Tag Archives: litigation

GOOGLE, PHOTOGRAPHERS SETTLE LITIGATION OVER BOOKS

Agreement ends four years of litigation over the inclusion of visual works in Google Books 
 

NEW YORK, NY – September 5, 2014 – A group of photographers, visual artists and affiliated associations have reached a settlement with Google in a lawsuit over copyrighted material in Google Books. The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rightsholders and users communicate clearly and efficiently about rights in works.  Further terms of the agreement are confidential.

 

The agreement resolves a copyright infringement lawsuit filed against Google in April, 2010, bringing to an end more than four years of litigation. It does not involve any admission of liability by Google. As the settlement is between the parties to the litigation, the court is not required to approve its terms.  This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

 

The plaintiffs in the case are rightsholder associations and individual visual artists. The associational plaintiffs are The American Society of Media Photographers, Inc., Graphic Artists Guild, PACA (Digital Media Licensing Association)., North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, and American Photographic Artists. The individual plaintiffs are Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Taback Living Trust, Leland Bobbé, John Francis Ficara, and David W. Moser.

 

The case is American Society of Media Photographers, Inc. et al. v. Google Inc., Case No. 10-CV-02977 (DC) pending in the United States District Court for the Southern District of New York.

 

About Google Inc. and Associational Parties

 

Google is a global technology leader focused on improving the ways people connect with information. Google’s innovations in web search and advertising have made its website a top Internet property and its brand one of the most recognized in the world.

 

Founded in 1944, The American Society of Media Photographers (ASMP) is the premier trade association for the world’s most respected photographers.

 

The Graphic Artists Guild (GAG) is a national union of graphic artists dedicated to promoting and protecting the social, economic and professional interests of its members and for all graphic artists including, animators, cartoonists, designers, illustrators, and digital artists.

 

PACA (Digital Media Licensing Association) is a trade association established in 1951 whose members include more than 80 companies representing the world of digital content licensing.

 

NANPA, the North American Nature Photography Association, is the first and premiere association in North America committed solely to serving the field of nature photography.

 

Professional Photographers of America (PPA) represents more than 17,000 photographers and photographic artists from dozens of specialty areas including portrait, wedding, commercial, advertising and art.

 

Founded in 1946 the National Press Photographers Association (NPPA) is the “voice of visual journalists” promoting and defending the rights of photographers and journalists, including freedom of the press in all its forms.

 

The American Photographic Artists (APA) is a leading national organization run by and for professional photographers.

 

Google is a trademark of Google Inc. All other company and product names may be trademarks of the respective companies with which they are associated.

Sculptor granted royalties in Gaylord v. United States

by Nancy Wolff, PACA Counsel

CDASlogo

In the most recent ruling in Gaylord v. United States, the United States Court of Federal Claims determined the proper amount of damages due Frank Gaylord, (“Gaylord”) the sculptor who created “The Column” portion of the Korean War Memorial, from the United States Postal Service (USPS) for its unauthorized depiction of “The Column” on a commemorative stamp issued in 2003. [This case has been the subject of much litigation, as the District Court found that the stamp was a fair use of the underlying sculpture; the decision was then reversed on appeal and the stamp use found to be infringing of the Memorial; the initial amount of damages was capped at $5000, or reasonable license fee; this determination was reversed and set back to the lower court to determine the appropriate amount of actual damages under the Copyright Act. Statutory damages were not available in this case.]

Specifically, the United States Court of Appeals for the Federal Circuit vacated the award of $5,000, as it failed to adequately calculate the fair market value of a hypothetical license because it only considered what the USPS had previously paid for similar licenses. To properly calculate the fair market value, it directed that the Claims Court examine whether different license fees were appropriate for three categories of infringing goods identified in the 2010 opinion: (a) stamps used to send mail, (b) unused stamps purchased by collectors, and (c) commercial merchandise featuring an image of the stamp.

The Claims Court determined that Gaylord was entitled to total compensation of $684,844.94, concluding that a 10% running royalty rate “accurately captures the fair market value of a license to Gaylord’s copyright.” The court based its calculation according to the likely terms assuming Gaylord and the USPS had negotiated a price for a license on July 27, 2003—the date on which the stamp was released.

Turning to the three categories of infringing goods suggested by the Federal Circuit, the court first established that no damages were awarded for stamps used to send mail because of the difficulty involved in determining whether consumers purchased the commemorative stamps because it featured an image of “The Column” or simply because they needed stamps.

Next, the Court determined that Gaylord was entitled to a 10% running royalty on revenues collected by the USPS for unused stamps purchased by stamp collectors. The court arrived at this figure because Gaylord demonstrated at trial that he collected a 10% royalty for past licenses of “The Column” for various collectibles. The court further noted that calculation of Gaylord’s damage award should consider the fact that the USPS had “strong financial incentive to enter into a license with Gaylord,” noting that commemorative stamps sold to collectors “represents nearly pure profit for the USPS.” The court referred to a survey produced by the USPS that showed the Korean War Memorial stamp was in the “top 25% of its class of a 37-cent commemorative stamp with respect to projected retention value.” The court also stated that the USPS decided to print 86 million Korean War Memorial stamps, when the average print-run for commemorative stamps is 50-60 million stamps. Applying the 10% royalty rate to the USPS’s profits of $5.4 million, the court determined that Gaylord was entitled to $540,000.

The court also awarded Gaylord a 10% running royalty rate applied to the $330,919.49 the USPS received on merchandise featuring images of the Korean War Memorial stamp, determining that he was entitled to $33,092.

Finally, the court awarded Gaylord an additional prejudgment interest of $111,752.94 (based on a delay compensation interest factor of 19.5%), which was to be added to any damages assessed by the court.

In sum, Gaylord’s combined damages—which included $540,000 from USPS profits on unused stamps, $33,092 on USPS profits on merchandise, as well as a prejudgment interest of $111,752.94—totaled $684,844.94. The calculation was based on what the price of a license would have been had the USPS negotiated with Gaylord for use of “The Column,” a 10% running royalty rate, applied to unsent stamps purchased by collectors and on merchandise sold containing the image.

This case is interesting as the court rejected as a measure of damages the past licensing model used by USPS- a flat license fee- for material that was equivalent to merchandise. A royalty model is more customary when licensing artwork for products such as puzzle, posters and paper goods and was consistent with the artist’s licensing model. In other words, the court did not limit damages to the way in which the infringing party previously licensed work but looked to how the artist would have licensed the artwork if he had negotiated with USPS in 2003.

[The stamp was initially issued a decade ago, and as a side note it’s interesting to see how many millions of stamps were published. With the decrease in regular mail, it is unlikely that any artist would see royalties this high on the use of a contemporary stamp absent extreme popularity of the subject.]