The law firm that is handling ASMP's class action lawsuit against Google, Mishcon de Reya New York, is looking for information that will help establish how much money photographers stand to lose as a result of Google’s scanning project. This, in turn, will help generate the maximum financial recovery for the class of registered visual artists, of which you may be a member. Here's how you can help.
Judge Chin denied Google's motion to dismiss lawsuits by the American Society of Media Photographers and the Authors Guild. In his ruling, the Judge asserted that "given the sweeping and undiscriminating nature of Google's unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually." Judge Chin also granted the Authors Guild's motion for class certification.
Oral argument was recently held in the class action lawsuits by creators of visual materials and text authors against Google. Google's motions to dismiss the association plaintiffs were considered in ASMP's suit as well as the Authors Guild suit, along with a motion to certify the lawsuit as a class action. The matter is currently in the hands of Judge Chin, and ASMP awaits his decision.
Google has filed court documents challenging the standing of ASMP and the other associations as plaintiffs in the 2010 class action copyright infringement lawsuit filed over Google's unauthorized and massive scanning of library books and its related actions. Google argues that because of the requirements of copyright claims, plaintiffs must be actual rightsholders rather than associations acting on their behalf. It has also challenged the standing of the Authors Guild in its related lawsuit filed against Google in 2005. ASMP General Counsel Victor Perlman notes, "The class action copyright infringement suit against Google, Inc. was filed in conjunction with other trade associations and with individual named plaintiffs. Therefore, regardless of the ruling on the standing of trade associations, the status of the individual plaintiffs and their ability to proceed with the lawsuit will not be affected."
On March 22, 2011, Judge Denny Chin ruled that a proposed settlement of the Authors Guild's suit against Google was not "fair, adequate, and reasonable." He also suggested some changes that would address his objections, and urged the parties to try again. The full text of his decision is available here.
ASMP and other visual-arts groups were not party to the Authors Guild suit, but filed a separate class action suit last April (see below). The March 22 ruling does not directly affect that suit.
On April 7, 2010, several industry associations and individuals filed a new class-action suit for copyright infringement against Google. The plaintiffs are the American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, and photographers Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi and illustrators John Schmelzer and Simms Taback.
An ASMP FAQ on the lawsuit
Statement of Mishcon de Reya New York LLP law firm
Mishcon de Reya informational website on "ASMP et al. v. Google"
Judge Denny Chin, of the U.S. District Court for the Southern District of New York, held a Fairness Hearing on February 18. After a long day involving a huge number of objections, the Judge took the matter under advisement for further consideration and a later ruling. Among the objections filed, probably the most significant come from the U.S. Department of Justice, which finds the amended proposed settlement not to have resolved some of the fundamental problems presented by the earlier settlement agreement.
ASMP received word that United States District Judge Denny Chin had denied the request to reconsider his previous dismissal of a motion to intervene. The denial states that if ASMP and its fellow litigants were allowed in now, it could negate up the "thousands of hours of discussion, compromise, and legal draftsmanship" that the parties have invested in the settlement process. He went on to say that "From the perspectives of fairness and efficiency, it makes more sense for (ASMP) to file their own lawsuit than to … delay this lawsuit." In light of this development, ASMP will examine options to determine the best course of action.
Read ASMP's press release on the ruling.
ASMP, joined by the Graphic Artists Guild, the Picture Archive Council of America, and the North American Nature Photography Association, submitted testimony to the House Judiciary Committee in opposition to the proposed settlement of the consolidated copyright infringement actions against Google instituted by the Authors Guild, Inc. and the Association of American Publishers, Inc. The four professional associations joined forces, working together to oppose the settlement which excludes photographers and graphic artists from millions of dollars in payment, as well as from participation in future revenues to be generated by Google under the proposed settlement.
The same week, the U.S. Department of Justice filed its own objections, stating that there are both procedural and antitrust problems with the proposed settlement.
Earlier in the month, the same four groups, together with several prominent individual photographers, filed a legal brief stating objections to the proposed settlement. According to the filing, the Proposed Settlement purports to serve both the public interest and the interests of the class members as well as Google, but it would, in fact, serve the financial interests of only a select few while irrevocably damaging the interests of others. To read ASMP's press release, click here.
