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Thursday, 26 March 2009

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It would be interesting to see if the pics are on the Wayback Machine site: http://www.archive.org/
I'd find it hard to believe that someone didn't snag those off his website, while they were available, as well.
Good luck to him, I can understand his 'proceeding with caution' stance!

There may be nothing to hide. But in our litigious society, somebody somewhere might find something amiss or ambiguous in one of those pictures, and try to build a case on it. Even if it's nonsense, it could cost the airline or its insurer big-time to fight it. And there's the uncontrollable "buzz" that the photos might generate, which the corporations can't control.

The natural corporate response: Let's eliminate any possibility of that happening, to protect the corporation from any liability. So they ask their in-house lawyers to come up with some legal reason why they can prevent the pictures from being published. So they will assert an implied work-for-hire, or a proprietary interest--whatever they can argue before a judge.

And this, quite frankly, is how we can lose our freedom of speech and the press. It's just as dangerous as the post-911 "War on Photographers" being fought in the U.S. and especially in the U.K. Perhaps more so, because it bypasses many Constitutional protections, focusing instead on commercial relationships.

Individuals often get very angry when shown in a bad light. Corporate entities want to control any and all information about themselves. Government officials want to manage what the public knows so they will vote the "right" way, or at least leave them alone to do their jobs in a complex world.

This is why our (U.S.) founders wrote the Bill of Rights. It's not just mustache-twirling dictators we have to watch out for. It's just the natural tendency of people looking out for their interests to want to control how they will (or even might) be perceived by others.

I smell AIG's legal counsel in this one. They are cautious types and are most likely afraid of additional damages from lawsuits from passengers on the flight.

Doesn't his contract spell out what his copyright rights are???

You can see some photos of the same operation taken by a crane operator at:

http://picasaweb.google.com/verhulst.tonyorsusan/AirbusRecovery#

We don't need no stinken badges. ch

Hey, just go ahead and post them all over flickr and all the other photo sharing sites. Add a CC license, and tell everyone else to shove it! Go ahead, confront the "man"

When I read stories like this, I am reminded of David Letterman's old line, "We are very near the end of civilization."

I think we're slowly building up to a situation where all visual space is private. No one will be allowed to use any photos or even write about anything without the permission of some corporate power.

I am already annoyed that some company can put their logo on a building somewhere and presto, there is then a partial restriction on what I can do with a photo of that view. But when did that corporation compensate me for the loss of use of that visual common space?

The EFF might be interested in helping with this. www.eff.org/

I suspect that AIG is doing it just as a knee-jerk legal reaction -- "Don't let anybody do *anything* that we can control unless we know the outcome, and since we don't, squash them." Pretty typical legal stuff. I wonder if AIG could claim to be his legal client, since they will ultimately pay the bills?

There's another question -- who owns the photos? Is it possible that AIG sees some commercial value in them -- maybe they could be used in a movie -- and figure that that value could be diminished if they somehow became part of the public domain? It's like that shot of Obama for the "Hope" poster -- AP claims ownership, not the photographer. I can understand that the photographer would like to publish these (they could help build a reputation), but presumably he got paid, so it's not exactly like he's being ripped off...

There's a guy who used to post often on another site, the Leica site, who's a pretty successful commercial photographer. He would occasionally post shots from commercial shoots to illustrate one thing or another about the M8 and its lenses. He once posted a portrait in which the subject had some serious nostril hairs showing, as an illustration (IIRC) of the fact that the Leica could be *too* sharp for portraits. It was kind of an embarrassing photo. I often wondered about that. Wouldn't the client have some rights to the photos? If you hire somebody to shoot something, wouldn't the photos belong to you, just as if you hired a carpenter to build a fence for you? (I don't know -- this is a real question.)

It's a shame that the plane shots might not be seen, they look pretty interesting. But I doubt that there's any kind of a cover-up...it's just the usual legal bullshit that we're now drenched in.

