The European Commission Has Reached an Agreement Over New Copyright Rules

The European Commission has reached an agreement over new copyright rules, including the controversial Article 13 that will require platforms like YouTube to tackle copyright infringements at the point of upload.

One of the objectives of the of directive is to “reinforce the position of creators and right holders,” helping them to be remunerated for the online use of their content by user-uploaded-content platforms. Read the article on Digital TV Europe.com  here .

CEPIC also reviews the agreement on their site here 

Our DMLA Counsel and Legal Committee is reviewing the agreement and will have further information on its impact on the industry.  Stay tuned.

VisualSteam Announces the Results of its 6th Annual Survey of Creative Pros on Stock

Image Licensing

“Free” (CC0) images have burst onto the market with as many creatives using free images as those using microstock.

VisualSteam announces the release of its 6th Annual Survey of Creative Pros: Stock Image Licensing. The survey is sent to more than 20,000 art buyers, art directors, art producers, creative directors, photo editors and marketing professionals around the world. Survey results provide valuable information to creators, licensors and marketing professionals and offer a glimpse into what is driving image licensing today.

This year’s report shows a progression but also a continuing change in the market. The importance of visuals to user engagement and retention continues to drive a substantial increase in demand. The volume of images used continues to grow as does social media and communications, in general. Price and budgets impact purchasing in a significant way, as does quality. Once again Getty (gettyimages.com) and Shutterstock (shutterstock.com) are battling it out for the hearts and minds of Creatives. However, 45% of those surveyed say they are using“free” image content. Free image provider Unsplash (unsplash.com) appears in the top ten of “favorite,” top-of-mind resources.

“There are many interesting pieces of data in this year’s report” says Leslie Hughes, VisualSteam’s Founder and Strategic Advisor. “Anyone creating or licensing visual content can learn about shifts in preferences, and the wants and needs of Creative Pros. We are also trying to build in more trend data, comparing results with previous years.”

VisualSteam wants to recognize and thank the sponsors of this year’s survey, Alamy (alamy.com), FootageBank (footagebank.com) and iSPY Visuals (ispyvisuals.com). Their support allows us to continue to produce the survey at an affordable price.

To request a copy of this year’s survey, please email sales@visualsteam.com. For more information about VisualSteam, please go to www.visualsteam.com, or email info(at)visualsteam(dot)com.

About Visual Steam

VisualSteam (www.visualsteam.com) is a marketing services organization that specializes in digital transformation and visual content markets. We work with producers, creators, and distributors to better understand and respond to market needs and define strategies for expansion and execution. We also work with clients/image consumers and content marketers to help them understand, acquire and manage visual content.

Photos in 2019: A Trending Forecast from Scopio


As creatives know, there have been huge shifts in the visual landscape this year, especially due to what is popular and getting the most engagement on Instagram, where 50 million photos are being shared every single day.

At this staggering rate of content growth, at Scopio we have seen these trends get pushed through to the types of photos businesses are looking to use and connect in their storytelling. Scopio wanted to recap what they are and share what we think could add value to these trends. Hopefully, this trend report can help creatives spot unique moments and share them in their storytelling. Dive into Isolation and Solitude, Drone and Aerial, Mystical interpretations, and Activism as growth content areas.

Read the full article here

We are pleased to welcome Scopio back as DMLA Members!

Copyright Office Releases “Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges”

The U.S. Copyright Office has submitted a letter to Congress detailing the results of the Office’s public inquiry on how certain visual works, particularly photographs, graphic artworks, and illustrations, are registered, monetized, and enforced under the Copyright Act of 1976. The Office sought commentary on the marketplace for these visual works, as well as observations regarding the real or potential obstacles that creators and users of visual works face when navigating the digital landscape. A number of stakeholders raised specific issues they face on a regular basis regarding current copyright law and practices that fall within three general categories: (1) difficulties with the registration process; (2) challenges with licensing generally and monetizing visual works online; and (3) general enforcement obstacles.

The Copyright Office takes these concerns seriously and has already taken steps to address them where it can, most notably with the ongoing Office modernization efforts in preparation for a wholesale technological upgrade to the Office’s systems. In other areas, the Office finds that legislative action is the best solution. The Office continues to strongly support the idea of a small copyright claims tribunal, as well as a legislative solution to the orphan works conundrum. Congress’ action in these two areas would go far to alleviate several important concerns raised by visual artists.

