Photographer Demanding Cash From Sites Using Palin's Official Governor Photo
from the copyright-gone-mad dept
Pickle Monger points us to the latest ridiculous story involving copyright and the government. Apparently, a photographer named Jeff Schultz, who has taken many photos of Sarah Palin, took the photo that Palin used as her “official state photo,” while she was governor of Alaska. Members of Palin’s administration say they regularly handed out that photo to all sorts of folks as Palin’s official headshot. Not surprisingly, the image can be found widely on the internet.
However, it appears that Schultz is now claiming that those who use it are violating his copyright, and are demanding they pay up. And not just a marginal sum, but $11,750, according to the demand letter embedded below. The story covers a demand letter that was sent to a restaurant owner who, back during the last Presidential election, hosted an event where he showed the VP debate between Palin and Biden. In promoting that event at the restaurant, the owner pulled Palin’s official pic and put it on his website, where it has remained “in the archives” where almost no one sees it. However, Schultz or his lawyers found it and demanded money from the restaurant owner. Even after the image was pulled, they still demanded money, and rather than fight it, the restaurant owner eventually paid up. Schultz’s lawyers also demanded a gag order, that he not talk about the threat and the demand for cash, but he refused to agree to the gag order. Of course, this just makes you wonder how many other folks did pay up and can’t talk about it…
Palin’s deputy press secretary while she was governor notes that Schultz did, in fact, retain the copyright, but that seems silly. If you’re going to post a headshot like that for an official government figure and use it as distribution material for all sorts of media, it seems like you should automatically relinquish any copyright on it. That Schultz is going around now, years later, and demanding cash (and silence!) from those using it seems like yet another story of copyright trolling.
Filed Under: copyright, jeff schultz, photos, sarah palin, shakedowns
Comments on “Photographer Demanding Cash From Sites Using Palin's Official Governor Photo”
Palin Photo
I am in favor of anything that prevents the distribution of a photo of Sara Palin.
Just because the governor’s office (i.e. someone other than the photographer and copyright owner) uses it in a particular manner doesn’t mean the copyright owner relinquishes copyright, and I’m not sure why it should mean that.
Assuming there wasn’t some agreement to the contrary when he took the photo, the copyright claim sounds legit (although the amount he’s asking for is probably not).
The falsification of copyright management claim sounds pretty weak if it’s just based on a website copyright notice (that doesn’t mean you claim that *everything* on your website is all yours).
It sounds like Palin’s office was too stupid to negotiate proper terms with the photographer they hired.
The photographer is completely within his rights to be paid for the use of his work, and we’ve seen that ugly mug around enough to suspect he should be paid quite handsomely. The image in question is obviously a professionally-shot portrait and any editor should know enough to ask who owns the copyright when publishing it.
The real case for the courts to decide is whether Palin’s people should be the ones paying or the end users, who were probably led to believe they were allowed to use the photo.
Techdirt writes a lot of good things about the abuses of copyright and trademark law. This article isn’t one of them.
Derivative Works
I assume it’s fair use for me to use my derivative works: I’ve drawn a mustache and several penii on her face for entertainment.
The creative impact of the work is changed entirely.
Re:
It also seems a little sleazy to wait around for 2-3 years while everyone uses the photo (because they were led to believe they could) and *then* pull out the lawyers.
Re:
Sleazy? Not at all!! It is apparently the accepted practice as to how to make money from patents.
Re:
It is very likely a legit claim, the photographer is certainly in the right. Zexy Sarah’s people should have been wise enough to use the photographer as “work for hire” and to own the work themselves. They didn’t do that.
I wonder what the liablity is on Sarah’s site, considering they appear to claim copyright on everything on the site.
Is the image even registered
I’m not very good at navigating the copyright catalog but I can’t find it. How could they go for such damages if it isn’t registered? Or if it was registered after use?
Photographs
When a Photographer takes a portrait, and then delivers that portrait, said photog owns that portrait. Its his work, its how he makes money. In most cases the photog allows one person or organization the rights to that photos reproduction (Online or Print).
It seems rare that the photog releases all rights to the photo in cases like this unless they are fully paid off, but then Sarah Palin would own the photo and its rights, not the photog.
