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PPA Makes a Fall Visit to Washington

Last week, PPA's Copyright and Government Affairs department met with a series of committees and subcommittees on the Hill in order to help determine future political strategy. 

A big part of the discussions in the committees was commercial policy for a pretty polarizing and popular topic of late. You guessed it--drones! PPA argued for exemptions to be made for PPA photographers in regards to the use of drones.

It's worth noting that midterm elections happen November 4th and there will be a lame duck session after that to an undetermined time. A lame duck session occurs when Congress meets with elected successors post-midterm elections but before the successor's term begins. Because it is unknown who will be elected, it is difficult to forecast exactly what will happen in a lame duck session. 

However, Tom Chapman, Counsel to the Subcommittee on Aviation, Safety, and Security, thought it was likely that significant change in drone policy could occur as early as the lame duck session. Specifically, things could change in response to the FAA Reauthorization and Reform Act of 2012 which instructed the FAA to safely introduce drones into the national air space. This change in policy is forecasted as a result of the current influx of drone exemption applications that the FAA has recently received. While commercial drone use is illegal, the FAA allows exemptions to be applied for under §333 of the 2012 Act

So as it stands, the use of drones is still technically illegal, so use at your own risk! We will keep you updated as the situation develops. 

Another central issue with copyright policy is that there is no small claims remedial process. Because of the disenfranchisement of all people in federal court, the Copyright Office agreed with PPA that there needs to be a type of federal small claims court, which would thereby allow for copyright claims to be made without an attorney. PPA argued this is necessary to help all persons through the legal system. 

PPA has long stressed the importance of a small claims court for federal suits and the proposal of a federal small claims court was generally well received. How legislators will attempt to go about this is still up for debate due to constitutional conflicts, particularly in reference to Article III of the Constitution.  

PPA will continue to be a voice for photographers on Capitol Hill. Have an issue you think we need to address? Please let us know!

We've received word from some PPA photographers that Getty Images has been sending out some unsolicited emails with YOUR images in them as a way to catch your attention and get you to become a contributing member for their libraries of stock images. Slightly unethical! (We'll explain...) 

We're not here to give you advice on whether or not to contribute to iStock, but rather to address another question: Are Getty Images/iStock infringing on your copyrights by sending you an email with your images which they did not ask your permission to use? 

The simple answer is technically, yes; however it's probably not enough to warrant any legal action. (Note: We did NOT say definitely.) The reason why is where things get interesting, because it seems that Getty/iStock have found a bit of a loophole in the law. We brought in PPA Copyright attorney, Stephen P. Morris to help explain.

Read the official statement in full below:

Professional Photographers of America and Other Photographic Associations Settle Litigation With Google

Agreement ends four years of litigation over the inclusion of visual works in Google Books 

NEW YORK, NY - Professional Photographers of America (PPA) and a group of photographers, visual artists and affiliated associations have reached a settlement with Google in a lawsuit over copyrighted material in Google Books. The parties are pleased to have reached a settlement that benefits everyone and includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rights holders and users communicate clearly and efficiently about rights in works. Further terms of the agreement are confidential. 

The agreement resolves a copyright infringement lawsuit filed against Google in April, 2010, bringing to an end more than four years of litigation. It does not involve any admission of liability by Google. As the settlement is between the parties to the litigation, the court is not required to approve its terms. This settlement does not affect Google's current litigation with the Authors Guild or otherwise address the underlying questions in that suit. 

The plaintiffs in the case are rights holder associations and individual visual artists. The associational plaintiffs are The American Society of Media Photographers, Inc., Graphic Artists Guild, PACA (Digital Media Licensing Association)., North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, and American Photographic Artists. The individual plaintiffs are Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Taback Living Trust, Leland Bobbé, John Francis Ficara, and David W. Moser. 

The case is American Society of Media Photographers, Inc. et al. v. Google Inc., Case No. 10-CV-02977 (DC) pending in the United States District Court for the Southern District of New York. 

