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Copyright Law

Statement on Removal of Registrar of Copyrights by Copyright Alliance

Posted by Advocacy Liaison on October 24, 2016

Copyright Office logoOn October 21, Dr. Carla Hayden, Librarian of Congress, announced the removal of Maria Pallante as Registrar of Copyrights. With small copyright claims legislation introduced in the House and copyright law under review, the change in Copyright Office leadership comes at a sensitive time. The Guild is working with other creators’ associations to formulate an appropriate response, and to advocate for greater protection for visual artists. The Copyright Alliance, of which the Guild is a member, released a statement that echoes our concerns:

Copyright Alliance Logo

Copyright Alliance Statement on Today’s Changes in the Copyright Office Leadership by New Librarian of Congress  

Washington, D.C. – October 21, 2016 – The new Librarian of Congress, Dr. Carla Hayden, today announced that Register of Copyrights and Director of the United States Copyright Office, Maria Pallante, has been removed from office. The following is a statement by Copyright Alliance CEO Keith Kupferschmid regarding the announcement:

“We are most grateful for the dedicated service that Maria Pallante has provided during her tenure as Register of Copyrights. Serving since 2011, Register Pallante’s commitment to evidence-driven policymaking and public involvement in the policy process should serve as a model. She has recognized the importance of copyright to both the U.S. and international creative communities and worked as a steadfast advocate for modernizing the Copyright Office and its technology initiatives. It has been an honor to work with Register Pallante.”
Kupferschmid concluded by stating: “We are surprised and concerned by today’s news, which comes at a time when the Office and others are considering many potential changes to the copyright system and law. As the national search for a new Register of Copyrights commences, we are committed to assisting the new Librarian and the Chairman and Ranking Members of the House and Senate Judiciary Committees with this important process, and view it as an excellent opportunity to continue the dialogue on the future of the U.S. Copyright Office. We support Karyn Temple Claggett’s appointment as the Acting Register and believe that her appointment will allow us all to be deliberate and take the time necessary to find the next Register.”

The Copyright Alliance is a non-profit, non-partisan public interest and educational organization representing the copyright interests of over 1.8 million individual creators and over 13,000 organizations in the United States, across the spectrum of copyright disciplines. The Copyright Alliance is dedicated to advocating policies that promote and preserve the value of copyright, and to protecting the rights of creators and innovators. For more information, please visit www.copyrightalliance.org.

$1 Billion Lawsuit Against Getty Images Raises Questions about Public Domain Dedication

Posted by Rebecca Blake on September 29, 2016

Photographer Carol Highsmith was outraged when she received a $120 invoice from Licensing Compliance Services on behalf of Almay Limited, a photo stock agency. The invoice was accompanied with a threat letter contending that she was using one of their licensed images on her website. Why the outrage? Highsmith had taken the photograph Almay was claiming to license. Not only that, Highsmith had donated that photo to the Library of Congress for public use, rights-free. A little bit of digging revealed that Almay Limited and photo stock giant Getty Images were selling Highsmith’s public domain images, and were aggressively pursuing anyone found to be using those images via the content tracking service PicScout (a Getty subsidiary).

Highsmith is a well-regarded photographer who documents the cities, countryside, and cultures of the United States. Her work has have been widely acclaimed and published. Inspired by iconic American photographers such as Dorothea Lange and Frances Benjamin Johnson, Highsmith began donating her photographs to the Library of Congress in 1988. The Library established a one-person archive of her work, to which Highsmith continues to contribute; the collection is expected to top out at over 100,000 images. An article on PDNPulse states that in making her images public domain, “Highsmith says she never abandoned her copyrights to the images. She says the Library of Congress had agreed to notify users of the images that she is the author, and that users must credit her.” (“Photog Seeks $1 Billion from Getty for Copyright Violations,” David Walker, Sept. 9, PDN Pulse) Her intention was to make the photographs available rights-free “for the use and benefit of the American people, and as a permanent record of our nation’s buildings, landscape, culture, and people.” Discovering that her donated work was monetized by stock image agencies was a surprise.

Hightsmith contacted Licensing Compliance Services, who quickly dropped the invoice. But Highsmith wasn’t satisfied. Searches pulled up 18,755 of her donated images on Getty Images, and about 500 on Alamay. Both Getty and Alamay were inconsistent in how the photo was credited. Alamay made no reference to Highsmith, but labeled her photos “© Everett Collection Inc / Alamy Stock Photo.” Getty labeled some images “By: Buyenlarge”, and others “Credit: Buyenlarge/Contributor”, followed by “Photo by Carol Highsmith/Buyenlarge/Getty Images.” (Buyenlarge is the profile of a contributor on the Getty website. It’s also the name of a print-on-demand poster printer specializing in public domain and licensed historic ephemera; some of those images also appear on Getty under Buyenlarge's credit line.) Highsmith also discovered that Getty and Alamay continued to seek out and invoice users of Highsmith’s images, even after they were made aware that users may have sourced the images from the Library’s Highsmith collection.

