Category Archives: Industry News

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. 2436 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

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.

VISUAL ARTS GROUPS APPLAUD RELEASE OF NEW SMALL CLAIMS LEGISLATION

 

May 1, 2019 – A coalition of visual artists, representing hundreds of thousands of mom-and-pop creators in every state across the country is praising U.S. House and Senate sponsors for taking steps to correct a century-old inequity in copyright law. The legislation—introduced today by Congressmen Jeffries, Collins as well as Senators Kennedy, Tillis, Durbin and Hirono, creates a small claims process for creators whose work is infringed.  The Copyright Alternative in Small Claims Enforcement Act (CASE Act) represents a rare bipartisan, bicameral effort on Capitol Hill.

The CASE Act creates a small claims tribunal operating under the U.S. Copyright Office — a process that will be especially valuable to an estimated 500,000 or small creators, including photographers, illustrators, graphic designers, song-writers, independent authors, and others whose only  remedy for infringement is to pursue an action in Federal Court. A Federal court action can cost hundreds of thousands of dollars to bring to fruition, while small creators report that most infringements are valued at $3,000 or less.

“It’s hard to imagine a world that doesn’t protect small creators, but that is exactly what we have today,” says David Trust, CEO of Professional Photographers of America.  “Ironically, it is the same group of creators that can least afford to have their work stolen.”  Trust is referring to surveys that show many, or most, small creators earning just $35,000 a year on average.  “With the CASE Act, smaller creators would finally have an equal seat at the table of protections enjoyed for so long by other creators.”

The CASE Act would provide a way for creators to recover damages from an infringement without going to Federal Court.  Damages would be capped at $30,000 per proceeding, although expectations are that most of the claims would be valued at much less than that.  Proponents of the bill believe the creation of a small claims process is long overdue.

Proponents of the bill believe the creation of a small claims process is long overdue.

“For ASMP members, congressional action on the CASE Act is not an abstract exercise in lawmaking,” says ASMP executive director Tom Kennedy. “Photographers we represent are small business owners who depend on licensing income from their photographs to stay solvent as they work long hours without the luxury of lots of staff to make their businesses work smoothly.  Yet, unfortunately on a weekly basis, our members experience multiple infringements that deprive them of the income so necessary for business success.”  That lack of income can be the different for making a mortgage payment or paying a school tuition.

The Graphic Artists Guild strongly supports the introduction of the The CASE Act, establishing a copyright small claims tribunal.  “Graphic artists – designers and illustrators – are caught in a zero-sum game when it comes to enforcing their copyrights”, says Rebecca Blake, Advocacy Liaison for the Graphic Artists Guild.  “Their work is routinely infringed and infringers, knowing that the artists often don’t have the means to take an infringement lawsuit to federal court, usually ignore their attempts to revolve the dispute. The CASE Act will provide an affordable, equitable means for graphic artists to enforce their copyright.”

“Copyright infringement is a pernicious problem for our members,” said Michael P. King, President of the National Press Photographers Association. “Visual journalism is incredibly valuable work that is regularly stolen and circulated on the Internet. Yet visual journalists currently face a long, expensive process to be compensated for the theft of their work. The manner in which infringement persists without a workable remedy is economically devastating for photographers, their clients and their employers. It is our hope that the balanced nature of the CASE Act provides a real solution for photographers and other authors.”

“We are so grateful that Congress is taking up the CASE Act,” says Cathy Aron, DMLA Executive Director.  “This legislation is a critical element of copyright reform as it offers the image licensing industry, and others, an alternative to expensive Federal litigation to resolve copyright claims in an affordable manner.  An effective copyright  system is the bedrock of the  licensing community, and an ability to seek real remedies for the garden variety infringements  that are pervasive in an online environment, is essential to the licensing  industry.   We are delighted that all the hard work from many associations, people from congress, senators, and advocates is finally paying off.”

Having the CASE Act enacted into law would finally provide individual creators with the tools they need to protect their creative works from those who use them without permission or compensation. Enacting the CASE Act would remedy a historic inequity of the copyright system and by giving visual creators the kinds of protections that enables them to continue to create works that impact all of society in a positive way.

