PACA’s new President, Sarah Fix, has a new video where she shares her visions for PACA/DMLA. Lots of new exciting changes are taking place for the 60 year-old organization!
On September 15, 2014, Nancy Wolff, on behalf of the Digital Media Licensing Association, Inc., together with various visual arts associations, responded to the Copyright Office’s Notice of Inquiry concerning its study on the right of making available. Congress asked the Copyright Office to study whether the United States meets its obligations under various copyright treaties that require members to provide authors certain exclusive rights, including the exclusive right to make a work available to the public and to communicate to the public, including on the internet.
There have been some controversial court interpretations of the the display right in such a way that effectively swallows up visual artists’ making available right and communication to the public right online and that this interpretation is inconsistent with Congress’ intent. Read the entire article here.
by Nancy Wolff, PACA Counsel
On September 15, 2014, Nancy Wolf, on behalf of the Digital Media Licensing Association, Inc., together with various visual arts associations (The National Press Photographers Association (“NPPA”), American Society of Media Photographers, (“ASMP”), Graphic Artists Guild (“GAG”)) who signed on to the letter, responded to the Copyright Office’s Notice of Inquiry concerning its study on the right of making available.
Congress asked the Copyright Office to study whether the United States meets its obligations under various copyright treaties that require members to provide authors certain exclusive rights, including the exclusive right to make a work available to the public and to communicate to the public, including on the internet. For those of you that are familiar with the exclusive rights a copyright owner has under US law, you will say,” but I never heard of that right!”. You would be correct. The Copyright Act under 17 U.S.C. § 106 provides an author with various exclusive rights such as the right to reproduce a work, to distribute a work publicly, to display a work publicly, to transmit or perform a work publicly and to make or authorize derivative works. But the Copyright Act has no express making a work available or communicating a work to the public right.
What the Copyright Office and others have maintained is that the making available right is implicitly included in the bundle of exclusive rights provided in 17 U.S.C. § 106. The comments submitted specifically focused on the making available right and communication to the public right in connection with displaying images on the internet.
In sum, the comments raised a concern that some courts have misinterpreted the display right in such a way that effectively swallows up visual artists’ making available right and communication to the public right online and that this interpretation is inconsistent with Congress’ intent. In particular, the comments focused on the “server test,” established by the Ninth Circuit in Perfect 10, Inc. v. Amazon, which coupled the display right with the reproduction right. A series of court decisions adopting the server test, hold that a website only infringes the display right if the copyrighted image is stored on the website’s server, and then displayed using that stored copy. Under the Copyright Act, however, the display right and reproduction right are independent and, as such, it should be irrelevant whether the one possesses or controls the physical copy from which the display or communication is made.
One of the unfortunate results of these recent decisions is that a website can circumvent the need to obtain a license to use a copyrighted image by implementing certain technological processes that enable a website to display an image without storing a copy on its server. As this technological slight-of-hand, used to circumvent licensing requirements becomes more prevalent, the loss of control by visual artists over their images increases exponentially. The comments conclude that the courts’ interpretation of the display right eviscerates visual artists’ right to make their images available online and their parallel right to prevent others from doing so. Websites can circumvent licensing which in turns is causing real economic harm to image libraries and individual creators who rely on the ability to license their works to earn a living.
The recommendations include having the Copyright Office draft guidelines regarding the interaction between the rights of communication to the public and making available, and the exclusive rights set forth in the Copyright Act. Importantly, the guidelines should clarify that each of the exclusive rights are distinct – that there can be a violation of the public right to display without also having a reproduction. The guidelines should further articulate the definition of “display” to include new technological ways of displaying images online. Lastly, if the courts’ misinterpretation of the display right for visual artists persists, the response supports Congressional action.
The complete response is available here
The PACA/Digital Medial Licensing Association’s Conference Program continues to build with sessions focused on helping you build and grow your business! You won’t want to miss out on this great educational and network opportunity. Registration rates go up on Tuesday, September 16, 2014. Register today
Investing for Growth: Options in Venture Capital and Private Equity
Access to capital is paramount for taking your business to the next level. Now more than ever venture capital firms and private equity groups are eager to invest in digital media licensing companies. Learn from our panel of seasoned investment professionals how to present your company to potential investors, identify investment partners well suited to your growth strategy, and how to close your first round of funding. 1 hour with 1/2 hour question period.
Moderator: Rick Leckrone, Blend Images
• Brett Hickey, Star Mountain Capital
• Laura Sachar, Starvest Partners
• John Frankel, ffVC
• Andy Yang, 500px.com
See you in October!
The Membership Committee has been busy bringing new companies into the Digital Licensing Media family. We are very excited to welcome them into the association! Hope to see many of these new faces at the Annual Conference in October in NYC!
