We’ve recently reported several news stories on copyright law: changes to the U.S. Copyright Office registration process; a court ruling on the too-common practices of embedding image links from third-party sites in news articles; a change in the way a search-engine giant displays images from third-party sites; plus the adaptation of blockchain, the cyber currency security tool, to track image registration and usage. Here we’ve compiled excerpts of those news stories with other popular articles about copyright protection for photographers. Please note that our coverage of copyright claims are intended to provide useful information on case law and regulation, but are not meant to substitute for the advice of an attorney.
A federal court in New York ruled in February that several publishers violated a photographer’s copyright when they embedded his photo from Twitter on their websites without permission. Photographer Justin Goldman sued Breitbart News Network, TIME Inc, The Boston Globe and other online publishers last year for infringement, alleging they displayed in various online news stories, without permission, a photograph he took of New England Patriots quarterback Tom Brady.
In their defense, the publishers invoked the so-called Server Test rule. That rule is based on a decade-old ruling in the Ninth Circuit which allowed for unauthorized display in Google search engine results of photographs stored on third-party servers. The gist of the Server Test rule is that website publishers aren’t liable for infringement when they embed content hosted on third-party servers. But in her ruling in the Goldman case, judge Katherine B. Forrester of New York—who is under the jurisdiction of the federal court system’s Second Circuit—challenged the Ninth Circuit rules. She wrote of the defendants in the Goldman case, “Their actions violated plaintiff’s exclusive display right [and] the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”
The defendants claimed a decision in favor of Goldman “would radically change linking practices,” but the judge was unpersuaded. Still, several issues in the case remain unresolved. Read more about arguments in the case at pdnonline.
Almost two years after Getty Images filed an unfair competition complaint against Google in the European Union, claiming the search engine had cut into the agency’s licensing business, the stock agency and the search engine giant released a statement claiming they’ve reached a mutual licensing deal. The statement offered few details, but according to Getty’s email to contributors, Google will change the structure of its image search platform, eliminating the “View Image” button that allowed Google Images users to view a high-resolution image without going to the third-party sites where the image is hosted. Google will also display copyright and credit information more prominently. For more information on the agreement, and Getty’s suit in the EU, visit PDNPulse.
The U.S. Copyright office has implemented new rules for registering groups of photos. The aim is to streamline the process. The Copyright Office has created two new group registration options for photographs: group registration of published photographs (GRPPH) and group registration of unpublished photographs (GRUPH). The new rules impose a 750 photograph limit for both published and unpublished group registration applications, and also eliminate paper applications: All submissions must be made online. To provide copies of the material to be registered, photographers can upload digital copies or send a physical storage device such as a flash drive. The Copyright Office also added new rules and clarifications regarding the authorship of photos, how groups of photographs should be titled for registration, and where published works have to appear to be regarded as published. Read more about the new process on PDNPulse.
What Photographers Need to Know about Blockchain
Bitcoin, the cyber currency, is built on a form of secure digital record-keeping called blockchain. The digital records it stores are highly secure and resistant to tampering, which is the reason it’s being used for digital money, where the incentive to hack and create forgeries is extremely high. Having an immutable record of digital transactions can be valuable for photographers and other copyright owners as well. For one thing, you can securely link and store metadata information with your image—information like copyright registration and usage rights—in the blockchain. Several image rights companies, such as Binded, ImageRights and Ascribe, embraced blockchain technology to do just that, and in January, Kodak announced the launch of KodakOne, which uses blockchain to verify image ownership. As ImageRights’ CEO Joe Naylor tells us, when an ImageRights user first submits an image to the U.S. Copyright Office, the company will now create a record with the image thumbnail, date and type of copyright registration and store it in the blockchain. If the company discovers an infringing use of that image, it inscribes that data into the blockchain as well—with the date of the infringement. Naylor says this helps photographers, since the statute of limitations for pursuing a copyright claim is three years from the date of the infringement.
