Category Archives: Copyright

Copyright Office Releases “Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges”

The U.S. Copyright Office has submitted a letter to Congress detailing the results of the Office’s public inquiry on how certain visual works, particularly photographs, graphic artworks, and illustrations, are registered, monetized, and enforced under the Copyright Act of 1976. The Office sought commentary on the marketplace for these visual works, as well as observations regarding the real or potential obstacles that creators and users of visual works face when navigating the digital landscape. A number of stakeholders raised specific issues they face on a regular basis regarding current copyright law and practices that fall within three general categories: (1) difficulties with the registration process; (2) challenges with licensing generally and monetizing visual works online; and (3) general enforcement obstacles.

The Copyright Office takes these concerns seriously and has already taken steps to address them where it can, most notably with the ongoing Office modernization efforts in preparation for a wholesale technological upgrade to the Office’s systems. In other areas, the Office finds that legislative action is the best solution. The Office continues to strongly support the idea of a small copyright claims tribunal, as well as a legislative solution to the orphan works conundrum. Congress’ action in these two areas would go far to alleviate several important concerns raised by visual artists.

The letter, public comments, and background material are available on the Copyright Office website here

Federal Judge Rules that Esquire’s Use of Photo of Trump at Private Wedding Is Not Fair Use (Bounds Explained)

The decision in Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. 2018) provides a helpful guide to what is does not qualify as fair use in the context of a news story. Fair use is a limitation on a copyright owners exclusive rights and permits the use of a work without consent. It is codified in the current Copyright Act, and the statute provides examples of what can be considered fair use. Because “news reporting” is an example, it is all too common that popular news websites rely on fair use rather than licensing a photo, asserting that the use is news reporting. But is it?

Read the entire article here

Federal Court Explains the Bounds of Fair Use by a News Organization, Ruling That Esquire’s Use of Photo of Trump at Private Wedding Is Not Fair

by Nancy Wolff, DMLA Counsel

The decision in Otto v. Hearst Communications, Inc., No. 1:17-cv-04712 (S.D.N.Y. 2018) provides a helpful guide to what is does not qualify as fair use in the context of a news story. Fair use is a limitation on a copyright owners exclusive rights and permits the use of a work without consent. It is codified in the current Copyright Act, and the statute provides examples of what can be considered fair use. Because “news reporting” is an example, it is all too common that popular news websites rely on fair use rather than licensing a photo, asserting that the use is news reporting. But is it?

Most likely not. In Otto v. Hearst Communications, Inc., Judge Gregory H. Woods dealt with this issue directly and found that Esquire.com’s use of a photo of Donald Trump at a private wedding in an article about him crashing the wedding was not fair use. The instructive decision, which analyzed the copyright infringement claim and individual components of the fair use defense, provides a clear example of what is not considered fair use in the context of a news story.

In June 2017, Jonathan Otto, a weddinggoer, snapped a photo of Trump, who happened to appear at a wedding held at his golf club in New Jersey. The amateur photographer texted the photo to a friend, only to discover the next morning that his photo had unexpectedly gone viral—first on Instagram, and then splashed across the pages of several online media outlets.

Seeking to protect his rights, Otto, retained counsel and filed for copyright registration. He then enforced his copyright by suing several of the media outlets, including Hearst Communications, Inc., the parent company of Esquire, who had copied and published Otto’s photo, for copyright infringement. In response, Esquire did not dispute that it had copied the photo but asserted a fair use defense arguing that it had used the photo of Trump for news purposes. However, the Court did not buy this argument.

The Court analyzed each of the four fair use factors in detail and explained why, taken together, the factors did not weigh in favor of a finding of fair use. Specifically, he wrote: “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use.”

