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.

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,

Reverse Image Search on Google: How and Why

Story & photos by Frank Gallagher

As I write this article, many photographers are confined to their homes or immediate neighborhoods and large parts of the world have shut down because of the COVID-19 crisis. No tours, no workshops, no flying to exotic locations on assignment. So, what do you do with all that extra time? You can spend it moping around the house and making yourself crazy or you can start doing the productive tasks you didn’t have time for previously: cleaning your gear, updating your website and doing some reverse image searches.

Continue reading

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?

Continue reading

From the New President – Gordon Illg

Gentoo penguins checking out a photographer, Bleaker Island, Falkland Islands. © Gordon Illg

In an old Calvin and Hobbes cartoon—most of my philosophy comes from cartoons—Calvin comments, “I wonder why people are never content with what they have.”

Continue reading