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Copyright Law

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

Katie Lane’s Low-down on Work-for-Hire versus Assigning Your Copyrights

Posted by Rebecca Blake on March 21, 2016

Katie Lane illustrationAttorney Katie Lane recently addressed a question she often hears from her creative clients: what’s the difference between work-for-hire and assigning copyrights? Work-for-hire is a term which is frequently misunderstood, and confused with an all-rights buyout. Lane explains that a work-for-hire agreement means the client owns the copyright to whatever the artist creates: “From the very moment the thing is created, it’s owned by the client or your employer.” In contrast, when an artist assigns the copyright, the artist owns the copyright, and is selling that copyright to the client.

Lane further explains that for a work to qualify as work-for-hire, it has to either be created by an employee within the scope of that individual’s job (in which case the copyright belongs to the employer or firm), or it must meet one of nine categories, such as contributing to a collective work. Lane also points out that the agreement between the artist and client must stipulate that the work is work-for-hire.

Lane concludes by cautioning artists on the real limits work-for-hire agreements place on artists, such as prohibiting them from displaying the work in their portfolios. If a contract stipulates a project is work-for-hire, and the artist thinks it may not meet one of the nine qualifications, Lane’s advice is to negotiate before signing to see if the terms can be changed to assigning copyrights.

Lane’s full article, Work for Hire or Copyright Assignment?, can be read on her blog. The Work Made for Hire blog features articles written from a legal perspective for creatives, and includes tips on negotiating, reading contracts, and a comprehensive article on orphan works.

Illustration of Katie Lane © Dylan Meconis 2016. Used with permission.

Vox Indie on Google’s Roadblocks to the DMCA Takedown Process

Posted by Rebecca Blake on March 15, 2016

Independent filmmaker Ellen Siedler has long been criticizing Google for its anemic efforts in combating piracy. In one of her recent posts on her blog, Vox Indie, she explored the process Google employs for those wishing to report copyright infringement via Google’s DMCA takedown notice (“Why does Google make it so damn difficult to send a DMCA notice?”). The results were astounding: instead of a simple contact form or link, as is provided by websites such as Vimeo, Google provides a baffling nine-step report process. Siedler charted her findings in an infographic she titled “Google’s DMCA Takedown Maze.”

Siedler’s conclusion is that Google is willfully making the takedown process combursome. She summarized her findings (quoted from her article):

“Google doesn’t provide the email address of its designated DMCA agent (as required by law).

Google requires users to send takedown requests via online forms.

Google makes finding the correct form a laborious 9 step process.

Once the correct form is found, Google requires DMCA senders to login to a Google account.

Google doesn’t provide clear URL on pirated files forcing rights holders to drill down further into the abyss to find the correct URL to report the pirated file.”

Below: Siedler’s infographic charts Google’s DMCA Takedown process.
© Ellen Siedler. Used with permission.

© Ellen Siedler Google’d  DMCA Takedown Maze infographic

Copyright Small Claims White Paper Released by Visual Arts Associations

Posted by Advocacy Liaison on March 02, 2016

While there has been a great deal of discussion recently about the possibility of Congress creating a small claims process for visual arts, several visual artist groups, representing hundreds of thousands of creators, have joined forces to propose key components of potentially forthcoming small claims legislation. Collectively, the groups represent photographers, photojournalists, videographers, illustrators, graphic designers, artists, and other visual artists as well as their licensing representatives.

The white paper, which can be viewed here, advocates for the creation of a small claims tribunal within the U.S. Copyright Office. The document is collaboration between 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).

These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims — federal district courts — is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims process within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.

The Graphic Artists Guild opines that the goal of an alternate, small-value, copyright infringement court system is to encourage proper business practices and the licensing of copyrighted works, as well as discourage unauthorized use. The procedure and system ought to be easy to use by both parties, with expeditious results and lower costs for the process, and with evidentiary requirements to deter false claims. More rights holders will be able to get monetary compensation from unauthorized users. Users will be aware that it is more cost-effective to contact the rights holder and pay a licensing fee rather than infringe, because rights holders will have easier access to legal recourse.

This negotiated document, which lays out the basic framework for small claims legislation, is in large part consistent with the legislative recommendations set out in the “Copyright Small Claims” report released in late 2013 by the U.S. Copyright Office. In some instances, the white paper offers alternative suggestions to those put forth by the Copyright Office.

The visual artists’ organizations listed above have now distributed this legislative proposal for a copyright small claims tribunal to members of Congress, the United States Copyright Office, the members of the undersigned organizations, and other important copyright stakeholders.
 


Advocacy organizations logos: APA, ASMP, DMLA, GAG, NPPA, NANPA, PPA

The DMCA Notice: “Take Down” is Letting Down Artists

Posted by Rebecca Blake on February 03, 2016

Since the DMCA notice procedure was written into law in 1998, it’s proven to be of limited effectiveness in combating copyright infringement online. “DMCA” stands for the Digital Millennium Copyright Act, an ambitious law passed by Congress in an attempt to address, among other things, the piracy of copyrighted materials.  The DMCA notice procedure creates an avenue for copyright holders to have their infringed work removed from a website by contacting the website hosting company or ISP (Internet service provider). However, the notice procedure has come under fire from all sides.

