Tag Archives: copyright registration

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.

 

 

 

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.

 

 

 

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.