Naylor is particularly bullish on blockchain’s application in image licensing. Blockchain can be used to create so-called “smart contracts”: When an image is used per its license, the photographer automatically receives compensation. Not everyone is sold on the use of blockchain as a rights management tool. For instance, copyright attorney Leslie Burns asserts that the blockchain-based services are liable to collect far less money from infringers than a copyright holder is legally entitled to. Below is a list of some of our blockchain stories you can find online.
In a PhotoPlus Expo panel, photographers John Harrington and Jeff Sedlik laid out a number of useful strategies that photographers can use when their images are stolen. The first step is to register the copyright to your work. Both Harrington and Sedlik stressed that the best mechanism for pursuing an infringer is through an attorney. But not just any attorney. Sedlik said you need to find a copyright attorney in the correct jurisdiction, with a winning track record who specializes in photography. Many photographers choose to confront infringers themselves, without using an attorney. While it’s sub-optimal, there are steps photographers can take to set themselves up for success. These include research and documentation of the infringement, then approaching the infringers—maintaining a record of all communications. If the infringer isn’t responsive, you’ll need a lawyer to escalate—or draft a settlement. Though it requires vigilance and energy, copyright enforcement provides an additional revenue stream for many photographers. Read more on PDNonline.com.
Photographers often complain that someone stole their picture, or their idea—not by reproducing the actual photograph, but by creating a very similar image. The question is whether the copying is based on inspiration, which is legal and not infringing, as long as the “copy” and the original don’t look too similar. Where and how to draw the line between inspiration and illegal (ie, “too similar”) copying is hard to articulate and can often seem arbitrary. Attorney Nancy E. Wolff explained several points courts consider when evaluating a claim, and cited recent court cases that demonstrate how they applied principles of copyright. These include the rule that “copyright protects expression [i.e., execution], not ideas.” For a photographer, it can be more helpful to look at what is depicted within the four corners of a photograph and ask: What choices did the photographer make to create a work [eg., lighting, lens, camera angle], and what subject, concepts and poses belong to the public for anyone to take? Learn more at PDNOnline.com.
If a photographer fails to register an image within three months of its publication and their image is stolen prior to registration, they cannot sue for statutory damages of up to $150,000 per image plus attorney’s fees. If an image is “unpublished,” photographers have up to one month after they discover an infringement to register the copyright if they want to pursue statutory damages. The problem is that determining what qualifies as a “published” or “unpublished” image for the purposes of copyright registration is complicated. What if you post an image on social media with intent to distribute or sell it? A photographer, her or his attorney, or an infringer may argue during a copyright dispute that publishing an image on social media doesn’t constitute publication in a legal sense. And they may be right. But it’s currently a legal gray area. “There have been some courts that say posting a photograph on the internet constitutes publication,” notes attorney Carolyn E. Wright, who represents photographers and writes about copyright law at photoattorney.com. “We have different case law and we don’t have [a definitive upper court decision] yet to resolve this issue.” In Rogers v. Better Business Bureau of Metropolitan Houston, the judge found that simply publishing something on the internet did not constitute “publication” as defined by U.S. copyright law. “But if you post a photograph on a website with the intent for it to be distributed, copied, or if you’re trying to sell it,” Wright says, “then definitely it would be considered published.” For a closer look at how the “share” options on different social media platforms complicates the issue, and Wright’s advice, read the full story on PDNOnline.
Shortly after the 2016 elections, the House Judiciary proposed several copyright reforms, including an update to the U.S Copyright Office to make it more independent of the Library of Congress, and a “Fairness to Small Creators” bill that would establish a copyright small claims “system.” The system “should handle low value infringement cases as well as bad faith Section 512 notices.” By “bad faith Section 512 notices,” the legislators meant Digital Millennium Copyright Act (DMCA) take-down notices meant to stifle free speech under the guise of protecting copyright.The idea behind establishing a small claims board is to make it easier and less expensive for individual copyright holders to sue copyright infringers. “Small creators would no longer be frustrated in their efforts to protect their works by the prohibitive and burdensome federal court process,” ASMP executive director Tom Kennedy said in a prepared statement. Plenty of opposition to all the proposed reforms was anticipated, particularly from tech companies and advocates for the free flow of information in the digital age. To read more on the proposed bills, and the position of different trade groups of the value of the proposals, see our story online.