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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 »

House Panel Hears Testimony On Fair Use Doctrine

February 3rd, 2014 by and tagged , , , , , , , , ,

As part of a continued effort to review and improve U.S. copyright law, a House panel this week held a hearing to consider the scope of the fair use doctrine, a key legal tenet that allows the unlicensed use of copyrighted works in certain circumstances.

Recently hired NPPA Executive Director Chip Deale and General Counsel Mickey Osterreicher were on hand as the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet heard expert testimony centered on the question of whether legislative action is needed to address fair use.

The majority’s conclusion: probably not.

The current four-prong test for whether a potential infringement is considered fair use balances society’s interests in the free exchange of information and creator’s property interests in their works.  Copyrighted works used for criticism, comment, news reporting, and research typically fall under the exception.

It’s nearly universal accepted that fair use is a critical aspect of American intellectual property law.  There is, however, some disagreement as to the manner in which it sometimes applied.  Particularly problematic in the eyes of some legal scholars is the increased weight courts appear to be assigning to whether a new work “transforms” the original.  The bar for what’s considered transformative has been relatively low on occasion; complete reproductions used for commercial gain have been allowed in cases where the works are being used for a new purpose or to exploit a novel market.

Columbia law professor June Besek testified as to her concern over this interpretation:

“[An] expansive view of what it means to be transformative has opened the door to claims that  making complete copies of multiple works, even for commercial purposes, and even without creating a new work, can be a fair use. This is a substantial departure from the long-prevailing view that copying an entire work is generally not a fair use,” Besek said.

Besek argued against the Supreme Court’s rationale in the Google Books case, a highly publicized decision in which the high court found that the Internet giant’s copying of millions of texts into digital format was fair use.

This “functional transformation”, in which a user does not substantially alter the content of a work, is beyond the scope of fair use, and risks unjustifiably interfering with author’s property interests, Besek said.

Despite her disagreement with increasingly broad applications of the doctrine, Besek said she believed legislative action to alter the fair use doctrine was unnecessary.  She suggested separate action might be taken to specifically address the digitization of texts.

American University law professor Peter Jaszi agreed that Congressional revision isn’t needed at this time, arguing that a “flexible, open-ended fair use doctrine is well suited for application to digital mediums.”

Kurt Wimmer, who serves as the General Counsel for the Newspaper Association of American, put an even finer point to the sentiments that seemed to be shared by the others who testified:

“Court decisions interpreting fair use have not always been perfect, but overall we have faith that the long arc of the common law will, over time, result in workable fair use decisions for all members of the digital ecosystem and for the public we serve,” Wimmer contended.

This understanding of the fair use, as a self-correcting doctrine that should be allowed flexibility to adapt to the medium’s in which operates, will be tested when a judge reconsiders photographer Partrick Cariou’s copyright suit against artist Richard Prince.  Cariou sued Prince after the artist integrated Cariou’s pictures into an exhibit without permission.  Claims as to the all but five of the works have been dismissed.  The legal standard the court applies as to the works “transformativeness” will be important signal as to the breadth fair use doctrine moving forward.  In December, the NPPA joined several other advocacy groups in filing documents supporting Cariou.

Fair Use Photo Joe Keeley (left) Listens as NPPA General Counsel Mickey Osterreicher (center) makes a point and NPPA Executive Director Chip Deale (right) looks on at a break in the hearing “The Scope of Fair Use” held by the Subcommittee on Courts, Intellectual Property and the Internet, Tuesday January 28, 2014 (Photo by John Harrington)

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

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 »

‘Misappropriation’ Art or Transformative Fair Use? It’s Complicated!

October 17th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

In the ongoing copyright infringement case by photographer Patrick Cariou against “appropriation artist” Richard Prince, both sides have filed briefs respectively supporting and opposing the August 21, 2013 petition for a writ of certiorari filed by Cariou, appealing the April 2013, ruling in the case by a three judge panel of the United States Court of Appeals for the Second Circuit. That decision reversed and vacated a 2011 lower district court order involving the application of the fair use doctrine to artistic works. Cariou originally published his photographs in 2000 in a book entitled Yes, Rasta, while Prince’s work was exhibited in 2008 as Canal Zone collages.