Truth is, he has the right to pursue people using his image without attribution or permission, its his work, its his money.
Re: Photographs
“its his work, its his money.”
It’s his asshattery. He’s being an asshole in doing that, rights or no. This also doesn’t just make him look bad, it makes Palin look bad. She sent out all those photos and now all these people are getting sued? How many of those people are going to even try to use a picture of Palin again? Who’s going to use this guy to take photos if he makes them look bad?
Photographs
Yes. And yet clearly copyright law has created an undesirable situation here: a picture was widely available for years, and due to its nature as an official party shot the public had a reasonable belief that it was free to use. Now a photographer, who it certainly seems had no intention of distributing this photo himself, has appeared to claim money from every copy-of-a-copy-of-a-copy of the image. It may be within his rights, but it is an example of how those rights promote the wrong thing: instead of encouraging creative output they have encouraged laziness and a “lottery” approach to making money as an artist.
It’s also worth considering the fact that the copyrightable elements of the photograph (the angle, pose, etc.) represent only a tiny portion (if any at all) of the reason this photo was so widely distributed. It was used simply because it was a likeness of Sarah Palin, which is *not* copyrighted. I’m not saying that changes the legal situation, but it makes ya think.
Re:
I wonder if this business model has a pending patent? It seems to me that some photography professional/group would be wise to rush this through the process then license it to all other photographers!
/sarc
Promoting the Progress
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
You guys know what, this is exactly what our founding fathers meant when they wrote that line above. There is no way that this photographer would have taken that picture if he didn’t have the copyright on it. I know that the only reason he took that picture was so that he could produce and sell art. There is no way that the Sarah Palin character or the pathetic State of Alaska could have commissioned the work or paid him to take it.
Without the copyright these photographers get on the portraits they take there would be no portraits, So I get down on my knees each and every day to give thanksgiving to the recording industry that fought to save all of the arts including photography. Without their valiant effort we would be living in a dark age with no music, no film, and most importantly – no subject commissioned portraits.
Re:
That’s actually an interesting issue, whether the government can own copyright in something created by an independent contractor as a work made for hire.
I’m not sure if the government can.
the law requires printed trademark usually TM by McDonald’s corporation. copyright should require the same. also are there no laws saying that not telling people to stop using your photo tech or what not when you know about is same as giving permission.
Re:
It’s simple to get around that though. If Palin hires the worker personally to produce the photo then she owns the copyright and can use it however she wants.
@Lobo Santo: Copyrights are not Patents.
@jon day: The difference is that every photograph, work of art, sculpture, etc is automatically copyrighted when it is created, whereas a commercial slogan or symbol is not. Registering the copyrights gives you more options under the law, but you own the copyright as soon as you snap the shutter.
Anyone publishing any photo, especially one that is obviously professionally done, should have the good sense to ask who owns the copyright and secure permission to use it.
Re:
Well, that might be the case, depending on the factual details.
But even if so, I don’t see that really as “getting around” something as being a completely different scenario.
Photographs
When a Photographer takes a portrait, and then delivers that portrait, said photog owns that portrait.
No, that’s precisely wrong. If I pay for a portrait to be done, *I* own the copyright to that portrait under the ‘work for hire’ doctrine. This gets perverted frequently because most pro photographers make you sign a waiver that lets them keep the copyright.
If I work as an employee for a company, any of my works while on company time belong to the employer. It’s the same with a photographer, he’s working for you. Unless you sign your rights away, you own the copyright.
Re:
“he law requires printed trademark usually TM by McDonald’s corporation.”
no it doesn’t
“copyright should require the same.”
It used to, in the U.S., but that changed in 1989 I think.
“are there no laws saying that not telling people to stop using your photo tech or what not when you know about is same as giving permission”
Well, sort of. There’s a statute of limitations on copyright claims, so you can’t sue over infringements occurring more than 3 years ago (unless you had no reason to know of the infringement). Also, if you know of the infringement, delay unreasonably in enforcing your rights, and the infringer is harmed by that delay, the doctrine of “laches” might prevent your claim, but it’s not very clear cut when laches will apply.
