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ASMP—your legal watchdog

ASMP keeps a vigilant eye on legal activities that could affect the way publication photographers do business. Check here for the latest information on legal issues that you should be aware of.

November 2003

This will bring you up-to-date on the current status of major pending legal matters. ASMP gets involved in specific issues for one of two reasons: either to improve the situation for photographers or to stop the erosion of their position.

The following are areas of legislation in which we are interested, and our levels of interest and activity vary from simple monitoring to multiple discussions and correspondence with appropriate Congressional staffers. Occasionally ASMP is invited to testify before Congressional committees and subcommittees.

Antitrust Exemptions: Gene Mopsik and Victor Pelrman have been working with a Congressman, his staff, a lobbyist, and other trade associations on the language of a proposed bill to grant some form of antitrust exemption to freelance photographers and other independent creators of copyrighted works.

State Sovereign Immunity: Several years ago, the U.S. Supreme Court ruled that states were immune from prosecution for damages arising out of intellectual property right infringements, such as copyright or patent. In response, two identical bills were introduced in early June, Senator Leahy’s S. 1191, and Rep. Smith’s and Berman’s H.R. 2344, both called the “Intellectual Property Protection Restoration Act of 2003.” The approach of both bills is to give states a choice: if a state wants to be entitled to sue for money damages for infringements of its own intellectual property rights in court, it has to waive its sovereign immunity rights. If a state does not waive sovereign immunity, it cannot sue for damages. Both bills were referred to the appropriate committee or sub-committee. We do not expect to see any action on them.

FCC: ASMP actively participated in the protest against the FCC’s easing restrictions on media ownership, the effect of which would be to allow greater concentration of media outlets in the hands of a few monolithic companies. Members responded enthusiastically to our call for grass roots support. Congress has picked up the ball by passing several resolutions condemning that action, and on June 12, Rep. Sanders introduced H.R. 2462 “To invalidate the actions of the Federal Communications Commission in abrogating the media ownership limitations under the Communications Act of 1934.” It was referred to committee, and then subcommittee, about 2 weeks later and has not moved since then. We will be supporting this legislation, but we are not optimistic about its chances of success unless and until we see some similar action in the Senate.

In a move to reverse the effects of the FCC’s actions indirectly, Rep. Rangel introduced H.R. 2604, which would amend the Internal Revenue Code in ways that would encourage diversity of media ownership. The bill has no co-sponsors and was referred to the House Ways and Means and Small Business Committees in June. No further activity has taken place and, given the absence of co-sponsors and the enormous budget deficit, none seems likely.

Health Care: There has been a great deal of activity in legislation relating to different aspects of the “health care crisis.” One approach has been the introduction of two bills, S. 545 by Sen. Snow (with 7 co-sponsors) and H.R. 660 by Rep. Fletcher (with 162 co-sponsors), known as the “Small Business Health Fairness Act of 2003.” These pieces of legislation are very long and complex (running around 25 pages of text), but essentially they would allow the creation of health insurance plans run by associations (Association Health Plans or AHP’s), which would be exempt from state insurance regulation. Both were introduced in February/March and referred to the appropriate committee. The House bill was passed in June and sent to the Senate, where both bills are now in committee.

Also of interest to us are the various proposals to grant small businesses an income tax deduction for the costs of health care insurance premiums. We are looking closely at how this legislation would work and, if enacted, whether it would be advisable for ASMP members to become employees of their own companies. This question is complicated by considerations involving tax, copyright and business management issues.

One result of the health care situation is that there have been somewhere between 30 and 50 bills introduced in this Congress that would be likely to have some effect on our members in connection with some aspect of medical insurance. So far, however, all of them have been sent to committee and do not appear to have seen any action after that. Again, in light of the enormous budget deficit that the country is facing, we are not optimistic as to the chances of passage of any legislation that would increase any kind of tax deduction.

Charitable Contributions of Works of Art: As was done in the last Congress, bills have been introduced that would amend the Internal Revenue Code to allow artists (including photographers) who donate their own works to charitable organizations to deduct the fair market value of those works. Currently, the law limits the deduction to the cost of materials. The bills were introduced in both the House (H.R. 806 by Rep. Houghton and 68 co-sponsors) and the Senate (S. 287 by Sen. Leahy and 21 co-sponsors) in February. Both were referred to the appropriate Committee.

