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Samsung sued over “shattering” cameras in the Galaxy S20

It appears Samsung is having exploding phone issues again, although it’s not the battery this time, but the camera. US-based attorneys at Hagens Berman have filed a class-action lawsuit against Samsung over defective Samsung Galaxy S20 devices that experience the camera glass shattering unexpectedly during what they describe as normal use. The lawsuit was filed […]

The post Samsung sued over “shattering” cameras in the Galaxy S20 appeared first on DIY Photography.

Photographer Wins Copyright Battle Over Warhol’s Use of Her Photo

A U.S. appeals court has ruled in favor of photographer Lynn Goldsmith in her copyright dispute over how Andy Warhol had used her portrait photo of Prince.

The New York-based 2nd U.S. Circuit Court of Appeals ruled that the Prince Series of artwork created by Warhol is not transformative, and therefore it violates Goldsmith’s copyright. The appeals court returned the case to a lower court for further action.

2nd Circuit Judge Gerard E. Lynch notes that “crucially, the Prince Series retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements.”

In 1984 Vanity Fair licensed one of Goldsmith’s photos of Prince shot on Dec 1981 for $400 to create an illustration of Prince to be used in an article “Purple Fame.”

Vanity Fair did not inform Goldsmith that the photo was being used by Warhol as a reference, and she did not see the article when it was initially published.

Goldsmith was also unaware that Warhol had created 15 additional artworks based on her black & white studio photograph. This was known as the “Prince Series” and included 14 silkscreen prints (12 on canvas, 2 on paper) and 2 pencil drawings.

Two of the Warhol artworks based on Goldsmith’s photo. Images from court documents.

On April 21, 2016, at the age of 57, Prince died of an accidental overdose at his home and recording studio in Minnesota. He had sold 150 million records worldwide, which put him among the best-selling music artists of all time.

The very next day, on April 22, Condé Nast, which is Vanity Fair’s parent company, contacted the Andy Warhol Foundation (AWF). They were interested in producing a commemorative issue on Prince and wanted to use the 1984 image.

Condé Nast obtained a license and published the tribute magazine, which carried a Prince Series image on an orange background on the cover in May 2016. The image was credited to the Foundation, and there was no mention of Goldsmith in the attribution.

Goldsmith first became aware of the Prince Series and the other images only after the cover was published. She informed AWF in late July 2016 that the artwork had infringed on her copyright.

In November 2016, Goldsmith had her Prince’s photo registered with the copyright office as an unpublished work.

On April 7, 2017, AWF launched a “preemptive strike” against Goldsmith by suing her before she had a chance to file a copyright infringement lawsuit first.

In a January 2015 Facebook post, Goldsmith wrote, “It is a crime that so many ‘artists’ can get away with taking photographers’ images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place.”

This statement from Goldsmith likely prompted AWF to file its suit against Goldsmith in a Manhattan federal court, suspecting that she was planning on a copyright infringement case in the future. AWF was trying to make a claim for non-infringement or, as an alternative, fair use.

Artist Andy Warhol by Jack Mitchell and licensed under CC BY-SA 4.0.

Warhol is known for blatantly using and modifying other artists’ works to create his own pieces. He even boasted that art “is anything you can get away with.”

It was then that Goldsmith countersued, but the verdict did not go in her favor. On July 1, 2019, the district court ruled in favor of AWF in its fair-use claim.

The court used the four statutory fair-use factors set forth in 17 U.S.C. § 107 to come to its decision:

  1. The Prince Series was transformative as Goldsmith’s photo shows Prince “not a comfortable person,” the Prince Series shows the singer as an “iconic, larger-than-life figure.”
  2. The court accepted that the Goldsmith photo was creative and unpublished, which is in her favor. However, this was “of limited importance because the Prince Series works are transformative works.”
  3. In creating the Prince Series, Warhol “removed nearly all [of] the [Goldsmith] [P]hotograph’s protectable elements.”
  4. The Prince Series works “are not market substitutes that have harmed – or have the potential to harm – Goldsmith.”

