Copyright Office Introduces Online Group Registration of Photographs

As part of its continued efforts to modernize its services, the U.S. Copyright Office announces that, as of February 20, 2018, it will begin accepting applications for group registration of photographs through the Office’s online registration system. In most cases, applicants will generally be required to file such applications online, and may include up to 750 photographs in each claim. The Office has also made other changes to streamline the practices relating to group registration of photographs, described in a final rule published in the Federal Register today. The Office believes that these changes will make it significantly easier for photographers to register their works with the Copyright Office. The Office will be releasing the application on its online registration system (eCO) prior to the effective date to provide users with time to familiarize themselves with the new form.

CHECK Leslie Burn’s post for great tips on the new registration rules.

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Reminder! Record your mileage on January 1!

White Sands Layers - copyright Carolyn E. Wright

Regardless of whether your photography is a business or a hobby, you may be able to 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 key is to keep good records, using the tax laws to your advantage. For example, you may be able to deduct your automobile expenses from your taxes. You have two options: you either can track the mileage that you travel for photography purposes to deduct the government rate per mile (currently $0.535); or you can calculate what it costs to operate your vehicle for the year and apply the percentage that you use your automobile for photography to determine your auto expense.

BUT FOR EITHER method, record the starting mileage for your vehicle each year. Check with your tax advisor and the IRS website for more information.

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eCO Improvements

eCO website homepage

Today, the U.S. Copyright Office implemented a series of technical upgrades to its electronic registration system. The upgrades:

  • reorganize the home screen for the eCO system;
  • remove the three questions that previously directed applicants to the Standard Application or the Single Application;
  • introduce a new and improved version of the Single Application;
  • modify the authorship statements in the application for registering a serial publication; and
  • add a new feature that will allow certain file types to be uploaded to the electronic registration system, while blocking unacceptable file types.

These improvements are designed to enhance the user experience and increase the efficiency of the examination of these claims. More information about these technical upgrades is available here.

In addition, the Copyright Office has released an updated circular that provides detailed information about the new version of the Single Application.

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Support the CASE Act (small claims court for creators)

From the Copyright Alliance:

Join the copyright community in asking your Congressional Representative to cosponsor H.R. 3945, the CASE Act of 2017, a bill that would create a copyright small claims court for creators and small businesses (It’s quick and easy to do!)

For many photographers, illustrators, authors, songwriters and other creators who own copyrighted works, enforcing their rights is not feasible. Litigation is expensive and many creators simply can’t afford it. In effect, the U.S. copyright system currently provides creators with rights but no effective remedies.

It’s vital that Congress hear from creators like you on the importance of creating a small claims court. Please contact your Representative today to ask him/her to support H.R. 3945 by asking them to cosponsor the bill. We have provided a sample letter that you can send (but feel free to modify it or use your own). The important thing is to let your voice be heard on this critical issue.

To send your letter, please click here. It only takes a couple of minutes, and you’ll be benefiting the entire creative community by supporting H.R. 3945!

Thanks for your support!

Best,
The Copyright Alliance

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Diary of a Copyright Infringement Lawsuit – 5b (Defendant’s Counterclaim)

As a long overdue entry in the “Diary of a Copyright Infringement Lawsuit” series, a current case shows the risk that an infringement defendant may file a counterclaim against the photographer plaintiff, perhaps as retribution for filing the infringement claim. Counterclaims are claims that could be made by a separate complaint or are brought into a lawsuit between the parties for judicial economy.

For example, in February 2017, photographer Jon Tannen sued CBS Interactive for using 2 of his photos on the website 247sports.com and altering copyright management information for those photos, all without his permission.

In October 2017, CBS sued Tannen in a separate copyright infringement lawsuit claiming that Tannon had “published via social media platforms images copied from the ‘Dooley Surrenders’ episode of GUNSMOKE” without permission. There’s a strong argument that Tannen’s acts were fair use. Some have opined that CBS filed its suit in retaliation for Tannen’s infringement lawsuit

There are two types of counterclaims:

  • Compulsory – if the counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
  • Permissive – any counterclaim that is not compulsory.

Fed.R.Civ.P 13.

