Photographer and Stock Agency Each Awarded Six Figures in Copyright Infringement Damages

Tahoe Rainbow - Copyright Carolyn E. Wright

Check the report here: http://blog.pacaoffice.org/?p=2387

Grant Heilman was awarded a total of $127,087, which included profits and actual damages.

Check the Panoramic Images v John Wiley Judgment for $403,500.00, for which 5 of the 6 images at issue were eligible for statutory damages, 4 of those infringements were found to be willful, with the jury awarding maximum damages of $150,000 for 1 of those infringements.

Congrats!

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Determining Hypothetical License Fees When You Wouldn’t Have Licensed the Use

Tallac in Clouds - Copyright Carolyn E. Wright

Many infringers argue that they don’t owe, even at minimum, a license fee for a infringing use because the copyright owner wouldn’t have licensed the use, even if asked for permission in the first place. But that’s not correct. Instead, as the Court of Appeals for the Ninth Circuit recently held in Oracle v SAP, 12-16944, U.S. Court of Appeals for the Ninth Circuit (San Francisco):

We have never required a plaintiff in a copyright infringement case to show that it would have licensed the infringed material. We decline to impose such a requirement now. A copyright holder has the right to refuse to license its work and should not be penalized for exercising that right. See Stewart v. Abend, 495 U.S. 207, 228–29 (1990). If we were to require a copyright holder to demonstrate that it would have been willing to grant a license as a condition for recovering damages based on the fair market value of the license, the perverse result would be that some of the most assiduously protective copyright holders would be unable to recover the fair market value of their wrongfully appropriated copyrighted property.

Some would argue this is contrary to copyright goals, but the U.S. Supreme Court explained in Stewart:

“. . . [A]lthough dissemination of creative works is a goal of the Copyright Act, the Act creates a balance between the artist’s right to control the work during the term of the copyright protection and the public’s need for access to creative works. The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist’s labors. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429(1984) (the limited monopoly conferred by the Copyright Act “is intended to motivate creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired”). But nothing in the copyright statutes would [495 U.S. 207, 229]   prevent an author from hoarding all of his works during the term of the copyright. In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932).

So, if a copyright owner wouldn’t have licensed a work, what should a court award as a license fee if statutory damages aren’t available for an infringement? In Oracle, the court looked for “hypothetical-license damages.” It stated:

An award of hypothetical-license damages is appropriate “provided the amount is not based on ‘undue speculation.’” Polar Bear Prods., 384 F.3d at 709 (quoting McRoberts Software, Inc. v. Media 100, Inc., 329 F.3d 557, 566 (7th Cir. 2003)). The touchstone for hypothetical-license damages is “the range of [the license’s] reasonable market value.” Id. “The question,” therefore, “is not what the owner would have charged, but rather what is the fair market value.” Jarvis v. K2 Inc., 486 F.3d 526, 534 (9th Cir. 2007) (quoting On Davis, 246 F.3d at 166). Thus, we do not ask what the owner would like to have charged if unconstrained by reality, but what a willing owner actually would have charged after negotiation with the buyer. That is, fair market value is based on “‘an objective, not a subjective, analysis.’” Jarvis, 486 F.3d at 534 (quoting Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 2002)).

But the plaintiff/copyright owner still has a burden to proving what that hypothetical license fee might be, such as by showing past license fees charged or offered for similar uses by the copyright owner or others, expert testimony, or any other methodology and evidence that might make sense to a court for the situation. Whatever method you use, don’t let the infringer off the hook by claiming that you wouldn’t have granted a license for the infringing use.

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Forest Service Chief Issues Directive on Photography Permits

Aspens on Color - Copyright Carolyn E. Wright

On November 4, 2014, U.S. Forest Service Chief Thomas Tidwell issued a directive on commercial filming and photography permits.

He included lots of good nuggets in this directive. The most important to nature photographers is:

I also want to emphasize that commercial photography only requires a permit if the photography takes place at locations where members of the public are not allowed, or uses models, sets, or props.

