Case Act Unanimously Passes House Judiciary Committee

The CASE Act (Copyright Alternative in Small Claims Enforcement) took another critical step towards becoming a law as the House Judiciary Committee passed the bill unanimously. The law is ready now for a full vote by both chambers of Congress. The support in Congress has been bipartisan, along with a wide swath of the publishing and content licensing industry.

According to Ed Christman at Billboard “Industry sources say they are hopeful it will come to a full vote in both legislative arms before the October recess.” With the Senate Judiciary Committee passing the bill out of committee on July 19th, this would be a swift conclusion to a law the DMLA and other industry advocacy groups have been working towards for a very long time.

To learn more about the CASE Act please read the DMLA CASE Act Q & A with our Senior Legal Counsel Nancy Wolff.

Our friends at Copyright Alliance provide additional detail on the level of support in Congress.

If you want to immerse yourself, dive into the American Society of Media Photographers’ CASE Act Central with a blow-by-blow account of the bill’s progress.

You can also watch the entire mark up session of the House Judiciary Committee on YouTube. The bill is addressed starting at the 8:26:25 mark in the video.

And of course, there are the current House and Senate versions of the bill itself.

Happy watching and reading.

Hopefully, there will be a bill to celebrate at our DMLA 24th Annual Conference this October in LA.

 

State Rights and Copyright Q & A – Allen v Cooper  

Rick Gell, interim Executive Director of the DMLA back again with our Senior Legal Counsel Nancy Wolff of CDAS. Welcome back Nancy.

We have a ruling in Allen v Cooper heading to the Supreme Court in November, and once again, realize how much there is to learn about copyright law. Nancy, to start, what the hell do state rights and state sovereignty have to do with copyright law?

Well Rick, according to case law, the 11th amendment gives states immunity from damages under copyright.

 If State Sovereignty is applied to copyright, how broadly does it affect copyright holders?

State sovereignty means that states are exempt from being liable for monetary compensation for infringing copyright. This immunity could have a significant impact on content creators and their licensing representatives as states use content in many of their operations. States create many publications through university presses, and create many materials, online and in print. This disregard for copyright means that states can use works with impunity with little risk of a legal action. Most content owners will not bring a claim to just “stop” a work, as litigation is too expensive to merely achieve an injunction. This erodes the licensing model.

 Ok, so now, let’s unpack what the courts recently ruled in Allen v Cooper?

 In Allen v. Cooper, the Fourth Circuit reversed the Eastern District of North Carolina’s holding that photographer/videographer Frederick Allen was entitled to sue the State of North Carolina for allegedly infringing his copyrights.

Allen, and his production company Nautilus Productions, were the exclusive photographers of the shipwreck of Queen Anne’s Revenge since 1998. In 2013, Allen found out the State had been using his videos online without permission. Although he entered into a settlement agreement, requiring the State to pay Allen fees for the use of the photographs/video, the State continued to use his works after the agreement without compensation. In addition, the NC government passed a law making all photographs and video material of shipwrecks in the custody of North Carolina a public record and available for use without limitations, essentially placing them in the public domain.

Allen filed an action for declaratory judgment, arguing the NC statute violates the “Takings and Due Process” clauses of the Constitution.

Time out. Sounds like we have conflicting laws here. Can you explain the Takings and Due Process clause in the Constitution?

The Fifth Amendment to the U.S. Constitution limits the power of the Federal Government of the United States by saying that “no person shall be deprived of life, liberty, or property, without due process of law.” And “nor shall private property be taken for public use, without just compensation.”

Due process means that a person is entitled to the fair administration of justice and the government cannot take, in this instance “property” in the form of photographs, without a fair hearing, and the takings clause prevents the government from taking property without compensating the owner.

And what did North Carolina have to say about Allen invoking the Taking and Due Process clause?

NC also argued the Copyright Remedy Clarification Act did not waive state sovereign immunity, and that individuals were precluded from suing states for copyright infringement. After the lower court found for Allen, the State appealed to the US Court of Appeals for the Fourth Circuit.

