It appears that a coalition of photogaphers and illustrators led by the American Society of Media Photographers is about to file suit against Google for copyright infringement based on the Google Books project. You may remember the dispute a few months back about whether these groups would be allowed to intervene in the current lawsuit. They were upset at being excluded from the settlement, which currently applies only to textual materials. Given that the parties responded to this objection by saying that the visual artists wouldn’t be hurt by the settlement since they wouldn’t be bound by it, they were all but inviting the artists to file their own lawsuit. Looks like that bluff has been called.

The central fact distinguishing this lawsuit from the Authors Guild suit is likely to be the fact that Google isn’t indexing or displaying pictures. On the one hand, this is an argument in Google’s favor: it’s not doing anything that cuts into any kind of market for the images. This is true copying in the abstract. On the other hand, doesn’t that tend to undermine the fair use claim? Google can’t claim the benefit of a transformative purpose in the images, since it’s not offering a search service tied to them. On balance, I’d be inclined to call the digitization of the pictures a fair use, on the theory that it’s a necessary incident to the fair-use digitization of text for the transformative purpose of indexing. You can’t scan the text without also scanning the pictures. But that’s tentative and potentially contestable—and we’ll see, soon enough, what the visual artists are actually alleging.

A few paragraphs from the Financial Times story:

The American Society of Media Photographers and a number of related trade associations are expected to file the case against Google on Wednesday in the US District Court for the Southern District of New York.

The action is separate but similar to a class action that is the subject of a pending $125m settlement filed against Google by authors and publishers related to the Google Library Project, which aims to scan some 18m books on to an online database. Photographers and illustrators were not allowed to join the existing class action suit, and have opted to file their own case.

“Google is scanning in books and publications with visual images, which impedes the rights of the copyright holders of those images. We are seeking compensation for that,” said James McGuire, founding partner of law firm Mishcon de Reya, who is leading the case.

Hat tip: Resource Shelf

Complaint here: http://reporter.blogs.com/files/complaint-2.pdf.

if allowing photographers and other visual artists to intervene would, as the Court stated, “put the entire settlement at risk,” it is because, in ASMP’s view, the settlement is fundamentally flawed and should not be approved by the Court. ASMP regrets that the Court did not recognize this unfairness and, instead, opted to deprive the visual arts community of the opportunity to participate in crafting a settlement

reminds me of those wedding farces , “dos anybody know of a reason this union should not proceed?”- six men & women and a sheep all stand up and shout he/she is already hitched to me and BarbBarraa is feeling betrayed.

I’m curious to know where you stand on the issue of Google Translate, which translates any website at the touch of a button into one of numerous language options. While the translation is often gibberish, nonetheless it is doing something that publishers often get for a license fee. Yet, I have not heard of a single complaint.

Here is this blog page translated into Portuguese:

http://translate.google.com/translate?js=y&prev=t&hl=en&ie=UTF-8&layout=1&eotf=1&u=http%3A%2F%2Flaboratorium.net%2Farchive%2F2010%2F04%2F06%2Fgbsphotographerstosue&sl=en&tl=pt

One argument is that books without images can be significantly less valuable or helpful to the reader in many cases.

If the only way to get included in a settlement is via another lawsuit then that might allow publication of books with images as originally published.

However it would also raise the thorny question of whether one individual photographer could prevent publication of a book with just one of their images.

Also it implies addressing the orphan works problem for photographs which is much more difficult than with books. At least with books you have an ISBN number and a named author even if they cannot be found.

The state of machine-only translation is currently not very good. It’s adequate for things like buying from a foreign seller on eBay, where you are already familiar with the usual concerns and procedures regarding shipping and payment, so an awkward translation of the seller’s eBay listing doesn’t matter much. Good translation of a book is much more difficult. In my experience doing translations, it’s almost as hard as writing the book to begin with.

I do suspect Google wants to improve its machine translation tool and yes, this does raise copyright conflicts because translation is usually a subsidiary right covered in the contracts between author and publisher. Or several rights. For example, an author familiar with a given foreign language may retain translation rights to that language, so he/she can personally translate to it, while licensing rights to translate into other languages to the publisher.

The only thing that surprises me about the photographer and illustrator suit, is that it took them so long to get around to it. Google is not harmlessly “indexing” books—although I’d hardly call including portions readers can routinely use for information instead of buying the book, harmless to copyright holders.

The Settlement, if approved, would enable Google to publish entire books as e-books, print-on-demand books, and as parts of e-bundles sold to libraries. Including books neither opted into or out of the Settlement and therefore declared—by Google—to be conveniently “orphaned.” Many how-to, technical, and coffee-table books make very little sense without their illustrations, and I have never believed Google would publish them without those illustrations. I’ve always believed Google would just use the illos and dare photographers and illustrators to sue.