JC

The plane is resting in a public place. 'Nuff said. Anyone could have shot the entire recovery process with a good tele-photo. I'd be tempted to tell them to go fly a kite, but these guys are so powerful they can take 168 BILLION of our taxpayers money and do what they want with it. Scary.

If AIG can exert such control (or attempt to,) then is it possible that a camera manufacturer could order you to remove images you shot with their camera in a review?

Mike, I was on your case last week for attempting to assert a negative statement, for which the burden of proof is always very high, perhaps in some cases infinite. (e.g., "There is no human-like life in the universe other than on earth", "Terrorists do not use photography.")

Proving a negative is the situation here as well. To release these pictures, the lawyers for the parties involved (e.g., AIG), would have to know that their release can't hurt their clients. Since this is unknowable (thinking that it might not isn't enough), the default is to not release them. Not releasing them might deprive the public of news, or deprive the client of good will, but won't result in liability.

Anyway, that would be my guess. The default is always towards least possible, however unlikely, harm.

--Marc

"Doesn't his contract spell out what his copyright rights are???"

Greg Miller,
Yes indeedy, and from what I know Weeks is telling him to go ahead and post the pics, but let me parse this again--he's hearing "cease and desist" from the law firm of the insurer of the customer of the parent company of his client. And they're a very, very big bear with very, very deep pockets. What would YOU do? Risk p'ing them off? Even if he's in the right, he's still taking a pretty big risk, no?

Mike

"Wouldn't the client have some rights to the photos? If you hire somebody to shoot something, wouldn't the photos belong to you, just as if you hired a carpenter to build a fence for you? (I don't know -- this is a real question.)"

JC,
Normally, when you sell a portrait, you sell only the physical print, not the rights. Most photographers' contracts specify one-time rights for the purpose the client is buying the picture for (usually but not always, one-time publication). A photographer can sell all rights if it's specified in the contract, but the buyer can't claim all rights if it's *not* specified in the contract.

Stephen was clear with me that he did not sign a work for hire agreement, which would make all his work the property of his employer.

Mike

Call the ACLU and The Daily Show.

Just checked the NTSB website and they are showing for this accident 1 serious injury 154 uninjured. I don't know the serious injury is but perhaps that is why AIG is being so cautious.

Let's not forget that in this country corporations have been officially granted all the rights and privileges granted a "human person" in addition to all their other formidable legal perks. Coupled with all the millions if not billions of dollars they may wield, that makes for one monster of an opponent. A working photographer would be wise to proceed with caution- a poor slob like me, I'd double the effort to publish and post them in every nook and cranny I could find.

Personally, I'd ignore AIG unless or until they take some genuinely obstructive action. At that point I'd get the nastiest, most obnoxious legal vampires to go after these pricks like coyotes on a carcass. This would have to be good for at least a small ($100K-$200K) settlement, half of which would be thrown to the coyotes.

It's sad and sickening to admit that that's the only way to combat the typical corporate morons beneath such actions in today's society.

This is with little doubt, being done with the old belief that the when the eye sees a airline logo, a plane, and trauma site, i.e., crash, that the mind associates the logo with the crash and prevents you, the human/customer from calling that airline with your next resv. Yes, this was a perfect incident, no doubt, but this is the way it's worked for a very long time. For quite a long time if you've seen plane crashes you will see the logo of the airline covered up the following day(s).

Can't speak to the legal issues but there is no doubt this is why it's being done.

"He had the full cooperation and blessing of his immediate client, Weeks Marine; of the National Transportation Safety Board (NTSB); and of USAirways. He never signed a Work for Hire agreement, and the documents he did sign gave him normal rights to publish the work non-commerically—like, on his website, where he posted them as he got them edited. The best shots from the more than 5,000 captures he made amounted to "an incredible, beautiful document of the recovery," according to Pulitzer-Prizewinning photo editor Stella Kramer, who saw them.

Steven should call the bluff of AIG and everyone else involved who is attempting to surpress these photographs."

