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/.
In the wild, wild west, a gunslinger sometimes would point a gun at another. But before the gunslinger could shoot, the other would draw and shoot first.
Similarly, when you make a claim for copyright infringement, the alleged infringer may preempt your possible infringement lawsuit by filing a lawsuit for declaratory judgment that the use is not an infringement. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate.
This happened when Shepard Fairey did not wait to see whether the Associated Press was going to sue him for copyright infringement. Instead, Fairey filed suit against the AP asking the court for a declaratory judgment that Fairey’s use of the AP photo was a fair use. Lloyd Shugart was on the receiving end of a declaratory judgment action but won $1.3 million for his counterclaim for copyright infringement in that case. Agence France Presse (“AFP”) likewise filed a declaratory judgment lawsuit against Daniel Morel for non-infringement and license (AFP also included a claim for commercial defamation) after Morel’s attorney sent a cease and desist (“C&D”) letter. But the jury awarded Daniel Morel maximum damages for his counterclaim for copyright infringement and DMCA violations.
A photographer risks being brought into a lawsuit after sending a C&D letter because the alleged infringer can ask the court to determine whether a violation has occurred. The plaintiff/alleged infringer thus asks the court to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 USC 2201.
The pros to a declaratory judgment action is that plaintiff/alleged infringer pays the filing fee ($350) and has the burden of going forward in the lawsuit. In response, the photographer can file counterclaims for copyright infringement.The potential cons are that plaintiff/alleged infringer choses the forum (in which court to file the suit) that might be inconvenient and not the most favorable to the photographer (but the court must have jurisdiction over the photographer) and the photographer then has to defend his claim in court. While the photographer (if a sole proprietor) can represent himself, it’s usually not wise. Therefore, the photographer has to pay the attorneys’ fees and expenses.
So before you make a claim for copyright infringement against another, make sure that you’re ready to fight to the end.
The U.S. Copyright Office has published a Federal Register notice requesting written comments on how current U.S. law recognizes and protects “making available” and “communication to the public” rights for copyright holders. Specifically, the Office seeks comments on (1) how the existing bundle of exclusive rights under Title 17 covers the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented relevant international treaties providing for these rights; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area. The Office will hold a public roundtable on May 5, 2014, to discuss these topics and to provide a forum for interested parties to address the issues raised by the comments received.
The Notice of Inquiry is available at www.copyright.gov/docs/making_available/. Written comments are due on or before April 4, 2014. A form to request participation in the public roundtable will be posted at the above website on or about April 7, 2014.
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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, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.
The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.
For the complete Notice of Inquiry, which provides details about the roundtables and instructions for commenting, see the Federal Register (79 FR 7706).
Your photos are really nice. You must have a good camera. I hope to be able to get a new camera with a big lens soon so that I can take pictures like you do.
So I am going to use some of your photos on my website. I see that you have a copyright notice posted next to your photos, but I’m not going to make money off of them. I just want to make my webpages look better. Aren’t you glad that I’m helping your photos get more exposure?
Thank you for making your photos available for downloading in different sizes so easily and for not putting those pesky watermarks on them. Those marks just mar our full enjoyment of your pictures. It’s also helpful that I can email copies of your photos to my friends so that they can use them, too. And thank you for not including your name or contact information in the metadata of your photos because I don’t want others to know where I got them. You don’t need to explain that I’m not supposed to use your photos without permission, either, because I know about copyright.
And if you want money for my use of your photos, thanks anyway. I’ll find some others to use.
Your Biggest Fan,
Ima N. Fringer
Editor’s Note: Check this article and remove all confusion around the use of your photos. And Flickr users, check this important information at http://photocritic.org/flickr-exif-copyright-line-retention/
Courts do what they can to encourage parties to resolve disputes and limit litigation costs. So the Federal Courts adopted Rule 68, which provides:
(a) At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
If the plaintiff refuses the Offer of Judgment and if the judgment that the plaintiff finally obtains is not more favorable than the unaccepted offer, the plaintiff must pay the costs incurred after the offer was made. In a copyright case, in a minority of circuits, those costs can include attorneys’ fees incurred after the offer was made, even though the plaintiff is still the prevailing party in the case (17 U.S.C. § 505 says that a winning party may be awarded reasonable attorneys’ fees).
Even in those circuits that do not include attorneys’ fees, an Offer of Judgment puts pressure on the plaintiff to guess whether it will be awarded more after a jury trial. Costs can add up, even without including the defendant’s attorneys’ fees. The plaintiff risks losing the case or not being awarded more than the Offer. In every case, it is important to evaluate all your options with your attorney before deciding to accept or reject an Offer of Judgment.
In 2009, Car-Freshner Corporation sued Getty Images for licensing photos that included Car-Freshner’s trademarked trees. After the court made some preliminary rulings that weren’t favorable to Getty, Getty made a Rule 68 Offer of Judgment. Car-Freshner accepted the offer to finalize/settle the matter. Was it the right thing to do? We’ll never know for sure, but the parties then were allowed to move forward and put the lawsuit behind them.
–Thanks to Leslie Burns for adding the notes about Offers of Judgment for copyright cases!