Something New Every Week
Something New Every Week
Exploring the Warhol Foundation vs. Lynn Goldsmith: A Transformative Case in Artistic Copyright Law
Picture this: A courageous photographer significantly impacts the estate of a world-renowned artist. Welcome to our deep dive into the landmark Supreme Court ruling in favor of veteran photographer Lynn Goldsmith against the iconic Andy Warhol Foundation. Our guest, attorney Aaron Stark, brings his legal prowess to analyze this transformative case that could alter the landscape of copyright law for artists around the globe.
Entering the murky waters of art and copyright infringement, we unpack the labyrinthine twists and turns of the Warhol Foundation v. Lynn Goldsmith case with Aaron Stark's expert interpretation. Together, we explore the judgment, its potential implications, and the significant role it will play in defining the parameters of fair use for future artists. Are you mindful of the power dynamics in the art world and the complexities of copyright law? This episode illuminates these aspects in a way that's both enlightening and empowering for all creatives.
We conclude our exploration by underscoring the crucial role of photographers in asserting their rights in cases of copyright infringement. Uncover the intricate dance between photography copyright and celebrity rights and loop in on the importance of registering copyrights. We also set the stage for an exciting discussion on the intersection of artificial intelligence and copyright law in our upcoming episode. Don't miss out on this riveting discourse on the ever-evolving world of art, law, and technology.
Hey there, thanks for tuning in to Something New Every Week with your host, me, Jason Group. Each week I'm going to give you something new that's happening in our photographic world just some great conversations with my friends and what's going on right now. Something New Every Week is sponsored by Miller's Lab. Miller's Professional Imaging is the largest professional lab organization in the United States. They provide professional prints and press products for professional photographers in all 50 states and Canada, and they're just a great company. If you don't know them, go check them out MillersLabcom. All right, welcome to another episode of Something New Every Week. This week I'm here with Jackie, my co-host, who isn't here every week, but I'm glad she's here this week, and I'm here with Aaron, who Jackie's going to introduce and get a little more information from him, and we're going to learn all about him, and I'm just going to let her take over here because I'm completely unprepared. So Jackie take over.
Speaker 1:We're glad that you're listening and this is going to be a great episode. And here we go.
Speaker 3:Hello, so thanks, I'm glad I'm here and thank you, aaron, for being here. Aaron Stark is a lawyer. I'm the owner of Stark Law. Correct me if I butchered the name and he was a longtime contributor of Rain-Truinder. He really helped me shed light on a lot of the legal issues that photographers face. He did webinars for us. He comes to WPPI every year, so I'm again really happy to see you, aaron, and I don't think we can proceed without talking about the most recent, like huge ruling that the Supreme Court made in favor of photographer Lynn Goldsmith against the Andy Warhol Foundation. It was like a huge decision for photographers and other artists who try to own their copyright of their work. So A do you have any you know? What are your comments on the case overall? Were you surprised by that decision?
Speaker 1:Wait, before you get there, let's learn a little bit more about Aaron first. So, Aaron, give us and you're right, Jackie, this is the most important thing that's happened in our industry in the longest time and not to circumvent you, but before I was catching up with Aaron, Aaron was one of the few platforms that I attended at WPPI and also one of the few platforms that I was completely enamored and was. I don't usually last too long in these in the platform classes, just because I know a lot of the people and stuff like that, but the information that he was delivering was unbelievable. So, Aaron, just give us a brief history about you, where you live, where you know, and a little bit more about you, and then we'll get into that. Sorry, Jackie.
Speaker 2:No problem.
Speaker 3:No sure?
Speaker 2:Yeah, no, thanks, jason, I appreciate that you got a lot out of my talk at WPPI. And, jacqueline, you're right. Yeah, the Warhol case is a seminal case for photographers and I'm looking forward to getting into it. Yeah, so I'm a lawyer for photographers. I represent photographers of all types and I focus a lot on intellectual property law, so copyright infringement, copyright defense and a lot of business law as well, because a lot of photographers have their own businesses, so they need help setting up their business, they need help with contracts and I am one stop shot basically for them and for all their legal needs. I live in Washington DC. I've been practicing law for about 10 years now, which is crazy. It's really flown by. I started my law practice almost straight out of law school.
