YIKES! Photos Go Into Public Domain for Entering Photo Contest

Copyright Carolyn E Wright

The Tahoe National Forest is a beautiful area of the world, so it’s natural for photographers to document it. The Tahoe National Forest Service (“TNFS”) is looking to capitalize on that desire by running a photo contest to use the “best Tahoe National Forest photos to feature on our website and other publications.”

Unfortunately, the TNFS rules state:

Every photo entry received as part of the contest becomes property of the Tahoe National Forest and will be considered as public domain to prevent copyright infringement. The forest will have non-exclusive, unlimited use of the photo(s).

But this doesn’t make sense. The TNFS can’t own a photo and it be considered public domain. Either way, the photographers who submit their photos to the contest lose, unless you want to give the TNFS (and other federal agencies, forest partners, and media) the right:

to reproduce, prepare derivative works of, distribute or display and use these materials in whole or in part, for government and non-government purposes, in any manner or media (whether now existing or created in the future), in perpetuity, and in all languages throughout the world. Use of this material shall include, but not be limited to, audiovisual programs, museum exhibits, websites, publications, product artwork, and project publicity.

And you give TNFS these rights without any guarantee of credit (unless you earn 1st, 2nd, and 3rd place) and payment. Otherwise, stay far away from this rights grab.

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$200 for Innocent Infringement? Not so fast.

Highway to St George - Copyright Carolyn E. Wright

17 USC 504(c)(2) of the Copyright Act provides:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Known as “innocent infringement,” this is often one of the excuses that an infringer will assert. But it’s tough to prove, as discussed here and here.

Even when an infringer proves innocent infringement, it’s rare that the court will reduce damages to $200. As reported in the recent White Paper on Remixes, First Sale, and Statutory Damages issued by the Department of Commerce Internet Policy Task Force (Jan. 2016), only two courts in four decades have reduced the statutory damages to $200 for innocent infringement (see pp. 83-84 and footnote 504). Plus, the copyright owner may recover attorneys’ fees.

A copyright owner also has the option to select actual instead of statutory damages, which usually is the ordinary license fee plus the infringer’s profits from the infringing use. Actual damages may be much more than statutory damages, such as here. Check this chart for more information.

So don’t be so quick to accept an infringer’s offer to pay only $200 for an infringement.

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Watch Lynda.com Photo Attorney Courses on Apple TV

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Lynda.com has long been a great resource for photographers. Now get access to this great content, including the Photo Attorney courses (Photography and the Law: Understanding Copyright and Photography and the Law: Photographers’ Rights and Releases), on Apple TV!  Learn how to get connected on the Linked.com blog.

Need a membership?  Get your free 10-day trial to Lynda.com here.

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Good Tip on Registering Groups of Photographs

Steve Martin - © 2010 David Oppenheimer

Steve Martin – © 2010 David Oppenheimer

Most photographers realize the importance of registering the copyrights to your photographs. What’s also important is to register them correctly and to maximize the potential for damages if infringed.

David Oppenheimer is a professional photographer who shoots a lot and regularly registers his work. David recently reviewed the Compendium, including where it discusses statutory damages:

For example, when a website consisting predominantly of photographs is registered as a compilation, a court may issue only one award of statutory damages for all the photographs covered by that registration. That is not necessarily the case, however, if the photographs are (i) unpublished and are registered as an unpublished collection (if no selection or arrangement is claimed), or (ii) are published and are registered using the group registration option for groups of published photographs. See 37 C.F.R. § 202.3(b)(4), (b)(10). Thus, if the applicant only intents (sic) to register individual works on a website, such as an unpublished collection of photographs the applicant may want to include a statement in the application that the claimant claims no authorship in the selection, coordination, and/or arrangement of works within the website. When completing an online application this statement may be provided in the Note to Copyright Office field. 

Compendium Section 1008.7

David therefore included this note with his most recent registration of unpublished photos:

Individual works are being registered as an unpublished collection with no authorship claimed to the selection, coordination, and/or arrangement of the individual unpublished works being registered.

The registration specialist at the Copyright Office told him it was a good idea.  Way to go, David!

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U.S. Copyright Office World IP Day Program on April 26

For the fifth year in a row, the U.S. Copyright Office will join with the Copyright Alliance for a Copyright Matters program in recognition of World Intellectual Property Day. This year’s theme, as announced by the World Intellectual Property Organization, is “Digital Creativity: Culture Reimagined.” The program will take place on Tuesday, April 26, from 10:00 a.m. to 11:30 a.m. (EDT) in the Mumford Room (6th Floor, James Madison Memorial Building, Library of Congress).

The program will feature remarks from Congressman Bob Goodlatte, chairman of the House of Representatives Committee on the Judiciary, and Keith Kupferschmid, chief executive officer of the Copyright Alliance. The program will celebrate creativity as it presents itself in our interconnected digital world. It also will highlight established creators who have mastered their crafts and who have created innovative revenue streams to pay fellow creators fairly. The panelists will share their thoughts about the value of copyright law in our digital world and provide suggestions on “what’s next.”

Event panelists include:

Jared Geller, executive producer of the open-collaborative production company HITRECORD. Anna Metcalfe, ceramic artist and founder of the wedding registry Gather, which enables guests to give local art for wedding gifts. Chase Jarvis, photographer and founder and chief executive officer of CreativeLive, the world’s largest live streaming education company focused on photography, video, design, music, and entrepreneurship education.

Internationally celebrated on April 26, World Intellectual Property Day marks the date in 1970 when the World Intellectual Property Organization Convention came into force. The anniversary of this occasion is observed as a way of promoting and increasing general understanding of intellectual property.

