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Court observations about copyright infringement in photography

At our law firm, we represent professional photographers in the protection of intellectual property rights in their creative works. Our advocacy includes asserting copyright protections when others infringe on copyrighted photos such as by reproducing them without permission. This work is more important than ever given the ease of digitally reproducing an image online. 

In September, we wrote here about a recent New York federal case in which the court found copyright ownership in the heirs of the deceased photographer who took almost 3,000 pictures of Marilyn Monroe in a series of 1962 photo sessions at the iconic Los Angeles Bel-Air Hotel, rather than in the owners of Vogue magazine, where the images were published.

Copying of online images 

On November 6, the same U.S. District Court, the Southern District of New York, issued another opinion concerning copyright issues in photography. Michael Grecco Productions, Inc., v. Valuewalk, LLC, involves an online news site’s reproduction of a photo that had originally been published online accompanying an article by Barron’s. 

Barron’s had paid Michael Grecco, a well-known celebrity photographer, through his professional company, to photograph a portrait of Jeffrey Gundlach, a bond trader, for publication with an article about him. Per their agreement, Michael Grecco Productions registered the copyright to the photo and licensed it to Barron’s. It also offered the photo to others for a license fee. 

While there are many important issues in the case, ably covered in an article in Above the Law, we focus today on the court’s discussion of “substantial similarity.” 

Exact photos 

The court found that a reasonable jury would find the two photos are substantially similar, an element of infringement. The two photos were more than just substantially similar, they were identical and “clearly the same photograph,” according to the court, in a side-by-side comparison. 

The court shot down as “unquestionably meritless” the defendant’s argument that because they used different pixel sizes there was no infringement. Specifically, “[a]llowing infringers to freely use a copyrighted work with impunity if they only degrade its quality would enfeeble any force of the copyright holder’s limited monopoly.” 

The Michael Grecco Productions case is available on Westlaw at 2018 WL 5831311.

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