The U.S. Court of Appeals for the Fourth Circuit held that the Copyright Remedy Clarification Act does not validly abrogate Eleventh Amendment immunity from Copyright Damages. This decision is being appealed and the Supreme Court agreed to hear the case. The case will be heard on November 5, 2019.

My head is spinning. The Constitution says States have sovereignty, and people have rights in their property, and there is yet another law that specifically addresses Copyright as an exception to state sovereignty – and that is the Copyright Remedy Clarification Act?

 The Copyright Remedy Clarification Act (CRCA) is a United States copyright law that attempts to abrogate sovereign immunity of states for copyright infringement. The CRCA amended 17 USC 511(a):

In general. Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

 So, if there is a law that specifically carves out copyright from state sovereignty, how is NC even making a case?

The court said that Congress did not have the authority under the Constitution to abrogate  the states’ sovereign immunity and would not enforce the Copyright Remedy Clarification Act. 

What about the additional law stating all photos and videos of shipwrecks in custody of North Carolina Public Record couldn’t be copyrighted?

After the lower court held that Allen could sue NC  for copyright for using his images of the shipwreck, North Carolina state lawmakers passed §121-25(b) —which treats all photographs, video recordings and other documentary materials of a derelict vessel or shipwreck or its contents as “public record.”  Allen called it “Blackbeard’s Law”.

Lastly, the DMLA is part of a group of visual arts organizations who help cover costs for filing and printing the Amicus Brief, correct?

 Yes, we call ourselves the Coalition of Visual Artists, and the group includes the Copyright Alliance, APA, ASCRL, ASMP, Graphic Arts Guild, NPPA and PPA.

 I can’t help myself, here is a little plug. You will be participating in the 24th Annual DMLA Conference in LA October 27-29 – as part of the Hot Topics in Legal  session with other big IP guns in the licensing industry – correct?

Yes.

Can we go now? 

 Please!

 

 

End of Summer Update – Our 24th Annual Conference in LA

While you’ve been chilling on the beach, we’ve been curating our Program….

A battle to rival Infinity Wars lies ahead with Netflix, Disney, Apple, Amazon, Google, Facebook, Comcast, AT&T and ViacomCBS spending more money on more visual content than ever seemed imaginable!

Our sessions will focus on the big issues – from Free Content to Trusted Sources to Image Search to Practical AI to the growing call for Authenticity and Personalization in content.

Our keynote speakers Stan Pavlovsky, President of Shutterstock and Chad Newell, CEO of Snapwire, will dig into the strategic market opportunities ahead.

Our speakers from Adobe, IBM, Getty, Turner, Shutterstock, Vice News, Pond5, Google – plus 40 more senior-level licensing executives and thought leaders – will engage in 6 lively sessions and 15 deep-dive roundtables over two days, along with networking at the Marina Del Rey Bayview Penthouse overlooking the Pacific Ocean. 

Our ever-popular Hot Topics in Legal, where senior legal counsels dissect the Case Act, EU Directive and the latest on privacy and publicity law is sure to generate some heat.

Our great sponsors led by Platinum Sponsor PicRights, along with Shutterstock, ImageRights, CDAS, Picha, Oodls, Smartframe and Capture – make it all possible.

And did we mention – VR 360? Copyright Enforcement Best Practices? Keeping Creators Happy? Video Metadata? Ad-embeds? The Return of Public Domain?   

Check out the entire schedule here..

http://www.digitalmedialicensing.org/conference_2019.shtml#program

Now, back to the BBQ.

 

Artist v. Artist

The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith Et. Al.

Fair Use broadens in Artist Works

A recent court decision in the Second Circuit solidified the expanding and evolving scope of fair use in appropriation art, showing that obtaining a license to use other copyrighted works as artistic inspiration is not always necessary. In the opinion, published on July 1, 2019, Manhattan Federal Judge John G. Koeltel held that Andy Warhol’s use of a photograph of Prince as “source art” is fair use and requires no license, credit or compensation to the original photographer.