The DMCA law implemented two 1996 World Intellectual Property Organization (WIPO) treaties. To bring the US compliant with those treaties, the law criminalized the creation of systems to circumvent digital right management measures, and raised penalties for copyright infringement on the Internet. OSPs (online service providers), including ISPs, were concerned that they would be penalized for copyright infringement conducted by users of their systems. The concern was justified; by US law, anyone participating in copyright infringement or distribution of infringed work is liable. The DMCA “notice and take down process” creates a safe haven for those companies.

Essentially, OSPs are required to publish the contact information for a designated DMCA agent responsible for processing DMCA notice requests. Copyright holders can contact the OSP through the agent, and if their take down notice complies with the statutory requirements, the OSP is required to take down the infringing work. Doing so renders the OSP not liable for any infringement. The process also provides a means for the individual posting the content to appeal the take down with a counter notice. (For a instructions on how to issue a take down notice, see our article “Hey, That’s My Work on Their Web Site!” in our Tools + Resources.)

The problem with the DMCA take down notice is that it puts the burden on copyright holders to police the Internet, only to see the infringed work crop up repeatedly. In fact, the DMCA procedure has been termed “take down Whac-A-Mole.”  Part of the problem is that the DMCA law did not anticipate peer-to-peer networking, which permits data transfer between users without an intermediate server. Peer-to-peer file-sharing networks such as BitTorrent have long been sources for pirated material such as films, music, books, graphic novels, software, etc. An additional problem is that OSPs have no incentive to police content before receiving a take down notice, since prior knowledge that content may be infringing would forfeit their safe harbor exemption. This concern was raised by Professor Sean O’Connor while testifying at a House Judiciary Committee hearing in 2014. (Read David Kluf’s recap of the hearing on Trademark and Copyright Blog.)

Professor Sean O’Connor

Professor Sean O’Connor being introduced at the House Judicary Committee hearing on the DMCA Take Down Notice. (screen capture from the hearing video)

For their part, technology companies complain that the DMCA take down procedure is rife with abuse, and fails to recognize fair use exemptions. During the House testimony, Paul Semienski, General Counsel for the parent company of  WordPress, cited examples of a DMCA notice being used to squelch criticism, and stated that the counter notice process to appeal a takedown is largely inefficient. Reports of abuse of the take down process appear to be exaggerated, though. On the NSU legal blog, Steve Carlisle pointed out that Semienski only cited three examples of abusive uses of the notice. Google in its transparency report states that 97% of the takedown notices were removed, meaning that at most, Google challenged only 3% of the notices, which could have been abusive. By those statistics, at the time of the hearing hearing, Google was receiving up to 6.3 million legitimate notices in one week. 

Paul Semienski, General Counsel for WordPress

Paul Semienski testifying at the Judiciary Committee hearing. (screen capture from the hearing video)

Overall, Google counsel Katherine Oyama has expressed satisfaction with the DMC notice procedure. She testified at the Judiciary committee hearing that, despite the rapid growth in the number of take down notices received by Google reporting infringement on its search engine, the company was able to speed up its response time. She also recommended that rather than amending the take down procedure, means for copyright holders to police and monetize their work (such as through Google’s Content ID system) should be developed.

As proof of the success of the DMCA take down process, Google cites the extreme number of notices it processes – 560,000,000 in 2015 alone. Many of those take down notices are most likely handled by automated systems implemented by major copyright holders such as recording companies and film studios. However, as independent filmmaker Ellen Siedler reports on her blog, Vox Indie, the take down process provided by Google is an onerous 8-step procedure. Additionally, Google does not publish the contact information for their DMCA agent as is required by law. The result is a Gordian knot of a process that deters individual rights holders and probably reduces the number of take down notices Google receives.

Katherine Oyama, Google Counsel

Katherine Oyama at the Judiciary Committee hearing. (screen capture from the hearing video)

A solution mentioned by many advocates for copyright holders is modifying the existing process to a “take down and stay down” notice. Carlisle describes that process as “[o]nce a DMCA notice is filed, all files with that ID need to be taken down, not just one on one website. New postings that match that ID need to be blocked.” The result will be that repeat postings of pirated material will be blocked, the overall number of DMCA notices will decline, and OSPs will need to allocate fewer resources to process them. Dropbox has already in place a similar process. Files uploaded to Dropbox are assigned a unique code number, and, if a DMCA notice is filed on that code number, Dropbox disables further public sharing of the file.

“Take down and stay down” has its detractors. Techdirt describes the proposal as “The Rebranding of SOPA,” the hugely unpopular anti-piracy legislation that was dropped a few years ago. The Electronic Frontier Foundation (EFF) describes take down and stay down as “filter everything.” And Google’s Oyama describes the process as “problematic.” The leading reason given for the opposition to take down and stay down is concern with abusive notices, despite the fact that they represent a tiny percentage of the overall number of notices.

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