Sunday, May 07, 2006

Second Circuit Rules For Photographer in New York Times Infringement Case

Photographer Tom Dallal -- backed by a powerful amicus, or "friend of the court," brief from the Graphic Artists Guild and the American Society of Media Photographers -- recently won reversal by the Second Circuit Court of Appeals of a New York federal court's dismissal of his copyright infringement suit against The New York Times. For details, go to

On February 17, a panel of appellate judges ordered The Times to negotiate a settlement payment for usage fees of more than 1,000 of Dallal's images. For several reasons, I'm sorry to be reporting this important development in creators' rights nearly three months after the fact.

For one thing, this once again shows that the Second Circuit is quite willing to correct a district court judge's sloppy work in a copyright case -- as it did in 1999 in reversing the incoherent original ruling by Judge Sonia Sotomayor in Tasini v. New York Times (the Second Circuit's reversal was affirmed two years later by the Supreme Court). Of course the objectors are hopeful that the same thing will happen with Judge George Daniels' perplexing -- and essentially unexplained -- approval last fall of the authors' copyright class action settlement.

For another thing, it's good to see creators' organizations getting it right for a change. The facts of Dallal's case against The Times were a slam dunk, but unlike the sellout "associational plaintiffs" of the writers' case, the graphic artists' and photographers' groups stepped up to provide appropriate and effective support.

The third reason I'm delighted to have the opportunity to spread the word about Tom Dallal's victory is that the Second Circuit record is so juicy with illustrations of The Times' arrogance. At one point in oral arguments Judge Reena Raggi addressed Times lawyer Robert Penchina thusly:

[Y]ou didn't understand that when someone complains about unauthorized use of a photograph that they're complaining of a copyright violation? I mean, ah, you're not a hardware store, um, if there would be a party that I would think would understand copyright, it would be a newspaper, so I'm not sure I'm following the argument.


Are you suggesting really that when a photographer sends you an invoice that's got this comment on it about one time use only and is griping all the time and saying things like you're using it in an unauthorized manner, you gotta pay for it, that that's telling you, that's giving you a green light to go ahead, I mean is that what the reasonable inference from that is?


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