The letter, public comments, and background material are available on the Copyright Office website here

DMLA 2019 Conference Returning to Marina del Rey

The DMLA Executive Board is pleased to announce that the 24th Annual DMLA Conference will be returning to Marina del Rey for 2019! Los Angeles was the overwhelming choice of the people surveyed from this year’s event.

We hope you make your plans early to send your representatives to this wonderful venue, The Marriott Marina del Rey. We will be building on the success of this year and will be bringing in even more exciting and inspiring sessions.

Mark your calendar for: October 27th thru October 29th, 2019.

HAPPY NEW YEAR!!

Federal Judge Rules that Esquire’s Use of Photo of Trump at Private Wedding Is Not Fair Use (Bounds Explained)

The decision in Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. 2018) provides a helpful guide to what is does not qualify as fair use in the context of a news story. Fair use is a limitation on a copyright owners exclusive rights and permits the use of a work without consent. It is codified in the current Copyright Act, and the statute provides examples of what can be considered fair use. Because “news reporting” is an example, it is all too common that popular news websites rely on fair use rather than licensing a photo, asserting that the use is news reporting. But is it?

Read the entire article here

Federal Court Explains the Bounds of Fair Use by a News Organization, Ruling That Esquire’s Use of Photo of Trump at Private Wedding Is Not Fair

by Nancy Wolff, DMLA Counsel

The decision in Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. 2018) provides a helpful guide to what is does not qualify as fair use in the context of a news story. Fair use is a limitation on a copyright owners exclusive rights and permits the use of a work without consent. It is codified in the current Copyright Act, and the statute provides examples of what can be considered fair use. Because “news reporting” is an example, it is all too common that popular news websites rely on fair use rather than licensing a photo, asserting that the use is news reporting. But is it?

Most likely not. In Otto v. Hearst Communications, Inc., Judge Gregory H. Woods dealt with this issue directly and found that Esquire.com’s use of a photo of Donald Trump at a private wedding in an article about him crashing the wedding was not fair use. The instructive decision, which analyzed the copyright infringement claim and individual components of the fair use defense, provides a clear example of what is not considered fair use in the context of a news story.

In June 2017, Jonathan Otto, a weddinggoer, snapped a photo of Trump, who happened to appear at a wedding held at his golf club in New Jersey. The amateur photographer texted the photo to a friend, only to discover the next morning that his photo had unexpectedly gone viral—first on Instagram, and then splashed across the pages of several online media outlets.

Seeking to protect his rights, Otto, retained counsel and filed for copyright registration. He then enforced his copyright by suing several of the media outlets, including Hearst Communications, Inc., the parent company of Esquire, who had copied and published Otto’s photo, for copyright infringement. In response, Esquire did not dispute that it had copied the photo but asserted a fair use defense arguing that it had used the photo of Trump for news purposes. However, the Court did not buy this argument.

The Court analyzed each of the four fair use factors in detail and explained why, taken together, the factors did not weigh in favor of a finding of fair use. Specifically, he wrote: “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use.”

While Esquire’s status as a news publication may be important for the fair use inquiry, that fact alone does not make Esquire, or any other media organization, immune from liability under intellectual property laws. Below is an overview of Judge Woods’ analysis and findings on each of the elements of fair use:

Purpose and Character of the Work. First, the Court discussed the purpose and character of Otto’s photo—arguably the most important fair use factor. The judge noted that Hearst’s argument that the use is fair because the photo was created for personal use, and Esquire used it for news, was unpersuasive. While “news reporting” is specifically identified as a potential method of fair use in the statute, courts analyzing this factor still look to the transformativeness of the use of the copyrighted work. For example, did Esquire’s use of the photo in a post describing Trump crashing the wedding add a new meaning or message? Esquire argued that its use did because the article “added commentary regarding the President’s availability for photos at the wedding and broader trend in the President’s behavior.” However, the Court disagreed, concluding that Esquire used the image solely for illustrative purposes—to depict the President’s presence at a private wedding—and did not add anything new to the image.

