Congrats to our Winners and Additional Offer from Image Witness!

Congrats to our winners of the Image Witness Giveaway!

The great folks at Image Witness have an additional offer. As Photo Attorney readers seem to be really keen on protecting their content,  Image Witness is extending an additional offer to anyone that missed out.

This will be valid for the next 3 days only (the offer expires at midnight, April 12, 2014 EDT) and only for the first 50 photographers who take advantage of this offer. If you signup for any paid plan and use the promo code (PHOTOATTR14),  Image Witness will give you 2 months free coverage. Your 2nd and 3rd months are free. This is more than enough time to get setup, get great results and make sure Image Witness delivers for you.
Thanks, Image Witness!
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Image Witness Giveaway!

Two Wolves Interact - Copyright Carolyn E. Wright

The great folks at Image Witness have an offer for Photo Attorney blog readers to help them manage where their content is being used online.

Image Witness is an image tracking and protection platform that is custom built for photographers and agencies. Image Witness provides the foundation of a good image protection strategy. Watermarking and other options are useful in attempting to prevent infringement but you still don’t know if you have a problem until you look online. Trying to manually determine where your entire image collection is posted online is an impossible challenge. Yet Image Witness provides an an easy, time-efficient process that creates opportunities to manage the use of your licensed images and also to discover infringements when they happen.

Image Witness is generously giving away one of its largest plans to three lucky winners. The plan provides coverage for up to 4000 of your images for 6 months. Image Witness will help you get setup and has strategies to fit the program into your workflow so that the protection of your images becomes a seamless operation.

Be one of the first three people to send an email to photoattorneyprize@imagewitness.com and you will win!  Good luck to all.  Thanks, Image Witness!

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Copyright Office Extends Period of Public Comment in Notice of Inquiry Regarding Orphan Works and Mass Digitization

Couple Walk - Copyright Carolyn E. Wright

The U.S. Copyright Office is extending the deadline for public comments that address topics listed in the Office’s February 10, 2014, Notice of Inquiry and that respond to any issues raised during the public roundtables held in Washington, D.C., on March 10–11, 2014. Comments are now due by 5:00 p.m. eastern time on May 21, 2014. For more information, including the comment submission form, please see www.copyright.gov/orphan/.

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Copyright Office Posts Form to Request Participation in May 5, 2014, “Making Available” Roundtable

Bobcat silhouette - Copyright Carolyn E. Wright

The U.S. Copyright Office is conducting a May 5, 2014, public roundtable for its “making available” study. To request to participate in a roundtable session as a speaker/participant, please submit the form available at www.copyright.gov/docs/making_available/public-roundtable/participate-request.htmlForms to request participation must be submitted no later than 5:00 p.m. eastern daylight time on April 11, 2014. The Office requests that each participating entity designate only one individual as its representative on a particular roundtable session, although different individuals may serve in different sessions. Selected participants will be notified directly. An agenda for the roundtable, including selected participants, will be posted on the Office’s website at www.copyright/gov/docs/making_available on or about April 28, 2014. Seating for members of the public to observe the roundtable will be available on a first-come, first-served basis.

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More Than An Attorney . . . Making Dreams Come True


The attorneys with the Law Office of Carolyn E. Wright, LLC, a/k/a the “Photo Attorney,” are passionate about photography, either as a photographer or art lover. Attorney Jon Diaz is no exception.

When Jon is not fighting for photographer’s rights, he’s fighting childhood cancer one photograph at a time. The Deseret News has covered his wonderful project about how he is making a difference. Learn more about his project on his Facebook page, in the video shown above, his photography webpage at www.jmdiazphotography.com, and on instagram: @anythingcanbephoto.

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Court Awards Maximum Statutory Damages for Copyright Infringement

Black Cats - Copyright Carolyn E. Wright

Courts are not letting infringers run or hide these days. Such was the case in Washington last week.

Getty sued a Florida couple for using 12 of Getty’s photographs of cats and dogs for their home-based website design company. The defendants design websites for veterinarians and veterinary clinics, doing business as “Vet Web Designers.”

Because the defendants failed to defend the case after a point, the court entered a default judgment. As liability was now established, the court moved to the damages stage. The court awarded $21,433.00 in actual damages for defendants’ infringing ten images that were not timely registered. After an evidentiary hearing, the court also awarded Getty $300,000.00 for the defendants’ willful infringement of two images. The court found:

The [defendants] infringed Getty’s copyrights with the knowledge that they were doing so, and saved expenses and generated profit through their infringing use. The [defendants’] actions also cost Getty revenue it otherwise would have received had the two rights-managed images been properly licensed to maintain their exclusivity. Further, an award of maximum statutory damages in this case will serve to protect the copyright system from flagrant violation of the law.

The court looked at four factors to determine the appropriate amount of statutory damages: (1) the infringer’s profits and expenses saved because of the infringement; (2) the plaintiff’s lost revenues; (3) the strong public interest in ensuring the integrity of copyright laws; and (4) whether the infringer acted willfully. While the first two factors did not support an award for maximum damages, the last two did. Specifically, the court explained:

The [defendants] similarly gained commercial advantage by using Getty’s copyrighted works on their websites, engaged in deception by using fictitious names, and failed to participate beyond limited discovery early in the case.

