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For more information, contact:
Eugene Mopsik, Executive Director
American Society of Media Photographers
Phone (215) 451-2767
Email mopsik@asmp.org
Kate Hendricks
Hendricks & Lewis
Phone (206) 624-1933
Email kh@hllaw.com
Appeals court confirms photographer's rights in collage case
The American Society of Media Photographers (ASMP) is happy to note that a recent Federal Appeals Court decision is favorable to photographers everywhere. The lawsuit, known as Jarvis v. K2 Inc., was filed by ASMP member Chase Jarvis and his attorneys, with pretrial assistance from ASMP. ASMP also filed an amicus curiae brief for the appeal, raising points of law that could not be argued during the trial. In its decision, the court held that an advertiser who licenses photos and uses them to create a collage must continue to honor all license restrictions that came with the original photos. In particular, if the license specified a limited time to use the images, the collage also cannot be used beyond that time.
Said Jarvis, "I am gratified by last week's ruling from the 9th Circuit Federal Court of Appeals. It is a welcome victory for the photographic community and creative artists everywhere. This sends a clear message about the importance of artists' rights and the value of our work.
"While the proceedings — begun only as my last resort to gain compliance from K2 after a year of their ignoring my attempts to negotiate with them — have been costly and challenging, they are not yet complete. I'm looking forward to their eventual and final resolution."
The case
K2 Inc., a maker of sports equipment and clothing, had licensed images from Jarvis and used them in various print and Internet advertising campaigns. Among other usages, it assembled 24 of the images into collages that were used as magazine advertisements. After the license expired, it continued to use some images for online advertisements, both on its own web site and other sites. In particular, it continued to use the collages.
Jarvis sued for copyright infringement. The trial court found that K2 violated Jarvis' copyright and awarded damages on 58 infringements, 396 lost slides, and numerous failures to credit. K2, however, showed that the copyrights for most of the images had not been registered with the Copyright Office before the infringement, which limited the damages Jarvis could receive. The only images that were correctly registered in advance of infringement were images in the collage advertisements.
K2 repeatedly denied infringing the copyrights of the collage images. The company said that the collage uses were legal because the images were "compilations" and thus covered by section 201(c) of the United States Code. This section lets publishers of collective works (such as magazines, anthologies and encyclopedias) publish revisions without new licenses.
The trial judge accepted K2's argument and imposed no penalty for K2's use of the collages. Jarvis appealed.
The appeals court found that the trial judge was mistaken in treating the collages as compilations. It said that a collage is more like a new graphic work than a compilation. The distorting, overlapping and combining with other elements made them "derivative works" and, thus, not covered under section 201(c). The appeals court therefore ruled that the trial court had erred; K2 did infringe Jarvis' copyrights for those images.
The case will now return to the trial court with instructions to determine the amount of damages for infringing the copyrights of the collage images. Because the copyrights were registered before the infringement took place, the stakes for K2 are now much higher. In assessing statutory damages, the judge can consider whether the infringements were willful. In addition, the judge could make K2 pay Jarvis' legal fees.
Additional background
This press release highlights the key issues that were decided by the appeals court. A more complete discussion is posted in the Legal Resources section of this site. The full text of the Ninth Circuit decision can be viewed at Court of Appeals website.
About ASMP
Founded in 1944, the American Society of Media Photographers (ASMP) is the leading trade association for photographers who photograph primarily for publication. ASMP promotes photographers' rights, educates photographers in better business practices, produces business publications for photographers, and helps buyers find professional photographers. It has more than 5,500 members, including many of the world's greatest photographers, in 39 chapters nationwide.