Photographer Ken Light Loses Unfair Business Claim Against Gore's Current Media

 

By Chuck Gathard
© 2010 News Photographer magazine

SAN FRANCISCO, CA (April 19, 2010) – A San Francisco court ruled today that Current Media, a company founded and chaired by former U.S. vice president Al Gore, did not engage in unfair business practices by failing to provide photographer Ken Light a picture credit adjacent to an image of executed Texas convict Cameron Todd Willingham when it referenced a New Yorker magazine story on it's Web site, www.current.com.

Current Media is the parent company of Current TV and current.com is the online division of Current TV.

Current Media appealed a February 8, 2010, small claims court ruling awarding Light $588. The photographer had originally sought $6,500.

During the appeal hearing on April 14, David Harleston, executive vice president of business affairs for Current Media, argued the small claims court erred as a matter of law in the earlier decision, saying publishing Light's photograph on its Web site did not constitute unfair business competition.

Harleston argued that Light was prosecuting a "thinly disguised" copyright infringement claim in the wrong jurisdiction, and he said use of the image was allowed under the fair use doctrine of federal copyright law. He also argued that using the image did not constitute an unfair business practice under California statues because the use wasn't "immoral, corrupt or deceptive," or done with the goal of destroying or preventing honest competition, which the statute is meant to protect.

Copyright infringement cases are heard in federal courts, not state or local jurisdictions.

Light, who has been an NPPA member since 1991, argued that Current Media limited his ability to license the image to others because the picture didn't have an accompanying photo credit.

"If people saw the photo, they wouldn't know who shot it and wouldn't know who to contact to license it, and would therefore be more likely to just steal it," Light said.

As is typical with small claims judgments, the court today did not provide a rational for its decision.

"This fight is worth continuing. This is just a small salvo over the heads of people who feel it's unimportant to pay for the work they use," Light said. "I won't be deterred."

Light called for all "media workers" to pursue issues like this more vigorously.

Representatives for Current Media declined requests to comment for this story.

The dispute began last October when Light discovered his photograph of Willingham displayed on the www.current.com Web site. The picture ran without credit above a short blurb praising a New Yorker magazine article. The blurb included a link back to the article's online version. Light had licensed rights to The New Yorker for the image.

Light contacted current.com and requested payment and photo credit. According to Light, he finally received an eMail reply from Jeff Park, Current TV vice president of business and legal affairs. In the eMail, Park claimed that running the photograph was authorized under the copyright doctrine of fair use and likened it to the way Google references pictures in its search results.

"Their perspective is that they aren't doing anything wrong," Light said.

Current.com displayed Light's photograph on its site using a method called "in-line linking." The method references images on other Web sites without actually copying the image to the displaying Web page's server. It is a common practice used by bloggers, news aggregation Web site, and search engines. In a 2007 case the U.S. Court of Appeals for the 9th Circuit ruled that "in-line linking" does not constitute a violation of copyright.

But Light decided not to seek relief under federal copyright law.

"I've come to the conclusion that copyright act is very flawed for photographers as small business operators because the cost and time and effort of going to federal court is huge, and it takes years," Light said.

Instead, the photographer talked to lawyer friends and decided to take Current Media to small claims court alleging unfair business practices under the California Business and Professional Code.

"My theory is that I've lost value of my image because my name does not appear under the photograph as it should, and as it has under every use that has been licensed by me. This is standard business practice," Light said. Like many other photographers, he charges licensees a higher fee when they don't provide a adjacent photo credit.

"I expect that when my pictures get used for stories I get paid for them. It was pretty clear that they felt they could do what they wanted and they were not going to remove it or pay for its use," Light said.

"I think all along they've been looking out for their own interest, which is sad because they are a media company and if a media company destroys the sources of their content, who's going to provide them content?"

Adding an ironic twist to Light's story is the fact that Gore's wife, Tipper Gore, is herself a photojournalist and at one time was a staff photographer for The Tennessean in Nashville before her husband became a national politician and then a business executive.

Light subpoenaed Current Media's chairman Al Gore to appear at the hearing, but he did not appear.

"The buck stops with him [Gore]," Light said. "Whether he's made those decisions or not I don't know, but in the end he's the one who is responsible and the one who needs to have a sense of what's happening within that organization."

"Teaching and writing about this stuff I felt compelled not to walk away. This is one of the biggest problems facing young journalists today. How are we going to continue to do this work if the value of what we do is taken away from us?"

 

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