David, At the Fairness Hearing, I made the point that books without images are less valuable. I was speaking particularly about children’s books, to argue that the Amended Settlement Agreement, (which excludes illustrations in children’s books when the illustrator is not also the author, but not in books of author-illustrators) treats similarly situated class members (children’s book authors) differently.

I was discussing children’s book illustrations because the treatment of these illustrations when they are “inserts” under the settlement had been changed in the ASA. But the lack of thought and inconsistent handling of illustrations in all books is yet another serious problem with the proposed settlement.

I think that people tend to forget that there are many cases where the illustrations (including photos) are already covered by the settlement. The language in the ASA that excludes illustrations deals only with the definition of “inserts” (basically things that were not written by the author of the primary work), and illustrations are not excluded under the definition of “book”. So any book where the author is also the illustrator (or even a book with no words) is included in the settlement.

I don’t know where that leaves your argument about “copying in the abstract” James. What I do think all this shows is that the way the Authors Guild thinks about books is another reason why the class representatives cannot properly represent the huge diverse class in this case. Illustrations are a major element in all sorts of books — for adults as well as children; yet somehow this fact keeps getting forgotten in discussions of GBS.

A visual artist has a perfect right to refuse to allow an image to be published. If the rights to the book’s text is owned by one author, who has opted into the Google Settlement, but the illustrations are owned by a visual artist who has not agreed to let Google publish them, then it’s just too bad for “the public” if they can’t get that book with images. Sorry, “the public’s” need or desire for e-books does not trump the rights of creators to control use of and payment for their work.

Images not published in books are often uncredited, though this is hardly the same as “orphaned.” The creator of the work may still be very actively interested in selling it. Not knowing who created the work is no excuse for seizing it.

However, images published in books are very often credited, if not in bylines under the photos or illos, on an acknowledgments or copyright page.

The Complaint is filed in New York and assigned to Judge Chin. This is a de facto joinder/consolidation/intervention in the original GBS which Judge Chin cannot side step. No doubt secret negotiations are pending between these photo-graphers, illustrators, map makers, etc and Google , and delays in the GBS Fairness Ruling from Judge Chin is inevitable. Maybe he’ll pass both cases to another judge if he steps up to the 2nd Circuit? But a quick, or any decision on the pending GBS now seems very, very unlikely.

Francis, I think I didn’t make myself clear enough. The situation you are positing cannot happen under the ASA.

My point was that the the class under the ASA includes illustrators if they are also the authors of the book in which their illustrations appear. The class does not include illustrators who are not also the authors of the books where the illustrations appear. So you cannot have a situation where the author opts in and the illustrator opts out.

Nonetheless, the text of books where the illustrator is not the author will appear in Google Books — but without the illustrations. So books like The True Story of the Three Little Pigs, where Lee Scieszka is the author, but not the illustrator appear in Google books with no illustrations. (This book is a particularly ridiculous example of what happens because much of the text is written in letters that are also illustrations that little of even the actual text appears in Google Books. That’s why I used it as an example when I spoke at the Fairness hearing.)

I guess what I’m saying is that the concern here is not about a visual artist having a right to refuse to have his/her illustrations included. The concern is that books with illustrations are treated differently depending on whether the illustrator is/is not also the author.

What has actually happened in the case is that, under the ASA, visual artists who do not opt out of the class and are also authors of the books in which their art appears lose the right to keep their art out of Google Books, while visual artists whose work appears in books they did not write never got the opportunity to be/stay in the class, so their work does not appear in Google Books.

To me, this division of visual artists doesn’t make much sense, and will mean that a lot of books — for adults as well as children — won’t be very appealing on Google Books. Moreover, the authors of such books are less likely to receive benefits under the ASA because no one will want to pay for their books without the illustrations.

Sally,

As far as I know, Google has made no legal guarantees whatever not to use the work of those not in the Settlement. Even if their class was not included in the Settlement to begin with, even if they were globally opted out (such as most foreign copyright holders), and even if they explicitly and individually opted out. Furthermore, Google is doing everything as massive batch processing. Their database is a mess, and I doubt they even check whether the author is also the illustrator.

Therefore, I seriously doubt that the works of photographers and illustrators not included in the Settlement will be carefully weeded out of the books containing those illustrations. I suspect the photographers and illustrators who filed the new suit have the same doubt and filed the suit for that reason.

Is the text of their suit on the Public Index? I’d like to see its documents included too.