About Google Inc. and Associational Parties

Google is a global technology leader focused on improving the ways people connect with information. Google's innovations in web search and advertising have made its website a top Internet property and its brand one of the most recognized in the world. 

Professional Photographers of America (PPA) represents more than 27,000 photographers and photographic artists from dozens of specialty areas including portrait, wedding, commercial, advertising and art. 

Founded in 1944, The American Society of Media Photographers (ASMP) is the premier trade association for the world's most respected photographers. 

The Graphic Artists Guild (GAG) is a national union of graphic artists dedicated to promoting and protecting the social, economic and professional interests of its members and for all graphic artists including, animators, cartoonists, designers, illustrators, and digital artists. 

PACA (Digital Media Licensing Association) is a trade association established in 1951 whose members include more than 80 companies representing the world of digital content licensing. 

NANPA, the North American Nature Photography Association, is the first and premiere association in North America committed solely to serving the field of nature photography. 

Founded in 1946 the National Press Photographers Association (NPPA) is the "voice of visual journalists" promoting and defending the rights of photographers and journalists, including freedom of the press in all its forms. 

The American Photographic Artists (APA) is a leading national organization run by and for professional photographers. 

Google is a trademark of Google Inc. All other company and product names may be trademarks of the respective companies with which they are associated.

 

PPA CEO David Trust goes up to Washington whenever he can to meet with people like Howard Coble (R-NC) to advocate for photographers' copyrights. But that doesn't mean that the action stops when he returns to Atlanta. Now that PPA partners with the Nickles Group, PPA is more active and knowledgeable than ever before.

With these new abilities (thanks Nickles Group!), we can let you know who is saying what to whom and where. That being said; here's the latest scoop from the Hill! 

The House Judiciary Committee recently held a copyright hearing with several testimonies from experts. Here's three of those testimonies and what it means for photographers!

1). All artists benefit from copyright advocacy! We got a good example with Rick Carnes, of the Songwriters Guild of America, arguing for a balance between fair use of works and protection for high volume producers. He stood by the current fair use doctrine that is in place in Title 17 of the U.S. Code which dictates the non-infringing uses of copyrighted works. However, he also advocated for workable remedies for small claims when copyrighted works are stolen. Ideally, this could mean for photographers that they wouldn't have to go to federal court and be required to have (very costly) legal representation.

2). Remember the 70 years post-mortem, 120 years post-creation, or 95 years post-publication rules for copyright protection? Michael Carroll, a professor at American University Washington College of Law, argued that the current copyright term should not be extended further. Thomas Sydnor, of the American Enterprise Institute, agreed, and finds that there is little to no benefit in continuing to extend the copyright term in regards to small, medium, or large businesses. 

Over the last fifty years, the copyright term has been extended. Most notably it has been extended whenever the copyright for Mickey Mouse is about to enter the public domain. Would anyone like to guess who is behind this? That's right, Disney. The Hollywood and Disney lobby have poured huge amounts of money into ensuring the extension of the copyright term over the last fifty years. 

The bearings that this has on photographers are non-particular. Meaning, anyone who has ever owned a copyright is affected by this change in the same way. Once you die, your dictated heir is not going have entitlements to the copyright(s) for as long. While this is non-particular to photographers, the fact that this discussion has made headway in the legal debate represents a dramatic shift away from what is known as the Disney Curve. The Disney Curve has dominated the extension of the copyright term with the sole intent of keeping the figure of Mickey Mouse out of the public domain. If the status quo on this were to change, it would represent one of the greatest fundamental shifts in copyright policy in the last 50 years 

3). Karyn Clagget, of the U.S. Copyright Office, thoroughly argued that visual artists should be able to receive compensation relative to the increase in value over time as opposed to a mere flat rate. For photographers, this would mean that as your work grows in value, you'd be compensated accordingly. Royalty claims can be made with the proper contracts on anything created with a copyright. For more information on how you can control royalties, review our limited usage contract under Copyright Resources on our website!

