4 ms·

Both cases look open-shut in favor of photographer. 1) He has right to fair use. 2) they cannot just use his pics for profit

by vxNsr 9y ago

gspetr 9y ago
Agreed. This seems like a slam dunk for him and creates bad optics of David vs Goliath for the company. That said, he did come off as a bit of an unhinged person in his twitter tirade.
- tryingagainbro 9y ago
  CBS doesn't care about optics...relatively very few people will read or get interested in this. Plus, megacorps do a gazillion worse things each day. CBS is doing what it can to settle the first case, so maybe both sides will drop them. If that 24sports site had run it by CBS lawyers I'm almost certain they would have told him not to use his images. But in the end they were used so CBS has to defend itself. To me using photos of a photog without permission is 100 times worse than posting a screenshot of a TV show but lawyers will milk it.
- ThrustVectoring 9y ago
  It's enough of a slam dunk and he's been an active enough critic on twitter that I really want to see an anti-SLAPP petition for pulling this.
- chesimov 9y ago
  Does 'bad optics' mean something like 'bad impression'? Sounds odd to me (although I'm not in the US)
  - fcbrooklyn 9y ago
    It means it "looks bad".
  - s_kilk 9y ago
    Pretty much. The 'optics' of a situation are the appearances, the visuals, the perceptions. So when someone says a thing has "bad optics" they mean that it looks bad to observers.
  - ClassyJacket 9y ago
    I'd never heard that phrase before ~2 months ago, suddenly I'm hearing it everywhere.
chris_wot 9y ago
I feel a great deal of sympathy for the photographer, but how do you know the use of the screenshots are fair use?
- cowsandmilk 9y ago
  because it trivially meets factors for fair use. It is a very small portion of the copyrighted work and is not a substitute for the work. A couple screenshots from a TV show does not lower the market value for the TV show. TV Land isn't going to stop airing Gunsmoke because someone posted a couple screenshots online.
  - chris_wot 9y ago
    I must have missed something somewhere - doesn’t the article say the lawsuit doesn’t state how the images were used?
    - Rotten194 9y ago
      unless the images were a screenshot of each frame of the episode, how exactly they were used doesn't matter for the cited clause of fair use. in what way could a small number of screenshots ever be a substitute for an episode of a tv show?
      - pbhjpbhj 9y ago
        Small and "in-substantial" are different. If you're selling screenshots as memorabilia, say (posters, tshirts, mugs), then they're likely to be substantial in that context and IMO even with USA's relatively liberal fair use a court is likely to rule against it. Of course trademark may also come in to play depending on the content of the screenshots themselves. Your substitution test is useful, and interesting, but it's not a test that determines copyright infringement.
      - chris_wot 9y ago
        Then you misunderstand fair use. Fair use doctrine is far more complicated than just meeting one of the tests. I used to have to adjudicate Fair Use images on Wikipedia, and believe me the grounds for valid Fair Use is more complex than you appear to believe.
baldfat 9y ago
I don't see the photographer having an open and shut case especially for $150,000 for photography. 1) The player gave the photo to the writer claiming it was his property 2) The writer gave credit (Which doesn't allow for use and they should have contacted for use), but normally if there would be a cost a different photo will be used These crazy copyright claims are the issue. The photographer suing for $150,000 is wrong and the CBS is wrong for the same $150,000 claim. It should be market value of a photo and legal fees. This would make it easy for a photographer to get his money since the company would not want the added legal fee charge. Instead in US it is a all or nothing and usually both parties lose. Per Image Fee is the best way to move forward. http://www.roshsillars.com/2017/02/15/much-photographers-charge-2017/ http://www.roshsillars.com/2017/02/15/much-photographers-cha...
- electrichead 9y ago
  The problem with that though is that it becomes a precedent (not in legal sense) and it might be tempting to just use images without paying the copyright owner, since you just need to settle for market value or a little more at the time that you're sued. It is a huge effort to go through media to make sure that your content is not being used without your consent and most independent people won't be checking it vigorously since they need the time to actually work.
  - baldfat 9y ago
    They would be paid for the picture at a fair market value and if not and found out some lawyer is going to get rich off of enforcing this rule. I am sure lawyers would turn this into the new ambulance chaser.
- mickronome 9y ago
  I'm certainly not a lawyer, but my experience is that in copyright law - for better or worse - it generally doesn't matter if you believe you have rights to use some property, the only thing that really matters is if you actually have those rights. Applying that perspective CBS is absolutely in the wrong corner in that regard. As for the photographer, we don't know the circumstances of his use, but as the article noted, it's not unlikely to be considered fair use. A single frame from a movie/series can reasonably be seen as a quote, whereas their wholesale use of the photographers entire picture clearly is not. But whatever the circumstances in either case, CBS suing for a screenshot of an old movie/series seems to be a perfect way to get bad publicity, and no pity whatsoever if they would loose in court. Almost nobody wants it to be illegal/fineable to post screens and clips from TV-series, and pushing it that way is trying to get the cat back into the bag. It's part of our culture now, and that cat isn't going back anytime soon.