The following documents were filed by ASMP:
Letter to the Court
Exhibit A, Plaintiff statements of objection
Exhibit B, identifying the Plaintiff organizations
Exhibit C, original class action complaint
Exhibit D, first amended class action complaint
Exhibit E, second amended class action complaint
The recent proposed class action settlement between authors, publishers and Google is now subject to review by U.S. District Court for the Southern District of New York. ASMP (American Society of Media Photographers) has significant concerns about the terms of this proposed settlement, the process that led to it, and the potential impact of its terms.
ASMP believes that the proposed settlement has far-reaching consequences for the work product and the livelihoods of its more than 6,000 member photographers, and that the settlement does not adequately protect their interests. Therefore, ASMP plans to submit its views to the Court on or before September 4, 2009, the new deadline for filing objections and other comments.
ASMP looks forward to the opportunity to fully present its concerns on behalf of its membership when the Court considers the fairness of this proposed settlement. Photographers should note that ASMP’s concerns are for photographers as a class and may not apply to any individual photographer. You should not equate ASMP’s concerns with advice as to how you should exercise your options in connection with the proposed settlement.
Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders ("Rightsholders") by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have agreed to a settlement. This summary provides basic information about the settlement. "Books" and "Inserts" are described below.
The proposed settlement specifically excludes photography, with one significant exception. If your photographs were published in a book where the copyrights in both the book, itself, and your photographs belong to the same person, you should pay particularly close attention to the terms of the settlement, since you appear to be within the class covered by the proposed settlement.
The settlement, if Court-approved, will authorize Google to scan in-copyright Books and Inserts in the United States, and maintain an electronic database of Books. For out-of-print Books and, if permitted by Rightsholders, in-print Books, Google will be able to sell access to individual Books and institutional subscriptions to the database, place advertisements on any page dedicated to a Book, and make other commercial uses of Books. At any time, Rightsholders can change instructions to Google regarding any of those uses. Through a Book Rights Registry ("Registry") established by the settlement, Google will pay Rightsholders 63% of all revenues from these uses.
Google also will pay $34.5 million to establish and fund the initial operations of the Registry and for notice and settlement administration costs, and at least $45 million for cash payments to Rightsholders of Books and Inserts that Google scans prior to the deadline for opting out of the settlement.
The settlement class includes all persons worldwide who own a U.S. copyright interest in any Book or Insert. The meaning of "U.S. copyright interest" is broad. Wherever you are located, please read the full Notice to determine whether you are included in the settlement.
The "Author Sub-Class" (authors of Books and other writings, and their heirs, successors and assigns), and
The "Publisher Sub-Class" (publishers of Books and periodicals, and their successors and assigns).
Persons Outside the United States: This settlement may affect you because it covers U.S. copyright interests in books published outside the United States. If you hold such an interest in a book or other material in a book, this settlement will bind you unless you timely opt out.
"Books" include in-copyright written works, such as novels, textbooks, dissertations, and other writings, that were published or distributed in hard copy format on or before January 5, 2009. U.S. works must be registered with the U.S. Copyright Office to be included in the settlement. "Books" do not include periodicals, personal papers, sheet music, and public domain or government works.
"Inserts" include any text and other material, such as forewords, essays, poems, quotations, letters, song lyrics, children's Book illustrations, sheet music, charts, and graphs, if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book published on or before January 5, 2009 and, if U.S. works, registered (alone or as part of another work) with the U.S. Copyright Office. Inserts do not include pictorial content (except for children's Book illustrations), or any public domain or government works.
Please read the full Notice, which is available at googlebooksettlement.com. Decide whether you should:
The Court has appointed Class Counsel to represent the two Sub-Classes. If the settlement is approved, Class Counsel for the Author Sub-Class will request attorneys' fees and expenses that Google has agreed to pay. You can also hire your own attorney at your own cost.
The Court will determine whether to approve the settlement at a Fairness Hearing on October 7, 2009. Get Complete Information, Including the Full Notice:
Call: Toll-Free 1.888.356.0248
Write: Google Book Search Settlement Administrator, c/o Rust Consulting
P.O. Box 9364
Minneapolis, MN 55440-9364
United States of America