Speaker 2:I used to be a photographer back in the day, I was always interested in intellectual property law. I come from a family of photographers, so while I was in law school, I was always getting peppered questions from my twin brother, who's a professional photographer, about. You know, I need a contract for this, I need a model release. Somebody took my photo without permission. What do I do? And so yeah, so I thought you know what? I could probably start a law firm right out of school representing photographers with issues like my brother's had. So that's what I did and that's what I've been doing ever since, and it's been great. I've met a lot of people in the photography community. They've just been wonderful. There's nothing like working with an artist, and so I've really, really enjoyed my practice and it's really grown over the years too. As photographers, businesses have grown. I've had clients from the beginning and I've watched them start out small and now are just big time, huge photographers bringing on other people into their business and helping them with the legal issues that come along with that too.
Speaker 2:So I'm happy to be here today and answer some of your guys' questions about the latest news and photography world.
Speaker 3:We're so happy to have you here. Jason and I talk over each other a lot but, we're happy to have you here.
Speaker 1:So being in a meeting with us when we both worked for Emerald was pretty painful for everybody that was there because we were constantly stepping on each other. But that's why we love each other very much and we made a good team because we definitely dug into the issues more than you know. That's why it's great to have you here now. So cool, jackie, I'm sorry. Go back to your question again. No problem, see you.
Speaker 3:And we like to keep it light here but I also do want to really address this ruling, so just a little bit of background. People don't know the photographer, Lynn Goldsmith.
Speaker 3:It was a six-year battle for her with this case, that against the Andy Warhol Foundation. She had created an image of an iconic image of Prince, and then I guess that image was used as silt screens, and so I'll let you take over most of this, aaron. But the Supreme Court ruled that the silt screens were not transformative enough of the original photo by Goldsmith to fall under fair use, so can you just sort of elaborate more on that?
Speaker 2:Yeah, so I want to give a little more background of facts. So basically, so, lynn, this is from an octographer and in the 1980s she takes this portrait of Prince and she was commissioned to take these portraits, I believe, by Newsweek Magazine. So she takes these portraits of Prince, some while he's playing and some just regular portrait photos. A few years later, when Prince was really kind of blown up, vanity Fair magazine wanted to do an article on Prince and so they asked Lynn Goldsmith to use one of her images of Prince for Andy Warhol to use for inspiration for an artwork. So it was only for a one-time use of her photo and he was to use. Andy Warhol was to use this one image for one piece, one use for the cover of Vanity Fair. So they paid her, I think, $400 to do that. So she licenses the photo to Vanity Fair and then Warhol makes 15 pieces works of art based off of this photo. He uses the photo. Actually, if you look at it, he uses the image itself. It's not like he recreated, he uses the image. He does the typical Warhol things. He kind of almost like a silk screen looking, changes to it, different colors, that sort of thing, and they use one of them to put on the cover of Vanity Fair. But Goldsmith doesn't know that Warhol had made a series. It was only for supposed to be one work.
Speaker 2:So many years later, prince passes away I think in 2016. Then Condé Nast, the owner of Vanity Fair, wants to do another special series on the life of Prince. So they reach out to Andy Warhol Foundation because Andy Warhol had passed away in the late 1980s and the Andy Warhol Foundation owns the copyrights, owns all the pieces of the Warhol series. And so they go there and they ask for one of the 15 pieces to use as a cover image for the magazine article. This is a different image. This is a different piece than what was used on the original Vanity Fair article many years ago. So Goldsmith finds out about it and she says hey, that's copyright infringement. They paid the Warhol Foundation $10,000 to use this piece. They didn't account to Goldsmith at all, they didn't give her credit or anything like that, so she did not file.
