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Copyright Law

Guild Responds to Copyright Office Request on Group Registrations

Posted by Advocacy Liaison on December 01, 2017

Copyright Office logoThe Graphic Artists Guild has submitted a response to a proposed rulemaking by the Copyright Office on Group Registrations of Unpublished Works. Currently, graphic artists do not have a group registration option; among visual artists, only photographers have a group registration option, and that is only for published photos. The Guild has advocated for extending a group registration option to other works of visual arts.

The proposed rulemaking by the Copyright Office establishes a new group registration option for unpublished works: up to five works may be submitted for the group registrations; all works must have the same author or joint authors; and each work must be published in the same administrative class (for example, works of the visual arts, works of the performing arts, literary works, etc.). 

Notably, the group registration option will replace the current “unpublished collection” option. In its notice in the Federal Register, the Office states that the unpublished collection option is “ineffective” since it permits the registration of an unlimited number of works, whereas a more limited option would permit the Office to more easily examine each submission for its ability to be copyrighted, resulting in a better record and more efficient system.

In our response, the Guild welcomed the extension of a group registration option for graphic works. However, we raised a number of concerns with the proposed rulemaking, notably that limiting group registration to just five individual works is unfeasible for graphic artists, who often generate a greater number of works (sketches, revisions, alternate versions) in the execution of a single project. We also asked for the Copyright Office to issue an opinion on what constitutes publication for online works since, in a digital age, the distinction between “published” and “unpublished” is often confused. 

The Guild Joins Photographers in Meeting with Rep. Hakeem Jeffries

Posted by Rebecca Blake on September 19, 2017

Guild National President Lara Kisielewska and Advocacy Liaison Rebecca Blake joined representatives from ASMP, NPPA, and APA in meeting Rep. Hakeem Jeffries (D-NY) September 15th. The meet-and-greet was organized by ASMP Executive Director Tom Kennedy and occurred at Photoville, the Brooklyn-based photography event. The Guild representatives took the opportunity to thank Rep. Jeffries for his work in introducing a bill to establish a copyright small claims tribunal, and discussed with him the blow rampant copyright infringement inflicts upon illustrators and graphic artists. 

The Graphic Artists Guild, ASMP, NPPA, and APA are members of a Coalition of Visual Arists. Other association members are DMLA, PPA, and NANPA. Working together, the Coalition provides its members a unified voice on issues of concern to visual artists.

Thank you to Todd Maisel of NPPA for use of the photos. 

Advocacy LIaison Rebecca Blake and ASMP Executive Director Tom Kennedy (far right) listen as Jeffries makes a point.

Guild Advocacy Liaison meeting Jeffries, photo by Todd Maisel

Jeffries speaking with representatives from photography associations ASMP, APA, and NPPA.

Jeffries speaks with representatives from NPPA, ASMP, APA.

Jeffries took some time to take in the “Charlotsville” exhibit, showcasing the work of photojounalists. 

Jeffries at Photoville

 

All photos © Todd Maisel. Used with permission.

Photographer Impoverished by Copyright Lawsuit Filed on Behalf of Monkeys

Posted by Rebecca Blake on July 25, 2017

Wildlife Personalities book by David SlaterTwo years ago, we reported on the copyright issues raised by the monkey selfie. While visiting Indonesia, UK wildlife photographer David Slater spent several days accustoming a group of crested black macaques to his presence, encouraging them to approach a camera he had preset to snap an in-focus photo. The resulting monkey selfies were an Internet hit, and Slater licensed the images through his agent, Caters News Agency. Slater quickly discovered that the images had been published in Wikimedia’s “free media repository.” Attempts by Slater to have the images removed were dismissed by Wikimedia, who took the position that since the images were not physically taken by Slater, he could not claim copyright ownership.

If the story ended there, Slater would have only experienced a loss in potential licensing revenue – in August 2014, Slater estimated to BBC News that he lost up to 10,000 £ (about $16,800 at that time) in income once the photos appeared on Wikimedia. Some of that income he may have been able to recoup through Wildlife Personalities, a book he self-published through Blurb. However, in 2015 PETA sued Slater on behalf of one of the macaques. The lawsuit claims that Slater and Blurb violated the monkey’s copyright when the selfie was included in his book, and proceeds from the selfies should benefit the monkeys. The Guardian reports that the mounting legal fees have bankrupted the photographer.

PETA’s lawsuit seems to be a stretch. In 2016, a court ruled against PETA on the grounds that an animal cannot be a copyright owner. (In the third edition of its Compendium, the Copyright Office flatly cites “a photograph taken by a monkey” as an example of a work the Office will not register.) PETA appealed that decision to the ninth circuit court, which is hearing the case this summer. As reported in the Guardian, the legal arguments heard in court approached the absurd; the judges questioned what financial benefits would apply to the monkeys, and how the copyright would be passed to their heirs.  

