Category Archives: Industry News

IMAGERIGHTS PRESIDENT AND CEO JOE NAYLOR TAPPED AS CHAIRPERSON OF DIGITAL MEDIA LICENSING ASSOCIATION TECHNOLOGY COMMITTEE

 

Boston, MA – ImageRights President and CEO Joe Naylor has been appointed Chairperson of Digital Media Licensing Association (DMLA) Technology Committee. The announcement was made by DMLA President Geoff Cannon.

As the global leader in copyright enforcement services for photo agencies and professional photographers, Naylor will investigate, discuss, and address issues involving technology that have an impact on the business of digital licensing. Naylor will aid in fostering an environment of growth and collaboration utilizing member’s technical resources and expertise as well as manage and lead technical initiatives to evolve DMLA’s digital presence and value for the membership and potential members.

“DMLA is going through a transformational period in which it is expanding its focus from just that of the U.S. photo licensing industry to the broader digital licensing industry overall, including motion, archival footage and media companies worldwide. With these new initiatives, it is an exciting to time to start my new role as chairperson of the technology committee,” said Naylor. “I look forward to working with the members to shed light on the technology that is influencing our growing industry.”

“ImageRights has always been on the forefront of technology and copyright and we are thrilled to have Joe lead our committee and to lend his expertise to our members,” adds Geoff Cannon, DMLA President.

About ImageRights

ImageRights International provides intelligent image search and copyright enforcement services to photo agencies, professional photographers and media companies worldwide to ensure that their intellectual property rights are protected and that they are compensated for the unauthorized use of their copyrighted works. ImageRights, the only company to have fully automated copyright registration with the US Copyright Office, has made copyright enforcement a truly integrated component of its clients’ daily workflow. Through its in-house license compliance team and global network of copyright attorneys, ImageRights has recovered more than $8 million in settlements and awards on behalf of its clients.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

Read the entire story here.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.” TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos. Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail. Clients pay $500 per month for these services.

The District Court held that the searching, archiving, and watching functions offered by TVEyes constituted fair use, but that the downloading and e-mailing functions did not. Fox only challenged the “watch” function (and its ancillary functions like downloading, archiving, and sharing), but not the search function.

At the outset of its opinion, the Court of Appeals noted the similarities between this case and Authors Guild v. Google, Inc., in which the court held that mass copying of books for purposes of limited text searching was fair use, but it explained that Authors Guild “test[ed] the boundaries of fair use,” and that TVEyes “has exceeded those bounds.” In sum, the court held that TVEyes’ re-distribution of copyrighted content was only modestly transformative under the first fair use factor, but that other fair use factors outweighed any transformative purpose. Despite myriad recent case law holding that transformative use is the most important fair use factor, the TVEyes court seemed to hearken back to a slightly earlier era of fair use and reiterated that the fourth factor – market harm – is “the single most important element.”

The court held that TVEyes’ copying could be considered transformative in that “it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.” Similar to the Sony “Betamax” case, the court noted that TVEyes’ watch function was also akin to time- and place-shifting, and “certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency,” and so was “at least somewhat transformative.” However, the transformative character of the use was not enough to outweigh the commercial nature of the services offered because TVEyes “essentially republishes that content unaltered from its original form, with no ‘new expression, meaning or message.’”

The court found the second factor – the nature of the copyrighted works – inconsequential, but placed significant weight on the third factor, which analyses the amount of the copyrighted works made available to the public. This factor weighed in favor of Fox because, unlike in Authors Guild where Google Books made available only snippets, “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear,” and given the brevity of most news reports, at very least copied and distributed “the entirety of the message conveyed by Fox to authorized viewers of the original” content.

Turning to the fourth factor, the Second Circuit agreed with Fox that “TVEyes undercuts Fox’s ability to profit from licensing searchable access to its copyrighted content to third parties.” Consumers were clearly willing to pay for such a service, and TVEyes therefore “deprives Fox of revenue that properly belongs to the copyright holder,” effectively usurping the market for Fox to offer similar aggregation, searching, and licensing services for its own content. This usurpation, combined with the amount of content offered and the modest transformativeness overshadowed by TVEyes’ commercial use of Fox’s content, defeated TVEyes’ fair use defense. The court remanded with instruction to the District Court to amend its permanent injunction accordingly.