[In addition], the defendants failed to end their infringement despite repeated notifications of their infringing use and opportunities to settle the matter swiftly with Getty. . . . Getty first informed the defendants of their infringing activity in 2007, but they continued to infringe images licensed exclusively to Getty, even after the lawsuit was instituted in 2013. 

The court also issued a permanent injunction to prevent the defendants from infringing Getty’s copyrights.

The Court’s Order is full of reasons why people shouldn’t infringe and should take copyrights seriously. With a few more of these cases, maybe infringers will learn that a license is the easy way.

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Ninth Circuit Court Finds Copyright Registrations Valid

Boats and Fireworks

In a nice turn of events for photographers, the Ninth Circuit Court of Appeals ruled today that Alaska Stock’s copyright registrations are valid, in stark contrast to what happened in Muench Photography, Inc. v. Houghton Mifflin Harcourt Publishing Co., et al. There, the U.S. District Court for the Southern District of NY ruled that the copyright registrations that Corbis made for its photographers’ images were invalid.  In sum, the court held that because Corbis’ registrations did not identify the “authors” of the photographs as required by 17 USC 409 (2), “the registrations at issue . . . cover only the database as a whole (the compilation) but do not cover [Muench Photography's] individual contributions.”  Order at 22. But the S.D.N.Y. court’s ruling is not binding on other district court’s rulings.

A different case on the other side of the United States. . .

Alaska Stock, a stock photography agency, registered large numbers of photographs at a time, listing only some of
the authors and not listing titles for each photograph, similar to how Corbis registered its photographs. Alaska Stock then licensed some of the photographs it had registered to Houghton Mifflin Harcourt Publishing Company, for fees based on the number of publications. Houghton Mifflin and its printer, R.R. Donnelly & Sons, greatly exceeded the number of publications Houghton Mifflin had paid for, so Alaska Stock sued for injunctive relief, actual and statutory damages, attorneys’ fees, and costs.

Alaska Stock owned the copyrights to all the photographs at issue, pursuant to assignment by the individual photographers. It registered the copyrights by registering CD catalogs and databases of the stock photos, entitled “Alaska Stock CD catalog 4” and so forth, which contained images of each of the photographs. For “name of author” on its application, it listed only three of many, in the form “1) Jeff Schultz 2) Chris Arend 3) Johnny Johnson & 103 others.”

This form of registration was prescribed by the Register of Copyrights and was consistent with Copyright Office
procedure for thirty years. The District Court  for the District of Alaska nevertheless dismissed Alaska Stock’s infringement claims on the ground that the registrations were defective, because Alaska Stock had not provided the names of each of the photographers and the titles of each of the photographs in its registrations. The theory of the dismissal was that the registrations succeeded only in registering the catalogs themselves, not the individual photographs within them, because Alaska Stock failed to list authors and titles. The district court held that the statute unambiguously required titles and authors, so the administrative practice to the contrary and a statutory savings clause for immaterially inaccurate information could not save the claims.

But then came the Ninth Circuit . . .

So Alaska Stock appealed the Alaska District Court’s Order to the Ninth Circuit Court of Appeals.  You can listen to the recording of the argument before the Ninth Circuit. And, today, the Ninth Circuit reversed the lower court’s decision and found that Alaska Stock’s registrations are valid! In sum, the court stated:

Thus, we conclude that Alaska Stock successfully registered the copyright both to its collections and to the individual images contained therein.

Of note, the Fourth Circuit recently confronted the same issue in Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., and ruled as the Ninth Circuit did here.

And the final words of the Ninth Circuit are especially comforting for photographers:

We are affecting the fortunes of people, many of whose fortunes are small. The stock agencies through their trade association worked out what they should do to register images with the Register of Copyrights, the Copyright Office established a clear procedure and the stock agencies followed it. The Copyright Office has maintained its procedure for three decades, spanning multiple
administrations. The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the statute. Their reliance upon a reasonable and longstanding administrative interpretation should be honored. Denying the fruits of
reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust. 

It’s wonderful for photographers to get this justice!

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Copyright Office Announces Opening of Comment Period for Additional Comments on Orphan Works and Mass Digitization

Round Top Mountain-Copyright Carolyn E. Wright

The United States Copyright Office is now accepting public comments that address topics listed in the Office’s February 10, 2014, Notice of Inquiry and that respond to any issues raised during the public roundtables held in Washington, D.C., on March 10-11, 2014.

The comment period will close on April 14, 2014. For more information, including the comment submission form, please see http://www.copyright.gov/orphan/.

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Nevada State Parks Demands Fees from “Commercial” Photographers

Nevada State Parks will hold a public hearing on March 31, 2014, for amended regulations relating to entrance fees for photographers with commercial photography permits. 