Nature of the Copyrighted Work. Second, the Court examined the nature of the copyrighted work, such as whether it is expressive or creative versus factual or informational, and whether the work is published or not. While photographs can vary widely on this spectrum, the Court agreed with Esquire’s argument that the image is more factual, because the photo was taken spontaneously to document an event, and Otto did not direct or pose the subjects. As for the publication status of the photo, the parties did not dispute that the image had already been published and disseminated widely before Esquire’s use. Although a copyright owner’s right of first publication is important, the Court found that Esquire’s article did not threaten this right. Consequently, this factor—while far from the most important in the fair use analysis—weighed in favor of fair use.

Amount and Substantiality of the Portion Used. Next, the Court evaluated just how much of Otto’s photograph Esquire used. For its article, Esquire used a slightly cropped version of Otto’s photo, but otherwise did not edit it. As one would assume, the more of a copyrighted work that is taken, the less likely the use is to be fair; however, courts also take the purpose of the use into account, looking back at the first fair use factor. Because it was clear that Esquire used the entirety of the photo and did so without adding new meaning or otherwise transforming the work, the Court found that this factor weighed against fair use.

Effect of the Use on the Potential Market. Finally, the Court considered the effect of Esquire’s use of the photo upon the potential market for or value of the photo. Where the copyright holder has no intention of entering the market, or the inability to do so, courts often find this factor weighs in favor of fair use. However, that is not the case here. Because Otto had acted quickly to protect his rights and was seeking to license the photo, such as to publications like TMZ, the Court found that it was clear that Otto was attempting to enter the market. Esquire’s unauthorized publishing of the same photo destroys the potential market and harm’s Otto’s ability to license the work. As such, the fourth factor also weighed against fair use.

Weighing the four factors together, the Court found that it was evident that Hearst’s use of the image was not fair. “The fact that Hearst’s commercial use did not transform the Photograph’s purpose or add new meaning to the image; the fact that Hearst used the work in its entirety; and the potential harm to any financial opportunities Otto might reasonably pursue for use of the photo, outweigh the fact that the image is factual and published,” Judge Woods concluded.

While any fair use analysis is an inherently fact-driven inquiry, this case is helpful to explain the point that a photo that merely illustrates a newsworthy article, without adding more, is not fair use. If the photo was the news story itself, the result might have been different. This case confirms that images to illustrate articles should be licensed and not just taken

Monkey Business Images Announces Sudden Passing of C.E.O. Cathy Yeulet

It is with great sadness that the team at Monkey Business Images announces the sudden passing of Cathy Yeulet our C.E.O.
Cathy was a true entrepreneur and a master of her craft. Her influence is seen around the world, her images have touched the lives of millions.
She was a firework, colourful, energetic and guaranteed to grab your attention.
Our friend Cathy will be greatly missed.
Our thoughts and condolences go to her family and friends.

HTW Berlin (University of Applied Sciences) Releases New Photo Application

See all your photos neatly organized on the iPhone/iPad

 

The visual computing team of HTW Berlin (University of Applied Sciences) has released a new app called “Kiano” (Keep Images Arranged & Neatly Organized). Kiano is available for the iPhone or iPad. The app requires 19 MB of free memory and iOS 11.0 or higher.
 

“Kiano helps to look at your photos in a completely new way,” reports Prof. Kai Uwe Barthel the developer of the app. ” With simple gestures it is possible to navigate visually through all your photos. Kiano is the only app you need to view and find your local photos. Besides a flat or perspective map view showing all images visually arranged, Kiano also offers traditional list views, a professional image viewer and the possibility to search for similar photos”. 

Before you start Kiano the first time, the app analyzes all images once. This is done locally without any data transfer to any server. When you start the app next time, only new and modified images will be analyzed.

 

After the initial analysis the app can quickly generate visually sorted maps of thousands of images. In this map you can use familiar gestures to zoom in and out, adjust the perspective or select individual photos to view them or to start a similarity search. In the list view, photos are conveniently sorted by year of creation, and the album view allows to view all created photo albums. There is also a slide show, which can be further configured in the settings of the app, a video player, and other options for customizing the map view.

 

As Kiano is available for free, it is definitely an interesting option for all photo enthusiasts.