It is a sad thing indeed when the lawyers have now essentially become the mafia of this generation. They roam the land threatening people for posting a picture of a public person on their website. If I had been the recipient of such a form letter I believe returning it with a big “F*CK YOU” scrawled across said letter would be appropriate. Shame on the system for allowing these things to happen and shame on us for letting things get to this point. Is there no more common sense left?
Photographs
“No, that’s precisely wrong. If I pay for a portrait to be done, *I* own the copyright to that portrait under the ‘work for hire’ doctrine.”
Hmmm…YOU should be more careful before calling people out on this.
Except in rare cases, a photographer is not employed by the person in the portrait. Rather, they are an independent contractor. Therefore, the photographer owns the copyright *unless* there is a written work made for hire agreement AND the photo falls into one or more of 9 statutorily prescribed categories of works.
Otherwise, you can sign an agreement assigning (i.e., transferring) the copyright from the photographer to the client.
Anyway, the default is that the photographer owns the copyright unless there’s a written agreement saying otherwise (and even then it might not be valid).
Photographs
This is wrong. I suggest you do a little more research into copyright law. The copyright by default belongs to the creator of the work. ‘Work for hire’ does not mean what you think it means. ‘Work for hire’ refers to employee/employer relationships?unless the photographer is your employee and photography is part of his job, work for hire is irrelevant.
Re:
Oh for shame for shame! A photographer is asserting copyright in his photograph! What has the world come to!
Photographs
Photographs
Since it is such a huge thing, has been out for a long period of time, and is by no means hidden, I agree he is being an asshat. He should have litigated at the start to fix it, it is not like its going on behind his back.
The copyrightable element is the portrait. You dont copyright a pose or angle. Its protection based upon the time and money involved in taking that portrait. Getting a studio, buying your gear, getting catering, and generally setting up a huge event is immensely expensive. True most of that cost is passed on to the client, but there is still the cost of doing business and having your own business.
Tldr; He is an ass for letting it slide for so long and screwing everyone, but the reason for the copyright is its easy to steal photos. Professional photos are not easy to take, otherwise everyone would be taking professional photos.
Photographs / Work for Hire
Work for hire is defined as salaried work (Working at a newspaper, magazine, or any office where you are specifically paid to take photos), or if the photo in question was specifically agreed upon to be a “work for hire” photo. It _needs_ to be specifically commissioned.
I guess it stands to reason that Palin would hire people as dim and rapacious as herself.
Re:
The law changed because there is no longer any doubt: work is copyrighted as it is produced. That is one of the advantages of automatic copyright of work, it eliminates the need to identify. Most still do (for various reasons, including crediting the photograph), but it isn’t an absolutely requirement. Unless you have proof otherwise (written authorization), you can safely assume the work is protected by copyright.
Re:
So you’re claiming that this photographer, who was (presumably) paid for his work by the taxpayers of Alaska, then has exclusive rights to peddle this photo to anybody that will pay? That’s ridiculous on the face of it. It doesn’t work that way for writers or printmakers, so why would photos be different?
Photographs
You dont copyright a pose or angle.
No, but those represent some of the things that make a photograph copyrightable. Yes, other creative elements count: the lighting, the setting (if you arranged it yourself), etc.
But what is *not* copyrightable is the subject of the photo. The photographer has no rights to the likeness or Sarah Palin. And all I was pointing out here is that the reason this photo spread was because it was an accessible likeness of her – not because it was considered a brilliant portrait, highly sought after for its unique portrayal of a well-known face. So nothing the photographer himself did really contributed to the image’s popularity.
Now, as I said, I know that doesn’t change the legality of the situation – but it does change the nature of the story. This isn’t about an amazing original photo getting spread around for free – it’s about a photo that, more or less by chance, got used en masse because of its subject.
Re:
@Lobo Santo: Copyrights are not Patents.
I don’t think Lobo was confusing the two. I believe Lobo was saying that this was already common practice for Patent Holders to wait a couple years while the use of their patent becomes pervasive, and then crack down to make lots of money, and in this case Mr. Schultz was just using what was common practice in the Patent world and applying it to the Copyright world.