While Esquire’s status as a news publication may be important for the fair use inquiry, that fact alone does not make Esquire, or any other media organization, immune from liability under intellectual property laws. Below is an overview of Judge Woods’ analysis and findings on each of the elements of fair use:

Purpose and Character of the Work. First, the Court discussed the purpose and character of Otto’s photo—arguably the most important fair use factor. The judge noted that Hearst’s argument that the use is fair because the photo was created for personal use, and Esquire used it for news, was unpersuasive. While “news reporting” is specifically identified as a potential method of fair use in the statute, courts analyzing this factor still look to the transformativeness of the use of the copyrighted work. For example, did Esquire’s use of the photo in a post describing Trump crashing the wedding add a new meaning or message? Esquire argued that its use did because the article “added commentary regarding the President’s availability for photos at the wedding and broader trend in the President’s behavior.” However, the Court disagreed, concluding that Esquire used the image solely for illustrative purposes—to depict the President’s presence at a private wedding—and did not add anything new to the image.

Nature of the Copyrighted Work. Second, the Court examined the nature of the copyrighted work, such as whether it is expressive or creative versus factual or informational, and whether the work is published or not. While photographs can vary widely on this spectrum, the Court agreed with Esquire’s argument that the image is more factual, because the photo was taken spontaneously to document an event, and Otto did not direct or pose the subjects. As for the publication status of the photo, the parties did not dispute that the image had already been published and disseminated widely before Esquire’s use. Although a copyright owner’s right of first publication is important, the Court found that Esquire’s article did not threaten this right. Consequently, this factor—while far from the most important in the fair use analysis—weighed in favor of fair use.

Amount and Substantiality of the Portion Used. Next, the Court evaluated just how much of Otto’s photograph Esquire used. For its article, Esquire used a slightly cropped version of Otto’s photo, but otherwise did not edit it. As one would assume, the more of a copyrighted work that is taken, the less likely the use is to be fair; however, courts also take the purpose of the use into account, looking back at the first fair use factor. Because it was clear that Esquire used the entirety of the photo and did so without adding new meaning or otherwise transforming the work, the Court found that this factor weighed against fair use.

Effect of the Use on the Potential Market. Finally, the Court considered the effect of Esquire’s use of the photo upon the potential market for or value of the photo. Where the copyright holder has no intention of entering the market, or the inability to do so, courts often find this factor weighs in favor of fair use. However, that is not the case here. Because Otto had acted quickly to protect his rights and was seeking to license the photo, such as to publications like TMZ, the Court found that it was clear that Otto was attempting to enter the market. Esquire’s unauthorized publishing of the same photo destroys the potential market and harm’s Otto’s ability to license the work. As such, the fourth factor also weighed against fair use.

Weighing the four factors together, the Court found that it was evident that Hearst’s use of the image was not fair. “The fact that Hearst’s commercial use did not transform the Photograph’s purpose or add new meaning to the image; the fact that Hearst used the work in its entirety; and the potential harm to any financial opportunities Otto might reasonably pursue for use of the photo, outweigh the fact that the image is factual and published,” Judge Woods concluded.

While any fair use analysis is an inherently fact-driven inquiry, this case is helpful to explain the point that a photo that merely illustrates a newsworthy article, without adding more, is not fair use. If the photo was the news story itself, the result might have been different. This case confirms that images to illustrate articles should be licensed and not just taken

PicRights Extends Global Copyright Enforcement Network To Brazil

New partner in Brazil to monetize infringements for global customers

PicRights Europe GmbH, a global leader in copyright compliance, has added a new enforcement partner in Brazil to monetize copyright infringements for the world’s leading news agencies, stock image agencies and independent photographers. PicRights Brazil will augment PicRights’ long established network in major markets in Europe, North America and the Middle East. No other copyright compliance service offers its clients as much geographical coverage of key markets around the world.

“With the established expertise of Luis Franca and his team, we’re hitting the ground running in Sao Paulo. We’ve already got a significant number of cases ready for enforcement in Brazil in the system,” says Alfred Hoefinger, CEO of PicRights Europe.

Geoff Cannon, VP Sales of PicRights Europe, adds “We’re well aware that copyright infringement is rife in some countries beyond our current scope and we’re working toward solutions that will extend our reach to every part of the world. Our new partnership in Brazil is another big step.”

PicRights’ end-to-end service allows copyright owners to concentrate on their core business while PicRights handles the difficult business of monetizing copyright infringements.

