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Copyright Law

Copyrightlaws.com Sheds Light on Moral Rights in the United States

Posted by Rebecca Blake on February 16, 2017

Copyrightlaws.com logoIn light of the Copyright Office’s Notice of Inquiry (NOI) on Moral Rights, Copyrightlaws.com has done us all a favor in posting their article, “Moral Rights in US Copyright Law.” The NOI is revisiting creators’ rights, which, in the United States, are little understood. In this context, “moral rights” has little to do with religion, but refers to non-economic rights that are personal to an author. The Copyrightlaws.com article provides an easy-to-understand explanation and background information on the topic.

The article describes moral rights as those that protect the reputation of the author (not the owner) of a copyrighted work. As set out in the Berne convention, those rights include the right of paternity (the right of the author to put their name on a work, or to remain anonymous – generally when the author has economic rights in the work) and the right of integrity (the right of the author to object to any changes to their work that may damage his or her reputation).  

When the United States joined the Berne Convention, it interpreted moral rights more narrowly and concluded that between federal and state laws, moral rights are explicitly protected in the US. Additionally, the Visual Artists Rights Act (VARA) of 1990 amended US Copyright Law to conferr additional rights (the right of attribution and the right of integrity) to the authors of certain visual works. However, those works can only exist as single copies or in limited editions of 200 or less.

The Copyright Office’s NOI asks for comments on concerns raised “with the patchwork of protection” provided by federal and state law. The questions in the NOI are extensive, and cover everything from the effectiveness of VARA, whether copyright law provisions on content management information are sufficient, and how stronger moral rights provisions could affect First Amendment rights, to how technology could address the problems authors face in protecting their rights of attribution and integrity. Comments to the Copyright Office are due March 30th.

Copyrightlaws.com publishes articles and resources on US and Canadian copyright law, and conducts etutorials on intellectual property rights. It was founded by IP attorney Lesley Ellen Harris, who has written several books on Canadian copyright law and digital property. Harris also frequently blogs on current copyright concerns.

The Guild Signs on to Comment Letter on Group Registration of Photographs

Posted by Advocacy Liaison on January 31, 2017

Copyright Office logoIn conjunction with the Coalition of Visual Artists, the Graphic Artists Guild has signed on to a comment letter in response to a Notice of Proposed Rulemaking, “Group Registration of Photographs,” issued by the Copyright Office. In the Notice, the Copyright Office asked for feedback on proposed changes to the group registration of photographs. The letter submitted on behalf of the Coalition applauds the Copyright Office’s initiative in encouraging greater participation in the registration system by photographers, but raised concerns with some of the proposed changes. Of particular concern to Guild members, the letter raised issue with the exclusion of graphic artists from the group registration option.

In drafting the changes to the group registration of photographs, the Copyright Office is seeking to encourage copyright registration among photographers, streamline the registration process, and improve the recording of works by requiring digital deposits. However, graphic artists such as designers and illustrators are excluded from this option, despite the fact that these artists create works such as comps, sketches, and revisions that are delivered to clients and are ripe for infringement. The comment letter urges the Copyright Office to “offer a group registration category to all visual works.” It also points out that many visual works are mixed media, and that limiting the registration to still photography does not address how many artists work.

The comment letter addresses a number of other concerns with the proposed rulemaking, such as the limit of 750 photographs for the group registration (problematic for photographers, who often outstrip that number in the course of a single shoot), and the separate registration requirements for published and unpublished works.

The letter was submitted to the Copyright Office by Lisa Shaftel of Shaftel & Schmeltzer on behalf of the Coalition of Visual Artists. Signees to the letter include American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, Graphic Artists Guild, National Press Photographers Association, North American Nature Photography Association, Professional Photographers of America, PLUS Coalition, Shaftel & Schmeltzer, and Doniger / Burroughs

Was Your Copyright Infringed Online? Copyright Alliance Survey Needs your Input

Posted by Advocacy Liaison on January 04, 2017

Copyright Alliance logoThe Copyright Office has sent out a request for additional information from stakeholders on DMCA (Digital Millennium Copyright Act) safe harbor provisions. The DMCA provides creators and copyright holders a means to request that Internet service providers remove their infringed work from websites, file sharing sites, etc. This request is part of an ongoing study that the Office is conducting. To formulate a clear response on behalf of creators, the Copyright Alliance is conducting a short online survey.

If your work has been infringed online, and you’ve responded with a DMCA take-down notice, please take the survey by February 16.

This Notice of Inquiry is the latest in a series of investigations that the Copyright Office and the House Judiciary Committee have been conducting into the DMCA process. A coalition of visual artists, of which the Guild is a member, submitted public comments to the Copyright Office’s previous Notice of Inquiry on the DMCA process in March of 2016. The Guild also testified at a Copyright Office roundtable discussion on the topic in April 2016. The Guild’s position is that the current DMCA take-down process is failing visual artists, who would be better served by a take down and stay down process, as well as by standardizing the take-down forms used by all ISPs.

We Need Your Voice on the next Register of Copyrights

Posted by Advocacy Liaison on December 30, 2016

Copyright Office logoThe Graphic Artists Guild needs the help of all visual artists, and all creators and copyright holders.

Here’s the deal: as you probably know, this October, the Librarian of Congress removed Maria Pallante, the Register of Copyrights, from her position. This move was unprecedented, and is a blow to the creative community. Throughout her tenure as Register of Copyrights, Pallante demonstrated her willingness to listen to the concerns of creatives, and her interest in revisiting copyright law and modernizing the Copyright Office so that it can better serve rights holders and users.