 The House of Representatives Subcommittee on Courts, Intellectual Property and the Internet heard another round of testimonials addressing the need to remedy current issues within the Copyright Law (and there are many). Here's how this hearing relates to our members:

1). Longtime PPA friend Steven Tepp, of Sentinel Worldwide, made the case that there were significant problems in the current copyright remedies legal environment. He argued for higher available statutory damages, since awarded damages are currently at a historical low point. He also argued for harsher penalties that could function better as a preventative measure as well as a higher top-end of possible monetary compensation for infringement cases.

This goes along with the availability for small claims courts for copyright cases. Though, instead of focusing on the methods of how damages are acquired, Tepp choose to spoke about altering the available results for whichever court might make a ruling on this. Remember though, the small claims court doesn't exist (yet). Let's hope his testimonial opened some eyes and ears on the Hill.

2). Nancy Wolff, partner at Cowan, Debaets, Abrahams & Shepard LLP, supported the U.S. Copyright Office's report on small claims recommendations. In support of this report, she argued for the ability to bring small claims cases to a court without the need of expensive legal representation and a procedure that lowers the plaintiffs' expenses relating to any sort of legal action.

Both Tepp and Wolff are attempting to streamline legal processes for high volume visual artists like photographers. Too often times, infringed-upon artists can do very little simply because it quickly becomes cost-prohibitive to pursue legal action, even if your business has been damaged. Hopefully, these testimonies will help our U.S. Representatives understand that things do need to change!

The above testimonies and arguments contribute to enlightening those who can make these changes and will help shape the way new copyright laws are made. Each testimony is a small piece of the giant puzzle that is a Law being passed. We'll keep you updated anytime we hear more from Washington!

We've (finally) got an update on the Walmart v. Huff case! Brush up on the story below first if you need a refresher. 

Update 7/16:

At a recent case management hearing, the judge set the trial for the trial term beginning April 6, 2015 and ending April 30. This doesn't necessarily mean the case will go to trial April 6, just that the case is set to be tried sometime during that term.  

Read the full story:

Your typical copyright infringement involves one photographer stealing another photographer's images, or reproducing copyrighted images without permission. But in this case, it's the largest retailer in the world bullying a small Arkansas studio.

Walmart and its founding family, the Waltons, have filed suit against Helen Huff, the widow of

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 Arkansas photographer David A. Huff.

David Huff's studio, Bob's Studio of Photography, was founded by his late father, Robert A. Huff, in 1946, and created portraits of the Walton family before the expansion of Walmart grew them into one of the wealthiest families in the world. But now Walmart and the Walton family are demanding that Helen Huff hand over those works.

The complaint states that they (the Waltons) seek to obtain six or more boxes of photos, negatives, and proofs, alleging that over the years, Bob's Studio retained those items "as a courtesy" to Walmart and their family (they didn't). The complaint further states that the Waltons own intellectual property rights to the photos (they don't). The fact is, under federal law, photographers own the copyrights to their own works.

PPA has been working with Huff to support her case and thereby advocate for photographers' copyrights.

"If there were ever a David vs. Goliath situation, this is it" says PPA CEO David Trust. "We simply can't remain idle and allow this to happen--it would set a terrible precedent. In our opinion, this obviously is a violation of copyright law and it is beyond question that Ms. Huff owns the photographs and if the Waltons want the photographs, they should pay for them. PPA as an association stands behind Ms. Huff and supports her case as the rightful owner of these images. We have contacted her lawyers and offered to file an amicus brief* when and if that time comes."

*What's an amicus brief, you ask? It's is a legal opinion or testimony that is volunteered by a "friend of the court" who is not a party to a particular lawsuit but has a strong interest in the case. It is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. 

PPA also advised Huff and her attorney of a separate suit, Natkin v. Winfrey, in which Oprah Winfrey claimed she owned the rights to photos of her created on her set. Since the photographers were hired as independent contractors and had not signed work-for-hire contracts, they owned the full copyrights for the images, and Winfrey's argument was swiftly rejected by the court.