According to U.S. District Judge John G. Koeltl in Manhattan, Warhol’s versions of Goldsmith’s original photograph had completely “transformed” the meaning of the original image into several recognizable “Warhols.”

“The humanity Prince embodies in Goldsmith’s photograph is gone,” said Judge Koeltl. “Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way, that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”

Goldsmith appealed the above ruling, and now she has had it overturned in her favor.

“[W]e feel compelled to clarify that it is entirely irrelevant to this analysis that ‘each Prince Series work is immediately recognizable as a Warhol’,” the appeals court points out. “Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others.

“But the law draws no such distinctions; whether the Prince Series images exhibit the style and characteristics typical of Warhol’s work (which they do) does not bear on whether they qualify as fair use under the Copyright Act.”

“What this case does is recognize the conflict between the right to control derivative uses of the work and how that overlaps with the transformative use factor in fair use analysis,” Copyright Alliance CEO Keith Kupferschmid tells PetaPixel. “The court looked at the state of play and concluded there is an imbalance because of the Carriou decision and courts have interpreted that case much more broadly that than they intended.

“The other significance of this case relates to the fourth factor with the court making clear that the burden of showing no harm is on the user and the Warhol Foundation didn’t show that there was no harm to the photographer.”

Jeff Sedlik, a photographer and copyright licensing expert, served as an expert witness for Goldsmith. While Sedlik declined to discuss his testimony or the specifics of Goldsmith’s matter, Sedlik agreed to speak about related copyright topics in general. He explains:

There is significant misunderstanding and confusion about fair use. Fair use is an exception to the copyright protections enjoyed by photographers under copyright law.

There are multiple factors weighed by the courts in determining whether or not a particular use of a work qualifies as a “fair use” under the law. Some of the most significant confusion on fair use relates to the creation of “derivative works” which are works that are based in whole or in part on another work. Many people believe that by changing a photograph by X%, it qualifies as a fair use. This is a myth. The right to create derivative works – and importantly, to control the creation of derivative works by others — is one of the primary exclusive rights enjoyed by creators under copyright law.

This also applies to works that are created in another medium, such as creating an illustration, painting, or woodcarving based on a photograph, or adding color to a black and white photograph, or other similar modifications or re-executions of a photograph in another medium. All of these uses require authorization and license from the copyright owner. There are exceptions under fair use, but the exceptions are limited.

Attorney Luke Nikas, who represents the Warhol Foundation, says his client plans to challenge the ruling.

“Over fifty years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th Century,” Nikas tells AP. “While the Warhol Foundation strongly disagrees with the Second Circuit’s ruling, it does not change this fact, nor does it change the impact of Andy Warhol’s work on history.”

Here’s what prominent intellectual property and entertainment attorney Robert E. Allen, partner at Glaser Weil, LLP in Los Angeles, had to say about this case:

I have been following this case for years and am intimately knowledgeable of the facts to comment on this case.

This is an exceptional result for creators. There have been a number of past lawsuits in which photographers and other creators have pursued other artists for appropriating their photographs and derivative works in other mediums. It’s not always gone well for the photographers because the courts generally have failed to understand the important role of secondary licensing in the photography business model.

The district court had analyzed whether or not the Warhol use of the photograph was fair use and had evaluated each of the fair use factors, but because the court found the Warhol use to be transformative it pretty much determined each of the other factors in favor of fair use.

The appellate court disagreed that the Warhol use was transformative and when evaluating each of the other fair use factors concluded that they all favored Ms. Goldsmith and that the Warhol use was not fair use.

This means that although the Warhol foundation can attempt to raise another defense, I highly doubt such an effort will be successful and they are going to be liable for copyright infringement.

The court incorporated Goldsmith expert Jeff Sedlik’s opinion in evaluating the fair use factors.

Goldsmith sees this latest victory as a win for photographers across the country.

“I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work — and also to decide when, how, and even whether to exploit their creative works or license others to do so,” she tells AP.

You can read the full ruling for yourself here.