The lawsuit has also raised concerns among some animal rights advocates. In 2015 when PETA first brought the lawsuit, the Daily Mail quoted Laurence Tribe, a Harvard law professor and supporter of animal rights, as saying “it trivializes the terrible problems of needless animal slaughter and avoidable animal exploitation worldwide for lawyers to focus so much energy and ingenuity on whether monkeys own the copyright in selfies taken under these contrived circumstances.” As a self-avowed animal advocate, PETA’s lawsuit was particularly galling to Slater. However, he takes comfort in the fact that the attention to the lawsuit has generated greater awareness of the plight of the macaques and their island habitat.

RIght: David Slater’s book, Wildlife Personalities, features one of the monkey selfies prominently.

Metro-NY Artists: Pro-Bono Legal Assistance for Copyright Disputes

Posted by Advocacy Liaison on June 27, 2017

Copyright Alliance logoThe Copyright Alliance has partnered with Cravath, Swain, and Moore LLP and  Columbia Law School to provide pro-bono trial services for individuals and small businesses involved in copyright disputes in New York City. Through the initiative, Columbia Law School students working under the supervision of lawyers from the firm provide legal counsel  and learn trial skills as related to copyright law.

Designers and illustrators operating in New York City with a copyright dispute are encouraged to apply for consideration in the program. Applicants will be considered based on criteria published on the Alliance’s website. If you’re interested in applying for the program, visit the website to download the forms. For more information, contact the Alliance”s Copyright Counsel, Terrica Carrington, at tcarrington@copyrightalliance.org. (Please note that applying for the program does not guarantee legal assistance.)

 

Copyright Alliance pro bono trial services

“First Expressed in Nature”: Science Illustrator Pieter Folkens Raises Copyright Concerns

Posted by Rebecca Blake on May 24, 2017

Pieter Folkens

Science illustrator Pieter Folkens came to our attention when we put out a call for a visual artist with experience in the entertainment industry. Not only is he a renowned marine mammal artist, Folkens has also created animatronics models used in films such as “Free Willy” and “Star Trek VI: The Voyage Home”. In April, Folkens represented visual artists with the Copyright Alliance at "Beyond the Red Carpet,” an event which showcased the creatives working behind the scenes in the film industry. The Alliance interviewed Folkens for their "Five Questions” interview series with individual creators. 

Five Questions with Science Illustrator Pieter Folkens” covers his early fascination with marine mammals, triggered by the discovery of fossilized shark teeth during a third-grade field trip, and shortly thereafter, excavating a 13.5 million year old sperm whale skull. That experience eventually led to a satisfying career documenting whales, dolphins, porpoises, and other marine life in scientific illustration and sculpture. As Folkens put it, “The creative process is an exercise in discovery. The enjoyment comes in two forms—initially learning new things followed by sharing them with others.”

However, it's the Alliance's probing of Folkens' experience with copyright infringment which is particularly illuminating. Folkens was one of the first science illustrators to focus on marine mammals, and his high-quality illustration has often been copied – his work has been infringed up to a dozen times a year (that he knows of). His method of dealing with the infringement is to send a passive notification, followed by an invoice for the use, and an attorney's letter. This sequence of steps permits Folkens to gauge the infringer's response and anticipate what steps he'll need to take. He strongly advises creators to “learn copyright law,’ recommending that they stay abreast of recent case law. 

It's clear he's followed his own advice in his response to the final question, on what he would change about copyright law. Folkens cites concerns with the merger doctrine and scenes à faire doctrine, two principles most visual artists are unaware of. (Put very simplistically, the merger doctrine states that when an idea and the expression of that idea are so closely tied together that they’re inseparable, then the expression can’t be copyrighted since ideas are not copyrightable. The scenes à faire doctrine states that elements of a creative work may not be copyrightable if the genre of the work dictates them – think of folklore, stock story lines, etc.) Folkens’ concern is that these doctrines are unfairly applied to works of visual arts, citing a comprehensive law review article by attorney Michael D. Murray.

In response to our query, Folkens went into greater detail:
“The issue is developing wrongly in the courts under the notion of “first expressed in nature” that says any depiction of an animal is not protectable because whatever an animal looks like or does was “first expressed in nature” and therefore not a copyrightable idea. (Taken to its extreme, Ansel Adams’ “Moon Over Half Dome” would not be a copyrightable subject because Half Dome is a rock that was first expressed in nature, and same goes for the moon.) It sounds absurd, but it has been a successful defense in several cases in the Ninth Circuit, even when the copying of the original was proven by the plaintiffs. The problem arises from the two step "reductive analysis” employed by the court that essentially removes all elements of expression in the first step (copyrightablity of the subject), keeping the second step (copying of protected elements) out of consideration and away from the trier of fact. I'm taking up that battle in the Ninth Circuit this fall.”

Folkens’ full interview can be read on the Copyright Alliance’s website. Folkens’ will also be presenting our June webinar with attorney Linda Joy Kattwinkel on "Inspiration or Infringement.”

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