Walmart filed its lawsuit against Helen Huff in state court, but because it is a copyright issue, Huff's defense removed it to federal court. The defense argues in its answer to the Walmart complaint that Huff owns copyrights to all the works her late husband and father-in-law created for the Walton family, and that they worked as independent contractors for the Walton family. In addition, Huff's defense filed a counterclaim of copyright infringement, alleging that in the past Walmart has reproduced and allowed third parties to use Bob's Studio of Photography's copyrighted works. Huff and her attorney are awaiting Walmart's answer.

UPDATED 5/21: Walmart spokesman Randy Hargrove issued a statement this afternoon: 

As you can imagine, many of the photos go back many years and commemorate the history, heritage and culture of our company. We believe that some of the photos that Bob's Studio has belong to Walmart. All we want is for the court to make it clear who rightfully owns these photographs. We tried very hard to resolve this without involving the courts. We never wanted the issue to reach this point and we've done everything possible to avoid this. 

PPA always stands for photographers' copyright protection. As such, we will continue to provide information as these cases develop. Check back for updates!

 

 

PPA's CEO David Trust is in Washington D.C. shaking hands and talking photography with legislators to keep things moving toward new copyright law. He's out there in the trenches for you all! Told you we've got your back!

He'll be passing along updates over the next couple of days which we will post here as a sort of semi-live, "PPA on the Copyright Frontlines" diary.

And look for a recap after he returns to HQ here in Atlanta!

Monday, July 7, 1:26 p.m.

Just had a great meeting with Gayle Osterberg, Director of Communications for the Library of Congress. She reiterated the importance and popularity of the photography collections at the Library. She also presented some good ideas about how PPA can work more proactively with the Library to help educate Congress about the photographic industry. Gayle is a longtime friend of PPA and industry supporter. It's good to have an ally like her working for PPA members! 

Monday, July 7, 5:50 p.m.

Had a great meeting this afternoon with Jennifer Choudhry, Legislative Director for Rep. Doug Collins of Georgia. Collins is rapidly becoming the voice of Copyright on Capitol Hill and has been very aggressive in promoting and defending creator rights--not just in Georgia but across the country. The fact that PPA headquarters in downtown Atlanta is in such close proximity to Collins' district (about 45 minutes north of Atlanta) is a plus. Look for more news in the future--we have some special plans brewing for the pro-copyright congressman.

Tuesday, July 8, 8:58 a.m.

We have a busy day planned today on Capitol Hill: Five copyright meetings scheduled with members of Congress from Pennsylvania, New York, Texas, California, and North Carolina and a lunch with David Whitney, Chief Counsel for the House Subcommittee on Intellectual Property. It is very hot here, but will be a great day as PPA works to advance the cause of photographers in Washington D.C. 

[Don't forget you can contact your local legislator too!] 

Tuesday, July 8, 4:42 p.m.

Met with Congressman Howard Coble (R-6th North Carolina) to discuss the House Judiciary copyright review. Mr. Coble is a key player in legislation related to copyright as he is the current Chairman of the House Judiciary subcommittee on Intellectual Property as well as the Co-Chair of the Creative Rights Caucus. David artfully made the case for a balanced view of copyright to ensure that the voices of the small businesses and solo-practitioners in the creative community, such as photographers, are heard.

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Tuesday, July 8, 5:19 p.m.

David Trust converses with PPA consultant Cindi Tripodi, partner with the Nickles Group, outside of the Capitol after a successful day of Hill meetings.

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If you weren't watching R Street's Hangout about copyright reform last week, you were missing a seriously concerning conversation.

The question of the day was "Has copyright gone too far?" 

R Street invited Tom W. Bell, author of the book Intellectual Privilege, Derek Khanna of R Street, Mitch Stoltz of the Electronic Frontier Foundation and Ryan Radia of the Competitive Enterprise Institute to express their opinions. The discussion began with each of the panelists introducing their take on modern copyright law, and what he thought should be done about them. 