About the author: Phil Mistry is a photographer and teacher based in Atlanta, GA. He started one of the first digital camera classes in New York City at The International Center of Photography in the 90s. He was the director and teacher for Sony/Popular Photography magazine’s Digital Days Workshops. You can reach him via email here.

Sony sued in class-action over A7 III shutters bricking cameras, forcing an expensive repair

A consumer by the name of John Guerriero has filed a class-action suit against Sony Electronics Inc. in the Southern District of New York over claims that the shutter in the Sony A7 III is not fit for purpose, resulting in much-shortened life expectancies than expected. The reported life expectancy of the shutter in the […]

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Sony Sued: Class-Action Lawsuit Says a7 III Shutter is Bricking Cameras

Sony has been hit with a class-action lawsuit by a consumer who claims that the popular Sony a7 III has shutter defects that brick the camera and force owners to pay for expensive repairs.

Law Street Media reports that the plaintiff, a man named John Guerriero, filed the class-action complaint in the Southern District of New York against Sony Electronics Inc. yesterday.

Guerriero calls Sony “the vanguard of the mirrorless camera movement because they’re the most accessible full-frame system[s] on the market” before accusing the company of denying warranty claims made by camera owners who experienced “mechanical problems” with the a7 III’s shutter.

“The a7iii is smaller, lighter, and more durable than its DSLR counterpart, which contributes to its higher cost – approximately $2,000.00,” the lawsuit reads. “Unfortunately for many purchasers of the a7 III, mechanical problems with the shutter have rendered the cameras unusable provided they do not pay over $500 for repair to an authorized service center.”

Sony states that the a7 III is rated for 200,000 shutter actuations, but according to the lawsuit, many owners have reported shutter failures occurring far before reaching that 200,000 actuation mark.

“Numerous users report shutter failures far below 200,000 but between 10,000 and 50,000 for most of the users who experienced this,” the complaint states. “While the a7iii is generally sold with a one-year warranty, shutter failure occurs randomly, often outside of the warranty period.”

“The result is that purchasers must pay approximately $500-$650 for repair and replacement of the shutter mechanism.”

The lawsuit also claims that because the camera’s shutter failure happens in such a predictable way, it’s due to a mechanical flaw in the design.

“The shutter failure manifests in a consistent way,” the filing states. “Prior to shutter failure, users report hearing an atypical shutter sound, followed by the screen turning black and displaying the following message: ‘Camera Error. Turn off then on.’ […]

The camera error message displayed when the shutter fails. Exhibit photo from Guerriero v. Sony Electronics Inc., 7:21-cv-02618

“When a user removes the lens, the shutter is closed and stuck. In most instances, the shutter has become detached, as shown through the numerous a7 III users who shared pictures of their broken shutters on the internet.”

Stuck shutters. Exhibit photos from Guerriero v. Sony Electronics Inc., 7:21-cv-02618
Broken shutters. Exhibit photos from Guerriero v. Sony Electronics Inc., 7:21-cv-02618

There are various theories out there as to what is causing this particular kind of shutter failure.

“These include the observation that the shutter blade catches on the front edge as it moves down in taking a picture,” the lawsuit says. “This is because the blades are positioned farther forward, so they ‘catch’ and fail to fully clear.

“Moreover, the front curtain shutter material is of limited strength, causing it to break. Additionally, the shutter is unusually susceptible to disruption by small particles, even dust, which can cause the blades out of alignment.”

Some Sony a7 III users are said to be turning electronic front curtain shutter (EFCS) off in hopes of avoiding this failure, but this increases shutter noise and is less-than-optimal for photographers who purchased their a7 III for quiet shooting — at weddings, for example.

Others who experienced this failure have attempted do-it-yourself fixes that can lead to warranty claims being denied.

Guerriero is now suing Sony on behalf of “all citizens of New York who purchased the a7iii cameras,” and among the things he’s seeking from the court are an injunction, an award for damages/costs/fees, and other relief.