Speaker 2:What is really interesting, she didn't file a copyright lawsuit, an infringement lawsuit. What happened was and this is very interesting and what photographers should really know about when they go and accuse someone of copyright infringement is that when you accuse someone of copyright infringement and you say, hey, I can file a lawsuit against you, that gives the defendant or the person you're accusing the right to go to court themselves and tell the court hey, I've been accused of copyright infringement court. I want you to decide whether I really infringed. And so what happens is the photographer could end up in court based off of a threat and that's what happened here. So she didn't file a lawsuit.
Speaker 2:The Warhol Foundation filed what's called a declaratory judgment and they went to the federal court and they said hey, I don't believe we infringed and we're going to be accused of infringement. I believe this falls under the exception of fair use. And it went from the district court to the circuit court and then to the Supreme Court and there are different rulings along the way, but that's where we're at in terms. And then it got to the Supreme Court. So just briefly to give you the procedural history, it was at the district court. The district court ruled in favor of the Warhol Foundation. They said this is not copyright infringement. This is what falls under fair use. It means it falls under an exception to copyright infringement. I don't know if you want me to go into a little bit about what fair use is, just briefly so people might understand, because it's not something that's always widely known among photographers.
Speaker 3:I mean, I think it's important.
Speaker 2:Yeah, agreed, you should know what.
Speaker 3:It is for sure.
Speaker 2:So to kind of pause for a minute and talk about that is basically what is, is that when someone commits copyright infringement, you're basically accusing them of copying your work, taking it and sometimes repurposing it. But sometimes it could be a copy and paste type of thing, especially with photos online. But fair use is an exception to that. It's when technically there was copying done. Someone else copied someone else's previous work, but either they substantially changed it or they gave it a new meaning, new purpose, or maybe they didn't take much of it, maybe they took a piece of it like a piece of a song, not the entire song, and they look at four different factors. One of them is how much was taken, the purpose, whether they share the same market, the same financial stream of commerce, and if it comes out in favor of the person who took the work, the factors way more heavily in their favor, then they didn't commit copyright infringement, because it's what's called. When you put all those together, the court says, oh, they transformed the work and a lot of art is like that. A lot of people borrow from previous artists and they create something new with it. That's how you get a lot of different works of art. People borrow it, but they make it different. And when people go to one piece of art it's because it's different and distinct. It's not that they're confusing it with the original artist, but it's where people can't really tell the difference and where they share the same marketplace is where you have a problem.
Speaker 2:So that's basically what the court was grappling with here. The court was saying, ok, one, was the Warhol work transformative? Did it have a different meaning to it? That was distinct from the original Goldsmith photo? That's one factor they looked at. And the other factor is OK, even if it's transformative. Do both of these people the photographer and the Warhol Foundation does the marketplace for their art intersect? Because sometimes you can create something different and people are never going to go to one or go to the other. They're going to choose one or the other. You're never going to have the same type of people come together and view the same art. If that makes sense, the consumers don't really intersect. So the court was looking at those factors.
Speaker 1:Correct me if I'm wrong. I mean with the Warhol Foundation. It sounds like maybe they had a lot of experience with this in the first place.
Speaker 2:Well, it's really interesting. So the Warhol Foundation this was really important for them because a lot of Andy Warhol's work is based on other people's photos is based on other people's works, and so if the court so they had a real stake in this if the court came out in favor of the photographer which they did, so it's a real big win for photographers, the court family then it could potentially strip the protections and copyrights of Andy Warhol's work. They might be having to pay, you know, pay settlements or pay licensing fees and things like that to other people that he took photos from and used for his own artwork. So they had a real motivation here to try to get the court to come out in their favor, which is likely why they didn't wait to be sued. They wanted to address this court.
Speaker 3:But you know, Aaron, like most of these copyright cases never make it to the Supreme Court. Like, how did this get all the way to the Supreme Court?
