Category Archives: Advocacy

DMLA MEMORANDUM IN OPPOSITION

 

June 6, 2017

DMLA MEMORANDUM IN OPPOSITION, 

Assembly Bill No. A08155 

The Digital Media Licensing Association (“DMLA”), strongly opposes A.08155, amending New York State’s civil rights law Section 50/51, which for 110 years has protected the first amendment rights of creators and the press to use visual imagery except for the limited purposes of advertising and trade. This amendment grants 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.

About DMLA 

DMLA is a trade association representing the interests of entities who license still and motion images to the media, among many other users. Its members represent the interests of thousands of photographers/videographers and the copyrights in millions of images by aggregating images on line and making them searchable and available for licensing. New York is home to many of DMLA’s members, including leading visual image providers such as Getty Images and Shutterstock, and all members, regardless of location or size, serve a crucial role in supplying publishers, media companies and advertisers located within New York with imagery that reflects our world, art and culture.

Harm to Image Licensing Industry, Media and Public 

This proposed amendment will cause real economic and social harm to the image licensing industry (a multi-billion dollar industry worldwide) and the industries it serves and result in meritless litigation.

  •  . Amendment unconstitutionally deprives photographers and film owners the right to display and exploit their property and copyright interests in their still and motion images. Bill does not unambiguously protect the ability to display and offer images for licensing using standard industry licensing terms that requires user to determine if permission is needed. 

Example: Corbis Corporation, an image library was sued two times under the California right of publicity law, for merely displaying images for potential licensing and sale in accordance with industry standard online licensing agreements.. See Jones v. Corbis Corp.https://www.courtlistener.com/opinion/2176763/jones-v-corbis-corp/ and Alberghetti v Corbis Corp https://www.courtlistener.com/opinion/2542614/alberghetti-v-corbis-corp/.

  •  Amendment does not ambiguously permit photographers and their representatives to distribute and sell prints in violation of federal copyright law. Current NY law has been interpreted by NY Courts to permit the sale of prints as expressive works with full first amendment protection without consent of the subject. 

Example Lawsuit filed in California against print on demand company for providing sports images to consumers alleging violation of CA ROP law. Maloney v. T3Media, Inc., 94 COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP PAGE 2

F.Supp.3d 1128 (2015). The 9th Circuit ultimately found CA ROP law was preempted by federal copyright act where the photograph is the product itself , http://caselaw.findlaw.com/us-9th-circuit/1855434.html). Note NY does not have an anti-SLAPP statute to prevent such frivolous suits.

In contrast New York privacy law has been interpreted to permit the sale of prints. (Foster v Svenson) http://www.courts.state.ny.us/reporter/3dseries/2015/2015_03068.htm

  •  Amendment limits the types of exempt uses to the same outdated 20th Century uses listed in the 1980s California right of publicity statute. The exempt uses exclude all the innovative apps, podcasts and interactive virtual reality platforms which use visual images to educate and inform the public and there is no broad language that protects yet unknown expressive uses.

Concern: New York, as the center of the media industry, has always erred in favor of protecting the First Amendment rights of those who own, license and publish images. To substantially expand the breadth of New York’s statutory right of publicity without clear exemptions for all expressive uses will have a crippling and chilling effect on expressive speech.

For the above stated reasons, the members of DMLA strongly oppose 08155 in its current form.

Respectfully,

Nancy E Wolff

Counsel to DMLA, Digital Media Licensing Association

The Register of Copyrights Selection & Accountability Act, H.R. 1695 Passed by the House of Representatives

The Register of Copyrights Selection and Accountability Act, H.R. 1695, was passed by the House of Representatives by a vote of 378-48 on April 26th, which would now make the Head of the Copyright Office a Presidential appointee.   This bill will also give the Copyright Office more autonomy over its budget and its technology as well as its operational procedures (staffing, fees, structure, etc.).  DMLA, as a member of the Coalition of Visual Artists, has been supporting this measure as part of our legislative priorities.  Read here.   The bill now moves onto the Senate for a vote.

“The passage of H.R. bill shows that the House of Representatives sees the importance of moving the Copyright Office into the 21st century” says Cathy Aron, Executive Director of DMLA. “It’s time to give the Copyright Office what it needs to serve the creative industries of our nation effectively.  This is a great first step.  We look to the Senate to support the bill in an equally bipartisan way”

The importance of Copyright Office reform has been a major focus of our DMLA’s legal outreach over the last few years through our written comments to the Copyright Office and our lobbying efforts through the Coalition.