Judge Kaplan of the Southern District of New York, sitting by designation, filed a separate concurring opinion to express his disagreement with the majority’s finding that TVEyes’ uses were at all transformative. He opined that the “somewhat transformative” designation was irrelevant given that the other fair use factors outweighed the transformative use, and that issuing such dicta would serve only to confuse the already complicated question of what constitutes transformative purpose. Nonetheless, Judge Kaplan expressed his own views on why TVEyes’ use of Fox’s content was not transformative, including that the mere “enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers” was not transformative because TVEyes simply repackaged and delivered the original content with no news aesthetics, insights, or understandings.

The Second Circuit’s decision is significant in that it further defines the outer boundaries of fair use by providing a concrete example of what falls outside the doctrine, which is helpful given the arguably expansive implications of the Authors Guild decision, and by distinguishing a facially similar service from the Google Books project it deemed fair use in that case. It also signals a potential shift in focus back to the “market harm” factor of fair use, and away from a strict focus on transformative purpose, but at the same time adds to the growing sense of confusion about what may be considered transformative, or in this case, “somewhat transformative.”

Cowan, DeBaets, Abrahams & Sheppard LLP drafted an amicus brief in this case on behalf of American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, National Press Photographers Association, and Professional Photographers of America, in support of Fox News Network.

BlockChain Registration: Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

Read the entire article here.

Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

 

 

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

What these services offer is the second largest application of the blockchain after Bitcoin: Proof of Existence.

What these services prove is that your image file with the meta data you input existed at the time that the hash was created and inscribed into the blockchain. However, what they fail to acknowledge is that the information can be easily manipulated. Almost anyone can download an image and edit the metadata, populating the data fields with whatever information they choose.

To emphasize the point, here is an example of a photo that was registered through a blockchain copyright registry service along with its blockchain certificate of registration. The only problem is that this photo was not shot by me nor do I own the copyrights to it, John Smith does.

And now let’s imagine the worst-case:

  1. John Smith takes a photo, posts it to his website and inscribes the JPEG file with a blockchain copyright registry service.
  2. I download the image from his site and change the EXIF metadata of the file to my name, thereby creating a twin-JPEG with 100% identical image content, but different bytes.
  3. I register my file with another blockchain copyright registry, which works even if both registries are on the same blockchain because the bytes are different due to the different name I entered in the EXIF meta data.
  4. John Smith’s registry shuts down (e.g. goes bankrupt, management decides it’s not a profitable business unit, etc.). The blockchain still contains the inscribed hash for John Smith’s file; but nobody can find John Smith’s inscription unless they have a bit-identical copy of the image file John Smith registered.
  5. I start licensing the copy John Smith’s image that contains my name in the EXIF data to unsuspecting buyers.

The messaging from the blockchain copyright registration services is extremely harmful to both the creators and users of the photographs. Many users searching the blockchain may take their claims as reliable and fail to perform their due diligence to verify the information provided on the blockchain.

If my image is viewed as authentic, solely because the work is inscribed on the blockchain under my name and falsified copyright information, then I can steal potential sales from the original photographer. Some may even try to go as far as pursuing copyright infringement claims for images they do not actually own the copyright to.

Essentially, these blockchain copyright registration services are proving that you had a specific file at a specific time; but, they cannot make any guarantees about the creation of the file, the content in those files, or the true copyright ownership of those files.

Whatever your position ideologically, the law states that you can’t file a copyright infringement complaint in US federal court if you haven’t registered the image with the US Copyright Office (USCO). Without a timely registration, meaning the image was registered within three months of publication or before the start date of the infringement, you are unable to seek statutory damages of up to $150,000 per infringed work or attorney’s fees. If this crucial step is missed and the copyright information is only inscribed to the blockchain, without a USCO registration, there are potentially hundreds of thousands of dollars that could be lost in a copyright infringement case.

