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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 »

Photographers Can Still Register their Copyright Despite Government Shutdown

October 2nd, 2013 by and tagged , , , , , ,

The U.S. Copyright Office is closed indefinitely following the federal government shutdown, but photographers can still take steps to protect their work product.

The copyright office’s online registration system is still operational, and photographers who file their registration now can ensure it will be processed at the earliest possible date.  No registrations will be processed until the government reopens, and it’s reasonable to anticipate that there may be a backlog of applications by that time.  For that reason, photogs should file registrations as soon as possible.

Registering now will also provide the earliest “effective date of registration” according to the shutdown notice. The notice on the copyright office website does not clarify what the “effective date” will be for registrations received during the shutdown, so photographers should save any documentation of the date of registration in case there is confusion down the line.

For Frequently Asked Questions about the online filing system, follow this link. NPPA is monitoring the situation so if you have any experiences, good or bad, registering your work during the shutdown, please share it with us by emailing [email protected]

 

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

NPPA Submits Comments Regarding Orphan Works

January 26th, 2013 by and tagged , , , , , , , , , , , , , , , , ,

The National Press Photographer’s Association (NPPA) has, in response to a Notice of Inquiry (NOI) by the Copyright Office, submitted comments on the issue of orphan works and mass digitalization. The Copyright Office has solicited comments for use in advising Congress on how to address current issues involving copyright and orphan works.

These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with contributions from board member Greg Smith and NPPA intern Joan Blazich, discuss the issues currently facing visual journalists regarding copyright and propose solutions for creating a system which would treat copyright holders and users of orphaned works fairly and efficiently.

The comments state that “NPPA is gravely concerned that in seeking to address the frustration of ‘good faith users’ of Orphan Works in order to cure their potential liability and ‘gridlock in the digital marketplace,’ the Copyright Office may create a far more serious problem for authors/owners of visual works.” The comments also note that “As visual journalists, our members are squeezed from every side by onerous contracts seeking all rights for little compensation, the proliferation of user generated content by publishers and the widespread infringement of visual works by individuals and organizations. While we understand and appreciate the concerns of those in the copyright community who need to use Orphan Works, we believe it is crucial to protect the copyright of recently created visual works that, for whatever reason, appear to be orphaned when, in fact, they are not.”

NPPA attorneys Osterreicher and Calzada plan to attend the Copyright Office’s public hearings on orphan works once dates and times for those hearings are announced. As more visual journalists face situations in which their images are misappropriated under an “orphan works” claim, the NPPA proposes that if any legislation is enacted, it must include language that protects authors from predatory practices by those who would infringe upon our members’ work with impunity under the protection of a new law.

“Photographers are lucky to have advocates like Mickey, Alicia, Greg and Joan, who spend a great deal of time examining these issues and and how they will affect our members and all those who create content,” said NPPA President Mike Borland.  “The orphan works issue won’t be resolved soon and it certainly won’t be resolved properly without our voice being heard,” he added.

In accordance with that goal, the comments recommend significant limitations on what works qualify as orphans and which users would be entitled to such  protection. In addition, the NPPA advocated for registration of any uses of orphan works, along with a bond or insurance requirement to protect rights holders’ financial interests in the event they come forward to make a claim.

To read the NPPA’s comments, click here. To read the Copyright Office’s current NOI, click here. To read about previous Copyright Office inquiries on the subject of orphan works click here.

Posted in copyright, copyright infringement, National Press Photographers Association, NPPA, Orphan Works, Photographers' Rights, U.S. Copyright Office, Visual Journalists | No Comments »

NPPA Submits Comments Regarding A Copyright Small Claims Court System

October 22nd, 2012 by and tagged , , , , , , , , , , , , , ,

The National Press Photographer’s Association (NPPA) has, at the request of the Copyright Office, submitted comments concerning the creation of a copyright small claims court system. These comments constitute the second round of commentary requested by the Copyright Office over the possibility of instituting a small claims copyright court system.

These official comments, written by NPPA attorneys Mickey Osterreicher and Alicia Calzada, with a significant contribution by board member Greg Smith and NPPA intern Joan Blazich, discusses the issues currently facing photojournalists regarding copyright and presents potential solutions for creating a court system that would permit an efficient and cost-effective method of addressing copyright small claims.

“While much of the advocacy by NPPA deals with access issues and the right to photograph and record in public; it cannot be understated that without the ability to affordably protect one’s copyright visual journalists will soon be out of business,” Osterreicher said. “That is why it is so important that the Copyright Office support a new initiative that will address this critical issue,” he added.

