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Esperanza’s Boombox

by Paul Rapp on February 21, 2013 · 2 comments

A week or so ago I got a very agitato e-mail from the proprietor of one of those fine live music clubs in town. He’d just received a nastygram from a purported professional photographer hundreds and hundreds of miles away claiming that the club had stolen the photographer’s intellectual property, to wit, a photograph of a musician. The club had posted the photo on its website for a gig that took place last May. The ominous letter said there was no question that this infringement was willful, because the photograph appears on the photographer’s website with a big copyright notice and watermark, so the damages could be as high as $150,000, with an additional award of attorney’s fees, blah, blah, and blah blah. The letter included a copy of the original photograph, a screen capture of the club’s website showing the photo, and what was claimed was the copyright registration certificate for the photograph. The photographer said that litigation was “imminent” if the club didn’t immediately cough up $5000. Then there was a page and a half of various detailed technical demands on how to electronically preserve all the damning “evidence.”

Good lord. All this for a couple weeks of displaying a little photo on a website for a music club in Albany, NY.

When I finished laughing, I did a little digging and found out that the club’s web-person got the supposedly-purloined JPG from the band that the musician was appearing with, and the band got it from the musician’s Facebook page. And the JPG lacked any copyright notice or watermark. So the web-person assumed this was a promotional photo and used it for exactly what promotional photos are used for: to promote.

So, where does this leave things? Well, if the photo really was created by this photographer, OK, the club probably infringed. Copyright infringement does not require any intent on the part of the infringer, i.e. you can infringe without knowing you’re infringing. So there’s that. But, the law provides that if the infringer shows that he or she had no reason to suspect that he or she was infringing, the court can declare an “innocent infringement” and cut the damages to as low as $200.

Which is what I think we have here. The club’s web-person was given a promo pic from the band. All bands have promotional photographs, and they all carry an implied license that the photos can be used in various ways to promote the band. Duh!

There was no reason to think this was anything other than business as usual, no reason to think that this particular photograph (which wasn’t extraordinary or special in the least) was anything but a standard promo photo.

So I told Mr. Big Pro Photographer not to get his undies in a bundle and to just go away.

This is somewhat like what I deal with all the time with clients getting nailed by photo licensing libraries, most notably the Getty Archive, which has “enforcers” combing the web for unauthorized commercial uses of its hundreds of thousands of images, and then shaking down the perps for thousands of dollars in retroactive license fees. Typically, the images were found elsewhere online, through Google images or the like. Which doesn’t make it legal for people to use the photographs, something many people don’t understand, and their ignorance can be costly. Except here the club was provided the photograph by the band, which ostensibly had some legal authority to allow the photo’s use. The home team is innocent.

Compare this with the matter of jazz singer-bassist Esperanza Spalding and her boombox. She’s sitting on the boom-box on the cover of her Grammy-winning album Radio Music Society; she’s referred to it as her “totem”; and she’s selling T-shirts and other merch with the image of the boombox on it. Except it’s not a real boombox, but rather a sculpture—a wooden box covered with photographs so that it resembles a boom-box. Spalding bought the sculpture from a Brooklyn art gallery.

The photographer who provided the sculptor with the boombox photos asked that Spalding license the images and credit him, and has now sued Spalding in federal court for copyright infringement. As well he should. The fact that Spalding purchased the physical sculpture doesn’t give her any rights whatsoever to the copyright to the sculpture or the images on it, any more than buying a CD gives you ownership rights to the songs on the CD. And of course Spalding and her team know this. So, unless there’s some facts here we’re missing (this is all based on a New York Post article earlier this week, so it’s very possible that there are), Spalding’s refusal to pony up to a fellow artist with a legitimate beef is sad and reprehensible.

Paul Rapp is an entertainment lawyer who’s looking forward to hitting things with sticks with his Blotto mates at the WCDB anniversary party next Friday at Valentine’s Music Hall and Beer Joint.

{ 2 comments }

jameslanni February 23, 2013 at 3:35 pm

As this exchange below from the Jazztimes website makes clear, the author, as he usually does, drops hyperbolic condemnations without bothering to find out the facts:

(paste starts here)
“4 Comments

Feb 19, 2013 at 01:02PMMoe Shahheidari

Kevin Ryan did NOT create this artwork! At first it was a shame that Ryan Humphrey’s work was hijacked. We didn’t blame Esperanza Spalding because she probably had no idea, but this guy Kevin Ryan claiming that this is his work is plain ludicrous!!! I worked as Ryan Humphrey’s assistant when he created these silk screened “ghetto blasters” for his “Look for the dream that keeps coming back” exhibit at Kunsthalle Galapagos. Humphrey was the art director on every single piece in the exhibit. I personally worked with Humphrey to silk screen 150+ of these boxes for the show, which were the boxes used in the Esperanza Spalding photo shoot – without Ryan Humphrey’s consent. The image came from a photograph of a ready-made boombox found and signed by Humphrey. The photo was taken by Kevin Ryan as a favor, so if anything he was merely a technician on the project. Looks like Kevin Ryan is just an opportunistic person trying to capitalize on Humphrey’s hard work and Ms. Spalding’s unfortunate oversight. Kevin Ryan was right about one thing in his NY Post interview however… the album cover does look great!

http://www.brooklynrail.org/2010/11/artseen/ryan-humphrey-look-for-the-dream-that-keeps-coming-back

Feb 20, 2013 at 12:24AMMoe Shahheidari

CLARIFICATION: It was actually 100 boom boxes, not 150+. Also, this is just one fan’s humble opinion and not a reflection of Humphrey’s views on this subject. This statement stood out to me in the NY Post article: “Ryan, of Brooklyn, says he had given prints of his photos to sculptor Ryan Humphrey, who stuck them on the box for an exhibition at Galapagos.”

This is inaccurate, probably because the silk screening process is not well understood. These are not prints that Kevin Ryan provided that are for example glued onto the boom boxes (e.g. the box that Esperanza is sitting on top of on her album). The photo was part of the process to create a silk screen template, and the image in the photo that Kevin Ryan took is of a signed ready-made piece by Humphrey. Just like I was part of the process by assisting on the project. All of this was Humphrey’s work from beginning to end.

Feb 20, 2013 at 02:36PMrycore

These statements are factually incorrect. This person was not present at the photo shot of the boom box. The original photographs prove that the photographs are, in fact, of a real boom box, not a prop, not a model, not a copy, nor an artwork, none of which was, in fact, “signed”.

Feb 20, 2013 at 02:55PMJeff_Tamarkin

JazzTimes does not have a position on the case one way or the other. We are only reporting what was in the newspaper account”

(paste ends here)

It seems to me that a once-in-a-generation musician should be given the benefit of the doubt. Could the musician in this video really engage in “sad and reprehensible” behaviours as described?

http://www.youtube.com/watch?v=zGFx-wBUogo

Here’s adam kirsch in the latest New Republic writing on contemporary essayists (so called)

paste starts here:

“Sedaris’s selfishness is much like Jack Benny’s cheapness: a comic vice that we forgive because we know the difference between the performer and the performance.
Maintaining that difference is an art, and not all of Sedaris’s epigones possess it. The key to the art is hyperbole: by exaggerating his experiences beyond plausibility, the comic essayist signals the terms on which we are to read him.”

So the implausibility of the actions Rapp hyperbolically describes signals the terms on which we are to read him. The whole column is a joke, right?

jameslanni February 25, 2013 at 2:55 pm

The video link I provided may be one meta too many (it is worth a column?). Here’s the undoctored one:

http://www.youtube.com/watch?v=0NbtMCB5g7E