CDAS brings in partner Carole E. Handler and associate Brianna Dahlberg to expand its West Coast Litigation, Entertainment, and IP practice

Cowan, DeBaets, Abrahams & Sheppard LLP is expanding its West Coast litigation, entertainment, and intellectual property practice with the strategic hire of a two-person litigation team, led by Carole E. Handler, who joins the firm as a partner in CDAS’s Beverly Hills office as of April 1, 2017.

Ms. Handler is a nationally recognized litigator on copyright, trademark, entertainment, and antitrust cases. She has handled numerous groundbreaking cases throughout her career, representing clients in the motion picture, telecom, fashion, sports, and other industries on matters involving entertainment, copyright, competition, and new media.

Her work includes representing clients in the motion picture industry in complex copyright and antitrust litigation. Widely known as “the lawyer who saved Spider-Man,” Carole represented Marvel Entertainment Company for over a decade in copyright and other litigation, and was responsible for the trial strategy that allowed Marvel to recover the motion picture rights to its iconic Spider-Man property. In representing Pfizer, she was one of the lead attorneys who succeeded in having the then-largest trademark verdict in history reversed. But perhaps one of the cases of which she is most proud involves her work on a nine-week pro bono jury trial for a Holocaust survivor to recover the rights to her life story, which is now being developed into a motion picture.

Carole has successfully represented major motion picture producers and distributors in litigation involving antitrust and copyright issues and continues to support her clients’ efforts as new media revolutionizes traditional ways of reaching consumers. Carole also handles infringement claims for a number of fashion clients, for which copyright is an increasingly crucial issue. Carole regularly submits amicus briefs on copyright and antitrust issues in the Second, Third, Sixth, Ninth, and Eleventh Circuits, as well as the Supreme Court, and California courts.

She has also been an adjunct professor at USC law school for over 13 years, where she has taught both antitrust and IP courses.

“Carole’s practice is perfectly synergetic with CDAS’s litigation practice in New York, which also centers on IP, media, and entertainment disputes,” explains Eleanor M. Lackman, co-chair of CDAS’s Litigation Group. “She helps us take the strong practice that we have built on the East Coast and replicate that type of focus and service on the West Coast, which provides a major benefit for our clients across the country.”

Carole was immediately drawn to CDAS by the firm’s commitment to strategic growth in key industry sectors, which allows it to serve a wide variety of clients, its openness to new approaches, and its focus on important media issues, which are central to her practice. “In addition to the superior quality of CDAS’s nationally recognized attorneys, its dedication to innovative legal thinking, the depth of its IP practice and its focus on copyright and media – it is also the unusual firm that has a real commitment to internal development and gender diversity equality and practices it.” Carole notes that the majority of CDAS’s equity partners are women.

Joining Carole is Brianna Dahlberg, an associate who has worked with Carole since 2011 and has extensive trial and pretrial experience in entertainment, IP, and contractual matters. Both Carole and Brianna join from Eisner Jaffe, which they joined from Lathrop & Gage.

More information about Carole E. Handler is available at http://cdas.com/carole_handler

More information about Brianna Dahlberg is available at http://cdas.com/brianna_dahlberg

ABOUT COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP

CDAS is a New York and Los Angeles entertainment, media and IP law firm that has served clients for over 25 years in the traditional content and media businesses as well as in emerging technologies. Practices in our majority-women owned firm include: film, television, visual arts, music, digital media, publishing, fashion, theatre, advertising and marketing, copyright, corporate formation, finance and M&A, employment, litigation, technology, trademarks, brands and venture. Our strong commitment to understanding our clients’ businesses and budgets allow us to offer individualized attention that includes in-depth industry knowledge as well as focused legal advice in litigation and transactional matters that only a niche boutique law firm like CDAS can provide.

Media Contact: Jennifer Besada, jbesada@cdas.com, (212)-974-7474

 

 

A Victory for Creators and Licensors in Maloney vs T3 Ninth Circuit Decision

Maloney v. T3Media 

By Brianna Dahlberg of Cowan DeBaets Abrahams & Sheppard LLP

On April 5, 2017, in a victory for visual content creators and licensors, the Ninth Circuit affirmed the dismissal of a lawsuit brought by former college athletes alleging that T3Media had misappropriated their names and likenesses by selling licenses to photographs from the NCAA Photo Library. The Ninth Circuit held that the athletes’ claims for right of publicity and unfair competition under California law were preempted by the federal Copyright Act.