I personally believe that Mr. Schultz is late to the party, and Copyright Maximalists have been doing this for years. Why innovate when you can legislate and litigate? That is their motto, whether it is Copyright Maximalists or Patent Maximalists (or even Trademark Maximalists.)
Re:
Well, the copyright notice law changed because of obligations under international agreements doing away with “formalities” like publishing with a copyright notice.
However, the law had already changed by that point such that copyright begins at the moment of fixation in a tangible medium. That’s been part of U.S. copyright law since 1978.
Re:
I don’t see what makes that so ridiculous, and it is the way it works.
I’m not sure what you’re talking about regarding writers and printmakers, but that’s the way it works for them as well unless they are employed as such (i.e., not independent contractors) or they have an explicit agreement to the contrary.
Re:
Then the law is ridiculous. This guy was hired and paid to do a specific work and deliver it to the customer. It’s ridiculous that a photographer hired to take a family portrait then has a right to make it into a billboard or sell it over the Net just because the customer didn’t sign some boilerplate.
According to your take, the customer could then be sued if they photographed to picture with their smartphone and sent it to their relatives, because the photographer still has all the rights.
Shakespeare sure was right about the lawyers.
Re:
@davey: That’s why smart people READ contracts before signing them. The contract photographers use has been around for years. You pay them for their time, expenses and studio but you DON’T own their copyrights unless you negotiate that separately. I remember asking about it when they took my graduation photos many years ago.
This is a good lesson. If someone, for example, one day wanted to lead a country (God forbid), or be a heartbeat away from leading a country, it would be recommended for that person (or her staff) to be able to read and understand a contract.
This could have been Ms. Palin negotiating the surrender of the USofA to [insert enemy here]. Thank [insert deity here] that she just F’ed up a photo shoot.
Re:
First, I might have misunderstood your original statement. The photographer owns the copyright, but that does not necessarily give him the right to use the image however he wants. For example, he can’t suggest the photographed person endorses some product without their permission. He does have a right to stop others from using it under the copyright law.
As for the cell phone pic to relatives, that might (a) be a fair use, or (b) be covered under an implied license from the photographer to the customer.
What usually happens in scenarios like this (without a written contract) is that the cutsomer gets an implied license to use the photo or other work in some way (thought the scope of the license may be disputed), and the contractor retains the copyright.
I wouldn’t attribute everything said by a Shakespeare character to Shakespeare himself.
Re:
Just because the governor’s office (i.e. someone other than the photographer and copyright owner) uses it in a particular manner doesn’t mean the copyright owner relinquishes copyright…
He didn’t say that the photo did relinquish the rights, only that he should.
…and I’m not sure why it should mean that.
Because now prospective clients will know what an asshat he is within a few seconds of their Google search, and not hire him in the future. Whereas he could have used the fact that he has a celebrity clientele to drum up more legitimate business, if he weren’t too busy being an asshat.
All that's needed is a simple fix
Contract or not, those in government power have been known to change the rules that apply long after the fact, to work in their favor.
The State of Alaska or U.S. Government passes a special retroactive regulation/provision/etc, which would only be applicable during the date and time in question the photograph was taken, to make the photographer a State or Federal Government Employee. This would make the photo reproduced at government (taxpayer) expense, thereby making it Official State or Federal Government property, and now and forever in the public domain (or as it might become known as the: “Eminent Domain on Abusive Asshats” [EDAA] Rule).
If the aforementioned asshat photographer doesn’t like it, he can move to Antarctica and freeze his hat off.
I personally know Jeff and...
This is a bogus article. Jeff is great local business owner and takes wonderful care of his clients. This is so deceptive. When Jeff took this picture he agreed to let the state use it. The state totally understood this agreement and provided Jeff with a model release for the governor so he could market the image as a stock image. Neither the state nor Jeff ever did anything to give anyone the impression this image was free to use. It is immaterial if anyone else did Jeff is not in control of that. Many people(i know for a fact this image has been licensed many times) paid to use this image. Some people thought they wouldnt get caught and decided not to pay for it. the image can be legally licensed by anyone who would like to use it at http://www.alaskastock.com . As far as the 11000 some odd dollar claim. All i can say is i am sure that whatever amount he asked for was on the advice of his attorney and took into account how much his legal bills and such would. I also can nearly guarantee you that an offer to settle for probably no more than the license would have cost normally before any lawyers were involved at all.