It is also important to know that a major differentiator between a blockchain registration and USCO registration is that the U.S Copyright Office Certificate of Registration serves as prima facie evidence that you are the copyright owner of the image. Prima facie is Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. Blockchain registration certificates do not carry this legal weight.

Furthermore, when you register works with the USCO, you must acknowledge and agree to the following:

17 USC 506(e): Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided by section 409, or in any written statement filed with the application, shall be fined not more than $2500.

*I certify that I am the author, copyright claimant, or owner of exclusive rights, or the authorized agent of the author, copyright claimant, or owner of exclusive rights of this work and that the information given in this application is correct to the best of my knowledge.

Currently, there are not any blockchain registration services that require such an agreement or that can impose such fines by statute for fraudulently misrepresenting copyright ownership information.

While registration with the US Copyright Office can be expensive, don’t be deluded into thinking that the blockchain is some cheap cure-all for legally protecting your copyrighted work. The blockchain is not a government registry, but rather by definition is a distributed ledger without any central authority. Anyone can inscribe whatever they want in the blockchain without any legal recourse. That’s not quite the case with the United States Copyright Office. Proof of Existence is not Proof of Ownership.

 

 

 

Goldman v. Breitbart News, LLC: The Embedding Balance Has Tipped

On February 16, Judge Forrest of the U.S. District Court for the Southern District of New York in Goldman v. Breitbart News, LLC – one of a pair of cases pending in Manhattan federal court concerning the practice of “embedding” copyrighted content – issued a ruling in favor of the plaintiff, photographer Justin Goldman, holding that embedding (or framing) content from another website does not immunize content users from copyright infringement claims.

Read the entire article here.

Goldman v. Breitbart News, LLC: The Embedding Balance Has Tipped, per U.S. District Court

By: Scott J. Sholder and Nancy Wolff

On February 16, Judge Forrest of the U.S. District Court for the Southern District of New York in Goldman v. Breitbart News, LLC – one of a pair of cases pending in Manhattan federal court concerning the practice of “embedding” copyrighted content – issued a ruling in favor of the plaintiff, photographer Justin Goldman, holding that embedding (or framing) content from another website does not immunize content users from copyright infringement claims. The court declined to adopt the Ninth Circuit’s “server test” as set forth in Amazon v. Perfect 10, holding that the location of the allegedly infringed work does not determine whether a defendant has “publicly displayed’ that work in violation of the copyright owner’s exclusive rights. Put another way, “the fact that the image was hosted on a server owned and operated by an unrelated third party . . . does not shield” defendants from a finding that a plaintiff’s display right had been violated.

As background, this case is one of a pair of cases pending in the U.S. District Court for the Southern District of New York, that Justin Goldman has brought against various online media outlets to determine whether embedding images on a website through in-line linking without authorization constitutes copyright infringement. A website embeds an image using an in-line link when it uses HTML code to direct a user’s browser to an image file hosted on and transmitted from a server controlled by a third-party (usually another website) yet it appears as if the image resides on the website the user is actually viewing. The allegedly infringing website effectively opens a “window” allowing the user to see an image hosted by a third party, yet never actually copies, stores, or serves up the image itself.

Because of the 9th Circuit ruling in favor of the server test in Amazon v Perfect 10 (which DMLA filed an amicus brief opposing the server test) many digital media companies will use this technology. Many content owners and their representatives, believe this type of embedding harms the image licensing market by permitting the display of content without proper licensing.

The defendants in both the Breitbart cases lost initial motions to dismiss and moved in each instance for partial summary judgment on the question of the legality of embedding under the Copyright Act (a motion complete with amicus briefs). Goldman’s companion case, Goldman v. Advance Publications, Inc., et al., is pending in the same court but before a Judge Carter , and is at an earlier procedural stage.

