Sued over screenshots of 59-year-old show | Hacker News Reader

Sued over screenshots of 59-year-old show

arstechnica.com

66 pointsgk178 comments

I think that big companies should be fined hard for the attacks on the fair use.

The article points out that they don't know much about the case so we don't even know if it's fair use at this point.

GP still makes a good point. Righthaven is a good example of where attacks on fair use lead. Sure, we don't know about this case, but odds are good that it involves fair use. And even if not, GP's point is still relevant.

I don't think "odds are good" is the particular standard I want my legal system to use.

I don’t believe parent was remotely suggesting a legal standard, rather, an appeal to conversational relevance.

Both cases look open-shut in favor of photographer. 1) He has right to fair use. 2) they cannot just use his pics for profit

Agreed. This seems like a slam dunk for him and creates bad optics of David vs Goliath for the company.

That said, he did come off as a bit of an unhinged person in his twitter tirade.

CBS doesn't care about optics...relatively very few people will read or get interested in this. Plus, megacorps do a gazillion worse things each day.

CBS is doing what it can to settle the first case, so maybe both sides will drop them. If that 24sports site had run it by CBS lawyers I'm almost certain they would have told him not to use his images. But in the end they were used so CBS has to defend itself.

To me using photos of a photog without permission is 100 times worse than posting a screenshot of a TV show but lawyers will milk it.

Does 'bad optics' mean something like 'bad impression'? Sounds odd to me (although I'm not in the US)

Pretty much. The 'optics' of a situation are the appearances, the visuals, the perceptions. So when someone says a thing has "bad optics" they mean that it looks bad to observers.

It means it "looks bad".

I'd never heard that phrase before ~2 months ago, suddenly I'm hearing it everywhere.

It's enough of a slam dunk and he's been an active enough critic on twitter that I really want to see an anti-SLAPP petition for pulling this.

I don't see the photographer having an open and shut case especially for $150,000 for photography.

1) The player gave the photo to the writer claiming it was his property

2) The writer gave credit (Which doesn't allow for use and they should have contacted for use), but normally if there would be a cost a different photo will be used

These crazy copyright claims are the issue. The photographer suing for $150,000 is wrong and the CBS is wrong for the same $150,000 claim. It should be market value of a photo and legal fees. This would make it easy for a photographer to get his money since the company would not want the added legal fee charge. Instead in US it is a all or nothing and usually both parties lose.

Per Image Fee is the best way to move forward.

http://www.roshsillars.com/2017/02/15/much-photographers-cha...

I'm certainly not a lawyer, but my experience is that in copyright law - for better or worse - it generally doesn't matter if you believe you have rights to use some property, the only thing that really matters is if you actually have those rights. Applying that perspective CBS is absolutely in the wrong corner in that regard.

As for the photographer, we don't know the circumstances of his use, but as the article noted, it's not unlikely to be considered fair use. A single frame from a movie/series can reasonably be seen as a quote, whereas their wholesale use of the photographers entire picture clearly is not.

But whatever the circumstances in either case, CBS suing for a screenshot of an old movie/series seems to be a perfect way to get bad publicity, and no pity whatsoever if they would loose in court. Almost nobody wants it to be illegal/fineable to post screens and clips from TV-series, and pushing it that way is trying to get the cat back into the bag. It's part of our culture now, and that cat isn't going back anytime soon.

The problem with that though is that it becomes a precedent (not in legal sense) and it might be tempting to just use images without paying the copyright owner, since you just need to settle for market value or a little more at the time that you're sued. It is a huge effort to go through media to make sure that your content is not being used without your consent and most independent people won't be checking it vigorously since they need the time to actually work.

They would be paid for the picture at a fair market value and if not and found out some lawyer is going to get rich off of enforcing this rule. I am sure lawyers would turn this into the new ambulance chaser.

