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Posts Tagged ‘copyright’

Mashable embedded image copyright case revived over surprising Facebook statement

26 Jun

The 2016 copyright infringement case against the media website Mashable that we last heard about in April is back again. Following a similar case with an opposite ruling regarding how copyright infringement may pertain to embedded Instagram posts, the US District Court for the Southern District of New York has reopened the copyright suit filed by photographer Stephanie Sinclair against Mashable.

Sinclair’s lawsuit is part of a copyright spat between the photographer and Mashable after the website embedded one of her Instagram posts in a 2016 article titled ’10 female photojournalists with their lenses on social justice.’ Mashable had first reached out to Sinclair and offered $ 50 to license the image, an offer that she rejected. As an apparent loophole to this matter, Mashable then simply embedded Sinclair’s public Instagram post featuring the same image.

A screenshot of the article in question. Sinclair’s Instagram photo has since been removed.

In her lawsuit, Sinclair had argued that Mashable did not have permission nor a license to use the image, while Mashable countered that it didn’t need the photographer’s permission because Instagram’s terms covered sublicensing. Instagram’s terms of service stated at the time that users:

…hereby grant to [Instagram] a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.’

Based on its understanding of those terms, the court ruled against Sinclair, stating in April that, ‘Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff…’

However, Instagram’s parent company Facebook introduced a plot twist earlier this month when it clarified in relation to a different but similar case against Newsweek that its terms do not cover sublicensing for embedded images. According to Facebook, and despite the fact that Instagram offers a ‘share’ function on public images by default, users must first get permission from the photographer before embedding their image.

This unexpected turn of events was a bittersweet moment, offering reassurance that Instagram users have more control over their images than previously thought, but with major implications for how future digital copyright cases are handled. Users who are unaware of the intricacies of Instagram’s terms could, for example, be liable for copyright infringement by simply using the feature made available to them by the platform.

Facebook’s statement has prompted the reopening of Sinclair’s copyright case, as the ruling in favor of Mashable was made with the understanding that Instagram’s terms covered sublicensing for embedded images. Sinclair filed a motion for reconsideration with the court in light of the new information, a request that has since been granted.

The case has been reopened because, according to presiding judge Kimba Wood, Mashable didn’t get ‘explicit consent’ from Instagram to embed the photo under its sublicensing terms. The lawsuit against Mashable can proceed, with Judge Wood stating in the court’s Opinion & Order that:

Revising its previous holding, the Court holds that the pleadings contain insufficient evidence to find that Instagram granted Mashable a sublicense to embed Plaintiff’s Photograph on its website … the Court did not give full force to the requirement that a license must convey the licensor’s “explicit consent” to use a copyrighted work.

The two new cases over Instagram embedding and how it pertains to copyright has renewed criticism of the platform for failing to give users more control over their content. Instagram automatically presents a sharing feature on all public Instagram posts, yet has made it clear that it doesn’t sublicense content shared with this feature, putting users at risk of liability.

Photographers are given the choice to make their images private, therefore removing the embed function, but with the consequence of reduced exposure to potential clients and customers. Enabling photographers to manually choose whether the sharing function is enabled on their public posts would remove this issue, but is not something Instagram presently offers.

In a statement to Ars Technica, Instagram had addressed this topic by stating that it was ‘considering the possibility’ of adding a new feature that would allow users to decide whether others can embed their public images. The non-committal nature of the statement, however, indicates that Instagram may never proceed to introduce such modification to this feature, putting the burden on photographers and users to sort out the copyright implications of using it.

Articles: Digital Photography Review (dpreview.com)

 
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Photographer sues Microsoft for $2.25M, alleges copyright infringement of 15 images

03 Jun

Microsoft has been sued over alleged copyright infringement by photographer Matilde Gattoni, who has accused the corporation of using several of her images for an MSN article without permission or a proper license. The lawsuit was filed on May 19 in the Southern District of New York and seeks damages potentially amounting to $ 150,000 per image allegedly infringed upon.

Gattoni’s images are featured in an article titled ‘These are the women leading China’s wine revolution,’ which appears on the Wall Street Journal’s website and on the MSN website, which includes a Washington Post header on the article, indicating that it is a syndicated work. Before both of those posts, the article with the same images was published in December 2018 by SCMP.