Commercial film and photography permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.

This follows past guidelines and regulations from the National Parks Service and Department of the Interior. BRAVO!

While these directives could change with a change of a new Chief, and while we probably need more clarification of what comprises models, sets, or props, this is a good turn of events.

HT: Jeff Conrad

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Tax Information for Photographers

Dolphin Jump Mirror - Copyright Carolyn E. Wright

Taxes are a headache for everyone.  But photographers often have special tax issues to consider. How do you find out what applies to you? Go to your states tax website and search for “photographers.”

For example, conducting an Internet search on “Nevada state tax,” this website is one of the top options:

http://tax.nv.gov/

After entering “photographers” in the search box in the upper right hand, one of the results leads to this:

http://tax.nv.gov/uploadedFiles/taxnvgov/Content/TaxLibrary/October%202011%20Nevada%20Tax%20Notes%20Issue%20176.pdf where you can get important information.

The IRS website also offers information for photographers.

Spend some time learning about your tax obligations so that you can keep on shooting!

 

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Thank you for your service, Veterans!

Eagle Portrait in Bush - Copyright Carolyn E. Wright

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Including Dates of Publications with Your Registered Photos

 

Fly Fishing at Lake-Copyright Carolyn E. Wright

As discussed in this August 19, 2014, blog entry,  the U.S. Copyright Office has issued a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition.

In Section 1116.1 of the Compendium, entitled “Eligibility Requirements” for “Group Registration of Published Photographs” (Chapter 1100, page 56) it states:

If the applicant provides a range of publication dates in the application and identifies the specific date of publication in the deposit copies, the Office will retain the deposit material for the full term of the copyright. In all other cases, the deposit copies may be discarded within ten years after the effective date of registration.

The date of publication for each photograph may appear in the online public record if the applicant submits the claim through the electronic registration system and provides publication dates in the online application. Publication dates will not appear in the online public record if the applicant submits a paper application, although they will appear in the certificate of registration if the applicant provides that information on Form GR/PPh/CON

This is another good reason to include the dates of publication with photos that you register.

HT: Leslie Burns

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Do You Need a Permit to Photograph in Wilderness Areas?

Wild Stallion Fight - © 2014 Carolyn E. Wright (Taken on BLM Land)

Wild Stallion Fight – © 2014 Carolyn E. Wright (Taken on BLM Land)

This is a guest blog entry by Photographer Jeff Conrad (check his great Sun/Moon Calculator and article on Depth of Field), who has followed the legislation on permits to photograph on public lands for years, including this blog post in September 2013. Thanks for his clarifications and information on the recent proposal about photographing in wilderness areas below:

Permits to Photograph in Wilderness Areas?

By Jeff Conrad

A recent proposal (Federal Register, September 4, 2014) to revise the Forest Service Handbook has attracted considerable attention in the media, and has raised concerns among journalists and some amateur still photographers. Some articles have suggested that any filming or photography in a wilderness area would require an expensive permit (which might not even be issued), and that photographing without such permit could result in a $1500 fine. A petition on change.org opposing the proposal has gathered over 35,000 signatures.

The effect of this proposal is actually quite minor, serving mainly to clarify current wording that allows a permit to be issued

If it is to occur in a Congressionally designated wilderness area, and the activity contributes to the purposes for which the wilderness area was established.

The proposed wording is a considerable improvement, but some of the language is still vague, and should be clarified.

Although the impact of the proposal per se is minor, there are some issues with the overall FS rules for filming and photography; these rules apply to all National Forest System lands rather than just to wilderness areas, so their effects are far reaching. Because they result from regulation and policy outside the scope of the proposal, they cannot be addressed simply by revising the proposal.

Issues with the Proposal

The proposal essentially grants low-level enforcement personnel unfettered discretion to deny a permit. At the very least, it should be made clear that this does not apply to members of the press; preferably, some additional safeguards should be added reduce the chances of arbitrary issuance and denial.