Speaker 2:Well, it seems historic as well, yeah, it is historic and the court hasn't dealt with a fair use case in a long time since, I think the 90s, with two live crew parroting a pretty woman and that was about you know, that was a fair use case as well deciding whether or not you know that that that song changed the meaning from the original song. The court ruled in favor of two live crew and said it didn't, that it was a parody and that people have the right to comment and criticize and make parody of previous works. So the court hasn't dealt with that since the 90s. And so this is. This came up and it's really interesting. I think it could be because the actors involved right, it's a Warhol Foundation, it's a huge, you know, it's a huge artist. There's his art, I think, artists everywhere and every big museum across the world. So there's that and it really kind of posed. This interesting question is that you know, taking someone's work, because people do this all the time. They take people's photographs and they make a painting of it or something or they change it and so on and the question is you know, really, is that, can you do that? Are you? Are you, are you infringing on someone's copyrights? And the court in this case found that they did. They didn't. So they said that the real piece was.
Speaker 2:They had two issues is that courts don't want to become art critics, and that's one thing that all the justices were very concerned about. Is that because in order for the fair use exception to apply, you kind of need to understand the meaning and purpose of the new artwork. And to understand the meaning of purpose is kind of an art critic's decision, like how can you tell what someone's meaning was, especially if the person, if the artist, has died and they're not there to testify about what they met by their changes? We're sort of, you know, imputing what our own idea of what the purpose and meaning of this new artwork was. You know, how do you know that Andy Warhol didn't just try to copy everything and didn't try to, you know, had some, didn't really have a different purpose to it? You don't really know. So you're kind of so the court wanted to stay away from that because their lawyers, their judges, they don't, they don't want to make decisions about art.
Speaker 2:So what they did was and I thought this was really clever is they focused on something that was more was, more was wasn't so quite, you know, opinionated. It was something that you could look at the facts, and it's whether the original artists and the new artists, whether those two works, intersected in commerce. And what the court said was Lynn Goldsmith is a professional rock photographer who sells photos and licensed them to magazines. Andy Warhol made a piece of art and is licensing it, selling it to a magazine. They're both competing for the same pot.
Speaker 2:You know of money here and because of that, that means that it should go in favor of the original artists, because when you have and when you have an artwork that the court said actually wasn't that transformative by the way, that's what the Justice Sotomayor wrote that page said that she didn't be substantially similar, or she wanted to be substantially similar, not transformative, and they both were going after being on the cover of a magazine then fair use doesn't apply. It should go. The copyright holder should be the one the photographer, in this case, should be the one to get the benefit of the work that they, of the work that they did, especially when they're both sharing the same market.
Speaker 1:That's yeah, that God, jackie sorry.
Speaker 3:No, I just thought it was important also that in the ruling, Sotomayor said that I won't probably just put your turn, but said that Goldsmith was entitled to copyright protection, even against famous artists. You know, and I think you know, Lynn Goldsmith was like up against this giant foundation who had tons of money, and then, you know, she went almost into financial ruins with this case, and so I think it's just important for photographers to know also that they could go up against these big giants and have the possibility of winning their case. But it was a lot. It took a long time and a lot of money on Lynn's part.
Speaker 2:Well, yeah, I mean. So one piece of that is they didn't at least the majority of the Justices 7M. They didn't want to create the sort of Andy Warhol exception.
Speaker 2:They didn't want to say that, okay, in other circumstances maybe this would be copyright infringement. But Andy Warhol, you know, he's this famous painter, famous artist and not even a painter, I guess, in certain regards. So he's this famous artist. So they wanted this. They didn't want to say, oh, for people who are famous, then they don't need to get permission from the photographer, they can. They are meaning, we should just know, just based off of their you know they're, based off of who they are that, oh, it's got to be different. Because Kagan said well, you know why do museums want to hang up this art, you know, if it's not something transformative and different? And the other Justices were saying you know what that? Really, we don't want to just assume that just because someone is a famous artist, that they automatically transform and change other people's art. That's what that how? That's how we should be judging these cases. There shouldn't be this Warhol exception.
Speaker 2:And yeah, I mean this case went on for a very, very long time. When it goes to Supreme Court, it's, yeah, it's unbelievable how long it takes to get there. And yeah, she, depending on I don't know what her the business, you know, relationship was with her attorneys and how they worked out fees and stuff. But yeah, it could potentially be tons and tons of money. But you know, that's the thing why people should register their works and actually don't. I imagine it's what she did.
