Category Archives: U.S. Copyright Office

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

BlockChain Registration: Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

Read the entire article here.

Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

 

 

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

What these services offer is the second largest application of the blockchain after Bitcoin: Proof of Existence.

What these services prove is that your image file with the meta data you input existed at the time that the hash was created and inscribed into the blockchain. However, what they fail to acknowledge is that the information can be easily manipulated. Almost anyone can download an image and edit the metadata, populating the data fields with whatever information they choose.

To emphasize the point, here is an example of a photo that was registered through a blockchain copyright registry service along with its blockchain certificate of registration. The only problem is that this photo was not shot by me nor do I own the copyrights to it, John Smith does.

And now let’s imagine the worst-case:

  1. John Smith takes a photo, posts it to his website and inscribes the JPEG file with a blockchain copyright registry service.
  2. I download the image from his site and change the EXIF metadata of the file to my name, thereby creating a twin-JPEG with 100% identical image content, but different bytes.
  3. I register my file with another blockchain copyright registry, which works even if both registries are on the same blockchain because the bytes are different due to the different name I entered in the EXIF meta data.
  4. John Smith’s registry shuts down (e.g. goes bankrupt, management decides it’s not a profitable business unit, etc.). The blockchain still contains the inscribed hash for John Smith’s file; but nobody can find John Smith’s inscription unless they have a bit-identical copy of the image file John Smith registered.
  5. I start licensing the copy John Smith’s image that contains my name in the EXIF data to unsuspecting buyers.

The messaging from the blockchain copyright registration services is extremely harmful to both the creators and users of the photographs. Many users searching the blockchain may take their claims as reliable and fail to perform their due diligence to verify the information provided on the blockchain.

If my image is viewed as authentic, solely because the work is inscribed on the blockchain under my name and falsified copyright information, then I can steal potential sales from the original photographer. Some may even try to go as far as pursuing copyright infringement claims for images they do not actually own the copyright to.

Essentially, these blockchain copyright registration services are proving that you had a specific file at a specific time; but, they cannot make any guarantees about the creation of the file, the content in those files, or the true copyright ownership of those files.

Whatever your position ideologically, the law states that you can’t file a copyright infringement complaint in US federal court if you haven’t registered the image with the US Copyright Office (USCO). Without a timely registration, meaning the image was registered within three months of publication or before the start date of the infringement, you are unable to seek statutory damages of up to $150,000 per infringed work or attorney’s fees. If this crucial step is missed and the copyright information is only inscribed to the blockchain, without a USCO registration, there are potentially hundreds of thousands of dollars that could be lost in a copyright infringement case.

It is also important to know that a major differentiator between a blockchain registration and USCO registration is that the U.S Copyright Office Certificate of Registration serves as prima facie evidence that you are the copyright owner of the image. Prima facie is Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. Blockchain registration certificates do not carry this legal weight.

Furthermore, when you register works with the USCO, you must acknowledge and agree to the following:

17 USC 506(e): Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided by section 409, or in any written statement filed with the application, shall be fined not more than $2500.

*I certify that I am the author, copyright claimant, or owner of exclusive rights, or the authorized agent of the author, copyright claimant, or owner of exclusive rights of this work and that the information given in this application is correct to the best of my knowledge.

Currently, there are not any blockchain registration services that require such an agreement or that can impose such fines by statute for fraudulently misrepresenting copyright ownership information.

While registration with the US Copyright Office can be expensive, don’t be deluded into thinking that the blockchain is some cheap cure-all for legally protecting your copyrighted work. The blockchain is not a government registry, but rather by definition is a distributed ledger without any central authority. Anyone can inscribe whatever they want in the blockchain without any legal recourse. That’s not quite the case with the United States Copyright Office. Proof of Existence is not Proof of Ownership.

 

 

 

DMLA JOINS IN AMICUS BRIEF VHT v ZILLOW

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.

