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    New Copyright Compendium bans works produced by “nature, animals, and plants” and implicitly uses monkey selfie as example

    September 3rd, 2014 by and tagged , , , , , , ,

    In the recently released U.S. Copyright Compendium, which lays out regulations about the registration process for copyrights, one sentence stood out from the rest of the 1200-page document, and is as follows: “The Office will not register works produced by nature, animals, or plants, which includes a photograph taken by a monkey.” It stood out because three years ago, David Slater, a British photographer, traveled to Indonesia to photograph monkeys. While there, he had his camera snatched by a monkey and the monkey ended up taking some amazing photographs with his camera. Slater published these photos, and later discovered that one of them was published on Wikipedia without his permission. Slater wanted the photo taken down, and while Wikipedia at first complied, another editor later revisted the decision and reposted the image, because the editor took the position that the photo was taken by the monkey and not Slater, thus making it public domain. A lively debate over whether Slater owned the copyright ensued. Slater maintains that he owns the copyright, noting that “there are many wildlife photographers that regularly employ animals to push the shutter button.  Pressure pads, trip wires, beam splitters – all devices attached to a camera that allows an animal to ‘take’ a photograph. In my case it was an attached cable release.”

    For an interesting analysis of the Compendium and the monkey selfie see: “Return to the Snapshots of the Apes,” by Terry Hart. Also see: “Wikimedia Says When a Monkey Takes a Selfie, No One Owns It,” by Louise Stewart. For a tongue-in-cheek read on what the monkey had to say see:  “A Statement Statement From the Monkey,” by Bill Barol.

    It is important to remember that the policy set forth in the U.S. Copyright Compendium is not binding upon the U.S. Copyright Office or the Register of Copyrights. It is only “the administrative manual of the Register of Copyrights concerning Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations, and provides instruction to agency staff regarding their statutory duties and expert guidance to copyright applicants, practitioners, scholars, the courts, and members of the general public regarding institutional practices and related principles of law.”

    While the Compendium is not law, it certainly does influence law making in the realm of copyrights. Therefore, concerned photographers should comment on the Compendium, through the federal register. According to the Copyright Office the Compendium “will remain in draft form for 120 days [from August 19, 2014] pending final review and implementation, taking effect on or around December 15, 2014.” The public may submit comments to the Copyright Office regarding the Compendium up until that date.

    Editor’s note: This article has been edited to clarify that Wikipedia initially complied with the takedown request, and later changed its mind, and to include a quote from David Slater.

    Posted in Cameras, copyright, copyright infringement, multimedia, photographers, photojournalism, U.S. Copyright Office | No Comments »

    Additional Comments Filed by NPPA and Other Groups Following Orphan Works Roundtables

    May 27th, 2014 by and tagged , , , , , , , , , , ,

    Additional comments were filed by the National Press Photographers Association (NPPA) on May 20, 2014 on the issue of Orphan Works and Mass Digitization, as a follow-up to roundtable discussions held by the U.S. Copyright Office in Washington, DC on March 10-11, 2014. (See: http://www.copyright.gov/orphan/transcript/0310LOC.pdf and http://www.copyright.gov/orphan/transcript/0311LOC.pdf for transcripts of day 1 and 2 of those discussions).

    The filing by NPPA supplemented additional post-roundtable comments submitted by the Digital Medial Licensing Association (PACA) on behalf of the Professional Photographers of America (PPA), the American Photographic Artists, Inc. (APA), the American Society Of Media Photographers (AMSP), the Graphic Artists Guild (GAG) as well as NPPA) in response to a Notice of Inquiry issued by the U.S. Copyright Office in February,  2014. These most recently submitted comments expanded on initial comments (submitted by NPPA to the Register on January 24, 2013).

    The comments primarily responded to discussions at the round table from stakeholders who think that orphan works legislation is no longer necessary given their increased reliance on the doctrine of fair use. It is the position of the NPPA that, while the doctrine of fair use can be used as an affirmative defense, it is certainly is not broadly available to allow the use of photos without permission, credit or compensation. “This one size fits all approach appears to be what is turning Title 17 law on its head with copyright now becoming the exception to fair use. Rather than conducting a proper balancing of the four fair use factors, a number of courts have made such ruling once they determine that a use is transformative. NPPA asserts that this type of analysis was never intended to be applied as the sole determinative element in making a fair use ruling in an individual copyright infringement case, let alone in one involving mass digitization of millions of works,” wrote NPPA general counsel Mickey H. Osterreicher and advocacy committee chair Alicia Wagner Calzada (who is also an attorney) in their jointly drafted comments.

