countries or states – a fascinating peek into the varied “design ecosystems,” the relationships between the design sector, businesses, governmental agencies, and the public. (See the article National Design Policies: Why They Matter.)
Discussion sessions at the platform meetings brought in fresh perspectives from associations representatives and design educators from around the globe.
At the Pasadena Platform Meeting, the NDP workgroup was allotted a half day for presentations. That permitted NDP workgroup members to present on what is occurring in their countries, from an elegant and proactive system (South Korea), to the first steps to crafting an NDP (Malaysia and Indonesia), to attempts at a regional design policy (Australia), and finally, to a failed attempt (USA). At a member Q&A session, attendees spoke about the political and economic conditions in their home states that hinder (or help) the creation of coherent design policies. I also participated in the CVD “Design has Value” session, co-presenting with designer and ico-D friend Zelda Harrison on Communicating the Value of Design to Government.
The workgroup sessions were punctuated by the ico-D annual general meeting, a tour of the Pasadena College of Art and Design, a fascinating panel discussion on Design and Complexity, and a workshop on sustainable design. Based on the quality of the discussions at the meeting and the interest from members in joining the workgroups, the Platform meeting was a success. But what also became apparent is the amount of work still left to develop valuable resources for ico-D members, and to create a space where international design associations can collaboration on crucial projects.
Below: “Learn to Create. Influence Change.” The College of Art and Design’s motto is displayed prominently in their machine shop.
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