Category Archives: Legal

Copyright Alternative in Small-Claims Enforcement Act of 2017

DMLA is happy to announce our support for the bill by Representative Hakeem Jeffries (D-NY) to create a small claims court within the Copyright Office.  The bill, H.R. 3945,  entitled, the “Copyright Alternative in Small-Claims Enforcement Act of 2017” (the “CASE Act”) is also cosponsored by Representatives Tom Marino (R-PA), Lamar Smith (R-TX), Doug Collins (R-GA), Judy Chu (D-CA) and Ted Lieu (DCA).

Here are links to the press release issued by Rep. Jeffries and his colleagues yesterday announcing the introduction of the bill, a press release issued by DMLA and several other visual artist organizations praising the introduction of the legislation, and the bill, H.R. 3945.

 

 

ImageRights Announces Dedicated Copyright Registration Service

ImageRights International, the global leader in copyright enforcement services for photo agencies and professional photographers, today announced the launch of a dedicated copyright registration service. For the first time, any photographer or agency can register their images with the United States Copyright Office through ImageRights highly efficient and precise copyright service. Previously, only ImageRights members had access to the service.

Read more here

Leading Copyright Enforcement Service Imagerights Announces Dedicated Copyright Registration Service


ImageRights International, the global leader in copyright enforcement services for photo agencies and professional photographers, today announced the launch of a dedicated copyright registration service. For the first time, any photographer or agency can register their images with the United States Copyright Office through ImageRights highly efficient and precise copyright service. Previously, only ImageRights members had access to the service.

ImageRights has successfully registered more than 600,000 published and unpublished images with the USCO through the service since its launch less than two years ago. The application is quick taking only a couple of minutes, simple with a high tech software that auto fills out the form, and most importantly accurate. With error checking technology, users can be assured their applications were filled out with all necessary information to protect images if an infringement claim is ever needed to be pursued. As a result of the accuracy of its applications and the long-standing relationship it has with the examiners at the USCO, ImageRights’ turnaround is among the fastest on the market, taking only a few weeks on average to receive the registration certificates versus the six to eight months cited on the copyright.gov website. Images can be registered through the website or by using the ImageRights Plugin for Adobe Lightroom.

ImageRights also inscribes the USCO registration number, date, status and deposit copies into the Bitcoin blockchain through their Blockchain Inscription Service. By using SHA2, an asymmetric cryptographic function, ImageRights can safely and automatically convert any file into a representative hash value. An effective and much faster alternative to requesting and paying for copies of the deposit copies from the USCO, the hash can be used as validated proof that a file containing the USCO registration information and images covered by the registration existed at that time and can be a valuable tool for expediting settlement negotiations for infringement claims.

“We strongly believe in photographers and agencies registering their images with the US Copyright Office and wanted to make our service readily available to all,” said Joe G. Naylor, President and CEO of ImageRights. “If the USCO form is not submitted the right way or the correct documentation of your work is not kept on file, photographers can be left vulnerable when pursuing an infringement claim. With our services they are 100% protected.”

Photographers and agencies can register their images with the US Copyright Office for $99 plus the Copyright Office filing fee at http://www.imagerights.com/copyrightregistration.

 

COURT PERMITS COPYRIGHT CLAIM TO PROCEED DESPITE ERROR IN REGISTRATION APPLICATION.

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The District Court of the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., (No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017)) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

Read the entire article here.

COURT PERMITS COPYRIGHT CLAIM TO PROCEED DESPITE REGISTRATION ERROR

Cowan DeBaets Abrahams & Sheppard, LLP by Mikaela Gross and Nancy Wolff

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The District Court of the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., (No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017)) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

In 2005, Archie MD, Inc. entered into an Animation License Agreement (“ALA”) with the publisher Elsevier, Inc., under which Elsevier would license Archie’s library of 3-D medical animations for use in its various publications. About two weeks after entering into the ALA, and after Archie had delivered the works to Elsevier, Archie submitted a single copyright registration application for a group of unpublished works. This registration included the work at issue in this case, an animation entitled “Cell Differentiation.” The Copyright Office eventually registered the group of works on August 15, 2005.

In 2014, Archie gave Elsevier notice that it did not intend to renew the ALA, and the ALA expired on July 1, 2015. Archie subsequently file a copyright infringement action against Elsevier, alleging that after the expiration date, Elsevier continued to use hundreds previously licensed animations under the ALA and created unauthorized derivative works.

Both parties filed motions for summary judgment, and the SDNY granted defendant Elsevier’s motion as to all but two of Elsevier’s new animations, on the grounds that Elsevier’s continued use of previously licensed animations did not constitute unauthorized use under the ALA and most of the new animations by Elsevier were not substantially similar to Archie’s animations. As to the remaining claims based on the “Cell Differentiation” animation, Elsevier contended that Archie’s copyright registration in unpublished works was invalid because the work was in fact published, and as a result, the court should dismiss Archie’s claim in its entirety. The court denied Elsevier’s motion for summary judgement as to “Cell Differentiation” on the basis that although the registration for “Cell Differentiation” contained an inaccuracy (namely that the work was unpublished, when it in fact was), this was not fatal to the registration under 17 U.S.C. § 411(b)(1).

