NPPA’s Memorandum of Opposition

 

MEMORANDUM IN OPPOSITION TO

A. 08155

by the

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION

The National Press Photographers Association (“NPPA”) strongly opposes A.08155, amending New York State’s civil practice law and rules and civil rights laws, by among other things, establishing the right of publicity for both living and deceased individuals. If enacted, such legislation will cause serious economic harm to our New York State members who photograph people as part of their jobs, whether doing so as employees of news organizations or as freelancers. These “publicity rights” will unconstitutionally deprive photographers and others of the right to exercise property and copyright interests in their still, filmed and recorded images.

The NPPA is a 501(c)(6) non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s approximately 7,000 members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. A significant portion of published and broadcast newsworthy images in New York are created and licensed by NPPA members. Since its founding in 1946, the NPPA has been the Voice of Visual Journalists – vigorously promoting and defending the rights of photographers and journalists, including intellectual property rights, as well as freedom of speech and of the press in all its forms, especially as it relates to visual journalism.

As the heart of the media industry, New York State, has always been at the forefront in upholding the First Amendment and its concomitant rights. Substantially expanding the breadth of a statutory right of publicity, creates a burdensome statute that will have a crippling and chilling effect on expressive speech. Such legislation will create a requirement that photographers, their representatives and copyright holders of images or photographs depicting any individual (not just celebrities) living or deceased, “regardless of their place of domicile, residence or citizenship” to obtain “the written consent” of that individual, his or her successors or assigns, or, in the case of a minor, of his or her parent or guardian before such use within this state for advertising purposes, for the purposes of trade or for purposes of fundraising or solicitation of donations, may occur.

No such right of publicity has previously existed. Instead of heirs inheriting these rights, it is more likely that a corporation, with no interest in New York State, and whose only interest is in exploiting publicity rights and restricting the use and licensing of such images, will benefit from this newly created ex post facto right. Photographers, licensing representatives and copyright holders will suddenly lose a right they have had for more than 100 years, with this unconstitutional taking.

We are also extremely concerned about the proposed language explicitly addressing “Photographers” which states, “nothing contained in this article shall be so construed as to prevent any person practicing the profession of photography, from exhibiting specimens of the work of such photographer, unless the same is continued by such person after written notice objecting thereto has been given by the individual portrayed.” Unclear is what happens after the “individual portrayed” sends “written notice objecting” to the exhibition of “specimens of the work of such photographer” and the photographer continues to do so? What about displaying online as most photographers do these days? Wefear that this bill raises more questions and creates more problems than it constructively addresses.

The language of this bill is overbroad, ambiguous and vague. It invites unnecessary and burdensome litigation. The proposed legislation will most certainly increase the costs and burdens of licensing images, requiring increased fees and burdensome approvals for previously permitted uses. Photographers and their representatives will likely bear the undue burden of researching and locating the owner(s) of such rights and securing approvals, which may never be possible. Most individuals and companies can ill afford these costs with the result being fewer images licensed, and fewer jobs in New York State.

The consequences of departing from clearly established legislation and jurisprudence is too important to be set aside in order to satisfy the desire of a few celebrities’ agents seeking to unreasonably exploit this issue. The constitutional concerns, undue burdens and litigation risks such a law would impose on our members are far too high to justify any benefits that may result.

For the above stated reasons, the NPPA strongly opposes A.08155 and requests that this legislation be held.

Respectfully submitted,

Mickey H. Osterreicher                                                                                                                                    General Counsel                                                                                                                                   National Press Photographers Association (NPPA)

June 5, 2017

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

PICHA Stock – Do you speak Swahili?

New in 2017, we are highlighting various DMLA members to give insight into their businesses with Member Profiles.  Visual Connections recently ran this amazing article on one of our members,  Josiane Faubert of PICHA Stock.  We thank VC for allowing us to repost their work and bring you an insight into one of our newest members. Josiane will be speaking at the DMLA 2017 Conference in October with a DMLA Talk.  Read the entire article here.

PICHA – Do you speak Swahili?

New in 2017, we are highlighting various DMLA members to give insight into their businesses with Member Profiles.  Visual Connections recently ran this amazing article on one of our members,  Josiane Faubert of PICHA Stock.  We thank VC for allowing us to repost their work and bring you an insight into one of our newest members. Josiane will be speaking at the DMLA 2017 Conference in October with a DMLA Talk.

