What the Duck #1530


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Options for Recovering Infringement Damages

Zach Frailey Photo

Zach Frailey recently reported his frustrations when dealing with an infringement. Because he had not registered the copyright for his photograph, Zach assumed that he couldn’t recover for this infringement. At least the infringer stopped using his photo (the company offered to add a photo credit, but Zach refused).

What are Zach’s options?  At minimum, Zach is entitled to actual damages for the infringement, which usually would be the ordinary license fee for the use. If Zach doesn’t have a history of licensing for this kind of use, then he can look to industry standards. Fotoquote is a program that provides pricing and negotiation information for stock and assignment photography. For example, Fotoquote provides a range of one to two thousand dollars for a one year use of a photo for a “Transit Ad.Display.Shopping Mall.”

Zach also may have a claim for a Digital Millennium Copyright Act (“DMCA”) violation. Zach thinks that the infringer copied his photo from a Google Images search that links to his website. The good news is that Zach’s name and phone number are in the properties of the photo file when downloaded from Google Images as shown above. Zach also included a “(c)” to show that the image is protected by copyright (it’s best to show the © symbol or the word “copyright” along with the year of first publication). The link from Google Images takes the viewer to Zach’s website page, where his name is posted adjacent to his photo and his copyright notice is at the bottom of the page.

Names, copyright notices, and other identifying information (such as phone numbers) about the copyright owner of the work constitutes “copyright management information” (“CMI”), including in digital form, when conveyed in connection with copies or displays of a photograph work, pursuant to 17 USC 1202 of the U.S. Copyright Act. Section 1202 also makes it illegal for someone to remove the CMI from your photo to disguise an infringement:

No person shall, without the authority of the copyright owner or the law:
(1) intentionally remove or alter any copyright management information . . .
(3) distribute . . . copies of works . . . knowing that copyright management information has been removed or altered without authority of the copyright owner . . . knowing . . . that it will . . . conceal an infringement of any right under this title.

The fines for violating this statute start at $2500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.  The great news is that you don’t have to register your photo in advance to recover under Section 1202.

In a circumstance similar to Zach’s, one court has held that the infringer’s removal of the digitally embedded CMI from the photo file when printing the infringing use would violate Section 1202.  Another court has stated that an infringer violates 1202 when removing the CMI from the “body” of, or area around, the plaintiff’s photograph. Zach’s also would have an easy DMCA claim if the infringer had cropped his watermark from a watermarked version of his photo, which is why it’s important to watermark all of your photos.

In sum, photographers have options for recovery when infringed so don’t give up on your claims too easily. Check this article for more information and do what you can to protect your work.

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U.S. Copyright Office Announces Draft Strategic Plan for 2016-2020

Register of Copyrights Maria A. Pallante today released a public draft of the Copyright Office’s Strategic Plan, setting forth the Office’s performance objectives for the next five years.

Reflecting the results of four years of internal evaluations and public input, the Strategic Plan lays out a vision of a modern Copyright Office that is equal to the task of administering the Nation’s copyright laws effectively and efficiently both today and tomorrow. It will remain in draft form for 30 days to permit public feedback, and will take effect on December 1, 2015.

“The Strategic Plan sets forth a roadmap for re-envisioning almost all of the Copyright Office’s services, including how customers register claims, submit deposits, record documents, share data, and access expert resources,” Pallante said. “Such broad-ranging modernization efforts are needed to meet the changing needs of individual authors, entrepreneurs, the user community, and the general public.”

During implementation of the Strategic Plan, there will be opportunities for public input, including with respect to the strategies and costs associated with a dedicated information technology plan.

Members of the public are invited to provide feedback on the draft Strategic Plan at any time before or after it goes into effect. The plan and information about how to provide comments are available here.


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Copyright Protection for Tom Kucy’s Derivative Work

Petapixel reports that director of photography, Tom Kucy, added 3D motion to some of the photos from the 8,400 shots taken by Apollo astronauts during trips to the moon. Kucy’s 2-minute film shown above is titled “Ground Control.”

Kucy’s film is a “derivative work.” A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, and paintings from photos. To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and then add new original copyrightable authorship to that work. 17 USC 103(b) explains:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. 

The right to prepare derivative works based upon other copyrighted works is one of the “exclusive rights” of 17 USC 106. To create his derivative work, Kucy used the Apollo photos. So Kucy would have needed permission from the copyright owners of the photos to create his film. But the photos are in the public domain: 17 USC 105 states: “copyright protection under [Title 17] is not available for any work of the United States Government.” A “work of the United States government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties (see the definitions of 17 USC 101). When astronauts, who are employees of the U.S. government, take photos as part of their duty, their photos immediately are in the public domain, not protected by copyright.

Copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Copyright protection does not extend to the preexisting material. As the Copyright Office’s Circular 14 explains:

A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.

So you may continue to copy, display, distribute, and create derivative works of the Apollo photos. As for Kucy’s derivative work, he gets copyright protection of his new material.