(via Law Street Media via DIYPhotography)

Judge Rules Images of Enslaved Are Property of Harvard, Not Descendant

A Massachusetts judge has dismissed a woman’s lawsuit claiming that she is the rightful owner of the images of an enslaved father and daughter and not Harvard, the New York Times reports. The judge cites common law that the content of an image cannot be used to claim ownership of that image, regardless of the subject.

In 2019, Tamara Lanier sued Harvard for possession of daguerreotypes claiming that she was descended from those depicted in the images and that the school had profited from the exploitation of the images. The photos, which were taken in 1850, depicted the two enslaved individuals named Renty and Delia stripped to their waist. The photos were part of a project commissioned by Louis Agassiz, a prominent Harvard professor and zoologist, who used them as scientific evidence in a discredited theory that Black people were inferior.

The images remained hidden in the Harvard museum until 1976 and are considered to be the earliest known photographs of American slaves. You can read more about this story here as well as a discussion of the topic further here.

Justice Camille F. Sarrouf of the Middlesex County Superior Court wrote that despite the “horrific circumstances” that the photos were taken in, because the two depicted did not own the images when they were taken, their descendent Lanier did not own them either.

One of the images in question has been used on the cover of conference programs and book covers.

“Fully acknowledging the continuing impact slavery has had in the United States, the law, as it currently stands, does not confer a property interest to the subject of a photograph regardless of how objectionable the photograph’s origins may be,” she writes in her judgment. “It is a basic tenet of common law that the subject of a photograph has no interest in the negative or any photographs printed from the negative.”

When evaluating the details of the lawsuit, neither Harvard nor Judge Sarrouf disputed the evidence that Lanier was a descendent of Renty and Delia, but the judge did reject the claim that Harvard had exploited the photographs for financial gains by putting Renty’s image on the cover of a book. The judge stated that the right to control the commercial use of the photographs expired with the death of the subjects.

Lanier intends to appeal the decision.

“[The judge] completely missed the humanistic aspect of this, where we’re talking about the patriarch of a family, a subject of bedtime stories, whose legacy is still denied to these people,” she said in response to the ruling.

(via New York Times)

Photographer Sues Hilary Duff for Defamation Over ‘Creep’ Claim

Photographer Darryl Wilkins has reportedly filed a lawsuit against celebrity Hilary Duff and talk show host Wendy Williams, accusing the two of defamation by suggesting that Wilkins could be a child predator after Duff filmed Wilkins photographing her son’s soccer game in a public park.

It all began back in February 2020 when Duff noticed Wilkins at her 7-year-old son’s soccer match. Duff started recording Williams with her smartphone camera as she approached and confronted the photographer.

She then posted a clip of the confrontation to her millions of followers on Instagram with the caption: “Paparazzi shooting KIDS. Go ‘practice’ your photography on ADULTS! Creep! Laws need to change! This is stalking minors! Disgusting!”

“Can you stop taking pictures of the kids please?” Duff is heard on camera asking Wilkins.

“It’s legal,” Wilkins replies. “I’m taking pictures. I’m practicing photography. I’m not here to scare you or anything like that. Your paranoia is unwarranted.”

“It’s just an uncomfortability factor that these are 7-year-old children and you don’t have a child here,” Duff counters.

After Duff’s video went viral, Williams weighed in on her top-ranked syndicated talk show , The Wendy Williams Show. Williams played Duff’s clip to her audience and weighed in.

“Creepy to me,” Williams says after sharing the clip. “Sir, if you’re practicing photography, why wouldn’t you go into a park and take pictures of birds and butterflies?”

In his lawsuit, which was first reported by The Blast, Wilkins insists he was simply testing his camera gear by shooting sports photography and that Duff defamed him by publicly accusing him of “reprehensible and despicable conduct including by innuendo that he was a child predator.”

Williams then repeated the defamatory claims on her TV show, the suit says.

Wilkins argues in the lawsuit that Duff made defamatory “false statements because Wilkins is not a pedophile or child predator and was attempting to take photographs as a photographer and not as a paparazzi or stalker or with mal intent or evil wrongdoing.”

The photographer is asking the court to award general, specific, and punitive damages for the harm he received from he slander.