Original Warhol works

The history of the case is as follows. In 1984,Vanity Fair obtained a $400 license from celebrity photographer, Lynn Goldsmith, to supply her portraits of Prince as source art to another artist for one of their upcoming articles, none other than Andy Warhol. Warhol took the portraits Goldsmith had taken of Prince years prior and used them as inspiration to create sixteen new works – twelve silk-screen paintings, 2 screen prints on paper, and 2 drawings. In classic Warhol fashion, the works cropped the original photo and added bright, unnatural coloring to Goldsmith’s black and white originals. One of the pieces was chosen to accompany a Vanity Fair article about Prince titled “Purple Fame,” and the magazine included a small source credit to Goldsmith.

Above: Goldsmith’s portrait; 1984 Vanity Fair article 

When Prince passed away in 2016, Vanity Fair republished the Warhol work; this time, without a license and without giving credit to Goldsmith. According to Goldsmith, it was not until this 2016 republication that she became aware of the Warhol works based on her photograph. Soon after, Goldsmith notified the Andy Warhol Foundation (AWF), which manages Warhol’s works, sharing that she believed there had been an infringement of her copyright. In disagreement, AWF filed a motion for declaratory judgement that the Warhol works do not constitute copyright infringement under the affirmative defense of fair use. She counter-sued for infringement.

Vanity Fair 2006 reprint of Warhol’s work

According to Goldsmith, her black and white portraits were intended to capture Prince’s vulnerability and demeanor as “not a comfortable person.” Meanwhile, the court found that the Warhol works transforms Prince “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” Such transformation is essential to the outcome of this case.

To analyze a fair use defense and allow for circumvention of traditional copyright requirements, courts will balance the following factors (The Copyright Act of 1976, 17 U.S.C. §107):

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In the decision, Judge Koeltel emphasized that the more transformative a work is, the less important each factor becomes and the more likely it is that a work is covered by fair use. In this case, the purpose and character of Warhol’s work was to accompany a commercial article discussing Prince’s fame – not his vulnerability. The purpose of the work was so transformed that the works are not substantially similar or likely to be confused. Similarly, although substantial use of an original can weigh against a finding of fair use, the court emphasized that a transformative work, by nature, needs to copy a substantial amount of the original in order to transform it, justifying Warhol’s substantial use of Goldsmith’s work as source art.

Ultimately, while the Warhol works in this case merely cropped and added colors to Goldsmith’s original portrait, the court found that the overall result was transformative such that there was no copyright infringement issue. Giving rise to public controversy, the court also considered factors outside of fair use, such as the public benefit of having access to Warhol’s works and the fact that Warhol’s works are immediately recognizable as his own.

Fair use is decided on a case by case basis, no two cases are alike. How one judges whether a use is transformative and non-infringing or derivative and infringing can be a close call. It is helpful in comparing works to consider the following. Is the purpose of the final product or project similar to the original? How much of the copyright-able elements (e.g., lighting, positioning, imagery, etc.) of the original will be retained? Would the other work create legitimate and direct market competition to the original work, including a license for a derivative? If the new use is a work of visual art and does not retain much of the underlying copyright-able elements of the original, it is likely that the use will be considered transformative and non- infringing, especially if created by Warhol.

______________________________________________________________________

To read the full case, see: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv02532/472094/84/

 

Case Act Takes Big Step Forward

June 24, 2019 — DMLA board member Rick Gell, spoke briefly with Nancy Wolff, DMLA’s Senior Legal Counsel, who has been in the trenches fighting for the CASE Act on behalf of our content licensing community. The Case Act just took a big step in Congress.

Nancy, briefly, what happened last week?

The Case Act was marked up by the Judiciary Committee of the Senate and will now move to the full Senate. We are still waiting for the House Judiciary Committee to mark up a similar bill.