    The problem of social media websites automatically stripping out any and all identifying metadata when images are uploaded to their sites, thus creating instant orphans of contemporary work, is also “an issue that needs to be addressed more seriously and, once properly resolved, would help rectify most of the orphan works concerns expressed by users,” the NPPA comments concluded.

    Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, photographers, photojournalism, U.S. Copyright Office | No Comments »

    Photo Agency Sues Blog for Copyright Infringement

    January 7th, 2014 by Mickey Osterreicher and tagged , , ,

    Mavrix Photo has filed a copyright infringement lawsuit against RollingOut.com and its owner Steed Media Group Inc. for publication of photographs of Beyonce and Kim Kardashian without its permission, consent or license.

    The complaint, filed on January 3, 2014 in the United States District Court for the Central District of California Southern Division, alleges among other things that the Defendants “have driven significant traffic to RollingOut.com in large part due to the presence of the sought after and searched-for celebrity images that frame this dispute. All of this traffic translates into substantial illgotten commercial advantage and revenue generation for Defendants as a direct consequence of their infringing actions.” The complaint further alleges that “Defendants’ acts of infringement are willful because, inter alia, the Defendants are sophisticated publishers with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation.”

    According to its website Mavrix Photo was formed in 1996 and “is a Global Celebrity News Photo Agency with an Online Image Database of more than 435,000 images and thousands of video clips.”  Steed Media Group is a print and digital advertising company “prevalent in most urban markets around the country.”

    Mavrix is demanding a jury trial and is seeking actual damages and statutory damages for willful infringement of at least $150,000 per photograph.

     

     

    Posted in Beyonce, California, copyright, copyright infringement, Kim Kardashian, Lawsuit, photographers, photojournalism | No Comments »

    Photographers vs. NFL, AP & Getty: 2nd and 7

    December 20th, 2013 by Mickey Osterreicher and tagged , , , ,

    *********UPDATE****************

    U.S. District Judge Robert W. Sweet ruled on August 13, 2015 that the photographers must amend their complaint prior to appealing the dismissal of their copyright claims to the U.S. Court of Appeals for the Second Circuit. The court declined to enter a final judgment in the matter, which it had dismissed last March, finding that the plaintiffs may replead their case and that a revised contract claim on the licensing agreements might avoid the need for a Second Circuit review.

    “The plaintiffs indicate in their briefing that they intend to argue that the contracts ‘were invalid and unenforceable due to duress, coercion, unconscionability, and fraud’ and the court’s March 27 Order indicates that the argument may have significant merit,” Judge Sweet wrote. “A finding in the plaintiffs’ favor on their contract claims in the district court would thus significantly alter — or perhaps moot — their copyright claims in the Court of Appeals, rendering certification improper.”

    In his ruling Judge Sweet noted that to preserve their copyright issue for appeal, the plaintiffs should “simply restate their copyright claims in their new complaint,” which could later be presented to the Second Circuit at the appropriate time. The court also granted a motion by Getty Images to compel arbitration of contract, copyright and antitrust claims which the plaintiffs are now pursuing.

    In March the court granted the plaintiffs 20 days to file a new complaint and then approved a three-week extension for the amended pleadings to be filed. Then in May, the defendants claimed the photographers had missed that deadline and the case should finally be dismissed. But the judge disagreed, finding “the plaintiffs’ diligence in this case has been more than adequate, particularly as they have represented that they are prepared to file their second amended complaint within 48 hours of this motion’s resolution.

    ********* UPDATE ***************

    U.S. District Judge Robert W. Sweet dismissed the lawsuit in a 129 page redacted Opinion finding that agreements between the NFL and AP along with Getty that allow the NFL to use photos royalty-free are not anticompetitive, writing “plaintiffs have failed to allege a plausible product market limited to NFL-related photographs at this juncture.”  He also found that  the photographers lacked standing and are barred from suing under antitrust laws “because their injuries are too secondary and indirect.” The judge also rejected the photographers’ claim that they “directly compete” with Getty and AP. “Plaintiffs are neither consumers nor competitors in the alleged market for commercial licensing of NFL-related photographs,” Judge Sweet wrote. “Indeed, the [amended complaint] clearly states that plaintiffs have always licensed the photos that they shot ‘on spec’ through third-party licensing agents . . . as such, Plaintiffs argument on this point must fail.”

