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,

Membership Has Benefits Beyond the Obvious

Photo of a bird in a tree by Tom Haxby.
Photo by Tom Haxby.

By NANPA President Tom Haxby

Fellow board member Lisa Langell recently shared with me a member survey from another photography organization which had been used to assess their member benefits and services. Serendipity, perhaps, because lately I’ve been thinking a lot about the benefits of being a NANPA member.

More than Pretty Pictures

When I joined NANPA just over 10 years ago, I did so because I was interested in nature photography and believed membership could help me improve my photographs. But I discovered that NANPA is about more than just taking better nature photos.

At the NANPA Summit in Jacksonville in 2017, and again in Las Vegas in 2019, I learned that nature photography is about more than just pretty pictures. It’s also about using photos to affect change.

In Jacksonville, Clyde Butcher spoke about efforts to save Florida’s natural areas and shared his own conservation work. His presentation was complemented by a video, created by NANPA’s Summit College Photography Scholarship Program participants, about attempts to connect these areas to create greenway corridors.

Several of the presentations in Las Vegas on conservation challenges in the Arctic were really eye-opening. Other Summit presenters like Clay Bolt and Andrew Snyder inspired me with their work on rare, threatened and endangered species through the Meet Your Neighbours technique. Because of them, I now have my own Meet Your Neighbours setup. 

I’ve seen how conservation photography can make a difference. Want to get started? NANPA’s recently-published Conservation Handbook is available to anyone interested in learning how. Find it in the Members’ Area of the NANPA website or click below.

Cover of the NANPA Conservation Photography Handbook

Ethics and Advocacy

Speaking of handbooks, we currently have available on our website a guide to the Principles of Ethical Field Practices. But that is just the beginning! NANPA has undertaken a much more extensive project to create a handbook on the ethics of nature photography. Your membership helps support large undertakings such as this that will allow NANPA to take a leadership role in educating photographers on ethics. Quite frankly, this is very much needed as the overzealous pursuit of nature and wildlife photos threatens both scenic places and the plants and animals we love photographing. And bad behavior threatens continued access to these places by photographers.

Your membership has also helped support our work on behalf of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act of 2019). If passed by Congress and signed into law, the CASE Act would provide photographers with the option of pursuing infringers in a small claims-type of process instead of federal district court. Read more about how the CASE Act will help photographers

Friendship and Networking

I will always remember the NANPA Regional Events that I attended in the Smokies and Upper Peninsula of Michigan—for the great images and friendships made. It will be my great pleasure to now be a regional event leader, myself, in the Smokies this spring with Hank Erdmann. NANPA has many more Regional Events scheduled for all levels of photographers in various parts of the country.

There are larger events, too, that offer many of the same benefits but on a bigger scale. Just around the corner is our second Nature Photography Celebration in Asheville, NC, April 19-21. These Celebrations provide opportunities for shooting, interaction with vendors, learning, networking and more. Asheville is a great place to be in April.

Travel and Equipment Insurance

As I move about the country with my photo gear in airports, cars, and on location, I am thankful that I have insurance on my photography equipment underwritten by Chubb in association with NANPA. You can find information about this and all the other NANPA member benefits in the Members’ Area of the website.

And Taking Better Pictures, Too

All that being said, my membership has also helped me improve my nature photos, just as I originally anticipated when I joined.

During my time with NANPA, I have entered the Showcase Competition, and I have been fortunate to have a few photos published in Expressions. (It’s a great source of ideas and inspiration so order your copy now!) This gave me confidence that I could get great images because, the reality is, if you want to be taken seriously as a nature photographer, quality matters.

I have attended many memorable webinars, both live and recorded. These sessions are free for members and a great way to learn or refresh photography skills. Best of all, you can participate at your own convenience, from wherever you are. Our next webinar, sponsored by Tamron on February 13 is Getting the Most from Your Long Lens with Bob Coates. Sign up or watch a recording of a previous webinar in the Members’ Area.

