---> original post:


AP wins round 1 of NAFP suit. Bad news!
Date:
Sat, 13 Dec 1997 23:30:27 +0000
From:
dannyg1@mail.idt.net
To:
dannyg1@mail.idt.net
CC:
rec.photo.misc
References:
1


Subject: Court Rules for AP in Lawsuit

Date: Wed, 10 Dec 97 21:40:52 EST

---------------------------------------------------------------------------
Submitted-by: robert.giroux@pressroom.com
---------------------------------------------------------------------------

Court Rules for AP in Lawsuit

By RICHARD PYLE

NEW YORK (AP) - A federal judge dismissed a suit by photographers against
The Associated Press on Wednesday, saying the worldwide news agency has a
legal claim to copyright of all pictures taken for it by freelancers on
assignment.

In a 31-page ruling, U.S. District Judge Denise L. Cote rejected five
claims by the National Association of Freelance Photographers - among
them that The AP, through its ``dominance of the market,'' violated
antitrust, monopoly, restraint of trade and copyright infringement laws.

The primary complaint was that AP required the photographers, as a
condition of sale, to surrender copyright and future earnings from the
resale of their pictures.

The plaintiffs said AP also would ``refuse to do business with ... or
threaten not to do business with those freelance photographers who
object'' to its policy.

Cote rejected the plaintiffs' contention that the photographers owned the
copyright to their work, and sided with The AP in saying that the NAFP
``lacked standing'' as a professional organization to seek legal redress
on their behalf.

The suit was filed last March by three New York-based freelancers, Kevin
J. Larkin, Joseph M. Tabacca and Paul Hurschmann. Larkin is president of
the NFPA, Hurschmann is executive vice president and Tabacca is a member.

The suit involved ownership of pictures taken by freelancers who were
given assignments by the AP.

The AP asked for sanctions against the NAFP for what it said were
``improper motives'' and false claims concerning copyright. The
photographers withdrew the disputed claims but sought to sanction AP for
the cost of opposing the AP motion. Cote denied both motions.

The plaintiffs noted that AP pays outside photographers by checks that
carry a legend saying that ``endorsement signifies consent'' to give up
copyright claims. Cote upheld the provision, saying the plaintiffs had
failed to show why the practice was not valid.

Cote also said that a copyright infringement occurs only if the
individual had acquired a certificate of registration in advance from the
U.S. Copyright Office. Larkin had applied but had not received one, she
said.

She also rejected the claim that AP monopolized the market, saying there
was no evidence, as required by the law, that the news agency had engaged
in ``predatory or anticompetitive conduct'' or raised a ``dangerous
probability of achieving monopoly power.''

``The complaint contains not a single factual allegation demonstrating
that AP has any market power, or the extent thereof, let alone that AP's
market power makes it dominant,'' Cote said.

Neither, she added, did the photographers offer facts to show that AP
policy had any ``adverse effect on competition'' or that it intended to
seek a future monopoly status in the field.

The lawyer for the three photographers said he had not seen the ruling
and could not comment. Vincent J. Alabiso, AP vice president and
executive photo editor, said the news agency would have no comment.

AP-NY-12-10-97 1815EST





dannyg1@mail.idt.net wrote in message <3495A8D9.1E6C@mail.idt.net>...

>All the following applies to US assignments as this is where he case is being argued.

>>>The operating word is here "on Assignment". They went in on assignment.
>That's work for hire seems to me.<<
>
>>>Why?! I don't see how the photographers would have any chance of
>winning. You are hired to do anything, the end product does not
>belong to you.<<
>
>>>when someone contracted for me to write software for
>them, it was theirs alone. Lock, stock and barrel. I don't see any real
>difference here.<<
>
>
>In some very well defined employment situations you are correct. In the AP vs. NAFP
>case, as with most freelance photo assignments, copyrights belong to the creator and
>must be signed over (usually for valuable consideration.
>
>AP negotiates for limited usage at extremely low rates (usually less than $75, I believe)
>and then, after the fact, puts a copyright transfer to the endorsement line on the
>paycheck.
>
>An apt comparison would be to rent a car and then claim ownership of the car by paying
>with a conveniently worded endorsement line on your check.
>
>In the case of software, you sign over your intellectual rights via contract before the job
>commences. AP would like to do this but at the rates they pay, they're not finding a
>receptive audience among creative professionals.
>
>I'm not a lawyer and no advice is intended..yada, yada
>
>Danny Gonzalez


I agree with DG on the above, and am amazed by the judgement of Cote, if
true. It would be both dangerous to the protection US copyright law appears
to clearly provide photographers not in regular employment (as with paycheck,
benefits, etc.), and bad law, since the judgement appears also to clearly
contradict the US copyright law... While technically parts of the judgement
might be correct if technicalities were not attended to by the photographers
(and lawyers) in their court case, still the issues of the check endorsement,
loss of copyright for merely taking money for the work done (and without
written agreement, required by the law in order to give up copyright in the
US), loss of copyright due to non-registration (in the US, copyright is
protected without registration, but registration does provide legal
benefits...), and the restraint of trade question (implied by the blanket
requirement to give up copyright before receiving work) should have been
(and I think were...) settled issues long ago... I am also amazed by the
willingness of photographers on this NG to jump on the bandwagon of support
for the AP's seemingly illegal and unethical attempts (in my opinion - I
too am not a lawyer...) to deprive the photographers of their copyright
protection (and future earnings...). If I am hired to take photographs for
ANYONE, they are entitled to first one-time use of the images made, PERIOD!!!
(I may grant further rights to their uses, but those extended rights are
under MY control, and are NOT legally required.) I trust the judgement
resulted from inept legal work on the part of the photographers (and can
therefore be overturned...), but until it is, it still represents a
serious setback for self-employed people who want to earn a living
from their work...
Hope This Helps
David Ruether - http://www.fcinet.com/ruether