The proposal specifically excludes “noncommercial still photography,” but the term is not defined, inviting photographers and enforcement personnel to synthesize a definition—probably not a good idea. This section does not come into play unless a permit is already required; accordingly, the exclusion appears to be without effect, so it could simply be eliminated.

Issues with the Regulation and Other Parts of the FSH

That so many people have failed to see the proposal in the context of the overall regulatory scheme suggests that the scheme is not as clear as it should be. But there also are substantive issues, not the least of which is the potential infringement of freedom of the press. Thomas Tidwell, Chief of the Forest Service, has recently given assurances that permit requirements will not be imposed on the press. But as several people have noted, an assurance that is at odds with regulation or formal written policy is at best tenuous, subject to revocation on a whim or change of personnel. For Chief Tidwell’s assurance to be meaningful, the regulation–and parts of the FSH—must be revised.

Issue with 36 CFR 251.51: Freedom of the Press

The regulation specifically excludes the coverage of “breaking news” from permit requirements, implying that coverage of other news does require a permit. The exclusion should be extended to any bona fide journalism, including, at the very least, that involving established freelancers. Unless the regulation is revised, Chief Tidwell’s assurances ultimately will not be very reassuring.

Issues with Other Parts of FSH 2709.11

Definition of “Sets and Props”

Public Law 106-206 prohibits requiring a permit for still photography unless the photography involves the use of “models” or “props.” These terms had well-established meanings in the context of regulating photography, but for some reason, the FS provided new definitions of these terms in FSH 2709.11, Chapter 40, and added the use of “sets” to the permit criteria. The definitions give meanings these terms have never had; especially novel is the inclusion of equipment in the definition of “sets and props.” And that definition could be read as implying that anything other than camera and tripod is a prop; if this is indeed the intent, it is poorly thought out. Taken literally, it would require a permit for a flash, a camera and long lens supported by two tripods, a camera mounted on a monopod, a camera resting on a folded jacket, a handheld light meter, a small collapsible reflector or diffuser, a laptop or tablet computer, a smartphone with a photography app, a camera bag, and many similar items. It is difficult to believe that Congress intended for use of such items to require a permit and proof of insurance. Perhaps it could be argued that common sense would control, but this would essentially delegate determination of what is a “prop” to low-level enforcement personnel, offending due process and inviting conflict with photographers who may have quite different ideas of what is a “prop.” So far, the definition does not appear to have led to significant problems, but it may simply be a matter of time—much like assurances that permits will not be required for the press when regulation and policy suggest precisely the opposite.

In theory, lists of equipment that does and does not require a permit could be refined. But in practice, this has proven an exceedingly difficult task, and nearly every attempt at doing so has failed miserably. The problem could be far more easily fixed by revising the definitions to give the same effect as former 36 CFR 5.5(b) on which the still photography provisions of Pub. L. 106-206 were modeled. Although that regulation was not perfect, it worked well in national parks for almost 50 years.

Still vs. Motion Images

There is an additional complication: digital imaging technology has changed considerably since Pub. L. 106-206 became law in May 2000. Most current cameras—including those in cell phones—can record motion as well as still images, and in many cases, it is impossible to determine which type of image is being recorded. Consequently, the distinction between still and motion images is probably no longer a valid criterion for determining when a permit is required. The issue could be addressed by a suitable definition of “commercial filming”; a starting point might be to eliminate “the creation of a product for sale” as an element of the definition—or at least modify its description.

