Category Archives: Legal

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

Judge strikes down ‘data trespass’ laws as unconstitutional

In a big win for NPPA (National Press Photographer’s Association), after years of litigation, a federal judge struck down a Wyoming law that unconstitutionally banned photography in certain circumstances in Wyoming. They were represented by Public Justice in this case, but Mickey H. Osterreicher, Esq. and Alicia Wagner Calzada, PLLC dedicated many hours to this effort.
NPPA is member of the coalition of Visual Artists group along with DMLA.

PicRights Extends Global Copyright Enforcement Network To Brazil

New partner in Brazil to monetize infringements for global customers

PicRights Europe GmbH, a global leader in copyright compliance, has added a new enforcement partner in Brazil to monetize copyright infringements for the world’s leading news agencies, stock image agencies and independent photographers. PicRights Brazil will augment PicRights’ long established network in major markets in Europe, North America and the Middle East. No other copyright compliance service offers its clients as much geographical coverage of key markets around the world.

“With the established expertise of Luis Franca and his team, we’re hitting the ground running in Sao Paulo. We’ve already got a significant number of cases ready for enforcement in Brazil in the system,” says Alfred Hoefinger, CEO of PicRights Europe.

Geoff Cannon, VP Sales of PicRights Europe, adds “We’re well aware that copyright infringement is rife in some countries beyond our current scope and we’re working toward solutions that will extend our reach to every part of the world. Our new partnership in Brazil is another big step.”

PicRights’ end-to-end service allows copyright owners to concentrate on their core business while PicRights handles the difficult business of monetizing copyright infringements.

PicRights uses state-of-the-art technology to identify infringements, a team of experienced QC staff to qualify them as enforceable, then distributes the actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees. If PicRights’ enforcement staff is unable to settle a case, it is escalated to a law firm specializing in intellectual property within the relevant jurisdiction to pursue a settlement and if necessary, litigate.

A highly efficient workflow system allows PicRights enforcement teams, legal counsel and clients to collaborate and exchange information quickly, regardless of location. The proprietary payment portal collects all funds and transparently distributes proceeds between copyright owners and service partners.

About PicRights:

PicRights Europe GmbH is headquartered in Switzerland with enforcement operations and professional compliance officers in central and northern Europe (Germany, Austria, Switzerland, France, Benelux and Scandinavia), London (for UK and Ireland), the Middle East (Emirates and Saudi Arabia), Toronto (for USA and Canada) and Sao Paulo, Brazil.

** PicRights is a new Member of DMLA!

Hearing for CASE Act: Capitol Hill, September 27th

The House Judiciary Committee has scheduled a hearing on the Copyright Alternative in Small-Claims Enforcement (CASE) Act on Thursday, September 27th at 2:00pmET (Room 2141 in the Rayburn House Office Building).

Rayburn House Office Building Address45 Independence Ave SW, Washington, DC 20515/
Nearest Metro Stop: Capitol South on Blue/Orange/Silver Lines Nearest Train StationUnion Station

Expected witnesses are as follows:

  • Ms. Jenna Close, P2 Photography
  • Mr. Keith Kupferschmid, Copyright Alliance
  • Mr. Matthew Schruers, Computer and Communications Industry Association
  • Mr. David Trust, Professional Photographers of America
  • TBD, Internet Association

DMLA encourages members to show their support of the CASE Act by joining with other visual creator organizations on Capitol Hill in show of unity for the proposed small claims tribunal before the House Judiciary Committee.  The Copyright Alliance will be passing out T-shirts to all in support of our cause.

We will be posting more information as it becomes available, but if you are in the area, please plan to show your support!

 

 

IMAGERIGHTS BOOSTS OPERATIONS TO TACKLE COPYRIGHT INFRINGEMENT IN GERMANY

 

ImageRights International Inc., the world’s leading copyright enforcement service, intensified its image search and copyright enforcement operations in Germany to drive value for its global photographer and photo agency client base.  ImageRights-developed artificial intelligence (AI), combined with its proprietary web search and image analysis algorithms, has enabled the company to analyze millions of German web domains to determine if an image use could be pursued for copyright enforcement purposes.

“Our clients have been asking us to strengthen our coverage in Germany due to the inability of existing technologies to locate the many unauthorized uses of their content that they see happening.  In response, we made the major investment necessary to ramp up our German operations in terms of both image search infrastructure and copyright enforcement capabilities,” explained Joe Naylor, President and CEO of ImageRights.

ImageRights’ most recent pool of web search servers was deployed in a biometrically secured German data center with redundant 10 Gbit/s fiber connections. As a result of the latest improvements, ImageRights is now finding and analyzing on average more than 77,000 new German sightings every day.  When clients access their ImageRights dashboard, they will see that the ImageRights AI has already filtered, sorted and ranked the sightings in terms of potential claim value, generating massive time savings for them.

“ImageRights is a reputable company that is known for a high level of integrity” said Marc Hügel, Partner at Munich-based law firm Waldorf Frommer Rechtsanwälte GbR. “As our firm is highly specialized in enforcing copyright claims for clients from all creative industries, we are looking forward to representing ImageRights and its clients and are ready to tackle the surge in copyright infringement claims.”

 

Copyright Office Fee Increase Survey

Dear DMLA Members and Friends of DMLA:

The U.S. Copyright Office has released a Notice of Proposed Rulemaking announcing fee increases for copyright registration and other services. The proposed fee increases are based on a Study Report released by the U.S. Copyright office. Fee increases for services will be implemented as the U.S. Copyright Office moves forward with their plans for IT modernization.

Visual creators’ professional organizations and advocates are concerned about how these fee increases will affect visual creators, licensing agents, and related professionals. We will be submitting a Comment Letter to the U.S. Copyright Office about the proposed fee increases. We have created a survey to gather information and feedback from creators who will be impacted by registration fee increases. We will be submitting the survey results to the Copyright Office. The survey is completely anonymous.

We need your help by taking 15 minutes for a short survey. The survey is anonymous and all responses are confidential. We will use this data to support our response to proposed changes in U.S. copyright registration.

The survey will close at midnight on September 7, 2018.

 2018 Copyright Office Proposed Registration Fee Increase survey LINK https://www.surveymonkey.com/r/GGV59XY

Survey link for social media https://www.surveymonkey.com/r/WY67XHK

Please pass this along to other artists, photographers, and related professionals you know and urge them to take the survey, too!

Sincerely,

The Coalition of Visual Artists:

American Photographic Artists

American Society of Media Photographers

Digital Media Licensing Association

Graphic Artists Guild

National Press Photographers Association

North American Nature Photography Association

Professional Photographers of America

PLUS Coalition

American Society for Collective Rights Licensing

Eugene Mopsik

Shaftel & Schmelzer

FAIR USE OR INFRINGEMENT?

Industry experts have been scratching their heads after a U.S. judge ruled an image, taken from the website of a professional photographer and used by a film festival online, was fair use. The case, is Brammer v. Violent Hues Productions LLC, and it began when Russell Brammer found one of his pictures, a long exposure shot of Adams Morgan, Washington D.C., had been used on a website promoting the Northern Virginia Film Festival.

Read a complete analysis of the case here