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.



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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Video on How to Register A Group of Published Photos using the eCO System

Check John Harrington‘s video on how to register a group of published photos using the eCO System! The link to the spreadsheet is here that is a part of this process.

Also check John’s great blog!

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How Much Is Enough?

Lion Stance-Copyright Carolyn E. Wright

Development of new technology has created additional incentive for copyright thieves to steal protected works. The advent of DVDs, for example, has enabled infringers to produce perfect secondhand copies. Many computer users are either ignorant that copyright laws apply to their Internet activity or they think that they will not be caught or prosecuted for their conduct.

Many infringers also do not consider the current copyright infringement penalties a real threat and continue to infringe, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action.

Sound familiar? Have you experienced this with your photographs?

These thoughts aren’t new. They come from H.R. 1761 (106th Congress): entitled, the “Copyright Damages Improvement Act of 1999.” Statutory damages have been available as a federal remedy for copyright infringement since the Copyright Act of 1790. The 1999 amendments, which increased penalties for willful infringement, were expressly designed “to have a significant deterrent effect on copyright infringement.”

The only way that you can get statutory damages for an infringement is by timely registering your copyrights. Check this chart for what an infringement is worth. The maximum available statutory damages per work (photograph) now is $150,000. But is that enough? Seems not to be, as people continue to infringe, even when sued multiple times. So, how much is enough?


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Good Info on How to Protect Your Online Images

Harbor Seal Landing - Copyright Carolyn E. Wright

Posting images online has its benefits and disadvantages. One of the benefits is that you get to easily share your photos. One of the disadvantages is that others want you to share your photos more than you want. So you must do what you can to prevent that “extra” sharing.

Smartly, some photographers rely on watermarks applied via an overlay to control unauthorized uses. But Al Berger of www.CunninghamStudio.com and www.ProRodeoPix.com has discovered that method can be thwarted.  He has given permission to share his discovery here:

I was excited to read your article on Lynda.com regarding posting images online.

I recently came across a web article on fstoppers.com in which Jesse Chen, a Facebook Software Engineer, Teaches You How to Steal Copyrighted Images.  According to his bio, Jesse Chen is a software engineer at Facebook and recent graduate of UC Berkeley.  Jesse has a personal blog which I recently stumbled across that includes a blog post from 2012 in which he detailed how to go about stealing copyrighted images and REMOVING WATERMARKS using Photoshop.

In trying to figure out how Mr. Chen is able to get the images off of websites, I experimented and found the instructions on Mr. Chen’s website are for users of the Google Chrome web browser.  I am normally a user of Mozilla Firefox so I wasn’t familiar with some of the options available under Google Chrome.  For example, I went to this website, http://vividwildlife.photoshelter.com, which I believe is your site.

Once there in Firefox, I “right clicked” and selected “view image” and was transported to http://vividwildlife.photoshelter.com/img/pixel.gif, which is a small 1 x 1 pixel transparent .gif intended to prevent people from stealing the image of the bear.

So then I went to Google Chrome and did exactly the same thing, except in Chrome the option to “view image” wasn’t available, so I chose the option to “Open image in new tab,” which again resulted in the same result as with Firefox.  Great so far: http://vividwildlife.photoshelter.com/img/pixel.gif

But using Chrome and following the steps outlined in Mr. Chen’s documentary, I went to the triple horizontal bars in the upper right side of the Chrome browser.  This is right under the “X” to exit the program.  Clicking on that opens up a pop-up window where I can choose “Tools” and then in the next pop-up window I choose “Developers Tools.”  Selecting this option opens up a window in the bottom half of the browser with the top line listing a search option and eight (8) other options.  I then click on the “Resources” option and a list of folders with the first one being “Frames” opens.  By clicking on “Frames” and then the folder right under it “(I0000VfT5iHln.48)” and scrolling down to the word “Images” and selecting “Images,” I select “1041E00000YAWNINGBEAR.jpg” and up pops the bear.  If you move your mouse over the bear image in the lower window, right click and select the option to “Open image in new tab”, the image will pop-up in a new window.

In the case of your bear photo, the copyright management information is still on the image because the author most likely, wisely, embedded it into the image.  But this is not the case on many of the photo hosting sites on the web, where the word “PROOF” is only a transparent layer posted over the image; it is not part of the original image.

For example, if you look at this site by Northern Lights photography as it is hosted on smugmug, there is CMI watermark across the bottom of the Goldcrest photo.  If you “right click” on the image a window pops up stating:

The page at www.northernlightsphotography.no says

All photos are property of Northern Lights Photography – Fredrik Broms.  All rights reserved. Unauthorized use is prohibited.

and you cannot proceed any further in trying to copy any image.  But using the “Developers Tools” in Chrome, I click on “Frames” and then “(25416271_qVqLC5)” and then “Images” and scroll down until I reached (the full size version) “Konge.jpg.”  I select that and “right click” on the image choosing the option “Open image in new tab” and presto: I can now see the image (740 x 1024) without the CMI and I am able to “right click” and save the image. Unfortunately, the photographer didn’t include his CMI directly on the largest file size of his images.  He has embedded it in all of the smaller versions as you can see by scrolling up after selecting the “Konge.jpg” image.