He signed a contract, and it gave him all the rights he needed.

I say take a deep breath, and publish.

Photographers, those actually trained as photographers and those who make their living as photographers, not just any monkey wielding an iPhone or some other photo-capture device, need to re-assert their rights.

For everyone who fails to do so, it's a dark day for all of us.

Newspapers are folding around us, social networking has taken the place of legitimate photo- and journalism.

We need to take the extraordinary courage, and move ahead, and assert our rights, which, according to this account, he has every last ability to retain.

For editorial purposes usually the pictures can be sold to news outlets and no one has any rights to stop them. Commercially there must be a property release by the owner of the aircraft and the owner of the crane, and a release by anyone in the photos.

This is absolutely appalling.

Recently all the news and articles about photographers being stopped, arrested, beaten up are really depressing. Coupled with what I've read about possible humans rights abuses at home makes me wonder; what can we really do?

I hope Stephen makes out of this mess unscathed and with his photos. AIG really has no business with them.

I'm with Ken Tanaka here. I like a man that understands good old plain speaking. I'll be glad to see the back of all those 'Morons of the Universe' frankly. Maybe we can all become sensible again... but the cynic in me doesn't hold much hope. On a more optimistic note; Mike, we sure do get some thoughtful, erudite folks on here don't we? Very reassuring. Do us picture takers (read artists) have an extra sensible gene...? Dennis F.

The Online Photographer: Your one-stop show for daily musings on photography and periodic new reasons to hate AIG.

Thanks to everyone (but especially Carl) for the fascinating discussion.

This tendency to curb freedom of speech, for commercial reasons, such as fear of litigation, must absolutely be stopped. Unfortunately, America's founding fathers only envisioned rights being eroded by the government, not by disproportionately powerful civil players (in this case AIG corporation or others). But AIG's entirely understandable (if repugnant) lets-shut-them-up-lest-the-lawsuits-create-liability commercial motivation takes an axe to the central idea we cherish. A free society with free speech, where every public event gets talked about (or photographed and posted) in the interest of a greater general good and which notion, in most cases, trumps any narrow private interest. Such as AIG's interest.

Oh, by the way, there was one serious injury. One of the flight attendants broke both legs in the crash.

Is this truly a cover up, or an attempt to assert ownership and control over distribution of photographs with a possible huge profit potential?

I'd almost prefer the former to the later.

"And they're [AIG] a very, very big bear with very, very deep pockets. What would YOU do? Risk p'ing them off? Even if he's in the right, he's still taking a pretty big risk, no?" -- Mike J.

Depends on his contract, and what he's got to lose. The last thing AIG needs right now is a massive effort to break some poor photographer on specious grounds, when the photographer owns a hubcap and a stick, and they can't recover anything even if they win. If they try to do that, IMHO Congress will throw them off a f***in' bridge, which Congress already wants to do anyway. If I were this guy, I'd publish, and go on vacation for a couple of weeks, so they can't serve him. By the time he gets back -- with the photos all over the net (make sure they're down-loadable) -- it'll all be over...and he'll still own the rights.

Thanks to Carl and Mike J. for educating me on copyright law. I didn't know that stuff; in fact, I was a little taken aback. Does this mean that those Sears Roebuck studios can publish those photos of all the millions of kids they've taken over the years? Some of them have got to be celebrities...How much would little bare-butt infant photos of Britney be worth?

JC


This kind of thing makes me *very* angry. I wonder if these big corporations are taking note that in France, corporate executives are being held hostage for behavior like this. Make people desperate enough and I bet the same would happen here in the US.

My guess is that the attorneys here simply don't like losing control of any evidence at all that pertains to the incident. If they can come up with a pretext, however weak, for suppressing info, there is nothing to stop them from asserting it. They don't really need to know WHY they don't want these photos published or disseminated; they just don't, in the same way that my dog doesn't want strangers coming into our house. It's not about the threat properly evaluated. It's about the instincts of the animals involved (lawyers or dogs). Protect first, evaluate later. It's simply how a lot of them think. They can't control the news folks, but they think they can control Mr Mallon, and they probably know it will cost him more to prove them wrong than he can spend.