Section 411(b)(1) of the U.S. Copyright Act explains that a certificate of registration issued by the Copyright Office satisfies the registration prerequisite for filing a copyright infringement action regardless of the existence of inaccurate information in the certificate “unless— (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” To determine whether Archie’s registration failed to satisfy this prerequisite, the court had to answer two questions: first, whether or not “Cell Differentiation” was published or unpublished, and second, if it was published, whether this inaccuracy on the certificate of registration was fatal to the registration’s validity.

As to the first question, the court held that “Cell Differentiation” was in fact published when Archie licensed and delivered the file to Elsevier. Reasoning that Archie’s delivery of the “Cell Differentiation” digital file pursuant to worldwide license to, among other things, distribute “Cell Differentiation” to the public, satisfies the Copyright Act’s definition of publication under 17 U.S.C. § 101 because it constitutes an “offering to distribute copies . . . to a group of persons for purposes of further distribution.” That Elsevier had not yet made any further distributions of “Cell Differentiation” at the time the copyright registration application was filed was irrelevant, because the licensing and delivery of the files was itself an offering.

Because the certificate of registration listed “Cell Differentiation” as unpublished, the court turned to the statute to answer the second question. If an applicant knew its application contained inaccurate information, and if the Register of Copyrights would have refused registration had she known of this inaccurate information, then a subsequent registration certificate is invalid for purposes of filing a copyright infringement action. 17 U.S.C. § 411(b)(2) requires that when an inaccuracy on a certification of registration is discovered, a court must ask the Register of Copyrights “whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” The Register advised the court that she would have denied the application had she known of the inaccuracy in labeling “Cell Differentiation” unpublished. The key issue was whether Archie knew of the inaccuracy. Because the question of whether licensing a work constitutes publication was “an unsettled legal question at the time” Archie filed its copyright registration application in 2005, the court reasoned that Archie did not know of the inaccuracy. As a result Archi was able to proceed on its copyright claim for the work “Cell Differentiation”.

Publication remains a thorn in copyright owner’s side. While the plaintiff in this case was not considered to have knowledge that its works were published at the time of registration, those filing registrations after the later cases clarifying what is published will no longer have the benefit of this uncertainty. Because the Copyright Office would deny registration of an application with inaccurate information as to the works’ publication status, it is highly recommended that creators register works of visual art before any licensing agreements are signed or files are delivered for further distribution. Otherwise, published works, if photographs, can be registered by the photographer under a group registration of photographs application, but published and unpublished works are still required to be filed separately. Until this requirement is revised, visual artists will continue to face impediments to successful and effortless copyright registration.

 

 

 

Nancy Wolff Named to 2018 Edition of the Best Lawyers in America

Cowan, DeBaets, Abraham’s & Sheppard’s Law Practice had six attorneys selected for inclusion in the 2018 edition of Best Lawyers in America list. Among them is our own, Nancy Wolff, DMLA Counsel.

Nancy is currently President of the Copyright Society of the USA and she is a frequent speaker throughout the United States and Europe on issues relating to copyright, digital media, and licensing for many organizations including the American Bar Association, The Copyright Society, Practicing Law Institute (PLI), The Digital Media Licensing Association, and the European Confederation of Image Libraries and Archives (CEPIC). She frequently speaks at design schools and photography classes on issues relating to copyright, trademark, and publicity as it relates to the licensing of digital media.

This is such a well-deserved honor for Nancy.  We join the many others in offering our congratulations and good wishes to CDAS and to Nancy.

Copyright Alliance Welcomes DMLA

DMLA is pleased to become the latest member of the Copyright Alliance and to work with their team and with fellow members to continue promoting and protecting the interests of the media licensing community.  You can read the press release sent out by the Alliance here.

Copyright Alliance Welcomes Digital Media Licensing Association (DMLA) as its Newest Member

 

Washington, D.C. – The Copyright Alliance, which represents the copyright interests of over 1.8 million individual creators and over 13,000 organizations across the spectrum of copyright disciplines, announced the addition of Digital Media Licensing Association (DMLA) as its newest member.

Headquartered in Chandler, AZ, DMLA was established in 1951 by a core group of New York stock photo agencies concerned about the protection of original transparencies. Today DMLA hosts an annual conference, quarterly webinars and industry networking, actively develops business standards, promotes ethical business practices, and advocates for copyright protections on behalf of its members, which encompass more than 100 digital content licensing companies.