Some other photographers who have Smugmug and Photoreflect also don’t put their CMI directly in the file of their images when they upload them. Instead, they rely on the hosting sites to put .gifs over the images with “PROOF” across the viewable images.  Unfortunately, this will not protect them when it comes to Chrome.

Sadly, most photographers are unaware (as was I a week ago) of this feature that Google Chrome has included in it.   I thought I would let you know about this so you could make your clients and your audience aware of it.  I hope you find it enlightens you and is informational as well.

Thanks for sharing this information, Al!  This is helpful for photographers to know so that they may more fully protect their online images.

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Free Legal Guide for Online Publishers and Media Creators

Tahoe Sunset-Copyright Carolyn E. Wright

In this digital age, photographers posting online need to know how to protect themselves. While the Internet provides lots of information, some of it is better than others.

One great source of information is the Digital Media Law Project (DMLP). Founded in 2007 as the “Citizen Media Law Project,” the DMLP, through its five core initiatives, “works to ensure that individuals and organizations involved in online journalism and digital media have access to the legal resources, education, tools, and representation that they need to thrive.” The DMLP is a project of Harvard University’s Berkman Center for Internet & Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development. 

The DMLP has prepared a free Legal Guide that “addresses the practical issues that you may encounter as you gather information, create new and exciting content, and publish your work online. It is intended for use by citizen media creators with or without formal legal training, as well as others with an interest in these issues.” 

You can search the Guide by subject or by state. It covers a variety of topics, including:

Educating yourself on the law and risks of posting online is another important way to protect yourself and your work. Getting the information from a reliable source is the smartest way to do it!

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Diary of a Copyright Infringement Lawsuit – 5 Updated (The Defendant’s Answer)

Jumping Bear Cub-Copyright Carolyn E. Wright

When someone infringes your copyright, the time that you have to make your claim is limited. This is based on the legal principle called “statute of limitations.”

Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and — at times — they depend on the state where you live.

The purpose of such statutes is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

The “Last Act” of Infringement

Because copyrights are governed by federal law, there is only one statute of limitations for copyright-related claims. Copyright infringement claims have a three-year statute of limitations from the date of the “last act” of the infringement.

What constitutes the last act can vary. If your image is published in a newspaper without your permission, for example, you have at least three years from the date that the newspaper was distributed to file your claim in court.

However, if the infringement continues, such as when the photograph remains on the newspaper’s website, the “last act” has not occurred until your photo is removed from the site.

Can Laches Shorten the Time to Sue for Copyright Infringement?

As a follow to the prior post on the Defendant’s Answer, one of the Affirmative Defenses that a Defendant may plead is laches. Laches are “a doctrine in equity that those who delay too long in asserting an equitable right will not be entitled to bring an action.” Some courts have considered whether laches could shorten the time within which a Plaintiff could sue for copyright infringement. But we now have an answer.

Today, the U.S. Supreme Court held in the case of Petrella vMetro-Goldwyn-MayerInc., that: “Laches, we hold, cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window.”  The Court explained:

The Copyright Act provides that “[n]o civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U. S. C. §507(b). This case presents the question whether the equitable defense of laches (unreasonable, prejudicial delay in commencing suit) may bar relief on a copyright infringement claim brought within §507(b)’s three-year limitations period. Section 507(b), it is undisputed, bars relief of any kind for conduct occurring prior to the three year limitations period. To the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress’ judgment on the timeliness of suit. Laches, we hold, cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. And a plaintiff ’s delay can always be brought to bear at the remedial stage, indetermining appropriate injunctive relief, and in assessing the “profits of the infringer . . . attributable to the infringement.” §504(b).1

Petitioner Paula Petrella, in her suit for copyright infringement, sought no relief for conduct occurring outside §507(b)’s three-year limitations period. Nevertheless, the courts below held that laches barred her suit in its entirety, without regard to the currency of the conduct of which Petrella complains. That position, we hold, is contrary to §507(b) and this Court’s precedent on the province of laches.

Complete Your Copyright Registration Prior to Filing Suit

The Supreme Court also clarified that “[a]lthough registration is ‘permissive,’ both the certificate and the original work must be on file with the Copyright Office before a copyright owner can sue for infringement.” §§408(b), 411(a). So get your registrations filed before filing suit against your infringers!

HT: Leslie Burns

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More Photo Attorney Videos at Lynda.com

Lynda.com has long been a great resource for photographers. It has expanded its extensive library to include videos on photography and the law with Carolyn E. Wright, a/k/a the Photo Attorney, including:

and the newly released:


Also check the video with Ben Long and Carolyn about photographing at wildlife refuges.

To check this and much more content on Lynda.com, sign up to get 7 days of free unlimited access to lynda.com to watch all of the Photo Attorney courses there.

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