George Zimmerman Tangles with Copyright Law
The Painting on top of the Picture…
What is this all about?
As Tina Chen reported for ABC News,
George Zimmerman, the neighborhood watch captain who was acquitted of killing teen Trayvon Martin, has been selling his artwork connected to the famous case online. But now he’s under fire for using an Associated Press image as inspiration for one painting, without permission.
Photographer Rick Wilson says he was shocked and angered to find that his photograph of Florida prosecutor Angela Corey was “ripped off” by Zimmerman.
Wilson told ABC News that he finds the use of his photo “extremely disrespectful, if not illegal. George Zimmerman is not a professional artist, what he is in this situation is just a scam artist,” Wilson said.
The AP image Wilson took has been widely distributed across the Internet and in newspapers. It was taken when prosecutor Angela Corey was announcing that she was pressing charges against Zimmerman in April 2012. Zimmerman’s painting appears to be a duplicate of the photo, done in orange and red.
The story was also well detailed by the Orlando Sentinel.
Rick Wilson called me Wednesday morning, upset his image was being used for political commentary by George Zimmerman. And now his name was associated with his scandal. Rick is a friend who I met when he shot a series with me and NFL running back Rashad Jennings for the radio show I hosted for a couple years called Courts & Sports. Thereafter, Rick and I ran into each other when he shot photos of Ron Davis, Jordan Davis’ father, for Jet Magazine.
He is a very talented photographer. He has been featured in a chapter of a book and has a long career of the photographic arts. Read more about Rick here- https://tinyurl.com/3t3rsev.
Artists such as Rick capture a moment in time. Often, hours of work go into establishing a shot, not to mention the enormous investment that goes into equipment and training. Split second decisions are made during the shoot. Finally, during production of the image, there are hundreds of personal touches that make a photo truly that artist’s image. The courts have unquestionably upheld that a photograph is a copyright protected piece of property even if it only remains a digital image. It is owned by the artist and/or anyone for whom the artist is working. In this case, that is the Associated Press- or AP.
Here is the official AP licensed photo. As you can see, the AP granted rights “for editorial use only.” The photo was from State Attorney Angela Corey’s press conference announcing second-degree murder charges against George Zimmerman on April 11, 2012. You can purchase additional rights and uses from the AP, but Zimmerman did not.
Copyright law is a complicated body of law. Many different levels of protection exist.
Copyright is automatic. However, a photographer can register the copyrights of his/her photographs with the U.S. Copyright Office prior to the infringement (or within 3 months of the first publication of the photo). If the photographer fails to Register, a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. According to the law, “the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” Courts tabulate these damages based on normal license fees and/or industry standard licensing fees, as well as any profits the infringer made from the infringement.
It is certainly better to Register. If a photo is timely registered before an infringement, the Rights owner will be eligible to receive HEIGHTENED statutory damages of up to $150,000 for a willful infringing use. See 17 USC §504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC §505. The text of the law is located here- https://www.law.cornell.edu/uscode/text/17/504.
Including a copyright notice is actually not required for copyright protection, but it is a good idea. It serves as a reminder that the work is protected, as does some restriction from the ability to “right click,” “screen grab” or otherwise “capture” the photo. All of these measures add not only to the notice to the infringer that the photograph is protected, but show his/her efforts were deliberate misappropriation of the image from the rightful owner.
It is very important for copyright owners to take steps to protect their works, including lawsuits. Prosecution of unauthorized uses are a must in order to protect rights. Before filing a lawsuit, there are a host of remedies, including sending cease and desist letters and otherwise trying to achieve respect of the photographer‘s copyright.
Before George Zimmerman killed Trayvon Martin, an AP photographer, Mannie Garcia, took a photo of then-Senator Barack Obama while at an event with actor George Clooney in 2006. Faced with the possible landmark election of American’s first African-American President, Shepard Fairey used the photo on posters that he emblazoned with the word “Hope.” Once caught, Fairey argued that his conduct actually popularized a photo that no one would have otherwise cared about and that his use of the mundane photo constituted “fair use” under the law. The AP determined that Fairey used Garcia’s image.