And they lawyers certainly don't need to have the law on their side. I'm amused to see so many people here reviewing what they know about contract law, etc. That stuff isn't entirely irrelevant, but it's mostly irrelevant. My contracts prof in law school used to say, if your contract ends up in court, you've lost, which is simply a legal paradox analogous to "an ounce of prevention is worth a pound of cure". It certainly looks like Mr Mallon is being bullied, but what's he going to do? Can he afford to dare them to sue him?

In sad truth, the law - much of the time - is not about proper application of wise rules, not about truth and justice, but about threats and intimidation. Nothing new here, by the way. This has been true since the days of Cicero.

Dear JC,

There are overlapping legal rights that all have to be satisfied. That's why, for example, if I were to make some portraits of you, I couldn't use them commercially without a model release. You own those rights to your own visage even though I own the rights to the photographs I made of that visage. Similarly, you wouldn't have the right to publish the photographs I'd made of you (absent a contractual agreement).

On the matter of the AIG scum, the problem is that even minimal legal proceedings are fabulously expensive and I'm sure what AIG is counting on/hoping for is that Stephen will not feel that he can afford to risk substantial sums of money on this, even if he's assured of victory. There's a game of legal bluff poker being played here, and I'm not sure that Stephen has the chips to see them and raise.

AIG Is being a despicable bully and I really, really hate bullies. Unfortunately, sometimes they can beat the crap out of you. Hopefully Stephen will get some real muscle on his side.


~ pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
======================================
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
======================================


Why doesn't he just offer to sell all the images to AIG ? Let them put their money where their mouth is.

"Does this mean that those Sears Roebuck studios can publish those photos of all the millions of kids they've taken over the years?"

Depends...if they've kept them and can identify them, they could probably be published editorially. A magazine piece on what the stars looked like as babies is probably first amendment protected. But they'd need to have properly executed model releases (signed by the parent or guardian of course) to use the pictures commercially, as in, advertising Sears as "photographers of the baby stars." There could be release language in the original sales contract--I have no idea about that.

I am a lawyer (Virginia, not New York). Assuming the accuracy of the set of facts set out in your blog, my opinion is that he can let those pictures be seen any way he sees fit - unless of course there is an issue like national security or if to do so would negligently or recklessly endanger another's person or property. He of course must honor the terms of the written (and oral?) contract with the entity or entities that hired him, and that entity cannot just unilaterally change the terms after the fact if Stephen has indeed fulfilled his end of the contract (unless the original contract allows for such unilateral changes).

AIG sounds like it is just trying to be the big bully in the schoolyard. The fact that it may face some future financial liability due to the physical destruction of the plane or future personal injury lawsuits, does not give it the right to dicate the terms of the original contract between Stephen and his client, or to dictate whether he can display those photographs, or for that matter, dictate anything having to do with Stephen and his client. A court with proper jurisdiction might be able to do so, but not AIG.

cfw

cfw,

Assuming the facts are as stated (as you also assumed) and assuming that you are correct, how much would it cost the photographer if he went ahead and displayed the photos and AIG pursued legal sanctions? What I mean to ask is, even if AIG eventually loses (and maybe even know that they would), how much would it cost the photographer to "defend" himself in the meantime?

Are we talking thousands of dollars? And how much time? Weeks...years?

I have no experience with the legal system, either Canadian (where I live) or American, so I am curious.

Thanks,
Robert

As usual, the AIG lawyers are forgetting in their risk / benefit calculations that pissing everybody off is bad business.

Business in general seems to be very bad at that aspect, historically.