At issue in the Breitbart summary judgment motion is whether the defendants’ embedding of a photograph posted on Twitter constitutes unauthorized “public display” of that photograph in violation of 17 U.S.C. § 106(5). The defendants, including Time, Inc., Yahoo, Inc., and Vox Media, own media outlets that reported about New England Patriots quarterback Tom Brady’s meeting with members of the Boston Celtics in the Hamptons – a newsworthy occurrence in the context of NBA player trades. Goldman captured a photograph of the athletes, which several Twitter users posted on the social media platform. The defendants then embedded tweets containing Goldman’s photograph using in-line linking. Goldman sued for copyright infringement, asserting that this display in connection with thestory violated his rights under copyright.

The Defendants, in moving for summary judgment opposing Goldman’s direct copyright infringement claims, rely heavily on Perfect 10 v. Amazon in which Google’s in-line linking of the plaintiff’s copyrighted images of nude models was not copyright infringement because the images were stored on the servers of third-party sites. Goldman counters that Perfect 10 was wrongly decided because the user still displays the photo; that there are significant technological differences between what Google did in Perfect 10 and embedding content from social media platforms; and that Perfect 10 does not apply because it is not precedential in the Second Circuit.

The court agreed and chiefly relied on the language of the Copyright Act, including § 101’s definition of “display,” which includes showing a copy of a work by any “device or process,” and transmitting or communicating a display by means of any “device or process.” The court explained that the Copyright Act does not require a user to possess, or to store at their own physical location, a copy of the work to display it within the meaning of the statute. The court further looked to legislative history and the 2014 decision in Aereo to note the application of the Copyright Act to new technologies.

Consequently, the district court found that the defendant websites engaged in processes that resulted in transmission and “display” of the photograph at issue even though the photograph was stored on Twitter’s servers, noting the seamless presentation of the photograph on their websites from the perspective of a website visitor. Moreover, the court expressed skepticism that Perfect 10 correctly interpreted the Copyright Act’s display right, but that, even so, there were key factual and technological differences that distinguished it from the Breitbart case. Specifically, in Perfect 10, the defendant, Google, operated a search engine that indexed web content for easy reference and facilitation of access, and users made active choices to click on images before they were displayed, whereas in Breitbart, users simply viewed a webpage that displayed an image regardless of whether the user specifically looked for it or clicked on it. Moreover, the court found that very few cases followed the “server test,” and so was unconvinced that there was an “unbroken” line of cases supporting the position set forth in Perfect 10.

Goldman’s companion case against Advanced Publications, Inc., is still pending, with Judge Carter staying discovery and requesting immediate notification of a decision in the Breitbart case as of January 19, 2018. It remains to be seen whether Judge Carter will be influenced by Judge Forrest’s decision, and whether any appeals will be forthcoming.

Judge Forrest’s decision is seen as a victory for content owners, creators, and licensors who believe that the technological machinations behind how content is posted should not serve as a workaround to proper licensing. Presumably the case closes a perceived loophole against IP licensing, and its scope would apply to the display right of any content. While the blogs (and particularly the tech writers) were a buzz about how this case ruins sharing online, the Breitbart court did not believe that the resultant impact of its decision on the Internet at large would have as “dire consequences” as predicted by the defendants and their amici, and noted that in this case, strong defenses to liability separate from the “server test” still exist, including proper ownership, licensing/authorization, fair use, the DMCA safe harbor, and innocent infringement. Nonetheless, these defenses only come into play once a claim or action is asserted, so proper instruction on licensing is still important.

DMLA supported Getty Images and other visual artists associations in filing an amicus brief supporting Goldman in opposition to the server test. A copy of the amicus brief is here and the decision is here.

DMLA mourns passing of Ellen Herbert.

The industry lost one of its finest advocates recently when Ellen Kasemeier Herbert suddenly passed away after a short battle with lung cancer. Beloved by so many who worked with her over her long career spanning more than four decades in the business, she leaves a huge void. Known for her kindness, work ethic and passion for photography, she touched the hearts of all who knew her.