This is a slanderous article about a incredible decent man who has operated a fabulous business is the state for decades and my friend
I am disgusted
I personally know Jeff and...
I’m shocked, SHOCKED to find a bogus, one-sided article on Techdirt!
I personally know Jeff and...
This is a bogus article.
No, it’s an accurate article. You may disagree with it.
Jeff is great local business owner and takes wonderful care of his clients.
Good for him. That’s got nothing to do with the subject at hand.
When Jeff took this picture he agreed to let the state use it. The state totally understood this agreement and provided Jeff with a model release for the governor so he could market the image as a stock image. Neither the state nor Jeff ever did anything to give anyone the impression this image was free to use
Using it and distributing it as the official headshot of Palin absolutely suggests that.
Some people thought they wouldnt get caught and decided not to pay for it
That’s simply not true of the guy in the article. He — for very good reason — believed the image was free.
This is a slanderous article
The only “slander” Trent, is you accusing me of slander. If you cannot back up that claim, I would suggest a retraction.
In the meantime, did the Jeff get paid for the photograph? If so, who paid him originally? Was it the state of Alaska?
sing it and distributing it as the official headshot of Palin absolutely suggests that.
saying doesnt make it so. I doubt there is a official governor portrait in the country you are free to use. what about a picture being an official governor portrait suggests anyone can use it.
also this is bogus journalism. did you call jeff. did you do any investigating. I used to do a lot of shooting for newspaper. I know what it means to be a journalist. posting wildly deceptive articles on the net that only views the situation from one side doesn’t cut it
also they did not just turn around and get sued for 11000 dollars. someone from alaskastock called them and made a very reasonable offer ( i mean really it was almost definitely not a lot for web use) and they decided to fight for the principle of being able to steal someones work. now lawyers have to be hired and you know that its going to get settled for less than was asked its part of the process and frankly one that was unnecessary.
yes jeff was paid a fee by the state i am sure. that fee was an agreed upon sum for him to create the image and assign CERTAIN rights to the state.
this is insane. its hard to make a living as a photographer. you make it sound like and industry of grifters for protecting our copywrite interest. newsflash photographers dont make a lot of money and can only make any when intellectual property is protected
Re:
saying doesnt make it so. I doubt there is a official governor portrait in the country you are free to use.
That’s almost certainly false.
what about a picture being an official governor portrait suggests anyone can use it.
Copyright law is pretty explicit that works put out by the government are not covered by copyright law.
also this is bogus journalism. did you call jeff. did you do any investigating.
I am not a journalist. I read the details, I saw the threat letter Jeff’s lawyers sent. I wrote about it accurately. There is no requirement that I call Jeff. Did you call me before accusing me (falsely) of slander?
Why not?
posting wildly deceptive articles on the net that only views the situation from one side doesn’t cut it
You keep claiming it’s “wildly deceptive.” It’s not. I would suggest you stop.
also they did not just turn around and get sued for 11000 dollars. someone from alaskastock called them and made a very reasonable offer ( i mean really it was almost definitely not a lot for web use) and they decided to fight for the principle of being able to steal someones work.
If you don’t understand the difference between *potential infringement* and theft, you are not qualified to speak on the subject of copyright law.
this is insane.
Only for those who choose not to understand.
its hard to make a living as a photographer.
That has nothing to do with this story. If it is hard to make money as a photographer, then you should work on a better business model. If you read this site, we suggest many. But shaking down websites for using an official gov’t photograph is not a good one.
newsflash photographers dont make a lot of money and can only make any when intellectual property is protected
“can only”? No. That’s simply untrue. We’ve pointed out plenty of examples to the contrary. If you are so uncreative as to think the only way to make money is to abuse copyright law, well, that’s an issue for you to work out, but I see no reason to continue this discussion.
Good luck to you.
Derivative Works
“The creative impact of the work is changed entirely.”
That I don’t believe.
