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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 »

Federal Court Hints Websites That Strip Metadata Could Face Copyright Liability

March 7th, 2014 by and tagged , , , , , , ,

A U.S. District Court in California recently hinted that online service providers who strip copyrighted photographs of their identifying information could forfeit “safe harbor” protection under the Digital Millennium Copyright Act.

District Judge Gonzalo Curiel found late last month that e-commerce vendor CafePress.com was not entitled to summary judgment on a claim it hosted and facilitated the sale of copyrighted photos, denying a request that an infringement case be dismissed under the DMCA’s safe harbor provisions.  The decision rested partly on the fact that when users upload photographs to CafePress.com, the website’s automated process strips the images of copyright information imprinted as metadata.

Cafe Press is a website that allows its users to upload images for printing on items like hats and t-shirts.  The plaintiff in the infringement case alleged that Cafe Press facilitated the storage and sale of the plaintiff’s copyrighted photographs of Alaskan Wildlife.  The plaintiff claimed that before the website disabled access to the images in response to the lawsuit, more than $6,000 in merchandise had been sold.

Under the DMCA, service providers that unknowingly store infringing images online are typically immune from damages, as long as they  meet requirements aimed at preventing violations.  Among those requirements, the provider must “accommodate and not interfere with standard technical measures” that copyright owners use to identify and protect their works.

Broadly speaking, “standard measures” are those that have been widely adopted by providers and copyright holders to prevent infringement.  Additionally, those measures must not overly burden providers.

Cafe Press disputed the claim that its upload process interferes by stripping the information, claiming metadata as an anti-infringement tool has not been “developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process.”

The court refused to accept this argument as a matter of law, holding that “[fr]om a logical perspective, metadata appears to be an easy and economical way to attach copyright information to an image.”  This means Cafe Press may be forced to defend its policy in later litigation.

The decision is a positive sign for photographers.  Within the industry, IPTC information stored in the metadata of photographs has proven one of the most effective and cost efficient tools for copyright holders to keep copyright information connected to digital images  Its legal relevance, however, its inexorably tied to the courts’s willingness to recognize it.  The Café Press decision is undoubtedly a step in the right direction.

Posted in Access, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Photographer Groups Question Google Anti-Trust Settlement

February 7th, 2014 by and tagged , , , , , , ,

The European Commission for Competition is facing significant backlash after its President announced it has reached a preliminary settlement with Google in a major anti-trust suit. Many, including an international coalition of trade associations joined by the NPPA, have criticized the commission for failing to allow interested parties to provide input during negotiations on the terms of the deal.

Google fell under investigation in the EU in 2010 over concerns it was using its massive online presence to unfairly interfere with competitors.  In November of 2013, a group led by the Centre of the Picture Industry joined in the suit, filing a complaint against the Internet giant’s use of third-party images.   The CEPIC represents more than 900 European picture agencies and libraries.

The complaint accused Google of displaying third-party images without right holders’ consent, and encouraging piracy by allowing users to download unlicensed images directly from search results.  It’s the astounding scope of Google Images that makes these activities especially concerning.  A search for nearly any imaginable picture on the site yields pages and pages of results. Photographers and picture agencies face an even greater burden because Google’s dominance of the online search industry and use of sophisticated technologies makes it difficult to shield against or remedy infringement, the CEPIC argued.

Whether the proposed settlement will address these concerns remains unclear; advocates have responded to the lack of transparency with requests for greater involvement.   “We believe that truly satisfying and workable remedies can be reached in close cooperation with those affected by them, CEPIC President Alfonso Gutierrez said, in a letter to the commission. “If [this] set of commitments is indeed “much better” (as claimed by Reuters), in particular by protecting image providers against their exploitation, a consultation of the interested parties would confirm just that.”

In a press conference Wednesday, Vice President of  the European Commission for Competition Joaquin Almunia outlined elements of the settlement he said were very significant moving forward.  Almunia said it was important that Google present rival links in a manner comparable with that of its own, and that it maintain that parity as it continues to develop search technology.

What Alumunia’s speech didn’t address was whether any other terms of the settlement, would address concerns of photographers and picture agencies.

“NPPA is severely disappointed by the commission’s unilateral decision to negotiate a settlement without ensuring that the vitally important perspectives of NPPA and other associations were incorporated into the discussions and proposed terms,” said NPPA Executive Director Charles W. L. (“Chip”) Deale, CAE.  “We would hope and expect that our concerns about the unauthorized use of images are addressed before any settlement is finalized,” he added.

Almunia pointed to market studies associated with previous settlement proposals as justification for commission’s decision not to solicit input from interested parties previous to drawing up the terms of the deal.

Gutierrez was skeptical of Alumnia’s logic on that point, and also expressed doubt that the current proposal would include protection against Google’s use of unauthorized images, as the two previous plans did not include any such remedy.

The CEPIC-led coalition have an opportunity to voice an opinion on the matter in the form of feedback to a pre-rejection letter that explains why the commission believes the proposed settlement addresses the group’s legal claims.  Almunia says he will analyze the feedback from all pre-rejection letters before offering up a final plan to the College of Commissioners for a vote.