As of this writing, Duff’s original Instagram video has been viewed over 2.2 million times and William’s clip on YouTube has around 200,000 views. Both clips remain available online.

Update: The Wendy Williams Show clip has since been set to Private on YouTube.

Image credits: Hilary Duff portrait in header illustration by VOGUE Taiwan and licensed under CC BY 3.0

Photographer Sues Kat Von D Over Miles Davis Tattoo

A photographer has filed a lawsuit against celebrity tattoo artist Kat Von D, accusing her of infringing on his copyright by using his photo of iconic jazz musician Miles Davis as a tattoo for a client.

Los Angeles-based photographer Jeff Sedlik created the iconic portrait of Davis in 1989, and the photo was subsequently published in a cover story in JAZZIZ magazine in August of that year. Since then, it has been widely published in magazines around the world, and it was featured by LIFE magazine in a “Pictures of the Year” issue.

The iconic photo of Miles Davis by Jeff Sedlik that’s at the center of this legal battle. Image from court filing exhibit.

Kat Von D is the owner of High Voltage Tattoo in Hollywood, and both she and her tattoo business were made famous by the ongoing TLC reality TV series LA Ink. Kat Von D’s Instagram account boasts over 7.4 million followers.

In March 2017, Kat Von D used Sedlik’s photo to create a tattoo that she drew on a client’s arm. She publicized this tattoo several times on social media, including in these two Instagram posts.

Screenshot from court filing exhibit.
Screenshot from court filing exhibit.

The problem is, Kat Von D never requested or received a license or permission from Sedlik to reproduce the photo, which has been sold with a non-exclusive license for reproduction, distribution, and display ever since its creation back in 1989.

On Sunday, February 7th, Sedlik filed a 31-page complaint in a California federal court.

Sedlik v. Kat Von D Complaint by Michael Zhang

Sedlik is demanding that Kat Von D remove all instances of his photo (and the tattoo of it) from all print, Web, and social media platforms. He’s also asking for statutory damages (up to $150,000 for this one work infringed upon), profits earned from the photo tattoo, losses incurred by the infringement, as well as other fees incurred from the legal battle.

The photographer tells Billboard that he previously reached out to Kat Von D to settle the dispute out of court, but his efforts to reach an “amicable resolution” were ignored.

“Ms. Von Drachenberg not only used Mr. Sedlik’s photograph without permission or license, but took credit for Mr. Sedlik’s creation as her own, distributing photographs of her unlawful derivate work to millions of social media followers, and supplying those photographs to publishers for inclusion of promotional editorials about Ms. Von Drachenberg and her various commercial ventures,” the photographer’s statement to Billboard reads.

“Ms. Von Drachenberg failed to respect the creative work of a fellow artist, and chose to monetize Mr. Sedlik’s iconic photograph for her personal financial gain, exploiting the value of Mr. Sedlik’s photograph to build her brand and to promote the sale of her products and services.”

Whether or not Sedlik prevails may rest on whether the court finds that the tattoo was sufficiently transformative.

“The most likely copyright defense for Von D to assert is fair use, on the theory that her tattoo transformed the original image in some way by altering it with a new meaning or message,” Copyright Lately writes. “Not surprisingly, Sedlik’s complaint refers to the offending tattoo as an ‘unauthorized reproduction.’ But there’s a reason people skilled in applying ink are called ‘tattoo artists’ as opposed to ‘tattoo technicians.’

“While Von D no doubt used Sedlik’s photo as a reference, the process is not as simple as running someone’s body through a photocopy machine. A court may ultimately find that the act of interpreting and translating a photographic image to the medium of skin doesn’t qualify as a fair use, but this is by no means a settled question.”

Tennessee bill proposes taking “offensive, nonconsensual” photos in public illegal

When you’re out in public, you can’t expect much privacy (in spite of “Karens” like this and this who would disagree). However, this might change soon, at least under some circumstances. Tennessee lawmakers and the Sullivan County District Attorney’s Office have proposed a bill that would make “embarrassing” and “offensive” nonconsensual photos illegal and punishable […]

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LeBron James Slams Photog with $1M Countersuit in Copyright Fight

In December 2019, Los Angeles Lakers basketball superstar LeBron James posted a photo by courtside photographer Steve Mitchell to his Instagram and Facebook accounts without permission. That post has become the center of a raging copyright infringement legal battle.