Now the Librarian of Congress has taken a second unprecedented move. Instead of conferring with members of Congress and stakeholders, she’s decided to post a Survey Monkey poll, asking the general public to weigh in on the “knowledge, skills, and abilities” the new Register should possess, and what the top three priorities should be.

This means that those who want to weaken copyright protection for creators will be able to weigh in, and influence the selection process. 

So we’re asking all visual artists, and all who rely on a strong copyright system, to respond to the Library of Congress’ survey. Let the Library know that we need a Register who understands the value of copyright, recognizes the need for the Office to be modernized, and has the support of the creative community.

Below are survey responses you can cut-and-paste into the Library’s survey, or which you can use to base your own responses. (Thank you to ASMP, NPPA, and the Copyright Alliance for the original survey responses.)

Please share this message with your fellow creatives on social media, on your blogs, via email, etc. The Library is soliciting responses until January 31st. Let’s make sure our voice isn’t drowned out! #mycopyrightmatters #yourcopyrightmatters


Please cut-and-paste from the responses below, or use these as the basis for your own responses, and respond to the Library’s survey by January 31, 2017.


Model responses for LIbrary of Congress Survey on Register of Copyrights

1. What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?

The next Register of Copyrights must:
• be dedicated to both a robust copyright system and Copyright Office;
• recognize the important role that creators of copyrighted works play in promoting our nation’s financial well-being;
• have significant experience in, and a strong commitment to, the copyright law
•  have a substantial background in representing the interests of creators of copyright works;
•  possess a deep appreciation for the special challenges facing individual creators and small businesses in protecting their creative works.;
•  a keen understanding of, and a strong commitment to, preserving the longstanding and statutorily-based functions of the Copyright Office, especially its advising the House and Senate Judiciary Committees on domestic and international copyright issues; and
•  have the solid support of the copyright community.

2. What should be the top three priorities for the Register of Copyrights?

Priority #1: Continue the traditional and critical role of the Register as a forceful advocate for both a vibrant copyright system and a strong Copyright Office that works closely with the House and Senate Judiciary Committees in promoting a strong and effective copyright law.

Priority #2:   A commitment to moving quickly to modernize the Copyright Office with a special focus on updating and making more affordable and simpler the registration and recordation processes.

Priority #3:  Working with Congress to achieve enactment of legislation creating a small claims process that finally provides individual creators with a viable means of protecting their creative efforts.

 3. Are there other factors that should be considered?

As a creative, I believe, to the extent possible, that the views of those whose works are protected by copyright law should be given greater weight in this survey than those who are not. It is also crucial that the views of the leaders of the House and Senate Judiciary Committees, be given great deference in the selection of the next Register.

Judge Dismisses Photographer’s $1 Billion Case Against Getty Images

Posted by Rebecca Blake on November 25, 2016

Earlier, we reported on the lawsuit brought by photographer Carol Highsmith against Getty Images and other parties when she discovered they were invoicing users of her photographs, which she had put into the public domain. Getty Images and another stock agency, Alamy, were licensing photographs taken by Highsmith, which she had put into the public domain in an agreement with US Library of Congress. Highsmith became aware that Getty and Alamay were licensing her photographs when she received an invoice from License Compliance Services on behalf of Alamy, accompanied by a letter claiming she was using the images without their permission.

Highsmith sued Getty and Alamy for $1 billion, stating that since Getty is a repeat offender in copyright violation, statutory damages should be trebled. The defendant’s legal counsel pointed out, however, that the plaintiffs were conflating copyrights with rights management. Since Highsmith had placed her photographs in the public domain, both Getty and Alamy are legally permitted to license the images, and Highsmith has no copyrights to assert on those images. (Public domain works may be commercialized, as in the Dover Publications Design Library collections of public domain clip art and images.)

Highsmith did not sue for copyright infringement, but rather for violation of provisions the Digital Millennium Copyright Act.  According to Lexology, Highsmith’s lawsuit made three major allegations — that Getty, Alamy, and the co-defendants:
1)  violated a provision of the Digital Millennium Copyright Act which forbids the alteration or removal of copyright management information (17 U.S.C. § 1202) Highsmith’s agreement with the Library of Congress stated that her credit line must be included with any use of her images. Getty and Alamy altered or removed Highsmith’s credit line, and added their own watermarks and credit lines);
2)  engaged in false advertising under the Lanham Act by implying that they were working on concert with Highsmith;
3)  similarly, violated New York General Business Law § 349, which forbids businesses from engaging in “deceptive acts or practices.” 

On October 17, the judge presiding in the case, US District Judge Jed S. Rakoff, indicated that he was considering dismissing a number of Highsmith’s claims. According to Law360, the October 17 hearing largely focused on the claims relative to the New York General Business Law, indicating that the judge had already come to a decision on the other claims. In fact, on October 28, the judge dismissed all of Highsmith’s claims except those related to the New York General Business Law. 

That left Highsmith’s lawsuit severely weakened. On November 16, the parties settled over the remaining New York State claims. (The terms of that settlement have not been disclosed.) The judge dismissed the case with prejudice, meaning that Highsmith is forbidden from filing another lawsuit on these grounds. 

Below: Highsmith’s public domain image, which Alamay invoiced her for.
Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division 

Carol Highsmith Nelson Atkins Art Museum in Kansas City, MO

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