Tag Archives: copyright infringement

PicRights Advances Global Copyright Enforcement Network With New Partner in India

Team in Hyderabad joins long established network to monetize infringements for content owners

PicRights Europe GmbH, a global leader in copyright compliance, has once again expanded its enforcement network. To monetize copyright infringements for the world’s leading content owners, PicRights has added an experienced team in Hyderabad, India as the newest enforcement partner. This will augment PicRights’ long established network in major markets in Europe, North America, SouthAmerica and the Middle East, further cementing PicRights’ dedication towide-ranging geographical coverage of key markets around the world for its clients.

The new location is strategic. India remains the fastest growing major economy in the world. By 2024, India will have the largest population in the world and willexperience a 4x growth in consumer spending in the next ten years.

“Many of our current image collections have been available for licensing in this region for decades, but without the benefit of dedicated copyright enforcement. Our chosen partner in India will provide our clients withexcellent opportunities to further monetize their content,” says Alfred Hoefinger, CEO of PicRights Europe.

Conceptual Pictures, an experienced stock image licensor located in Hyderabad will be responsible for cases in both India and Singapore. “With the established expertise of my team and the PicRights state-of-the-art system, we were up and running on Day 1 in India,” says Ramji Ravindran, Founder and CEO of Conceptual Pictures.

Geoff Cannon, VP Sales of PicRights Europe, adds “As content owners know, copyright infringement is a huge challenge nearly everywhere, including in emerging markets like India. The addition of India to our already extensive enforcement network allows us to provide a robust global solution to our customers.”

With their end-to-end service, PicRights handles the difficult business of monetizing copyright infringements, allowing copyright owners to concentrate on their core business. Using state-of-the-art technology to identify infringements and a team of experienced staff to qualify them as enforceable, PicRights delivers actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees.

 About PicRights:

PicRights Europe GmbH is headquartered in Switzerland with enforcement operations and professionalcompliance officers in central and northern Europe (Germany, Austria, Switzerland, France, Benelux andScandinavia), London (for UK and Ireland), the Middle East (Emirates and Saudi Arabia), Toronto (for USAand Canada), Sao Paulo (Brazil), Hyderabad (India) and Johannesburg (South Africa).

PicRights Europe GmbH

CONTACT: Geoff Cannon, VP Sales

PHONE: +1 416 816 5700

EMAIL: geoff.cannon@picrights.com

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.

 

Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC

Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, United States Supreme Court, — U.S. –, 2019 WL 1005829 (March 4, 2019)

** This does not change the practice in many federal districts, such as NY,  that always followed the registration rule

On March 4, the Supreme Court ruled unanimously that a “‘registration … has been made’ within the meaning of 17 U. S. C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.”  As a result, suits for copyright infringement cannot be commenced until after the Copyright Office issues (or denies) a registration, but the Court noted that plaintiffs can seek damages for infringement that occurred before and after the registration was granted.

The Supreme Court affirmed the decision in the Eleventh Circuit which ruled in May 2017 that Fourth Estate was barred from bringing an infringement suit because it did not yet have the certificate of registration for its copyright, insisting that a litigant must wait to assert its rights until the registration was issued.  The Eleventh Circuit’s opinion explicitly recognizes the current circuit split between the “application” approach (a copyright owner may sue upon filing a complete application), followed by the Ninth and Fifth Circuits, and the “registration” approach (a copyright owner must wait until the application is processed and registration has been granted or denied), followed by the Tenth Circuit and now the Eleventh.  On June 28, 2018, the Supreme Court granted certiorari.

The Supreme Court based its ruling on its reading of §411(a), noting that the second sentence allows the Register of Copyrights to be sued upon refusal of registration, and adopting the application approach would make this provision “superfluous”.  In addition, Justice Ginsburg noted that Congress has also enacted a provision allowing for “pre-registration” for works, such as movies, which may be subject to infringement before registration is granted; these provisions would also be unnecessary if registration did not have to issue before litigation could commence.  Read in its entirety the statute contemplates that there is affirmative action required by the Copyright Office to effectuate registration, and not simply the submission by the right holder of a complete application.  The Court analogizes waiting for the registration to issue before commencing litigation as similar to having to exhaust administrative remedies.  Lastly, because damages from infringement before registration are available, the copyright holder can be made whole for any infringement that occurs from the creation of the work.

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.

ImageProtect has a Job Opening

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Image Protect (IP) is building a community of Visual Artists to help defend against copyright infringement. Our advanced tracking and recovery technology simplifies copyright protection. By combining industry-leading software with a platform of visual artists and copyright experts, Image Protect is building a community for the education and advancement of international copyright.

