Fashion photos: despite brawl, copyright belongs to photographer

Tang v. Putruss, --- F. Supp. 2d ----, 2007 WL 2909459 (E.D. Mich.)

Plaintiff Tang is a photographer. Defendant Putruss is the principal of Maria’s Collection, which sells designer clothing, and defendant Pageantry publishes a trade magazine. Tang and Putruss arranged a photo shoot in August 2005. According to Tang, each photo used would credit Tang, and partial payment was made in advance. When the images were delivered and the balance paid, Tang was going to issue a license. Putruss gave Tang a $2000 deposit, leaving a $2000 balance.

At the photo shoot, more images and dresses were used than the parties anticipated. According to Tang, their agreement provided for extra fees for extra hours and dresses, such that his remaining fee was $5050, not $2000. A few days later, Tang sent two “associates” to pick up the balance and hand over the images, but Putruss refused to pay and forcibly took the DVDs on which the images were stored. Putruss was charged with assault and battery against one of Tang’s associates, and pled no contest.

Tang alleged infringement of his public display right. He also alleged that he told Pageantry that his images were unlicensed, but Pageantry still reproduced one in its Winter 2005 issue.

Among other things, the court ruled on questions of joint authorship and the number of works infringed for purposes of calculating statutory damages.

Putruss was involved with the photo shoot, selecting the models, the gowns, and the accessories for each. He also requested certain poses and made suggestions. Regardless of the extent of his contributions, however, Tang argued that they didn’t intend to be joint authors, and that his contributions were not independently copyrightable. The district court determined that it would apply the requirement that a person contribute independently copyrightable material in order to be considered a joint author, but in the end that wasn’t important, because the court found insufficient evidence of intent to jointly author the photos.

The court reviewed prior cases involving photographs. In SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301 (S.D.N.Y. 2000), the court found that the defendant frame manufacturer was not a joint author of photos taken by a photographer hired to take photos of framed mirrors. There, the photographer selected all the equipment, arranged the lighting, and chose the framing. The manufacturer’s selection of subject matter and right to control the photos were insufficient, especially in the absence of other evidence such as joint credit or copyright notices on the work. In Brod v. General Publishing Group, Inc., 32 Fed. Appx. 231 (9th Cir. 2001), by contrast, the court found joint authorship, where the defendant asked the plaintiff to take photos of vintage TVs for a planned book. Along with coming up with the idea, the defendant arranged the composition, directed the plaintiff to change camera angles, and enhanced the images; he even looked at an initial Polaroid test photo of each image and made suggestions before the plaintiff took the final version. This was sufficient artistic control to be a co-author. Moreover, the plaintiff “deferred” to the defendant and listed the completion date in the copyright registration as the date the book was completed, providing objective evidence of an intent to co-author.

The court found Putruss’s level of artistic control closer to that in SHL Imaging than Brod. Though Putruss offered suggestions that Tang accepted, he didn’t exercise “a high degree of control.” He was responsible for the subject matter of the photos, not the taking of the photos themselves. The court specifically noted that Tang supplied the photographic equipment – a use of professional status to indicate authorship – and arranged the lighting.

Moreover, Putruss lacked objective indicia of an intent to be joint authors. The parties’ contract was silent on authorship, but made clear that the images would be delivered when payment was received. Tang’s ability to withhold the images indicated that there was no intent to be joint authors. Tang’s other actions shortly after the shoot – registering the copyright in his name, telling third parties not to run the photos -- are consistent with sole authorship.

However, Putruss had an implied license to use the images on the first CD, the one Tang voluntarily delivered to him with the intention that Putruss could copy and distribute them. Tang’s remedy for Putruss’s failure to pay for those is a breach of contract claim.

The court ruled, based on the existence of a single registration and the “independent economic life” doctrine, there was only one “work” for damages purposes. Photos of models wearing Putruss’s line of dresses have no independent economic value, even if each photo has artistic merit. They were taken at a single session, by a single photographer, for a single purpose. So Tang is only entitled to one award of statutory damages for the photos as a whole. Thus, the implied license finding above amounts to a finding that Putruss had a license to sample a particular portion of the work, but not to use other portions.