 

About the members of the Coalition of Visual Artists:

American Photographic Artists(APA) is a leading national nonprofit organization run by and for professional photographers. APA strives to improve the environment for photographic artists and clear the pathways to success in the industry. Recognized for its broad industry reach, APA works to champion the rights of photographers and image-makers worldwide.

The American Society for Collective Rights Licensing(ASCRL) is a 501(c)(6) not-for-profit collective management organization (CMO) for visual art authors and rights owners. We collect royalties and distribute them to our members based upon representation agreements that we have with other collecting societies around the world. Our intention is to provide an ongoing revenue stream from reprographic funds for authors or rights owners in visual works.

The American Society of Media Photographersis this country’s foremost trade association supporting independent photographers who work commercially for publication in all forms of media.  ASMP is the leader in promoting photographers’ rights, providing education in better business practices, producing business publications for photographers, and helping to connect clients with professional photographers.  ASMP, founded in 1944, has nearly 5,000 members organized into 38 chapters across the country.

The Digital Media Licensing Association(DMLA) has developed business standards, promoted ethical business practices, and actively advocated copyright protection on behalf of its members for over 65 years.  In this era of continuous change, we have remained an active community where vital information is shared and common interests are explored.  In addition, DMLA educates and informs its members on issues including technology, tools, and changes in the marketplace.

The Graphic Artists Guild(GAG) has advocated on behalf of graphic designers, illustrators, animators, cartoonists, comic artists, web designers, and production artists for over fifty years. GAG educates graphic artists on best practices through webinars, Guild e-news, resource articles, and meetups. The Graphic Artists Guild Handbook: Pricing & Ethical Guidelines has raised industry standards and provides graphic artists and their clients guidance on best practices and pricing standards.

The National Press Photographers Association (NPPA) has been the Voice of Visual Journalists since its founding in 1946.  NPPA is a 501(c)(6) non-profit professional organization dedicated to the advancement of visual journalism, its creation, editing and distribution in all news media. Our Code of Ethics encourage visual journalists to reflect the highest standards of quality and ethics in their professional performance, in their business practices and in their comportment. NPPA vigorously advocates for and protects the Constitutional rights of journalists as well as freedom of the press and speech in all its forms, especially as it relates to visual journalism. Its members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community.

North American Nature Photography Associationpromotes the art and science of nature photography as a medium of communication, nature appreciation, and environmental protection by providing information, education, inspiration, and opportunity for all persons interested in nature photography.  NANPA fosters excellence and ethical conduct in all aspects of our endeavors and especially encourages responsible photography in the wild.

Professional Photographers of America(PPA) is the world’s largest and oldest association representing professional photographers.  Founded in 1868, PPA exists to help its members prosper artistically and financially by providing artistic and entrepreneurial skills through its industry-leading education system, unmatched benefits, and award winning magazine.  PPA was founded over a predatory patent application, and continues its work on Capitol Hill to defend photographers’ rights today.

 

 

Fourth Circuit Rules in Favor of Stock Photographer Russell Brammer

In October 2018 DMLA filed an amicus brief in support of photographer Russell Brammer’s appeal to the Fourth District over a questionable Virginia district court decision, which held that production company’s use of his stock photo of a Washington, D.C. neighborhood on a website promoting a film festival was fair use.

Our focus was on the extent of the market harm -and the impact the lower court’s decision would have on the licensing industry if this type of fair use of an image became widespread. Other visual artists associations as well as the Copyright Alliance, submitted amicus briefs on behalf of the photographer addressing other factors. This is great example of the industry coming together to correct a decision that if left to stand, could adversely affect the rights of content owners and members of DMLA if other courts followed the lower courts fair use analysis.

In the decision released on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s use of a cropped version of photographer Russell’s photo of Adams Morgan in a list of tourist attractions on a website promoting the Northern Virginia International Film and Music Festival did not qualify as a fair use.

