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.
Moreover, while Instagram’s agreement includes the right to sublicense images, it specifically excludes the need to ever pay creators, regardless of the way the company may use or sell their work. The photographic community believes strongly that fair compensation for the creators of work is a vital component of a fair agreement.
Peter Krogh, ASMP’s Digital Standards & Practices Chair, said, ” As online services become larger repositories of intellectual property, power has shifted away from the user and toward the company provider. Unless changes are made by Instagram, we believe the terms will have a profound and negative impact on imaging professionals, publishers and general users.”
In the coming weeks and months ASMP, along with the other listed organizations, will continue to reach out to gain support in addressing these egregious terms before they become the industry standard.
PLEASE NOTE: PETER KROGH WILL BE SPEAKING ON THE INSTAGRAM ISSUE AT THE PACA 2013 CONFERENCE
Eugene Mopsik, Executive Director
American Society of Media Photographers (ASMP)
Phone: 215 451 2767