Re:
Mike, your right about no need to waste any more time on this guy, as it appears by his request from him on this site, that he lives by the rule “Do as I say, not as I do”:
#355 – Posted 3/12/07 @8:02PM by Trent [contact]
could someone email the mp3 to me please. i am tired of hearing the watered down youttube version and i missed the download
trent@grassephoto.com
plz take a moment to do this for me id really apreciate it
The old adage, “People who live in glass houses shouldn’t throw stones” comes to mind. Anyone can read a few of the comments above his to get a reasonable idea of what he was asking for (read comments #350 & #351 at a minimum), then decide for themselves what form of copyright infringement was taking place.
Re:
That’s hilarious.
Re:
I don’t share the opinion that most people will see him in that light.
As the poster who apparently knows him personally attested below, the governor’s office knew exactly what it was and was not getting from him.
I personally know Jeff and...
“Using it and distributing it as the official headshot of Palin absolutely suggests that.”
Why? How? It certainly doesn’t reasonably suggest that to anyone who is experienced in using professional photography as part of their business.
Re:
Copyright is explicit that works created by the government are not covered. It has nothing to do with works “put out by” the government, and nothing suggests that this photo was created by a government employee.
If you’re suggesting that a person reasonably well acquainted with copyright law would assume the picture is in the public domain, I think that’s just not true.
I don’t buy the argument that acting in accordance with the law suggests something that is not true under the law because someone is likely to have a mistaken understanding of the law.
Re:
He didn’t say that the photo did relinquish the rights, only that he should.
I’m not so sure: “If you’re going to post a headshot like that for an official government figure and use it as distribution material for all sorts of media, it seems like you should automatically relinquish any copyright on it. ” (emphasis mine)
Photographs
Its protection based upon the time and money involved in taking that portrait.
No, it isn’t. A photo that takes no time or money to take gets exactly the same copyright protection.
People are confusing several issues here. The photographer seems to have been savy and negotiated the licensing of only certain rights to the image to Palin’s office. Those rights may have allowed the office to hand out physical prints of the image for display use, say in a constituent’s home or place of business.
However, Palin’s office may have also sent prints to various publications to be used along with articles about her. These are often called “handout” prints and are only to be used in conjunction with a specific published article. The images use to advertise a product or service is also usually NOT allowed. This type of handout usage by Palin’s office may or may not have allowed by their agreement with the photographer.
If it was NOT allowed in their agreement with the photographer and they did it anyway, then the photographer cannot be blamed for the wide distribution of the photos, especially if he also made them available for licensing as stock images.
In addition, the licensing of headshots such as this is typically TIME LIMITED to a period of three years or so, on the theory that as styles change, people will get new photos made. This may be why the photographer and his stock agency are now pursuing these claims.
Finally, many, if not most, states have on-staff photographers who are paid salary and benefits by the taxpayers and are therefore covered under the “work for hire” provisions of the copyright laws. This is how most “official” portraits of governors are available in the public domain.
So here is a guy who tried to his work available for people to license by placing it with a stock agency, as Mike frequently suggests, getting reamed in the comments because his customers/clients may have distributed his work in a way he did not license them to and now he is trying to stop others from profiting from his images. Suddenly he is the bad guy abusing the copyright system?
Re:
You’re not sure that he said ‘should’? It’s right there in the bit that you quoted.
…it seems like you should automatically relinquish any copyright on it.
Emphasis mine. See? It says ‘should’, not ‘did’.
Which was my point.
Re:
I don’t share the opinion that most people will see him in that light.
That’s fine. You hire him, then. However, most of the folks that I know want to see glowing reviews when we hunt for a photog, not threats of lawsuits.
Re:
And he also said “automatically”, which means the photographer should not have to take any action to relinquish the copyright. That’s a statement about what the law ought to be, not about what the photographer ought to do.
I’m not arguing about whether the photograper did relinquish his rights, so perhaps we don’t disagree.
Re:
And he also said “automatically”, which means the photographer should not have to take any action to relinquish the copyright.
Hmm, we might disagree about what that term means. For instance, when I was in customer service, I automatically gave every customer a receipt, but it still took action on my part for that to happen.
I think what he means is that the photog should automatically give up that right just as I automatically gave out receipts. As a matter of course, normal, etc.