Continuing Copyright Confusion

copyright symbol
“Copyright”, image by Pete Linforth, Pixabay license.

By Frank Gallagher, NANPA Blog Coordinator

This year has been a real roller coaster ride. From COVID-19 to a presidential election and from wildfires to hurricanes, we’ve been put through the wringer. It’s been a wild year for copyright decisions, too, with the pendulum swinging from decisions that horrified photographers to ones that reaffirmed the rights of visual artists.

First, in Sinclair v. Ziff Davis, a court ruled that an online publisher could take a photographer’s work from Instagram and republish the photos without paying or obtaining permission because of Instagram’s Terms of Use. Sean Fitzgerald describe the impact of that decision here.

Then, Instagram changed its Terms of Use to expressly state that it does not give API users a license to embed third-party content. That prompted a judge to deny a motion to dismiss a copyright complaint brought by photographer Elliot McGucken against Newsweek. The publication had claimed the right to reproduce McGucken’s photo because he had posted it on Instagram. See more here and here.

Newsweek is now appealing. In light of the McGucken v. Newsweek ruling and Instagram’s clarification of its ToU, the court that heard the Sinclair v. Ziff Davis case has now reinstated Sinclair’s suit.

Recently, in Mango v. Buzzfeed, an appeals court ruled that photographer Gregory Mango was due statutory damages for copyright infringement and violations of the Digital Millennium Copyright Act by Buzzfeed. The online publisher had used a photo by Mango that had originally appeared, with attribution, in the New York Post. Buzzfeed used the same photo, without permission and without crediting the photographer. Read more here.

Finally, a photographer and model filed a copyright infringement suit against the automobile company Volvo. The photographer and model had done a photo shoot with a Volvo S60. The photographer had posted some of the shots to his Instagram account and used the tag #volvo. Volvo asked for permission to use the photos without compensation, which the photographer refused. Months later, the photographer and model were surprised to see their photos in Volvo advertising and sued. The car company is asking the court to dismiss the case by claiming that not only do they have a right to use the photos as a sublicensee of Instagram, in spite of Instagram saying that’s not true (see McGucken v. Newsweek above), but also that, because the photographer set his account to “public” and tagged Volvo, he automatically granted Volvo the right to reuse his photos. Additionally, Volvo claims Behance’s Terms of Use allow the company to also use photos posted there without compensation. Read more about this case here.

NANPA continues to monitor cases involving photographers’ rights, has been part of amicus briefs in critical court cases, and plays an active role in the Copyright Coalition, as well as the Coalition of Visual Artists. NANPA joined with other arts groups in a successful campaign to convince Instagram to change its Terms of Use, and is pushing Instagram to give photographers an option to say whether we allow third party embeds without additional permission.

NANPA also advocates for the CASE Act and modernizing copyright law. See more about all that NANPA does to protect and enhance photographers’ intellectual property rights or tell us your copyright story here.

CASE Act Passes!

Thanks to everyone who made their voices heard this week by contacting their Members of Congress and urging them to vote for the C.A.S.E. Act, H.R. 2426.  The good news is that the bill passed the House by a vote of 410 to 6, with 151 co-sponsors.  The not-so-good news is that we’re not done yet. While a similar bill, S. 1723 has passed committee, it still has to pass the full Senate, where a vote is not yet on the schedule.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2019, in a nutshell, establishes a copyright small claims court.  Currently, content creators, like photographers, must file copyright violation claims in U.S. District Court, where high fees can exceed damages and make it difficult for small businesses to seek copyright enforcement. 

NANPA has played an active role in the Copyright Alliance, a coalition of creatives advocating for creators’ rights and the CASE Act. For all the details on the Act, how it would work and the issues it addresses, see NANPA’s CASE Act: Copyright Small Claims page.

Thanks for your advocacy to protect photographers’ rights and keep an eye out for information about how you can help get the CASE Act through the Senate.

Nature Photographers Support the CASE Act

Photo of law  books.
Image by witwiccan, copyright cleared under license from Pixabay.

Story by Sean Fitzgerald

NANPA has worked long and hard to get Congress to pass the CASE Act (Copyright Alternative Small Claims Enforcement Act), which would provide photographers with the option of pursuing infringers in a small claims-type of process instead of federal district court.  You can read more about how the CASE Act will help photographers here: http://www.nanpa.org/advocacy/intellectual-property/case-act/

The good news is that the CASE Act has picked up bipartisan support in both the House and Senate. It just passed through committee in the Senate and will soon come before the House Judiciary Committee. If it passes there, the Act will proceed to a final vote in both chambers. 

In other words, this might actually happen! 

The CASE Act, HR 2426.
The CASE Act, HR 2426.

Is it a done deal? Nope. Unfortunately the so- called protectors of an “open internet” have awoken. Backed with cash from Silicon Valley, an army of lobbyists, and a fear-mongering scare campaign they have descended on Washington D.C. to righteously proclaim that the CASE Act is just an evil plot to destroy the internet by unleashing copyright trolls on unsuspecting innocents. They screech that the “sky is falling” because photographers like you and me want to use it to go after innocent grandmothers who repost social media memes on their Facebook pages.  

As we say in Texas, “I s#*t you not.”

Here is where you come in. Your voice will help drown out the nay-sayers and push this bill over the finish line. Over the next few weeks, NANPA is joining the “50 States in 20 Days” campaign to send specific messages to legislators in each state on a single, specific day. Be on the lookout for emails with specific instructions for the messages we would like you to send. Contacting your representatives will only take a few minutes, but will help make a huge difference.

WE CAN DO THIS!