The Senate bill became part of S. 476, which is known as the CARE Act of 2003 and which was passed in the Senate. We joined in an organized effort by a coalition of trade associations in which ASMP asked its members to participate to have the House version attached to the larger “Charitable Giving Act”, H.R. 7. In spite of that effort and good participation by members, we could not muster enough support for Rep. Houghton to propose the amendment. H.R. 7 passed the House and was sent to the Senate without the provision for photographers and other artists. This means that the Senate now has two bills on essentially the same topics to reconcile, one of which has a provision granting photographers etc. the right to deduct the fair market value of their works donated to charities, and one of which does not.

Normally, the next step would be for the bills to be sent to Conference Committee to compromise on the differences between the two versions. That, however, has not yet happened. The Senate bill, in an extraordinary move, was changed in committee after passage by the full Senate. That means that the Senate version as amended has not yet been approved by the Senate and will have to be voted upon, again, by the full Senate. We have no way of knowing whether it will be passed again or whether the later amendments will be enough to cause its defeat. In any event, ASMP continues to work with the American Association of Museum Directors (the primary lobbying force behind the bill) and will take whatever action may be appropriate.

Copyright/Internet: Two bills were introduced in the House in June and July to make unauthorized file sharing and other internet copyright violations felonies. Rep. Conyers introduced H.R. 2752, the Author, Consumer and Computer Owner Protection and Security Act (ACCOPS) of 2003. A few weeks earlier, Rep. Lamar Smith introduced H.R 2517, the Piracy Deterrence and Education Act. Both were referred to House Judiciary Committee.

The Smith bill, which had been introduced earlier, was referred to the Subcommittee on Courts, the Internet and Intellectual Property. Hearings on the bill were held in July, and PPofA testified. The Conyers bill was referred to the same Subcommittee in the beginning of September. We have offered to testify in support of the Conyers bill, if any hearings are going to be held.

Rep. Lofgren has introduced two bills, rapidly establishing herself as someone who is not a friend of copyright owners. H.R. 2601, the Public Domain Enhancement Act, was introduced in June and referred to the House Committee on the Judiciary. In early September, it was referred to subcommittee. Our understanding is that this bill was really the brainchild of Larry Lessig, a law professor who has built his reputation by opposing copyrights. It is essentially an attempt to undo the decision in the Eldred case, which upheld the constitutionality of the extension of the term of copyright to life of the author plus 70 years.

This bill would reinstate a system whereby copyright owners would have to renew their copyrights, or else the copyrights would fall into public domain after specified time periods. That kind of approach existed under the 1909 Copyright Act and was abandoned in the 1976 Act. Fortunately, there appears to be no interest in the Judiciary Committee in moving this bill.

The other Lofgren bill is H.R. 1066, the Benefit Authors without Limiting Advancement or Net Consumer Expectations (or BALANCE) Act. It was introduced in March and referred to the the same Subcommittee on Courts, the Internet, and Intellectual Property as H.R. 2601. This bill attempts to reverse parts of the DMCA by doing things like making it legal for people “... to reproduce, store, adapt, or access (digital works) for archival purposes or to transfer it to a preferred digital media device in order to effect a non-public performance or display... to allow the owner of a particular copy of a digital work to sell or otherwise dispose of the work by means of a transmission to a single recipient... and permit circumvention of copyright encryption technology if it is necessary to enable a noninfringing use...” Again, fortunately, there does not appear to be any interest in moving the legislation.

AIA:
Gene Mopsik and Vic Perlman have been in a series of discussions with AIA resulting in modifications to their required releases in connection with various competitions and other projects. We have also had discussions with them about various joint projects, including a presence for ASMP at their events at reduced or minimal cost for ASMP, and we will be at their convention in Chicago, including a booth and a gallery display of members’ architectural photographs.

Time Warner:
We participated with GAG, NWU, EP and some other groups in an in-person protest of Time Warner’s contract in the Spring. Part of that involved a “press conference” arranged by the NWU on the steps of City Hall in NYC. Not one representative of the media attended. Several NY Council members voiced support and said that they would try to put pressure on Time Warner (which is moving into a new building on the West Side), but we still have not heard or seen any evidence of anything actually happening, and we do not expect anything to happen.

