Do you need permission to sell licenses for photos of people?

In general, you may photograph people in public. The use of those photographs can be restricted due to state privacy laws, often called the “right of publicity” or “misappropriation.” While the specifics of these laws vary by state, they prevent the unauthorized use of a person’s likeness for commercial purposes (such as on merchandise or for advertising or trade). The laws do not apply if the image is used editorially, which includes newsworthy items and fine art. See my September 14, 2005, blog entry for a summary of the different privacy rights.

In the recent case of Maloney v. T3 Media, Inc., former student-athletes Patrick Maloney and Tim Judge alleged that T3Media had unlawfully exploited their likenesses commercially by selling licenses for photographs for “non-commercial art” purposes.

On appeal, the U.S. Court of Appeals for the Ninth Circuit noted that the Copyright Act affords copyright owners the “exclusive rights” to display, perform, reproduce, or distribute copies of a copyrighted work, to authorize others to do those things, and to prepare derivative works based upon the copyrighted work. 17 U.S.C. § 106. In other words, the copyright in a photo gives the owner “the right to control the work,” including the power to to make the work available to the public.

Section 301 of the Copyright Act works “to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works,” so long as the rights fall “within the scope of the Federal copyright law.” H.R. Rep. No. 94-1476, at 130 (1976). That is, copyright law (which is federal law) will preempt or override a conflicting state law.

After an extensive two-part analysis, the Court held that the Copyright Act preempted the plaintiff’s state-based right-of-privacy claims “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.” That means that T3 did not violate the athletes’ rights of privacy when selling licenses for photos of the players for editorial use, even if T3 made money from the licenses. The criterion is the end-user’s use of the licensed photos.

On the other hand, the Court noted that a right of publicity claim is not preempted when someone’s name or likeness is used without consent on merchandise or in advertising. That would be a “commercial” use requiring the person’s permission, such as through a model release. Since Maloney and Judge never alleged that their names or likenesses were in connection with the sale of merchandise or in advertising, it wasn’t an issue.

For a more detail analysis of the case, check Rebecca Tushnet’s blog entry.

What does this mean for photographers? Make sure that you have a model release before using a person’s photograph commercially. In this case, though, consent wasn’t needed because the photos were being licensed only for non-commercial/editorial use.

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House Overwhelmingly Passes Bipartisan Legislation on Selection Process for Copyright Register

The House of Representatives today approved by a vote of 378-48 the Register of Copyrights Selection and Accountability Act (H.R. 1695).  This bipartisan bill – introduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.) — makes important changes to the selection process for the head of the U.S. Copyright Office, known as the Register of Copyrights.

Specifically, the Register of Copyrights Selection and Accountability Act creates a selection panel made up of Members of Congress and the Librarian of Congress.  This panel would be tasked with submitting a list of at least three qualified individuals to the President for his or her consideration. The President would nominate an individual from the selection panel’s list and that individual would be subject to confirmation by the U.S. Senate.  The legislation also limits the Register to a 10-year term which is renewable by another Presidential nomination and Senate confirmation.

Chairman Goodlatte and Ranking Member Conyers praised today’s approval of the bill in the statement below.

“The Register of Copyrights Selection and Accountability Act is one product of the House Judiciary Committee’s multi-year comprehensive review of our copyright laws.  This bipartisan review, which began under the tenure of the former Librarian of Congress in April 2013, has been focused on ensuring our copyright laws keep pace in the digital age and has included much discussion on the merits of giving the Copyright Office more autonomy with respect to the Library of Congress.

“While this legislation represents an important first step in the Committee’s efforts to update our nation’s copyright laws, we remain committed to working with all members and stakeholders to take additional steps to ensure the U.S Copyright Office is modernized so that it functions efficiently and effectively for all Americans.”

