Photographer Takes Radio Station to the Court of Social Media

| February 28, 2012

By Matthew B. Harrison
Senior Partner
Harrison Strategies

SPRINGFIELD, Mass. –It is important to know more about intellectual property law than just enough to avoid litigation.  Disputes involving intellectual property aren’t always played out civilly within the established legal system.  Brawls are erupting in the Wild West of social networking, where threats of litigation don’t have much standing and unconventional is the nature of attacks.

As described in a previous article (A Lesson from the NJ101.5 Case.), a radio station got hit with a copyright infringement lawsuit because it used copyright protected images, stripped the identifying information of the photographer from the image, and posted them on its website inviting listeners to download and alter the images.

The station argued that its usage of the image was in the capacity of “news reporting” — a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use (thereby excusing their behavior from infringement liability).  While “news reporting” is in fact a justification for copyright infringement – most cases in which news reporting is argued as a fair use defense fail because it is often misapplied – such as in this instance.  The Court disagreed with the assertion that the radio station’s usage was news, ruling that news organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

This was a major blow to the faulty assumption relied upon by most news outlets – that any use of material not owned by the station is automatically considered to be fair use and therefore excusable.  The court padded the effects of this decision by relying on the fact that the station’s usage was alleged to be commercial in nature and the station did not refute this allegation; meaning that if the usage is commercial (by proof or omission of opposition) fair use will not be an accepted defense to infringement.

What does this mean to radio station owners and licensees?  It subjects them to potential liability for copyright infringement, regardless of their knowledge or intent, should they use material that is not owned or licensed to them for such use.  Or in other words – the fair use exception is not universally applied to radio stations just because they claim the usage is news.  However, unlike in the previous scenario, it isn’t always litigation about which a station, host, or network should be concerned.  Sometimes negative publicity can be worse.

In a recent case, a Denver country music station allegedly took 21 concert photos from a competing radio station’s Facebook page and used it on its own page without permission from the competing station or the photographer.  Despite alleging all of the necessary elements to copyright infringement, the photographer is not in a position to initiate a copyright infringement lawsuit.  So instead, he’s taken his fight to the “streets” of social networking and it seems to be working.

Scott D. Smith, a professional Colorado photographer, took photographs at a Jason Aldean concert.  As per an ongoing seven-year arrangement, Smith got credentials to the concert from the radio station, and in exchange gave these photos to KYGO-FM to put on its website and Facebook pages, while personally maintaining ownership of the copyright to the images.  This is not an uncommon arrangement for radio stations to make such trades with professional photographers for credentials, advertising, and semi-exclusive usage rights while the photographer maintains the copyright for the images.  Most radio stations strapped for cash these days do not have it within their budgets to spend actual money on photography.

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), one cannot actually sue another party for copyright infringement unless the owner registers the work with the Copyright Office.  One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages.

Statutory damages are prescribed amounts that a judge can determine the value of each infringement to be without the owner having to prove any actual damages.

If a copyright is not registered within three months of initial publication, or before the date of the infringement, in this case a photographer would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

Under the theory of statutory damages, assuming that the owner of the work has registered the copyright with the copyright office prior to infringement, if the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement will be between $750 and $30,000.  However, if the court determines that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of not more than $150,000 per instance of infringement.  This is the source of the big money from copyright infringement litigation.  Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful.  This is to inspire attorneys to represent starving artists as clients when their rights have been trampled – even though their client cannot pay for services in advance of settlement or verdict.

Ultimately, this Denver photographer did not register the images for copyright protection before the infringement occurred.  This means that he is not eligible for statutory damages per instance of infringement, and all attorneys’ fees in the collection of these damages.  This has made his finding an attorney who will take this particular matter on contingency nearly impossible — as the actual damages wouldn’t be enough to warrant an attorney taking a matter unless he was retained on an hourly basis — as opposed to a contingency basis.

This is another example of the importance of registering one’s creative works for copyright protection.  Whether it’s one show or a catalogue of shows, the owner of the work should register it for copyright protection.  All of the necessary forms and submission of file information are available at www.copyright.org.

While Smith, the photographer in the case cited above, has a legal recourse, for whatever reason, he hasn’t proceeded as such at this time.  Instead, he took matters into his own hands and contacted the station manager on the phone to voice his complaint.  However, Smith says it did not rectify the situation.

According to Smith, the station manager apologized, told him the image would be taken down, and offered him free advertising as compensation.  This was a good move on the part of the station manager to rectify this obvious problem.

Smith rejected this offer based upon the premise that he didn’t want the other station, KYGO-FM, with which he had a seven-year working relationship to think that he was supporting their competition by advertising with them.  Instead, he requested what he considered fair value for the use of the images — between $200 and $1,000 per image totaling around $10,500 in damages.  Why he wasn’t offered the ability to resell the advertising is outside my scope of knowledge, however this could have been a probable solution.