A search on Getty Images for “LeBron James” shows 127,906 photos just on one agency at the time of this writing — in fact it has grown by 400 just in the last few hours. So, definitely, there are over millions of photos of the Lakers star on cellphones, pro cameras, and videos out there. But the question that is being raised is whether it is okay for even a superstar to take whichever image he pleases and use it anywhere.

The bone of contention is over a photo of LBJ dunking on Meyers Leonard in a Lakers vs. Heat game in Miami on December 13th last year. It was a side-on dunk, and James reportedly captioned the image “What. A.Time. To. Be. Alive and I’m LIVING with Pure Joy! Thank You,” followed by a basketball emoji. James posted it on his Instagram and Facebook pages, which have tens of millions of followers.

Steve Mitchell, who “has spent the last 27 years capturing the decisive moment on all levels of professional sports,” according to his website, is a seasoned photojournalist whose photographs have appeared in major publications, including Sports Illustrated and ESPN.

Mitchell is suing Lebron James and his companies Uninterrupted Digital Ventures and LRMR Ventures LLC, both of which, the complaint asserts, operate James’s Facebook page, over copyright infringement. Mr. Mitchell is bitter that he did not collect a dime from the photo he snapped of Mr. James, which attracted likes and shares on social media.

TMZ Sport reported in March that Mitchell filed a claim in court asking for any money made off the post or $150,000 for each time James used the image.

James and his lawyers have responded to Mitchell’s lawsuit by filing a countersuit against the photographer, the The Athletic reports. James is asking for at least $1 million and attorney fees.

James initially contested via court filings that he is entitled to post the photos as long as he isn’t commercially exploiting Mitchell’s work, but James later removed the photographs.

Sports Illustrated notes that no, that’s not how copyright works:

The fact that James is featured prominently in Mitchell’s photo did not give James the right to publish it elsewhere. Mitchell owns his photos. This goes to the essence of copyright law: absent a contractual relationship that instructs otherwise, Mitchell possesses copyrights in his creative works, including his photos. As a result, Mitchell has the right to control the reproduction of his photos, such as their publication on social media websites. He can decide whether to license his photos and, if so, demand financial compensation for granting a license, explains Michael McCann, Sports Illustrated’s Legal Analyst who is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.

King James’s counter lawsuit argues that Mitchell illegally used his photos on Mitchell’s website to promote his own photo service.

“Only after our client was sued for copyright infringement for alleged use of a single photo – which we have consistently tried to settle for a reasonable amount – did we file this countersuit upon learning the photographer was making unlawful use of photographs of our client on his website to advertise and promote his photography services business,” James’ counsel Howard Shire tells The Athletic in a statement. “We continue to try to resolve this matter amicably. We have no interest whatsoever in ultimately obtaining any amounts from the plaintiff.”

Houston Texans QB Deshaun Watson is currently involved in a similar legal dispute, and there have been numerous cases of celebrities using photos on their social media accounts without permission and subsequently being sued for it.

Sports photographers’ rights to using sports photos in publications are negotiated in collective bargaining agreements. However, another legal view is that James may have a point in claiming that the photographer is also profiting by promoting his photo service on his website by flashing James’ celebrity status connection.

Federal judge George Wu of the United States District Court for the Central District of California has called on both parties to settle the case between themselves after a hearing on Monday. A ruling is expected in about a week.

About the author: Phil Mistry is a photographer and teacher based in Atlanta, GA. He started one of the first digital camera classes in New York City at The International Center of Photography in the 90s. He was the director and teacher for Sony/Popular Photography magazine’s Digital Days Workshops. You can reach him via email here.

Image credits: Header photograph by All-Pro Reels and licensed under CC BY-SA 2.0