This is also another good example of DMLA’s advocacy and how we use your dues monies to work for the benefit of the industry and your business.

Read the entire article here

Fourth Circuit Rules in Favor of Stock Photographer, Overturning Questionable Fair Use Decision (Brammer v. Violent Hues Productions, LLC(4th Cir. 2019))

By Sara Gates and Nancy Wolff CDAS

The rights of a stock photographer were recently vindicated when the U.S. Court of Appeals for the Fourth Circuit overturned a questionable Virginia district court decision, which held that a production company’s use of a stock photo of a Washington, D.C. neighborhood on a website promoting a film festival was fair use.  In the decision released on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s use of a cropped version of photographer Russell Brammer’s photo of Adams Morgan in a list of tourist attractions on a website promoting the Northern Virginia International Film and Music Festival did not qualify as a fair use.

The case focuses on the photograph “Adams Morgan at Night,” which Brammer shot from the rooftop of a building in the Washington D.C. neighborhood in 2011.  Experimenting with various shutter speeds and aperture combinations, Brammer photographed a busy street full of passing cars that appear as trails of red and white lights.  He published a digital copy of the photo on his website and on Flickr with a “© All rights reserved” notice, and later licensed the photo for online use.

Years later, in 2016, Violent Hues downloaded the photo—presumably from Flickr, while overlooking the rights notice—and proceeded to crop out the negative space before posting it on http://novafilmfest.com, necessitating the litigation.  After the district court absolved Violent Hues of liability under the fair use doctrine, Brammer appealed the decision, asking the Fourth Circuit to set the record straight.

The Fourth Circuit did just that when it engaged in a thoughtful analysis of the fair use factors and considered the arguments raised by each side.  Its decision is instructive as it adds to the wealth of case law on how to interpret the complex and nuanced doctrine of fair use.

Purpose and Character of the Use

For the first factor, the Court considered whether Violent Hues did anything to transform the work.  The Court rejected Violent Hues’ suggestion that the analysis should focus on the subjective intent of the parties and instead compared Brammer’s photo and Violent Hues’ use, as it appeared on the website, side-by-side.  The only obvious change, the Court noted, was the cropping, which generally is non-transformative.

The Court also rejected Violent Hues’ contextual argument, in which they claimed that they transformed the photo by putting it on a list of tourist attractions.  While courts have found minor contextual changes to be sufficient in two specific instances—raw material for technological functions and documentary uses—the Court found that Violent Hues’ copying did not fall within either category.

As Violent Hues’ use of the photo was also for a for-profit film festival, and Violent Hues’ did not have to pay the customary fee for its use of stock image, the Court found this factor ultimately weighed against fair use.

Nature of the Copyrighted Work

The Court’s consideration of the second factor focused on the thickness versus the thinness of the author’s rights, noting that some works are closer to the core of intended copyright protection that others, which should be entitled to only thin copyright protection.  Here, the Court found the photo was entitled to “thick” protection, considering Brammer’s many creative choices, such as the location, shutter speed and aperture combinations, uses of vivid colors, and birds-eye-view angle.  The Court noted that photos are generally viewed as creative, even if they capture images of reality, and have long received thick protection.

Additionally, the Court noted that publication status of the photo was not relevant fair use analysis.  Unlike in the case of literary works, where the right of first publication is paramount, photos are often intended for repetitive viewing, so the publication consideration is different in the area of photography. The Court summed it its point as follows: context matters.  Accordingly, the Court found that this factor also weighed against fair use.

Amount and Substantiality of the Portion Used

The Court’s analysis of this factor was straightforward, as it was clear that Violent Hues used roughly half the photo by cropping out the negative space, but kept the most expressive features, i.e., the heart of the work.  While a substantial taking can still constitute fair use, if it is justified (requiring the Court to look back to the first factor), here, the taking was not justified.  This factor also weighed against fair use.