The new lawsuit is directed only at Microsoft, which is accused of using the images from that article on its MSN news website without permission or license.

The lawsuit alleges, in part:

Microsoft is not, and has never been, licensed or otherwise authorized to reproduce, publically display, distribute and/or use the Photographs … Upon information and belief, the foregoing acts of infringement by Microsoft have been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s rights.

Gattoni’s images are registered with the U.S. Copyright Office. The lawsuit seeks either actual damages, among other things, or statutory damages up to $ 150,000 per copyrighted image allegedly infringed upon. The MSN article contains a total of 15 of Gattoni’s images, which, assuming Microsoft paid $ 150,000 for each, would amount to $ 2,250,000.

The legal document is, at this point in time, quite short with no mention of the Washington Post, the header for which is featured on the MSN article. It’s unclear what license the WaPo received for the article and images, how that license may impact MSN’s use of the content and, ultimately, the viability of the copyright lawsuit.

This isn’t Gattoni’s first copyright lawsuit. As we detailed in 2017, Gattoni had sued the clothing retailer Tibi over its alleged use of her photos without permission or license. In that case, the lawsuit had accused Tibi of cropping one of Gattoni’s Instagram images, which had been published alongside a copyright notice; its copyright registration was still pending in the US at that time, however.

In that case, the judge had ruled that while Gattoni could go after Tibi with a DMCA claim, the copyright infringement claim couldn’t proceed because the copyright registration was still pending at the time. Photographers can register their works with the U.S. Copyright Office through its online eCO registration portal.

Microsoft is the latest in a long line of big companies and news publications sued over alleged copyright infringement. In April, for example, a New York court ruled that digital media website Mashable didn’t infringe upon an image copyright by embedding an image a photographer had uploaded to Instagram after a long squabble over the matter. Likewise, photographer Carol M. Highsmith sued Getty Images for $ 1 billion in July 2016 over its alleged infringement of more than 18,000 of her images.

Articles: Digital Photography Review (dpreview.com)

 
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New York court rules website didn’t violate image copyright by embedding Instagram post

16 Apr

A Manhattan federal court has dismissed professional photojournalist Stephanie Sinclair’s copyright claim against digital media website Mashable, ruling that it did not violate her copyright by embedding one of her Instagram posts on its website. The legal issue arose in 2016 when Mashable published an article on female photographers whose work includes the topic of social justice, putting Sinclair at #9 on its list.

According to court documents, Mashable contacted Sinclair in March 2016 and offered to pay $ 50 to license one of her images for use in its article on female photographers. Sinclair declined the offer, so Mashable instead embedded an Instagram post of the image that Sinclair had published on her public Instagram account.

Fast-forward to January 2018 when, according to the court documents, Sinclair contacted Mashable and demanded that they remove the embedded post from the article on the grounds of copyright infringement. Mashable refused to remove the Instagram post and 10 days later, Sinclair filed a copyright lawsuit against the publication and its parent company Ziff Davis, LLC.

The lawsuit raised questions over Instagram’s Terms of Service, its right to grant sublicenses for images uploaded to its platform, and whether sharing and embedding public social media posts without permission or a direct image license constitutes copyright infringement.

Instagram states in its Terms of Use that while it does not claim ownership of a user’s images, they grant the company a license to use it when they upload the content to the platform. Instagram says that when a user uploads images to its website…

‘…you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.’

Mashable argued that based on that Terms of Use, it had a valid sublicense from Instagram that allowed it to embed the image post on its website. The defendant argued, among other things, that:

‘…because Plaintiff uploaded the Photograph to Instagram and designated it as “public,” she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.’

Sinclair’s legal claim countered this, according to court documents, which cite multiple arguments, including a claim that because Mashable didn’t get a direct image license from the photographer, it shouldn’t have been able to get a sublicense for the content from Instagram. The court disagreed with that argument, however, with U.S. District Court Judge Kimba Wood noting:

‘Plaintiff’s right to grant a license directly to Mashable, and Instagram’s right, as Plaintiff’s licensee, to grant a sublicense to Mashable, operate independently. Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff—just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to “private” mode.’

