The Brief Writer

The Washington Post reports on corporate copyright infringement occurring on the web. The article demonstrates the need for even amateur photographers to know how to protect their intellectual property on the internet. Read the article here.

The case, Straus v. DVC Worldwide, Inc., 484 F.Supp. 2d 620 (S.D. Tex. 2007), brings to light more than a few issues that bear on photographers' copyrights and licensing issues.

In 1989, Robert Straus, Jr., a professional photographer, took and registered with the Register of Copyrights a picture of Arnold Palmer. Glaxosmithkline and DVC Worldwide, Inc. (GSK's ad agency) negotiated a licensing agreement with Straus for use of the Palmer picture in a Nicoderm campaign. The licensing agreement included in-store displays and shelftalks for a particular period.

Shortly after the campaign got underway, DVC suggested that GSK use a more recent photograph of Palmer. GSK began using a 1995 photograph of Palmer, but Straus screamed "foul." Straus claimed that DVC manipulated the 1995 photograph to look substantially similar to his own. Straus stated:

. . . each alteration of the Hauser image (1995 photograph) was designed to make the manipulated image more resemble the Straus image.

For that alleged infringement, Straus demanded ten times his claimed actual damages of $90,000.00. As proof for his damages, Straus looked to a photograph expert who testified that to determine the market value of a retroactive license, the photography industry a "sliding scale of multipliers for issuing retroactive licenses for unauthorized infringing uses. She went on to offer her opinion:

Fees for retroactive licenses are greater than those charged for prospective licenses. The standardized use of a sliding scale of multipliers in the industry recognizes this economic reality. In my opinion, a multiplier of ten in this case is reasonable and in accord with the practices and standards of the image licensing business.

Unfortunately for Straus, the court poured him out on both of those claims - infringement and damages.

In probing Straus's claim of substantial similarity, the court said this about photography in general:

Protectible aspects of photographic works may include the angle from which the picture was taken, the lighting techniques used, shading, exposure, and developing techniques. . . . These elements address how the photograph depicts its subject matter rather than what is depicted. . . . In cases involving photographs, a plaintiff's copyrights cannot monopolize the various poses used, and can protect only plaintiff's particular photographic expression of these poses and not the underlying ideas thereof.

The court examined the 1989 and 1995 photographs side-by-side and concluded no similarity as a matter of law because:

1. The facial expressions were different (open v. closed mouth).
2. The light was different (sun vs. artificial).
3. The angles were different.
4. Palmer looked significantly older in the 1989 photograph.
5. The poses were different.

The court found these differences although DVC had Photoshopped (I presume Photoshop) Palmer's shirt to almost match the 1989 photograph and had taken out many blemishes, etc. that made Palmer look closer to the 1989 photograph than the actual picture.

With regard to Straus's claimed damages, the court threw out the expert's opinion, basically saying that the parties' license agreement should have taken care of retroactive licensing (Straus had an extremely difficult burden of proving any actual damages because the picture was part of a national campaign).

The gist of this case is that every licensing agreement should contain some provisions for retroactive licensing and that one should think twice about claiming that some other photographer's Photoshopped photograph is an infringement.