Category Archives: DMLA

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.

 

Berlin University of Applied Sciences Designs New Image Search

In 2014 Kai Bartel, Professor at HTW Berlin (University of Applied Sciences) was a speaker on one of our panels at the DMLA Conference “The Future of Image Search and Retrieval, From Description to Decryption”.  Since that time Dr. Bartel has continued his research in the field of image retrieval and has recently cooperated with pixabay in developing a visual image browsing tool similar to Google maps.  You can find their website here.

Pixabay wrote about their relationship with the University of Berlin and their search tool pics buffet in their blog: “ Picsbuffet was designed and implemented by the Visual Computing Group at the Berlin University of Applied Sciences (HTW Berlin). In order to make this image exploration possible, all images are visually arranged on an “image map” according to their similarities. The currently displayed section of the map can be interactively modified by dragging and zooming with your mouse: more similar images are displayed by zooming in and zooming out provides an overview of thematically related image concepts.  After entering keywords for a search, a region with appropriate results is displayed: The heat map in the upper left corner shows the regions where the corresponding pictures can be found. Clicking on the heat map or on one of the five images below the heat map will jump to the corresponding region. If you click on an image its preview image and a link to the Pixabay page will be shown. Alternatively, you can start a new search for similar images.”

 

You can see their entire blog here.

Dr. Kai thought that DMLA members, especially those who attended the meeting in 2014, would be interested in how their research has evolved.  For more information you can contact him at Kai-Uwe.Barthel@HTW-Berlin.de

Member Profile: Tetra Images

New in 2017, we will be highlighting various DMLA members to give insight into their businesses with Member Profiles.  First up in the series is Valerie Saunders, President of Tetra Images.  We recently sat down with her for a look at this RF collection with a conceptual concept focus.  You can read the entire interview here.

Member Profile: Interview with Valerie Saunders: Tetra Images

 

Riley Cardoza, DMLA Social Media Assistant, sat down recently with Valerie Saunders, President of Tetra Images to gain some insight into this DMLA member.

  1. Can you describe your experience in the industry?

I started out on the editorial side right after I graduated from college as a photo researcher and then photo editor for magazines at Conde Nast and Gruner & Jahr, among others. I worked with some of the top fashion and beauty photographers of the 1990s and had my first taste of conceptualizing imagery to go alongside headlines and stories. I was surrounded by interesting creative and later became curious about the commercial side of the business. I interviewed at advertising agencies and stock photo agencies and was offered a creative director position at Comstock (a brand that was eventually bought by Getty Images). I was there for six years and tasked with developing their royalty free offering from scratch. I absolutely loved strategizing the content map for that product and working with photographers to produce it all. I learned a great deal about the demand for stock and the very different approach required as compared with my editorial roots. With the advent of the internet and digital photography, the business transformed quickly and I made a decision to leave Comstock and to begin producing content with photographers to market through multiple channels such as Corbis and Getty. Eventually, this evolved into a partnership to launch Tetra Images in 2004.

  1. What is Tetra Images?

Tetra Images is royalty-free imagery produced by leading professional photographers based all around the world. It is art directed and edited by top industry professionals, ruthlessly curated, and distributed through every major global licensing channel. We produce conceptual content across all subject categories and have been a top-selling brand for almost 12 years.

  1. Where do you see Tetra in the next few years?

We are making a big push to bring on photographers who are in more remote locations and who cover different niches. We want content that resounds with every possible territory and to keep energizing the collection with fresh perspectives. The speed of technology is creating a bunch of new opportunities and new audiences for our work. A huge part of my team’s strategy is to cultivate our current and prospective relationships so that we are always putting our pictures at the forefront of these new opportunities.

As the massive volume of imagery continues to crowd the search process, I also see our commitment to curation being a very important part of our service to our licensing clients. As an industry, we need to find ways to make that search process more efficient. No one wants to wade through pages and pages to find something (or nothing). They should be inspired and
excited with every click.

  1. How have your anthropology and economic degrees influenced your work?

Anthropology is the study of culture. In royalty free creative content, especially, you need to speak to a broad audience. A photograph needs to be exceptional enough to get your attention and it needs to be a fast “read” so that the viewer understands the message or the emotion immediately. Certainly a lot of the lifestyle material that we create and represent is at its best when it reflects modern culture in an authentic way. It helps enormously to be interested in what the human experience is, what is trending and how our daily lives are changing all the time. That informs our creative direction so that the imagery is relevant and relatable.

As far as economics, what I love about this business is that you get direct feedback from your buyers as to whether what you are doing is working. If you’re creating the right content, you’re making money. If you’re not delivering the right solutions, you’re out of business. It’s
straight math.

  1. What do you know now that you wish you knew when you started?

Don’t get too caught up in your intuition and hunches. It’s all about the data. Never take your eye off the sales and what clients are responding to. There are a lot of collections out there right now that are busy picking pictures based on their editors’ taste and what they personally like. I have seen this type of “curation” many times over the years and it does not work long-term. A disciplined strategy based on real data and numbers is a far superior predictor of success. This is where the economics kicks in.