I feel a great deal of sympathy for the photographer, but how do you know the use of the screenshots are fair use?

because it trivially meets factors for fair use. It is a very small portion of the copyrighted work and is not a substitute for the work. A couple screenshots from a TV show does not lower the market value for the TV show. TV Land isn't going to stop airing Gunsmoke because someone posted a couple screenshots online.

I must have missed something somewhere - doesn’t the article say the lawsuit doesn’t state how the images were used?

unless the images were a screenshot of each frame of the episode, how exactly they were used doesn't matter for the cited clause of fair use. in what way could a small number of screenshots ever be a substitute for an episode of a tv show?

Small and "in-substantial" are different. If you're selling screenshots as memorabilia, say (posters, tshirts, mugs), then they're likely to be substantial in that context and IMO even with USA's relatively liberal fair use a court is likely to rule against it.

Of course trademark may also come in to play depending on the content of the screenshots themselves.

Your substitution test is useful, and interesting, but it's not a test that determines copyright infringement.

Then you misunderstand fair use. Fair use doctrine is far more complicated than just meeting one of the tests. I used to have to adjudicate Fair Use images on Wikipedia, and believe me the grounds for valid Fair Use is more complex than you appear to believe.

The way it is portrayed in the article (which may not be correct) this photographer Tannen comes off as a jerk and CBS comes off as somewhere between doing what anyone would and having a sense of humor.

Yes CBS used his photo and he didn't like it. He asked them to stop and they did indeed (perhaps not on the first message) take the photo off. Seems like they legitimately didn't know they didn't have the rights.

But the quoted language by Tannen is vitriolic for the use of two photos in a minor article where the "breach" (legal term) was "cured" simply and immediately. He definitely comes off as a committed member of the "permissions" culture"

Yet he filed what looks like a nuisance suit. In such cases the defending side almost always makes a counterclaim, and you know that they are spending more than the 150K they ask on their defense.

(I am amazed to be saying anything even vaguely supportive about Big Media. But here we are).

CBS are also litigious members of the permissions culture. They're quick to sue people infringing their property rights. They make extensive use of the DMCA.

In that context they better try hard to avoid infringing other people's rights, and it's fair enough to be angry when a huge company steals your work.

I don't deny that CBS is high on the pantheon of scum.

But "angry" over a couple of photos shared, when they took them down and when their explanation seems quite plausible and in fact likely? I think there are more important things to be angry about.

They used his work on two separate occasions. The 2nd time was after they knew they had used his work illegally in the past. At that point it's a pattern of behavior. They were given the opportunity to fix it themselves (taking down the pics is only part of fixing the issue, not repeating the theft is the other part) and chose not to. How many chances should they get? What motivation do they have to change the behavior if there are no repercussions?

> Now, CBS has sued Tannen back, claiming that he "hypocritically" used CBS intellectual property "while simultaneously bringing suit against Plaintiff's sister company, CBS Interactive Inc., claiming it had violated his own copyright."

Wow CBS even admits that it's retaliation! Hopefully that comes up in court as a strike against CBS.

Why would it be a strike against CBS? He's suing CBS for a dumb reason for a crazy amount ($300k), and now they are suing him back for a dumb reason for a crazy amount.

I suppose the photographer is probably more in the right. His use of the stills feels like fair use, while theirs is less so (presumably they made some money off of the article) - but the amount he's asking for is crazy (because the copyright infringement law is crazy).

Because they are using the courts, wrongly IMO (since his use was fair), to attempt to stop him from using the courts rightly.

The statutory damages for their willful infringement are high to disuade bad actors from simply asking forgiveness when caught instead of asking for permission.

The sheer volume of content created in the current day makes the permission vs forgiveness model broken. We are rapidly losing track of who to even ask the permission from in many cases (the entire orphan works mess) and unfortunately it's going to mean much of the history of the last 25 years of the 20th century, and perhaps even the entire history of the 21st, may be... for all practical purposes... lost instead of the most well preserved and accessible.

I think with safe-harbor, the model in many places is forgiveness rather than permission. The burden in on the rights holder to remove content and, as you say, there's so much content produced that you can see why they essentially dragnet their copyright enforcement.

