What do National Geographic wildlife photographer Frans Lanting, singers Robin Thicke and Pharrell Williams, Nike and artist Shepard Fairey have in common?
They’ve all been a part of big copyright infringement litigation.
In a small community like Jackson’s, we sometimes assume consent when sharing or using images created by our friends and colleauges. Ninety-nine percent of the time we’re happy to be quoted, promoted and shared.
Now and then, we assume a little too much. With spring cleaning happily on our minds, and prevention in the air, it seemed appropriate to learn more about copyright guidelines and steps we can take when it comes to sharing creative endeavors.
Alex Kerr is an intellectual property attorney based in Jackson Hole, specializing in copyright issues surrounding the arts. Alex Kerr Law springs from Kerr’s prior decade working at a firm representing photographers’ and other artists’ copyrights. Having moved to Jackson in recent years, “for all the obvious reasons,” he’s in the process of forming a partnership with local attorney Len Carlman.
“Jackson is a remarkable place in that it is so connected. You have people flying into Jackson from all over the world and money and an art market, so you do have exposure to ideas that are current everywhere,” Kerr observes. “Those ideas can come here to take hold. And at the same time it’s also a small community where you’re going to see the person you did business with on the ski slope or at the grocery store. There’s always an incentive to be a good neighbor, and just being honest and conscientious goes a long way. It behooves everyone to abide by the Golden Rule. And in terms of copyright law in the creative world, it helps to know some copyright basics. What are the boundaries of fair use? It’s useful information to know. Intellectual property is an artificial fence surrounding whatever your creation happens to be, and certain requirements need to be met in order to obtain a copyright; a creation fixed in tangible medium must exist.”
At Kerr’s prior firm a partner left law to follow his passion for photography, and after some time in the field he noticed colleagues’ work being inappropriately reproduced on a massive scale—in none other than educational textbooks. You’d think that’s allowable, as the mission of textbooks is to educate young minds.
But, after a lengthy litigation process, the courts decided otherwise.
It was great representing the little guy and going toe-to-toe with those big lawfirms. We were riding the white horse in that battle. ~ Alex Kerr
“Textbooks are lavishly illustrated on every page–think of your Biology 101 textbook. There are a handfull of big publishers in the U.S. that make almost all of these scholastic textbooks, that all students read,” Kerr explains. “They have contracts with entire states. And these venerable publishers lost their way, and ended up licensing, with little permission, these photographs—and printed whatever the market demanded. That produced an entire generation of very underpaid photographers, underpaid for a long time.”
Photographers licensed their works to reproduce around 40,000 copies, says Kerr. That publisher might have had a hot selling book selling a million copies. Photographers whose work had been used should have been compensated to a much greater degree up front than they were. Multiply missing out on $100-$200 per transaction without being paid for a thousand transactions….well, you can see where that’s going.
Interface that with copyright law–which is quite strong and goes back to the Constitution, Kerr points out. The Copyright Act of 1976 protects creatives and incentivises artists to put work into circulation and provides certain legal remedies. With copyright registrations in effect, it’s possible to gain up to $150,000 per infringed work.
Some of these photographers had up to 1,000 infringed upon images, which theoretically could bring financial remedies into the billions.
“Publishers said that though they messed up, it was ‘a million dollar mess up, not a hundred million dollar mess up.’ Finding resolutions to these cases, looking at their legal exposure and liability versus what they thought was a fair market remedy set up some very intense disputes,” Kerr reveals. “These publishers hired prominent lawfirms with unlimited resources to throw at these cases, and there were 10 years of white hot litigation representing photographers. The textbook companies claimed they were acting on behalf of schools and educating children, but in reality they were for-profit corporations making huge profits.”
Kerr’s firm was successful and brought a great deal of justice to professional and mom-and-pop photographers.
“It was great representing the little guy and going toe-to-toe with those big lawfirms. We were riding the white horse in that battle,” says Kerr.
There needs to be a separation from the art market, where work exists, and the conversation that is taking place around that work.
Fair use is a defense to copyright infringement where you are allowed to make a copy of someone else’s work if you are using it in a different context and you’re not competing with that person’s work, Kerr explains. If you’re doing a news story or educating there are channels that allow you to discuss and make copies of existing work. So, if you’re in a third grade art class you can show your powerpoint slide of a copy of someone’s painting, and that’s considered fair use because third graders aren’t making money from your work. Transformative use is a subsection of fair use. Shepard Fairey argued that he transformed an AP journalist’s photograph of Barack Obama to such a degree that it became a new form of expression. He likely could have gotten permission from the AP photographer who took the photo, and been free of all the controversy. He was not totally honest about the source of the image. His original attorney stopped representing him because of that. He complicated his situation by not telling the truth.”
Warhol’s soup cans are an example of transformative use. In this case, says Kerr, the Campbell’s Soup cans have a copyright on how they present their logo, but Warhol was saying, I’m commenting on symbols, and using a completely new avenue of expression in the realm of high art; I’m not competing with Campbell’s Soup in their design. I’m transforming it into a new market.
Kerr emphasizes that getting legal results usually requires costly years of litigation. And, there is a three-year shelf life to make copyright claims. If you become aware of an infringement of your work after three years, but can prove you knew nothing about it until discovery, you can still make a claim.
