Another Reason to Post Watermarks on your Photos

The copyright world is abuzz about the recent U.S. Court of Appeals for the Ninth Circuit opinion in Mavrix Photographs, LLC v. LiveJournal, Inc. The primary interest is that the court held that LiveJournal may not be eligible for the DMCA 17 U.S.C. § 512(c) safe harbor for users’ posting of copyrighted photographs on its “ohnotheydidnt” website when LiveJournal’s moderators first reviewed those submissions.

Even if LiveJournal proves that the photographs were posted at the direction of the user (thus meeting one of the requirements for the § 512(c) safe harbor), LiveJournal must also show that it lacked both actual and red flag knowledge of the infringements. See 17 U.S.C. § 512(c)(1)(A). Actual knowledge is when the service provider had subjective knowledge. For example, actual knowledge can come from a DMCA takedown notice. So it’s usually good to send a takedown notice to the internet service provider when you find an infringement.

Red flag knowledge is whether a reasonable person would objectively know of the infringements. In the Mavrix case, many of the photos at issue had watermarks on them, such as those identifying Mavrix’s website, “Mavrixonline.com.” The court held that LiveJournal may therefore be liable for copyright infringement for having red flag knowledge from the watermarks that its use of the photographs was unauthorized.

This is another one of the many reasons to post watermarks on your photos!

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Copyright Office Extends Comment Period for Section 512 Study

The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on section 512 of Title 17. The Office requested additional public comments, as well as the submission of empirical research studies assessing issues related to the operation of section 512 on a quantitative or qualitative basis, on November 8, 2016. Public comments are now due no later than 11:59 p.m. Eastern time on February 21, 2017, and empirical research studies are now due no later than 11:59 p.m. Eastern time on March 22, 2017. Additional information, including instructions on how to submit a comment, is available here.

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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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Copyright Office Extends Comment Period for Section 512 Study

The United States Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on section 512 of Title 17. The study was announced in a Notice of Inquiry issued by the Office on December 31, 2015. Initial written comments in response to the Notice are now due no later than 11:59 p.m. Eastern Time on April 1, 2016. Additional information, including instructions on how to submit a comment, is available here.

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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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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

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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 First Amended Complaint-Exhibit C). 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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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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