Speaker 2:But you should register your copyrights early, before the for infringement has a possibility to occur, because, even though it was very expensive for her, the copyright law allows the prevailing plaintiff to get their attorney's fees paid for by the other side and the costs associated with their case. So that's something that you know she should. That's why it's so important to get your copyright registered with copyright office is because the law then gives you this really huge benefit in giving you, allowing you to go if you go to a court, sue for copyright infringement and, when you are allowed, to motion the court to ask for your attorney's fees paid for. So you could have a lot of out of pocket expenses at first, but then get them paid for by the other side, would you be victorious in your copyright lawsuit? If you're not, then you have to pay for the other side's attorney. Well, so yeah, that was.
Speaker 1:That was one of the. That was the question I wanted to ask. After you explained all this was that was there something Lynn could have done which would have helped her case? And you know what? What can we learn from this? Obviously registering your work is as copper. I'm assuming she did that.
Speaker 2:Yeah, she had, I'm assuming, right I'm sure she did that. So it's kind of a lot of the cases that come my way photographers want to pursue them based not so much of wanting to be paid although that's nice but a lot of it is based off of principle.
Speaker 2:Because a lot of times, you know the amount of money they spend on an attorney to fight for them may pale in comparison to what they can actually get, you know, for the actual damage that they suffered in an infringement case. Sometimes it evens out but not always depends how what the facts are, but a lot of. So they, so I, you know you have to talk to them and let them know. You know, going into this, that whatever damages you can recover in the end may not be what you spend on trying to get that. A lot of times people still want to move forward because it's this principle of it.
Speaker 2:And here you had this prominent photographer. Well, I'm sure he's done very well, you know, financially, but you know he has made, you know you have. Then you have this large foundation and you go up against them a lot of, basically, too, based on principle, because you know her work. Can you imagine, you know your, your photo is based off of this other iconic piece of art and it's being and people are paying $10,000 for it to have it on a cover of a magazine. You know, cover of a magazine. Of course you're going to want to be get some credit involved in that. I mean his work was based off of that. And not only that, but the Vanity Fair played by the rules at first, and the court really leaned into this too, is that?
Speaker 2:they, they or they did the right thing. They reached out to her. They got a license from her they don't, I'll be, they only paid her $400, but they got a license from her and they said they would only use it once and it would be used for just one one work. And so Warhol you know behind the scenes, you know it kind of does this whole series without telling her, and I could see that being a real problem for photographers, a huge problem. So what this really says to photographers, which is really cool, is that when someone takes your work and changes it, and even if they change it to the likes of Andy Warhol, you still have a fighting chance to to get compensated for their use if they didn't get your permission for it. You know, it was really cool actually.
Speaker 2:It's kind of a very remarkable case because here you have a court saying you know, andy Warhol didn't transform this, this work, artwork enough. I mean, it's kind of wild actually for someone of his stature to have a court say you know what this iconic, famous artist didn't, didn't essentially do it justice. They sold it in the same marketplace as the photographer. They didn't, he didn't get prior permission, and you know what he wins. It's kind of. It's really it's a great thing for a photographer. So now photographers have this precedent to lean on. If someone else is, you borrow their work, but you know, and then they end up using it in the same, in the same marketplace and you know, kudos to Lynn for for doing that and I've only had a few exchanges with her over the years.
Speaker 1:And, like you said about it being principal and, Jackie, maybe you can back me up on this I'm sure much of it was driven by principal.
Speaker 3:It definitely was. It was mostly that principal for her and, like just you know, she was doing this for all photographers as well as for herself. Yeah, yeah.
Speaker 2:A lot of people, my clients, feel that way is that it's photography is. You guys know it's such a community based profession it really is, and so people feel they do feel empowered If they do have a situation like this, that they're not just doing it for themselves but they're doing it for everyone. But you know, what she could have done differently, is that? Well, I mean, I do know that from what I understand is that there was some sort of settlement negotiations. I don't know what they were, but I imagine there was some sort of settlement that took place, tried some negotiations, but they obviously didn't find a number that they could work with, because I imagine that it had to have been pretty high for it not to settle, because if it was something that all parties would have been fine with, it probably would have settled.