The program is free and open to the public. Request ADA accommodations five business days in advance at (202) 707-6362 or ada@loc.gov.

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The Best (and Free!) Resource on Copyright Law

Tricolor Heron on Stump

Register of Copyrights Maria A. Pallante released late last year the official version of the Compendium of U.S. Copyright Office Practices, Third Edition, available on the Office’s website at http://copyright.gov/comp3/.

The Compendium serves as a technical manual for the Office’s staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. More than three times the size of the previous edition, the Third Edition represents a comprehensive overhaul and makes the Office’s practices and standards more accessible and transparent to the public.

As in the past, it addresses fundamental principles of copyright law, such as creation, publication, registration, and renewal. It addresses routine questions such as who may file an application and who may request copies of the Office’s records. It describes recent changes to the Office’s recordation practices, such as the new option for submitting titles and registration numbers in electronic form. It also contains a new Table of Authorities that lists the cases, statutory provisions, and other legal authorities cited in the Third Edition and the relevant section where each citation may be found.

Check some of these nuggets found in the Compendium:

  • Although registration may be made at any time before a copyright expires or any time before bringing an infringement action in federal court, the U.S. Copyright Office strongly encourages copyright owners to submit their works for registration in a timely manner. As discussed in Section 202, a registration is a prerequisite for seeking statutory damages and attorney’s fees in an infringement action. To pursue these remedies, an unpublished work must be registered before the infringement occurs, while a published work must be registered within three months after publication or before the infringement occurs. See 17 U.S.C. § 412.
  • The U.S. Copyright Office has established an administrative procedure that allows an applicant to register a number of unpublished works with one application, one filing fee, and one set of deposit copies. This is known as the “unpublished collection” option. A registration issued under this option covers each work that is submitted for registration. It may also cover the compilation authorship (if any) involved in selecting the works and assembling them into a collective whole, provided that the applicant expressly claims that authorship in the application. See 37 C.F.R. § 202.3(b)(4)(i)(B). When no selection, coordination, or arrangement is claimed, the Office considers each work to be individually registered for purposes of statutory damages.
  • Many websites are frequently updated and may change significantly over time. A website may add content every hour, day, week, month, or year. To register a claim with the U.S. Copyright Office it is important to identify the specific version of the work(s) that will be included in the claim. As a general rule, each version of a work may be registered as a separate work if the version contains a sufficient amount of new, copyrightable authorship. See 17 U.S.C. § 101 (stating that “where the work has been prepared in different versions, each version constitutes a separate work”). A registration for a specific version of a work covers the new material that the author contributed to that version, including any copyrightable changes, revisions, additions, or other modifications that the author contributed to that version. But as discussed in Section 1008.2, the registration does not cover any unclaimable material that appears in that version, including any material that has been previously published or previously registered with the Office. Therefore, if the version contains an appreciable amount of content that has been previously published and/or previously registered, the applicant should exclude that material from the claim.

Example: • Sam Bavard operates a duck hunting website called “Animal Quackers.” Every three months Sam revises the website by adding new text and photographs. When Sam submits an application to register the latest version of the site he limits the claim to the “new text and photographs” that he added to the site, and he excludes the photographs and text that were previously registered with the Copyright Office.

There is much more helpful information in the Compendium.  Check it out and refer to it often.

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Record Time for Return of Copyright Registration Certificate

 

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The time lag for receiving a registration certificate has been as long as 8 months or more for the paper applications. Fortunately, the Copyright Office added online registrations through eCO several years ago and has continued to improve the system.

Professional photographer Mike Boatman was pleasantly surprised when he submitted his first quarter images (over 4000 of them) for registration via the eCO system on March 15, 2016. The postmark on the envelope with his certificate is marked March 17, 2016. Two days!

Congrats to the Copyright Office for great and efficient service!

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Copyright Office Announces Roundtable Discussions for Section 512 Study

The United States Copyright Office is announcing two two-day public roundtables to gather additional input for its section 512 study. The roundtables, to take place in New York, New York on May 2 and 3, 2016, and Stanford, California on May 12 and 13, 2016, will offer an opportunity for interested parties to comment on topics relating to the DMCA notice-and-takedown system, as set forth in the Notice of Inquiry issued by the Office on December 31, 2015. Those seeking to participate in the roundtables should complete and submit the online form available at http://copyright.gov/policy/section512/public-roundtable/participate-request.html. Requests to participate must be received by the Copyright Office no later than April 4, 2016. For further information about the section 512 study and roundtable, please see http://copyright.gov/policy/section512/.

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DMCA Takedown Notice Survey Upcoming Deadline

Has your copyrighted work been used on the Internet without your permission?

Are you a photographer, illustrator, graphic artist or designer, or other visual creator?

Are you an artist’s/photographer’s agent or representative, or an image licensing agent?

Have you discovered infringing use of your images, or the images you license, on the Internet and used the DMCA Takedown Notice procedure to have the images removed from a website? If so, please report on your experience.

The US Copyright Office is conducting a study about the efficacy of the DMCA Takedown Notice procedure. The following group of associations:

American Photographic Artists
American Society of Media Photographers
Digital Media Licensing Association
Graphic Artists Guild
National Press Photographers Association
North American Nature Photography Association
Professional Photographers of America
PLUS (The Picture Licensing Universal System)

is working together to conduct a survey of image rights holders and licensing professionals to gather information for the Copyright Office study.

Please help this advocacy effort by participating in this anonymous short survey.

The survey will close at midnight, Sunday, March 21, 2016.

SURVEY LINK https://www.surveymonkey.com/r/DMCAvisualsurvey

Thank you!

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