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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Texas Statute Limiting Photos of People Found To Be Unconstititional

 

Girl at Beach - Copyright Carolyn E. Wright

As addressed in my November 4, 2007, blog entry, photographers in Texas first had to consider whether their photography violated Section 21.15 of the Texas penal code, which states:

 A person commits an offense [of improper photography] if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

Recently, however, Ronald Thompson was charged with violating part 1 of this statute for taking photos of women in swimsuits at a water park. He sought a writ of habeas corpus, asserting that the code section was “facially unconstitutional in violation of the freedom of speech guarantee of the First Amendment.” On appeal, the Texas Court of Criminal Appeals agreed and struck down the statute.

On behalf of Texas, its State Attorney presented many arguments in support of the statute, including that the taking of photographs is conduct and therefore not inherently expressive. The State claimed that “[p]hotography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time.” The State also contended that the act of pushing the button on the camera to take a picture was not necessarily communicative.

In addition, the State asserted that the specific-intent requirement of the code did not invoke any First Amendment implications because the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.” Moreover, and significant to the right of privacy concerns for photographers, the State claimed that:

[T]he lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public. The State argues that any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X-Ray camera that can see through clothing or a photograph taken up a woman’s skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent. This construction of the term “consent,” the State argues, would negate any First Amendment implications of the statute.

But, after following the required Constitutional analysis, the Court disagreed with the State and held that “a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.” The First Amendment “is implicated by ‘constitutionally protected speech when that speech is coupled with constitutionally protected thought.'” Even when considering photographs of animal cruelty, obscenity, and child pornography, the U.S. Supreme Court has not questioned the expressive nature of visual images, saying that laws directed at quashing those images “run the risk of suppressing protected expression.”

In sum, when considering the State’s argument that the Constitution did not protect the “taking” of photographs, the Court found no difference between the process of creating the end product from the end product itself. It stated: “We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”

The Court finished its analogy with this significant note:

[In a prior case,] this Court expressed its incredulity that reasonable suspicion could arise from taking photographs in a public place: “Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events.” “Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.”

Yes, indeed!

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Must Read: Tax Court Ruling Is Seen as a Victory for Artists

Maroon Bells and Aspens - Copyright Carolyn E. Wright

As my post back in 2005 stated:

Regardless of whether your photography is a business or a hobby, you can use it to make a difference in your tax obligation. Specifically, if you are running a photography business, even part-time, the costs to run it can offset your income – not just the income from your photography business but from your day job, as well. If your photography is a hobby, then the costs to support it can be deducted from the income from your photography.

The New York Times reports that the United States Tax Court has confirmed this approach. Advice from a CPA is the best way to address your specific needs.

Update: Additional thoughts on the ruling are available at Forbes and from a law professor.

 

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Civil v. Criminal Copyright Infringement

Bear Cub Profile-Copyright Carolyn E. Wright

When photographers are infringed, they have the option of filing a lawsuit to recover damages directly from or an injunction against the infringer. But sometimes photographers want the infringer to be criminally prosecuted. What’s the difference?

“Civil” cases are when persons or organizations, such as a photographer, files a lawsuit directly against an alleged infringer, who also is a person or organization. “Criminal” cases are when a state or the federal government files suit against a person or organization for an action that is considered to be harmful to society as a whole. Sometimes, both criminal and civil suits can be files for the same alleged act. For example, the State of California unsuccessfully prosecuted O.J. Simpson for murder. Later, the families of Nicole Brown Simpson and Ronald Goldman successfully sued O.J. Simpson in a civil lawsuit for wrongful death of their family members. While both criminal and civil defendants can be ordered to pay monetary damages, only criminal defendants can be incarcerated if found guilty.

So it makes sense that infringers should be concerned about both criminal and civil liability. But not every infringement is a criminal offense. Throughout the history of copyright in the United States, criminal copyright penalties have been the exception rather than the rule. Although criminal copyright law has greatly expanded the scope of the conduct it penalizes over the past century, criminal sanctions continue to apply only to certain types of infringement.