Ultimately, he says, there needs to be a separation between the art market, where work exists, and the conversation that is taking place around that work. Whether you are writing a blog, publishing a newspaper or printing any kind of promotional material, it’s best to always have the permission from the creator. Usually we’re all about getting extra exposure and are grateful for any we receive. Permission can be implied, but when it’s only implied, get firm permission.
With social media, there’s often misunderstandings. If you find a cool image and put it on your Instagram post, you just made a copy without permission. They shared it, I’m sharing it, I’m not going to make any money off of it, I’m not going through the traditional motions of recreating…is a common thought process. But that’s missing the point. There is no safe harbor. Social media is covered by the same laws, so if you don’t have permission to make a copy, technically you are in violation.
Copyrights last as long as the creator lives, plus 70 years. That’s quite a lot of time in the legal world. Patents have a shelf life of 20 years. There’s controversy over why creators have so much time, and the reason is, is that it represents the life of the author plus another lifetime. After that, works become part of the public domain. Lobbying corps like Disney have argued for even longer durations.
Discussing Disney, Kerr says that if someone painted a work that included a recognizable image of Mickey Mouse, they would be in violation of present guidelines.
“Again, it would take litigation to settle the case, but it would be arguable. If you’re using Mickey Mouse in a high piece of art to display in a gallery and doing obviously transformative things like cutting Mickey’s head off or otherwise changing his appearance you can say you’re commenting on Mickey; the fair use argument would probably work. But if you’re a t-shirt shop, and change Mickey’s shoes and you’re selling t-shirts, Disney could say you’re commercializing their exact product. You owe them money.”
Fair use is a way of protecting the sharing of ideas and using them in new markets, says Kerr. Another way is by not letting people monopolize the basic idea behind something. You can’t copyright the basic plots of a story, you can’t copyright musical chords, so there are building blocks considered too basic to own (think Romeo & Juliet and West Side Story).
A case Kerr brings along on powerpoint also involves famous names. Photographer Jacobus Rentmeester went to North Carolina and brought a young Michael Jordan out of the gym, set up a basketball hoop, took him outside on a grassy hill and created a photographic composition of Jordan shooting basketball. Rentmeester directed Jordan to jump like a ballet dancer, to execute a grand- jete. That was inspired by Rentmeester ‘s recently photographing dancer Mikhail Baryshnikov. The shot was highly orchestrated. Kerr notes that Rentmeester had Jordan hold the ball in his left hand….which he wouldn’t, because he’s a right handed player….and jump unnaturally wide. Jordan’s silhouette is emphasized, the sun in the background. It’s a remarkable shot. Nike liked it so much they licensed it for a while. Then they had their own photographers shoot Jordan after he’d signed with the Bulls. They had Jordan jump the same way. When Rentmeester saw it he told Nike they’d stolen his expression. Nike also eventually used the silhouette to create their “Jumpman” logo.
Jumpman represents billions of dollars in commerce, and Rentmeester wanted a piece of those profits. Is the jump a signature body movement, or part of the lexicon? The image is unmistakably traceable, it uses the same athlete and the composition is so similar that it’s easy to judge that Nike stepped out of bounds.
“Part of copyright ownership,” says Kerr, “is not only having the exclusive right to make copies but also have the right to make any derivatives of that expression. So if you wrote Harry Potter, nobody else can use his character and put it in a whole new story. Only you have that right.”
The photographer’s argument was that even though Jumpman is derivative, it’s derivative of a derivative…a chain that he owned. He and his lawyers argued for all the similarities, saying that everything was so similar it was an obvious breach. But the court ended up agreeing with Nike that their image was new enough, and did not infringe. The defense went into great detail describing every facet of the photograph, each small difference, real or inferred.
“It’s difficult to reconcile, but it shows that logic can be viewed differently. There are two branches of the tree: photography has its own kind of precedent and treatment, and music or writing have theirs,” says Kerr.
Click the camera button, take brush to the canvas, write original words. With copyright, you have a monopoly on your work.
The main takeaway Kerr wants to impart is the importance of registration. You can’t bring a case until you are registered. Every creator should get used to registering at the copyright.gov website; even works that aren’t published. Get in the practice of submitting, and you’ll have more remedies at your fingertips than you have if you do not register. It’s business insurance. You can copyright up to 750 photographs in one registration, for $55. It’s pretty user-friendly, Kerr points out.
“It’s a bit of a pain, but the difference between having a registration and not is often the difference between having an infringement pursuit be worthwhile or not. With registration, you can in theory win up to $150,000; you don’t have to prove your losses, you just have to prove your copyright. It’s designed to protect creatives,” says Kerr.
Click the camera button, take brush to the canvas, write original words. With copyright, you have a monopoly on your work. Kerr has found that Jackson is fertile ground for ideas to take root and be expressed.
“I’ve gotten to know the artistic community in Jackson, and it is a really vibrant community. Over the years I’ve represented a number of outstanding photographers and artists doing interesting things….One artist hooked up speakers to plants that registered frequencies plants emit and converted them into musical notes. Different plants made different musical compositions; you could walk through the exhibit and hear sounds the plants made. Very cool. Unfortunately there was a dispute between the two creative partners over who owned the idea.”
In the end, it’s always difficult to prove damages, but that is what intellectual property attorneys like Alex Kerr can help you do. If you have questions or concerns about your creative images and work, including music, get in touch with him via www.alexkerrlaw.com.
Tammy Christel 