Her first job in the stock photography business in the mid 1980’s was at After-Image in Los Angeles where she worked under the direction of Ellen Boughn, who remembers her fondly…“as a spinning light of energy and passion. Her commitment to her work and to family was stellar…ever loyal and loving. Some of my best memories are from when she was a young mother, delighting in her life with Blake. Finally, I remember her sense of humor and the many times she made me laugh out loud.”

Her list of adventures in the visual media industry also included stints with Adventure Photo, Picture Arts, Punchstock, Ignited Minds, and JupiterImages. She is best remembered for her enthusiasm for the world of photography and the many photographers she tutored and mentored along her journey. She established Neat Production in 2009 a visual professional offering creative trend research, art buying, creative briefs, full production services and support, image, document and content research, rights clearances to agencies, publishing and design firms, film and documentary companies and photographers. Clients included GAIA, deviantART, the designory, British Vogue, Clos du Bois, Frommers, High, Wide and Handsome, Visual Connections and Audi.

One of Ellen’s proudest accomplishments was her participation in the 2005 Oscar winning documentary “Mighty Times: The Children’s March” where she researched and created the archival database of over 2,000 still photos, film clips and interviews for Tell the Truth Pictures. She often spoke about how this civil rights documentary was a life changing experience for her.

Ellen was active in both PACA/DMLA and ASPP where she held committee and board positions with both organizations. In recent years she’d worked with Visual Connections, editing their blog and programming their events. Deborah Free, co-owner of Visual Connections, remembered Ellen’s contributions, “Ellen was truly an inspiration. Her positivity, her energy and the support she extended to all are greatly missed. She always gave of herself freely and willingly and could be counted on completely for any project she took on. I consider myself incredibly honored to have been her friend.”

Ellen’s passion for her work and extraordinary willingness to share her experience, knowledge, ideas and creativity made her a very special and unique member of our community. Michael Masterson, former ASPP President, shared his remembrances of Ellen, “I’ve had the privilege of knowing Ellen as both a colleague and friend for 30 years. She was the consummate producer both professionally and personally. When you worked with Ellen, you never had to worry – she got the job done and done well. Her love of imagery, passion for whatever she was tasked with and incredibly high ethical, moral and professional standards endeared her to anyone who ever worked with her. Her dazzling smile always lit up a room and my heart which is irrevocably broken by her loss.”

Her husband Simon and son Blake survive Ellen.  The world is a little darker without her light.

A Memorial For Ellen has been set for February 25, 2018 ttps://www.facebook.com/events/1239950056139842/

A tree will be planted in her name per her wishes https://www.gofundme.com/atreeforEllen

 

A Coming Change: KodakOne Attempts to Prevent Unlicensed Use of Pictures

by Nancy E. Wolff and Kyle Brett.

On January 9th, Kodak announced its intention to enter the cryptocurrency craze by developing a blockchain-based service that presumably allow participating photographers to get paid each time their licensed work is used on the Internet without their prior consent. As described on the company’s website, the digital platform, currently referred to as KODAKOne, will “provide continual web crawling to monitor and protect the [intellectual property] of images registered in the KODAKOne system.” Upon detection of an unlicensed use, Kodak will manage the post-licensing process and (i) have the picture removed, or (ii) compensate the participating photographer in the company’s own currency, referred to as KodakCoin. By December 11th, the company’s stock had more than tripled.

Read entire article here

KodakOne Attempts to Prevent Unlicensed Use of Pictures

by Nancy E. Wolff and Kyle Brett.

On January 9th, Kodak announced its intention to enter the cryptocurrency craze by developing a blockchain-based service that presumably allow participating photographers to get paid each time their licensed work is used on the Internet without their prior consent. As described on the company’s website, the digital platform, currently referred to as KODAKOne, will “provide continual web crawling to monitor and protect the [intellectual property] of images registered in the KODAKOne system.” Upon detection of an unlicensed use, Kodak will manage the post-licensing process and (i) have the picture removed, or (ii) compensate the participating photographer in the company’s own currency, referred to as KodakCoin. By December 11th, the company’s stock had more than tripled.

