First Sale rights question

[kingkendall]

I tried doing a search to my question in the forum but I couldn't find a satisfactory answer.  Question: A photog sells a crime photo to a tabloid newspaper of a crime committed.  A blogger comes along and writes a news story about the crime and uses the photo of the perp in the story.  Months later the blogger gets a demand letter for thousands of dollars from a lawyer representing the photographer.

Didn't the photog give the rights to the photo buy selling it to the newspaper?  Isn't the blogger protected under the copyright law under "fair use" by using sad photo for news reporting a real event to benefit the community notifying them of a dangerous criminal? 

[Robert Krausankas (BuddhaPi)]

Didn't the photog give the rights to the photo buy selling it to the newspaper?  Isn't the blogger protected under the copyright law under "fair use" by using sad photo for news reporting a real event to benefit the community notifying them of a dangerous criminal?

The photogrpaher didn't "Give" anything if he/she sold it to a tabloid, and we don't know the terms of that "sale", so we don't know what rights were transferred, it's highly doubtful that the photographer transferred the copyright ownership to the newspaper.

The blogger may or may not be covered under fair use, it would have to meet the criteria, which is a grey area of the law and open to interpretation by the judge hearing the case.

[kingkendall]

Thanks Robert!  I know hypothetical didn't give much detail.  I just did some research on first sale rights but I'm still unclear as to the ramifications of it and photogs/Copyright trolls trying to get over on people for pics they've already sold. 

[DavidVGoliath]

I just did some research on first sale rights but I'm still unclear as to the ramifications of it and photogs/Copyright trolls trying to get over on people for pics they've already sold.

The First Sale doctrine would not apply to creative works because - even if a photographer would outright "sell" their work to a third party, all that happens is that they transfer all their rights to the work to the buyer... who would then have the full remit of copyright protection under law per the transferred work.

However, the majority of photographers who supply their work to outlets such as newspapers do so by granting them a license that permits the publication to make use of photograph(s) for in a specified manner and duration in return for an agreed fee. This is certainly how I work with my clients.

Also, as Robert has already pointed out, "Fair Use" is not a blanket argument that you can use to absolve yourself of a claim of infringement. If you wish to lodge a defense of Fair Use during trial proceedings, then it would be up to the judge/jury to decide if the use was fair, and the factors to decide it are weighed on a case-by-case basis for each individual image in dispute.

If you were to look at the case known as Cariou vs. Prince (use Google) you'll note that, on appeal, a court found twenty-five of the thirty images in that action were deemed to have met the standards for a Fair Use defence; however, the court remanded the outstanding five images that were not decided on back to a lower court for further consideration; however, before this happened, it was announced that the claim on the remaining images had been settled on undisclosed terms.

I suspect that Prince made an offer to Cariou for those remaining images that was agreeable to both sides, insofar that it would have avoided the need for all parties to endure further time and expense in another round of court proceedings.

[kingkendall]

Thanks DavidVGoliath for your response.  I'm disappointed to hear that fair use is such a gray area.  The "news reporting" is term is written in the copyright law and that is what the blogger is doing in my scenario.  Also I feel a crime photo is not a creative work such as a book or a photo of sunset whereby some photographic skill is needed to enhance the pic.  A crime pic is an actual event.  Not to say it doesn't have copyright protection I does.  But it should be less protection than a work of fiction.  Worst case?  The Blogger is liable for the value of the lic the photog got for the license he got from the tabloid.  Is that far fetch?   

[Jerry Witt (mcfilms)]

It could be argued that photos taken by a photojournalist have MORE value than artistic shots. The photographer had to be in the right place at the right time to capture a moment.

But in your hypothetical case, fair use seems to be the only hopeful excuse for not licensing the photograph. If the site it was published on was truly for educational purposes and had no advertisement or other income, it may be seen as fair use.

[kingkendall]

Thanks Jerry for your response.  I've been reading the forum and reading other sources about fair use and I understand a little better about the gray area.  I guess it depends on the judge. Clearly, the copyright law doesn't address internet age.  If a Blogger wanted to cover a crime that happened the day before and wanted to track down photographer to purchase a license, by the time this is accomplished, it's a day or two later and the crime event is no longer "news"  it's become old news.  And the blogger is not injuring the photog because he's made his money selling or licensing his photo to the tabloid.  And the value of that photo goes down as the days pass, especially if the perpetrator of the crime is Joe Sshmo, not a public figure or a celebrity, but a nobody who committed a crime.  This is a good discussion.       

[Peeved]

A great example from Oscar regarding "fair use"...

http://www.courtroomstrategy.com/2014/03/who-owns-the-rights-to-ellens-famous-oscar-selfie/


"Speaking of public view, just because it is on the Internet and Ellen tweeted it publicly does not mean it is in the “public domain” and free for all to use. So why can I use the picture in this blog post? Since I am commenting on it and discussing the actual image, my use would fall under one of the “fair use” exceptions to copyright infringement. “Fair use” is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In US copyright law, fair use permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test which I won’t get into here. But what’s important to note is that the commenting, criticism, or parody must be ABOUT the work. So since I am using the image to comment ABOUT the image, I can display it. But if I was using it to comment about someone in the picture, say Meryl Streep or Kevin Spacey, then I would need permission to use it in that fashion."

[kingkendall]

Peeved Thanks.  I got a better understanding of fair use and it saddens me.  You really need to be a lawyer to get what the article is explaining.  A layman reads the law and in good faith thinks their doing thing not looking to hurt anybody or deprive anybody of anything.  Then an unscrupulous photog comes along and demands thousands  for a pic got $50 for.  No DMCA take down or acting like a gentlemen.  Just go straight to extortion.     

[Robert Krausankas (BuddhaPi)]

I think what you need to consider is what is the chance that the photog will file suit over a single image, with the possibility that it may be deemed fair use?..Is he/she willing to shell out the 400.00 filing fee, risk getting a counter suit filed against him/her, and maybe loose at the end of the day?..unless it is an iconic image that may go viral, and become one of those once in a lifetime images, I doubt they would file suit..Just my 2 cents..

[Peeved]

Peeved Thanks.  I got a better understanding of fair use and it saddens me.  You really need to be a lawyer to get what the article is explaining.  A layman reads the law and in good faith thinks their doing thing not looking to hurt anybody or deprive anybody of anything.  Then an unscrupulous photog comes along and demands thousands  for a pic got $50 for.  No DMCA take down or acting like a gentlemen.  Just go straight to extortion.   

I think what you need to consider is what is the chance that the photog will file suit over a single image, with the possibility that it may be deemed fair use?..Is he/she willing to shell out the 400.00 filing fee, risk getting a counter suit filed against him/her, and maybe loose at the end of the day?..unless it is an iconic image that may go viral, and become one of those once in a lifetime images, I doubt they would file suit..Just my 2 cents..

This "poker game" is indeed very sad but just because these "troll-players" go "straight to extortion"
as you mentioned, does not mean that you have to go "straight to paying them"!

This forum is here to try to help people to understand that they may have other options besides caving into extortionistic
demands. You have to know your hand, know the players, understand the odds and the risks. As Robert pointed out,
there are risk factors to consider for the troll player as well when it comes to filing suit.

Best of luck.

[Robert Krausankas (BuddhaPi)]

some questions....are you located in either CA or NY? Is the NY lawyer that is sending letters from CA admitted to practice in CA? are you saying you got 2 letters from 2 lawyers over 2 different images?