Streams

How to Control (and Cash In On) the Sarah Palin Brand

Wednesday, February 16, 2011

WNYC
An attorney for photographer Jeff Schultz said this portrait of Sarah Palin is copyright protected. A NYC restaurant owner who used the image in '08 was asked to pay the photographer two years later. ((from attorney's letter to restaurant owner Padriac Sheridan))

Adding Sarah Palin to any event makes it bigger, more high profile and, for one restaurant owner in Manhattan, more litigious.

Padriac Sheridan wanted to draw customers into his restaurant, Murphy & Gonzalez, on Waverly Place near NYU, by showing the 2008 Vice Presidential debate, featuring Palin and Senator Joe Biden.

So, as he did with other big television events that he hoped would draw customers into his restaurant, Sheridan put a note about it on his restaurant's web site. For this occasion, he Googled a little bit, found what appeared to be official portraits for the governor and the senator, and downloaded them. Then, Sheridan inserted them onto his web site, along with details about the October 2 debate.

Customers came. They watched, they ate, and the one year-old restaurant did brisk business that night. Sheridan considered the whole thing a success and didn't think much about it — until two years later.

On September 13, 2010, Sheridan received a letter from an attorney representing a company claiming that Sheridan's web site stole their photograph of Palin, and they wanted him to pay for it.

"A copyright holder is entitled to seek statuary damages up to $30,000 per infringement as well as statutory damages of not less than $2,500 or more than $25,000 per falsification of copyright management information, in addition to attorney's fees and costs," the letter said.

Sheridan said the image was still on his web site, but in the archive section, hardly a place garnering much traffic. Nonetheless, he took it down "that day" he got the letter. But the agreived party persisted, demanding money, Sheridan said.

Fearing what would happen if he exposed his business and its 14 full-time employees to prolonged litigation, Sheridan paid the attorney, Eric Meltzer. After the payment, Sheridan said he was asked to sign a gag order, which he resisted. He said both sides comprised: Sheridan would not say how much he paid, but was otherwise free to talk.

In an interview Tuesday afternoon, Sheridan — an Irish immigrant who became a United States citizen only three months before receiving Meltzer's letter — said he didn't realize how this could have happened.

"I assume that an elected official's official portrait would be public domain," he said.

In the image of Palin that was used on Sheridan's web site, the former governor is wearing a red blazer, glasses, a necklace; she is flashing a smile and looking straight at the camera.

Sheridan said he thought it was her official portrait because "I believe it stated it on the internet." He said he cannot recall where he found the image, since the incident occurred two years ago and he didn't take careful note of it at the time.

The image — wherever it came from — is now known as #351PL_AA0001D001_P. That's how it was referred to in the letter Sheridan received from Meltzer, the attorney. Meltzer said the image is owned by his client, Alaska Stock Image.

In Meltzer's four-page letter, he included a screen shot of Sheridan's web site, showing Palin's image and the original image, from the Alaska Stock Image web site.

There's only one difference.

In the photo from Meltzer's client, the words "AlaskaStock.com" are watermarked across Palin's face and there is additional white lettering at the bottom of photo. Sheridan, it would appear, did not go to AlaskaStock.com's web site to obtain the photograph. There were no watermarks on the image Sherridan used at the time.

So, where did the red-blazered portrait of Palin come from?

A woman who answered the phone at Alaska Stock Image said the photograph was taken by the company's owner, Jeff Schultz. When asked about the image, Schultz politely referred questions to whichever attorney contacted the restaurant owner. (Shultz said there were more than one lawyer that worked with his company and he was unfamiliar with this particular case.)

Voicemail and email messages for Meltzer left Tuesday evening and Wednesday were not returned. Voicemail messages left Wednesday at the governor's office in Alaska were not returned.

So, how did Schultz come to own the Palin portrait, which he, and at least one attorney, are litigiously protecting?

"Jeff has had the pleasure of taking Sarah Plain's official state photo," according to a profile of him on the Copyright Alliance web site.

Indeed, smaller, closely-cropped version of the portrait of Palin appears to have been available on the Alaska governor's official web site back in 2008. It can still be found there when accessed through archive.org, a web site that allows visitors to see what web sites looked like in the past.

The portrait of Palin was used by another web site, the Catholic News Service, in August 2008 with the following credit: "CNS/Jeff Schultz, Alaskan governors office."

Schultz is a professional photographer based in Alaska. Among the copyright images on Schultz's web site are at least 280 of Palin. (Images of Palin include one where she is wrapped in an American flag, holding a freshly caught fish, playing hockey on a frozen lake and holding a shotgun over her left shoulder. Several are from Palin's time in the governor's office, including several from the "Governor's Inaugural Ball" from 2007.)

It is unclear if Palin herself is aware of Schultz's effort to guard against uncompensated usage of her image. Palin's own efforts to control her brand include an unsuccessful attempt to trademark her name and that of her daughter, Bristol.

