Tuesday, February 8, 2011
It's Not A Winning Ticket
Someone used my picture without permission! What do I win?
Settlement Efforts And Setbacks
By the latter half of 2007, when my involvement in the case started, the case already had cost each side several hundred thousand dollars in fees and costs with no end in sight.
As a photographer, I encouraged my clients to offer what was considerably more than reasonable given the usage involved. Using FotoQuote, I confirmed the usage values that I expected based upon my own work in the industry. The photographer retained to serve as an expert in the case independently arrived at roughly the same figure (as did Latimer’s expert, who admitted roughly the same figure in deposition). Unfortunately, the amount offered was several orders of magnitude less than what it appeared Latimer and his lawyers expected to receive from the case.
After settlement efforts failed, Latimer’s attorneys continued to pursue the case into 2008 as though they were holding a winning lottery ticket. Then their case suffered a major setback: About two months before trial, the court granted judgment in favor of Kawasaki, finding that Latimer had granted Kawasaki an implied license. The court also granted judgment in favor of Hachette, finding that Hachette’s use of the photographs constituted fair use. Latimer requested that the court reconsider its decision and even submitted an affidavit claiming he didn’t know his photographs had been forwarded to Kawasaki until after Kawasaki received them. The court disregarded the affidavit as a sham and, again, ruled in favor of Kawasaki and Hachette. Latimer appealed.
The Appeal: A Tale Of Two Implied Licenses
In April 2010, Latimer received good and bad news from the federal appeals court. The good news was the reversal of the judgment in favor of Kawasaki and Hachette. The bad news was that the appeals court agreed with the lower court that Latimer’s actions gave rise to an implied license in favor of Kawasaki.
In a decision that garnered the attention of lawyers and photographers alike, the federal appeals court explained that “[a]n implied license is created when one party (1) creates a work at another person’s request; (2) delivers the work to that person; and (3) intends that the person copy and distribute the work.” While payment is conspicuously absent from the factors giving rise to an implied license, some courts have ruled that payment can render the implied license irrevocable. Absent payment, it may be possible to terminate even an implied license (although terminating the license doesn’t enable a copyright owner to seek damages for copyright infringement for pre-termination use of a copyrighted work).
In an interesting twist, the appeals court found not one, but two, implied licenses. When confronted with the more difficult issue of whether Latimer’s photographs constituted unauthorized derivative works, the appeals court sidestepped the issue by finding a second implied license. The court found that since Hathaway, the independent artist, knew Kawasaki was going to use the customized motorcycles for promotional purposes, he also had to know that the customized motorcycles would be photographed. Thus, Hathaway was deemed to have granted an implied license that was broad enough to include Latimer and anyone else who might photograph the customized motorcycles bearing his artwork.
As if the implied license findings weren’t bad enough, the appeals court also found that Latimer’s affidavit was properly disregarded as a sham. And while the appeals court reversed the finding of fair use, it did so only on procedural grounds; the lower court was given a green light to permit the procedural issues to be corrected and for Hachette to assert fair use again.
Page 3 of 4