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Copyright Law

Coalition of Visual Artists Welcomes Introduction of Establishing Small Claims Board for Copyright

Posted by Advocacy Liaison on July 14, 2016

WASHINGTON, July 14, 2016

Rep. Hakeem JeffriesRep. Judy ChuIn the wake of its release of a white paper setting out the key components of a copyright small claims bill, a coalition of visual artist groups commends the attention that this critical issue is now garnering on Capitol Hill. Rep. Hakeem Jeffries' (far right) [D-NY] introduction, along with original co-sponsor Tom Marino [R-PA], of a bill, H.R. 5757 establishing a small claims board and the forthcoming introduction by Rep. Judy Chu (right) [D-CA] of her own version of small claims legislation establishing a small claims tribunal in the Copyright Office, are a welcomed next step in a process that will hopefully result in much-needed legislative relief for photographers, photojournalists, videographers, illustrators, graphic designers, and other visual artists and their licensing representatives. These artists are currently squeezed out of the legal system by the high cost of bringing suit in federal court and have seen their licensing revenues decimated in recent years by the proliferation of copyright infringement, particularly in the online context.

We look forward to working with Representatives Jeffries, Chu and all members of Congress to correct this inequity in America's copyright system.

Earlier this year, the coalition, which includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA), set forth recommendations with regard to key components in any forthcoming congressional small claims legislation. 

Coalition members believe small claims reform to be their top legislative priority and call upon Congress to enact legislation that provides visual artists and other small creators with a viable, affordable alternative to prosecuting copyright infringement in federal court—a prohibitively expensive and little-used option by visual artists. This approach is largely consistent with the legislative recommendations set forth in the "Copyright Small Claims" report released in late 2013 by the U.S. Copyright Office which deserves much credit for its groundbreaking effort in this area.

A copy of the visual artists’ coalition's white paper is available here.

For more information, please go to http://copyrightdefense.com/action


James Lorin Silverberg, Legal Counsel for the American Photographic Artists, Inc. (APA) said, “A Copyright Small Claims Court promises to provide authors and content users with an expedient, cost efficient, forum for the resolution of copyright disputes. But the importance of a small claims system is not merely to resolve differences between rights owners and rights users. By making copyrights enforceable in practical terms, it acts to restore the integrity of the copyright system, and copyright licensing models, and it contributes to a more vibrant and healthier intellectual property economy.”

Thomas Kennedy, executive director of American Society of Media Photographers (ASMP) said, "Implementing a small claims tribunal system within the U.S. Copyright Office is essential to ensure photographers, illustrators, graphic designers and other visual artists are appropriately protected and incentivized to continue producing work that changes how people see their world."

Cathy Aron, Executive Director of the Digital Media Licensing Association (DMLA) said, “Our association supports the creation of a copyright small claims forum to encourage licensing of visual content from legitimate sources. A small claims court should help stem the tide of “right-click” image use as it offers content creators and their representatives a way to effectively enforce copyright and seek appropriate payment. The digital economy needs to work for all participants and this is an essential step forward.

Lisa F. Shaftel, National Advocacy Liaison of the Graphic Artists Guild (GAG) said, “Too often when an infringement is discovered, there is little or nothing a visual creator can do to stop the infringing use or recoup financial damages. Our current copyright laws are virtually unenforceable when damages resulting from infringement would be under $30,000. That’s not much to big business, but to self-employed independent contractors and small studios this is a significant loss of income. This relatively ‘small-value’ infringement happens to nearly every professional illustrator and graphic artist during his or her career, causing economic harm to small businesses and families.”

Melissa Lyttle, president of National Press Photographers Association (NPPA), explained the importance of such a measure to photographers. “Photojournalists tell the story of our nation and our world, and their work is a critical piece of our democracy, but rampant infringement has devalued our work and made it increasingly difficult to make a living in this field. A small claims solution has the promise to improve the financial viability of our profession and preserve the ability of journalists to tell stories that would never be told otherwise.”

Sean Fitzgerald, president of the North American Nature Photography Association (NANPA) said, “America’s photographers and visual creators are desperate. Today’s digital age has unleashed a torrent of ‘small’ but destructive infringements that are eating away at the value of their work, but the current copyright system is simply not designed to help with such claims. A small claims court designed to give photographers and visual creators a fighting chance at protecting their work and livelihood from infringement is sorely needed and long overdue.”