Speaker 2:But maybe, you know, perhaps I'm speculating, you know, maybe Goldsmith had a very high number in hopes that this wouldn't settle and hopefully that it would go forward, so that way she could make a stand for photographers, and I think that's basically what happened. Is that just a number they didn't want to reach? And you know, on the flip side, the Warhol Foundation was pretty motivated to keep this going too. They thought they had a fighting chance, because I'm sure on their side I mean, geez, if I was representing that, might be doing what their attorney did too at the oral arguments, to say it's Andy Warhol. I mean, like you know, this is the how could you not find a favor of Andy Warhol? You know his artworks are everywhere.
Speaker 2:Of course he transferred the meaning.
Speaker 1:And I'm sure that she was thrilled. When you know this original artwork was created, I know that you know what an incredible honor that would have been to have one of my photographs worked on by Andy Warhol. I'm sure she was, she was thrilled. I mean, I'm sure that Lynn knew him at one point or another.
Speaker 1:Yeah during the years. I mean she was I mean Lynn is, you know, again, only meeting her a few times during photo plus in the green room. She's an absolutely lovely woman and, you know, enjoyed my conversations with her. She's tough, she's a tough lady too, and you know. So it's awesome that.
Speaker 1:But yeah, I mean you know, getting, if you've ever had your work taken and used, it really does feel like theft and and and it's really hard. And you know I'll share one quick story with you About a photographer. So this photographer, bob grew in, is also a rock photographer, which reminded me of this. He took the really famous photograph of John Lennon with the sunglasses in the New York City shirt.
Speaker 1:I used to go running up at Central Park. My dad was also friends with him, but I used to go running up at Central Park and I used to see him every now and again Going up and yelling at the vendors for selling that picture At the vendor booth. So to just give you an idea how, how raging that could be. And I was thinking to myself my gosh, this guy is shot like Lynn, like Millions of bands, and has so much artwork and I have other stories about him as well. But seeing him up in Central Park doing that was just, you know, funny and disheartening at the same time. So you can imagine, you know it's a lot.
Speaker 2:Yeah, yeah, definitely. I mean you know one thing Not saying this would have happened in this case, but just on a much, much, much smaller scale and dealing with some of the clients that I've had is that when this infringement happens, it's really interesting to hear my clients say, you know, if they would have just asked me not even paid by it, asked me and then given me credit, that's all, I think I would have just done it because the photographers all time are happy a lot of time to share their photos with other people, with other vendors, with whatever, because that means their work is getting out there too.
Speaker 2:And it would have been really cool, right? It says, if you took a photo that was Andy Warhol then used, and then they said you know, hey, this is based off of you know so-and-so's photograph. I think that I think a lot of people would think that was pretty neat too. So it's interesting that you know. I think that anyone and I talk about this at a lot of my talks is that you know, when in doubt, is that people really just they need to just ask for permission. It's very simple really, is it as you just do that and it'd be made? I think people would be amazed to know how much photographers are willing to work with people, and that's kind of a A problem too, on the other end is that photographers who don't License their work very often.
Speaker 2:You know, a lot of times people do weddings and big events and stuff, and so it's sort of one big package price when photographers kind of run into this issue when there is infringement Will Smith aside, who does individual type photos, but a lot of times people who don't do individual you know portrait type photos. They never license their work really individually. So if they do go and file lawsuit for copyright infringement and it comes down to, okay, how much does it should the photographer be paid? The defense is always going to ask give me the last five years of your invoices of the times you licensed your work. And a lot of photographers don't have that. They didn't license an image, so People really lean into that.
Speaker 2:So it's important to, I think, for photographers think about you know, before Lodging a lawsuit, what damage did I put that I suffer? How can I prove that damage? And it also it's important, I think, to for photographers to think about, you know, to come up with a, with a price list. Okay, if someone were to Offer, you know, wanted to license one of my images, what really would I License it for? And to start thinking about that stuff now, because all that comes up and it can really. It can really damage cases. It can really court of muddy cases really quickly, when photographers Are on record to say, no, I would have just given it to them for free, have they asked? And then the defense also latches on to that and says, oh, so your photo wasn't worth anything.