PicRights uses state-of-the-art technology to identify infringements, a team of experienced QC staff to qualify them as enforceable, then distributes the actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees. If PicRights’ enforcement staff is unable to settle a case, it is escalated to a law firm specializing in intellectual property within the relevant jurisdiction to pursue a settlement and if necessary, litigate.

A highly efficient workflow system allows PicRights enforcement teams, legal counsel and clients to collaborate and exchange information quickly, regardless of location. The proprietary payment portal collects all funds and transparently distributes proceeds between copyright owners and service partners.

About PicRights:

PicRights Europe GmbH is headquartered in Switzerland with enforcement operations and professional compliance officers in central and northern Europe (Germany, Austria, Switzerland, France, Benelux and Scandinavia), London (for UK and Ireland), the Middle East (Emirates and Saudi Arabia), Toronto (for USA and Canada) and Sao Paulo, Brazil.

** PicRights is a new Member of DMLA!

IMAGERIGHTS BOOSTS OPERATIONS TO TACKLE COPYRIGHT INFRINGEMENT IN GERMANY

 

ImageRights International Inc., the world’s leading copyright enforcement service, intensified its image search and copyright enforcement operations in Germany to drive value for its global photographer and photo agency client base.  ImageRights-developed artificial intelligence (AI), combined with its proprietary web search and image analysis algorithms, has enabled the company to analyze millions of German web domains to determine if an image use could be pursued for copyright enforcement purposes.

“Our clients have been asking us to strengthen our coverage in Germany due to the inability of existing technologies to locate the many unauthorized uses of their content that they see happening.  In response, we made the major investment necessary to ramp up our German operations in terms of both image search infrastructure and copyright enforcement capabilities,” explained Joe Naylor, President and CEO of ImageRights.

ImageRights’ most recent pool of web search servers was deployed in a biometrically secured German data center with redundant 10 Gbit/s fiber connections. As a result of the latest improvements, ImageRights is now finding and analyzing on average more than 77,000 new German sightings every day.  When clients access their ImageRights dashboard, they will see that the ImageRights AI has already filtered, sorted and ranked the sightings in terms of potential claim value, generating massive time savings for them.

“ImageRights is a reputable company that is known for a high level of integrity” said Marc Hügel, Partner at Munich-based law firm Waldorf Frommer Rechtsanwälte GbR. “As our firm is highly specialized in enforcing copyright claims for clients from all creative industries, we are looking forward to representing ImageRights and its clients and are ready to tackle the surge in copyright infringement claims.”

 

Copyright Office Fee Increase Survey

Dear DMLA Members and Friends of DMLA:

The U.S. Copyright Office has released a Notice of Proposed Rulemaking announcing fee increases for copyright registration and other services. The proposed fee increases are based on a Study Report released by the U.S. Copyright office. Fee increases for services will be implemented as the U.S. Copyright Office moves forward with their plans for IT modernization.

Visual creators’ professional organizations and advocates are concerned about how these fee increases will affect visual creators, licensing agents, and related professionals. We will be submitting a Comment Letter to the U.S. Copyright Office about the proposed fee increases. We have created a survey to gather information and feedback from creators who will be impacted by registration fee increases. We will be submitting the survey results to the Copyright Office. The survey is completely anonymous.

We need your help by taking 15 minutes for a short survey. The survey is anonymous and all responses are confidential. We will use this data to support our response to proposed changes in U.S. copyright registration.

The survey will close at midnight on September 7, 2018.

 2018 Copyright Office Proposed Registration Fee Increase survey LINK https://www.surveymonkey.com/r/GGV59XY

Survey link for social media https://www.surveymonkey.com/r/WY67XHK

Please pass this along to other artists, photographers, and related professionals you know and urge them to take the survey, too!

Sincerely,

The Coalition of Visual Artists:

American Photographic Artists

American Society of Media Photographers

Digital Media Licensing Association

Graphic Artists Guild

National Press Photographers Association

North American Nature Photography Association

Professional Photographers of America

PLUS Coalition

American Society for Collective Rights Licensing

Eugene Mopsik

Shaftel & Schmelzer

FAIR USE OR INFRINGEMENT?