According to DMLA Executive Director Cathy Aron, “We’re pleased to join the Copyright Alliance, and look forward to working with their team and with fellow members to continue promoting and protecting the interests of the media licensing community through copyright advocacy, education and communication.”

Added DMLA Counsel Nancy Wolff, “We’re happy to be working with the Copyright Alliance to ensure that our community of visual media licensing professionals have the greatest copyright protections and enforcements for their businesses.”

According to Copyright Alliance CEO Keith Kupferschmid, “We are thrilled to welcome DMLA to our membership. Their team works diligently to advocate on behalf of visual media professionals. And we look forward to assisting them in actively protecting the rights of their stakeholders on critical copyright matters.”

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ABOUT THE COPYRIGHT ALLIANCE The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over 1.7 million individual creators and over 13,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit www.copyrightalliance.org.

DMLA signs on to Copyright Alliance letter to Ambassador Lighthizer

Negotiations for modernizing NAFTA begin today,  August 16. The Copyright Alliance felt that it was vital that the USTR hears from individual creators and small and medium businesses about the importance of high-standard copyright provisions in the agreement, particularly in light of aggressive lobbying efforts by internet platforms and user groups to water down such provisions. To that end, DMLA participated in a letter to Ambassador Lighthizer on behalf of organizations representing small businesses and individuals highlighting the need for NAFTA to include meaningful copyright protections, effective enforcement, appropriate limitations and exceptions, and safe harbor provisions that incentivize platforms to minimize infringement.

You can read the letter here.

DMLA Signs on to Letter to Ambassador Lighthizer re: NAFTA

August 16, 2017

Dear Ambassador Lighthizer,

The undersigned groups represent the interests of a diverse group of small and medium businesses (SMEs) and individual creators in the creative fields. What unites us is a reliance on meaningful and effective copyright laws. Together, the core copyright industries contribute over $1.2 trillion to U.S. GDP, employ 5.5 million workers, and contribute a positive trade balance—and SMEs and individual creators make up a significant part of these industries.

The internet’s global reach has made copyright protections and enforcement increasingly important to free trade agreements. The small and medium businesses we represent are often on the forefront of exploring new models for making creative works available on a global scale. Widespread copyright infringement and unduly broad limitations to copyright protection distort overseas markets and undermine the ability of our members to successfully and fairly engage in commerce.

The effort to renegotiate NAFTA provides an opportunity to modernize the copyright provisions of the agreement for the digital age and establish a template for future agreements. We urge you to look beyond the failed Trans-Pacific Partnership (TPP) and to seek the highest standard of protection for businesses and creators that rely on strong copyright to compete successfully overseas.

Specific priorities for small and medium enterprises, as well as individual creators, include the following:

Strong and meaningful copyright protection and enforcement. The agreement should recognize the full scope of copyright rights, including making available, and remedies such as injunctive relief and statutory damages.

Effective enforcement provisions. Trade agreements are critical to fostering legitimate online marketplaces. A modernized NAFTA should respond to the challenges facing creators by including provisions to ensure effective enforcement and requiring legal protections for technological protection measures and rights management information.

Appropriate limitations and exceptions. NAFTA should reinforce the “three step” test for limitations and exceptions that has been the international standard for decades. The three-step test strikes the appropriate balance in copyright, and any language mandating broader exceptions and limitations only serves as a vehicle to introduce uncertainty into copyright law, distort markets and weaken the rights of the small and medium businesses and creators we represent. For that reason, we strongly urge USTR to not include “balance” language similar to what appeared in the TPP or any reference to vague, open-ended limitations.

Incentives for service providers to cooperate with copyright owners in addressing online infringement. Few SMEs have the means to devote resources to policing online infringement, and we therefore rely on service providers taking reasonable steps to minimize piracy that occurs on their platforms. To promote incentives for service providers to cooperate with copyright owners to address online infringement, the copyright provisions in NAFTA should establish appropriate standards for intermediary liability as well as appropriate safe harbor protections for intermediaries. We urge negotiators to provide for safe harbor protections in broader terms than how they’ve appeared in recent trade agreements. Congress and the U.S. Copyright Office are currently reviewing U.S. copyright law, and we want to make sure lawmakers have the flexibility to address shortcomings in domestic safe harbor provisions.

We thank you for your consideration of our priorities and look forward to working with you further as negotiations progress.

Sincerely,

American Association of Independent Music
American Photographic Artists
American Society of Journalists and Authors
American Society of Media Photographers
Artists Rights Society
Association of Independent Music Publishers
Authors Guild
Church Music Publishers’ Association – Action Fund
Digital Media Licensing Association
Graphic Artists Guild
Nashville Songwriters Association International
National Press Photographers Association
Recording Academy
SAG-AFTRA
Society of Children’s Book Writers and Illustrators
Songwriters Guild of America
Songwriters of North America
Textbook & Academic Authors Association
Western Writers of America