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Digital Media Licensing Association Submits Comments to Copyright Office On Making Available Right

 by Nancy Wolff, PACA Counsel

On September 15, 2014, Nancy Wolf, on behalf of the Digital Media Licensing Association, Inc., together with various visual arts associations (The National Press Photographers Association (“NPPA”), American Society of Media Photographers, (“ASMP”), Graphic Artists Guild (“GAG”)) who signed on to the letter, responded to the Copyright Office’s Notice of Inquiry concerning its study on the right of making available.

Congress asked the Copyright Office to study whether the United States meets its obligations under various copyright treaties that require members to provide authors certain exclusive rights, including the exclusive right to make a work available to the public and to communicate to the public, including on the internet. For those of you that are familiar with the exclusive rights a copyright owner has under US law, you will say,” but I never heard of that right!”. You would be correct. The Copyright Act under 17 U.S.C. § 106 provides an author with various exclusive rights such as the  right to reproduce a work, to distribute a work publicly, to display a work publicly, to transmit or perform a work publicly and to make or authorize derivative works. But the Copyright Act has no express making a work available or communicating a work to the public right.

What the Copyright Office and others have maintained is that the making available right is implicitly included in the bundle of exclusive rights provided in 17 U.S.C. § 106.  The comments submitted specifically focused on the making available right and communication to the public right in connection with displaying images on the internet.

In sum, the comments raised a concern that some courts have misinterpreted the display right in such a way that effectively swallows up visual artists’ making available right and communication to the public right online and that this interpretation is inconsistent with Congress’ intent. In particular, the comments focused on the “server test,” established by the Ninth Circuit in Perfect 10, Inc. v. Amazon, which coupled the display right with the reproduction right.  A series of court decisions adopting the server test, hold that a website only infringes the display right if the copyrighted image is stored on the website’s server, and then displayed using that stored copy.  Under the Copyright Act, however, the display right and reproduction right are independent and, as such, it should be irrelevant whether the one possesses or controls the physical copy from which the display or communication is made.

One of the unfortunate results of these recent decisions is that a website can circumvent the need to obtain a license to use a copyrighted image by implementing certain technological processes that enable a website to display an image without storing a copy on its server.  As this technological slight-of-hand, used to circumvent licensing requirements becomes more prevalent, the loss of control by visual artists over their images increases exponentially. The comments conclude that the courts’ interpretation of the display right eviscerates visual artists’ right to make their images available online and their parallel right to prevent others from doing so.  Websites can circumvent licensing which in turns is causing real economic harm to image libraries and individual creators who rely on the ability to license their works to earn a living.

The recommendations include having the Copyright Office draft guidelines regarding the interaction between the rights of communication to the public and making available, and the exclusive rights set forth in the Copyright Act.  Importantly,  the guidelines should clarify that each of the exclusive rights are distinct – that there can be a violation of the public right to display without also having a reproduction.  The guidelines should further articulate the definition of “display” to include new technological ways of displaying images online.  Lastly, if the courts’ misinterpretation of the display right for visual artists persists, the response supports Congressional action.

The complete response is available here 


Online Stock Photography Provider Dreamstime Releases WordPress Plug-In

WordPress Users Can Choose from Dreamstime’s 22.2 Million Image Library


WordPress Users Can Now Add Dreamstime’s Rich and Engaging Free and Commercial Copyright-Attributed Images to Their Blogs and Websites

NASHVILLE, TN — Dreamstime, a distinguished leader in stock photography, today announced the release of a plugin for WordPress, the leading free blogging framework and content management system used by more than 60 million websites.  Several top brands including Coca-Cola, The New York Times Company, Sony, The Rolling Stones, Linkedin, and Reader’s Digest utilize WordPress to build and manage their sites.

The plugin gives WordPress users access to free and commercial content from Dreamstime’s massive image catalog, allowing them to easily embed professional quality images. A credit line promoting the image conent on Dreamstime can also be displayed using the plug-in, and users are encouraged to include proper copyright information. The easy-to-use plugin means WordPress users will only select approved stock images, instead of pulling low-quality images from search engines or social media sites without permission. WordPress users can link their Dreamstime account so they can have seamless access to commercial images, and the ability to use credits or subscriptions from their WordPress acount remotely.

With the new plug-in, WordPress users can select from Dreamstime’s catalog of more than 22.2 million professional stock photos. They can insert an unlimited number of images directly from the WordPress Add Media tool, so they never need to leave the WordPress platform. All Dreamstime images are model released and attributed to the proper entity, removing the blogger or web designers’s concerns about any future copyright claims from photographers or models. It also allows WordPress users to generate income from the automatic integration with the  Dreamstime referal program which rewards the highest royalties in the industry.

“The WordPress community includes a massive group of individuals and businesses that are building everything from simple blogs to complex image-intensive sites,” said Serban Enache,  Dreamstimes’s CEO and co-founder. “Users can now utilize this handy plug-in tool to embed images from our massive free library which offers high-quality images from dozens of categories. We’re also educating users on the importance of managing image copyright, instilling in them best practices which can protect them from the pitfalls of copyright infringement.”

For more information about the WordPress plug-in, visit www.dreamstime.com/wordpress-photo-image-plugin.

maXx images breaks the 19.5 million image mark with the launch of its new website

One of North America’s largest stock photography resources, www.maxximages.com, announces the launch of its new website, now offering over 19.5 million images, photo subscription, video, low budget images and celebrities. 

maXx Images Inc., a North American stock photography agency, announces the launch of its new website. The company has implemented a new contemporary look along with enhanced search and lightbox features. Plus it has increased its licensing options by now offering over 19.5 million images and video clips.

“We have been working hard over the past year to bring something exceptional to our clients,” said Dave Maquignaz, President of maXx Images, “and with the new user-friendly design and enhanced search features, full spectrum of licensing options, and over 19.5 million images and video clips, we think we’ve created a truly first class website that provides our clients with an exceptional visual resource.”

Offering the highest quality rights-managed, royalty-free, low budget royalty free and subscription based stock photos in both Canada and the U.S.A., maXx Images’ extensive stock photo collection provides high quality images and video clips for advertisers, graphic designers, publishers and multimedia producers worldwide.

Background information: maXx Images Inc., established in 1994, is a stock photography agency located in Vancouver, Canada. Working closely with our select group of professional photographers and strategic global partners, maXx Images represents over 19.5 million rights managed, royalty free, low budget royalty free and photo subscription images and video clips making us one of North America’s leading creative sources for imagery.

maXx Images Inc.
1433 Rupert St., Suite 3A
North Vancouver, British Columbia
Canada, V7J1G1
p. 604-985-2560
toll free. 1-888-511-3939