I was assigned this advertisement for Mederma PM which included us creating the starry night sky and the creamy product as the moon. Amazing to work with the Partners + Napier creative team of Gretchen Bye – Associate Creative Director, Creative Director Lisa Kreienberg and Producer Julio Soler. Special thanks to Producer Rebecca Schatten and Stylist Laurie Raab. Shot at 5th and Sunset studios in Los Angeles.
A federal appeals court has re-instated stock photo agency Alaska Stock’s copyright infringement claim against textbook publisher Houghton Mifflin, reversing a lower court decision to dismiss the case on the grounds that the stock agency had registered its images improperly.
The decision means that Alaska Stock now gets the opportunity to try its copyright claims in court.
The case is a also victory for photographers and other copyright owners because it upholds a streamlined process for registering images in bulk as a collected work. Specifically, the court affirmed the authority of the US Copyright Office “to grant registration to individual stock photographs within a collection where the names of each of the photographers, and titles for each of the photographs, were not provided on the registration forms.”
“The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the [copyright] statue,” the US Court of Appeals for the Ninth Circuit said in its decision. “Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust.”
The ruling came in the case of Alaska Stock v. Houghton Mifflin Harcourt, which began in 2009 when Alaska Stock sued the publisher for using Alaska Stock images well beyond the scope of the original usage license. In particular, the publisher “greatly exceeded” the print run limit of the license it had paid for.
Houghton Mifflin challenged the claim on the grounds that Alaska Stock had improperly registered the images in question. (Federal law requires valid registration of any copyrighted work that is the subject of a federal copyright claim.)
Alaska Stock had registered the images in bulk, as a catalogue, listing names of only three photographers, and describing the images in general, but not listing a title for each photograph.
The district court agreed with Houghton Mifflin that Alaska Stock’s registration was “defective” because the agency had not provided the names of each of the photographers and the titles of each of the photographs in its registration application, as required “unambiguously” by law, according to the district court decision.
But the appeals court overturned that decision because it conflicted with a long-standing practice by the Register of Copyrights, undercut the legal authority of the Register of Copyrights to establish procedures of copyright registration–and amounted to a misreading of copyright law by the district court.
The appeals court noted that for more than 30 years, owners of collected works–notably magazines and newspaper publishers–have been legally registering both the collected work and the individual underlying works with one application, without listing all the authors or titles of the individual works. To do otherwise would put an undue burden on applicants and the Register of Copyrights, the court noted
The one caveat to that practice is that applicants for registration must own copyright to the collected work and all the underlying works, the appeals court noted.
In its decision, the appeals court also validated a 1995 letter from the Register of Copyright to the Picture Agency Council of America (PACA) prescribing a method for registering large catalogues of images. “The Register agreed that a stock agency could register both a catalog of images and the individual photographs in the catalog in one application if the photographers temporarily transferred their copyright to the stock agency for the purposes of registration,” the appeals court said in its ruling.
Alaska Stock did exactly that, asking its photographers to transfer copyrights to the agency for the purpose of registering the images in bulk, and then filing a registration application for a CD catalogue of images. (The agency arranged to transfer copyrights back to the photographers after the registration was completed.)
In reviewing the registration requirements spelled out under copyright law, the appeals court said the law requires only that copyright owners provide a title of the collected work and a description (not titles) of the underlying works. Alaska Stock met that requirement, the appeals court said, by registering the images as a collected work called “Alaska Stock CD catalog 4,” and by identifying the underlying works as “CD catalog of stock photos” on its registration form.
The appeals court said the statue requires the name of the author of “the work”–ie, the collected work, not every author of the the individual works. The stock agency met the requirement by listing itself [Alaska Stock] as the author of the collective work, the appeals court said.
The appeals court noted that Houghton Mifflin’s arguments have prevailed in several district court decisions in other similar cases, “but we do not agree with them,” the appeals court added.
In those cases, the courts threw out copyright claims because the registrations were “defective,” i.e., they did not list all the image authors and image titles.
Three of those cases were filed in the Ninth Circuit. One case was settled; two others are under appeal, and will probably be re-instated because of the Alaska Stock decision. “Judges in the Ninth Circuit have to follow the ruling of the court of appeals” in that circuit, says Maurice Harmon, who represents the plaintiffs in all the cases, including the Alaska Stock case.
A fourth case is on appeal in New York, which is in the Second Circuit. Judges there are not bound by the Ninth Circuit decision in the Alaska Stock case. But Harmon believes judges in other circuits “will take it into consideration.
“We think that at the court of appeals level, we’re starting to get momentum for all of these cases,” he adds.
Harmon also says, “It galls me that these [textbook] publishers, who use compilation registrations [to protect their own works], would turn their backs on the very thing they rely on to win a technical victory to take the courthouse keys away from photographers.
“But they know that once a photographer gets in the door of the courthouse, the publishers are not going to get away with this copyright infringement.”
March 25, 2014
Flattered that Art Photo Index has chosen me as featured artist. The API site contains a portfolio of my fine art work as well as the work of many other artists.
February 26, 2014
I recently shot this editorial story of gay rights activist Joe Jervis… his blog is read by millions yet he is rarely seen and never photographed… an intense but shy man who has spent his life proliferating gay rights and the rights of gays in religion. A dream assignment for any photographer…
February 20, 2014
Although it was nerve-racking Rebecca Weiss made me feel comfortable and consequently made me look good by asking all the right questions about artists I respect and admire.