I know a thing or two about IP Law, but nothing about Small Claims Courts. Can you provide a little background?

Because copyright is a federal law, copyright disputes can only be resolved in federal court, which is an expensive forum for the typical disputes involving the misuse of images and video. Just to start a claim, the filing fee is $400 and you need to use an experienced federal court attorney. Litigation can cost hundreds of thousands of dollars. Small claims courts most people are familiar with cannot be used because they are only for claims that can be brought in state court.

The UK established a copyright Small Claims Court in 2012 which is dedicated only to copyright cases. What is being proposed in Congress is to have claims of relatively lesser value resolved by a special tribunal at the Copyright Office. You would not need to have a lawyer and the claims could primarily be resolved on paper or by telephonic calls, without travel expenses.

So, if I understand this correctly, in a proposed copyright small claims court, both parties agree to appear before this tribunal and wave a trial by jury, therefore it is “voluntary”?

Yes. You can bring a claim in the copyright Small Claims Tribunal, and the other side can agree to use the tribunal or “opt out”. If the other party opts out, it can still be sued in federal court.

It creates a new pathway for those who allege their copyright has been infringed and those who are facing a claim of infringement. If your copyright claim is less than $15,000 for each instance, $30,000 in total – you are eligible.

When did the idea of using a Small Claims Court for IP start?

Many of us, including myself, have worked on enacting a copyright Small Claims Court for over ten years. The Copyright Office began studying this issue, conducted hearings and wrote a report in September 2013 recommending a separate copyright tribunal. The DMLA has been working with a coalition of associations of visual artists for many years, as well as the Copyright Alliance, Songwriters Guild, Authors Guild and many others, meeting with Congress and encouraging grassroots efforts by members to obtain sponsors for the CASE Act in both the House and Senate and to ultimately get this bill passed.

Who will the judges be?

The US Copyright Office will create a panel of three officials, who are experts in copyright law to oversee the process. This should encourage registration as there may finally be an affordable venue for enforcement.

There has been some recent opposition, primarily from the Electronic Frontier Foundation about encouraging copyright trolls. Can you speak to their concern?

The CASE Act in both the House and Senate have precautions against abuse and excessive filings. Creators are entitled to enforce copyright when their works are infringed. The use of the terms copyright troll is often misused and attributed to anyone trying to enforce copyright. Courts have generally reserved this term for attorneys who file a high volume of cases without trying to settle first, in order to obtain higher fees than are reasonable. It is not likely these attorneys will participate in this tribunal. If creators have a viable option, they can bring standard copyright claims in this tribunal without attorneys.

As the tribunal is optional, the EFF should not have any concerns as anyone can elect to opt out. The EFF often portrays copyright infringement as infringing on free speech, without properly recognizing copyright owners legitimate right to control the use of their works. The DMLA and our members are strong supporters of free speech and the Copyright Act provides limited use without permission under the fair use doctrine in keeping with the First Amendment. Copyright enforcement and free speech are not mutually exclusive and copyright infringement is not equivalent to censorship.

What is the next step?

When the full senate returns from vacation, hopefully Mitch McConnell will bring the measure to the floor for a full vote. Then on to the House.

DMLA SUPPORT STILL NEEDED FOR CASE ACT

Dear Members:

We have had great response from the House for the CASE Act and we now have 31 co-sponsors for H.R. 2426!  The letter writing and meetings with representatives is working, but we can’t stop now.  We still need efforts from all of you to get the support for the bill up to triple digits to assure passage.

Many of you had made the push to get your contributors to participate in this important effort and we are grateful. We know that Serban Enache at Dreamstime sent an email to all of his 500,000 contributors asking them to write to their representatives and also wrote on social media in support of the CASE Act.  Thanks so much Serban.