In his petition to the Supreme Court, Cariou argued that the Second Circuit ruling placed too much emphasis on whether Prince’s works could “reasonably be perceived” by the judges as transformative rather than properly balancing the traditional four factors involved in determining fair use.

Cariou also stated, “the Second Circuit majority’s ‘I know it when I see it’ approach [to fair use], should it become widely adopted, risks tilting that balance against copyright owners (particularly photographers who may not have aggressively marketed their easily-copied digitized works).”

Cariou also expressed concerned that if the Appeals Court ruling stands it would make copyrights “dependent upon the unpredictable personal art views of randomly assigned judges.”

In his opposing brief, Richard Prince cautioned against “a narrow interpretation of Campbell [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)] that is inconsistent with the goals of copyright and that, if followed, would create a bright-line rule limiting fair use to parody and satire, thereby eviscerating this court’s repeated and well-reasoned rule of law that no bright-line rules exist in the fair use analysis.”

Responding to that argument, Cariou’s attorney said the Second Circuit ruling “distorts Campbell [and] unduly elevates ‘transformative’ into a conclusory buzz word that renders superfluous other important parts of the Copyright Act.”

In that ruling the majority held (with a dissent in part by one of the judges) that the use of copyrighted photographs “as raw material” in creating new “artistic” works may be considered “transformative” fair use even when such works do not “comment . . . on aspects of popular culture closely associated with” the photographs or the photographer who took them.  Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

The district court had initially granted Cariou’s motion for summary judgment, finding that the artwork had infringed upon his copyrighted photographs. The lower court had also entered an injunction compelling “the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.”

But the Court of Appeals disagreed with the lower court analysis of the fair use factors and found that whereas “the district court imposed a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works,’” they believed the proper determination is “if ‘the secondary use adds value to the original – if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings” (Internal citation omitted). They also found that “for a use to be fair, it ‘must be productive and must employ the quoted matter in a different manner or for a different purpose from the original’” (Internal citation omitted).  With regard to the transformative nature of the work, the court thought it also critical to determine how the work in question may be reasonably perceived by the reasonable observer as compared with the original work.

To illustrate how difficult these types of decisions are, the case involved 30 pieces of artwork, but the appeals court was only able to make a determination on 25 of them, remanding the remaining 5 pieces back to the lower court for application of “the proper standard” so as to “determine in the first instance whether any of them infringes on Cariou’s copyrights or whether Prince is entitled to a fair use defense with regard to those artworks as well.”

In a five page dissent Judge John Clifford Wallace agreed that the lower court’s finding was flawed, but believed that all of the works in question should be remanded for further reconsideration and factual determination under the legal standard just articulated by majority.  He also opined that “perhaps new evidence or expert opinions will be deemed necessary by the fact finder—after which a new decision can be made under the corrected legal analysis.”

Judge Wallace also took the majority to task for employing its own “artistic judgment” when comparing the transformative nature between the two works. He cautions against departing from aesthetic neutrality in that he would feel “extremely uncomfortable” for him do so in his “appellate capacity,” let alone his “limited art experience.”

Noting the court had appeared to move away from that foundational imperative in determining fair use he cited the admonition by Justice Oliver Wendell Holmes that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

Court watchers believe that the odds of the high court taking this case are slim because no split decisions exist among the other circuit courts regarding fair use. The other factor that mitigates against the court granting the petition is the argument by Prince that the Appeals Court decision is consistent with the Supreme Court precedent on fair use established by Campbell.

Posted in Uncategorized | No Comments »

Fallout from Asiana Air Prank Provides Lesson on DMCA Takedown Notices

July 26th, 2013 by and tagged , , , , , , , , , , , ,

Fallout from a prank associated with the tragic Asiana airlines crash is teaching a valuable lesson about copyright law and the fair use defense.

When a transpacific flight crash-landed at San Francisco International Airport earlier this month, preliminary media reports focused on the key questions, “Is everyone okay?” and “What went wrong?”

But even before authorities could clear the wreckage of Asian Airlines Flight 214, whose crash claimed the lives of three and left more than 180 injured, the story had taken a different turn.

