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Automatic TRANSCRIPT

David has researched and written on the issues. Regarding the case. Vivian Meyer's estate. In a previous conversation we focused on his recent case of Russell Brahma versus violent US productions. He's going to provide us with an update on this case. And then we're going to get into a conversation about his latest case regarding the estate of rural portrait photographer. Michael Calmer Anyway David. Welcome back to the show to have you back again. Thank you very much all right Where do we start on this one? Here I'd love catching real quick. Jump back in any update on the Brammer case. And maybe I can summarize real quickly It was a photo that was taken by a local washington-based Freelance photographer. It was used in the website for a film festival. Relatively Small Film Festival in that area and street scene at night and they it without permission and the there was some other issues regarding it and they took it they went all the way to court and you know nobody wanted to settle and David handle the case and wanted to be came a pretty big case so David. Take it from there. I think well it's The case did it was heard by the Fourth Circuit Court of Appeals The Court of Appeals Disagreed with the District Corps Ruling on the fair use issue so the case ended up back before the same judge. A judge Felton In the Eastern Eastern District of Virginia and I I would say probably a month or two out from from trial The case finally settled as yes so it was responsible for the reversal that the of the the initial decision in the appeals level. And when we spoke to you it's still hadn't gone. It was scheduled to go to trial again. And you're saying that of course it settled so that's it that's it did and and like a lot of things it it was. It was a relative in the grand scheme of things. It's a it's A. It's a pretty simple case. It's it's not a it's not a case with with potentially very high damages. It's a fairly modest case but You know like a lot of a lot of That ultimately service legal precedent. It's it's not address the issue it's it's IT'S A. It's a specific legal issue that neither neither party wants to budge on and so You know so so either hormones or or a higher has to rule on things so that that's that's that's absolutely what happened in this case so in this case then. It sounds like they're having settled. No decision has been made. I mean or does or does the decision of the appeal court. Stand up as precedent toss it. Does the the appeals? Court decision is president at Out Be Indiana turned out to be a published case Which means that informally There's a difference between A ruling by Hor whether or not it's on a motion or it's the it's the you know the decision liability and damages itself but there there's a there's a significant difference between what we what we call a published case or novice gays published case means that someone Either Lexis Nexis or west law. Those are the two main Kind of archivist. Yeah the someone someone at water both of those. Those companies deemed the issue and the case to be of some importance and therefore worthy of being indexed in their systems So that's what we describe as published case either much is you're gonNA find They they hold informally. They hold more weight when it comes to a future citations benchmark case. Essentially right it is it is it means something to every every case every order every every ruling by a core has legal precedent But public cases again it informally they they carry. They carry more weight and judges are are more There's no hard and fast rule but judges are more likely to follow Follow the guidelines always case rather than an envelope a public eight so yeah so in the end while the the the the result and the settlement was a fairly modest won their case was well worth following through on Ju just because of the the issues that the the appeals court cleared up. That's great I mean that's the president then no case so people can think twice before pulling the same thing theoretically so maybe I can ask you David then just to kind of summarize real quickly I remember when we spoke there was like four ways that were trying to defend the infringement. That's really great thing about the opinion. Is THAT APPEALS. Court touched on all the four elements and they they emphatically rejected the defendants' argument on all four of the elements that are to be considered for fair use. So they the defending this case a I mean they they place emphasis on on on more than just one so just just to. The big picture is the four main. The main parts of the various consideration our number one is the purpose and character of the US And specifically whether or not use was commercial in nature or nonprofit or for educational purposes. Just because something is used by nonprofit for educational purposes doesn't necessarily get you Get you a ruling of fair use but there is a different court of course have stated repeatedly. There is a difference between commercial nature versus educational purposes commercial. Nature is is kind of leans much more against various while educational purposes in and used by nonprofit weighs more heavily in in favor of various and they tried to clean themselves as a non profit and it was Kinda showing that they weren't in this no not necessarily in in this case they you know they're they're not an profit so they claimed they claimed that it was not commercial and use that somehow somehow there us on their commercial website was somehow noncommercial that this was somehow this was somehow this is a very. This is a very. They're they're a a million different variations of this argument which is well We have this commercial commercial website for our commercial business entity that is in is in the business of making money but we also have this this other part to our commercial website where it's just a blog and we just out of the goodness of our heart we we just. We're just we just want to be. That is the disseminators of of useful information for our clients. And therefore there's a there's a difference between those two. That's exactly what this defendant was claiming that it was informational So just pay the photographer. So that's number one element number two is the nature of the copyrighted work which means You know it was. The was a copyrighted work. A what in in the case of photo was it a one of a kind photograph of an event. That's only happened. One snowed in the past five hundred years and the photographer that took the photograph was the only person. The only person has the image. Or was it. A photograph of your manhole cover That's the difference. There is a difference between photographs off. All images are not created equal when it comes to a determination of fair use so the and this argument always really perplexes me. Because argument the defendant made in the branch will well. It's just a photograph of mistreats. Anyone can take stressing you have millions of different versions of this of this. Same average will meyer argument by my response. That is always well. That might be true. But you chose my clients photograph. You chose by Clients because it stands out conceivably you know It stands out. There is a It's higher quality. Does what you wanted to do. I mean that's the whole nature of selecting beat selective of the type of the type of visual material photographs or otherwise that people choose to to copy Situation where the quality photograph may not even be outstanding but the cropping of it lends itself to the final US better than any other cropping. Maybe was the only horizontal vertical and the only one that fit the format they needed. So that's unique to and you might be every every Photographer that's that shot for your a minimal. Amount of time knows this. Sometimes you're depending on your work Sometimes.