While digital photo licensing is a concept as old as the first website, and entire businesses are built around assisting photographers in the collection of royalties, KODAKOne’s innovation seems to be in its attempt to leverage blockchain’s strengths against traditional photo licensing’s weaknesses in securing compensation for unauthorized online uses. For example, in order to be compensated for an unlicensed use of a photograph, a photographer (or its representative) would have to own the the copyright, detect an unlicensed use, contact the unlicensed user (if possible), engage in a discussion regarding compensation and agreeing on compensation, and wait to be compensated by the unlicensed user or initiate a DMCA process to have the unlicensed picture removed or bring a copyright action. Here, blockchain technology (a digital ledger in which transactions are recorded publically) allows the KODAKOne platform to automate all of the foregoing by simultaneously serving as a database of rights, detecting an unlicensed use across the entire Internet and seamlessly compensating a participating photographer in its ecosystem’s own currency. In addition, “accredited investors” can buy KodakCoins and purchase the rights to license a picture registered with KODAKOne.

That being said, there are several potential issues with Kodak’s premise, first of which is whether photographers will even want to be compensated in KodakCoins. Yet, according to a Kodak spokesperson, “KodakCoins can be exchanged for U.S. dollars and the exchange will be announced in the coming weeks.” So, provided that the margins of the exchange rate (even if not the best) are commercially reasonable, KODAKOne may provide a way for photographers to recoup some profits from unlicensed uses that would have otherwise provided none.

From here, it is not difficult to see where Kodak may hope its idea grows: if KODAKOne successfully manages, markets and monetizes the rights to digital pictures, Kodak may eventually attempt to add IP rights to digital videos and digital music on their platform, becoming an entire marketplace for digital art and entertainment. But, nonetheless, it is an idea fraught with historical failures: over the years, the music industry has wasted millions of dollars attempting to build a central music rights database, such as Global Database Repertoire (GRD). In GRD’s case, a collection of organizations attempted to build a joint database that, like KODAKONE, would have primarily allowed for a rights holder to (i) register their work once with GRD, instead of numerous times in different countries, (ii) track royalties and guarantee the rights holder was paid promptly and fairly, and (iii) initiate cease and desist actions against unauthorized users.  But, in 2014 and after more than 12 million dollars was spent developing the database, the effort to build GRD was abandoned as organizations pulled out over concerns regarding control and the potential loss of revenue from an efficient GRD. In Kodak’s case, and because the company will control the entire platform from the outset, KODAKOne may not be beleaguered by same set of problems that shelved GRD.

Yet, there are still remaining legal questions that must be answered before KODAKOne is declared an industry salve, and many industry experts are skeptical about Kodak’s entire endeavor, some suggesting it is at best doomed to fail and a worst a final trick from historically troubled company. A question, for example, is whether Kodak will request that unlicensed users pay for their infringement (as the mechanism to compensate participating photographers) and, if so, what will be the amount that Kodak requests an unlicensed user to pay? In current practice, depending on the copyright status of the picture at issue, the appropriate fee would either be the reasonable licensing fee or a multiplier of the licensing fee. If KODAKOne does not, at a minimum, collect a reasonable licensing fee, many photographers may choose to not register with the platform and instead to hire a third parties to crawl the Internet for unlicensed uses and negotiate for a much higher settlement. Another example of an outstanding legal question is what language the KODAKOne Terms and Conditions will have around “exclusivity”—that is, whether KODAKOne has an exclusive right to manage the rights of a given picture. If KODAKOne does have an exclusive right, the platform may indirectly create an incentive for photographers to not put their best work on the platform and, as of the result of that, buyers may be disincentived from using KODAKOne as a primary resource for licensable pictures.

Notwithstanding the many open questions, Kodak has taken a creative step forward for itself and the discussion of rights management has a further addition into the exciting cryptocurrency space. But, as with all new areas, right holders should consult a lawyer before participating.