As well, Sinclair had argued that it is ‘unfair’ that a platform like Instagram is able to force professional photographers to choose between keeping their accounts private or allowing the company to sublicense their publicly shared content because it is ‘one of the most popular public photo-sharing platforms in the world.’

Judge Wood acknowledges the nature of this issue, but ultimately states that:

‘Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.’

The copyright claim was ultimately dismissed, a conclusion that contrasts the ruling from a New York court in early 2018 on the case of an embedded tweet that featured an image of athlete Tom Brady.

In that case, the court found that embedding such tweets may constitute copyright infringement and the fact they were uploaded to a third-party server like Twitter didn’t change that. The basis of the latest ruling is different, however, focusing on the terms of use the photographer agreed to rather than the ‘server test’ used in the 2018 copyrighted tweet case.

Both of these legal claims follow a different legal case from 2007 in which the precedent was set for how the Internet of today operates: that a person or company who embeds content hosted by a third-party source like Facebook or Twitter are not in violation of copyright, but rather that the hosting company itself is liable.

DPReview contacted Mickey Osterreicher, NPPA’s general counsel, for comment. He had the following to say about this New York ruling:

‘I have not had an opportunity to review the court’s opinion and order in this case so I do not feel it appropriate for me to comment. I will repeat something that NPPA has stressed for many years – photographers read and understand the terms of service or the terms of use on each and every social media platform before agreeing to them or posting on those sites. They also must continue to vigilantly monitor those terms as they are frequently changed and updated.’

Articles: Digital Photography Review (dpreview.com)

 
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How to Copyright Your Photography and Why You Really Should

18 Oct

The post How to Copyright Your Photography and Why You Really Should appeared first on Digital Photography School. It was authored by Darina Kopcok.

How-to-Copyright-Your-Photography

 

In today’s digital world, it has become crucial to register copyright for your images. Theft online is rampant, so you need to protect yourself and your work. Read on to find out why you should and how to copyright your photography.

How-to-Copyright-Your-Photography

What is Copyright?

Copyright protects the legal rights of the owner of intellectual property or work of art. In simple terms, copyright is the right to copy. As photographers, this means that only we as the original creators of our images, and anyone we give authorization to, are the only ones with the exclusive right to publish or otherwise reproduce our images.

The moment you click the shutter on your camera, you own the copyright to your images. No matter your level of skill, or whether you’re an amateur or a pro, your images are protected by law.

Keep in mind that copyright laws do vary from country to country, therefore the information in this article is general. It’s also meant for educational purposes since I’m not a lawyer and not qualified to give legal advice.

The lack of knowledge or education about copyright has caused a lot of problems in the photographic industry. Many new or emerging photographers are not educating their clients on copyright and usage, so clients assume they own their images and can do with them whatever they wish. To compound this problem, lawyers often advise their clients to always obtain copyright from the photographer, but in most cases, this is completely unnecessary, unless the client wants to sell the images and make a profit from them.

All of the big companies like Coca-Cola and McDonald’s never ask for copyright. They don’t need it. They license images for a specific use and time frame.

Any discussion about buying out copyright should include very large numbers.

How-to-Copyright-Your-Photography

What is published versus unpublished work?

There are two types of work that fall under Copyright: published and unpublished.

Digital media falls under copyright protection, but it has not been updated to be clear. Published works, in this case, are different from a patent, which covers inventions or discoveries, or trademarks, which covers designs, symbols, logos, and words.

To qualify as published, the work must be distributed to the public in some form, whether digital or print. There has to be some form of copies or multiples. A website or blog doesn’t qualify as published because your photos are not getting distributed. Social media is also considered unpublished. It is not distributed to the public in copies the way stock photos are, for example.

How to Copyright Your Photography and Why You Really Should

Why you should register your copyright

It’s an unfortunate by-product of living in today’s world that your images will get stolen. If you post any of your photography online, chances are that some will get stolen at one time or another. Some of this theft is due to the ignorance of the public, while others knowingly take your images without your permission, without paying for usage licensing.

Unfortunately, a lot of large companies do this, and there have been numerous high profile lawsuits where photographers have won hundreds of thousands of dollars for copyright infringement.