Background: Chairman Goodlatte first announced the House Judiciary Committee’s intention to undertake a comprehensive review of U.S. copyright law on April 24, 2013, in a speech before the World Intellectual Property Day celebration at the Library of Congress.  As part of the copyright review, the House Judiciary Committee held 20 hearings which included testimony from 100 witnesses.  Following these hearings, Chairman Goodlatte and Ranking Member Conyers invited all prior witnesses of the Committee’s copyright review hearings and other interested stakeholders to meet with Committee staff and provide additional input on copyright policy issues.  In addition, the House Judiciary Committee conducted a listening tour with stops in Nashville, Silicon Valley, and Los Angeles where they heard from a wide range of creators, innovators, technology professionals, and users of copyrighted works. In December 2016, Chairman Goodlatte and Ranking Member Conyers released the first policy proposal to come out of the Committee’s review of U.S. copyright law.  Additional policy proposals will be released.

More information on the House Judiciary Committee’s comprehensive copyright review can be found here.

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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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Tell Congress to Vote “Yes” on H.R. 1695

From the APA (published here with permission):

Last week, House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers, Jr. (D-MI) introduced the H.R. 1695, The Register of Copyrights Selection and Accountability Act

The bill passed out of the Judiciary Committee in a nearly unanimous 27 to 1 vote!
It will now go to the full House of Represenatives for a vote.

The bill would elevate the Register of Copyrights (previously held by Maria Pallante) to a position appointed by the President with the Advice and Consent of the Senate. We believe this will provide a more transparent and accountable selection process. The Copyright Office has been operating without a permanent Register since last October. It is urgent that this issue is addressed so efforts to modernize the Copyright Office can move forward.

It is vital that Congress hears from creators about the importance of this issue. APA and organizations representing creators from across the spectrum of the creative community have already voiced their support.

Take Action here through our partners at the Copyright Alliance 
http://copyrightalliance.org/get-involved/add-your-voice/

The vote is due to happen this week or next.  

Here are the members of Congress (members of the Judiciary Committee) who voted for this bill and have shown their support for the creative communities:

Rep. Karen Bass, D, CA-37
Rep. Steve Cohen, D, TN-09
Rep. John Conyers Jr., D, MI-13
Rep. Ted Deutch, D, FL-22
Rep. Sheila Jackson Lee, D, TX-18
Rep. Pramila Jayapal, D, WA-07
Rep. Hakeem Jeffries, D, NY-08
Rep. Ted Lieu, D, CA-33
Rep. Jerry Nadler, D, NY-10
Rep. Jamie Raskin, D, MD-08
Rep. Brad Schneider, D, IL-10
Rep. Eric Swalwell, D, CA-15
Rep. Andy Biggs, R, AZ-05
Rep. Ken Buck, R, CO-04
Rep. Doug Collins, R, GA-09
Rep. Ron DeSantis, R, FL-06
Rep. Blake Farenthold, R, TX-27
Rep. Trent Franks, R, AZ-08
Rep. Louie Gohmert, R, TX-01
Rep. Bob Goodlatte, R, VA-06
Rep. Trey Gowdy, R, SC-04
Rep. Darrell Issa, R, CA-49
Rep. Mike Johnson, R, LA-04
Rep. Jim Jordan, R, OH-04
Rep. Raul Labrador, R, ID-01
Rep. Ted Poe, R, TX-02
Rep. John Ratcliffe, R, TX-04

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Copyright Registration Tip

 

It’s a given that registering your copyrights is a good thing. While the eCO system has made it easier, you sometimes may get stuck in the process.

Which is what happened to me recently. While uploading the deposit copies for a registration, it looked as though I lost my internet connection. Thinking that the files didn’t get submitted, I uploaded them again. When the Copyright Office (“CO”) sent me emails with the “Acknowledgement of Uploaded Deposit,” I realized that I had duplicates.

Uh, oh.

The eCO website states:

Please note: Files cannot be returned or deleted once uploaded. To avoid delays and/or a later effective date of registration, please verify the following before uploading a copy of your work(s):

Since I couldn’t delete the duplicates, I contacted the CO, stating:

When uploading files for a registration, the website appeared to freeze. Therefore, I unintentionally uploaded some files twice. Do I need to fix this or should I close the registration? Thank you!

