Category Archives: Education

PERMISSION MACHINE AND THE COPYRIGHT ACT: WHEN YOU CREATE IN-DEMAND IMAGES, YOU NEED PROTECTION.

“The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

United States Constitution, Article I, Section 8

An image that speaks to the viewer, and tells a story without words is the ultimate goal for any photographer. And because of that, it is not surprising that there is an untold number of photographer’s images that are coveted and borrowed without the photographer’s knowledge or consent. As a result, there is an increasing need to protect the rights of creators and their work.

Permission Machine

In an increasingly digital world, it is becoming harder and harder to keep track of your imagery. It is not uncommon to find images being used that were not licensed. I wanted to learn more about how photographers could protect themselves and what recourse might be available for those that have instances they’d like remedied and spoke with Michael Masterson of Permission Machine. Permission Machine works to resolve infringement issues and are able to work with both registered and unregistered images. However, the below information will show, registering images will provide for protection and fewer headaches when seeking to recover fees.

When I spoke with Michael, he shared with me the services they provide which include image scans using proprietary reverse search engineering, filtering of images, reporting, in-house legal services, and finding new revenue streams. I liked that there is no upfront cost to the photographer. When a photographer uses Permission Machine’s services, and a case is pursued and settled, the “proceeds are divided equally among the client, the lawyer and Permission Machine with 33.3% going to each.” Michael explained that they routinely get four and five-figure settlements on registered images. “Money that’s just left on the table if not pursued vigorously.”

Copyright Protection

Copyright protects your creation so that you get credit for your hard work and creativity. There are several sources to consider when obtaining copyright information.

  • Copyright law is covered under Article 1 of the Constitution. The US Copyright Office offers guidance specific to photographs, including instructional videos.
  • The Copyright Alliance is a Washington, D.C. based copyright advocacy group who provides information on issues and policy, details on copyright law, resources, news, and education.

Consider two particular chapters within the Copyright Act, Chapter 5 and Chapter 12.

  • If the infringement occurs before an image is registered, you can’t get statutory damages. Under Chapter 5, you need to register before the infringement.
  • If the infringer knowingly removed the copyright or someone else did, then it falls under Chapter 12 whether it’s registered or not.

And if you want to read more about what we have written about copyright, link here.

We recognize photographers work tirelessly to bring their vision and creations to life. Those creations should be protected. Please visit the above sources for Copyright information and check out Permission Machine for timing, a trial, and pricing.

**Permission Machine is a Sponsor of DMLA.

DMLA Legal Update

by Nancy Wolff, DMLA Legal Counsel

On April 8, 2019 I participated in a Copyright Office roundtable on behalf of DMLA  regarding the Copyright Office’s preparation of a Section 512 report, which relates to immunity Internet Service Providers may be entitled to under the Digital Millennium Copyright Act if they comply with various provisions. The roundtable was intended to update the study’s record from 2017 and to review the law, especially the caselaw, that has changed in the intervening years. There were a few cases that looked at whether an ISP would lose the safe harbor immunity based on failure to adopt  a policy for repeat infringers, and further cases that have required actual notice of each URL that contains infringing material, eliminating or narrowing statutory language that includes notice based on facts or circumstances that would make one aware of the infringing activity (known as “red flag” knowledge”).

Participants were divided into four panels, three on domestic issues and one on international developments. Representatives from the Copyright Office asked direct questions on each of the four panels. The last panel on international developments  included comments the new EU directives that appear to require ISPs to take more responsibility in policing for infringements. At the end of the sessions there was an open mike.

Copyright Office representatives included Regan Smith, General Counsel, Brad Greenberg, Counsel for Policy & International Affairs, Kevin Amer, Deputy GC, Kimberley Isbell, Senior Counsel for Policy and International Affairs, and Maria Strong, Deputy Director of Policy and International Affairs.