Effect on the Market

For the fourth factor, the Court consider both the extent of the market harm and whether Violent Hues’ conduct, if widespread, would result in a substantially adverse impact to the photos’ potential market.  Here, the Court found a presumption of market harm, which exists when commercial use is not transformative, but amounts to a mere duplication.  Though Brammer was not required to present any evidence to show the negative effect on the licensing market for the photo, given that the Court found the presumption applies, he did so, showing that he received a $1,250 fee in one instance.  The Court noted that Brammer would have missed out on this fee if the company that decided to license his photo had instead opted to act like Violent Hues. Thus, this factor weighed against fair use as well.

As all four factors weighed against fair use, the Court’s balancing test was fairly easy: no fair use.  The Court signed off with this reminder the there is no difference between copying photos for print use versus online use: “What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

DMLA’s Interest

DMLA filed an amicus brief in favor of the photographer, specifically addressing the fourth factor – extent of the market harm -and the impact the lower court’s decision would have on the licensing industry if this type of fair use of an image became widespread. Other visual artists associations as well as the Copyright Alliance, submitted amicus briefs on behalf of the photographer addressing other factors. This is great example of the industry coming together to correct a decision that if left to stand, could adversely affect the rights of content owners and members of DMLA if other courts followed the lower courts fair use analysis.

 

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.

20/20 Software Offers New Tools for Working with Footage

 

 

 

Today’s buyers want a range of video from long films to short clips for social media, documentaries, and everything in between. As a provider, you must also appeal to the client who wants a specific slice, immediate download, and purchase online.

20/20 Software video technology provides:

  • NEW! Creating Time Slices and Downloading in real time
  • Automated creation of thumbnails, previews, and preview posters
  • Fully customized overlays: Time Stamps, Text, watermarks
  • Viewing video from any source: onboard, YouTube
  • Search Results play videos on hover
  • Resizes for all current devices (desktops, tablets, mobiles)
  • Clipping
  • Offset Timestamps
  • Multi-processing
  • Batch processing

If you would like to learn more about our software, please call or email. We would be delighted to work with you and show you why so many media archives, museums, corporations, institutions, and newspapers world-wide put their trust in our software and in our company.

Best wishes,

Sheron Resnick                                                                                                                                                 20/20 Software, Inc.                                                                                                                                        2001 W. Main Street, #270                                                                                                                     Stamford, CT 06902

203.316.5500

sheron@twensoft.com

www.twensoft.com

Ninth Circuit Addresses Outstanding Copyright Issues in VHT, Inc v Zillow Group

The Ninth Circuit recently addressed a number of outstanding copyright issues between Zillow, the popular apartment hunting website, and VHT a provider of real estate photographers’ photos, and VHT, although it left the question of whether database registrations offer statutory damages for each image, or if all the images in one application are limited to one award of statutory damages.  Read the article here

Can Websites Design Platforms to Avoid Copyright Liability?

VHT, Inc. v. Zillow Group, Inc., No. 2:2015-cv-01096 (W.D. Wash. 2017)

By: Pranav Katti & Nancy Wolff

The Ninth Circuit recently addressed a number of outstanding copyright issues between Zillow, the popular apartment hunting website, and VHT a provider of real estate photographers’ photos, and VHT, although it left the question of whether database registrations offer statutory damages for each image, or if all the images in one application are limited to one award of statutory damages. Although Zillow properly licensed these photos from VHT, the central question was whether Zillow exceeded the scope of this license, and the calculation of damages.

The Zillow Platform: Zillow is a user-oriented site where users can search for certain photos and even save and upload images to a private “personal board”. The photos on Zillow fall within the categories of “displayed”, “not displayed”, “searchable” and “not searchable”. Zillow used VHT photos in two areas on its website, a “listing platform” and “digs”. The listing platform features photos and information about properties while digs features photos of rooms within some of those properties, artfully and aesthetically designed to facilitate home improvement and remodeling.

District Court Decision: The district court previously found that Zillow did not directly infringe the 54,257 listing platform photos, the 22,109 non-displayed photos and the 2,093 displayed but non-searchable digs photos. Zillow also escaped the claim of secondary copyright liability for the use of the photos on digs. However, Zillow’s was found to have directly infringed 3,921 displayed and searchable VHT photos on digs and the court rejected its fair use argument. The court also found that Zillow willfully infringed on 3,373 searchable photos and in assessing damages, asked the jury, which photographs allegedly infringed upon, had an independent economic value.