The CO responded within 3 days:

Duplicate files are not a problem, however after filing, reply with the application case number so we can place a note re this matter.

I closed the registration and gave the CO the application number.

Case closed! Thanks, CO!

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The Unique Work Made for Hire Relationship in California

Many clients think that they own the copyrights to the photos when they hire a photographer. But, in the United States, if the photographer is not the client’s employee (a w2 employee instead of a w9 independent contractor), the photographer owns the copyrights unless the photographer first agreed in writing and the work falls into one of 9 statutory categories.

Circular 9 from the U. S. Copyright Office explains: a work made for hire (WMFH) is ”a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The Circular emphasizes that when the work is created by an independent contractor, both parts must be satisfied–that is, the agreement must be in writing AND the work must fit one of those 9 categories. See also 17 USC 101.

On the other hand, if photos are taken by an employee within the scope of employment, then the photos are a WMFH and the employer is both the “author” and owner of the copyrights.

More companies now insist that they own the copyrights to avoid future infringement claims or licensing expenses, which can be a disadvantage to shooting WMFH photos.

However, in California, Labor Code Section 3351.5(c) provides:

Any person while engaged by contract for the creation of a specially ordered or commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.

Likewise, California Unemployment Insurance Code Sections 686 and 621(d) provide that:

Employer also means any person contracting for the creation of a specially ordered or commissioned work of authorship when the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all of the rights comprised in the copyright in the work. The ordering or commissioning party shall be the employer of the author of the work for the purposes of this part.

Therefore, you technically are an employee of any company that hires you to take photos pursuant to a WMFH agreement. Fortunately, the company then must provide workers’ compensation insurance to cover you if you get hurt on the job.

Because California companies have additional responsibilities when you’re an employee (such as payroll taxes and mandatory reporting to the state), they likely will try to avoid the traditional WMFH agreement by asking you to later transfer the copyrights or allowing you to keep some of the rights.

Whatever the agreement, be sure to review it closely so that you understand your rights.

 

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Copyright Office Launches Blog

Today the U.S. Copyright Office launched its new blog, Copyright: Creativity at Work. The blog supports the Office’s 2016–20 strategic plan of sharing Office activities and issues of public interest through expanded social media. Blog posts will feature such topics as Office news, registration practice updates, law and policy developments, copyright basics, and copyright lore. In the inaugural post, Acting Register of Copyrights Karyn Temple Claggett reintroduces the people and the work of the Copyright Office. Subscribe to Copyright: Creativity at Work here.

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Copyright Office Proposes Amending Regulations to Address Disruption of Copyright Office Electronic Systems

The U.S. Copyright Office is proposing to amend its regulations to address the effect of a disruption or suspension of any Office electronic system on the Office’s receipt of applications, fees, deposits, or other materials.  The amended regulations specify how the Office will assign effective dates of receipt to materials attempted to be submitted during a disruption or suspension of an Office electronic system.  In addition, the proposed rule specifies how the Office will assign effective dates of receipt when a specific submission is lost in the absence of a declaration of disruption, as might occur during the security screening procedures used for mail that is delivered to the Office.

The Office seeks public comments on the proposed regulations that will be considered in promulgating a final rule.

The proposed regulations and instructions on how to submit a comment are available here. Written comments must be received no later than April 3, 2017, at 11:59 p.m. Eastern time.

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Copyright Office Extends Comment Period for Moral Rights 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 the moral rights of attribution and integrity.  Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.  Additional information, including instructions on how to submit a comment, is available here.

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Copyright Office Launches Updated Website

The U.S. Copyright Office has launched its updated website, www.copyright.gov. The website has been redesigned to be more organized, more responsive, and easier to digest. It now features a new header with global navigation and search, and expanded width in all sections to maximize screen usage. Several individual pages have been consolidated for improved navigation. A new page, History and Education, includes a wealth of information such as the History of Copyright Law, Past Reports and Publications, and Past Announcements.

Looks good!

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