We’ve written many times about copyright issues that NANPA’s Advocacy Committee, chaired by Jane Halperin and assisted by Sean Fitzgerald, is following and the actions NANPA has taken to protect the intellectual property rights of photographers. Yet another troubling example has surfaced of an initiative that tramples on photographers rights and, this time, from a surprising source: the Museum of Modern Art in New York, also known as MoMA.
Over the past two years, we have urged photographers to support the “Copyright Alternative in Small-Claims Enforcement Act of 2019” (the CASE Act). This bill would create a “small claims court” within the U.S. Copyright Office to handle copyright infringement claims from individual creators and small businesses. That would be enormously helpful for photographers and everyone in the creative community. It’s time to make one last push to get this bill over the finish line and time is of the essence.
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.
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.
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.
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.
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“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 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 Davissuggests 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.
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.
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?