In copyright infringement litigation that doesn’t involve registration prior to the infringing behavior, it is necessary that the injured party prove the amount of actual damages (and any profits) suffered by means of the infringement.  This is a very difficult task, in almost all cases.

For Mr. Smith, his arrangement with the original station was not monetary in nature. It certainly had monetary value, but did not literally involve actual dollars exchanging hands.  So even though, Mr. Smith has been published by national magazines and often licenses these types of images to various clients for these prices, it would be difficult – if not impossible – to prove a realistic amount of actual damages that would inspire an attorney to take this case on contingency (for a percentage of the proceeds).

Of course, if the copyright is registered prior to infringement, the copyright statute presumes a larger amount of damages, and also includes that the infringing party will cover attorneys fees.

For whatever reason, the radio station determined that it had no responsibility to compensate him and they rejected his offer of $10,500.

While I can speculate as to what their motivation for arguing this would be, Jeff Wilks, CEO of Wilks Broadcasting, the company that owns the radio station accused of allegedly infringing the photographer’s copyright, said in a previously published article that they did not know the images were protected by copyright, and that once they were informed of the infringement, the images were removed.  Unless a photographer proves otherwise, there is not an assumption of actual damage unless it can be proved that there was malicious intent.

Smith alleges that his copyright was stripped from the allegedly infringed upon photos, however it isn’t that clear.  Upon my own investigation, it became apparent that the copyright notice was never attached directly to the photographs, but instead were placed as captions next to each photograph as they appeared on Facebook.  The act of saving the photos separated the photos from the copyrighted images thereby only strengthening the station’s argument that they did not intend on separating the copyright images directly or maliciously.

Section 1202 of the Copyright Act makes it illegal for someone to remove “copyright management information” from a photo to disguise the infringement when used.  It originally was only applicable to digital images with the copyright management information either embedded within the file or written upon the image displayed in the file.  However, it has recently been interpreted as applying to print photos.  The fines start at $2,500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.

A claim under this section of the Copyright Act, while seeming appropriate, will probably not be successful because the photographer would have to prove that the radio station willfully stripped the copyright information from the photo, and considering that it is stripped automatically during the saving process – willful stripping is a difficult argument to make.

Under the old paradigm, the fact that Smith has rights but doesn’t want to pursue them on his own dime, the radio station would be free from litigation, thereby furthering the belief that any usage is fair usage.  However, Smith doesn’t seem to be going away.

Instead of hiring an attorney and pursing the station legally on his own dime, Smith has started to generate negative publicity for the station in an attempt to shame them into apologizing for allegedly stealing his property and paying him for what he alleges to be rightfully his.  Photography blogs and the twittersphere are buzzing with this story and it’s gaining momentum. Smith has become a figurehead for photographers who had their rights regularly infringed upon yet were unable to continue with legal remedies because they did not register the copyright prior to the infringement.

Smith explained that he took his claim to the listeners and advertisers of the station, sharing the details of his story, and further alleged that some of them had withdrawn financial support of the station.  Smith further claimed that the station had acknowledged that his contacting advertisers was interfering with their contracts and that such behavior potentially opens him to liability of his own.

A request for comment from Wilks Broadcasting went unanswered.

I have written in previous articles that if artists don’t give value to work they put online, either by charging for access or making licenses available for purchase, they cannot argue that there were actual damages (lost income) when the content is used without permission.

This situation could sound a bit like extortion, fueled by the hostility of others who also don’t have much of a legal leg to stand on due to lack of merit or financial resources.  However, Smith’s argument claims that he suffered actual damages. He licenses his images for the amount of money that he is seeking from the station in damages.  While the radio station probably wouldn’t have purchased the right to use the images (and therefore would not be the direct cause of lost sales), if Smith could prove that his revenue is derived mostly from photo licenses, and that their actions injured his agreement with the original radio station; an agreement that has value, he may have a stronger case than the station realizes. Ultimately, it would be up to a judge to determine with broad discretion.

Regardless of how this particular situation resolves itself, there are two takeaway lessons to be learned from this scenario:

First, creative professionals need to register their intellectual property for copyright protection.  It doesn’t matter the form of the media – audio, video or text.  If registered property is protected prior to infringement occurring, they will be able to obtain legal assistance on contingency, as the damages will be prescribed by statute as will the payment of all attorneys’ fees by the infringing party.

Second, should someone claim that a radio station’s or broadcaster’s actions infringed upon their copyright, they should remove all of the alleged infringing content until they can clarify the details of the scenario.  Litigation shouldn’t be the only concern as negative publicity is just as real and easily spread by the internet.

 

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

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Category: Legal