Read the entire article here.

Ninth Circuit Affirms Right To Display, License And Sell Photographic Prints Without Violating Subject’s Publicity Rights.

Maloney v. T3Media 

By Brianna Dahlberg of Cowan DeBaets Abrahams & Sheppard LLP

On April 5, 2017, in a victory for visual content creators and licensors, the Ninth Circuit affirmed the dismissal of a lawsuit brought by former college athletes alleging that T3Media had misappropriated their names and likenesses by selling licenses to photographs from the NCAA Photo Library. The Ninth Circuit held that the athletes’ claims for right of publicity and unfair competition under California law were preempted by the federal Copyright Act.

In their putative class action lawsuit, the athletes had sought to hold T3Media liable for displaying the photographs online and for offering non-exclusive licenses to consumers permitting them to download a single copy of a chosen image for non-commercial art use. The athletes did not own copyright to the photographs at issue—the copyrights were owned by the NCAA, who had contracted with T3Media to store, host, and license the images. T3Media responded to the athletes’ lawsuit by filing a special motion to strike under California law, which was granted by the district court. The Ninth Circuit affirmed the district court’s decision throwing out the athletes’ lawsuit and awarded attorneys’ fees to T3Media.

In its opinion, the Court clarified the test for determining whether a right of publicity claim is preempted by the Copyright Act. Section 301 of the Copyright Act provides a two-part test for determining whether a state law claim is preempted: first, the court asks whether the subject matter of the state law claim fell within the subject matter of copyright; and second, the court asks whether the state law rights asserted were equivalent to rights within the scope of copyright. Applying this test to the athlete’s right of publicity claims, the Court drew a distinction between claims based on the unauthorized use of a person’s likeness in advertising, and claims based on the mere display or distribution of an artistic work:

[A] publicity-right claim may proceed when a likeness is used non-consensually on merchandise or in advertising; but where a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity-right claim is little more than a thinly-disguised copyright claim because it seeks to hold a copyright holder liable for exercising his exclusive rights under the Copyright Act.

The Ninth Circuit’s opinion in T3Media’s favor is consistent with longstanding practices in the visual content industry. It affirms that visual content creators and providers, by merely displaying and offering for license images that depict people, do not make any use that implicates the right of publicity. The decision provides clear guidance that will allow visual content creators and licensors to continue to offer creative, newsworthy, and culturally important images to the public.

Cowan, DeBaets, Abrahams & Sheppard LLP submitted an amicus brief in support of T3Media on behalf of the Associated Press, the Digital Media Licensing Association, Getty Images (US), Inc., the Graphic Artists Guild, the National Press Photographers Association, Inc., PhotoShelter, Inc., the Professional Photographers of America, Shutterstock, Inc., and ZUMA Press, Inc. [A copy of the amicus brief is here). We thank everyone who participated and joined the brief. The attorneys representing T3 Media were extremely grateful for our industry support to counter all the amicus briefs submitted by the various sports’ leagues.

 

DMLA Empirical Research Study for Section 512 Study

 On March 21, 2017 DMLA filed additional comments to our original comments filed with the  Copyright Office for the Section 512 Study.  These comments included the results of an empirical research study that we conducted of our members and their contributors.

The Survey asked whether respondents monitor the Internet for copyright infringements of their or their contributors’ work, and examines their reasons for deciding whether or not to monitor and their experiences if they do monitor, specifically with the Digital Millennium Copyright Act’s (“DMCA”) notice-and-takedown procedure.  We received over 1200 responses.

You can see the comments sent to the Copyright Office and the results to the survey here.

 

The Fight Against Google Continues in the EU

Thanks to our working relationship with CEPIC,  we are kept up-to-date on the latest in the EU fight against Google.  DMLA is been part of ICOMP, which has now joined forces with OIP (Open Internet Project) to bring more pressure on Commissioner Vestager.  There are two related articles to read.  Part of one is below and the link to one from Politico is here.

Welcome to Morning Tech, your beacon of truth when there is fake news around EU’s tech politics and policies.

END OF A EUROPEAN SUCCESS STORY? After a year or so of relative silence, Google’s rivals and opponents are back in the streets, cranking up the pressure on Europe’s Competition Commissioner Margrethe Vestager to act. Last week, it was ICOMP and the Open Internet Project, this week it is Kelkoo tearing into the Shopping case.