Like Rick Wilson, Garcia was a freelance photographer. Like Rick Wilson, the AP hired Garcia to take photographs of the event where he took the misappropriated photo. AP Images syndicates photos to nearly every paper in the country. The AP’s news content is seen by half of the world’s population on any given day- thousands of papers, plus its plugged into by magazines, blogs and television media. The AP makes money through the granting of permissions of usages of its photos. Once in awhile, there is an image that wins the lottery and provides awards, prestige and financial windfall. Regardless of how popular the image is, the AP is still entitled to credit and compensation.
Like Rick Wilson’s depiction of Angela Corey, the purpose of the photo of Obama was to illustrate a news story, not for art. Fairey did not intend to make the poster for a news story. He also did not intend parody. Even if he did, it would have been parody of Obama, not parody of the AP photographer’s work. Thus, it would not constitute an exception.
Fairey sued seeking an affirmative determination that his use was fair. Many, including Fairey, argued that the Obama poster was transformative, saying “the poster that resulted was no longer a straightforward news photograph of Obama, but a stylized, blue pencil drawing that conveys an entirely different feel, a different Obama and which mimics the propaganda posters of the mid-20th century.” The AP’s counterclaim in 2009, asserted that “[the poster does] not alter any of the distinctive characteristics that make the Obama photo so striking.” In fact, it was much more “transformative” than Mr. Zimmerman’s depiction of “Angie.”
Had Shepard Fairey paid a fee to the AP instead, he likely could have obtained permission to use the photo. Instead, contentious litigation resulted. Ultimately, Mr. Fairey agreed that he would never use another AP photo in his work without obtaining a license from the AP. The parties agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms which remained confidential.
A separate suit arose out of the use of the image in clothing. The AP contended the T-shirt company sold almost a quarter million pieces of clothing between March 2008 and September 2009, bearing an image that copied the Obama photo. It also resolved. Don Juncal, president of Obey Clothing, said: “The Associated Press has an impressive archive of work provided by talented photographers. We look forward to working with those photographers, as part of our long-standing relationship with Shepard Fairey, to produce and market apparel with the new images that will be created. We have collaborated with other photographers and artists in the past, and hope that will be a successful endeavor for all parties.”
This wasn’t the first or last time this matter has gone to the courts. More details about this cans other cases are located here- https://lawreview.vermontlaw.edu/files/2012/02/13-Rosenfeld-Book-2-Vol.-36.pdf.
How did Zimmerman do it?
This all goes back to a guy named Jeff Sonksen. Last year, the Seminole County Board of County Commissioners named Jeff Sonksen Seminole County’s “Artist of the Year,” largely for his work painting a 400-ft. fence of various murals. At some point, Sonksen encountered George Zimmerman and has said in media interviews that he taught Zimmerman to paint by projecting an image onto a canvas, admitting he does little “free hand.” In fact, Sonksen has even acknowledged the legal liability of some of his own work on his Facebook page, saying about a drawing of Mickey Mouse, “Tell Disney not to sue me please.”
Unlike the Obama photo in some respects, the Zimmerman “painting” is a virtual replica of Rick’s photo. It was done by either projecting Rick’s AP photo and painting it or by printing the AP photo on canvas and then painting over it. Frankly, similar work could have been generated by overlaying layers of color via photoshop. We won’t know exactly how he did it until someone forensically examines the paining.
What is next?
Mr. Zimmerman has been sent a letter by the AP and Mr. Wilson, asking him to stop any dissemination of this painting in any way. The point is to stop this misappropriation and to have Mr. Zimmerman obey the copyright laws of the United States. We will follow and support the AP in every way, while preserving Mr. Wilson’s rights, as well. As this matter develops, we will continue to keep the public apprized. It is a very important, landmark case for the AP and artists like Mr. Wilson.
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