Category Archives: Copyright

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.

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.

 

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

United States Copyright Office Updated Draft of Compendium

The U.S. Copyright Office has released a public draft of an updated Compendium of U.S. Copyright Office Practices, Third Edition. On April 10, at 2 p.m. ET, the Office will hold a webinar to review the proposed revisions. The draft as well as the webinar can be accessed here. The updates reflect “changes to the Office’s practices and procedures, as well as recent changes in the law,” including the 2017 Star Athletica decision, the Fourth Estate case, and various rulemakings and proposals. Comments are due by May 14. More information is available here.

Two Unanimous Supreme Court Opinions Regarding the Copyright Act

It was an eventful day for copyright law on Monday, March 4, as the Supreme Court of the United States issued two unanimous opinions, both involving provisions of the Copyright Act.  The decisions were fittingly both issued on the 110th anniversary of the 1909 Copyright Act. The office of our counsel, Nancy Wolff, Cowan, DeBaets, Abrahams & Sheppard LLC,  wrote a review of these decisions and how they will impact copyright infringement cases going forward.

You can read the review of Public Benefit Corp v Wall Street.com and LLC and Rimini Street , Inc v Oracle USA, Inc. here

Supreme Court Hands Down Critical Decisions in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLCand Rimini Street, Inc. v. Oracle USA, Inc.,Resolving Circuit Splits Over Interpretation of Copyright Act Provisions

It was an eventful day for copyright law on Monday, March 4, as the Supreme Court of the United States issued two unanimous opinions, both involving provisions of the Copyright Act.  The decisions were fittingly both issued on the 110th anniversary of the 1909 Copyright Act.

In the first case, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,No. 17–571, the Court, in an opinion authored by Justice Ginsburg, resolved a long-standing circuit split over whether a copyright owner can sue in federal court with only a copyright application in hand, or whether a completed registration is necessary.  The Court held that “registration . . . has been made” under Section 411(a) of the Copyright Act—and thus an infringement suit may be instituted—when the Copyright Office grants or denies registration after evaluating the copyright application (coined the “registration approach”) rather than when a copyright owner merely submits the application, materials, and fee required for the registration to begin processing (the “application approach”).

In the second case, Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625, Justice Kavanaugh delivered the option for the Court, holding that Section 505 of the Copyright Act, which allows a party to recover “full costs,” does not authorize appellate courts to award litigation costs beyond the categories enumerated by Congress in the general costs statute codified at 28 U.S.C. § 1821 and § 1920.  Such “costs” are limited to fees for the clerk and marshal; transcript, copyright, and docketing fees; disbursements for printing and witnesses; and the compensation of court-appointed experts and certain special interpretation services. The Court rejected Oracle’s position that “full costs” under Section 505 included expert witness fees, electronic discovery expenses, and jury consultant fees.

Both of the Court’s determinations are instructive, as they clarify the legal landscape for copyright litigants who have been grappling with inconsistent applications of the Copyright Act for years.

The “registration approach” adopted in Fourth Estateincentivizes copyright owners—more than ever—to register works with the Copyright Office and will likely incite an uptick in registrations. While there were many benefits to registration prior to this decision, now, if a copyright owner fails to register works prior to discovering an infringement, she will have to wait an average of seven months to sue (the Copyright Office’s average processing time), and the work may continue to be infringed without recourse in the interim.  There is, of course, the option of invoking the Copyright Office’s Special Handling process, but it comes with a $800 special handling fee, which may not be an attractive or feasible alternative for some.

Furthermore, creators who have yet to register works and are running up against the three-year statute of limitations for infringement may be out of luck if they file an application and the Copyright Office does not process it in time.  The best practice for content owners is to apply for registration as soon as possible, even before infringement is anticipated or suspected.  Those who have filed lawsuits based on applications that have not yet been processed should take advantage of the Special Handling process, if possible, otherwise the claim may ultimately be dismissed as untimely.

The limitation on recoverable fees fashioned by the Rimini Street decision may also have far-reaching implications, especially for individual creators and litigants who cannot bear high litigation costs without the chance for recovery.  The ruling sounded a death knell for a copyright litigant’s ability to recover fees for expert witnesses, electronic discovery platforms, and jury consultants, which have become increasingly prevalent in copyright cases in the digital age.

For example, while music and software cases have almost always involved experts, matters involving “viral” infringements often call for specialized experts to address novel copyright issues.  In such highly technical cases, retention of a knowledgeable expert may make or break the case, making the choice of whether to hire without the option for recovery of those fees all the more difficult, especially for those unable to afford the costs.  Additionally, as the use of e-discovery platforms has become nearly ubiquitous, payment for such services has become a necessity for a litigant to maintain an equal footing with their opponent.

The Rimini Street ruling will certainly force copyright litigants to face difficult decisions in how they want to proceed with their case, especially if they are facing an opponent with deep pockets who can afford to hire numerous experts, pay for e-discovery platforms, and retain jury consultants.  Clients should discuss their financial limitations with counsel before deciding to commence a copyright action or how to defend against a copyright action, as they may have to bear the burden of certain unrecoverable costs to prevail.

 

CEPIC Statement on Works of Visual Arts in the Public Domain

CEPIC expresses its extreme disappointment at the EU copyright Directive as we see that last minute compromises were reached that will directly hurt CEPIC members specialised in fine art, history and vintage photography. Some of these libraries are attached to cultural institutions and contribute to their financing – this not only by “selling postcards” as the agreed compromise text implies.

Indeed, the provisions related to works of visual arts in the public domain were agreed behind closed doors, following no impact assessment and no consultation with the various sectors that will be affected.

With no evidence as to the advantage to the larger public, the  compromise provisions will directly hurt the legitimate interests of small private businesses who support cultural heritage and in some European countries the cultural sector institutions who have invested millions in the digitization of  photography and contribute, avoiding tax-payer cost, to the preservation and distribution of cultural heritage and its promotion to the wider public. This provision is discriminatory to photographers working for cultural institutions, and in some cases it discriminates against the interests of those cultural institutions themselves who rely on income generation derived from licensing works of visual arts in their collections. In the long run the larger public will suffer from a lack of investment in digitization, indexation and proper documentation of cultural heritage material.

We regret that these provisions were introduced without proper assessment and that the private heritage sector was used as a “pawn” in a larger negotiation. As a result we see that the EU copyright directive will penalise rather than promote large parts of the visual sector.

We ask for Chapter 3 Art. 10 b) and Recital 30 a) to be removed.


Executive Director (Tel. Mobile + 49 177 2332 514) CEPIC Center of the Picture Industry, Tel. Berlin + 49 30 889 101 60, www.cepic.org/contact

The European Commission Has Reached an Agreement Over New Copyright Rules

The European Commission has reached an agreement over new copyright rules, including the controversial Article 13 that will require platforms like YouTube to tackle copyright infringements at the point of upload.

One of the objectives of the of directive is to “reinforce the position of creators and right holders,” helping them to be remunerated for the online use of their content by user-uploaded-content platforms. Read the article on Digital TV Europe.com  here .

CEPIC also reviews the agreement on their site here 

Our DMLA Counsel and Legal Committee is reviewing the agreement and will have further information on its impact on the industry.  Stay tuned.