Ninth Circuit:  On appeal, the Ninth Circuit similarly found that Zillow did not directly infringe upon the copyrights of the 54,257 photos used on their listing platform and the 22,109 non-displayed photos and 2,093 displayed but non-searchable photos.. The reasoning behind this decision lays primarily in the type of agreements that VHT provided Zillow, the control Zillow had over these photos and Zillow designing its system to avoid copyright infringement as much as possible. Also aiding Zillow was their prompt action to address claims of infringement and VHT’s lackluster effort in providing Zillow the information needed to adequately address these claims.

Zillow’s System: VHT provided Zillow with either “evergreen” or “deciduous” rights in the photos provided. Evergreen rights allow a photo to be used without any time restriction, or in other words, a photo can remain on the site even after the property has been sold. Conversely, a deciduous right is time-limited. Zillow required VHT to designate the type of agreement underlying each provided photo, and Zillow’s system then automatically sorted the photos pursuant to these agreements and automatically treated each photo within the scope of its agreement. Zillow designed an automated “trumping” algorithm to determine which photos to display on the listing platform. This system gave preference to photos with evergreen rights in order to design a system avoiding copyright infringement. Because VHT provided the agreement designation for each provided photo, Zillow also did not exert control over these photos.

Direct liability: Zillow avoided direct liability on the 2,093 digs photos that users copied to their personal boards but were not added to Zillow’s searchable database, based on the immunity granted qualified ISP’s under the Copyright Act for user generated content.  Photos designated by Zillow as searchable requires a moderator to designate the photo for tagging. The mere possibility that Zillow had the opportunity to moderate and tag these photos was not sufficient to transform Zillow from a passive host to an active one.

Fair Use: In response to the 3,921 searchable photos which Zillow moderators personally tagged, Zillow contends that digs’ searchable function amounts to fair use as the use was “transformative”. The past two decades has been wrought with cases involving the transformative nature of search engines. Important to the determination is whether the use serves the same function as the original use, whether the entirety of the work is used and whether the new use promotes the purposes of copyright. Merely to use the label of “search engine” is not dispositive and the court must assess each case holistically.

The Ninth Circuit disagreed that Zillow’s use was transformative. First, Zillow’s use of VHT’s photos did not change their original purpose, to use the photos to artfully depict rooms within real estate properties. Digs also uses the entirety of the image and Zillow supersedes VHT’s purpose in creating the images in the first place. A copying of full works may be justified if it allows consumers to recognize the image and decide whether to search for more information, such as Google’s Google Books project in which snippets of books were provided in a searchable database, which would otherwise take an exorbitant amount of time to find. As the Second Circuit stated, if Google Books “tests the boundaries of fair use”, then Zillow certainly exceeds it.

Secondary Liability The Ninth Circuit found in favor of Zillow on secondary liability based on a “simple measures” standard of the DMCA and the inability of Zillow to police its users. A computer operator is liable for contributory liability if they can take simple measures to prevent further copyright infringement, yet the operator continue providing access to those works. Here, in order to take down large numbers of photos, Zillow required a Zillow image ID contained in the URL of the image location. Zillow posts multiple copies of its images throughout its site, so simply identifying the image does not allow them to easily find the sources of infringement. It was VHT’s burden to provide these URL’s. Additionally, VHT’s argument that Zillow had the ability to employ watermark detection technology is unavailing, because VHT rarely watermarked their photos. Zillow also lacked the practical ability to police its users infringing content. As the Ninth Circuit stated, “Once … photos were uploaded to the listing platform … ferreting out claimed infringement through use on digs was beyond hunting for a needle in a haystack.” VHT failed to provide URL’s to specific sources of infringement and did not employ watermarking technology. These factors combined with Zillow’s inability to police its users’ activity weighed in Zillow’s favor.