Absolut/American Photo Contest:
A number of years ago, ASMP stopped trying to protest photo “contests” with egregious conditions imposed on entrants, for a number of reasons: the number of such contests had become enormous, the entrants were almost entirely amateurs, and our protests generally fell on deaf ears. However, when we saw that this year’s Absolut/American Photo contest appeared to be sponsored by companies that were traditionally our friends (Kodak, Epson etc.), we made an exception and got involved. We quickly found out that the photo industry companies like Kodak and Epson were not, in fact, sponsors of the contest, and we received great support from them in dealing with the contest organizers. After Gene Mopsik spent many hours on the telephone and computer, we were successful in negotiating an acceptable set of conditions, and the contest promoters changed the rules.

In addition to the cases listed below, it should be remembered that there are scores of cases that do not receive direct Legal Action Fund cash contributions but that do receive ASMP support. That support comes in various "soft" forms, consisting primarily of our spending literally hundreds of hours on the telephone during the course of the year, providing every form of support imaginable, from advice, to counseling, to referrals to experts, to virtual hand-holding. It also is helpful in negotiations when the photographer and/or the lawyer can say that the case has ASMP's support, leaving open the implication that, if the case is not settled, it will be funded by ASMP.

The following are the developments since the last Board meeting in the active cases we have been involved in.

A report will appear in the December, 2003 ASMP Bulletin.

This case is an appeal of a decision in the U.S. District Court in Southern California that held that website operators could scour the internet, collect every photograph it could find, put those photographs in its website for anyone to access, and deep link to the photographers' websites, without permission and without violating copyright law. The Ninth Circuit reversed in part, ruling that the display of thumbnails was a fair use, but that the display of full-sized images was not.

The defendants filed a motion for review of the decision by the Ninth Circuit (a step that is necessary before a petition can be filed asking the U.S. Supreme Court to hear the case). We have filed amicus curiae briefs and provided legal counsel for Les Kelly at each stage of the appeal in support of the photographer, most recently opposing the rehearing of the case, which we filed near the end of March, 2002. The Court asked the parties to file answers to some specific questions, which was done last summer.

Finally, a year later, the court has recently issued a ruling rescinding its earlier decision. It has affirmed the decision that the display of thumbnails is a fair use, but it has said that the parties did not ask for summary judgment on the issue of the full-size display, so it has remanded the case to the District Court for a trial on that issue. Since the case is now back at the trial level, where we did not participate the first time and where we usually do not participate, we will not be involved unless and until it comes back to the appellate level. At that point, we can reconsider whether, and to what extent, to join in the case.

Good news, at long last. This is the case where Tiger Woods sued an illustrator named Rick Rush and his publisher for creating and selling a limited edition print showing Woods’ name and Rush’s picture of him. The claims were for infringement of rights of publicity and trademark. After Woods lost in the trial court, he filed an appeal to the U.S. Court of Appeals for the Sixth Circuit. ASMP funded and filed an amicus curiae brief on behalf of the artist. We were joined in the brief, but not in the funding, by a number of associations, including APA, EP, and GAG. After something like two years, the Sixth Circuit finally issued a decision near the end of June, affirming the decision in favor of the artist.

This is an appeal in the 9th Circuit in a case dealing with massive copyright infringements through peer-to-peer file servers. The defendants won in the U.S. District Court, and the copyright owners (music publishers, movie studios and recording companies) appealed. We were invited to join in the amicus curiae brief on behalf of the copyright owners without any expense to ASMP, and we accepted that invitation.

One of the most important, but least visible, areas of our legal and advocacy activities is in our Good Offices program. We receive literally thousands of phone calls, e-mails and faxes from photographers with questions and problems, every year. Many of them involve situations where they need intervention, not just advice, from someone on their side, but are not yet at the point where hiring a lawyer is appropriate. In response, we sometimes make phone calls, send letters, even attend meetings, on behalf of photographers to convince clients and others to do things like paying their bills, returning slides, paying for infringements, etc. Most of the time, those efforts are successful, and our files are full of letters from individual photographers, thanking us.

Because of the nature of that kind of assistance, those efforts and situations are below the radar for everyone but the people directly involved. For those photographers involved, however, those efforts are probably the most important thing that ASMP ever does.

Equally important, and almost equally time-consuming is our support of members indirectly, through their lawyers. Many members have lawyers with questions, who need assistance in order to provide their clients, our members, with the best possible representation. Over the course of the year we spend scores of hours talking with these lawyers, providing them with cases and other information to support their positions in court and/or negotiations, putting them in touch with expert witnesses, networking lawyers so that they can pool their resources in related cases, etc. That kind of support makes the difference between members winning or losing their cases. It is invaluable, yet it costs our members and their lawyers nothing, because we provide it as part of the benefits our members get for joining and paying their dues.

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