    The court also found that “while each Plaintiff retains copyright in his photos, he provides a broad copyright license to AP in all of his photos that are not rejected by AP.” Such a license allows the AP to “copy, disseminate and otherwise use” those photos. The judge noted that while their agreement requires AP to pay a royalty when it licenses the use of the photographers photos, it does not require that any royalty be paid where the AP receives no licensing fees itself. “the AP Contributor Agreements do not require AP to license the contributors’ photographs to third parties only through a ‘sale’ that would generate revenue and therefore royalties.” Judge Sweet wrote. “Nothing in the AP Contributor Agreements requires AP to issue only royalty-bearing sublicenses.”

    The judge also dismissed the photographers’ copyright claims against the NFL because the agreement provided the AP with a valid license to use their images.

    ************************************************

    In October seven photographers filed a copyright infringement lawsuit against the NFL, Getty Images and the Associated Press. This week the defendants responded with a motion to dismiss. The plaintiffs are Paul Spinelli, Scott Boehm, George Newman Lowrance, David Stluka, Paul Jasienski, David Drapkin and Thomas E. Witte.  They claim, among other things, that if they wished to continue licensing their NFL images for commercial uses, “they were forced to transition their NFL content from Getty Images to AP who had the contract with the NFL.” In turn, the complaint alleged that “Getty Images threatened to remove Plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with Plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after the expiration of its commercial licensing deal with the NFL.” The complaint stated “Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the exclusive rights to license NFL content in the future.” 

    The photographers also viewed Getty’s threats as “a blatant attempt to leverage its exclusive licensing agreement with MLB and other sports entities in order to force Plaintiffs to leave their NFL content with Getty Images” and “Because certain Plaintiffs had significant non-NFL content at Getty Images, including significant MLB photo collections, Getty Images’ position forced Plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”

    In its motion to dismiss the NFL claimed that the use of the photos “was fully within the scope of” its licensing agreements the AP  and Getty. AP claims in its motion to dismiss the lawsuit that the contracts it made with the photographers “licensed AP to make the uses of plaintiffs’ photographs” and also “authorized AP to issue sublicenses” to the NFL and others. In its motion, Getty also sought to dismiss the case and to “compel arbitration or in the alternative to stay the action.” Getty claims that its agreement with the photographers requires that they “arbitrate their disputes” and that the case should be put on hold “pending final resolution of the arbitration” in the event that the court does not grant the motion to dismiss.

    Read the filed complaint here.

    Posted in AP, copyright, copyright infringement, Getty Images, Motion to Dismiss, NFL, Photographers' Rights | No Comments »

    A Tale of Two Cases: How Photographers Are Being Squeezed From All Sides

    November 20th, 2013 by Mickey Osterreicher

    Today was a picture perfect example of how photographers are being squeezed from all sides. On the front end photographers are being interfered with and arrested on an almost daily basis nationwide for doing nothing more than trying to do their jobs by photographing and recording matters of public concern on city streets.

    In one such case a NYC Criminal Court jury acquitted photographer Jason Nicholas today on a misdemeanor count of Obstructing Governmental Administration. Mr. Nicholas was arrested in 2011 for allegedly interfering with NYNJ Port Authority Police while covering a news story. A previous trial resulted in a hung jury but the district attorney chose to re-try him. Afterwards Mr. Nicholas said, “this is a victory for us and a swift and resounding defeat for the police and prosecution!” “Now maybe we can get this to stop on behalf of all journalists,” he added.

    On the back end where photographers works are being used globally without their permission, Daniel Morel was sitting in a federal courtroom a few blocks away from Mr. Nicholas. He is pitted against Agence France Press (AFP) (and Getty Images) in a copyright infringement case. Read about this case along with updates here.

    Liability for infringement has already been established. The only remaining defendants in the counterclaim case are AFP and Getty Images, as the other defendants have already settled with Mr. Morel.  All that is left for the jury to decide is how much each of them (AFP & Getty) must pay in damages. Click here for a running blog of the six (6) days of testimony.

