Courtesy of GAG http://copyrightalliance.org/get-involved/add-your-voice/
DMLA joins in amicus brief in VHT v Zillow, supporting VHT’s award of statutory damages based on number of infringed images under a database group registration of photographs
On Monday December 18, 2017, DMLA joined NPPA, ASMP and GAG in submitting an amicus brief before the Ninth Circuit Court of Appeals in support of VHT, a real estate photography company against Zillow, an online real estate platform on the narrow issue of the proper calculation of statutory damages based on multiple infringed images registered using a database registration consisting predominantly of photographs. The appeal by Zillow argues, among other issues, that the district court erred in awarding statutory damages to VHT based on each image infringed having independent economic value, despite being registered under a single database registration of photographs, which Zillow argues should only entitle VHT to one award of statutory damages regardless of the massive number of images infringed. The relevant question in the Zillow case hinges on what a court considers a “work” under Section 504(c)(1) of the Copyright Act, each separate image filed within the application, or the database as a whole, which would be one work.
The amicus brief supports the view that the independent value test applied by the lower court, and previously adopted by the Ninth Circuit is the correct one. The amicus brief describes the historical background of the various group registration procedures designed by the U.S. Copyright Office, to ease the administrative burden of registration of photographs which has unique challenges given the amount of images a photographer can create in a day. In particular, the database registration of photographs was developed with input from DMLA and its members (formerly PACA) to protect images distributed through online platforms, which formerly were distributed via published print catalogs. The amici argue that the form of registration should have no impact on whether the independent works covered by the registration should be considered a single work, entitled to a single statutory damage or multiple works entitled to damages for each work infringed. The outcome of the Ninth Circuit’s ruling could have a major impact on the ability of image libraries and their contributing photographers to recover appropriate damages from infringers who use more than one of their photographs without permission, based on group registration, particularly those in the Ninth’s Circuit’s jurisdiction which includes California, Oregon, Washington state, Idaho, Montana, Nevada, Arizona, Alaska and Hawaii.
The brief, which you can find here, was filed by NPPA’s Deputy General Counsel, Alicia Calzada, with support from DMLA’s attorneys Nancy Wolff and Marissa Lewis of Cowan, DeBaets , Abrahams and Sheppard LLP. An amicus brief on another important issue in the case—secondary liability—was filed in support of VHT by the Copyright Alliance (link: http://copyrightalliance.org/wp-content/uploads/2017/12/Copyright-Alliance-VHT-v-Zillow-Amicus-Brief.pdf ), where DMLA is a member.
Since the bill Copyright Small Claims Bill, H.R. 3945, entitled, the “Copyright Alternative in Small-Claims Enforcement Act of 2017” (the “CASE Act”) was introduced by Representative Hakeem Jeffries (D-NY), there have been many articles published in support of this important legislation. Here is a great article to help you understand why this bill is so important to our industry and to all creators.
DMLA has been a member of Comp for the last few years in support of CEPIC and EU companies working for a solution to the Google antitrust issue. It looks like Google is FINALLY coming up with a solution to the anti-competition lawsuit.
It seems like the time is right for the U.S. to revisit the same problems here in our country and help businesses here regain their competitive edge on the internet.
DMLA is pleased to become the latest member of the Copyright Alliance and to work with their team and with fellow members to continue promoting and protecting the interests of the media licensing community. You can read the press release sent out by the Alliance here.
Washington, D.C. – The Copyright Alliance, which represents the copyright interests of over 1.8 million individual creators and over 13,000 organizations across the spectrum of copyright disciplines, announced the addition of Digital Media Licensing Association (DMLA) as its newest member.
Headquartered in Chandler, AZ, DMLA was established in 1951 by a core group of New York stock photo agencies concerned about the protection of original transparencies. Today DMLA hosts an annual conference, quarterly webinars and industry networking, actively develops business standards, promotes ethical business practices, and advocates for copyright protections on behalf of its members, which encompass more than 100 digital content licensing companies.
According to DMLA Executive Director Cathy Aron, “We’re pleased to join the Copyright Alliance, and look forward to working with their team and with fellow members to continue promoting and protecting the interests of the media licensing community through copyright advocacy, education and communication.”
Added DMLA Counsel Nancy Wolff, “We’re happy to be working with the Copyright Alliance to ensure that our community of visual media licensing professionals have the greatest copyright protections and enforcements for their businesses.”
According to Copyright Alliance CEO Keith Kupferschmid, “We are thrilled to welcome DMLA to our membership. Their team works diligently to advocate on behalf of visual media professionals. And we look forward to assisting them in actively protecting the rights of their stakeholders on critical copyright matters.”
ABOUT THE COPYRIGHT ALLIANCE The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over 1.7 million individual creators and over 13,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit www.copyrightalliance.org.
Negotiations for modernizing NAFTA begin today, August 16. The Copyright Alliance felt that it was vital that the USTR hears from individual creators and small and medium businesses about the importance of high-standard copyright provisions in the agreement, particularly in light of aggressive lobbying efforts by internet platforms and user groups to water down such provisions. To that end, DMLA participated in a letter to Ambassador Lighthizer on behalf of organizations representing small businesses and individuals highlighting the need for NAFTA to include meaningful copyright protections, effective enforcement, appropriate limitations and exceptions, and safe harbor provisions that incentivize platforms to minimize infringement.
