PLACERVILLE . INFO

By Rhett Pardon -- XBiz SACRAMENTO, Calif. — Calling the complaint “vague and ambiguous,” Playboy Enterprises last week denied that it violated copyright protection laws by publishing a picture of Placerville, Calif., resident-turned-Playmate Colleen Shannon.

Last month, Playboy and Shannon were sued by photography studio owner Carla Calkins (See Below), who shot Shannon’s high school portrait in 1996.

Shannon gave Playboy the high school portrait included on her biography page in the 50th anniversary edition of the magazine in 2003, according to the suit, but she did not have permission to reproduce the photograph for public distribution.

Calkins, who owns Mother Lode Photography in Shingle Springs, Calif., is seeking damages, attorneys fees and profit related to the alleged infringement. The suit also asks that Playboy destroy all copies of the issue still in its control.

Calkins' suit alleges Playboy demonstrated “a pattern of willful disregard” for the copyrights of professional portrait photographers.

Playboy, in its rebuttal to the U.S. District Court in Sacramento, said that Playboy is protected by federal “fair use” statutes, allowing material to be used without permission for purposes of illustration or comment.

It also said that neither Calkins nor her studio sustained any financial losses from the photo's use and that Calkins is not entitled to recover damages or legal fees under federal copyright law.

Playboy, represented by counsel from the San Diego law firm Cooley Godward Kronish, called for a jury trial to decide the matter. 

Refusing to fold against Playboy

A small photo studio says a Playmate's biography used one of its portraits without permission, and the photographer has taken the publisher to court

By Darrell Smith - Bee Staff Writer (Photo by Randy Pench)  Published 12:00 am PST Tuesday, December 26, 2006

It's a tale of a bunny portrait.

In this case, a Playboy bunny, who appeared in the magazine's December 2003 issue. But it's not a centerfold photo that's causing trouble but rather a high school portrait, which appeared in the magazine on the Playmate's personal biography page.

That portrait, taken by Mother Lode Photography in Shingle Springs, has wound up in federal court in Sacramento, where it's the centerpiece of a lawsuit alleging copyright infringement.

The photography studio owner, Carla Calkins of Diamond Springs who owns the business with her husband, Robert, has sued Chicago-based Playboy Enterprises Inc., saying former Placerville resident Colleen Shannon's high school portrait was used in the magazine's 50th anniversary issue without permission.

In a digital age, Calkins' fight illustrates the bigger issue of individual photography studios fighting to maintain their livelihood.

"It's been a large problem for a number of years. It bears itself out in a number of ways, from the high school senior downloading (photos) on CDs to corporations," said Stephen Morris, copyright and government affairs manager for the Professional Photographers of America, an Atlanta-based trade association. "You're taking money out of photographers' pockets whether you're an individual making copies or a publication making copies."

At issue is a 1996 high school senior portrait of Shannon, a graduate of Independence High School in Diamond Springs, who is now a Los Angeles-based disc jockey billed as "The World's Sexiest DJ."

According to the lawsuit, she gave Playboy the high school portrait included on her biography page, even though the lawsuit says she did not have permission to reproduce the photograph for public distribution.

Shannon, named as a co-defendant in the suit, could not be reached for comment.

Carla Calkins, a special education teacher with no legal background, admits the case will be an uphill battle. She says she doesn't have the resources to hire an attorney and is handling the case herself.

"It seems the only people who can protect their copyright are people with money," said Calkins, who has been cracking the books at local law libraries and hunting down photographers involved in similar copyright fights. She tells herself and anyone who will listen that she has a shot.

"I think I have a very strong legal case," said Calkins, a teacher at Gold Oak Elementary School in Pleasant Valley. "As a special ed teacher and a therapist, you spend your days telling children they don't need to be the victim of a bully," she said. "Most people wouldn't have the nerve to do this, but I do."

The lawsuit alleges that Playboy infringed on photography studio's exclusive right to reproduce the photo and that Playboy will be shown to demonstrate "a pattern of willful disregard" for the copyrights of professional portrait photographers.

Calkins is seeking damages, legal fees and any profits related to the infringement, including post-release sales of the December 2003 magazine.

Additionally, the suit asks Playboy to destroy all copies of the issue still in its control.

Neither Shannon nor her management company, Hollywood-based DGI Artist Management, responded to several requests for comment.

Efforts to reach officials at Playboy's corporate office were not successful.

But a Playboy attorney, Michael G. Rhodes, of San Diego law firm Cooley Godward Kronish, gave a brief statement by phone: "Ms. Calkins' lawsuit is without merit. We have attempted to resolve the matter for some time, but have been unsuccessful."

Indeed, it was Playboy's attempt at resolution that pushed Calkins into filing her lawsuit.

"They offered $100 (for use of the photo)," she said. "I thought that was a slap in the face. If I put their bunny (Playboy's iconic rabbit head logo) in my stuff, you know they'd be at my door."

The legal issue is whether Playboy's use of the photo three years ago constitutes copyright infringement or is considered so-called "fair use" -- which allows material to be used without permission for purposes of illustration or comment.

In general, reproduction rights for photographs in magazines are determined using a formula based on circulation, advertising rates and the quantity of reprints. The Calkinses declined to state what they asked from Playboy, whose long-running magazine has an estimated circulation of more than 3 million.

Technological advances have been a chief culprit in accelerating copyright problems for professional photographers, said Marty RicKard, a Florida-based photojournalist, columnist, educator and lecturer who specializes in copyright law.

"The technology that's been created has been a nightmare for professional photographers," RicKard said. "A person now can take a product that a photographer has worked hard to produce and produce replicas for next to nothing."

That dilemma is magnified, he said, by an ineffective federal copyright law. Images become copyrighted as soon as they are produced, he explained.

But in order to collect damages and attorney's fees in a lawsuit, federal law states that the person who created the image must have registered it with the U.S. Copyright Office within three months of publication.

Calkins registered the Shannon high school photo in February 2004, two months after it appeared in Playboy.

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