The Copyright Act specifically discusses criminal copyright infringement at 17 U.S.C. § 506. Specifically, copyright infringement is a crime if the defendant infringed willfully and did so either:

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Similar to civil violations of 17 USC 1201, the Copyright Act states that it is a crime for:

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

Criminal copyright infringement is punishable in a variety of ways, depending on the infringing act. 18 U.S.C. § 2319.

The U.S. Department of Justice has a manual for United States Attorneys on “Prosecuting Intellectual Property Crimes.” Several sections are helpful to understand copyright law as a whole. While most infringements of photographers works won’t lead to criminal prosecution, photographers can protect their copyrights in many other ways.

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Oversight Hearing on U.S. Copyright Office, Thursday, September 18

The House Subcommittee on the Courts, Intellectual Property, and the Internet will hold an oversight hearing on the U.S. Copyright Office Thursday, September 18th at 2:00 pm eastern time. Register Maria A. Pallante will testify.

 

Judiciary Committee Chairman Bob Goodlatte (R-Va.) and IP Subcommittee Chairman Howard Coble (R-N.C.) released the following statement in advance of Thursday’s hearing: “The Copyright Office was created by Congress nearly 120 years ago. The Office oversees hundreds of thousands of copyright registrations each year and plays an increasingly prominent role in promoting domestic and global commercial activity. These registrations go to the heart of individual American creativity and innovation. At Thursday’s oversight hearing, the Committee will examine the practices and organization of the Copyright Office to ensure it is equipped to keep pace with the digital age and has what it needs to serve the American people in the 21st century.”

 

The hearing will take place in 2141 Rayburn and will be webcast live at http://judiciary.house.gov/index.cfm/2014/9/hearing-oversight-copyright.

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The Copyright Office Adopts a Final Rule to Streamline Its Recordation Practices

While the Copyright Office continues to develop its strategy for modernizing and improving recordation services via a comprehensive reengineering, the Office has recognized that there could be immediate benefits if certain process changes were made in the interim. To this end, the Office is adopting a final rule that encourages remitters to include a cover sheet with the documents they submit to the Office; allows remitters to submit long title lists in electronic format; allows remitters to submit corrections to those title lists using a new correction procedure; and provides remitters with the option of requesting return receipts that acknowledge that the Office has received a submission. The Federal Register notice describing the final rule is available at www.copyright.gov/rulemaking/recordation-practices. This rule will become effective October 17, 2014.

In a separate notice of proposed rulemaking published in the Federal Register today, the Office seeks to establish a new fee for the correction procedure referenced above at a rate of seven dollars per corrected title. The notice of proposed rulemaking is available at www.copyright.gov/rulemaking/etitle-fees/. The Office invites public comment on the proposed rule through the aforementioned web address. Written comments are due on or before October 17, 2014.

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Take Action Now – Artist Rights Are Human Rights

 

Canada Reflection-Copyright Carolyn E. Wright

In March 2015, Ms. Farida Shaheed, the United Nations Special Rapporteur in the Field of Cultural Rights, will be submitting a report to the Human Rights Council that will focus on the impact intellectual property has on the arts. Presently, Ms. Shaheed recognizes the importance of compensating artists, but she also supports limitations and exceptions that may undermine artists’ rights.

 

We have the unique opportunity to share our thoughts with Ms. Shaheed. We would like to convey that strong international copyright protection for creative works is needed so that artists and creators, such as yourselves, can continue to thrive. Too often, such protections are portrayed as obstacles to knowledge and culture.

 

We encourage you to read and sign the petition, which can be done via the Copyright Alliance Take Action Now toolPlease know that the deadline to take action is September 15.

 

Make your voice heard on this important matter. Thank you in advance.

 

Best,

Cecile Remington

Copyright Alliance

[Letter Reprinted with permission]

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U.S. Copyright Office Announcement Regarding Release of a Draft of the Compendium of U.S. Copyright Office Practices, Third Edition

Volley Smash

Register of Copyrights Maria A. Pallante today released a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition (the “Third Edition”). The first major revision in more than two decades, the draft presents more than 1200 pages of administrative practices and sets the stage for a number of long-term improvements in registration and recordation policy. It will remain in draft form for approximately 120 days pending final review and implementation, taking effect on or around December 15, 2014.

