Copyright Office Releases Redlines for Draft Compendium

The U.S. Copyright Office today announces the posting of redlines comparing the current version of Compendium of Copyright Office Practices (Third), which was released December 22, 2014, and the public draft of Compendium (Third), which was released June 1, 2017. The redlines are available on the revision history portion of the Compendium webpage. They are intended to assist members of the public in understanding the amendments and revisions contained in the public draft. The Office previously released a list of all sections that have been added, amended, or removed in this update, and a set of release notes providing a brief summary of the substantive revisions. The Office has extended the deadline to provide comments until July 30, 2017. Comments may be submitted on the Office’s website.

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Copyright Office Introduces Online Supplementary Registration

The U.S. Copyright Office announces that, as of July 17, it will for the first time begin accepting applications for supplementary copyright registration—used to correct or amplify information set forth in a basic registration—through the Office’s online registration system. Applicants will generally be required to file applications for supplementary registration online. The Office has also made other changes to the practices relating to supplementary registration, described in a final rule published in the Federal Register today. To help ease the transition to online filing, the Office will provide guidance in updates to the Compendium of U.S. Copyright Office Practices, as well as an online tutorial.

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PhotoAttorney Blog: Top 50 Copyright Blog

PhotoAttorney blog is honored to be selected by Feedspot as one of the Top 50 Copyright Blogs on the web.

These Top 50 blogs are ranked based on following criteria:

  • Google reputation and Google search ranking
  • Influence and popularity on Facebook, twitter and other social media sites
  • Quality and consistency of posts.
  • Feedspot’s editorial team and expert review

Check all of these great blogs to learn how best to protect your rights!

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Copyright Office Publishes Recent Review Board Decisions

The Copyright Office today announces the launch of an online database of decisions from April 2016 to present by the U.S. Copyright Office Review Board, which hears final administrative appeals of refusals of copyright registration. The decisions are searchable and include an index; new decisions will be added as they are issued. The decisions will be a valuable resource to those seeking a better understanding of how the Copyright Office assesses whether works satisfy the legal and formal requirements for copyright registration. The index is available here.

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Copyright Office Releases an Updated Draft of the Compendium of U.S. Copyright Office Practices, Third Edition

Acting Register of Copyrights Karyn Temple Claggett today released a revised draft of the Compendium of U.S. Copyright Office Practices, Third Edition. This draft includes the first proposed updates to the Compendium since its release in December 2014. The public draft is available on the Office’s website at https://copyright.gov/comp3/draft.html. It will go into effect on July 3, 2017.

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 CFR. § 201.2(b)(7). The proposed updates are the result of a comprehensive review of the Office’s practices and procedures. The draft revisions to the registration chapters clarify how and when the Office communicates with applicants and how it handles duplicate claims, deposit requirements, and claims involving multiple works, among other improvements. The update also provides preliminary guidance for claims involving useful articles based on the Supreme Court’s recent decision in Star Athletica v. Varsity Brands.

The draft revisions to the recordation chapter provide additional guidance for recording notices of termination and information on the Office’s new electronic system for the designation of agents. The draft update also addresses recent changes in the Office’s regulations, including the “mailbox rule” for requests for reconsideration, new procedures for removing personally identifiable information, and changes made by the Office’s technical amendments. For a full accounting of draft Compendium revisions, read more.

Additionally, the Compendium has been reformatted to improve readability for online and offline users. When the revision is released in final form, it will include improved hyperlinks to provide direct access to legal citations and resources on the Office’s website, as well as improved cross-references between chapters.

Public comments on this draft may be submitted from June 1 to June 30 using the provided form. See www.copyright.gov/comp3/draft.html for more information.

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Copyright Office Adopts Final Rule to Address Disruption of Copyright Office Electronic Systems

The U.S. Copyright Office has issued a final rule 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 Copyright Office received six comments in response to the Notice of Proposed Rulemaking, all of which were supportive of the proposed regulation changes. The final rule specifies 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 final rule specifies how the Office will assign effective dates of receipt when a specific submission that is physically delivered or attempted to be physically delivered to the Office is lost or misplaced 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.

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Pilot Program for Bulk Submissions of Copyright Registration Applications

Photographers often are also writers or bloggers. So it’s good news that the U.S. Copyright Office has published a public notice announcing a pilot program that will allow for the bulk submission of copyright registration applications in certain limited types of literary works.  Specifically, at this time, the pilot program is limited to claims to single literary works that have a single author, where all content that appears in the work was created and is owned solely by that single author.  Applicants that participate in the pilot will be required to provide author, title, and other pertinent information for each work they submit; upload a copy of each work; and pay the appropriate filing fee.  However they will be able to bypass the Office’s online interface and transmit their claims directly into the electronic registration system instead of filing them on an individual basis.

To participate in the pilot, applicants would have to comply with certain technical requirements.  For example, applicants would need to cooperate with and obtain approval from the Office’s technology staff during each phase, as the Office creates a separate portal into the eCO system for each participant.

The Office is offering this pilot as part of its continuing effort to increase the efficiency of the registration system for both applicants and the Office alike.

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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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