Posted in Access, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | 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 »

NPPA Joins in Brief Supporting Photographer in Pivotal Copyright Case

December 18th, 2013 by and tagged , , , ,

The NPPA joined several other photographer and writer advocacy groups today in filing legal documents urging a New York judge to find that an artist who used a photographer’s images in art exhibits without permission did so in violation of copyright law.The decision in the case represents a test of a key legal doctrine, and will hopefully both clarify and place a reasonable limit on the “fair use” defense, which allows use of an otherwise copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research.

In 2007 and 2008, artist Richard Prince altered and incorporated 30 of Patrick Cariou’s pictures into paintings and collages displayed in St. Barth’s and New York City.  Cariou captured the images, which appeared originally in his Yes Rasta collection, over the course of six years living amongst Rastafarians in Jamaica.  When Cariou discovered Prince’s work, he sued the artist for copyright infringement.

Prince defended the 2008 suit under the fair use doctrine, arguing that by incorporating the images into a new context, a collage or painting, he had “transformed” the pictures sufficiently to claim fair use. A U.S District Court judge disagreed, holding that the art did not transform the images in a manner that was meant to critique or otherwise comment on them.

The district court’s decision was almost completely overturned earlier this year, when the Second Circuit of the U.S. Court of Appeals found the lower court had applied an incorrect legal standard.

The court found that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative” and that 25 of the photographs Prince used were protected as fair use.  The remaining five images presented “closer questions” the court said, as alterations to their physical appearance was minimal. See earlier NPPA story here.

The question of whether or not a work is “transformative” is central to a fair use analysis, the court noted, as transformative works … lie at the heart of the fair use doctrine’s guarantee of breathing space.”  Applying an inclusive definition of the doctrine, the court found that a work could qualify as fair use even if it is not one of the aforementioned uses included in the copyright statute. The Second Circuit found that all that is required is that the work communicates “new expression, meaning, or message.”

Now, as the District Court prepares to reconsider copyright claims related to the remaining five works, the NPPA along with the American Photographic Artists, American Society of Journalists and Authors, American Society of Media Photographers, Graphic Artists Guild, Jeremy Sparig, Picture Archive Council Of America and Professional Photographers of America have all joined in amicus brief in support of Patrick Cariou in that the defendants in this case have not met their burden under the fair use defense with regard to the five paintings being considered on remand. 

NPPA General Counsel Mickey Osterreicher articulated this position in an affidavit to the court as part of the brief drafted by attorney David Leichtman of the law firm of Robins, Kaplan, Miller & Ciresi, LLP. “If a lawsuit is brought [under the Second Circuit’s standard] , original photographers seem to be facing a judicial system that continues to eviscerate their rights as copyright holders by ruling more and more unlicensed derivative uses as “fair use,”” Osterreicher said, “However, fair use was not meant to be an offensive assertion permitting infringers to believe that they have the right to misappropriate and infringe on copyright holders’ rights with complete immunity.”

Osterreicher also noted that a broad interpretation of the fair use defense threatens critical economic models of the photography industry, and categorically protecting works like Prince’s from claims of infringement sets a dangerous precedent.

“Along with inclusion in various media, NPPA members make images available for licensing for uses such as those of the works created by Prince. If Prince needed an image of Jamaica, or Rastafarians, these images could have been, and should have been, lawfully licensed easily and for the appropriate standard license fees,” Osterreicher said, adding, “Any image has the potential to be licensed for multiple purposes. To isolate ‘art reference’ or ‘art’ as special classes of use that no longer require any licensing, weakens the licensing model and opens the door to more and more unlicensed uses.”

Appropriately cabining the fair use defense is especially important today, in an environment where monitoring infringements is increasingly difficult, and their economic toll continues to mount.

“NPPA members must shoulder the burden of policing infringements while at the same time seeking and fulfilling photographic assignments, working on self-initiated projects and maintaining all of the tasks of running a 24/7 business. For many, losses due to infringement have been devastating,” Osterreicher said.

The NPPA will continue to monitor the case and report on any significant developments.

 

Posted in Access, copyright infringement, Daniel Morel, Fair Use, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

Ad Agency Sues Herman Cain, Simon & Schuster Over Book Cover Photo

January 24th, 2013 by Mickey Osterreicher and tagged , ,

A federal judge in the Northern District of Georgia has denied a motion to dismiss  in a copyright infringtement lawsuit by an ad agency against former Republican presidential candidate Herman Cain and publisher Simon & Schuster Inc. The amended complaint, filed in June 2012, claims that a photo, shot on behalf of Friends of Herman Cain, Inc. for use in his political campaign was published on the cover of Mr. Cain’s autobiography without permission.

The book “This is Herman Cain!: My Journey to the White House,” was published in October 2011, during Cain’s presidential campaign for the Republican nomination. Adventure Advertising, LLC filed suit in January, 2012.

As in many copyright infringement lawsuits the parties disagree over whether the user of the photo had asked for and received permission to publish it and whether such use was licensed by the rights holder.

The judge’s ruling will allow discovery to move forward.

Posted in copyright, copyright infringement, Photographers' Rights | No Comments »

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