Dallal WINS vs. NY Times

In a Summary Order filed on February 17, 2006, the Second Circuit Court of Appeals vacated Judge Hellerstein's earlier decision (US District Court, Southern District of New York) on May 12, 2005 to dismiss the photographer's copyright infringement lawsuit against the NY Times.

American Society of Media Photographers [ASMP] member Tom Dallal filed a copyright infringement lawsuit against the NY Times in May 2003, after the newspaper had been repurposing/publishing his photos in their online edition without his permission for 2 years. The NY Times claimed the licensing clause on Dallal's Invoice/Agreements stating permission for the newspaper to publish his photos "...one time only, ... first exclusive use, ...[in] a print run..." was not binding, even though they had signed the Invoice/Agreements and issued payment. Judge Hellerstein of the US District Court had dismissed the case, and Dallal filed an appeal to the Second Circuit Court of Appeals.

Lisa Shaftel of the Graphic Artists Guild and Victor Perlman, Counsel for the ASMP co-wrote an amicus brief in support of the photographer, filed by intellectual property attorney Robert Clarida for the appellate court. Eric Vaughn-Flam, Dallal's attorney, said that the GAG-ASMP amicus brief was instrumental in demonstrating to the judges that the free-lance photographer's Invoice/Agreements were standard contracts used by illustrators and photographers and have been accepted in the publishing industry for decades.

During oral arguments before The US Court of Appeals, Second Circuit on January 27, 2006, (with The Honorable Reena Raggi, The Honorable Peter W. Hall and the Honorable Edward Korman presiding), Judge Raggi said to NY Times attorney Robert Penchina, "Is, is, am I to understand from that argument that you didn't understand that when someone complains about unauthorized use of a photograph that they're complaining of a copyright violation? I mean, ah, you're not a hardware store, um, if there would be a party that I would think would understand copyright, it would a newspaper, so I'm not sure I'm following the argument"

"Are you suggesting really that when a photographer sends you an invoice that's got this comment on it about one time use only and is griping all the time and saying things like you're using it in an unauthorized manner, you gotta pay for it, that that's telling you, that's giving you a green light to go ahead, I mean is that what the reasonable inference from that is?"

The judges ordered the NY Times to negotiate a settlement payment for usage fees of over 1000 images created by Tom Dallal.

Reply Brief for Plaintiff-Apellant Thomas Dallal by Eric Vaughn-Flam, Esq. 12/5/2005
Dallal Appeal Reply Brief 12-5-05.pdf

The NY Times Brief to the Appellate Court by Robert Penchina, Esq. 11/21/2005
NYT Appeal Brief 11-21-05.pdf

The Second Circuit US Court of Appeals Summary Order 2/17/2006 Dallal v. New York Times (05-2924)
Dallal v. NYTimes 2d Cir. Decision 2-17-2006.pdf

Brief of Amici Curiae of Graphic Artists Guild and American Society of Media Photographers by Robert Clarida, Esq., Lisa Shaftel, and Victor Perlman, Esq. 11-7-05
Dallal 2CA Amicus Brief 11-7-05.pdf

–Lisa Shaftel, National Advocacy Committee Chairperson, Graphic Artists Guild

Click here for our original documentation of this case.

Dallal vs. NY Times