You can read the letter here.
August 16, 2017
Dear Ambassador Lighthizer,
The undersigned groups represent the interests of a diverse group of small and medium businesses (SMEs) and individual creators in the creative fields. What unites us is a reliance on meaningful and effective copyright laws. Together, the core copyright industries contribute over $1.2 trillion to U.S. GDP, employ 5.5 million workers, and contribute a positive trade balance—and SMEs and individual creators make up a significant part of these industries.
The internet’s global reach has made copyright protections and enforcement increasingly important to free trade agreements. The small and medium businesses we represent are often on the forefront of exploring new models for making creative works available on a global scale. Widespread copyright infringement and unduly broad limitations to copyright protection distort overseas markets and undermine the ability of our members to successfully and fairly engage in commerce.
The effort to renegotiate NAFTA provides an opportunity to modernize the copyright provisions of the agreement for the digital age and establish a template for future agreements. We urge you to look beyond the failed Trans-Pacific Partnership (TPP) and to seek the highest standard of protection for businesses and creators that rely on strong copyright to compete successfully overseas.
Specific priorities for small and medium enterprises, as well as individual creators, include the following:
• Strong and meaningful copyright protection and enforcement. The agreement should recognize the full scope of copyright rights, including making available, and remedies such as injunctive relief and statutory damages.
• Effective enforcement provisions. Trade agreements are critical to fostering legitimate online marketplaces. A modernized NAFTA should respond to the challenges facing creators by including provisions to ensure effective enforcement and requiring legal protections for technological protection measures and rights management information.
• Appropriate limitations and exceptions. NAFTA should reinforce the “three step” test for limitations and exceptions that has been the international standard for decades. The three-step test strikes the appropriate balance in copyright, and any language mandating broader exceptions and limitations only serves as a vehicle to introduce uncertainty into copyright law, distort markets and weaken the rights of the small and medium businesses and creators we represent. For that reason, we strongly urge USTR to not include “balance” language similar to what appeared in the TPP or any reference to vague, open-ended limitations.
• Incentives for service providers to cooperate with copyright owners in addressing online infringement. Few SMEs have the means to devote resources to policing online infringement, and we therefore rely on service providers taking reasonable steps to minimize piracy that occurs on their platforms. To promote incentives for service providers to cooperate with copyright owners to address online infringement, the copyright provisions in NAFTA should establish appropriate standards for intermediary liability as well as appropriate safe harbor protections for intermediaries. We urge negotiators to provide for safe harbor protections in broader terms than how they’ve appeared in recent trade agreements. Congress and the U.S. Copyright Office are currently reviewing U.S. copyright law, and we want to make sure lawmakers have the flexibility to address shortcomings in domestic safe harbor provisions.
We thank you for your consideration of our priorities and look forward to working with you further as negotiations progress.
American Association of Independent Music
American Photographic Artists
American Society of Journalists and Authors
American Society of Media Photographers
Artists Rights Society
Association of Independent Music Publishers
Church Music Publishers’ Association – Action Fund
Digital Media Licensing Association
Graphic Artists Guild
Nashville Songwriters Association International
National Press Photographers Association
Society of Children’s Book Writers and Illustrators
Songwriters Guild of America
Songwriters of North America
Textbook & Academic Authors Association
Western Writers of America
DMLA recently joined many stakeholders in an urgent last minute push to oppose an amendment to New York State’s right of privacy statute, converting it to a right of publicity (Assembly Bill A08155 and Senate 5857-A) that would have granted a broad and ambiguous descendible right of publicity to anyone for 40 years after death, regardless of whether the person was domiciled in New York.
The media was particularly concerned as it looked like this bill had potential to pass before the end of the legislative session last week and the language would have had a severe impact on many forms of expressive speech, including the display and sale of prints and the licensing of photographs, video and other forms of visual art. DMLA prepared a memorandum in opposition and together with many law professors, media associations and individual companies (such as Getty Images and Shutterstock) signed on to full page advertisement published in the Albany newspaper urging the legislature to reject the bill as an attack on the First Amendment DMLA, and member Getty Images joined the lobbying efforts of the New York New Publishers Association and hired their lobbyist to work on this slowing down this bill. Last Tuesday Nancy Wolff, joined by Terry Byford and Eric Rachlis of Getty Images, joined other stakeholders at the State House in Albany New York to ask the legislature to slow the bill down right and get it right so it won’t hurt photographers, image library, and the media companies, many of whom are in New York, who use their services.
In the end the legislature in both houses did not bring the bill to the floor to vote before the end of session last week but its sponsors made it clear that they want to work with stakeholders to create an acceptable descendible right of publicity bill to be voted on in the near future.
Our thanks to Getty Images for hiring a lobbyist to work on this legislation in New York which permitted DMLA to be represented by a lobbyist as well. If any other members would be able to contribute to this lobbying effort and share the costs, please contact Nancy Wolff for further information.
DMLA plans to continue to be involved in any legislation that deprives a photographers or film owner’s right to display their property and copyright interest in their still and motion images.