But the end result is the same, the model is broken and needs to be reevaluated.

Safe harbor protects the UGC facilitating site, it does not protect the user that “generated” infringement.

For example, a copyright holder need not send a DMCA takedown notice to YouTube before suing the uploader of their copyrighted material.

> He's suing CBS for a dumb reason for a crazy amount ($300k),

Not a dumb reason or a crazy amount.

He created some photographs. They used them without permission.Sure, $300k is maybe a thousand times more than they're worth in a fair market, but $0 is more than a thousand times less. By not buying them fairly, they've forced him to use expensive lawyers and court processes. And the amount is part of the deterrent - if paying him fairly upfront costs $500, but not paying him either costs $0 or has a small chance of costing $500 when he sues for the actual damages, the reasonable (not moral) choice would be the latter.

How does it feel like fair use if we don't even know how he used it. At this point we cant be certain if he didn't upload them for sale on 500px as his own stills.

Why? Why sould it not be allowed to sell the right to use pictures that you made?

Why should you need permission?

Because a photographer (or other artist) needs to be able to earn his living and pay for his equipment. Also they probably don't want to be associated with all kinds of folks.

I am ok just trashing all forms of copyright. software, music, movies, books etc.

Because that's how people make money breaks down when a most small artists are supported by donations or sales of original works. Copywrite, would have been bad for Shakespeare, and likely does more harm than good.

Define "bad" for Shakespeare. Bad in the sense that he wouldn't have been famous, or bad in the sense that it would have prevented him from making a living off his work? Because I'm skeptical if the later. Copyright is the only recourse for small creators against large actors that might co-opt their work with superior resources and reach. It certainly has its issues, but it's hard to imagine making a living in the Internet age as a photographer without that barrier to discourage reuse. Most photographers make money selling their work to magazines, websites, etc, not "original works" (i.e. prints).

Bad as it would have made his plays worse as he directly copied various things from other writers.

Remember, he could copy content from others, but needed enough originality to keep an audience interested. Net result plenty of stuff lifted then improved resulting in evolutionary improvements we lost with copy-write.

That's an interesting view. I see what you mean, but I don't think copyright stops us from using other's works. There's a huge cultural zietgiest that is regularly appropriated for new content that doesn't require directly copying other's words or pictures. Shakespeare taking the well known story of Romeo and Juliet and writing a play is quite different than Shakespeare taking someone else's play and putting it on with his theater company and under his name. One is acceptable under copyright law, and the other, I would argue, is unacceptable under moral law (the underlying legal theory behind copyright).

And there are provisions in the law meant to mitigate some of this: the protection of transformative use and fair use.

I believe copyright needs reform, but in the days of mass distribution controlled by a small number of large companies (Google, Facebook, Microsoft, etc.), I think it might be more important than ever.

>directly copying other's words or pictures

That's not how copywrite works. It directly covers derivative works.

Disney is well known for remixing existing stories, but they can only do that for things that are in the public domain. They can't retell Harry Potter at Hogwarts. They can only come up with some other story not simply improve an existing one.

I understand that derivative works are limited, I'm just trying to understand how allowing Disney to make a Harry Potter movie makes the world better. Or perhaps more important how allowing a major media conglomerate who has a huge distribution and marketing reach to co-opt the work of a small producer makes the world better. In Shakespeare's time when distribution was limited and it was possible only to show a play to a limited audience and travel was difficult, I can see how this had limited harm, but the situation is very different today.

In this case it's not about Disney. The question is Harry Potter the best possible Harry Potter story? Handing artists full control means ever larger sections of culture become ever more limited as there are now gatekeepers preventing others from improving on said work.

We are hollowing out our culture by allowing not just artists, but companies to control ever larger chunks or our zeitgeist forever.

Remember, distribution is no longer limited. Platforms like YouTube mean anyone can reach everyone on the planet for free.