Filing copyright on your photos will protect you in the case you need to go to court to sue for statutory damages and lawyers fees. In a copyright infringement suit, a judge or jury can award you statutory damages as defined by the Copyright Act – thousands, if not tens of thousands of dollars, if you can prove that your image was stolen with willful intent.

Photography is becoming more commoditized, but there is still immense value in it because it allows companies to make a profit by advertising their products. If someone is trying to gain financially by selling a product with stolen images, that is a big problem. Think of it this way: it’s not just the images that are stolen; it’s also the profit of the photographer.

When you don’t charge for usage, or go after those who are using your images unlawfully, that’s money out of your pocket. And what’s worse, you may actually be struggling to pay your overhead and make a profit in the first place.

How-to-Copyright-Your-Photography

How to file for Copyright

Filing for copyright can be a bit tedious, but it can be done online fairly simply. For example, as I’m based in Canada, I Googled “Canadian Copyright Office” and easily found the website for the intellectual property office. I have registered photographs and even a photography eBook I sell on my blog online very easily.

Some countries have agreements with the U.S. to enforce U.S. copyright laws. It’s often useful to register your copyright in the U.S. even if you’re not a U.S. citizen, to obtain the statutory benefits of registration in the United States.

Ideally, you should copyright any images before they are published, but you can copyright them at any time. You can even copyright them after you’ve discovered an unlawful use of one of your images. It will just be a bit more complicated from a documentation standpoint.

The cost of registering copyright varies from country to country. In Canada, it’s $ 50, and in the U.S., it’s currently $ 55 for a group of images. You can copyright your images as a group, to a maximum of 750.

For more information about registering photographs with the U.S. Copyright Office, go here.

The portal is fairly simple to use, but this resource will give you more information. You have to upload a .jpeg for each image you’re copyrighting, and submit a title list in an Excel spreadsheet. The preference is that these items be submitted in a .zip file.

Research the copyright laws in your country. Although in many countries like Canada and the U.S. copyright is immediate upon creation of a work, you still have to register copyright before you can sue.

Conversely, in Australia, there is no formal copyright registration system. The law ensures that certain forms of expression are automatically covered under the Copyright Act.

How-to-Copyright-Your-Photography

To sum up

Copyright is something that a lot of people don’t understand – even clients. It’s important to educate yourself and those you work with on the ins-and-outs of copyright. As I mentioned, laws vary from country to country, but you can find a lot of this information online. It’s crucial to protect yourself and your work.

Do you have any other tips on how to copyright your photography? Have you had your images stolen? If so, share with us in the comments below.

The post How to Copyright Your Photography and Why You Really Should appeared first on Digital Photography School. It was authored by Darina Kopcok.


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US Supreme Court rejects request to hear ‘Jumpman’ copyright suit against Nike

27 Mar

The U.S. Supreme Court will not hear Jacobus ‘Co’ Willem Rentmeester’s copyright case involving the Nike ‘Jumpman’ logo, the high court has announced. The reason for the court’s decision remains unclear, but it leaves in place the 2018 ruling by an appeals court that found Nike hadn’t infringed upon Rentmeester’s image copyright with its iconic ‘Jumpman’ logo.

The legal matter began in 2015 when Rentmeester filed a copyright lawsuit against Nike over its ‘Jumpman’ logo featuring a silhouette of athlete Michael Jordan. The logo was based on an image of Michael Jordan produced by Nike in 1985, which was itself allegedly based on an image Rentmeester took of Jordan as a freelancer for Time Magazine. The two images, while expressing the same idea, are different.

Nike had originally paid Rentmeester $ 150 to license two of his 35mm transparencies featuring Jordan. Following that, the company paid Rentmeester $ 15,000 for a two-year license to use its own image based on the one Rentmeester took after he threatened litigation. In 1987, Nike then created the Jumpan silhouette logo based on its Michael Jordan image and it has used that logo in the years since.

Rentmeester’s January 2015 copyright infringement lawsuit was rejected by a federal court in Portland, Oregon, in June 2015. According to that court, Nike’s image presented a different expression of the idea behind the two images and copyright law only protects the expression of ideas.

