The modernization of putting cameras in cell phones allows anyone capable of capturing images the ability to produce an untold number of photos, all of which can be easily disseminated. This innovation in photography begs the question of how effectively has copyright law responded to technological change and is this new class of photographers receiving the protections they deserve?

Copyright and intellectual property law are the foundations of the photography industry. However, there are degrees of ineffectiveness regarding our modern copyright law that poses many problems for photographers. The Federal Bar Association is pleased to present at its annual Art Law & Litigation Conference on February 7, 2019 in New York City a panel on photography and copyright in the digital age. Register today at www.fedbar.org/artlaw19.

One of the more colorful cases of copyright in the digital age involves President Trump, who dropped in, uninvited, on a wedding reception in 2017 at Trump National Golf Club in New Jersey. Guest Jonathan Otto, a vice president at Deutsche Bank, snapped a photo on his iPhone of President Trump and later texted it to fellow guest Sean Burke. By the next morning, the photo appeared on Instagram and other sites, including Esquire.com. Otto filed an infringement suit against Hearst Communications, the publisher of Esquire, and the court held that Esquire’s parent company Hearst Communications is liable for copyright infringement. (A trial will determine damages.)

The court ruled that the photo that ran on Esquire’s website in a story titled “President Trump is the Ultimate Wedding Crasher” didn’t constitute a fair use. U.S. District Judge Gregory H. Woods in New York stated that seeing how viral the photos went, there was indeed a market for Otto’s work and he could have profited from licensing the photos had the media not taken them without asking. Otto has already settled with other publications, with one agreement resulting in a retroactive licensing agreement.

“It would be antithetical to the purposes of copyright protection to allow media companies to steal personal images and benefit from the fair use defense by simply inserting the photo in an article which only recites factual information – much of which can be gleaned from the photograph itself,” the judge wrote.

In granting summary judgment in Otto’s favor on the issues of infringement and fair use, the decision stands as a warning for using photographs in the digital age. “Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work,” the court stated. The fair use exception to copyright infringement in other cases has been successfully used against photographers who file a copyright lawsuit over stolen images.

The popularity of social media along with advances in digital imaging and publishing has provided an infinite number of platforms to promote – and unfortunately make it easy for others to purloin – a photographer’s work. The FBA’s panel of lawyers, photographers, artists, and industry insiders will discuss the challenges, trends, and strategies to protect image rights and appropriately license image use. Speakers at the Art Law Conference will survey what problems social media has created for those photographers that seek to enforce the copyright of their images. Panelists will discuss recent judicial decisions and congressional action impacting copyright laws as they relate to photographs and new technologies.

Photographers and artists must retain an incentive to create. When the economic incentive accompanying a photograph or work of art is removed, creators may be forced to abandon the craft for more pragmatic endeavors. The Art Law & Litigation Conference is not just a symposium for lawyers. This conference is vital for anyone in business that uses or creates images. Understanding the ins and outs of copyright is an asset to your business. Sign up today for the Art Law Conference at www.fedbar.org/artlaw19.


Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.