Perhaps (and I realize I'm being devil's advocate here), "photo-journalist" is no longer a profession where one should expect to make a living? Photographers can still work for commissions or for the pure joy of it, but these days everyone carries a camera and can take decent photos of news and sports events.

That is an irrelevant argument.

If a news outlet wants to rely on images taken by the public, they are free to do so. And many outlets have moved towards that. That doesn't mean that they should be free to take images a professional photographer has taken at an event and use them willy-nilly.

247 Sports likely used Tannen's photos because they were better than ones that could be gotten for free from fans in the crowd. If you want the better photos, pay up.

> If a news outlet wants to rely on images taken by the public, they are free to do so.

In fact they're not free to do so, not the way that copyright currently works.

That doesn't make sense.

Even if that were the case, what gives you the right to just use someone else's work for a profit? And why does a major studio get to decide that people no longer need to be paid for taking photos?

The alternative is that we need to have a complex system of payments and invasive DRM/spyware to monitor everything posted. People will share these photos widely anyway, but occasionally and randomly someone will be sued for $150,000 per violation and have to defend against that. Is that a good trade-off for keeping a few photo-journalists in business?

Well, if everybody has a decent camera these days, they why not just ask amateurs to submit photos in return for attribution and a small prize to the next event or cash reward if their photo gets chosen?

There's no need to hire photo journalists if you really don't want to. Also no need to use their work (for a profit!) without asking or paying because you decided it was unnecessary.

Does your imagined copyright reform target only photojournalists, or all creators?

It's also not a pure choice between your two extremes. There are various tools that could be used to push this towards a more reasonable middle ground. E.g. through some level of standardization for claim levels, incentives to solve conflicts without actual lawsuits, ...

In this specific case, I find the argument "photography isn't as valuable anymore" not very convincing. If the specific pictures have low value, there was no need to use them without permission. That the photographer likely is incentivised to start with high claimed damages to then get a lower sum in a side-deal sounds like a general bug in how these cases tend to work in the US, copyright-related or not, and should be fixed elsewhere.

Yeah, I mean "taking a photograph" is literally something a macaque can do (and claim copyright for), so on that basis it would probably not be worth establishing a complicated rights infrastructure for photography alone. Photos are going to get taken, including great ones, without the state creating artificial incentives / punishments.

At the other end of the spectrum, look at films. A tentpole superhero film costs maybe $200m or so, but maybe those would be no great loss. The sensible minimum for a low budget indie film is maybe $1m, and there's the occasional outlier like Tangerine that's made on a shoestring budget of $100k. Pretty much nobody is going to invest those amounts unless there's a possibility of getting paid. The only possible exceptions being advertisers, state propagandists and maybe the odd eccentric that might sell their house to make a terrible indie film. Maybe that would be OK (it might at least help with the Harvey Weinstein problem) but I quite like films, and most of the ones I like cost like $10m+.

Well, no... many photojournalists spend a huge amount of money in equipment and go to places others won’t venture.

I'm guessing that's more of a commission basis, rather than journalists going on-spec to warzones and hoping to sell the photos. And if not, then they could move to a commission / work-for-hire model and still make a living.

Freelancing for sports photography has been common for a long time. Many photographers covering an event but only one may get the picture which illustrates the key point scored/etc well (because luck and skill both play a part).

As to "why not replace that with photos from the public" - with press accreditation they can sit court-side and have space to use large lenses, monopods etc. All that equipment and access costs money, and it's not just a one-off cost either (on the equipment side competition also drives quality up meaning upgrading equipment relatively frequently is required, and it does wear out over time as well) - hence the cost of the "best" photos will always be higher than random crowd pics in a functioning market (which needs copyright protection).

This is the same sort of argument as "horses require expensive stabling, food and years of training". All true, but that didn't stop horses from becoming obsolete as a mode of transport, in the same way that I'm suggesting photo-journalists may become obsolete because technology and the internet makes their jobs less and less necessary. What happens when cameras get so good and cheap that photos from the crowd are as good as the ones from beside the court? Or we can place numerous nearly-free court-side cameras operated by AIs to capture everything?

