from the live-by-the-copyright,-die-by-the-copyrigfht dept
NBC has made its views on piracy quite well-known over the years. For instance, we all know that it thinks that piracy is the most horrible damned thing that exists on this planet, so much so that it would please like ISPs to act as its personal police force. Oh, and because NBC also just cares so much -- could we all just have our kids take a break from learning about stuff to listen to how awesome copyright is for a while? Also, however, piracy is pretty sweet when it's convenient for NBC, or when it doesn't want to bother coming up with its own images for its websites.
And so it goes, with NBC recently on the receiving end of a copyright suit over The Today Show's use of a photographer's work, not only without permission, but while happily giving credit to the wrong party on top of it.
Photographer Alexander Stross filed a lawsuit at a Texas federal court accusing the Today Show of infringing his work through multiple venues. In the complaint (pdf) Stross explains that a series of photos he took of micro houses in Texas gained mainstream new attention earlier this year. It was also covered in a segment of The Today Show, reaching an audience of millions of people.The credit on the photograph on the website went to Matt Garcia Design, the architect of the house, which is not of course how copyrights on photographs work. You would think this is something that NBC would know, seeing as how it is the arbiter of all things copyright, to the point that it insists on being consulted on how copyright is taught within our schools. Oh, and The Today Show actually mentioned Stross as the photographer who produced the photos in its segment, so there's that.
However, the photos shown on air were used without permission from the photographer. In addition, one of the photos was posted in a tweet without attribution, which is still online today. A day later this coverage was followed by an article on The Today Show website, again featuring the infringing photos. To make matters worse these were credited to a third party.
When Stross learned of the use, he first attempted to contact NBC, but received no response. Then he tried again, and was likewise ignored. It took Stross hiring a lawyer to get NBC to respond in any way. NBC then attempted to say it had gotten permission to use the photographs from the architect, except its evidence of this seems to indicate it only attempted to do so after the infringing use.None of that seems to equate to permission to use the photographs offered by Matt Garcia Design, which doesn't really matter since the architect doesn't hold the copyright for the photographs. To be clear, NBC may have a reasonable fair use defense here, but that's not what it claimed when originally approached at all (though it likely will in the lawsuit). And given NBC's past insistence on being purely copyright maximalist (and even fighting back against fair use at times), it's yet another situation in which a company or individual who attacks others screaming copyright infringement may not actually have cleaned up its own house first.
When contacted by counsel, Defendant claimed to have obtained the Photographs - and advance permission to use them - from architect Matt Garcia. Upon information and belief, neither is true. Rather, correspondence provided to Plaintiff by Defendant, reflects the following:
• On May 8, 2012: Amy Eley -- a producer working for Defendant -- requested press materials and photographs from Mr. Garcia, who replied that he had a photo shoot coming up, and asked her to wait until they were finished. There appears to have been no further correspondence between Ms. Eley and Mr. Garcia.
• At 2:17 p.m. on May 12, 2015: after Defendant ran the On-Air Segment; after it posted the Tweet; and after it published the Web Article -- a freelance writer named Julie Pennell contacted Garcia and informed him that she was writing a piece on the houses for Today.com. She asked if new photographs had been taken, and whether she could use them (failing to advise Garcia that Defendant had already used the Photographs). Garcia informed Pennell that the scheduled photo shoot had been cancelled, and asked if she would like copies of other photographs that he had -- which happened to be Stross’ Photographs.
Look, it's quite easy to commit copyright infringement. People do it all the time, often without ever even realizing it, as they go about their days doing their jobs and living their lives. But NBC simply can't put itself out as the copyright police -- or even suggest that it's somehow "easy" for others to properly recognize what's infringing and what's not -- while at the same time finding itself on the defendant end of these kinds of lawsuits. And that's really the key point here. Copyright maximalists like to assume that infringement is a black or white issue, that it's obvious and that it's obviously "bad." But, almost without fail, we find examples of copyright maximalists being accused of infringement themselves. And that's because it's not at all easy to detect, and quite easy to infringe without realizing it. And when you can so easily accidentally break a law that can lead to massive damages, it certainly suggests that perhaps it's time for reform. But, somehow, I'm betting that NBC Universal will continue to push in the other direction, even as it faces down this lawsuit.