Digimarc: www.digimarc.com Digimarc is the global leader in protecting author rights and book revenue, utilizes digital watermarks and web crawling technology to trace and remove pirated content across the Internet
500px: www.500px.com Leveraging the photo community at 500px, with over 4 million professional photographers worldwide, 37 million data-backed photos, and dedicated research teams. 500px Prime is committed to helping creatives find and license the perfect image.
LiveItWell: www.liveitwell.com A small start-up to manage internet marketplace of still images made available for licensing and distribution.
PhotoAbility: www.photoability.net Stock Image Library featuring Inclusive Images of People with a Disability engaged in Travel, Leisure and Lifestyle activities.
Steven Sklifas Photography: www.stevensklifas.com This specialised Image Stock Library exclusively features the extensive and unique image collection of leading Mediterranean Heritage Photographer Steven Sklifas. Stevens’ Archive library is one of the largest private collections in the world that represent Mediterranean Heritage.
Karen Dsilva Email: email@example.com
Paul Melcher Email: firstname.lastname@example.org
PACA, the Digital Media Licensing Association, is pleased to announce the addition of Juli Cook, Executive Vice President of Corbis Images, to its Board of Directors. Cook will fill a vacant seat as Member-at-Large and brings a depth of business acumen that will be an instant boost to PACA’s Executive team.
As the EVP of Corbis Images, Cook is responsible for leading global strategy and execution of Corbis Licensing in content categories that include News, Sports and Entertainment, Commercial content and Motion. She served as Vice President of Product Management at Washington Mutual prior to joining Corbis in 2005. At WaMu, Cook lead the charge for developing new products and services for retail bank customers. Previously, she held management roles at Deloitte Consulting and Sotheby’s.
Cook moves into the spot vacated by Elena Flanagan-Eister, CEO of Depositphotos, who stepped away from her position as Member-at-Large to become PACA’s Vice President. Eister’s experience in the tech sector will aid all the efforts PACA is undertaking in this area.
The new PACA Board is preparing for a late-July retreat in New York City where the focus will be on establishing goals for the 2014-2016 term.
We excited to announce that registration is now open for the 19th Annual PACA Conference! We’re returning to New York City, one of the United States’ most vibrant, artistic, and populous cities. The City That Never Sleeps is the perfect setting for PACA, the Digital Media Licensing Association, in our continued efforts to bring innovation, inspiration, and information to our industry. Mark your calendar for October 19-21, 2014.
We’re making your trip to NY a cost-effective one by having two great events together! We will be teaming up once again with Visual Connections to bring you a 4-day event with the opportunity to network with both industry partners and clients. We’ll kick things off with a PACA Reception the evening of Day 1, the PACA Conference on Days 2 and 3, and Visual Connections on Day 4.
PACA is known for its excellent educational program, and we are already lining up exceptional speakers and panelists for this year’s event. The meeting will take place at the Altman Building, a historic landmark and private event venue in the heart of Chelsea.
Register early here to get the best discounts!
Keep checking http://www.pacaoffice.org/conference.shtml for the latest program information.
For more information contact Cathy Aron, PACA Executive Director, at email@example.com
We’re looking forward to seeing you in October!
PACA, the Digital Media Licensing Association, announced today a change in leadership. Steve Spelman, incoming PACA President for the 2014 to 2016 term, made the decision to resign from his position as incoming President after leaving Corbis.
“Due to changes within the sales team in the New York office, I will no longer be working at Corbis, and as a result, I felt it best to resign as President of PACA,” Spelman said. “PACA is an extremely valuable and important part of our collective industry and my involvement over the years has been very rewarding. I look forward to rejoining PACA in the near future.”
The nominations committee quickly nominated and the board unanimously elected Sarah Fix of Blend Images as the new President of PACA. Sarah Fix was serving as Vice President on the current executive board and served as Secretary in the previous term. As VP Creative and member of Blend Images, LLC, Fix is responsible for overall creative direction, marketing, and photographer development. She began her career in stock photography in 1993 at Westlight, and has held various management and director level positions at Corbis, Brand X Pictures, and PictureArts before joining Blend Images.
“Steve Spelman will be deeply missed in his role on the Executive Board,” Fix said. “I am already rolling up my sleeves, working on a strategy and speaking with members. I look forward to working with our Executive Director Cathy Aron and an executive board that represents a variety of different types of agencies.”
The PACA 2014 to 2016 Executive Board also includes Julie Zentmaier of Science Source Images as Secretary, Chris Carey of Minden Pictures as Treasurer, past President Nancy Carrizales of Animals Animals/Earth Scenes, and four members-at-large, Geoff Canon of Masterfile, Keren Sachs of Shutterstock, Karl Schatz of Aurora Photos, and Elena Flanagan-Eister of Depositphotos.