That is of course what bullies count on - that you will be too scared to fight back, and a good lawyer can turn that around on them and quite possibly make them back-off (something tells me that AIG in-house counsel are not really in a position to be wasting their clinet's money right now). In my experience, if the legal action were considered an issue of contract, Stephen could most likley recover all his attorney fees and out of pocket costs. As to what it would cost to hire an attorney to fight the bully, I do not know, but he might find someone or firm willing to work pro bono, or find some assistance through a photographer or journalist network. I would count on a good lawyer (not "Dewy Cheatum and How" from the yellow pages) asking $200/hour and up, but given the principal involved, they could very well be willing to take the case with no up front money. Most judges do not like frivilous legal actions cloging up their already overburdened court docket, and if the action is determined to have been frivilous (i.e., without any merit), a judge could really hit them with some substantial penalities.

c

" My contracts prof in law school used to say, if your contract ends up in court, you've lost" -

I disagree - someone always wins and someone always loses (most of the time anyway), and in most jurisdictions in the U.S., a court action in contract carries the statutory right for the winner to collect his or her attorney fees and costs from the losing party (although I do aggree that an ounce of prevention is worth a pound of cure).

cfw

As many of you have stated Mr. Mallon is in a bad position here because of the cost of defending his contract and copyright. His position is even more precarious because he risks alienating his client that hired him in the first place. Weeks Marine may have been perfectly happy with the publication of the photographs initially but I doubt they want to find themselves in an expensive battle with AIG either. They may be a major client or part of a circle of clients for Mr. Mallon and he is acting on their behalf by complying with the demands of AIG regardless of the fact that they appear to be behaving like the quintessential "ugly American" corporation in this instance (and all others that I can think of). I hope this is resolved so these photos can be released and I also applaud Mr. Mallon for taking the professional high road here.

I've been told (from what I consider a reliable source) that most all of the in-house lawyers at AIG have quit and are looking for other work - rats abandoning the sinking ship so to speak. I do not know if the legal threats to Mr. Mallon came from in-house, or outside counsel, but at this early stage I'd guess they came from in-house. In light of this, even with limited resources, it might be worth it for him not to give in.

Mr. Mallon obviously does not want to cause his client needless headache and risk losing an account(s), and if that is a real risk, then a decision to back down on that basis is perfectluy understandble, even commendable. But at some point one has to stop and weigh the consequences of possible financial loss versus loss to one's personal integrity. I would at least want to know on what basis AIG demands pulling the photos. If they are not willing to at least provide a plausible explanation why, I would just ignore them.

cfw

"someone always wins and someone always loses (most of the time anyway)..."

Let's say I get stabbed by a mugger and I end up in the hospital for a week. The law was and is entirely on my side, but damn, I'm still in the hospital and may be grateful to be in the hospital rather than the morgue. Let's say further that I managed to break the mugger's neck and put him in the hospital for a whole month. You want to call this a "win" for me? The only "winner" in that scenario is the hospital.

As for who pays court fees, you understand that both sides pay their own expenses all the way through the trial. An award of court fees is a sort of reimbursement - and you have to WIN the case to get it.

From what's been reported here, I'm inclined to agree with all those who say he's got the technicalities in his favor. But this isn't a blog debate. He's getting nowhere with a letter to AIG that starts, "Dear AIG, the photographers over at TOP took a vote and they agree that you guys are jerks."

And even if Mallon could afford to fight, he might choose not to. It will take Mr Mallon some time and money - perhaps a LOT of time and money - to defend his rights here. It would be nice if he could acquire a champion with some resources or an attorney willing to defend him for free (where "for free" means, at the attorney's expense).

We photographers are mostly nice, peaceful, thoughtful folks. We've gotten legal advice on our contracts and we like to feel that we're secure. But you're better off with no contract, if you can do your job without misunderstandings or conflicts arising between you and the client, than you would be with a contract written by the head of Contracts at Harvard Law, if the other party to the contract decides to take a swing at you.