Copyright Alternative in Small-Claims Enforcement Act of 2017

DMLA is happy to announce our support for the bill by Representative Hakeem Jeffries (D-NY) to create a small claims court within the Copyright Office.  The bill, H.R. 3945,  entitled, the “Copyright Alternative in Small-Claims Enforcement Act of 2017” (the “CASE Act”) is also cosponsored by Representatives Tom Marino (R-PA), Lamar Smith (R-TX), Doug Collins (R-GA), Judy Chu (D-CA) and Ted Lieu (DCA).

Here are links to the press release issued by Rep. Jeffries and his colleagues yesterday announcing the introduction of the bill, a press release issued by DMLA and several other visual artist organizations praising the introduction of the legislation, and the bill, H.R. 3945.

 

 

ImageRights Announces Dedicated Copyright Registration Service

ImageRights International, the global leader in copyright enforcement services for photo agencies and professional photographers, today announced the launch of a dedicated copyright registration service. For the first time, any photographer or agency can register their images with the United States Copyright Office through ImageRights highly efficient and precise copyright service. Previously, only ImageRights members had access to the service.

Read more here

Leading Copyright Enforcement Service Imagerights Announces Dedicated Copyright Registration Service


ImageRights International, the global leader in copyright enforcement services for photo agencies and professional photographers, today announced the launch of a dedicated copyright registration service. For the first time, any photographer or agency can register their images with the United States Copyright Office through ImageRights highly efficient and precise copyright service. Previously, only ImageRights members had access to the service.

ImageRights has successfully registered more than 600,000 published and unpublished images with the USCO through the service since its launch less than two years ago. The application is quick taking only a couple of minutes, simple with a high tech software that auto fills out the form, and most importantly accurate. With error checking technology, users can be assured their applications were filled out with all necessary information to protect images if an infringement claim is ever needed to be pursued. As a result of the accuracy of its applications and the long-standing relationship it has with the examiners at the USCO, ImageRights’ turnaround is among the fastest on the market, taking only a few weeks on average to receive the registration certificates versus the six to eight months cited on the copyright.gov website. Images can be registered through the website or by using the ImageRights Plugin for Adobe Lightroom.

ImageRights also inscribes the USCO registration number, date, status and deposit copies into the Bitcoin blockchain through their Blockchain Inscription Service. By using SHA2, an asymmetric cryptographic function, ImageRights can safely and automatically convert any file into a representative hash value. An effective and much faster alternative to requesting and paying for copies of the deposit copies from the USCO, the hash can be used as validated proof that a file containing the USCO registration information and images covered by the registration existed at that time and can be a valuable tool for expediting settlement negotiations for infringement claims.

“We strongly believe in photographers and agencies registering their images with the US Copyright Office and wanted to make our service readily available to all,” said Joe G. Naylor, President and CEO of ImageRights. “If the USCO form is not submitted the right way or the correct documentation of your work is not kept on file, photographers can be left vulnerable when pursuing an infringement claim. With our services they are 100% protected.”

Photographers and agencies can register their images with the US Copyright Office for $99 plus the Copyright Office filing fee at http://www.imagerights.com/copyrightregistration.

 

COURT PERMITS COPYRIGHT CLAIM TO PROCEED DESPITE ERROR IN REGISTRATION APPLICATION.

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The District Court of the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., (No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017)) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

Read the entire article here.

COURT PERMITS COPYRIGHT CLAIM TO PROCEED DESPITE REGISTRATION ERROR

Cowan DeBaets Abrahams & Sheppard, LLP by Mikaela Gross and Nancy Wolff

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The District Court of the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., (No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017)) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

In 2005, Archie MD, Inc. entered into an Animation License Agreement (“ALA”) with the publisher Elsevier, Inc., under which Elsevier would license Archie’s library of 3-D medical animations for use in its various publications. About two weeks after entering into the ALA, and after Archie had delivered the works to Elsevier, Archie submitted a single copyright registration application for a group of unpublished works. This registration included the work at issue in this case, an animation entitled “Cell Differentiation.” The Copyright Office eventually registered the group of works on August 15, 2005.