Damages: The Ninth Circuit took issue with the District Court’s determination of damages and remanded the case to the district court to determine whether the VHT photos used on digs were part of a compilation or if they are individual photos for purpose of statutory damages. A compilation is entitled to a single award of statutory damages and VHT was seeking damages for each individual photo, which Zillow used.

DMLA joined other photography associations and filed an amicus brief supporting VHT’s position that a determination that all the photos in a group database registration were a compilation would threaten photographers’ ability to enforce their copyrights. DMLA noted that the purpose of group registration under the Copyright Act was to alleviate the financial and administrative burdens of registering large numbers of works. Precluding individual protection of works within a group registration would discourage artists from seeking protection (a status required to file a copyright suit) if registration of a group work could obliterate any protection in infringements of individual works within that group work.

Takeaway: The Ninth Circuit’s decision highlights the protections the DMCA offers internet companies. The court looked at Zillow’s proactive measures in preventing liability, namely by ensuring that VHT controlled their photos as much as possible, setting up automated trumping systems to sort through photos, and being very proactive in response to VHT’s claims of infringement. However, the court did not require additional measures, such as watermarking. It also highlights how difficult the DMCA is on content creators, especially where many images are infringed. It was VHT burden to identify each Zillow URL and not provide merely provide copies of the images to Zillow. On April 8, 2019 the Copyright Office is holding a roundtable on the section of the DMCA relating to the notice required to be given to ISP’s by content holders, and ISP’s responses and the burdens on the parties.  A representative of DMLA will be attending.

StockFood takes over travel photo agency Look

On April 1, 2019, StockFood GmbH will take over the German travel photo agency Look. All employees, including their long-standing customer advisors and photo editors, will join the StockFood team.

For decades, Look (lookphotos.com) has been known as the leading German travel photo agency. From the very beginning, the name “Look” has been synonymous with the group’s mission. The agency was founded in 1989 in Munich by a small group of professional travel and sports photographers. Look photographers aimed to see the world through different eyes. No journey would be too great to keep them from taking the best photos from around the world and bringing them to you. Over the course of 30 years, Look has developed into one of the most sought-after specialist providers of high-quality travel and outdoor photography. The collection is focused on professional travel photos from around the world and is comprised of about 700,000 exclusive images.

Starting in April 2019, Look will be integrated with the professional agencies that operate under the umbrella of StockFood. StockFood will be taking all employees on board and continue to run Look as an independent brand within its broad portfolio. Following a complete relaunch in April 2019, the website www.lookphotos.com will gradually be enriched with many new functions. Look’s popular place within the Picturemaxx portal will continue and be expanded.

Within the stock photo industry, StockFood is the only global market leader from Germany. The agency is represented in 18 countries by its own representatives and is originally known to be the world leader in food photography. StockFood was founded in Munich in 1979. Today, the company operates a number of other specialized premium agencies. Each of these agencies is among the leading providers in their respective sectors (home, beauty, garden, health, etc.). The concept of marketing highly specialized niche content, each with its own team of specialists and on a branded technological platform has made StockFood one of the most successful European photo agencies.

Martin Skultety, Managing Director of StockFood GmbH, says: “We are delighted to add Look as another outstanding special collection to our portfolio of niche agencies. Look represents passionate travel photography. A multitude of incredibly talented photographers continue to discover our planet from new perspectives. Look photographers are taking us along on their journeys and invite us to marvel and dream. Our goal will be to inspire many more premium image users to literally take a look and to further expand the digital marketing channels for Look photographers.”

Thomas Wild, Managing Director of Look GmbH, emphasizes: “We are handing over Look to a very renowned photo agency and trust StockFood completely on their future path. No other agency has a similar track record of successfully marketing niche photo collections. All our founders and the many long-standing photographers are looking forward to exciting developments in the coming years”.

UNESCO Welterbe Speicherstadt, Wasserschloss bei Regen, Hansestadt Hamburg, Deutschland

Seebrücke im Gegenlicht, Ahlbeck, Usedom, Mecklenburg-Vorpommern, Deutschland