©DudefromSA @PICHA

Diversity and Authenticity – the need to have visual media accurately reflect the world has perhaps never been so urgent and necessary. Tell us about yourself and how PICHA Stock came to be:
 
PICHA, is a RF stock photo library specialized in Africa. I started PICHA in 2014 because I felt we needed better representation of Africa in this industry. I am from Gabon and from France and I was always frustrated when trying to find contemporary images of Africans, so I started PICHA with my own collection and now we have contributors from South Africa, Kenya, Ghana and Morocco. My goal is to be able to get contributors from all over Africa.

What is your process for sourcing and working with your photographers to create relevant imagery? Are they exclusively from Africa or do you work with photographers internationally?

We work with photographers internationally, although our sourcing efforts are dedicated to photographers on the African continent. We get a lot of referrals, people who refer photographers they know/love, and we also scout social media a lot to see what people are producing. Word of mouth and social media are key for us.

There is also an investment in time educating on what works and what is relevant in the stock industry.

©JFP @PICHA

The RF business model is certainly the prevailing and most popular at the moment. Sustaining and growing business with lower price points has got to be a challenge – Where do you see PICHA Stock in the market place and how do you plan to firmly establish the collection?

Finding the right balance is a big challenge. The RF model makes things easier for buyers and is becoming the norm. Surviving in this market means finding ways to differentiate yourself. PICHA is very different, we focus exclusively on Africa. Our goal is to show Africa in many ways, especially the modern Africa. PICHA has been growing and buyers especially in Africa are starting to embrace PICHA too.

Distribution is such a vital cornerstone for any collection – what are your plans for reaching markets outside Africa?

PICHA is very careful with other channels of distribution. We have been talking with a few other agencies but we value agencies who can really see PICHA’s collection with real added value, and not just another source for more photos. We are testing a few partnerships at the moment.

Tell us about some of your favorite photos in the collection.

Recently we showcased a few photos for Valentine’s Day and they were quite funny, people’s engagement on social media during valentine’s day quite high.

I am normally fond of images that depict ‘everyday workers’, people who have small shops or who sell on the street. I feel like everyday workers are the soul of any city.

©Adama Traore @PICHA

How long have you been a DMLA member and what has your experience been like so far?

I have been a member of DMLA for a year now and it has been great. DMLA provides many resources and as a small agency, I am really thankful for this, especially the legal resources. The icing on the cake with DMLA is the conference where I’ve been able to meet and learn from great people.

What else would you like the readers to know about PICHA Stock?

PICHA means ‘image’ in Swahili and it is a collection of warm and rich photos of Africa. PICHA is very young and very dynamic. If you are looking for something original and out of the ordinary, PICHA is the site to check.

Thank you Visual Connections!

***

A Note from the President

Hi members,

I wanted to give you all a quick update on the board composition at DMLA.  The board members recently unanimously approved a request from Geoff Cannon for a temporary leave of absence.  I will be serving as acting president during this period.

 

Cathy, the Board, and myself are excited to continue the progress of the organization and our annual conference in October.

 

For any questions, please don’t hesitate to contact me or Cathy.

 

Sincerely,
Andy Yang, CEO 500px
Acting DMLA President

DMLA Webinar: Movement to Video & Mixed Media

 

WEBINAR

“The Movement to Video & Mixed Media Marketing”

When: Wednesday, May 17, 2017, 1 PM Eastern

Moderated By: Leslie Hughes, Visual Steam

“If a picture is worth 1000 words, video is worth 10000 words, literally.” The next DMLA webinar will explore the movement to video and mixed media online. What does it mean for content licensing, growing your business, the still photo business? The predictions are staggering—but will they be realized?

*According to a report by Cisco, 80% of all content viewed online will include video by 2019.

Leslie Hughes will moderate a conversation about the movement to motion, what it means, how brands are implementing video and using stills in mixed media projects.We will get perspectives from the creator of Pixeldot, Luke Taylor. Natalie Lloyd, also from Pixeldot, will join us as a brand strategist. We will also hear from Director/Photographer Stewart Cohen, who recently took over as CEO of Superstock.

Luke Taylor Luke Taylor

Founder/Creative Director
Pixeldot

Co-Founder of the award-winning branding agency, Pixeldot, Luke leads the creative direction of the business, embedding the practice of applying design thinking to solve business challenges into the core of every project. Entrepreneur-minded and creatively driven, Luke sees brand as the all-encompassing output of a business. As such, Pixeldot work with clients across the UK, Europe, US and Africa to unlock their potential through connecting the brand thread of their business.