I wish him luck, I really do. I would really like to see the photos. Perhaps if he simply bides his time, it will blow over. That too happens all the time. Remember, the crash just occurred a few months ago.

It is so wonderful that we are bailing these losers out with our tax dollars while they collect huge bonuses from their failing company.

I really wish our government would just let this company fail. There is a reason they cannot stay in business on their own.

It's generally scary to do things which could result in having to become a defendant in a lawsuit, but it's not so scary to become the plaintiff. I wonder if it might not be possible for Mr. Mallon to sue AIG for infringement of his first amendment right to freedom of the press; as I understand it US law allows individuals to bring civil actions for infringement of their constitutional rights. He might have other causes of action too, depending on the facts.

An even better idea occurred to me just after I hit "post" on the above comment; if I were Mr. Mallon I'd consider simply sending AIG a bill for the additional rights they're requesting over and above those contained in the contract Mr. Mallon signed. Fair to everyone if there's a legitimate reason for AIG to want the photos to remain unpublished.

I meant "someone always wins and someone always loses" in the legal sense. Any civil court proceeding will exact a human toll on the parties, whether they win or lose (and your example of a criminal proceeding even more so).

But what if it wasn't AIG, but some insurance company in Bumblepants, Kansas? Is the human toll exacted any less? I don't think so. The cost might be a little less, but the time and anxiety expended are not.

So when do we stand up for ourselves, whether its exercising the right to publish one's photos or fighting some far reaching wrong? Only when it's easy and we have nothing to lose? If so, the bully wins.

cfw

Has anyone actually SEEN this letter?

If my client called me and asked "could I please not publish these for a while" I would certainly say sure. Even if it was a long time. No need to piss them off. The Lawyers letter is an attempt to get what they could have gotten with a simple polite request and not stirred up this mess.

AIG has no rights here at all, Stephen could release them to whomever he pleased for free IF and only IF, the orig. contract is not a "work for hire" as previously mentioned. The only thing that would scare me, as a photographer myself, is the US Gov being the majority shareholder for AIG... you never know what could happen come April 15... If the mythological "Men in Black" didn't come knocking first.

Are they going to try to stand up at litigation and say "prove it happened"???

One word: WIKILEAKS !

Good luck to AIG (or anyone) to get them off the net after that.

Hi, this is Simon from London can only think AIG have some possible insurance dispute with AA over the crash. Your pictures might either strengthen or weaken their case!

Above all they are your pictures. Are they safe? Please do not be 'brow beaten' in being told what you can or cannot do with them. Good Luck.

I am a lawyer who, among other things, works with media and publishing law. I'm certainly as outraged as anyone based on what's been reported, but what we really need to see is the letter itself. I'd like to see it posted here or, more importantly, forwarded to the Chilling Effects Clearinghouse at http://www.chillingeffects.org/ for analysis and comment by knowledgeable people.

I can think of some unusual cases where someone other than the photographer might be able to assert the right to keep the photos unpublished, but it would be good to just see what it is that AIG and/or other parties actually claim.

Thankx for all your info. I've linked to you in my report of this issue also, at www.visualartsjunction.com

I've enjoyed your great site.

Several years ago the New York attorney Ed Greenberg helped me ward off a series of spurious claims about my interiors photographs made by a wealthy real estate owner, the New York Yacht Club. (See http://warrenandwetmore.org/ ). Ed Greenberg's great, in my humble opinion.

I'm a Brit and know nothing of American Law, but after seventy years on this vale of tears I do know something of large organisations. The first thing that I would do is to duplicate the photos and give these to a friend to have his Mother put them in her bank. Then I would review the fire insurance on my office. Lastly, I would invite AIG to do something horrible to themselves. BTW. Has anyone looked at Google Cache?

Just ONE MORE reson WHY it is IMPORTANT to
eFile your © Registration ASAP.....
Then HE can have an attorney to protect HIS ©
rights...also.
w/o that he stands alone...
Did he file the Registration yet???
the sooner the better....

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