The typical counterclaim in a copyright action is when the alleged infringer files for declaratory judgment action on a copyright infringement claim. See more on “dec actions” in my previous blog. For example, Shepard Fairey did not wait to see whether The Associated Press was going to sue him for copyright infringement over Fairey’s use of the Obama photo. Instead, he filed suit against The AP and Mannie Garcia, asking the court for a declaratory judgment that Fairey’s use of the Obama photo was a fair use. Garcia, the photographer of the Obama photo, filed his Counterclaims with his Answer. Because Garcia’s counterclaims were that Fairey and The AP infringed the Obama photo, his counterclaims were compulsory because they arose out of the transaction or occurrence.

The CBS claim against Tannen is an example of a permissive counterclaim, since CBS’s claim is unrelated to Tannen’s initial action. While both claims are for infringements, they are for different copyrighted works and uses and did not arise out of the transaction or occurrence.

A compulsory counterclaim must be filed with the defendant’s answer in the pending case. A court may allow a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. Since CBS filed its lawsuit months after Tannen’s, it likely decided to not try to add its claim to Tannen’s action.

Counterclaims are a uncertainty in a lawsuit. But don’t let them discourage you from standing up for your rights.

[Note that the parties in Tannen’s action reported to the court on November 15, 2017, that they had reached a settlement and the case has been closed. The CBS case remains active as of the date of this post.]

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Update on Proposed Legislation to Limit Number of Unpublished Works per Registration

As an update to the Nov. 1 blog entry, we have good news! According to Robert J. Kasunic, the Associate Register of Copyrights and Director of Registration Policy & Practice, the concern for photographers about the proposal to limit the number of unpublished works per application is unwarranted. He states:

[U]nder the Group Registration of Photographs Notice of Proposed Rulemaking (“NPRM”), group registration of photographs would be limited to 750 photographs rather than the five works proposed under the new Group Registration of Unpublished Works. We are still working on the Group Registration of Photographs final rule in conjunction with the public comments received in that rulemaking. In any case, we fully intend to finalize that rule before finalizing the Group Registration of Unpublished Works final rule for which we are still accepting comments until November 13, 2017. So the bottom line is that we have never intended to limit a group of unpublished photographs to five photographs, but rather the number we proposed for a group of unpublished photographs was 750. The Group Unpublished Works would not be applicable to photographers unless, for some reason, a photographer wanted to register two to five photographs.

(emphasis added).

Jeff Sedlik also reports that a new form, “GRUPH” (Group Registration of Unpublished Photographs), will be made available in the near future to provide for registrations specific to photographers.

In the meantime, photographers should follow current eCO instructions for group registrations. Whew!

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UPDATE to Copyright Office proposes limiting registration for unpublished works to only five

UPDATE!  See the November 3 blog for additional information.

Currently, you may register an unlimited number of photographs on one copyright registration application if the photographs are a collection of unpublished works by the same author and owned by the same claimant. See the Compendium at section 1119. That’s especially helpful to photographers (who often take thousands of photographs), because the registration fee is $55 for each such application.

However, the U.S. Copyright Office is proposing to limit the number of unpublished works per application. In the Office’s announcement about the new rule, it stated:

The proposed rule would replace the current “unpublished collections” registration option. Among other things, applicants would be required to submit an online application and upload their works to the electronic registration system, although the Office may waive these requirements in exceptional cases.

The proposed rule offers a number of significant benefits compared to current practices: it would allow the Office to more easily examine each work for copyrightable authorship, to create a more robust record of the claim, and to improve the overall efficiency of the registration process.

What the Office failed to mention in its announcement is that the proposed rule will limit the number of works per application to only five. See the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2017-10-12/pdf/2017-21722.pdf. That would make it much more expensive for photographers to register their unpublished photographs.

What’s strange is that the Copyright Office allows you to register an unlimited number of published photographs on the same application as long as they were published in the same year. See the Compendium at 1116.1. So a photographer could publish photographs on a website and register thousands of published photos on a single application to avoid the effect of this proposed rule. But this seems an unnecessary burden.

Please let the Copyright Office know that you oppose the proposed rule. Leave your comments here by November 13, 2017, at 11:59 p.m., eastern time.

HT: David Oppenheimer

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Does Linking to Photographer’s Website Void DMCA Claim for Removing Watermark?

