Appeals Court Revives NYT Infringement Claim

A federal appeals court has revived freelance photographer Thomas Dallal's copyright infringement claim against The New York Times, ruling on February 17 that a lower court erred in throwing the claim out. Dallal is now entitled to make his case before a jury.

A contributor to the Times from 1994 to 2002, Dallal disputed the unauthorized used of his images on The Times web site for much of that time. On several occasions he voiced his objections to Times staffers. He also asked to be paid for the additional uses. And starting in 1997, he modified his invoices to The Times, specifying "one-time only, first exclusive rights" to his pictures.

Finally, Dallal sent a letter in December 2002 to the paper's picture editor demanding his pictures be removed from the web. The editor complied, saying she was unaware that his pictures were being used on the web without permission.

The Times then stopped giving assignments to Dallal, and he sued a year later, charging The Times with infringing copyright to 113 of his pictures that the newspaper had published between January 1997 and December 2002.

Last year, the US District Court in New York City rejected Dallal's claim on the grounds that he gave implicit consent for the use of his work on The Times web site because he continued to accept assignments from the paper despite the web uses.

The lower court suggested that Dallal's suit was a case of sour grapes over his failure to get a higher fee from The Times for assignments. The Times, said the lower court, acted out of ignorance and upon a belief?based on Dallal's own actions?that its use of his pictures on the web was acceptable to him.

But the US Appeals Court for the Second Circuit sent the case back to the lower court, saying Dallal's invoices and oral objections to Times staffers over use of his images on the web cast doubt upon the lower court's conclusions.

Whether The Times was truly ignorant that the web uses were unauthorized, and whether The Times acted reasonably in relying on Dallal's acceptance of assignments as authorization for using his pictures on the web are questions for a jury to decide, the appeals court said.

A trial date has not been set.

Related story

• July 2005: Photog's 'Inaction' Torpedoes Infringement Claim