The Copyright Office will hold public hearings on these issues in New York City on November 15-16, 2012 and in Los Angeles on November 26-27, 2012. It is holding these discussions to learn more about the topics listed in its August 23, 2012 Notice of Inquiry and the comments submitted in response to that Notice, as well as the comments in response to the initial October 27, 2012 Notice of Inquiry.

The New York City hearings will be held at the Jerome Greene Annex of Columbia Law School, 410 West 117th Street, New York, New York 10027. The November 15 hearing will take place from 9:30 a.m. to 5:30 p.m. and the November 16 hearing will take place from 9:30 a.m. to 3:30 p.m.

The Los Angeles hearings will be held in Room 1314 of the UCLA School of Law, 405 Hilgard Avenue, Los Angeles, California 90095. The November 26 hearing will take place from 9:30 a.m. to 5:30 p.m. and the November 27 hearing will take place from 9:30 a.m. to 3:30 p.m.

NPPA attorneys Osterreicher and Calzada plan to participate in those meetings to advocate for NPPA’s proposals. As many photojournalists face situations involving copyright claims that amount to a limited amount of damages, the NPPA strongly supports the creation of a copyright small claims court system by the Copyright Office that would permit photojournalists to resolve such claims in an expedited and cost effective manner.

Read NPPA’s comments here:

Posted in copyright, Copyright Small Claims, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, U.S. Copyright Office | No Comments »

NPPA meets with Copyright Office

March 23rd, 2012 by Alicia Calzada and tagged , , , , , , , , , , ,

Representatives of the National Press Photographers Association met a couple of weeks ago with attorneys from the United States Copyright Office to discuss copyright small claims solutions and other copyright issues important to photojournalists.

NPPA General Counsel Mickey Osterreicher, NPPA Executive Director Mindy Hutchison, and NPPA Attorney and Advocacy Chair Alicia Calzada took a break from the weekend’s Northern Short Course in Fairfax, Virginia to met with the General Counsel of the Copyright Office and two policy attorneys from the office in Washington, D.C.

Calzada and Osterreicher at the Copyright Office in DC. Photo by Mindy Hutchison.

 

NPPA submitted official comments to the Copyright Office back in January, outlining the challenges that photojournalists have relating to copyright claims, particularly smaller claims, and sharing the organization’s view of what we would like to see in a solution for small copyright claims. Friday’s meeting allowed NPPA to expand on the topics raised in the comments and answer questions from the Copyright Office.  Any small copyright claims solution would likely require passage from Congress.

Click here to read a copy of NPPA’s official comments to the Copyright Office.

 

 

Posted in copyright, Copyright Small Claims, District of Columbia, Legal, National Press Photographers Association, News Photography, photographers, Photographers' Rights, photojournalism, Uncategorized | No Comments »

NPPA Comments to the Copyright Office on Copyright Small Claims

January 18th, 2012 by Alicia Calzada and tagged , , , , , , , ,

On Tuesday the NPPA submitted official comments to the U.S. Copyright Office in response to the office’s request for comments on the idea of creating a system to adjudicate copyright infringements when the damages are low, also called Remedies for Small Copyright Claims.

The brief, written by NPPA attorneys Mickey Osterreicher and Alicia Wagner Calzada, with a significant contribution from board member Greg Smith, outlines the challenges specific to photojournalists, notes characteristics that would be important in the solution and presents ideas for framing a system.

A claim for copyright infringement can only be brought in federal court, but lawsuits in federal court cost tens of thousands of dollars in legal fees, making it rare that a photojournalist will find the claim worth bringing. In addition, the rapid turnaround of news photography makes it virtually impossible for photojournalists to register their work prior to publication, which results in increased risk in bringing a case. Although a successful copyright plaintiff can sometimes get an award of legal fees, there is no guarantee that the defendant will be able to pay those fee. As the comment notes, “For those infringements that are discovered, most will never be prosecuted because it is economically unfeasible for the creators to commence an action in federal court.”

A small claims solution for infringements that are not worth hundreds of thousands of dollars would increase the ability of photojournalists to police their work and get compensated fairly for violations of their copyright.

NPPA is looking forward to working on this potential solution with the copyright office and with other photo organizations.

Read the official final_Copyright Small Claims Comments 01-17-12-1

 

 

 

Posted in D.C., Legal, National Press Photographers Association, News Photography, photographers, photojournalism, Uncategorized | No Comments »