The legal spat went to an appeals court, which ruled in 2018 that Nike’s image didn’t infringe upon the protected expression in Rentmeester’s image. The appeals court stated that the subject’s pose cannot be copyrighted, which would prevent other photographers from taking images of the person striking the same pose. Elements like shutter speed, camera angle, and timing all contribute to the expression of the idea in Rentmeester’s image, the court said.

Articles: Digital Photography Review (dpreview.com)

 
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Judge rules RNC didn’t violate photographer’s copyright with unauthorized image use

20 Mar
This is Erika Peterman’s photograph the RNC took from Rob Quist’s Facebook page and altered to use on a derogatory mailer. Used with permission.

In May 2017, photographer Erika Peterman filed a copyright infringement lawsuit against the Republican National Committee (RNC), alleging the organization had used one of her images for a political mailer without permission. The image features Rob Quist, a Democratic congressional candidate who had run against GOP candidate Greg Gianforte in Montana.

Peterman’s image, which was licensed to the Quist campaign, was used by the RNC without permission as part of a mailer that mocked the politician. In response to the lawsuit, the RNC claimed its mailer represented fair use of the copyrighted image, and Montana judge Dana L. Christensen has sided with that argument.

A photo of the mailer that was sent out to Montana residents by the RNC that used Erika Peterman’s photograph without permission. Used (here) with permission.

According to Lexology, the court dismissed Peterman’s case, finding that the RNC had ‘transformed’ the photo adequately enough to claim fair use. Only small visual alterations were made to the image, such as cropping it to fit the mailer, and those edits alone weren’t sufficient for it to be considered transformative.

However, the court found that the image’s use on a mailer that criticized Quist had transformed the work, stating that the image’s inclusion as an element in this critical media qualified as fair use. The court said:

The mailer uses Quist’s musicianship to criticize his candidacy, subverting the purpose and function of the Work. With the addition of the treble clefs and text throughout, the mailer attempts to create an association between Quist’s musical background and liberal political views… In this context, the image takes on a new meaning.

In addition, the court claimed that the RNC’s use hadn’t impacted Peterman’s ability to profit from the image and that Peterman’s had published the image to Twitter and Facebook. By publishing the image on social media, the court stated, ‘it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts, [etc.] by other pro-Quist social media users.’

Ultimately, the federal judge found the RNC’s unauthorized use of the copyrighted image to be ‘moderately transformative and wholly noncommercial [sic],’ stating that ‘the court determines that the undisputed facts establish that the RNC is entitled to judgement as a matter of law.”

DPReview spoke with Peterman via email and she shared the following response regarding the ruling:

I think equating political criticism to transformative use is pretty far-reaching. This decision gives any political party (or PAC) the freedom to use artistic or creative photos of political candidates for political criticism under the auspices of fair use. This impacts me greatly because I do a lot of political photography and work hard to create compelling, creative photos for the candidates I work with. And, like any photographer or artist, I also want to share my work. However, if I know that my photos can be used for “political criticism” without my permission, it creates a major dilemma for me.
And no, I’m not appealing. Not because I don’t think the decision is wrong, because I do. However, even if my decision were reversed and remanded back to the district court for a trial on whether the RNC’s use of my photo was “transformative”, I would again be in front of the same judge and the outcome would probably be the same. Additionally, I would most likely have to pay the RNC’s costs and possibly their attorney fees. That’s thousands and potentially hundreds of thousands of dollars I don’t have.
Last, the judge’s comments about my sharing the photo on Twitter are incorrect. I posted a different photo of Rob Quist on Twitter, but not the one that was the subject of the lawsuit.

DPReview has contact both the RNC and Peterman for comment. this article will be updated accordingly when and if a response is given.

Update (March 19, 2019): This article has been updated with a quote from Erika Peterman

Articles: Digital Photography Review (dpreview.com)

 
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News links on Google may lose thumbnail photos under EU Copyright Directive

22 Jan

Google has given the public a preview of what Internet news results may look like if EU Copyright Directive Article 11 passes. Under this directive, news aggregators like Google and Bing would be required to pay non-waivable licensing fees in order to display image thumbnails and small text snippets from news articles.