History of the Current Regulations and Directives

It is easy to forget that the original objective of the legislation that resulted in Pub. L. 106-206 was simply to eliminate a provision at 43 CFR Part 5 that prohibited the National Park Service from charging location fees for commercial filming. For some reason, the scope expanded far beyond this objective, delaying the legislative process and leading to language more complex than was needed, without really providing any additional benefit. Despite the many permutations in the wording of the various bills, the resulting statute was reasonably short and simple; it could have been quickly and easily implemented by incorporating the essence of former 36 CFR 5.5 on which the statute was modeled, with a few minor modifications. But the regulations eventually issued by the FS and the DOI agencies went far beyond what was needed to implement the statute, again providing little benefit over previous regulations. The simple regulation at 36 CFR 5.5 and similar policy for still photography in the Forest Service Manual at 2725.51 were replaced by regulations, directives, and other policies that are lengthy, convoluted, and in some cases ambiguous. Some common terms are redefined in a manner so novel that it is difficult to believe they represent what Congress intended. And the possibility that permits may be required for press coverage of anything other than breaking news would seem to infringe the freedom of the press.

Conclusion

Changing a regulation entails considerable effort, so it preferably is done infrequently. But here a change seems unavoidable if freedom of the press is to be ensured. The additional issues discussed above could also be addressed with reasonable additional effort. Given the threshold effort required for even a minor change, it would seem far more sensible to address all of the issues at once rather than to deal with each one separately.

__________________________________

In addition, NPPA sent a letter to the Chief of the U.S. Forest Service and NANPA has issued a statement on the matter. You may submit a formal comment on the proposal by December 3, 2014 (on the right hand side of the webpage, click Submit a Formal Comment). Gabby Salazar, NANPA’s President has suggested that you include in your comment, in your own words, points such as these (and to encourage other nature photographers to do the same):

I am a nature photographer, a member of NANPA, and a patron of our nation’s public lands, including USFS wilderness areas. The policies as proposed are overly vague and ambiguous and should be clarified as follows:

1. No permit or fee should be required to photograph in areas where the public in general is allowed.
2. No permit or fee should be required for photographers who use cameras on a speculative basis to photograph or film without an immediate market outlet for their work. Such activities are not a “commercial use or activity.”
3. No permit or fee should be required for news-gathering in general or for journalists on assignment for editorial purposes. 
4. Permits and/or fees may be required when the photography or filming involves product or service advertisements, the use of models, actors, sets, or props, damage to resources, unacceptable health or safety risks, or significant disruption of normal visitor uses.
5. Overly vague and subjective policy criteria such as those found in 45.1c(5)(a), (b) and (c) should be eliminated from the proposed policies.

Thanks to Jeff, NANPA, and NPPA. Let’s all work together to protect photographers’ rights!

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Photographer’s Patents for Event Photos Declared Invalid

Hockey Play - Copyright Carolyn E. Wright

While another form of intellectual property, patents are different than copyrights. In the United States, a patent is an intellectual property right granted by the government “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

There are three types of patents. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Patents are important to protect the ideas of inventors, including such patent holders as Nikon and Canon.

Peter Wolf is the president of PhotoCrazy, a business engaged in the business of taking and providing event photographs for inspection, selection, and distribution via a computer network. In 2006 and 2011, Wolf obtained two patents for a “Process for Providing Event Photographs for Inspection, Solution and Distribution via a Computer Network” and one for “Advertising and Distribution Method for Event Photographs.” Wolf made claims against other photographers for infringing these patents, some of whom reportedly entered into licensing with Wolf. Wolf defended his right to do so on FredMiranda.com.

In December 2013, Wolf filed a lawsuit against Capstone Photography for being “engaged in the business of providing event photographs for inspection, selection and distribution via the Internet.” Wolf also contended that Capstone was “offering to provide selected digital photographs with visual advertiser indicia within the photograph field to race participants.” Wolf asserted that these activities constituted willful
infringement of his three patents. A report of the case is available on wfsb.com.

Capstone decided to fight the claims rather than to obtain a license. Mike Skelps of Capstone launched a website, EndPatentAbuse.com, to explain his position and to seek donations.

In the lawsuit, Capstone filed a Motion for Judgment on the Pleadings, which, to the relief of many event photographers, the Court granted in its Order. In sum, the Court found that the patents were based on patent ineligible abstract ideas and lack an inventive concept that would make them patent eligible.

HT: Ken Shelton

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