Industry experts have been scratching their heads after a U.S. judge ruled an image, taken from the website of a professional photographer and used by a film festival online, was fair use. The case, is Brammer v. Violent Hues Productions LLC, and it began when Russell Brammer found one of his pictures, a long exposure shot of Adams Morgan, Washington D.C., had been used on a website promoting the Northern Virginia Film Festival.

Read a complete analysis of the case here

Fair Use or Infringement?-Court finds use of image to illustrate a geographic area on website fair use.

by Nancy Wolff, DMLA Counsel

Fair use is often described as one of the most difficult to understand doctrines of copyright law by the courts. This could not be more obvious than in a recent Northern District of Virginia decision, which found in favor of fair use where an image was used to illustrate a website. Many in the industry thought the use at issue in the case was an obvious infringement as it was one that is typically licensed. In Brammer v. Violent Hues Productions, LLC, the photographer Russell Brammer sued Violent Hues for infringing his copyright of a time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C., at night. Violent Hues used a cropped version of Brammer’s photograph on its website, which was intended to be used as a reference guide providing about an annual film festival in Northern Virginia. The court granted Violent Hues’ motion for summary judgment on its defense of fair use, finding all four of the statutory factors favored a finding of fair use.

As to the first factor – the purpose and character of the use – the court looked to “whether the new work is transformative” and “the extent to which the use serves a commercial purpose.” The court found that Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, the court noted that Violent Hues’ purpose in using it was informational because it used the photograph to provide information regarding the local area. Its use was also found to be non-commercial as the photo was not used to advertise a product or to generate revenue. Additionally, the court found that Violent Hues’ use was in good faith because Violent Hues’ owner attested that he believed the photo was publicly available because he found the photo online and saw no indication that it was copyrighted. In further support of good faith was the fact that Violent Hues removed the photo as soon as it learned the photo might be copyrighted.

The second factor – the nature of the copyrighted work – was also held to favor fair use. While the court noted that the photograph contained creative elements, it was a factual depiction of a real-world location and Violent Hues used the photograph purely for its factual content: to depict the neighborhood. The photograph had also previously been published on several websites and “at least one of these publications did not include any indication that it was copyrighted.”

On the third factor – the amount and substantiality of the portion used in relation to the copyrighted whole – the court noted that Violent Hues cropped half of the original photo. The court found this to be no more than necessary to convey the photo’s factual content. Thus, the third factor weighed in favor of fair use as well.

Finally, regarding the fourth factor – the effect of the use upon the potential market for or value of the copyrighted work – the court found no evidence that Violent Hues’ use had any effect on the potential market for Brammer’s photo. The court noted that Brammer still made sales of the photograph (at least two) after Violent Hues’ alleged infringement began, and Brammer testified that he made no effort to market the photo. Additionally, the court found the cropping of the photo and its non-commercial use to undercut a finding of adverse effect on the photo’s market.

In all, the court found that each of the four factors favored Violent Hues and thus held that Violent Hues’ use was a fair use and that there was no copyright infringement.

This decision has been roundly criticized by the industry and it has been noted that it is not often that a court gets every fair use factor wrong. The plaintiff is appealing the decision and many associations in the visual arts industry, including DMLA, are planning to file either separate or joint amicus briefs. Specifically of concern is the distinction between using an image for informational purpose and using and image for aesthetic purpose. By its nature, every image conveys some information, and to be successful, should be aesthetically appealing. Further, one of the touchstones of stock imagery licensing is that one image or clip can be reproduced for many different purposes. In addition, the fact that an image is displayed without a copyright notice should not mean that the work is free to use without consent, absent a legitimate exception, as copyright notice has not been a requirement under US copyright law since 1989. Lastly, when looking at harm to the market the court should look at the potential harm to the market if the type of unauthorized use is widespread. As the licensing of images to websites to enhance the look of the site or to provide visual information regarding a geographic area is common, widespread unauthorized use of this nature could have a significant impact on the licensing of visual content.