The European Parliament backed the controversial copyright directive in September 2018 following the rejection of an earlier version in July 2018. Under the directive, the EU seeks to make certain companies liable for infringement of copyrighted content uploaded onto their online platforms (Article 13), and to require news aggregators to pay for displaying anything more than a link to a news source (Article 11).

The directive has proven divisive. Though proponents argue that the law could help protect copyright holders and traditional publishers, critics have expressed concerns over the directive’s potential effects on small publishers and the quality of search engine news aggregation results.

In its most recent update on the matter, Google gave SearchEngineLand access to an experiment showing what news search results may look like if Article 11 passes — devoid of image thumbnails, article titles, and text previews.

The image follows a blog post published by Google News Vice President Richard Gingras in December, who warned that under Article 11:

… search engines, news aggregators, apps, and platforms would have to put commercial licences in place, and make decisions about which content to include on the basis of those licensing agreements and which to leave out.

Effectively, companies like Google will be put in the position of picking winners and losers. Online services, some of which generate no revenue (for instance, Google News) would have to make choices about which publishers they’d do deals with. Presently, more than 80,000 news publishers around the world can show up in Google News, but Article 11 would sharply reduce that number.

Though the licensing fees paid by Google and similar companies under Article 11 could potentially benefit content creators, that assumes the companies would be willing to pay the fees rather than alter their products.

In late 2014, Google announced that it was closing down its Google News product in Spain after the country passed legislation that would have required it to pay publishers for displaying a preview of news articles. Google had called the requirement ‘unsustainable,’ stating that it doesn’t display ads on Google News and does not make revenue from that product.

In 2015, following the loss of Google News, an analysis by NERA Consulting found that publishers in the country experienced an average traffic drop of 6%, with small publishers suffering the most at 14%. German publishers experienced similar issues in 2014.

Articles: Digital Photography Review (dpreview.com)

 
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Controversial copyright ruling based on ‘faulty understanding’ but shouldn’t set precedent

06 Jul

A copyright ruling against a photographer whose work was re-used has been criticized as a “very poor decision,” based on “a faulty understanding of the fair use doctrine,” by copyright lawyer Bert Krages.

The widely-reported ‘Brammer v. Violent Hues LLC’ case in the Eastern District of Virginia appeared to accept that the use of a crop of a photograph without permission as fair use. However, while Krages questioned the decision, he also stressed that “the decision does not serve as precedent in other cases,” though he thinks “it’s likely that other defendents in copyright cases will cite to the case in the hopes of getting a favorable decision.”

A faulty understanding of the fair use doctrine

The legal matter began in 2017 after photographer Russell Brammer filed a complaint against Violent Hues Productions, LLC, for using one of his images on its website without first receiving permission. The image had been taken in 2011 and was uploaded to Flickr with an “All Rights Reserved” copyright notice.

Violent Hues removed the image upon being contacted by Brammer, but the photographer sued, both for copyright infringement and for removing copyright information from the image. The court dismissed the copyright removal claim but then made a controversial ruling that Violent Hues’ use was covered by the ‘fair use’ exemption from copyright protection.

‘Fair use’ in US copyright law includes the consideration of four basic tests:

  • The purpose and character of the use, including whether such use is of a commercial nature. . .
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work.

The court decision works through each of these tests but Attorney at Law Krages said “The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served.“

In particular, he expressed surprise at the court’s assessment of the character of the usage. The ruling states that Brammer’s work was ‘promotional and expressive,’ whereas Violent Hues’ was ‘informational,’ and that the usage was, therefore ‘transformative.’

The downloading of an image off of a website to use on another website is hardly a new or unexpected use.

“The District Court seems to have failed to recognize that a finding of transformative use requires that the source work has been used in a completely new or unexpected way,” he says. In particular, he questioned the case cited in the ruling: “Although the court cites to a Fourth Circuit decision that held that the use of papers written by high school students in a database intended to detect plagiarism was “transformative” because the purpose was different, In this case, the downloading of an image off of a website to use on another website is hardly a new or unexpected use.”

The ruling goes on to suggest the nature of the copyrighted work was a factual representation of the world, even though it contained creative elements, and therefore decided in favor of fair use on the second test. It dismissed the third test by saying that Violent Hues had cropped the image so that only the amount “necessary to convey the photo’s factual content” was used. It then concluded that Brammer had managed to sell the image after Violent Hues had used it, and hence the use hadn’t undermined the work’s value.