The bill  is backed by the group of creative associations that DMLA  has been working with over the last 10 years including, ASMP, APA, ASCRL, the Copyright Alliance, GAG, NANPA, NPPA, and PPA. So, we’re off to a great start, but we need to build momentum, and that’s where you come in. DMLA has already written the relevant members of the House Judiciary Committee and the Senate in support of the CASE Act. However, getting a bill passed is hard work. We need to build as much support as possible for the CASE Act before Congress takes its summer break in August. The Representatives and Senators need to hear from their constituents to know that this bill has grass root support in their states and districts.

We’ve made it very simple for you:

  1. Send the attached letter (which you may modify) to your Member of Congress through their contact page
  2. Encourage your photographers to add their voices at the web portal copyrightdefense.com/action
  3. Tweet/use instagram and/or Facebook to show your support for the CASE Act

Thanks so much. We know we can count on you to make sure this important legislation gets all the attention it needs from our DMLA Membership.

 

PicRights Further Develops Global Copyright Enforcement Network with Expansion into Africa

New team in Johannesburg provides deep experience and a gateway to the African continent

 

June 4, 2019 – PicRights, a global leader in copyright enforcement, has added a new partner in Johannesburg, South Africa to monetize copyright infringements for the world’s leading news agencies, stock image agencies and independent photographers. No other copyright compliance service offers its clients as much geographical coverage of key markets around the world.

Stock Options, a well-known full-service production and footage house in Johannesburg with close ties to the stock licensing industry will handle copyright enforcement in South Africa, joining PicRights’ long established network in major markets in Europe, North America, South America and the Middle East.

“Copyright enforcement that works cannot be a purely technological solution; it relies heavily on the human expertise of our teams on the ground. Our chosen partner in South Africa has not only extensive experience in licensing content, but also a deep understanding of copyright and intellectual property. They will be an invaluable asset,” says Alfred Hoefinger, CEO of PicRights Europe.

“PicRights streamlined system allows enforcement teams, legal counsel and content owners to collaborate and exchange information quickly, regardless of location or time zone, which is a big plus for my team,” says Margi Sheard, Managing Director of Stock Options.

Geographically, this provides a foothold for future growth as Africa is home to several emerging markets. “Stock Options has a considerable history in South Africa when it comes to producing and licensing both still images and footage and are perfectly positioned to act as a gateway to Africa for our copyright enforcement activities,” adds Geoff Cannon, VP of Sales for PicRights.

PicRights handles the challenging business of monetizing copyright infringements, allowing copyright owners to focus on their core business. Using state-of-the-art technology to identify infringements and a team of professional QC staff to qualify them as enforceable, PicRights delivers actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees.

PicRights Europe GmbH

CONTACT: Geoff Cannon, VP Sales

PHONE: +1 416 816 5700

EMAIL: geoff.cannon@picrights.com

Permission Machine Announces the Opening of its French Office

 

 

 

Permission Machine bvba has continued its international expansion by opening an office in Lille, France. It follows the opening of Permission Machine’s Los Angeles office in the U.S. last year.

It will strengthen Permission Machine’s image search and infringement enforcement for all of its global clients. The new office will handle all French cases directly. As Nico Matthijs, head of the French operations says, “Being local, knowing the laws and speaking the language is the recipe of Permission Machine’s success. The Lille office and its French staff is crucial for us to successfully expand our operations in the French market.”

About Permission Machine

Permission Machine was established in 2013 by Ywein Van den Brande, a Belgian intellectual property attorney with degrees from Leuven University, UCLA and Rouen University. He founded the company to pursue infringements ethically, offering the service free of charge to photographers and agencies. Permission Machine’s proprietary technology ensures its clients see accurate filtered results to ensure their intellectual property rights are protected. The company has seen tremendous growth over the past three years with success based on achieving quick negotiated settlements.

For more information about our services, please contact Michael Masterson at michael.masterson@permissionmachine.com.