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Copyright Alliance Requests Input on Copyright Enforcement Survey


Big Sur View - Copyright Carolyn E. Wright

Announcement from the Copyright Alliance:

The White House is currently developing a strategic plan relating to copyright enforcement. To assist the White House with this plan, the Copyright Alliance will be sending its comments and recommendations to the White House and we need your help. 

As individual artists and creators, your voice is a vital part of this conversation, and we’d like to hear from you. If you’ve encountered problems with copyright enforcement, send us your story. Please explain in detail:

  • the type of problem(s) (e.g., type of work pirated, website it was/is being pirated on);
  • any actions you took to stop the problem;
  • whether your actions had any effect; and
  • whether and how these problems may have affected your ability to create new works and/or your business or career more generally. 

We’d like to include your story in our letter to the White House, so that the Administration understands clearly the challenges faced by individual creators like you.

To submit your story, please go HERE.

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Infringer Learns that Innocent Infringement is Tough to Prove

Angelique Kerber stretches for forehand - Copyright Carolyn E. Wright

Angelique Kerber stretches for forehand – Copyright Carolyn E. Wright

As discussed in our previous post on the “innocent infringement” defense, a defendant’s burden of proving innocent infringement is a heavy one. An innocent infringer must prove that it was not aware and had no reason to believe that its acts constituted infringement. National Football League, 131 F. Supp. 2d 458, 476.

While 17 USC 504(c)(2), allows a court to “reduce the award of statutory damages to a sum of not less than $200,” it may still choose to award damages up to the statutory maximum amount. That’s what happened in Reno-Tahoe Specialty, Inc. (RTSI) v Mungchi, Inc., in the District Court of  Nevada last year. There, Mungchi sold t-shirts with RTSI’s image (created from several photographs of the Las Vegas strip). Although the t-shirts were created and manufactured by a different business (called Top Design), Mungchi chose the image, and then later distributed, offered for sale, and publicly displayed the infringing t-shirt in the same retail locations where RTSI sold merchandise with RTSI’s image.

Mungchi asserted the innocent infringement defense, claiming that it did not know that it was infringing on RTSI’s image. But the court didn’t buy it and awarded maximum statutory damages ($150,000), despite the fact that the actual profits were only $1350. Therefore, just because an infringer claims that it is innocent, it doesn’t mean that it shouldn’t pay for its infringement.

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Sheila Smart Fighting for her Rights

Check this news report our how professional photographer, Sheila Smart, is fighting for her rights. Our firm is pleased to also represent Sheila for her claims in the United States.

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Ninth Circuit Confirms that You Consider Fair Use Before Sending A DMCA Takedown Notice

As reported way back in August 2008, a judge ordered in the Lenz v. Universal Music case that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice (check my article how to do that).

In the case, Stephanie Lenz filed suit under 17 U.S.C. § 512(f)—part of the Digital Millennium Copyright Act (“DMCA”)— against Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group (collectively “Universal”).  She alleged that Universal misrepresented in a takedown notification that her 29-second home video constituted an infringing use of a portion of a composition by the Artist known as Prince, which Universal insists was unauthorized by the law. Although Universal Music argued that fair use is difficult to determine, the district court found that to not be an excuse.

Universal appealed the decision, but the Ninth Circuit Court of Appeals agreed with the lower court’s ruling, stating:

“We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

Fortunately, the Ninth Circuit recognized that if “a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.”

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Copyright Registration Systems Are Back Online

Systems of the United States Copyright Office are back online as of 8:00 am, Sunday, September 6, 2015 and customers may resume submitting registration applications electronically.

As previously reported, on Friday, August 28th, the Library of Congress shut down a data center that hosts a number of agency technology systems, including the Copyright Office’s electronic registration program.  This was done to accommodate a two-day annual power outage scheduled by the Architect of the Capitol, which owns and maintains Library buildings.  On Sunday, August 30th, the Library attempted to reopen the data center, but was unable to bring copyright systems and other agency functions online as planned.  Both Library and Copyright Office staff have since worked around the clock to assess problems and solutions and ensure the ongoing integrity of Copyright Office data.

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eCO Registration System Down


Over the weekend, as part of routine maintenance, the Library of Congress shut down a data center that hosts a number of U.S. Copyright Office systems, including the online copyright registration system, eCO. The Library of Congress attempted to reopen the data center on Sunday evening, but has been unable to restore access to Copyright Office systems. As result, eCO remains offline, and Copyright Office staff are unable to access internal shared network resources. Until service is restored, you will be unable to use the eCO system to file a copyright registration, and Office staff may be unable to access Office records.

Please note that during this outage, you can still file a copyright registration for your work(s) using a paper registration form. Fillable PDF registration forms are available at http://copyright.gov/forms/. For further information, please contact 202-707-3000 or 1-877-476-0778 (toll free).

The Library of Congress is working to resolve the problems as expeditiously as possible, but does not have an estimated time for service resumption. A notification will be sent when service is restored.

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