On April 7, 2010, various graphic artists, photographers, and their professional associations filed a class action lawsuit in New York federal court against Google over its Books project. The plaintiffs hold that Google is illegally scanning millions of books and other publications with copyrighted images in what the suit calls "the most widespread, well-publicized, and uncompensated infringement of exclusive rights in images in the history of book and periodical publishing" (http://asmp.org/pdfs/Google_classaction_20100407.pdf).
Plaintiffs include the following:
- American Society of Media Photographers (ASMP), the "premier trade association for the world's most respected photographers," with 39 chapters and 7,000 members in the U.S. (http://asmp.org/)
- Graphic Artists Guild (GAG), a national artists union with the mission to "promote and protect the economic interests of its members, to improve conditions for all creators, and to raise standards for the entire industry" (www.graphicartistsguild.org/).
- Picture Archive Council of America (PACA), "the trade organization in North America that represents the vital interests of stock archives of every size, from individual photographers to large corporations, who license images for commercial reproduction" (www.pacaoffice.org/).
- North American Nature Photography Association (NANPA), which "promotes the art and science of nature photography as a medium of communication, nature appreciation, and environmental protection" (www.nanpa.org).
- Professional Photographers of America (PPA), "the world's largest nonprofit association for professional photographers, with more than 20,000 members in 54 countries" (www.ppa.com/).
Six individual graphic artists and professional photographers have joined the suit "on behalf of themselves and all others similarly situated."
GAG's executive director, Patricia McKiernan explains that "on the one hand, we're given hope the government will make intellectual property theft a top priority for law enforcement; on the other hand, we're fighting in court to prevent what should be a clear violation of existing law."
A Question of Rights?
ASMP executive director, photographer Eugene Mopsik, believes the suit addresses two core issues: To protect the interests of copyright owners and to represent the needs of those artists "whose livelihoods are significantly and negatively impacted [and] deserve to have representation in this landmark issue."
The plaintiffs had initially filed a motion on behalf of photographers and graphic artists in November 2009, asking to join in the final negotiations in the $125 million class action settlement between Google and book publishers. Denny Chin, the presiding judge in that suit, denied their motion, advising the groups that he felt this was a separate issue ("[the] proposed settlement does not concern the rights of [visual artists] pictorial materials and it binds them in no way"), that they are not "entitled to intervene at this late date" in the Author's Guild et al v. Google Inc. case and advised them to file a separate action (http://thepublicindex.org/docs/case_order/ASMP%20denied.pdf).
ASMP "had even reached out to the authors in 2005 when ASMP tried (and ultimately failed) to be a part of that suit," notes Jane Stimmler, representing one of the plaintiffs, "Filing the suit at this time was the only way for ASMP to have a standing in the case."
Seeking a piece of the settlement monies, Mopsik notes that they feel their "situation is pretty much identical to the authors." Citing Google's "brazen acts of willful copyright infringement," their suit is demanding $180,000 per infringed work and an order stopping Google's scanning projects as being in violation of the Copyright Act.
Copyright Becomes a Global Problem
The lawsuit, and some bloggers, charge Google with far more than working to create a new Alexandrian library for the masses. The lawsuit claims that Google has "conceded that it has already scanned over 12 million books in their entirety and has identified 174 million books that it may similarly reproduce, distribute, and publicly display." Google is trying to control or expand access to virtually all information in the world," University of Colorado's Scott Moss notes in a recent New York Times article, "It isn't surprising that their settlement with written authors doesn't end all their legal battles" (www.nytimes.com/2010/04/07/technology/07google.html).
In France, Google recently lost a case in a lower court in a claim that its Books scanning project represented a copyright infringement (www.nytimes.com/2010/04/01/world/europe/01briefs-Francebrief.html). Pamela Samuelson, University of California Berkeley law professor and digital copyright expert, believes the French judgment won't stand.
In Great Britain, efforts to pass the controversial Digital Economy Act 2010 were met with opposition from the graphic arts community; which rallied to remove Clause 43 from the legislation. Clause 43, they felt, would have allowed "anyone to use your photographs commercially, or in ways you might not like, without asking you first" (www.stop43.org.uk/).
Looking for Fairness
"This case is about fairness and compensation," notes ASMP's legal advisor James McGuire, a partner in the Mishcon de Reya law firm. As with other sectors of the publishing industry, graphic artists and photographers are facing new realities in a world in which anyone can (and does) post photos, graphics, and artworks on websites open to any user. "We are not trying to crash the party or influence what is happening with the other class action case. We just want to get the best possible result for this class of plaintiffs, who have been left out in the considerations until now," McGuire continues.
"Google has a better fair use defense in this case than in the Author's Guild case, and it will be difficult to certify a class here because Google is not displaying photos or other visual images unless they believe they have permission, which maybe they do under contracts with publishers," Samuelson notes, "Insofar as the important question in the case is whether the publishers had authority to allow Google to make these displays, it will depend on contract language, which will probably mean that there is insufficiently commonality or interests and typicality of claims to allow a class lawsuit to proceed."
The larger issue for visual artists of all types has to do with the changing environment in which they work. Digital cameras, web publishing, electronic versus print publications are issues that many of these professionals and their associations have still to grapple with.
Copyright protection has always been a major focus of the graphics community, notes GAG president John Schmelzer. "It's our reason for being and always has been. However, I think that the digital era has so vastly expanded outright theft that many responsible industry leaders see the benefit of addressing the threat on a unified basis as we did in this lawsuit."
"Google has not only been a target of lawsuits because it has a lot of money, but also because they have pushed the envelope on a number of fronts, nowhere as much though as with Google Books," Samuelson believes. "No other country has as capacious a class action procedure as the U.S."
Google, at this point, doesn't seem to be breaking a sweat over the latest lawsuit. "We are confident that Google Books is fully compliant with U.S. and international copyright law," Google spokesperson Gabriel Stricker tells us. "Google Books is an historic effort to make all of the knowledge contained within the world's books searchable online. It exposes readers to information they might not otherwise see, and it provides authors and publishers with a new way to be found."
"What we need," Samuelson points out, " is less litigation and a better low cost way to make licensing easier and rights holders who are willing to experiment with digital media products and services ." ASMP seems to believe this as well, having initiated a copyright symposium series for their members. "The purpose of the symposium is to start a conversation going forward on this topic," notes Stimmler, "ASMP plans to make that discussion a continued priority."