“The new Compendium is an exhaustive undertaking that explains and reconciles the many legal interpretations, regulations, and procedures of the Copyright Office in administering the copyright law,” said Pallante. “At the same time, it provides a necessary and authoritative foundation for ongoing policy and regulatory discussions that are pertinent to the digital era.”

The Compendium is the administrative manual of the Register of Copyrights concerning the mandate and statutory duties of the Copyright Office under Title 17 of the United States Code. See 37 C.F.R. § 201.2(b)(7). While prior publications were largely internally directed, the Third Edition is a comprehensive overhaul that makes the practices and standards of the Office more accessible and transparent to the public. It will serve as a technical manual for staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. As in the past, it will address fundamental principles of copyright law—for example, standards of copyrightability, joint authorship, work for hire, and termination of transfers—as well as routine questions involving fees, records retrieval, litigation documents, and other procedural matters.

Among other improvements, the Third Edition will offer the significant benefits of electronic publication. More than three times the size of the previous edition, it will nonetheless be more navigable than before and allow for a regular schedule of updates. In final form, it will feature hypertext links to cross-referenced material, glossary terms, and statutory and regulatory provisions.

In the years ahead, the Copyright Office will introduce a number of public discussions regarding the application and deposit requirements for many digital works, including websites, software, photographs, e-books, audiovisual works, and musical works, many of which have multiple authors, multiple dates of creation, and multiple dates of publication. A key objective will be creating digital copyright records that are accurate, affordable, and as useful as possible when it comes to the identification of ownership and copyrighted works.

The Compendium, Third Edition is the result of more than two and a half years of work. Read acknowledgements. Members of the public may provide feedback on the Compendium at any time before or after the Third Edition goes into effect. See www.copyright.gov/comp3/ for more information.

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How Long is Too Long? Boffoli Sues Google for Delay in Take Down

Use of one of Boffoli's Photographs on http://ediideas.blogspot.com as shown in his Complaint

Use of one of Boffoli’s Photographs on http://ediideas.blogspot.com as shown in his Complaint

___________________________________________________________________________

Christopher Boffoli is a fine art, editorial, and commercial photographer who created “Big Appetites,” a series of photographs featuring tiny figures next to life-sized food. He has a history of protecting his photographs, as reported here and here. As part of his prosecutions, he sued Twitter in September 2012 for not removing his photographs after sending a DMCA takedown notice. While some doubted the strength of his claims, we will never know how the court would have ruled as Boffoli dismissed his case in October 2012 before Twitter filed an answer.

Boffoli now has filed suit (Amended Complaint shown here) against Google for similar claims, alleging that Google failed to take down infringing uses of his photographs on a website (as shown in Exhibit A) hosted on one of Google’s servers more than 100 days after he sent Google a DMCA Notice (as shown in Boffoli’s Exhibit C to his Complaint). Google denies many things in its Answer to the Complaint, but “admits only that it did not disable access to any webpage or content on the website http://ediideas.blogspot.com prior to April 9, 2014 in response to Plaintiff’s notice.”

The issue is whether Google is liable for contributory copyright infringement in this case. “One contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007). A “knowing failure to prevent infringing actions” can be the basis for imposing contributory liability. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007). Google is seeking protection under Safe Harbor provisions of the DMCA found at 17 USC 512, among other things. 

Boffoli’s case is important for photographers as they continue to battle widespread infringements, often relying on DMCA takedown notices as the only viable way to stop infringing uses of their photographs.

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The Copyright Office Proposes Immediate Changes to Recordation and Requests Public Comment

While the Copyright Office continues to develop its strategy for modernizing and improving recordation services via a comprehensive reengineering, it recognizes that there could be immediate benefits if certain process changes were made in the interim. To this end, the Office has published a proposed rule in the Federal Register that would amend the regulations to encourage remitters to include a cover sheet with the documents they submit to the Office; allow remitters to submit long title lists in electronic format; and provide remitters with the option to request return receipts that acknowledge that the Office has received a submission. The Federal Register notice is available at http://www.copyright.gov/rulemaking/recordation-practices. The Office invites public comment on the proposed rulethrough the aforementioned web address. Written comments are due on or before August 15, 2014.

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