A special thank you to Daile Kaplan, Debra Rogal, Rebecca Weiss, Brilliant Graphics and the entire Swann team.
February 16, 2014
We are pleased to announce that we are releasing a second monograph by photographer Brian Rose entitled Metamorphosis: Meatpacking District 1985 + 2013
Meatpacking District follows the sold out success of Brian’s first monograph with Golden Section Publishers – Time And Space On The Lower East published in 2011. Release of the book is slated for Summer 2014
February 6, 2014
All photos: Courtesy of Swann Auction Galleries.
Since the early Nineties, when commercial photographer Bill Diodato began collecting 20th century photographic literature, he has amassed a collection of 1500 volumes, including first editions and out-of-print books by Irving Penn, Brassai, Bernd and Hilla Becher, Ed Ruscha, Andre Kertesz and other masters. On February 27, Swann Galleries in New York City will be auctioning 250 lots of books from Diodato’s collection. Diodato explains, “It’s a great time to say I got everything I needed out of them. It’s nice to share them with collectors and galleries and institutions.” While the Swann auction contains only the books most likely to fetch high prices, Diodato says, “I’m probably going to donate the other 1,000 books or so I have.”
Diodato says he began collecting photo books as a way to educate himself. He first bought books by the photographers who had the greatest influence on his own fashion and still life photography. “Penn was the biggest influence,” says Diodato. “Horst, Penn and Avedon are my earliest memories of purchasing photographic literature.” But he wanted to learn more and “cultivate my knowledge of photographic history.” He adds, “I set a personal goal to collect and know the most influential people in each genre.” While some collectors focus solely on photo books in one specialty or one country, Diodato collected photojournalism, portraiture, still life, conceptual photography.
Over time he acquired—usually through private dealers, gallery owners and Swann Galleries—works by W. Eugene Smith, Alfred Stieglitz, Walker Evans, Aaron Siskind, Bill Brandt, Daido Moriyama, Nobuyoshi Araki, Ed Ruscha, as well as photographers who had influenced them or been inspired by them. “Every time I got into another genre, it opened another door to another genre,” he says.
His purchases included some rare collectibles. He has a first edition of Lewis W. Hine’s Men at Work(Swann set its estimate at $3,000 – $4,500), a first edition of Brassai’sParis de Nuit (estimate: $3,000 – $4,5000), and a copy of Alexei Brodovich’s Ballet in its clamshell box (estimate: $7,000 – $10,000). He has a copy of Sally Mann’s Immediate Family, which the photographer and her kids, whose photos appear in the book, signed for him. (Diodato’s keeping that volume, he says.) He also acquired prints by many of the artists he admired; some of these will be sold in the Swann auction.
Diodato stopped looking for 20th century master works to buy a few years ago. In 2010 he published his own book, Care of Ward 81. Several fellow photographers bought copies. “It changed my philosophy about collecting books,” he says. “I got a lot of support from other artists. That’s when I got the bug to buy new books.” For example, he recently purchased the latest book by Edward Burtynsky, an artist he admires. Diodato explains, “I want to get back to supporting artists, not chasing elusive books.”
About the 20th century photobooks he’s acquired, Diodato says, “I’m just a custodian now.” Being their custodian means storing them away from light or moisture. “They’re expensive to insure,” he notes. “If there was a fire, it would be a disaster.” Diodato is also a father with young kids. “I started to think: How would I feel if one of the kids tore a page out of Robert Frank’s The Americans?”
Diodato has previously sold books on consignment through photo-eye in Santa Fe. When he decided to let go of the bulk of his collection, he contacted Swann. “We collaborated on assessing values and conditions, and [on] descriptions.”
When those are sold, he’ll have more room in his home, and derive another benefit, too. “I’ll be happy to share them, and they’ll be exposed to the world.”
November 27, 2013
Prosciutto and Fresh Fig delights by Bill Diodato and food stylist Charlotte Omnes.
November 22, 2013
“Killed: Beautiful Food That Never Made the Cut” a new exhibition featuring food stylist Victoria Granof‘s unpublished images opens Thursday, November 21st. The title of the exhibition refers to photographs that were created but never published because clients may not have picked what Granof and her collaborators thought was the best image. “Killed” was conceived by Granof and photographer Craig Cutler, with whom she has collaborated with many times over the years. The exhibition features images by more than 30 photographers, including Hans Gissinger, Kenji Toma, Mitchell Feinberg,Marcus Nilsson, Ilan Rubin, Anita Calero, Marcus Gaab, Plamen Petcov, Bill Diodato, Christian Witkin, Travis Rathbone, Anna Williams, James Wojcik, Dan Forbes and Nigel Cox.
“Killed” opens November 21 for a by-invitation-only one-night exhibition at Craig Cutler Studio. The show will then move to Pure Space Studio, 601 W. 26th St., 12th floor, Suite 1225, NYC, where it will be open to the public through the end of December. Images in “Killed” will be placed in a silent auction at BiddingForGood benefiting Just Food, a nonprofit organization that connects communities and local farms with the resources and support they need to make fresh, locally grown food accessible to New York residents.