See their job listing here.

SUPREME COURT AGREES TO TAKE ON COPYRIGHT CASE

by Nancy Wolff, DMLA Counsel

The U.S. Supreme Court has agreed to hear a case concerning when a prevailing party in a copyright case is entitled to recover its costs of litigation. Section 505 of the Copyright Act states that in copyright cases “the court in its discretion may . . . award a reasonable attorney’s fee to the prevailing party.” Because the law gives courts the discretion to award attorneys’ fees, over time several different standards have developed in the federal court system.

The Supreme Court has not considered this issue since 1994, when in Fogerty v. Fantasy, Inc. it rejected the tendency of some lower courts to engage in the “dual standard” of awarding generous fees to prevailing plaintiffs, while only awarding fees to prevailing defendants in extraordinary circumstances, such as when the plaintiff’s claim is deemed “frivolous” or in “bad faith.” The Court instead endorsed the three-factor analysis which looks to the “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence. . . . so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner.”

Following the Fogerty case, courts began to award attorneys’ fees to defendants as well as plaintiffs which some say has been a deterrent to plaintiff’s initiating copyright cases against defendants for fear of losing and incurring the expense of attorney’s fees, particularly in hard cases involving fair use.

The present case, Kirtsaeng v. John Wiley & Sons, Inc., was before the Supreme Court only three years ago, albeit for an entirely different issue. In 2013, Supap Kirtsaeng, who had built a successful eBay business selling textbooks that he bought overseas, prevailed against a copyright infringement claim by the publisher John Wiley & Sons, Inc., and then sought to recover his attorneys’ fees. The Second Circuit Court of Appeals affirmed the district court’s decision to deny the motion for fees by focusing on the “objective reasonableness” of John Wiley & Sons’ pursuit of the case. Kirtsaeng, recognizing inconsistency among the circuit courts concerning the application of the three Fogerty factors, petitioned the Supreme Court to consider the appropriate standard for awarding attorneys’ fees to a prevailing party.

As the issue of attorney’s fees is significant in determining whether to bring copyright litigation or whether to settle a copyright infringement case, having guidance on this important issue from the Supreme Court and will be helpful to plaintiffs and defendants alike.

DMLA Participates in Various Meetings with the House Judiciary Committee

On November 3, Nancy Wolff, DMLA Counsel, attended the Rights Caucus for the House Judiciary Committee in Washington, DC.  The event was held in a Judiciary Committee hearing room in the Rayburn House Office Building.

The Creative Rights Caucus is a bi-partisan legislative “listening” committee co-Chaired by Representative Judy Chu (D-CA) and Representative Doug Collins (R-GA). It is dedicated to protecting the rights of content creators. More importantly, the Caucus aims to help the public understand that we cannot judge the entertainment industry by how well famous Hollywood or music stars are doing.

The event was organized by David Trust, Executive Director of the PPA (Professional Photographers of America), who also moderated the panel discussion. Panelists included photographer Denis Reggie, illustrator John Schmelzer, photographer Mary Fisk Taylor, graphic artist Lisa Shaftel, and photographer Michael Grecco.

There was an extraordinary turn-out of approximately 150 people and standing room only in the hearing room.

Afterwards Nancy joined the PPA and other association representatives in meeting some congressional staffers as well as Congressman Hakeen Jeffries of New York about the issues of the image licensing industry and about legislation to support a copyright small claims court and the modernization of the Copyright Office.

 

On November 10, 2015, Sarah Fix, DMLA President participated in a private meeting in Los Angeles bringing Members of the United States House of Representatives Judiciary Committee and their staff together with photographers and photo/visual editors representing ASMP, APA, DMLA and NPPA to discuss the marketplace realities facing professional photographers as small business owners and representatives of the creative class.

Organized and moderated by ASMP Executive Director, Tom Kennedy, it was a lively discussion covering a wide range of topics of concern to photographers including:

  • Modernization of the Copyright Office and the need to simplify copyright registration.
  • The creation of a Copyright Small Claims Court as a remedy for infringements that cannot realistically be pursued within the Federal court system.
  • The proliferation of infringement fostered by digital distribution systems and the commercial harm caused by such rampant infringements.
  • The challenges presented by “click-bait” sites whose entire business models are built around intentional infringement.

The House Committee seemed to respond well to the first-hand accounts from the presenters and generally agreeable to the ideas shared at the meeting including the Copyright Small Claims Court. It seemed clear that their legislative solutions would include individual creators.