Both cases look open-shut in favor of photographer. 1) He has right to fair use. 2) they cannot just use his pics for profit

by vxNsr 9y ago

Both cases look open-shut in favor of photographer. 1) He has right to fair use. 2) they cannot just use his pics for profit

gspetr 9y ago

Agreed. This seems like a slam dunk for him and creates bad optics of David vs Goliath for the company. That said, he did come off as a bit of an unhinged person in his twitter tirade.

tryingagainbro 9y ago
CBS doesn't care about optics...relatively very few people will read or get interested in this. Plus, megacorps do a gazillion worse things each day. CBS is doing what it can to settle the first case, so maybe both sides will drop them. If that 24sports site had run it by CBS lawyers I'm almost certain they would have told him not to use his images. But in the end they were used so CBS has to defend itself. To me using photos of a photog without permission is 100 times worse than posting a screenshot of a TV show but lawyers will milk it.
ThrustVectoring 9y ago
It's enough of a slam dunk and he's been an active enough critic on twitter that I really want to see an anti-SLAPP petition for pulling this.
chesimov 9y ago
Does 'bad optics' mean something like 'bad impression'? Sounds odd to me (although I'm not in the US)
- fcbrooklyn 9y ago
  It means it "looks bad".
- s_kilk 9y ago
  Pretty much. The 'optics' of a situation are the appearances, the visuals, the perceptions. So when someone says a thing has "bad optics" they mean that it looks bad to observers.
- ClassyJacket 9y ago
  I'd never heard that phrase before ~2 months ago, suddenly I'm hearing it everywhere.

chris_wot 9y ago

I feel a great deal of sympathy for the photographer, but how do you know the use of the screenshots are fair use?

cowsandmilk 9y ago
because it trivially meets factors for fair use. It is a very small portion of the copyrighted work and is not a substitute for the work. A couple screenshots from a TV show does not lower the market value for the TV show. TV Land isn't going to stop airing Gunsmoke because someone posted a couple screenshots online.
- chris_wot 9y ago
  I must have missed something somewhere - doesn’t the article say the lawsuit doesn’t state how the images were used?
  - Rotten194 9y ago
    unless the images were a screenshot of each frame of the episode, how exactly they were used doesn't matter for the cited clause of fair use. in what way could a small number of screenshots ever be a substitute for an episode of a tv show?
    - pbhjpbhj 9y ago
      Small and "in-substantial" are different. If you're selling screenshots as memorabilia, say (posters, tshirts, mugs), then they're likely to be substantial in that context and IMO even with USA's relatively liberal fair use a court is likely to rule against it. Of course trademark may also come in to play depending on the content of the screenshots themselves. Your substitution test is useful, and interesting, but it's not a test that determines copyright infringement.
    - chris_wot 9y ago
      Then you misunderstand fair use. Fair use doctrine is far more complicated than just meeting one of the tests. I used to have to adjudicate Fair Use images on Wikipedia, and believe me the grounds for valid Fair Use is more complex than you appear to believe.

baldfat 9y ago

I don't see the photographer having an open and shut case especially for $150,000 for photography. 1) The player gave the photo to the writer claiming it was his property 2) The writer gave credit (Which doesn't allow for use and they should have contacted for use), but normally if there would be a cost a different photo will be used These crazy copyright claims are the issue. The photographer suing for $150,000 is wrong and the CBS is wrong for the same $150,000 claim. It should be market value of a photo and legal fees. This would make it easy for a photographer to get his money since the company would not want the added legal fee charge. Instead in US it is a all or nothing and usually both parties lose. Per Image Fee is the best way to move forward. http://www.roshsillars.com/2017/02/15/much-photographers-charge-2017/ http://www.roshsillars.com/2017/02/15/much-photographers-cha...

electrichead 9y ago
The problem with that though is that it becomes a precedent (not in legal sense) and it might be tempting to just use images without paying the copyright owner, since you just need to settle for market value or a little more at the time that you're sued. It is a huge effort to go through media to make sure that your content is not being used without your consent and most independent people won't be checking it vigorously since they need the time to actually work.
- baldfat 9y ago
  They would be paid for the picture at a fair market value and if not and found out some lawyer is going to get rich off of enforcing this rule. I am sure lawyers would turn this into the new ambulance chaser.
mickronome 9y ago
I'm certainly not a lawyer, but my experience is that in copyright law - for better or worse - it generally doesn't matter if you believe you have rights to use some property, the only thing that really matters is if you actually have those rights. Applying that perspective CBS is absolutely in the wrong corner in that regard. As for the photographer, we don't know the circumstances of his use, but as the article noted, it's not unlikely to be considered fair use. A single frame from a movie/series can reasonably be seen as a quote, whereas their wholesale use of the photographers entire picture clearly is not. But whatever the circumstances in either case, CBS suing for a screenshot of an old movie/series seems to be a perfect way to get bad publicity, and no pity whatsoever if they would loose in court. Almost nobody wants it to be illegal/fineable to post screens and clips from TV-series, and pushing it that way is trying to get the cat back into the bag. It's part of our culture now, and that cat isn't going back anytime soon.