Back in Manhattan, Sheridan said he still resents having paid Meltzer and his client for leaving the Palin image on his web site.

"Maybe if we had gone to court we could have proven it actually was legitimate for us to use at the time," he said.

Update: The image was used as Sarah Palin's official headshot, according to Sharon Leighow, who was deputy press secretary for Palin.

"He took the picture. We were allowed to use it as the official photo," Leighow said. But Schultz always retained the rights to the photo, she said.

Leighow is now the press secretary to the current Alaska governor, Sean Parnell. But during Palin's tenure, Leighow said the official picture of Palin was widely distributed.

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Comments [17]

John N. Barnes from Oakland, CA

To the woman who thinks that this portrait is pornographic, I in no way intended it to be sexy or disturbingly. Produced.it for as a requirement to enter the Miss Alaska Pageant in 1984. I am not.seeking financial compensation for my work of art. I only wish to recieve credit for it. Also I accept that there are poeple out there that will use this image to suit there own needs.

Sincerely yours,

John N. Barnes

Jan. 07 2012 01:17 AM
John N. Barnes from San Francisco, CA

I took the "Sarah Palin Miss Wasilla Studio Portrait 1984" photograph. Of course, I had no idea that she would go onto become who she is today. She was only 20 years old when I took it. As for the "pornographic" comment above, how does this face shot have anything to do with pornography?

I am not concerned about how Sarah Palin has used and posted this photograph. What does disturb me is how some people have taken it from the internet, altered it, abused it, insulted me and accused me of creating a vulgar pornographic image.

It was simply a set of head shots for her to include in her presentation to the Miss Alaska Pageant judges. However, I do feel that I deserve some kind of credit or compensation since she used the photograph to promote her image throughout her entire career.

Aug. 27 2011 06:05 AM
John Nelson Barnes from Oakland, CA

I was a student at the University of Alaska, Fairbanks majoring in theater. My primary study focused on lighting design for stage. My minor was journalism broadcasting, and during the fall semester I was taking photo journalism. Our first assignment was to shoot black and white portraits. This was easy for me, because many of the acting majors in the theater department wanted studio portraits for their portfolio when they graduated. I was employed as the master electrician for the theater. I had full access to high quality stage lighting equipment, which I used to setup a photo studio in the wagon bay behind the stage.
After shooting photos of most of the acting majors there, a young woman came to my electrical shop asking if I was the photographer she had heard about. She was with another woman who I think may have been her mother. I am not sure about that though. She presented herself as Sarah Heath, who had recently been crowned as Miss Wasilla. She needed black and white head portraits to submit to enter the Miss Alaska Pageant. I agreed to help her and we took a full roll of 36 frames. Many people believe she was bare breasted when I took them. However, to set the record straight, she was wearing a tube top which was just out of view.

I can verify my claim as the photographer, because the image posted in almost every website, nation publications and blog sites was copied from a print that I produced. You will see that I burned in around the top of the photo to create a shading effect, thereby reducing a hard contrast look from the pure white background. Furthermore, I labeled every print with my name, date, and copyright symbol in ink on the back.

I am not seeking money, only credit and acknowledgment that I am the photographer of Sarah Palin in 1984.

Sincerely yours,

John Nelson Barnes

Graduate, University of Alaska, Fairbanks, 1986

Aug. 23 2011 12:58 PM
Bubba

"Images of Palin include one where she is wrapped in an American flag, holding a freshly caught fish, playing hockey on a frozen lake and holding a shotgun over her left shoulder."

Oh man, I wish you had linked to THAT photo. It sounds AWESOME!

Mar. 12 2011 10:12 AM
John N. Barnes from Oakland, CA

HELLO! My name is John N. Barnes. I graduated from University of Alaska, Fairbanks in 1986 with a BA in Theater. I met Sarah Palin in 1984. Her name then was Sarah Heath, 20 years old, and recently crowned as Miss Wasilla. She was entering the Miss Alaska Pageant, but did not have a black and white head photograph (studio portrait) to submit which was according to her was a requirement to participate. I am the unknown photographer that produced this photo. I completely forgot I did this until stumbling upon this print photo on the internet. For your information, this image was copied from a print that I produced and gave to Sarah. It was not copied from a negative. The print was copyright by me personally on the back in ink. It would be interesting to know if Ms. Palin still possesses this print.
Sarah Palin spear headed her spot light career using this particular studio portrait. It was even used in the GOP 2008 National Presidential Convention Pamflet passed out to all the delegates and around the country. Try running a Google Image Search using the query: Sarah Palin Studio Portrait 1984 or Miss Wasilla Studio Portrait1984 and you will be amazed how many websites pop up that have this image I created 27 years ago posted.
My claim to my being the actual photographer of these photographs can be verified. The image posted on the internet was taken from a print, NOT a negative. The image was touched up (at your request) to give a better appearance and impression. If you still possess the prints, then you will find my signature, date, and copyright written on the back of each on in ink. I was very careful to do this because my father is a master photographer. You will find my signature to be written as: "John N. Barnes" I am willing to share the entire story behind this true fact. Of course, I have not received any compensation or credit for this famous photograph. Because of of Intellectual Property Laws, only the University of Alaska owns complete copyrights to this art work because it was created on UAF property.