 

visual artists coalition logos

Guild Advocacy Liaison Testifies at Copyright Office Discussion on the DMCA Notice

Posted by Rebecca Blake on July 11, 2016

On May 2nd and 3rd, the Guild participated in panel discussions conducted by the Copyright Office on the DMCA takedown process – the procedure that copyright holders utilize to compel ISPs, OPSs, and technology companies to remove infringing work from websites. Lisa Shaftel, Guild Advocacy Liaison, was invited to participate on two panels as one of the few representatives of visual artists. The discussions addressed different issues with the DMCA notice, and permitted the Office to ask questions and solicit the experiences of stakeholders: creators, authors, licensing agencies, technology companies, web hosts, and others.

Jackie Charlesworth, General Counsel and Associate Register at the Copyright Office, opened the hearings by describing the DMCA takedown process as “a tale of two cities.” Her observation was borne out by the divided testimony: those representing artists and authors described a system that is essentially broken, while technology companies (including ISPs and OSPs) professed satisfaction with a process that serves them well.

A common complaint of rights holders was that as soon as their infringed work was removed in response to a DMCA notice, it would reappear; creators described spending several hours per day devoted to just hunting down infringements and issuing takedown requests. However, technology companies said they would not consider closing or freezing the accounts of repeat offenders.

Public interest group Public Knowledge, a DC-based non-profit that promotes an open Internet, went so far as to equate closing the websites of repeat copyright infringers with censorship. Rights holders on that panel questioned why the violation of their copyrights was dismissed, and pointed out that ISPs have no issue with closing down or freezing accounts for non-payment. They also described coming across online companies that exist solely to post or provide infringing content, and to immediately repost that content after complying with a takedown notice.

Another issue rights holders described in detail was the onerous takedown process technology companies such as Facebook, Google, Amazon, and YouTube, as well as some ISPs, have devised. The notices seem to be a deliberate attempt to make it difficult for rights holders and creators to issue notices. (Read Vox Indie on Google’s Roadblocks to the DMCA Takedown Process for a description of such a process.)

Shaftel’s testimony on the takedown process was drawn from the responses to the DMCA survey that the Guild and other organizations ran earlier this year. The representatives from the Copyright Office seemed genuinely surprised when Shaftel stated that artists and photographers reported that some OSPs require visual creators to submit copyright registration certificates with the takedown demand. (Copyright registration is not required by law for a DMCA takedown notice.) Others even rejected that as proof of copyright ownership, since registration certificates don’t include an image of the copyrighted work.

The most startling statement came from Patrick Flaherty from Verizon, who reported that Verizon ignores any takedown notices that aren’t accompanied by a court order. If this is correct, this means that to remove their infringed work from a Verizon website, a copyright holder has to hire an attorney and go to court to get a judge to issue a court order. The onerous requirements by OSPs (such as court orders, registration certificates, and multi-step procedures) ignores the intent of Section 512 of the DMCA law, which is to provide copyright holders an expedient means to remove their infringed work, while providing a safe harbor protection for OSPs from lawsuits.

Shaftel thinks rights holders and creators were able to impress upon the Copyright Office that the DMCA process is failing them. Her takeaway was two-fold:

1. Creators and rights holders were unanimous in stating that the law needs to be revised to takedown and stay down.

2. There needs to be a standardized form for takedown notices – perhaps created by the Copyright Office – to enable a clear, simpler procedure, and prevent OSPs and technology companies from piling on additional requirements.

Shaftel is unsure of where the Copyright Office will take the findings; any adjustment to the law will have to be made by Congress. But she’s heartened that the concerns of visual artists were heard, and by Jackie Charlesworth’s assertion that she believed the Copyright Office did have the power to compose a standardized takedown notice and procedure so as to eliminate ISPs from making up their own requirements.

Below: The venue for the roundtable discussions, the Thurgood Marshall United States Courthouse in New York City.