In 2014, Archie gave Elsevier notice that it did not intend to renew the ALA, and the ALA expired on July 1, 2015. Archie subsequently file a copyright infringement action against Elsevier, alleging that after the expiration date, Elsevier continued to use hundreds previously licensed animations under the ALA and created unauthorized derivative works.

Both parties filed motions for summary judgment, and the SDNY granted defendant Elsevier’s motion as to all but two of Elsevier’s new animations, on the grounds that Elsevier’s continued use of previously licensed animations did not constitute unauthorized use under the ALA and most of the new animations by Elsevier were not substantially similar to Archie’s animations. As to the remaining claims based on the “Cell Differentiation” animation, Elsevier contended that Archie’s copyright registration in unpublished works was invalid because the work was in fact published, and as a result, the court should dismiss Archie’s claim in its entirety. The court denied Elsevier’s motion for summary judgement as to “Cell Differentiation” on the basis that although the registration for “Cell Differentiation” contained an inaccuracy (namely that the work was unpublished, when it in fact was), this was not fatal to the registration under 17 U.S.C. § 411(b)(1).

Section 411(b)(1) of the U.S. Copyright Act explains that a certificate of registration issued by the Copyright Office satisfies the registration prerequisite for filing a copyright infringement action regardless of the existence of inaccurate information in the certificate “unless— (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” To determine whether Archie’s registration failed to satisfy this prerequisite, the court had to answer two questions: first, whether or not “Cell Differentiation” was published or unpublished, and second, if it was published, whether this inaccuracy on the certificate of registration was fatal to the registration’s validity.

As to the first question, the court held that “Cell Differentiation” was in fact published when Archie licensed and delivered the file to Elsevier. Reasoning that Archie’s delivery of the “Cell Differentiation” digital file pursuant to worldwide license to, among other things, distribute “Cell Differentiation” to the public, satisfies the Copyright Act’s definition of publication under 17 U.S.C. § 101 because it constitutes an “offering to distribute copies . . . to a group of persons for purposes of further distribution.” That Elsevier had not yet made any further distributions of “Cell Differentiation” at the time the copyright registration application was filed was irrelevant, because the licensing and delivery of the files was itself an offering.

Because the certificate of registration listed “Cell Differentiation” as unpublished, the court turned to the statute to answer the second question. If an applicant knew its application contained inaccurate information, and if the Register of Copyrights would have refused registration had she known of this inaccurate information, then a subsequent registration certificate is invalid for purposes of filing a copyright infringement action. 17 U.S.C. § 411(b)(2) requires that when an inaccuracy on a certification of registration is discovered, a court must ask the Register of Copyrights “whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” The Register advised the court that she would have denied the application had she known of the inaccuracy in labeling “Cell Differentiation” unpublished. The key issue was whether Archie knew of the inaccuracy. Because the question of whether licensing a work constitutes publication was “an unsettled legal question at the time” Archie filed its copyright registration application in 2005, the court reasoned that Archie did not know of the inaccuracy. As a result Archi was able to proceed on its copyright claim for the work “Cell Differentiation”.

Publication remains a thorn in copyright owner’s side. While the plaintiff in this case was not considered to have knowledge that its works were published at the time of registration, those filing registrations after the later cases clarifying what is published will no longer have the benefit of this uncertainty. Because the Copyright Office would deny registration of an application with inaccurate information as to the works’ publication status, it is highly recommended that creators register works of visual art before any licensing agreements are signed or files are delivered for further distribution. Otherwise, published works, if photographs, can be registered by the photographer under a group registration of photographs application, but published and unpublished works are still required to be filed separately. Until this requirement is revised, visual artists will continue to face impediments to successful and effortless copyright registration.