The sheer volume of the images posted to Getty Images and Alamay led Highsmith and her legal team to seek damages of $1 billion from Getty, Alamay, Licensing Compliance Services, and PicScout. Highsmith is contending that when Getty and Alamay removed or altered the credit line from the photos – the Highsmith/Library of Congress credit she had stipulated upon donating her photos – the defendants violated DMCA provisions of US copyright law which proscribe the altering or elimination of copyright management information (CMI) with the intent to enable or conceal copyright infringement. The lawsuit also contends that the defendants are falsely presenting themselves as the copyright holders (or their agents), and threatened lawsuits they couldn’t pursue against people who lawfully used Highsmith's public domain images. (Highsmith is not claiming copyright infringement in her suit.)

While that figure sounds hyperbolic, it’s based on what the legal team thinks they could be awarded. As outlined in her lawsuit, each instance of infringement could be seen as a separate violation of Section 1202 of US Copyright law, and could result in a award of between $2,500 and $25,000. Multiply that by 18,755 infringements, and the total comes to between $46,887,500 and $468,875,000. Since Getty was already found to have infringed a photographer’s work in the past three years, the Court could additionally treble the damages awarded to Highsmith – hence the $1 billion price tag. (Highsmith also contends that Getty’s licensing of her work damaged her reputation by making her appear to have been hypocritical in first donating her work to the Library, and later deciding to license the work to Getty.)

Carol Highsmith, photographer, Nelson Atkins Art Museum, Kansas City, Missouri

Carol Highsmith was invoiced for her photo of the Nelson Atkins Art Museum in Kansas City, MO.

Credit: Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division

Getty responded to the lawsuit with a statement claiming that the complaint was based on misconceptions, and filed a motion to dismiss the case. In their motion, they refute that they altered the CMI. Getty's motion also states they could not have altered the CMI with the intent to infringe copyrights, since no copyrights exist to infringe on public domain images. It’s not certain that Highsmith will prevail, should the case go to trial. Stock agencies legally license public domain images, and justify the fees by citing the resources they invest to make the images available for “productive use.” In her article, “Can Anyone Use Public Domain Images?”,  Nancy Wolf, legal counsel to DMLA, explains that legally anyone can make use of public domain images, including licensing them. But most images enter the public domain when their copyright expires, if their copyright wasn’t renewed, or if the work didn’t have a valid copyright notice.

But what about images that were dedicated to the public domain? Can the creator make that dedication conditional, as did Highsmith claims she did with her requirement of a credit line? And does the creator retain any copyrights? The IP blog Public Domain Sherpa asked the Copyright Office whether an author could abandon his or her copyright to a work. The Office responded that there is no specific provision in copyright law for disclaiming copyrights, and that while an author can record their intention with the Office, the acceptance of a statement of abandonment of copyrights  “…should not be construed as approval of the legal sufficiency of its content or its effect on the status or ownership of any copyright.” In her agreement with the Library, Highsmith stated that she dedicated to the public “all rights, including copyrights throughout the world, that I possess in this collection.” However, the agreement also states that the Library will request that those reproducing the work include the credit line, “Carol M. Highsmith's America, Library of Congress.”

There’s a good chance Getty and the other defendants will settle out of court with Highsmith. Even if they stand a good chance of winning the suit, the negative pulicity generated by the lawsuit may make a court battle not worth the effort. Getty and Alamay have removed all of the Highsmith images from their websites. But what about those who used Highsmith’s images legally from the Library of Congress website, but were invoiced by Alamay or Getty (and paid the bill in some confusion)? Jonathan Bailey on Plagiarism Today wonders if a class action lawsuit brought by those erroneously billed by the stock agencies will be brought.

The Power of the © Notice

Posted by Rebecca Blake on September 15, 2016

Leslie Burns copyright noticeIn June, we reported on attorney Leslie Burns’ article on CMI: copyright management information. Burns advised visual artists to put a visible copyright notice on  work they post online, since doing so provides the artists with additional tools to bring to bear, should the work be infringed. In her follow-up article, “Your © is More Than CMI,” Burns goes into greater detail on how to effectively use the copyright notice, and why doing so is such a good practice.

First, Burns explains that the copyright notice must include the copyright symbol, the date of publication, and the copyright owner’s name. (For those confused on what the date of publication is, she goes into a bit of detail.) She then explains that if an infringer uses a work that had a copyright notice removed, the infringer can’t claim “innocent infringement” – even if the infringer got the artwork from another source, and had no idea that a copyright notice had been removed. Burns cites two copyright cases that support this rule: BMG Music v. Gonzalez and Maverick Recording v. Harper
Infringers who have used works from which the copyright notice of watermark was removed have violated §1202 of the DMCA (Digital Millenium Copyright Act). Burns calculates that the infringer could be looking at a minimum of $3,250 in damages ($750 for the infringement, and $2,500 for the DMCA violation), and possibly attorney’s fees.

Of course, none of this will apply if the visual artist hasn’t first registered his or her work with the copyright office. Remember, a work must be registered before an artist can sue for copyright infringement.While an artist can register work after detecting that it's been infringed, damages are limited if the work is registered after the infringement occurs. WIth a background in business and marketing management for a photography studio and a design firm, Burns is huge advocate for visual artists. Her website, Burns the Attorney, features a steady stream of articles on legal issues creative types need to be on top of.

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

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