The chief executive of Kelkoo, one of Europe’s largest shopping comparison websites, said his firm could go under next year if Vestager doesn’t take serious action in the six-year-old case. “We’ve got to the point where we have nothing left to lose,” Richard Stables told us.

Join the queue, Richard. Foundem, the original complainant, closed its website in December; Yelp announced around that time it was closing its European operations, complainant group ICOMP is pooling its resources with the Open Internet Project, while many other shopping websites have shriveled. And yet Kelkoo’s outburst is significant: It’s a big European player, with a presence in almost two dozen countries and 230 employees.

Rivals add to complaints against Google’s Android

By Nicholas Hirst/Politico

A tech lobby group filed a fresh antitrust complaint against Google with the European Commission, reiterating accusations the U.S. tech giant used its popular mobile operating system to protect its dominance over internet searches.

The Commission already has an ongoing probe into Android examining the issues raised by OIP. If the Commission accepts OIP, whose members include French-German search engine Qwant, as a formal complainant in the Android case, the lobby group would have access certain documents and could provide its views.

The OIP also announced Tuesday that it was integrating 20-plus companies from the Initiative for a Competitive Online Marketplace, a long-standing anti-Google group that is closing.

It used a press conference to criticize the length of the Commission’s probe into Google and to call on enforcers to impose “interim measures,” which could require Google to change its conduct pending a final decision. It also accused Google of acting in “bad faith.”

Google did not immediately respond to a request for comment.

OIP’s members include German publishers Axel Springer (a co-owner of POLITICO in Europe) and Hubert Burda Media, Qwant, the French search engine in which Axel Springer has a stake, French shopping website leGuide.com, U.S. photo agency Getty Images, and German broadcaster ProSiebenSat.1.

To view online

Kelkoo CEO: Google is ‘screwing’ entire online shopping industry

From Politico

— By Nicholas Hirst

The head of one of Europe’s leading price comparison websites, Kelkoo, said it’s in danger of going under next year unless the European Commission takes market-stabilizing action in its six-year case against Google Shopping.

“We might not even survive another 18 months if there is not a decision soon,” Richard Stables, Kelkoo’s chief executive, warned in an interview Tuesday.

Stables accused Google of willfully destroying a series of budding online businesses and threatening to demote rivals that objected. Foundem, the first shopping website to formally complain about Google to the Commission, closed in December.

“This is about Google screwing over an entire industry and actually really hurting consumers,” added Stables, who said he decided to speak out because “we have got to the point where we have nothing left to lose.”

However, he said it was up to the Commission to decide what solutions would restore fair competition.

Google did not respond to a request for comment, but has vigorously resisted the Commission’s accusations it hurt competition. The Commission could not immediately be reached for comment.

The Commission opened its investigation in November 2010 and formally accused Google of hurting competition in the online price comparison space in 2015. The charges were updated last year. Margrethe Vestager, the commissioner for competition, told the European Parliament last month she was doing her “utmost” to wrap up the probe.

Citing documents released erroneously by the U.S. Federal Trade Commission, Stables said Google had pursued a strategy to eliminate emerging rivals like Kelkoo since as far back as 2004. That included demoting comparison shopping websites in Google search results and luring away advertisers with the promise that they would appear in Google’s product search for free — only for Google to start charging once they had seized the market, Stables claims.

Stables also said Kelkoo’s subsidiary LeGuide had objected to Google scraping content like reviews. He claims Google responded that it would push the site down its search results if LeGuide resisted.

The price comparison sector has struggled over the past decade, forcing companies to sell off divisions and rivals to consolidate and stay afloat. After being snapped up for large sums, European websites Kelkoo, Ciao and LeGuide were sold. All are now managed under the Kelkoo umbrella by a U.K. investment group and employ about 230 people in Europe.

The company’s online shopping revenue continues to decline and time is running out.

Related stories on these topics: CompetitionDigital IndustryGoogleMediaOnline shoppingStartups

 

 

 

 

DMLA OPPOSES MARYLAND COPYRIGHT DEMAND LETTER BILL

On January 25, 2017 Nancy Wolff, along with representatives from Getty Images, the Copyright Alliance, MPAA, Comcast, BMI Music and others representing creators and owners of content, testified at a hearing against bill HR65 before the Maryland State Senate Finance Committee.

The Bill was trying to regulate copyright demand letters by preventing copyright owners from “making certain assertions of copyright infringement in bad faith”.  It also stipulated that a court might consider, among other factors, the absence of a certificate of copyright registration accompanying the letter s evidence of bad faith.  Read the entire story here.