It's a market, same as any other, and there's a cost-quality curve same as many markets. That curve might move over time but it won't change the fact that the people who own the images get to decide on what terms they are used and the people who own the court get to decide who they let in with cameras and to where (and if they install your nice AI cameras to replace the freelance photojournalists they currently let in, that may well raise the market price because they've just created a nice little monopoly for themselves).

I don't get to go and ride someone else's horse for free whenever I feel like it just because cars exist.

It also doesn't mean that horses becoming obsolete means you can just use anyone's horse.

Because it takes skill and effort to take a good picture? Why would anybody give that away for free? We are not some kind of hive mind...

I agree but I think the way they need to be amended is to shorten copyright periods by at least 50%. I think it's a good thing that it's possible to make a film or a piece of music and insist on payment for its use, at least if it's used brazenly by a commercial organization.

It sounded like the author legitmately thinks that "giving credit" for the photo is enough or even desirable. Like, "hey you should be happy I'm getting you exposure."

This is especially common among young YouTubers. To them it's common sense that giving credit for something like this is enough to not get them into trouble. Unfortunately, existing copyright laws are quite unforgiving.

Probably because in school they've been taught that not giving credit is plagiarism. Unfortunately, they haven't been taught the difference between plagiarism and copyright violation.

Do they get into trouble for uploading copyrighted work to youtube? Except maybe in unusual circumstances I think all that happens is the video gets removed or demonetized. Which I would say is pretty forgiving.

I don't get it - the guy made a pics of TV show and tried to sue TV show owner for using his pics?

From my reading - the guy is a sports photographer, and CBS used his pictures in a news cast without his permission, so he is suing for $150k. In retaliation, CBS found some old social media post he made that included an image from one of their old cowboy shows. So they’re suing back for $150k, and calling him a hypocrite.

Nope. The guy makes pics for a living. CBS took those pics (each an entire copyrighted work) and used them without permission.

The guy took screenshots of a TV show (themselves a sample of an entire copyrighted work, entirely permissible under fair use) and used them in some way.

For perspective each screen cap is something like 1/30,000th of the episode (visual portion only), versus the photo CBS used is the entire creative work.

> entire creative work

Not making judgement on your comment but judgement on this issue.

Personally, I don't think just taking a photo of a person is creative work as it has little intellectual, creative, or artistic value. These are the premises which copyright was formed to protect.

As a side note, it would be interesting to understand what conditions this photo was taken under, if it was taken with or without permission, and whether it was taken on private or public property.

> Personally, I don't think just taking a photo of a person is creative work as it has little intellectual, creative, or artistic value.

It seems one would have to be unaware of the challenges of lighting, shutter speed, lens distance, color grading, editing and much more to believe that.

yet walking down the street and taking a picture of Kevin Spacey walking on the other side of the street is also copyright'ed. There is no artistic form in that, there is no creativity, or even intellectual effort.

To clarify my previous comment a little more, "I don't think "simply" taking a photo of a person is creative work". But I also are aligned with you somewhat, that when there is effort there is creative work.

Is this a standard they use? What if he had shot video of the whole game?

That photo might be 1/30,000 of the game.

The amount of the original work used is a very important aspect of fair use.

If I write a movie review of The Matrix and include a screenshot of Neo dodging bullets, that's your typical fair use. The reason for this is obvious, the screenshot is there for review purposes, maybe to show off the thematic feel of the movie in my review.

But if I do a YouTube video review of The Matrix and then include the entirely of movie, it's not fair use. I could maybe show a scene or two, but I can't just wholesale copy paste the movie and call it fair use.

After all, if that was okay, you could "legally pirate" anything by just having a 5 second review before the movie.

The amount of the original work used is a very important aspect of fair use.

After you spend a fortune helping a judge decide. CBS has the money, "you" don't.

The game isn't the copyrighted work, the photo is.

Yeah it is a factor, among others.

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