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.

Challenge to Copyright

United States Supreme Court, photo by skeeze, royalty-free pixabay license
United States Supreme Court, photo by skeeze, royalty-free pixabay license

By Sean Fitzgerald

Did you know that state governments are immune from suit for copyright infringement? In Allen v. Cooper, the United States Supreme Court recently ruled that state governments are immune from suit for copyright infringement and that existing statutes eliminating that immunity failed to pass constitutional muster. As a result, state entities now have a free pass when it comes to using the work of a photographer outside of an existing contractual relationship.

This is not a hypothetical situation. For example, the University of Houston took an image by photographer Jim Olive off the internet and used it in multiple publications. Despite his dogged efforts, the University got away with it, quite brazenly. Olive uncovered at least 17 other similar infringements by Texas state entities in the course of his lawsuit.

NANPA has signed amicus briefs on the issue on behalf of Mr. Olive and others and supports efforts to pass new federal legislation correcting the problem. The Copyright Office has also asked for information regarding the experiences of artists who have dealt with state entities in order to determine the scope of the problem.

You can be part of the solution! Every voice counts. Help us gather your user experiences by answering this short survey.

Update on a Copyright Conundrum

copy of NANPA's Instagram page.
What rights do you give to Instagram and what do you retain?

In an earlier blog post, Can Websites Embed Your Instagram Posts Without Your Express Permission, NANPA’s Sean Fitzgerald wrote about the disturbing copyright decision in a recent court case, Sinclair v. Ziff Davis. The ruling has profound implications for intellectual property rights for photographers and many other creative professionals. A new court decision, McGucken v Newsweek comes to a somewhat different conclusion. Both are complicated cases and conflicting rulings, so it’s worthwhile to revisit the original article.

Sean Fitzgerald fills us in on an important clarification, just announced by Instagram, regarding its Terms of Use, the interpretation of which have been at the heart of both cases.

“In another victory for photographers, Instagram has now come down on the side of visual artists–expressly stating that it DOES NOT grant API users a blanket license to embed public third party content. This decision will undercut the recent decision in Sinclair v. Ziff Davis and give photographers who use Instagram much needed protection from blanket, unauthorized use of their Instagram posts. Instagram explained its determination in a communication with Ars Technica:

” ‘While our terms allow us to grant a sub-license, we do not grant one for our embeds API,’ a Facebook company spokesperson told Ars in a Thursday email. ‘Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.’

“Instagram’s decision is significant. Before a party embeds someone else’s Instagram post on their website, they now may need to ask the poster for a separate license and failure to do so could subject them to a copyright lawsuit. Users who fail to get such a license might still be able to assert a fair use defense as justification for their use, but they can no longer claim a blanket sublicense to do so.  

“Instagram has also stated that it is exploring the possibility of giving users with public Instagram accounts more control over the embedding of their posts. NANPA joined with other visual art groups in requesting that Instagram account holders should have the ability to control how third parties use their post and we will continue that dialogue.”

We’ll continue to monitor this and keep you informed as new information or court decisions become available,

Can Websites Embed Your Instagram Posts Without Your Express Permission?

copy of NANPA's Instagram page.
What rights do you give to Instagram and what do you retain?

By Sean Fitzgerald

Can an online publisher simply embed a photographer’s Instagram post in an online story without paying that photographer or obtaining express permission to do so? Unfortunately, a recent New York district court decision in Sinclair v. Ziff Davis suggests the answer is yes, as long as they do so consistent with Instagram’s various service agreements. While some online publishers have been embedding Instagram posts in their stories for a while, Sinclair is the first court decision that gives legal cover to the practice, leading some photographers to reassess how they use Instagram, and indeed all social media, going forward.

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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.

How Big a Problem Is Copyright Infringement?

A German company looks at the problem of image theft and copyright violation in a new report.

A German company looks at the problem of image theft and copyright violation in a new report.

It comes as no surprise to photographers that large numbers of images are “stolen” each day on the Internet.  Photos are copied and pasted by ordinary folks who don’t know any better.  And images are taken and used by people and businesses that know or ought to know that they are violating someone’s copyright.  But just how big a problem is this?

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Copyright Controversy

Perhaps you’ve heard about the controversy swirling around The Vessel, a massive “sculpture” in the heart of Hudson Yards, a huge real estate development in Manhattan? It’s been described as an M. C. Escher drawing come to life and instantly became a favorite Instagram background for visitors to New York.  You can learn more about it in the video above.

When you snag a ticket for admission to The Vessel, as in so many things in life these days, you agree to various terms and conditions. Nobody reads them, right? Well, someone did and found that, by buying a ticket, you were agreeing to terms that essentially gave ownership of your photo to the real estate development. The original terms stated that you were giving the company “the irrevocable, unrestricted, worldwide, perpetual, royalty-free, sublicensable, and transferable right and license to use, display, reproduce, perform, modify, transmit, publish and distribute such photographs, audio recordings or video footage for any purpose whatsoever in any and all media (in either case, now known or developed later).”

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Take Action NOW to Help Make Copyright Small Claims Tribunal Happen

NANPA is working hard with other photography and visual arts associations and the Copyright Alliance to establish a copyright “small claims” tribunal. This court would provide artists and photographers with an easier and cheaper way to protect their copyright without the massive expense of a typical federal court claim. It is a game-changer, if we can get it passed.

That combined effort resulted in the introduction of HR 3945, The CASE Act (Copyright Alternative in Enforcement Act), which is making its way through Congress now. We have gathered many supporters for the CASE Act, but its passage is still not assured. The CASE Act is hitting a crucial junction in the legislative process NOW and we need your help.
NANPA’s representative in on Capital Hill today to help push the bill over this next hurdle, but we need individual constituents to press their congressional representatives as well. Fortunately, it is also easy to do.

Just go to www.copyrightdefense.com/action and you can send a letter to your Congressional representative and Senators in support of the CASE Act. You can get it done in less than 2 minutes. If you have time to give your representative a call or visit them in their office, that is even better!

It has been a grueling process to get to this point, and if we can’t push it over the line now, we may never get another chance. Your help can truly make the difference!

Copyright-Alternative-Small-Claims-Enforcement-Act-10-4-17

#smallclaims #caseact #copyrightsmallclaims #copyrightdefense

Take Action NOW to Help Make Copyright Small Claims Tribunal Happen

 

NANPA has been working with other photography and visual arts associations and the Copyright Alliance to establish a copyright “small claims” tribunal. This court would provide artists and photographers with an easier and cheaper way to protect their copyright without the massive expense of a typical federal court claim. It is a game-changer, if we can get it passed.

Continue reading