Sandhill Cranes flying together © Bob Coates.
Sandhill Cranes © Bob Coates.

Portfolio reviews, offered at each Summit hosted in odd-numbered years, provide another opportunity for learning from industry professionals including but not limited to agents and editors. We are currently working on logistics for our next Summit in Tucson in 2021, so stayed tuned for that.

Blog articles are yet another source of education and inspiration, and I especially enjoyed the recent article by Bill Palmer on Chasing Spring Warblers. There will be plenty of warblers—and photographers—at this year’s Biggest Week in Birding Festival at Magee Marsh in Ohio at which, by the way, you can find the NANPA booth. Note that our blog is separate from our regular member and non-member news lists, so if you do not already get NANPA blog posts in your email, you can subscribe on the right hand side of any of them (including this one).

Perhaps you might be interested in submitting a blog post too. What a great chance to expose your photos (pun intended) and stories to fellow NANPA members. Just send a note to publications@nanpa.org. That’s what we mean when we talk about “sharing” within NANPA. Everyone is both a teacher and student here.

That’s true regardless of age. As I highlighted in last month’s blog post, young nature photographers are becoming members and getting opportunities through NANPA’s high school and college scholarship programs, both of which are made possible in part due to your support of the NANPA Foundation. By the way, the Foundation’s Online Auction has some great items up for bidding starting February 3rd.  All proceeds go towards funding Foundation programs.

What Will You Do?

Gordon Illg has been known to tell me that I ramble, so I need to wrap up. But there really is a lot going on at NANPA, and I hope that you will take advantage of the opportunities. We are working hard to make NANPA a place for nature photographers to achieve all of their nature photography dreams. What will you do this year to help you reach yours?

Exclusive opportunity for NANPA members

Laptop on desk showing NANPA website

NANPA members are encouraged to share stories, tips, and how-to articles on our blog. Not as gifted at writing as you are photography? No problem. We can help you craft a post.

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

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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Your Support is Needed

Why NANPA is supporting a copyright small claims tribunal and why you should too

by Jane Halperin, NANPA Advocacy Committee

Let’s face it, the current U.S. copyright system does not work for the majority of photographers who  operate as individuals or small business owners for a variety of reasons, including the complexity of registration. But perhaps the most significant reason is due to the inability of photographers whose work product is not low volume/ high value to enforce their ownership rights against infringers.

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From the Executive Director- Susan Day

Susan Day- NANPA Executive Director

Do you register your photos with the US. Copyright Office? Most photographers don’t, which is a shame, because if your work is ever used without your permission, your chances of compensation are reduced—or unlikely—for unregistered work. One of the main reasons photographers and artists don’t register their images is because it’s a lot of work and takes a lot of time.

NANPA has been involved with a visual artists’ coalition for approximately 20 years, and two of their ongoing goals have been streamlining the copyright registration process and in recent years, developing a process for small claims filing for copyright violations. Continue reading

Viral Images and Photographer Licensing

Story by Sean Fitzgerald, NANPA Past President

A  Manatee Image Goes Viral

An interesting article in PetaPixel raises a whole host of troublesome issues for the modern photographer. https://petapixel.com/2017/09/13/shot-hurricane-irma-photo-went-viral-wasnt-paid-dime/ Michael Sechler, a self-professed “photography enthusiast”, shot a very fine image of a manatee beached out of the water by the tidal surge from Hurricane Irma.

He posted it to Facebook, the image went viral, and then the real fun started. Fox News called. The Associated Press called. Everyone wanted to use the image in news stories, but they all wanted it for free.

Color me shocked. Continue reading

Survey on Next Register of Copyrights

By Jane Halperin and Sean Fitzgerald

Columns and U.S. Flag at U.S. Supreme Court, Washington D.C. USA.

Columns and U.S. Flag, Washington D.C. USA.

As most of you already know, the United States Copyright Office, which is a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the U. S. and, as a service unit of the Library of Congress, provides copyright policy advice to Congress. Continue reading