Mar. 09 2011 10:13 PM

As a young Alaskan photographer who also had the opportunity to photograph Sarah before her VP run; I can say this a perfect example of the need to educate the public about intellectual property rights.

This has more to do with protection of ones work, and the respect for ones subject. A Rights Managed license protects both the interest of the subject and the photographer by retaining a certain level of exclusivity on how the image can be used.

These licenses may at first glance appear impractical with the fury of which content is published online. But when in context to the rise of personal branding, these licenses are necessary.

http://en.wikipedia.org/wiki/Personal_branding

Feb. 24 2011 06:11 PM
durf from Tokyo

The photographer of course has the rights to his work if the contract he enters when taking them gives them to him. In a case like this, though, assuming that public money was spent on the photo shoot (and since it produced an official portrait, I'm guessing that's the case), I'd like to see the rights go to the state of Alaska. Paying the guy tax dollars for a photo that continues to make him money doesn't sit right with me, somehow.

Feb. 17 2011 09:07 PM
Pickle Monger

Poor guy. He should've at least gotten a second legal opinion or checked with people at EFF. Or just spent some time on techdirt.com.

Feb. 17 2011 01:52 PM
Keri Scaggs from Topanga

I've had the pleasure of working with Jeff Schultz for years. As an artist AND businesswoman, it's disconcerting that we have an entire generation that has no regard for intellectual property. I've had images posted on websites without permission, and the bottom line is, it's stealing. I can sympathize with people's lack of knowledge in this area, but I'm sure Mr. Sheridan wouldn't like someone using a likeness of his restaurant/food, etc. for their own promotion. Every time you copy and distribute a CD or photo without permission, the one who created the work is losing money, period. It's as if someone came into your home, emptied your fridge, left without saying thank you or giving compensation.

Feb. 17 2011 12:59 PM
Nancy NWFL from DisneyWorld

We should be paid to look at that slimy picture every time we see it. Who ever took the photo should spend a few decades in prison for pornographic assault on unawares citizens worldwide.

Feb. 17 2011 12:38 AM
Nancy from SWFL

I feel sorry for Sheridan who obviously didn't know any better. However, I resent the commenters who feel that the photographer is somehow in the wrong and sleazy to boot.

A writer, artist or photographer makes his/her living from the words or images he/she creates. Taking one of those creations, whether for pleasure or use to make money without permission, or without compensation to the creator, is not only illegal, it hinders the creator's ability to make a living.

The internet has made it easier for someone to steal images or stories and pass them off as their own.

How would you feel if you did the work and someone else collected your paycheck?

Feb. 16 2011 09:11 PM
Badtux from San Jose, CA

Many people assume that images on state web sites are public domain, just as images on federal web sites are public domain. But that is not true. It all depends upon whether the photographer was a state employee performing a work for hire or not. The Constitution gives copyright regulation to the Federal government as an enumerated power and Federal law only states that Federal documents are public domain -- not that state documents are.

So this is a legit copyright infringement since the photographer was not a state employee and the state purchased merely the right to display the photo on its web site, not all rights to the photo. The effort to collect on it, however, is at the very least slimey. The majority of copyright infringement of this sort is unintentional and the usual remedy is to ask them to take down your copyrighted photo, not to shake them down for money like some Mafia goon.

Feb. 16 2011 08:01 PM
Ted Marchant from NYC

How is this front-page news? Not glad to know that this is where my sustaining membership dollars are going.

Feb. 16 2011 07:04 PM
omomma

Photographers own the images they create, just as artists own their work, and writers own their work.

The photographer who made these photographs just got lucky, and one of his subjects turned out to be the goose that laid the golden egg. Among other things she turned out to lay on us.

Feb. 16 2011 04:54 PM
CorrineK

It's not about Sarah? Give us a break, Stacy....it's ALWAYS about Sarah. She makes sure of that. Dumbest bimbo who has ever had the gall to think she has what it takes to be President.

Feb. 16 2011 04:50 PM
guest from rill america

Well, this certainly appears to be a simple old-fashioned shakedown. This photo has been used as an avatar on Palin watch-sites for ages. My response would have been "sue me." This photographer must be realizing that her shelf life has expired.

Feb. 16 2011 03:49 PM
Stacy from San Diego

Why do you assume this has anything to do with her?
I'm in the news imagery business and your assumption in wrong. This is ALL the photographer. It has ZERO to do with her.

Feb. 16 2011 03:11 PM

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