 

PicRights Advances Global Copyright Enforcement Network With New Partner in India

Team in Hyderabad joins long established network to monetize infringements for content owners

PicRights Europe GmbH, a global leader in copyright compliance, has once again expanded its enforcement network. To monetize copyright infringements for the world’s leading content owners, PicRights has added an experienced team in Hyderabad, India as the newest enforcement partner. This will augment PicRights’ long established network in major markets in Europe, North America, SouthAmerica and the Middle East, further cementing PicRights’ dedication towide-ranging geographical coverage of key markets around the world for its clients.

The new location is strategic. India remains the fastest growing major economy in the world. By 2024, India will have the largest population in the world and willexperience a 4x growth in consumer spending in the next ten years.

“Many of our current image collections have been available for licensing in this region for decades, but without the benefit of dedicated copyright enforcement. Our chosen partner in India will provide our clients withexcellent opportunities to further monetize their content,” says Alfred Hoefinger, CEO of PicRights Europe.

Conceptual Pictures, an experienced stock image licensor located in Hyderabad will be responsible for cases in both India and Singapore. “With the established expertise of my team and the PicRights state-of-the-art system, we were up and running on Day 1 in India,” says Ramji Ravindran, Founder and CEO of Conceptual Pictures.

Geoff Cannon, VP Sales of PicRights Europe, adds “As content owners know, copyright infringement is a huge challenge nearly everywhere, including in emerging markets like India. The addition of India to our already extensive enforcement network allows us to provide a robust global solution to our customers.”

With their end-to-end service, PicRights handles the difficult business of monetizing copyright infringements, allowing copyright owners to concentrate on their core business. Using state-of-the-art technology to identify infringements and a team of experienced staff to qualify them as enforceable, PicRights delivers actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees.

 About PicRights:

PicRights Europe GmbH is headquartered in Switzerland with enforcement operations and professionalcompliance officers in central and northern Europe (Germany, Austria, Switzerland, France, Benelux andScandinavia), London (for UK and Ireland), the Middle East (Emirates and Saudi Arabia), Toronto (for USAand Canada), Sao Paulo (Brazil), Hyderabad (India) and Johannesburg (South Africa).

PicRights Europe GmbH

CONTACT: Geoff Cannon, VP Sales

PHONE: +1 416 816 5700

EMAIL: geoff.cannon@picrights.com

DMLA Needs Member Support for CASE Act

Dear Members:

May 2, 2019 was a big day for copyright advocacy in Washington D.C. as two companion bills (H.R. 2426 and S. 1273 ) were introduced in both the House and the Senate creating an alternative forum for hearing copyright infringement cases of relatively lesser value entitled the Copyright Alternative in Small Claims Enforcement Act (CASE Act).  The legislation, creates a small-claims process for creators and businesses whose work is infringed to be heard by a tribunal within the Copyright Office, without the need for attorneys, or personal appearances. The monetary limit  is $30,000 for two works

These bills have bipartisan support, which  is rare and very encouraging. The bill  is backed by the group of creative associations that DMLA  has been working with over the last 10 years including, ASMP, APA, ASCRL, the Copyright Alliance, GAG, NANPA, NPPA, and PPA. So, we’re off to a great start, but we need to build momentum, and that’s where you come in. DMLA has already written the relevant members of the House Judiciary Committee and the Senate in support of the CASE Act. However, getting a bill passed is hard work. We need to build as much support as possible for the CASE Act before Congress takes its summer break in August. The Representatives and Senators need to hear from their constituents to know that this bill has grass root support in their states and districts.  So, we are asking you to do the following:

  1. Send the attached letter (which you may modify) to your Member of Congress through their contact page
  2. Encourage your photographers to add their voices at the web portal copyrightdefense.com/action
  3. Tweet/use instagram and/or Facebook to show your support for the CASE Act

Thanks so much. We know we can count on you to make sure this important legislation gets all the attention it needs from our DMLA Membership.

Warm regards,

Nancy Wolff, DMLA Counsel                                                                                                                       Cathy Aron, DMLA Executive Director                                                                                                       DMLA Legal Committee