Representatives from the content community including the Copyright Alliance, RIAA, MPAA, Authors Guild AAP, RIAA, NPPA and a few individual creators were in attendance. For the content side representatives of Google, Facebook and Etsy among others were there.  DMLA is a member of the Copyright alliance, whose staff prepared helpful summaries of the relevant cases that have been decided since the last panel

The themes discussed were similar to three years ago. The content industry saw no change in the burden of the notice and take down regime, and many were choosing to give up. The message was that cases have construed the statutory language in such a way that here is little incentive for ISP’s to cooperate in reducing infringing content. The content community was hoping that trends in the EU may spill over and help in the US.  Conversely, the IPS community believed that the statute and court cases struck the right balance.  The next step is for the Copyright Office to prepare a report to Congress. Whether Congress has an appetite to change Section 512 is another question.

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

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.

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!

 

 

SUBSTANTIAL GROWTH FOR SMARTFRAME TECHNOLOGIES LTD

 

 

“SmartFrame has developed a revolutionary, patent-pending new image format for the
internet that seeks to redefine and become the ubiquitous digital image standard.”

Having spent 5 years developing the technology and building the infrastructure to support
exponential growth, SmartFrame is now seeing the technology being adopted by photographers, picture agencies, publishers and brands globally and is on target to having over
1 billion SmartFrames on the Internet in the next 4 years.

SmartFrame provides its users with unprecedented protection of their digital assets, persistent attribution, world class pixel-perfect presentation, audience engagement through custom overlays and calls to action, controlled sharing tools and full tracking and analytics data, whilst also providing the ability to update their SmartFrame’s dynamically and retrospectively, leaving them in full control at all times. SmartFrame have also developed in-image advertising options allowing it’s users to either set campaigns for their own in-house marketing and advertising purposes wherever they are displayed on the Internet, or opt in for SmartFrame to monetize their content for them via their programmatic advertising functionality.

SmartFrame is an embeddable format and as simple as embedding a YouTube video, Imagine your image content going viral and getting paid every time your image is viewed!

SmartFrame is proud to announce the closing of a further £1.5m funding round, and a
number of exciting new appointments and developments.

SmartFrame is delighted to announce they are completing a further £1.5m round of funding, bringing a total of £4.3m of investment into the business to date. The funding has been secured from some of the UK’s most prominent business leaders and angel investors.

In addition to the funding raised, existing shareholder James Rutherford, Head of European Equities at Hermes SourceCap has been appointed as Chairman of the Board.

The SmartFrame executive team in London has also expanded to include; Rob Staunton as Global Director of Programmatic Advertising, Phil Nott as Sales Director and Cayle McNair as Marketing Manager. In addition SmartFrame’s Berlin office have welcomed Product Manager, Alexander Gloeckner to the team. The company is currently counting 23 full-time staff across London, Berlin and Krakow with additional recruitment underway.

September will see the company launch their new self-service platform with a Freemium subscription plan, along with a number of easy integration tools and plugins to follow, supporting mass adoption of the format to the wider internet, and underpinning SmartFrame’s mission: “ to redefine the digital image standard ”.

Finally, SmartFrame will be present at several International events this year. Up next, the team will be exhibiting at the Digital Marketing World Forum (DMWF) in Amsterdam. They will also be at the London eCommerce Expo exhibiting in the Innovation section. They are a proud sponsor and will be presenting at this year’s BAPLA Focus in London. In October, SmartFrame will also be the joint Platinum sponsors, in partnership with Image Rights International at the Digital Media Licensing Association (DMLA) in Los Angeles.

In reaction to the substantial growth and success of SmartFrame, CEO Rob Sewell, has commented:

“It’s remarkable to see how far SmartFrame has come, having expanded from 3 to 23 FTE’s,with offices set up in London, Berlin and Krakow, and over £4m of funding secured to date.
The company has attracted top talent and Investment across the board and is now entering a stage of rapid expansion and evolution with an anticipated headcount of 60 FTE’s this time next year.
Watch this space as we announce some major global partnership launches in the coming months.”

For further press info, interviews and images please contact:

Cayle McNair, Marketing Manager, SmartFrame Technologies

T: +44 (0) 7850 195 087

E: cayle.mcnair@smartframe.io

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