In my opinion, this was nothing more than an unfair misappropriation of an artist’s talents

Krages disagrees: “The four fair use factors are neither exclusive nor are they to be given equal weight. The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served. Violent Hues purpose for using the image was to make its website look better, and the usage did nothing to promote public interests such as commentary, news reporting, and scholarship. Violent Hues did not use the image to comment on the image as art, to report that someone had made an interesting image, or in connection with a scholarly work on photography. The image obviously had value or Violent Hues would not have wanted to use it. In my opinion, this was nothing more than an unfair misappropriation of an artist’s talents.”

Ultimately, though, Krages has reassuring words: “Although it is likely that other defendants in copyright cases will cite to the case in the hopes of getting a favorable decision, hopefully it will not encourage other parties to engage in infringement. In any case, it should not prevent similarly-situated plaintiffs in other cases from receiving just compensation.”

The court’s ruling in the case can be found in its entirety here.

A copyright ruling against a photographer whose work was re-used has been criticized as a “very poor decision,” based on “a faulty understanding of the fair use doctrine,” by copyright lawyer Bert Krages.

The widely-reported ‘Brammer v. Violent Hues LLC’ case in the Eastern District of Virginia appeared to accept that the use of a crop of a photograph without permission as fair use. However, while Krages questioned the decision, he also stressed that “the decision does not serve as precedent in other cases,” though he thinks “it’s likely that other defendents in copyright cases will cite to the case in the hopes of getting a favorable decision.”

A faulty understanding of the fair use doctrine

The legal matter began in 2017 after photographer Russell Brammer filed a complaint against Violent Hues Productions, LLC, for using one of his images on its website without first receiving permission. The image had been taken in 2011 and was uploaded to Flickr with an “All Rights Reserved” copyright notice.

Violent Hues removed the image upon being contacted by Brammer, but the photographer sued, both for copyright infringement and for removing copyright information from the image. The court dismissed the copyright removal claim but then made a controversial ruling that Violent Hues’ use was covered by the ‘fair use’ exemption from copyright protection.

‘Fair use’ in US copyright law includes the consideration of four basic tests:

  • The purpose and character of the use, including whether such use is of a commercial nature. . .
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work.

The court decision works through each of these tests but Attorney at Law Krages said “The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served.“

In particular, he expressed surprise at the court’s assessment of the character of the usage. The ruling states that Brammer’s work was ‘promotional and expressive,’ whereas Violent Hues’ was ‘informational,’ and that the usage was, therefore ‘transformative.’

The downloading of an image off of a website to use on another website is hardly a new or unexpected use.

“The District Court seems to have failed to recognize that a finding of transformative use requires that the source work has been used in a completely new or unexpected way,” he says. In particular, he questioned the case cited in the ruling: “Although the court cites to a Fourth Circuit decision that held that the use of papers written by high school students in a database intended to detect plagiarism was “transformative” because the purpose was different, In this case, the downloading of an image off of a website to use on another website is hardly a new or unexpected use.”

The ruling goes on to suggest the nature of the copyrighted work was a factual representation of the world, even though it contained creative elements, and therefore decided in favor of fair use on the second test. It dismissed the third test by saying that Violent Hues had cropped the image so that only the amount “necessary to convey the photo’s factual content” was used. It then concluded that Brammer had managed to sell the image after Violent Hues had used it, and hence the use hadn’t undermined the work’s value.

In my opinion, this was nothing more than an unfair misappropriation of an artist’s talents

Krages disagrees: “The four fair use factors are neither exclusive nor are they to be given equal weight. The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served. Violent Hues purpose for using the image was to make its website look better, and the usage did nothing to promote public interests such as commentary, news reporting, and scholarship. Violent Hues did not use the image to comment on the image as art, to report that someone had made an interesting image, or in connection with a scholarly work on photography. The image obviously had value or Violent Hues would not have wanted to use it. In my opinion, this was nothing more than an unfair misappropriation of an artist’s talents.”