Speaker 3:Also, oh sorry go ahead, jackie.
Speaker 3:Well, I also want to just quickly bring up. You know we were at rain and when I was at rain, finder, I would ask you to write a lot about like cases where there was a photographer who took an image of a Celebrity and then that celebrity tried to. They would post the image of themselves on Instagram and then the photographer would sue. You know that was happening left and right all the time. I mean, I think it still is, but like does that fall under fair use? So what does that fall under?
Speaker 3:because, sometimes the celebrity would win and sometimes a photographer would win, or it would just be settled at court.
Speaker 2:Yes, so so that brings up to at the two kind of areas of the law. One, you have this intellectual property area, so copyright, so who owns the photo itself? But then on this other side you have you have basically your, your, your likeness, so that your representation of yourself. So if it's a photographer Taking a photo of a celebrity, they have a right to control their, their, their right of publicity, and so, while they might not have ownership over the photo, they at least have a say in how their likeness is being used. And there you can every. That's a state law, it's not a federal law.
Speaker 2:Every state Addresses that question differently. How a celebrity has the right over their, over their likeness. If a photographer is using their image on their Instagram to say, hey, look who I photographed, you know this person was at this event, a public event Then they have a right to do that. You know, first, amendment gives people the right to you know, it's a free speech and so they can put stuff out there and and on people if it's public and but if it looks like they are using someone's celebrity To use their to kind of boost their Business, so almost like as advertising as this that maybe the celebrity is endorsing their business.
Speaker 2:Then there's this issue of okay, the celebrity has a right to control, you know, whether or not they should be tied to someone else's business, and people shouldn't misappropriate a celebrity to boost their business and use it as advertising, and so that's kind of where that falls under, and I've been in such, you know, I've had situations like that before. It comes up a lot with street photography, too. People take people on the street, and that's where, too, where I say you know, when in doubt, it's better just to get permission. You can even get verbal permission and say hey, can I take a photo of you, I'm going to use it for whatever, or I'm going to put it on my website or something like that. And it's really important to do that when you're taking pictures, especially of famous people too, because people are very protective about that.
Speaker 3:But I mean, like often the celebrity would post an image that a photographer took. I get a concert or sporting event and the photographer was, like you know, assigned by a company, and then the celebrity didn't have the right to put an image of themselves up there like the photographer would then sue.
Speaker 2:Right. So that kind of comes into two things too, as an intellectual property issue, copyright issue and also contractual issue too. So one if that's where you kind of have to build back the layers. It's like an onion here. So if the photographer is there on their own behalf photographing a concert, right, they were hired by nobody. They just show up as a spectator and they take a photo of the singer and then the photographer posts on Instagram. The singer takes it, puts on their Instagram. That's potential copyright infringement. They didn't get permission. The photographer did it on their own behalf. That was, that was their image. The singer had no right to put it on their Instagram. But a lot of times these photographers show up to these concerts and they're actually hired by the venue themselves. So you know, such and such stadium hires a team of photographers and contractually they are to assign all those images and the rights belonging to those images to whoever hired them, and whoever hired them gives those photos to the singer.
Speaker 2:And that's why it's always, always, always so important, before you photographers just go hog wild and want to sue someone, did they give their permission implicitly or contractually? Did they give permission for someone else to use their images? And a lot of times they did, you know, either through a contract that they may have not read or may have not. You know, a lot of times they accidentally may not actually, you know, may not intentionally, but they have given away their rights to their photos. And so what happens is, you know, the photographer sees someone else using their image and they send them a cease and desist letter and it turns out like, oh, actually I was there photographing on behalf of another studio. Studio actually owns the rights to these and they gave the photos to the singer and so, yeah, I don't really have any rights to it.
Speaker 2:So it's really. That's why it's good to have a consultation with a lawyer. Two is that you know you can do free consultation, especially for me, that I'll do free consultations to go over these basic facts, to kind of assess the case, and we'll, we'll make sure. Ok, you know, do you really have the right to bring a lawsuit or to accuse someone of copyright infringement, or did you accidentally or implicitly give away your rights? Not, so we'll address that.
