Friday, May 3, 2013

A Tip of the Hat to Judge Fred Biery

Sometimes, judges just have too much talent to be constricted by the dry style taught in law schools. A recent example of this has been making the rounds among my friends this week. The Chief Judge of the U.S. District Court for the Western District of Texas, Fred Biery, shows some gifted turns of phrase in his decision.

The case of 35 Bar and Grille v. The City of San Antonio, a.k.a. The Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie can be read here.  Quoting from the ruling really doesn't do it justice. "Thus the age-old question before the Court, now with Constitutional implications, is: Does size matter?" "Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power."

That's just the way it starts. It is only a few pages long. "An Appendix is attached for those interested in lengthy exposition, those who wish to appeal and those who suffer from insomnia." Ultimately, the request for a preliminary injunction by the Bar fails and I think the judge is hoping that the plaintiff recognizes a full trial isn't going to go well.

In terms of title, it is right up there with taking on Satan and his minions: Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971.) Mr. Mayo lost on procedural grounds, because the Court wasn't sure it had jurisdiction over the defendant(s). This is not Judge Biery's problem.

Friday, April 19, 2013

Broken News

There is no "breaking news" exemption to the Copyright Act which allows news organizations to steal photographs and use them without permission or payment to the photographer. A review of the legislative history of the 1909 Copyright Act makes this very clear.

During the process of rewriting the previous copyright law, Congress heard from newspaper publishers who wanted such an exemption. How convenient for them to be able to grab any images they wanted in order to fill their pages without having to keep photographers on staff or pay freelance photographers for the art. Fortunately, some photographers who had already seen their work being infringed by publishers made their voices heard and Congress turned away efforts to make a "breaking news" exemption for copyright infringement.

Johannes Hirn is only the latest photographer to find out that publishers keep trying to break that law. His photographs of one of the Boston bombing suspects training to compete in the Olympics as a boxer have been lifted by news organizations in their hunger to feed the 24/7 news cycle.

Mr. Hirn was a journalism student when he made the images for a class at Boston University, as reported in this article from Photo District News. These incidents of copyright infringement also show why it is important for a photographer to set up a system which registers photographs on a timely manner, to preserve the ability to quickly file a lawsuit and ask for statutory damages and attorneys fees. Although Mr. Hirn has some valuable images because of the notoriety achieved by his subject this week, unless his images were registered with the Copyright Office within 90 days of their first publication, he will be limited to asking for "actual damages" for the infringement of his work. He will be unable to ask for attorney's fees, with will, no doubt, limit his ability to afford a lawyer to pursue his claims.

I hope that Mr. Hirn contacts his local chapter of the Volunteer Lawyers for the Arts, the American Society of Media Photographers (ASMP), and/or the National Press Photographers Association (NPPA) for assistance in this matter. He could use their help and all three organizations have access to lawyers who understand how photographs are protected by copyright law.