Photographers and Graphic Artists File Class Action Copyright Infringement Complaint Against Google

April 7, 2010. The American Society of Media Photographers (ASMP), Graphic Artists Guild (GAG), Picture Archive Council of America, and others filed a complaint [22 pages in PDF] in the U.S. District Court (SDNY) against Google alleging copyright infringement in connection with Google's scanning, storing and distribution of books and periodicals that contain copyrighted photographs and other visual works.

The plaintiffs seek to represent the class of all persons and entities that own the copyright and/or the relevant exclusive rights in an original visual work, such as a photograph or illustration, published in books and/or periodicals.

The ASMP stated in a release that "This action by ASMP and its sister organizations was taken in order to protect the interests of owners of copyrights in visual works from the massive and organized copying and public display of their images without regard to their contributions and rights to fair compensation."

Victor Perlman, General Counsel of the ASMP, stated in this release that "We are seeking justice and fair compensation for visual artists whose work appears in the twelve million books and other publications Google has illegally scanned to date. In doing so, we are giving voice to thousands of disenfranchised creators of visual artworks whose rights we hope to enforce through this class action."

The GAG stated in a release [PDF] that "At issue is Google's recent digitization of books numbering in the millions for the benefit of the Google Library Project. Most of the books included protected visual works. Google has negotiated a settlement with the text authors and other rights holders whose work was unlawfully digitized but left thousands of visual artists without any compensation."

The sole defendant is Google. The complaint does not name as defendants the libraries that are allowing Google to scan and digitize books from their collections, including the University of California, University of Michigan, University of Virginia, University of Wisconsin, and Stanford University.

The complaint states that "These books and periodicals contain photographs, illustrations, graphic art, and other visual images protected by copyright law. Google has stored for its own commercial uses, both known and unknown, a digital copy of the books and periodicals and the visual works therein and has electronically distributed and publicly displayed the same."

The complaint continues that by scanning and creating a digital copy, storing a digital copy, and distributing and publicly displaying these visual works, "Google has infringed ... the various exclusive rights in" these works.

Count One of the complaint alleges copyright infringement in violation of 17 U.S.C. 501. It further alleges willful infringement.

The complaint seeks actual damages, statutory damages in a sum of not less than $30,000 per visual work infringed, and for willful infringement statutory damages of $150,000 per visual work infringed.

Count Two alleges that the plaintiffs are entitled to an "injunction barring Google from continued infringement of the copyrights" of the plaintiffs and the class.

Count Three seeks declaratory relief -- a judgment declaring that Google infringed and continues to infringe the copyrights of plaintiffs and members of the class.

The just filed case is American Society of Media Photographers, Inc., et al. v. Google, Inc., U.S. District Court for the Southern District of New York, D.C. No. 10-cv-2977, Judge Denny Chin presiding.

Author's Guild and AAP v. Google. The Author's Guild filed a class acton complaint against Google in the U.S. District Court (SDNY) on September 20, 2005. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.

Various large book publishers filed a complaint against Google in the same District Court on October 19, 2005. See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005. Both complaints allege copyright infringement in connection with Google scanning and distributing books.

Groups representing photographers and other visual artists are not plaintiffs in either of those complaints. Nor did they file their own complaints in 2005.

See also, story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005, and story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.

Google, the book publishers and Author's Guild announced a settlement agreement on October 28, 2008. Class action settlements require Court approval.

See, amended settlement agreement [173 pages in PDF] and original agreement marked up with amendments [179 pages in PDF], and story titled "Amended Settlement Agreement Filed in Google Books Case" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009.

The Department of Justice (DOJ) has filed pleading criticizing components of the agreements. See, story titled "DOJ Files Pleading in Google Books Case" in TLJ Daily E-Mail Alert No. 1,985, September 21, 2009, and story titled "DOJ Criticizes Amended Google Books Settlement" in TLJ Daily E-Mail Alert No. 2,043, February 12, 2010.

On September 2, 2009, the ASMP, GAG, and others filed objections [23 pages in PDF] to the proposed settlement agreement.

They stated in a September 1, 2009, letter to the District Court that "The Proposed Settlement, if approved, would likely have a profound, negative impact on the interests of the Photographers and Graphic Artists. First and most obvious, Google has committed willful infringement through the unauthorized copying of photographs and other visual material published in ``books, yet many Photographers and Graphic Artists will be paid nothing for past infringement."

They added that "Under the Proposed Settlement, Google would have an unlimited license to digitize and commercialize books in the future, yet Photographers and Graphic Artists would be excluded from the Proposed Settlement's revenue-sharing formula and the proposed Book Rights Registry."

They also filed a motion to intervene, which the District Court rejected. See, ASMP release.

The just filed action is in the same court, and before the same Judge.

That case is Authors Guild and Association of American Publishers v. Google, Inc., U.S. District Court for the Southern District of New York, D.C. No. 05 Civ. 8136 (DC), Judge Denny Chin presiding.