Continuing Copyright Confusion

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“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.

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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From the Executive Director – Susan Day

Susan Day on a foggy morning in Great Smoky Mountains National Park. Photo by Richard Day

Susan Day on a foggy morning in Great Smoky Mountains National Park. Photo by Richard Day

June 30 is the last day for Gordon Illg’s term as NANPA’s 25th president and when the board terms for Sean Fitzgerald and Ted Moreno end.

If there was a prize for the most meetings presided over, Gordon definitely qualifies!  In the last twelve months, Gordon led twelve teleconference board meetings, three teleconference executive committee meetings, two in-person multi-day board meetings, and the NANPA Business meeting held at the 2019 Summit in Las Vegas.   Not to mention, he participated in almost weekly meetings with me plus dozens of committee and planning meetings in the past year.  Gordon has been great to work with, and even though he travels a lot for his workshop business, he was always available to answer questions and kept in regular contact with me.  Gordon will continue his board service to NANPA as Past President for another year—where he’ll still get to attend plenty of meetings (but won’t have to lead them!)

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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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From the Executive Director – Susan Day

Susan Day. Photo by David Small

Photo by David Small

2018 NANPA Snapshot

The end of a year signals a time for reflection of the past months as well as anticipation of what’s ahead.  As I review 2018 for NANPA, I’m amazed at the variety and number of events and services offered for a relatively small organization.  Everything we do is coordinated by a handful of part-time contractors and around 100 volunteers.

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Google Images Adds Image Rights Metadata

In Lightroom, Bridge and other software, you can apply IPTC metadata with presets

Google Images will now include IPTC creator, credit and copyright information . . . if you have it in the image file. In Lightroom, Bridge and other software, you can apply IPTC metadata with presets.

In late September, Google announced that, in a major update to Google Images, it would be adding “rights-related meta data,” where available, to photos.  Collaborating with CEPIC, a coordinating body of stock and news agencies, museums, libraries and art galleries, and IPTC, the “global standards body of the news media,” Google designed a way to access the Creator and Credit metadata for photos.  That is, assuming you’ve included the metadata in your original upload.  Google will also be adding copyright notices in the near future.

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