Duped by an intern intent on playing a tasteless prank, KTVU in Oakland, California aired a list of names purported to be those of the pilots of ill-fated flight.  It quickly became clear that the list was nothing more than a racist joke.

asiana-racist-pilot-names

Hundreds of YouTube videos of KTVU’s snafu sprang up in the hours following the incident.  Obviously not anxious to see its gaffe immortalized, and concerned about the insensitive nature of the prank, KTVU filed “takedown notices” under the Digital Millennium Copyright Act in an attempt to suppress the content.

A DMCA takedown notice is a tool that allows the owners of digital content to request that a website operator or internet service provider take down media displayed without the owner’s permission.   If a website operator complies with a take down request, they are immunized from any legal action arising from the material in question.  This provides a substantial incentive for websites to defer to takedown notices.

The DMCA takedown notice is a remarkably effective tool for any creator of content to protect their work-product.  Its prolific use is evidence.  Google reports receiving more than 14 million DMCA copyright removal requests in the past month alone.

So why does a YouTube search of KTVU still yield dozens of clips of the Asiana Airlines debacle, many of those clips with millions of views?

It has to do with the way those clips are being used.  Copyright law allows the free use of a protected work for criticism, comment, news reporting, teaching, scholarship, or research.  So while the KTVU news clip is copyrighted content, those who want to voice an opinion on the situation by posting it to their YouTube account are entitled to do so.  The idea is to balance the author’s right to compensation for their work against the public interest in the spread of ideas and information.  In this case, people were clearly more interested in poking fun or expressing anger at KTVU than in profiting from the stations’ copyrighted content.

Given the digital photograph’s vulnerability to online misappropriation, professional photographers should be particularly aware of the fair use defense.  More often than not it will be the foundation of any defense to DMCA takedown notice, and in the case of legitimate fair uses, it will overcome the photographers claim of copyright infringement.

Whether a use qualifies for the fair use defense is determined on a case-by-case basis. A court will consider four factors in making its determination:

1)  the purpose and character of the contested use

2) the nature of the copyrighted work

3) the amount and substantiality of the portion taken, and

4) the effect of the use upon the potential market.

The Stanford University Libraries have put together an excellent in-depth analysis of the four factors, and Columbia University’s checklist can help in the initial evaluation of a fair use defense.

If you believe your work-product has been illegally used online and want to file a takedown notice, this quick guide explains the basic steps to putting together a claim.

Posted in copyright, copyright infringement, Digital Millenium Copyright Act, Fair Use, First Amendment rights, National Press Photographers Association, News Photography, NPPA, photographers, photojournalism, Uncategorized | No Comments »

Daily News enforcing the copyright of Baldwin photo

June 25th, 2012 by Alicia Calzada and tagged , , , , ,

Well-known journalism commentator Jim Romesko got snagged with a cease and desist letter from the New York Daily News, and writes about it here.

Like many others, Romenesko used the Daily News’ photo of Alec Baldwin when writing about the incident between Baldwin and their photographer earlier this week.

The blogger complied with the publication’s request, which was to instead use a watermarked image that was provided with the cease and desist letter, but I’m not sure that he entirely got the point. In his post, he commented that “just out of curiosity, did you get ABC’s permission to post these photos? Or did you do as I did with your photo, which is give credit.”

While I have no idea whether TNDN was authorized to use the ABC photos (newspapers license work all the time, so I have no reason to think that they didn’t), what I do know is that any newspaper, or blogger, who thinks that they are complying with copyright law as long as they “give credit” lacks understanding of copyright law.

Some have asked whether Romesko’s use might qualify as fair use, and the answer is no. He was not commenting on the photo, he was commenting on the events in the photo. Which makes it no different than any other news photo use. Commentary on the photo would be “look at the dexterity and skill and quick response the photographer taking this picture must have had to catch this moment.”

Kudos to the Daily News for asserting their copyright and hopefully Romenesko will get permission next time he wants to use a photo. Frankly he got let off the hook pretty easily compared to some. After all, it’s what keeps the industry that he reports on in business.

 

 

Posted in Alec Baldwin, copyright, NY Daily News, photographers, photojournalism | 1 Comment »

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