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.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
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/
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!Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
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.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
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.”Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
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.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
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.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!
As previously reported, the trial of Daniel Morel vs. Agence France Presse and Getty Images started last week at the Thurgood Marshall US Court House, 60 Centre St., Manhattan before Federal District Court Judge Alison Nathan. Jeremy Nicholl has been providing daily posts from the trial on the EPUK (Editorial Photographers UK & Ireland) website. Thanks, Jeremy! Closing arguments were today so a verdict is expected soon.
A ruling earlier in the case is helpful to photographers, especially with respect to Digital Millennium Copyright Act claims where the infringer provides false, removes, or alters copyright management information (see 17 USC 1202 (a) and (b)). The court ruled:
[T]here is other evidence from which a jury could conclude AFP distributed the Photos-at-Issue with false, altered, or removed CMI and did so with the requisite intent. For example, Morel has presented evidence that the Photos-at-Issue were credited to, among others, “DANIEL MOREL/AFP/Getty Images,” “Lisandro Suero/AFP/Getty Images,” “Daniel Morel/Agence France-Presse – Getty Images,” and “AFP/Getty Images/Daniel Morel.” Morel contends that distributing the Photos-at-Issue with these credits also violated the above provisions of the DMCA because including “AFP” and “Getty” in the caption likewise provides false and altered CMI about the ownership of the Photos-at-Issue. See 17 U.S.C. §1202(c)(3). Although AFP has presented declarations suggesting that these captions are not “intended to provide any information about copyright ownership,” there is evidence that the caption does, in fact, convey information about copyright ownership. In fact, Judge Pauley has already held in ruling on the motion to dismiss in this case that “Morel’s allegations that AFP labeled his photos with the credit lines ‘AFP/Getty/Daniel Morel’ and ‘AFP/Getty/Lisandro Suero’ are sufficient to plead falsification of CMI.” Agence Fr. Presse, 769 F. Supp. 2d at 304. Moreover, the evidence also suggests that AFP and Getty added their watermarks to at least some of the Photos-at-Issue, which is facially suggestive of ownership. [Citations omitted].
We’ll see how the jury decides this. Congrats to Daniel Morel for fighting for his rights!
Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!