Luke is also a photographer, father and Whippet owner, and an impassioned up-and-comer.

https://twitter.com/pixeldotluke
https://www.linkedin.com/in/pixeldotluke/
https://www.brandbypixel.com/


Natalie Cohen Natalie Lloyd

Brand Thinker/Strategist
Pixeldot

With a career that runs the gamut of the creative and digital industries, Natalie has been making her mark in the UK and abroad for the past decade. As Strategist at Pixeldot, Natalie draws on her experience to help businesses reach their full potential through technology. Spanning the UK, New York and Montpellier, previous roles include Director of MOHARA, a digital product studio and Curator / Producer of TEDxBrighton, with clients ranging from international banking groups to national public arts organizations.

https://twitter.com/natalie_l_lloyd/
https://www.linkedin.com/in/natalielloyd/
https://www.brandbypixel.com/


Stewart Cohen Stewart Cohen

Director/Photographer/CEO
Superstock

Canadian born Stewart Cohen is known for his subtle yet effective fashion in which he directs people, and for the enthusiasm and energy he brings to all assignments. His visual approach is honest, resonant, authentic and cinematic. He moves seamlessly between large-scale productions and smaller intimate ones keeping his visual acuity sharp.

Stewart is a founding member of Blend Images — the world’s leading multicultural commercial stock agency — and has led the Blend motion content ingestion system since 2009. In 2009 Stewart also joined a group that bought SuperStock, a royalty-free and rights-managed image collection which includes: fine art and illustration, vintage, science and technology, lifestyle and more. Stewart became the CEO of SuperStock in January 2017. .

https://www.linkedin.com/in/stewartcohen/
http://www.stewartcohen.com/
https://www.superstock.com


Stewart Cohen Leslie Hughes

President/Founder/CEO
VisualSteam and ISPY Visuals

With more than two decades of experience in digital media, Leslie Hughes’ career bridges creativity, business, content and technology. With VisualSteam, Hughes drives strategy and business development, developing insights, innovations and plans to help our clients move forward and grow their businesses. We help clients bring new products to market, new markets to products, and to communicate more effectively with their audiences. In 2016, Hughes founded iSPY Visuals, a search aggregation tool to help art buyers and photo editors more quickly and easily, find and work with visual content. iSPY launched its beta site in February 2017.

Hughes is a seasoned speaker, published writer, and visual content industry specialist. She has a passion for the ocean and spends as much time on the water as possible, boating, kayaking and swimming. Hughes is a mother, daughter, sister and women’s rights advocate.

https://twitter.com/lesliehughesny
https://www.linkedin.com/in/lesliehughesny
http://visualsteam.com
http://ispyvisuals.com

Please RSVP to info@visualsteam.com with a “Yes” or “No”

Adobe Connect

https://dmla.adobeconnect.com/r3y7a4qoycp

at 1 PM EST on May 17
select “enter as guest” and provide your name then click “enter room”

Please mute the microphone at the top.

To connect by phone dial…

855.870.5454 (toll free)
or
408.773.6768 (international)

Conference code: 163 631 9537

If you’ve not used Adobe Connect previously, we suggest logging into the session a few minutes before the start to download and configure the neccesary software.

A big thank you to Adobe for providing this service for our webinars

View our previous webinars at http://digitalmedialicensing.org/video-library.shtml

DMLAsearch

DMLA is a unique community of visual media licensing professionals who share a common goal, building a stronger and more profitable industry.

For more information contact Cathy Aron, DMLA Executive Director, cathy@digitalmedialicensing.org

DMLA Blog LinkedIn Twitter Facebook

 

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.

Fantastic Discount Offer for LDV Vision Summit

Another great perk for DMLA Members, but you must act quickly, offer ends April 30th.
Here is the offer :
At the 2017 Annual LDV Vision Summit on May 24-25 in NYC, experts discuss how computer vision, machine learning and artificial intelligence are disrupting business & society.
500 attendees come to see 80 speakers from companies like Google, Facebook, Union Square Ventures, and First Round Capital talk about opportunities in visual technology across 40 sessions and 2 competitions. LDV Capital is offering the DMLA members a 87% discount on tickets through April 30 with the code DMLA.