New York City Law Blog

Your Civil Rights Are Precious

Copyright Your Artwork

Years ago, I filed a copyright lawsuit on behalf of a photographer. The case settled. I do not specialize in this area, but I’m willing to try again. My first civil rights case involved the free-speech rights of artists and their ability to sell on my City’s streets. Sadly for me, the firm I worked for decided it had to give up the case as, allegedly, it chafed with another client’s goals. But the better news is that the artists, represented by other firms, won on appeal at the Second Circuit Court of Appeals. Bery v. City of N.Y., 97 F.3d 689 (2d Cir. 1996). The City later modified its “time place, and manner” regulations for street vendors; the new rule was deemed constitutional in Lederman v. N.Y. City Dep’t of Parks & Rec.,731 F.3d 199 (2d Cir. 2013). But things are undoubtedly better now than they were before the first decision. Robert Lederman, a plaintiff in both cases (and the named plaintiff in the second), was the artist I met in connection with the case that would become Bery. Mr. Lederman would have been the lead plaintiff in the case had my former firm not recused itself. Here is a photo I took of some of his work after his first win on the street of Soho:

This picture is of the pre-9/11 Giuliani, who was generally considered a dictator at the time, but before Oprah named him “America’s Mayor” and before he became a screaming imbecile. ©Robert Lederman (actual images) and ©Gregory Antollino (photograph).

Grafitti artists recently won a massive judgment under the Visual Artists Rights Act (VARA). Here’s an article: https://tinyurl.com/artists-win Grafitti is art. It varies by location, but in one comune in Italy, Orgosolo is known for its saturation of public art all over town. Orgosolo is in the center of Sardegna. Here is a shot I took in Orgosolo, plus a couple from Johannesburg, South Africa.  ©Gregory Antollino.

I know how hard artists must work to retain the right to be artists,  how hard it is to make a living on art alone.

I dabble in creative writing and photography and know it would be economically harmful to give up practicing law and start hawking my artistic wares. I sold one photograph at a sidewalk moving sale for $6. Another framed triptych of donkeys that I offered for sale at an exhibition. One potential buyer made an offer. Though I wasn’t expecting to sell anything, I surprised to learn he would not even pay the cost of the frame. So I still have it. People don’t understand art and understand photography less. Here’s one of the donkeys in the tryptic that I took at a donkey sanctuary on Cyprus. ©Gregory Antollino

People think photos are there for the taking, especially if are on the internet. Once an acquaintance, who writes well and has a radio show used a photo I took for him as if it were his. He should have known better. I took the photo as a friendly gesture and he put it up as his Twitter “cover” photo.  I didn’t expect any payment, but he did this without telling me, asking for permission, or giving me an ounce of attribution. This reflects the mindset of people who don’t understand that photography has value, and is an art of value. The thirty minutes I spent looking for the street sign and taking the picture was the work I did to create the photo. It’s really nothing special, but just like when I followed the road to the donkey sanctuary. I was in Bari, Italy, and he told me the street was there. I looked up the street on Google Maps (or its 2008 equivalent). Here it is:

It’s no Michaelangelo (pun intended) but an example of the arrogance of people who should know better. (The picture was there for years. The acquaintance never gave attribution or thanked me.) Sour grapes? No. This was an image of little artistic value, let alone economic value, but that the acquaintance used it to promote his Twitter feed – the sine qua non of establishing an online presence – without attribution reveals a common state of mind about photography.       

Recently, I listened to an excellent podcast on the misuse of photographic images. The lawyer interviewed got an excellent result in the Fourth Circuit Court of Appeals. Here’s the second interview with the lawyer on Master Photography Podcast. He discussed the decision and the result after the Appeals Court sent it back to the trial Court. The decision is here: Brammer v. Violent Hues Prods._ LLC_ 922 F.3d 255 (4th Cir. 2019). Here’s a link to another podcast detailing how one can copyright her photos from The B&H Photography Podcast under Google’s new rules, which Google’s algorithms insert a tag that says “May be subject to copyright,” or “May be licensable.” (The correct adverb is “might,” which means an unknown, not “may,” which suggests the permissive but forget about that for now.) It turns out this is true. I put up a Black Lives Matter photo I took in New York this summer on my “Google My Business” page and it got over 1000 hits. No offers yet, but even though I hadn’t edited the metadata (bad me) maybe because it got  many hits, Google inserted the tag “May be subject to Copyright.”

And it is. 

BLM Photo

©Gregory Antollino

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