Evan Brown over at Internet Cases has an informative post about a recent New York copyright infringement case where the alleged infringer (“Tibi”) cropped the photo at issue to remove the photographer’s watermark of “(c) Matilde Gattoni Photography, 2016, All rights reserved”) before posting the photo on Tibi’s Instagram page. Tibi included with its Instagram post an image of a camera, a colon, and a hyperlinked reference to Gattoni’s Instagram page. (Note only that the copyright symbol ©, the word “copyright” or the abbreviation “copr.” meets the formal definition of copyright notice –not a “(c),” along with the year of first publication and the copyright owner’s name. However, what constitutes copyright management information (CMI) is broader.)

The court tossed the photographer’s copyright infringement claim because she didn’t have a registration prior to filing suit (so timely register your copyrights).

The photographer also made a DMCA 1202(b) claim against Tibi. That statute provides:

No person shall, without the authority of the copyright owner or the law—

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title

(emphasis added).

Therefore, actions that violate any of the clauses of this statute (as indicated by the “or” at the end of the 2nd clause) is enough to violate the statute as a whole.

Tibi argued that its linking to the photographer’s Instagram account removed any required “intent” for the photographer to be successful on her DMCA claim. But the court didn’t buy it. While linking to the photographer’s account may “diminish” the photographer’s claim, it didn’t eliminate it, at least at this phase of the litigation.

The parties settled soon after the court allowed the photographer’s claim to go forward. The court’s order is available here: https://ecf.nysd.uscourts.gov/doc1/127120350762

Here’s why this ruling is important to photographers: it’s easy for an infringer to copy a photo from the web and paste it elsewhere. The photo is then separated from any CMI posted next to the photo. Since many infringers claim that they didn’t know that a photograph was protected by copyright, their argument is hollow if the photographers CMI is on the photo. In addition, have a copyright notice posted with a photo prevents an infringer from claiming innocent infringement. https://www.photoattorney.com/stopping-the-innocent-infringement-defense/

Only the copyright owner should decide whether her photo on the web without her CMI watermark. Kudos to this photographer for fighting for her rights.

To learn more about DMCA claims, check this blog entry: https://www.photoattorney.com/watermarks-can-be-music-to-your-ears/

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Copyright Office Proposes Rule to Establish a Group Registration for Unpublished Works

The United States Copyright Office is proposing to create a new group registration option for a limited number of unpublished works. The proposed rule would replace the current “unpublished collections” registration option. Among other things, applicants would be required to submit an online application and upload their works to the electronic registration system, although the Office may waive these requirements in exceptional cases.

The proposed rule offers a number of significant benefits compared to current practices: it would allow the Office to more easily examine each work for copyrightable authorship, to create a more robust record of the claim, and to improve the overall efficiency of the registration process.

The notice of proposed rulemaking and instructions on how to submit a comment are available here. Written comments must be received no later than November 13, 2017, at 11:59 p.m. Eastern time.

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Finding the DMCA Agent for a Website

The Digital Millennium Copyright Act (“DMCA”) is a wonderful tool for fighting copyright infringement. Check this article for information on how to use it.

Fortunately, the U.S. Copyright Office has made it easier to find the DMCA service providers’ agents for you to notify about claimed infringements. Specifically, under the DMCA, certain internet service providers (for example, those websites that allow users to post or store material on their systems and search engines, directories, and other information location tools websites) must maintain an active registration of their agents with the Copyright Office to be eligible for safe harbor protection from copyright infringement liability. While the service provider must make the agent’s current contact information available on its website to the public, it may not be easy to find. Fortunately, the service provider also must provide the same contact information to the Copyright Office, which maintains a centralized online directory of designated agent contact information for public use.

Therefore, if you can’t find an agent’s contact information on the service provider’s website, you can search the Copyright Office’s database here: https://dmca.copyright.gov/osp/. For example, when you search for “Tumblr,” you’ll see listings for several matching names to find the correct one. When you click on “Tumblr.com,” this page appears: https://www.copyright.gov/onlinesp/list/a_agents.html with the name and address for Tumblr’s DMCA agent. Contact this agent to ask Tumblr to remove any of your photos being infringed there.

Note there is a transition period between the old and new agent directories. Any service provider that has designated an agent with the Copyright Office prior to December 1, 2016, must submit a new designation electronically using the online registration system by December 31, 2017. The old directory is available at https://www.copyright.gov/onlinesp/list/a_agents.html. All current agents should be on the new directory by 2018.

While copyright infringement is rampant, at least there are more and better tools for fighting it.

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