    Attorneys for both sides are expected to make their closing arguments tomorrow morning in the Southern District of New York Courthouse located at 40 Foley Square in New York City. Judge Nathan’s courtroom is on the 5th floor for those of you able to attend.

    So on one day within a few blocks of each other I was able to view some of the major challenges facing photographers around the world and also witness how two of them chose to stand up for their rights and by so doing take a stand against those who would violate our constitutional and copyrights.

     

    Posted in Access, AFP v Morel, Agence France-Presse, Assault on Photographers, contracts, copyright, copyright infringement, Daniel Morel, False Arrest, First Amendment, First Amendment rights, Fourth Amendment rights, Getty, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording Police, retaliation for the exercise of First Amendment rights, social networking, Twitpic, Twitter | No Comments »

    Judge Dismisses Copyright Challenge to Google’s Digital Books Program

    November 14th, 2013 by and tagged , , , , , , ,

    Google has dodged a major legal challenge to a controversial but popular feature that makes millions of books available online.  A federal judge today said the Google Books program does not violate the copyright privileges of authors.

    Google Books uses high-tech scanning technology to convert books to digital format, and then posts versions of the works online. Most of the time, Google makes a book available without getting permission from or compensating its author.

    The case has bounced around the court system since 2005, when the Author’s Guild and others sued Google over its digital text program. The parties came close to settling in 2011, but a judge concerned that it would grant Google a monopoly in the area threw out the deal.

    U.S Circuit Court Judge Denny Chin issued his decision rejecting the copyright claim against Google this morning, finding the digital books program was “fair use.”

    The fair use defense allows the use of copyrighted works for criticism, news reporting, scholarship, research, and other areas that represent a public benefit rather than a commercial exploitation.  Judge Chin explained that fair use is good public policy because it “provides sufficient protection to authors and inventors to stimulate creative activity, while at the same time permitting others to utilize protected works to advance the progress of the arts and sciences.”

    Judge Chin highlighted several factors he believed warranted granting the defense, including:

    1)   Google’s use is transformative, taking physical copies of books and converting them to fully indexed, and searchable digital documents.

    2)   The digital books do not supercede or supplant the original works.  The online copies are usually limited “snippets” and do not allow users to read a book cover-to-cover.

    3)   Google receives limited commercial benefit from the use.  It does not sell ads or charge a fee to use the feature.

    The judge found that overall, Google Books is an important research tool that expands access to knowledge and helps preserve the texts themselves.

    The decision paves the way for Google to move forward with its program, with a potential roadblock in the future if Author’s Guild decides to appeal.  However, with 8 years and millions of dollars in legal fees already spent, such a move may not be in order.

    Posted in Author's Guild, copyright, copyright infringement, Google, Legal, Licensing, National Press Photographers Association, NPPA, photographers, Photographers' Rights | No Comments »

    Authors Guild v. Google: Case Dismissed

    November 14th, 2013 by Mickey Osterreicher

    In a 30 page decision, Circuit Court Judge Denny Chin granted Google’s motion for summary judgment and dismissed the Authors Guild copyright infringement case against Google.

    The authors had accused Google of digitally copying millions of books without permission for use in a searchable online library .

    Earlier this year the U.S Court if Appeals for the Second Circuit sent the case back to Judge Chin after it held that he incorrectly  certified the  authors “class action” before determining Google’s “fair use” defense which he ultimately agreed with in today’s opinion. Unless another appeal is taken, this ruling will now allow Google to move forward with its plans.

    The court adopted the argument that such scanning by Google provides a societal benefit and enhanced access to books while also protecting a “respectful consideration” of the authors’ rights. He also embraced the argument that such digitalization was  “transformative.” Judge Chin wrote, “Google Books provide significant public benefits,” adding, “Indeed, all society benefits” from “snippets” of these books being made available for online searches.

    Today’s decision is the latest chapter in the case which was commenced in 2005, when authors and publishers sued Google over its digital books plan. The parties had reached a tentative $125M settlement  in 2011, but Judge Chin rejected it because he believed it raised copyright and antitrust issues by giving Google a “de facto monopoly” to copy books en masse. The publishers settled their claim against Google in 2012.

    Posted in Author's Guild, copyright, copyright infringement, Fair Use, Google | No Comments »

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