Ultimately, though, Krages has reassuring words: “Although it is likely that other defendants in copyright cases will cite to the case in the hopes of getting a favorable decision, hopefully it will not encourage other parties to engage in infringement. In any case, it should not prevent similarly-situated plaintiffs in other cases from receiving just compensation.”

The court’s ruling in the case can be found in its entirety here.

Articles: Digital Photography Review (dpreview.com)

 
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Monkey copyright lawsuit finally over, court rejects PETA’s claims

25 Apr
Photo: David Slater

PETA’s “monkey selfie” copyright lawsuit has finally, finally reached a satisfying ending. On Monday, a three-judge panel with the Ninth Circuit Court of Appeals ruled that only humans can pursue copyright infringement claims, upholding a lower court’s decision after a judge refused to let PETA settle its way out of this likely conclusion.

In its ruling, the court said:

Affirming the district court’s dismissal of claims brought by a monkey, the panel held that the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs known as the “MonkeySelfies.” … The panel held that the monkey lacked statutory standing because the Copyright Act does not expressly authorize animals to file copyright infringement suits.

The ruling follows the Ninth Circuit’s decision earlier this month to reject PETA’s settlement dismissal request.

PETA had argued that the macaque named Naruto, not camera owner David Slater, owned the copyright because it took the image itself. Courts had expressed skepticism about PETA’s argument, also questioning whether the organization had a suitable relationship with the monkey to sue on its behalf.

In September 2017, PETA announced a settlement with Slater; it asked the Ninth Circuit Court to dismiss the case and vacate the lower court’s ruling. However, in a decision earlier this month, the Ninth Circuit indicated that it had rejected the request because it seemed to be PETA’s way to avoid establishing a precedent. The court had also stated:

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

The ruling doesn’t impact PETA’s settlement with Slater, which requires the photographer to donate 25% of future revenue from the image to charities that protect crested macaques in Indonesia.

Articles: Digital Photography Review (dpreview.com)

 
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Judge rules that embedding a photo tweet is still copyright infringement

17 Feb

In a court case that could fundamentally change what constitutes copyright infringement online, a New York district judge has ruled that embedding a tweet that contains a copyright protected photo does, in fact, constitute a copyright violation. If the ruling is upheld, its impact across the internet is hard to understate.

The case involves a photographer, Justin Goldman, who sued several major publications including Time, Vox, Breitbart, and others, when they embedded someone else’s tweet of his copyright-protected photo of NFL star Tom Brady. Judge Katherine B. Forrest is ruling in favor of Goldman, writing:

…when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.

As the Electronic Frontier Foundation (EFF) points out, this ruling rejects a decade-old legal precedent set by the Ninth Circuit Court in a 2007 ruling called “Perfect 10 v. Amazon.” That case ruled that the company hosting the content—Twitter, Facebook, YouTube, etc.—was liable, and absolved the company or publication or person who actually embeds the content. This, in essence, is how the internet has worked ever since.

Some sites, like YouTube, give creators the option to limit embedding so that only sites they specify (or nobody at all) can embed the content on their own platform, but others like Instagram and Twitter offer no such control. If your account is public, and you share a copyright-protected photo on it that goes viral, you can expect it to crop up on any number of outside websites, publications, and blogs with nary a permission request.

Of course, if it’s your own share, you could always take down the original Tweet or Instagram post or shift your account to private, breaking all of those embeds all at once. You (or the original poster) could also change what the post says or even swap out the file that shows up under that embed. But irrespective of those things, up until now, you had no legal case against the people or publications embedding your photo, since they have no control over what the hosting server will provide with that embed code—this is called the “server” test.

According to this ruling, embedding the DPReview tweet above without permission from the original creator of the GIF constitutes copyright infringement.

The server test is what Judge Forrest ultimately rejected, and if the ruling is upheld, it could apply to more than just embedding a tweet. As the EFF explains, the wording is broad enough that “the logic of the ruling applies to all in-line linking,” which could “threaten millions of ordinary Internet users with infringement liability.”

Appeals will no doubt be filed, and a closer look at the ruling and the standard practice of embedding on the internet may very well lead to its being overturned. But if it’s not, expect it to be open season for social media copyright infringement cases.

If you’d like to dive deeper, you can read the full ruling for yourself at this link.

Articles: Digital Photography Review (dpreview.com)

 
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