Nevada State Parks

The good news is there will be no fee increase associated with the amendments. The bad news is that, while reviewing the proposed changes, we learned that Nevada defines commercial photography as “photography engaged in for financial gain, including, without limitation, the sale of a photographic image as a product or for use in advertising, motion pictures, television productions or portfolios and the archiving of an image by a person who uses photographic skills, equipment or resources to provide a photographic product for sale.” It’s disappointing that Nevada defines commercial photography by the purpose of the photography rather than by the activities that may affect the park and visitors, as is done with the National Park Service.

But it gets worse. Currently, the website for the Nevada Administrative Code (“NAC”) 407.050 states:

 4.  For each day or partial day that a person engages in commercial photography in a park, the Division will charge and collect the following fee according to the total number of vehicles or the total number of persons, whichever results in a higher fee:

     Number of Vehicles
     or Persons                                                                                                                Fee Per Day
 
     2 to 5 vehicles or 6 to 25 persons……………………………………………………………………….. $200
     6 to 10 vehicles or 26 to 50 persons……………………………………………………………………… 350
     11 to 15 vehicles or 51 to 75 persons……………………….,………………………………………….. 500
     16 to 20 vehicles or 76 to 100 persons………………………………………………………………….. 800
     21 to 50 vehicles or 101 to 400 persons………………………………………………………………. 2,100
     More than 50 vehicles or more than 400 persons……………………………………………………. 3,500

. . .

6.  The Division will not charge a fee pursuant to this section for:

(a) Commercial photography engaged in by one to five persons in a single vehicle . . . .

So when I took this photo at Sand Harbor State Park in 2009, I didn’t need a permit because I was shooting alone.
Lake Tahoe Shore - Copyright Carolyn E. Wright

2013 Revisions

But the NAC website is not up to date.  Last year, the NAC made changes to the code that have not been posted online but are  shown in this document available from the Department of Conservation and Natural Resources. And the changes aren’t good.

  1. The definition of commercial photography now includes portraits.
  2. The fees have been divided into classes. Class A is now: 1 to 3 vehicles or 2 to 15 persons and the fee is $50 a day.
  3. New provisions have been added that state:

7.  A person may request an annual class A commercial photography permit. Upon approval of such a request, the Division will charge and collect from the person a fee of $500. An annual class A commercial photography permit will be recognized at all parks for 12 months after the date of issuance. A person to whom is issued an annual class A commercial photography permit shall:

(a) Pay the entrance fee required pursuant to NAC 407.055 each time he or she enters a park to engage in commercial photography; 

(b) Maintain adequate insurance coverage for the entire period he or she holds such a permit and provide proof to the Division of such coverage; and

(c) Contact in advance the office of the park that he or she intends to use to confirm the availability of the areas where the person intends to engage in commercial photography.  

8.  A park supervisor or regional manager in charge of a region in which a park is located may determine the area of the park that can be used under a commercial photography permit.

Proposed Revision for 2014

So, the only substantive proposed change for 2014 relating to photographers is that the Code will be clarified so that:

The Division will waive the entrance fee for the park (referenced in paragraph 7 (a) above) upon payment of the fee for an Annual Class A photography permit. This permit does not authorize clients of Annual Class A photography permit holders to enter a park without paying the entry fee.

Which is, at least, a little good news.

Engagement Photo - Copyright Carolyn E. Wright

Therefore, a photographer is supposed to pay $50/day or $500/year to take photos in Nevada State Parks, which includes Sand Harbor Park in Lake Tahoe and Valley of Fire State Park near Las Vegas. But the photographer’s activity and impact on the park and other visitors likely is no different than that of a hobbyist photographer. Taking family vacation photos usually doesn’t affect the park or its visitors any more than taking portraits for seniors or engaged couples. Given the literal interpretation of the statute, I was not violating the law when I took my friends’ engagement photos (example shown above) last October because it was my gift to them. But if I had charged them for the shoot, as I have for other clients, then I should have paid the State Park fee.

State legislatures, please understand that photographers usually don’t use the park any differently than any one else. So we shouldn’t have to pay more than any one else.

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Copyright Office Announces Room Change for Public Roundtable Discussions on Orphan Works and Mass Digitization

Kestrel in Pine Tree - Copyright Carolyn E. Wright

The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014. The roundtables will be held in the Madison Building, Library of Congress, 101 Independence Ave. SE, Washington, D.C.

All sessions on Day 1 (March 10) will be held in the Montpelier Room of the Madison Building, room LM 619. Morning sessions on Day 2 (March 11) also will take place in the Montpelier Room. Afternoon sessions on Day 2 (March 11), however, will be held in the Hearing Room of the Madison Building, room LM 408.

Additionally, the Office has added an audience participation session at the end of Day 2 (March 11) from 4:00 to 5:00 pm. The Office will have a sign-up sheet available on the morning of March 11 for this final session. Audience participants who have not had an opportunity to participate on a specific panel will have the first opportunity to sign up, followed by any others.

For more information, including the full schedule for the roundtables, please see http://www.copyright.gov/orphan/.

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