PACA Participates In Copyright Office Roundtable On State of U.S. law recognizing and protecting “making available” and “communication to the public” rights for copyright holders.
On May 5, Nancy Wolff attended a Copyright Office roundtable hearing on behalf of PACA. The subject of the hearing was US compliance with two international treaties– the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively, the “WIPO Internet Treaties”). Both require member states to recognize the rights of making available and communication to the public. These rights give authors of works, producers of sound recordings, and performers whose performances are fixed in sound recordings the exclusive right to authorize the transmission of their works and sound recordings, including through interactive platforms such as the Internet. In other words it give authors the right to authorize how the public can view and or hear music, videos and images online.
The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (“DMCA”) in 1998. Congress did not amend U.S. law to include explicit references to “making available” and “communication to the public” rights, concluding that these rights were already available by combining the bundle of exclusive rights under the US Copyright Act. Recently some courts and commentators have expressed uncertainty over how the existing rights may apply to various methods of making of copyrighted works available to the public, including in the digital environment.
Congress requested that the Copyright Office review and assess how the existing bundle of exclusive rights under Title 17 covers the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment. One aspect was the feasibility and necessity of amending U.S. law in this area.
PACA’s interest specifically focused on the making available and communication to the public rights involving images in the Internet environment. While the bundle of exclusive rights under Section 106 of the Copyright Act, including the exclusive right to reproduce, distribute and display publicly, should support the making available right in the Internet context, court decisions have weakened the exclusive right to make a work available or communicate it to the public in the Internet environment. Specifically, a series of court decisions in the 9th circuit including Perfect 10 v Amazon, have permitted Internet search companies to publicly display images without any risk of copyright infringement based on the courts interpretation of the exclusive rights under the Copyright Act. For example, Google was found not to violate Perfect 10’s copyright in its images even though it displayed full size images in its image search results, because the images were “framed” by using “in-line linking” from the source website, even though the images look like they are being displayed by Google. Because no copy of an image resided on a Google server, the court found that there could be no direct copyright infringement, requiring for the first time that the exclusive right to display publicly a work was linked to the reproduction of the work by the alleged infringer. At the time, PACA supported the position of Perfect 10 in an amicus brief arguing that under the definition of display found in the Copyright Act, a display only requires that a copy be shown by means of a process and does not require that the copy be physically stored on the search engine’s server. Instead, the court adopted the server test, which limits copyright infringement to works reproduced and stored on a server, and then displayed based on that stored copy.
This is a clear example of form over function. An image search communicates the visual work to the public, regardless where it is stored. By framing, the public believes Google, or other similar search engine is providing the image, and Google can sell advertising adjacent to the “framed” image. It receives the benefit of the display right, but without any obligation to license or compensate the image owner, and without any risk of direct infringement.
Since the P10 case, image search has evolved to be even less favorable to the rights holder. Initially when a viewer clicked on the framed image, it was taken directly to the source website. Now the source website is greyed-out and only the large resolution image is visibly displayed. By using in-line framing and linking, and not displaying the image on a server, anyone can use technological measures to avoid direct infringement. If this technological circumvention becomes prevalent it could drastically reduce or eliminate the need to license visual works in an Internet environment. The message to the Copyright Office was that if this interpretation by the courts of the display right for visual copyright owners continues, Congress may need to clarify that a display right can be violated by any process and is not contingent upon a reproduction residing on a server of the entity that is receiving the functional benefit of the visual display. In sum, the US treaty obligations with respect to the communication to the public and the make available rights of visual works in an Internet environment is not being met based on court interpretations of the exclusive rights under Section 106.
The testimony was videoed and should be available on the Copyright Office website
PACA’s new Executive Board begins its term of office tomorrow, May 1, 2014. As we turn the gavel to our new President Steve Spelman and his new officers, our sincere thanks goes to the outgoing board, especially to Nancy Carrizales, PACA President.
Board positions require countless volunteer hours by these PACA members. This association would not exist without their time and efforts:
President: Nancy Carrizales, Animals, Animals/Earth Scenes
Secretary: Sarah Fix, Blend Images
Treasurer, Karl Schatz, Aurora Photos
Members at Large:
Geoff Canon, Masterfile
Steve Spelman, Corbis
Lanny Ziering, Superstock
Past President: Robert Henson
President: Steve Spelman, Corbis
Vice President: Sarah Fix, Blend Images
Secretary: Julie Zentmaier, Science Source Images
Treasurer: Chris Carey, Minden Pictures
Members at Large:
Geoff Canon, Masterfile
Elena Flanagan-Eister, Depositphotos
Keren Sachs, Shutterstock
Karl Schatz, Aurora Photos
Past President: Nancy Carrizales, Animals, Animals/Earth Scenes
There are many Committee Chair positions still available and many committees that need members. Please contact Cathy Aron at firstname.lastname@example.org to volunteer!