Thurgood Marshall Courthouse

© Watermark: A Tool to Protect Your Work Under the DMCA

Posted by Rebecca Blake on June 29, 2016

Think putting a watermark with your name and copyright symbol detracts from your illustration? You may want to reconsider doing without it. In “CMI and the DMCA,” attorney Leslie Burns explains how including such information, called Copyright Management Information, gives you an additional, powerful tool to protect your copyrights online.

“Copyright Management Information” is defined by the Digital Millenium Copyright Act as “information conveyed in connection with” copies, displays, phonorecords, or performances of a work. The information is broadly defined, and can include the name of the work, the name of the author or copyright holder, identifying numbers or symbols, etc. That means a simple “© 2016 Your Name” inserted into the corner of your illustration or design qualifies as CMI.

As Burns elucidates, including your watermark on your image confers two tools you can use in addressing infringement. First, according to the DMCA, if an infringer removes your © watermark and reposts your image, the infringer has committed one to two violations of the law – each carrying statutory damages of at least $2,500 – whether or not you registered the work. Additionally, the removal of your watermark shows that the infringement was willful. That means if you did register your work, the statutory damages could go up to $150,000. (The minimum stays at $750.) It goes without saying that you should register the copyrights on any work you publish online!

Burns states that the notice needn’t be large – just legible – and recommends that the notice include the copyright symbol ©, the year of publication, and your name. She also points out that including the CMI increases the chance for damages to be awarded  – which would make a lawyer far more inclined to take the case on a contingency basis.

Leslie Burns is a California-based lawyer specializing in copyrights, contracts, and business law. Her background makes her a unique advocate for visual artists – for years, she was the studio and marketing manager for photo illustrator Stephen Webster. Her articles are both entertaining and informative; her article “More Monkey Business” (published on her Burns Auto Parts blog) was one of the most amusing takes on the monkey selfie dispute in 2014.

Below: Burns' copyright notice on her photograph (snapped while in law school) isn't large, but clearly imparts her information. (Used with permission.)

Life as a Law Student, photo © Leslie Burns

Questions about Copyright Registration? Answers from the Copyright Office!

Posted by Rebecca Blake on May 10, 2016

Copyright Q&AEarlier this year, the Copyright Alliance solicited questions from creators on the copyright registration process. They’ve launched a Copyright Q&A column to roll out the questions and answers. Even better, the answers have come from the most reliable source you could hope for: Rob Kasunic, Director of Registration Policy and Practices at the Copyright Office. The column covers a decent range of questions, from basic requests on which procedures to follow to expedite a registration, to more targeted questions on public domain images, derivative works, and specific terminology. 

The column is well worth scanning. It not only provides practical advice on the application process, it also corrects some common misunderstandings. For example, more than one question asked whether works registered as a group would be entitled to separate statutory damages. Kausic clarifies that the Copyright Office’s position is that only derivative works and compilations should be limited to one award of statutory damages; works otherwise registered as a group would be entitled to separate awards (a boon for prolific visual artists).
Other Q&As germane to illustrators cover works which incorporate public domain images, how much an image must be altered to be considered a derivative work, and what constitutes a publication date. (Here’s a hint: posting to Facebook does not count as a publication.) To read through the Copyright Q&A, visit the Alliance’s blog.

Animations Educate on Copyright Ownership and Registration

Posted by Rebecca Blake on March 28, 2016

Guild member and illustrator/animator Mark Monlux has given us permission to post two animations he created covering copyright basics. Copyright & You — Defining Copyright Ownership teaches that artists who sell their original paintings do not transfer the copyrights to those paintings, and encourage artists to provide provenance in writing. The second animation, Copyright and You – Having vs Registering, outlines the additional legal protection registering copyrights affords creators. Both animations have been posted with full transcripts to our Tools and Resources pages.

The cartoons use Monlux’s whiteboard animation technique, which he employs for organizational and corporate clients (in addition to his advertising and editorial illustration, and sketchnoting). They were created as a public service announcement in collaboration with the Tacoma Artists Intitiative Program. Monlux served many years on the Guild's Executive Committee, and is recognized for his knowledge of copyright law and good trade practices for illustrators.

Below: screenshots from “Defining Copyright Ownership” (left), and “Having vs. Registering.”
© Mark Monlux.

© Mark Monlux screenshot from Defining Copyright Ownership© Mark Monlux screenshot from Having vs. Registering

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