  1. How long have you been a DMLA member?

Tetra has been a member of DMLA since our very beginnings in 2006. PACA and DMLA have given me an amazing resource for connecting with other businesses like ours to share information and support each other as the industry continues to grow and transform. The conferences in particular bring the content creators and distributors in one place from around the world and serve up an energized space for exploring opportunities. I have signed many contracts at these events over the years and met some of my very favorite people through DMLA. I consider it an absolutely essential piece for any media licensing business. Onward we go.

 

 

 

 

 

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.

 

 

DMLA Oppose MD State Law to Regulate Copyright Demand Letter

by Nancy Wolff, DMLA Legal Counsel

Sending copyright demand letters to users of images where no license is apparent has been a common practice of many DMLA members, even before images were distributed digitally. These demand letter s have been part of the copyright boot camp and form letters available to members to contact users and educate them about copyright misuse and to seek compensation if the images are not licensed.

On January 11, Maryland State Senator Edward Reilly (R) introduced a bill, HR 65 before the state legislature to regulate copyright demand letters. The bill is aimed at preventing copyright owners from “making certain assertions of copyright infringement in bad faith” and stipulates that a court may consider, among other factors, the absence of a certificate of copyright registration accompanying the letter as evidence of bad faith. The proposed remedies include the possibility of courts costs, attorney’s fees, and treble damages, including fees up to $50,000. On January 25, 2017 the Maryland State Senate Finance Committee held hearing on the bill. DMLA; Getty Images, the Copyright Alliance, MPAA, Comcast, BMI Music and other s representing creators and owners of content testified at the hearing as to the problems and burdens imposed by such a bill and provided written opposition. A copy of DMLA’s letter to the finance committee opposing the bill is [here]. The associations representing all the visual artists unanimously joined in the opposition as it would subject all copyright owner to unfair burdens in seeking compensation for infringements and violate federal copyright law. Joining our letter were the Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Professional Photographers of America (PPA), North American Nature Photography Association (NANPA), American Photographic Artists (APA), the Graphic Artist Guild (GAG) and Shaftel & Schmelzer.

Last week we learned that the Maryland Senate Finance Committee was not going to vote on the bill and as to not embarrass the member of the Finance Committee who had introduced the bill. Thanks to the Copyright Alliance for alerting us to so promptly so we could respond so quickly and for Getty Images for attending and speaking directly with Senator Reilly before the hearing. The entire content community mobilized to avoid a very problematic state bill. We will need to stay alert for other state legislatures who may feel the need to protect their citizens if complaints arise over copyright enforcement. Copyright is very different from patents and there is a push to stem what is known as patent trolling. We need to avoid being swept into the same category of bad actors. . The underlying cause in this bill seemed to be a lack of understanding as how images are licensed and the value of a rights managed image.

GROUP REGISTRATION OF PHOTOGRAPHS

DMLA together with various other visual arts associations (what we are loosely referring to a Coalition of Visual Artists –DMLA, APA, ASMP, GAG, NPPA, NANPA, and PPA) filed a joint response to a proposed rulemaking by the Copyright Office on Group Registration of Photographs.

The proposal seeks to establish new online registration procedures for groups of unpublished as well as published photographs. The proposal was quite in-depth, including an extensive history of group registration of photographs regulations and the requirements for a new proposed system. In general the coalition was in favor of improving the electronic registration process for registration of all photographs, but had some recommendations for the Copyright Office on as to how to improve the proposed system.

Universally, everyone agreed that the arbitrary limitation of 750 images per registration would be burdensome to visual artists and would discourage registration. This limit would be unworkable for many photographers who register all the works in an assignment in one application, and is much lower than the number of images submitted by many members of DMLA when submitting database registration of images uploaded to websites. In addition, the Copyright Office proposal specifically would discourage this database registration in favor of the group registration of unpublished and published photographs regimes. Database registrations were specifically crafted by the Copyright Office at the request of DMLA to assist DMLA members register photographs on behalf of contributors before ingesting them into their database for licensing on the web based platforms. The DMLA’s legal committee, and in particular Dan Pollack, Masterfile’s attorney assisted in responding to that aspect of the proposed rulemaking and expressed DMLA’s concern as this registration has been a key factor in many successful enforcement programs to deter infringements and encourage licensing.

The Coalition also urged that the provision to permit group registration of unpublished photographs and published photographs be expanded to include all forms of visual art, regardless of format, whether photographs, illustration or otherwise.

Other recommendations related to improving the application process to be compatible with typical visual artists’ workflows and promoting the use of APIs that may be developed to allow the seamless registration of photographs and visual artworks, and that both published and unpublished photographs can be registered at the same time.

The joint response was a result of corporation of all the associations and was quite extensive. A copy of the full response can be found here (you’ll have to scroll down to Amicus Briefs and Notices of Inquiries). This is a great example of the joint efforts of the various visual art association coming together with one voice. The Copyright Alliance also adopted the position set out in the coalition of visual artists’ response to the proposed rulemaking as well.