Speaker 3:Well, you must be a very busy, busy man, be busier. So you know I wonder what you do for fun, but you know these are really such important issues. So we appreciate you going over a lot of this stuff because I don't think photographers you know when they're making their art, they don't really think about a lot of these things. They don't always, you know, register their copyright right off the bat.
Speaker 2:Yeah, I mean, you know photographers that's the thing about photographers and they a lot of them run very lucrative businesses. You know it is a business and so you kind of have to wear two hats. You have to have this artist hat making these beautiful photos, but then you have to be running a business too, and you know making sure your contracts and all your ducks are in a row and that you have an LLC registered. And you know if you're hiring people, that you have an independent contractor agreement with the person that you're having help. You know photograph A wedding.
Speaker 2:You know you want to get all those things in order, because nine times, nine times out of ten, things go fine, but it's that one time and the whole world can just feel like it comes down on you and it's very stressful. But if you had you know these things in place from the get go, if you registered your photographs, you had a good license agreement, a good photography service agreement, you can avoid a whole bunch of these issues. You just kind of put the time in at the beginning.
Speaker 1:Yeah, and that's that's one of the last questions that I want to ask, and there were other things that I want to talk to you about. So I think we're going to split this episode into two. If you're willing to stay on with us for a little bit longer, if you have the time, ok, cool, so we'll do that, we'll pause and then we'll start with the next questions, but I have one follow up question that I want to ask because so, assuming maybe not a Lin's case but do I still have rights if I didn't register my copyright for that image?
Speaker 2:So you, the rights are there, you do have. You are the copyright owner, but it's the matter of enforcing your rights and that's the that's the big issue. So it's it's like, it's like a seatbelt in a car right, you know that you have the protection right there, but unless you what it on you're not getting that you're not going to do anything for you.
Speaker 2:So it's the same thing. You have the copyrights there waiting for you, but unless you register them, you're going to get no benefit from it. So so in order to file a lawsuit, you have to have the copyright registered in hand. You cannot go to court without a registration, and people who are savvy and who take other people's photos they will likely know that. So if you don't register your photos and you send them a cease and desist letter, the first thing they'll ask you this is what we do too, because I do some copyright defense as well Show me the copyright registration. And if they don't have it, then that's the end of that case, because what are they going to do? What I mean, maybe the client stole it. It's completely, totally copyright infringement. But if you're all bark and no bite, then it's kind of like I don't care, like what you? That's what people think you know.
Speaker 2:So you want to make sure you register it, because the other side is going to know if you don't have a registered and there's really nothing you can actually do by the court through the court of law to enforce someone to pay you anything. So you want to register it first, and if you register it early, before the infringement, then you get a couple extra benefits, some big ones. Like I said, you know, you get your attorney's fees paid for, get attorney's costs or the court costs and things like that paid for. So you get a little bit more negotiation power, because it's no longer just about the damage you suffered, it's that, hey, you know, I filed a lawsuit against you. If I win, which the facts are in my favor, I'm going to make you pay my attorney's fees. So why don't we just settle this for my damage amount and what I paid so far to my lawyer, and we'll be done? So that gives you a lot of, gives you definitely some negotiation power there too.
Speaker 1:So, yeah, so, so it's good.
Speaker 2:You've got to register it to enforce. It is the short, and simple answer.
Speaker 1:Yeah, we'll, we'll definitely put a link to that if you're not familiar with where, you need to register it. So cool Well, that that's amazing information. So, thank you for that and, jackie, I'll let you if there's anything else. But then we're going to pause, we're going to come back and we're going to ask some more questions.
Speaker 3:I haven't even gotten into contracts, but like a wealth of information and so I really want to talk about the AI stuff.
Speaker 1:So that that's really where and that's what I saw at the PPI and I need to touch on that with you. So I'm going to count down for five and we're going to go, we're going to you. If you're listening, you'll get that in the next episode. All right, here we go. Five, four, three, two, one.