Since this article comes out on Labor Day, it’s probably fitting that it addresses copyright issues. How cases like these are resolved determines, at least to some extent, how much of the fruit of your labors you can retain. Here are three copyright examples to keep your eye on.
It must be photo contest season. Hardly a day goes by without me seeing at least one notification about an upcoming photography competition. Some have substantial prizes, others offer recognition and exposure. Are they worth it? And what are you getting yourself into? The answers are in the fine print. You do read all the contest rules, don’t you?
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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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.
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.