While each panelist agreed that modern copyright law needed to be worked on, they disagreed on what needed to be fixed - Bell argued for "the founders' idea of copyright," in reference to the Copyright Act of 1790 and soon the discussion turned to upholding outdated laws and applying them to modern society. Those in the online audience who asked questions about how this was working against the little guy - i.e., freelance writers, e-book authors, small creative business owners - were largely ignored, and their plight in fighting infringement was only briefly acknowledged. Some of the panelists even suggested that they shouldn't have property-like protections for their work because it would stifle others' creativity.

Um, excuse me?

But the talk ended on a note that everyone could agree on: "We can do better than what we have," Bell said.

Yes, indeed! But it's up to us to initiate this change. And when we say 'us', we mean all of us image creators, photographers, artists at large! As you know, PPA is representing photographers on Capitol Hill, month after month, advocating for small business copyright owners. You should join the movement for copyright reform so that things CAN move forward sooner than later. How? Simply letting your opinion known to your local representative (this hyperlink will help you identify who's yours!) You may think that your impact is a small water droplet, but if we ALL take a moment to tell them why it's important to protect our works, we'll be that much more. If you don't quite know what to say, you can check back to the blog for a template letter you can use. After all, what is an ocean but a multitude of drops? In the mean time, here are some easy ways to help you contact Congress!


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And the copyright movement rolls on! PPA CEO David Trust sent us some quick updates before hopping on a plane to return to PPA HQ from Washington.

Today, Trust met with Joe Russo, Coalitions Director for the House Judiciary Committee. Says David: "He is very receptive of our message and feels House Judiciary Committee Chairman Bob Goodlatte will work hard to protect the rights of small business copyright holders." 

Trust then met with Tommy Binion, Legislative Director for Congressman Steve King, and says, "He loves our 'copyright-holder-next-door' approach, and was very interested in our message."

As part of this visit, Trust also  delivered post Orphan Works Roundtable comments on behalf of photographic and graphic arts associations. The comments also announced the formation of the Picture Licensing Universal System (PLUS) Coalition, made up of stakeholders from creative communities, and led by PPA. The Coalition  was created to provide equity and representation for all industries involved in creating, distributing, using and preserving images. Trust took the lead on authoring the group's comments, which you can read in full.

The document is a bit long, but demonstrates the great importance of this legislation for creators and small business owners.

PPA will continue to provide updates on the ongoing copyright movement. Check back for the latest!




PPA is proud to announce a HUGE agreement the Nickles Group to help us out on Capitol Hill. This will put us front and center during the ongoing copyright discussion at the most critical time. Momentum is really building toward that Next Great Copyright Act and we will now be more plugged in than ever. 


In fact, with the Nickles Group, we're now the only photography association with a full-time presence! This agreement is a really big deal and you need to know about it.


Here is the press release in its entirety:

 

WASHINGTON, D.C. - Professional Photographers of America (PPA) announced today it has reached an agreement with The Nickles Group, LLC, to represent PPA on Capitol Hill. The Nickles Group will help the association's lobbying efforts for photographers' copyrights.

Through the Nickles Group, one of the preeminent lobbying firms on the Hill, PPA will be at the center of the action on a daily basis. Using the Nickles Group's extensive network, PPA will make introductions, build relationships and arrange meetings with key players and also create opportunities to testify at Congressional hearings. The partnership looks to build upon the strong foundation PPA has established in Washington over the past 15 years.

Founded in 2005, the Nickles Group brings together an accomplished team of public policy advocates and experts to provide strategic advice, policy development and political navigation for clients seeking to engage in the federal legislative or executive process.

"We're pleased to join forces with the PPA to be an important advocate for the rights of photographers and other creators," said Don Nickles, chairman and CEO of The Nickles Group. "With copyright issues becoming more complex as Congress reviews the laws that govern rights, we look forward to partnering with PPA and impacting policy for the better."

Nickles, a Senator for the state of Oklahoma from 1981 to 2005 certainly knows his way around the Hill. In his tenure, Nickles built a legacy of advancing free enterprise causes, from natural gas deregulation and repeat of the windfall profits tax in the 1980s, to repeal of onerous ergonomics regulation and the fight against federalized healthcare during the Clinton Administration. He was the author of the Congressional Review Act and the Child Citizenship Act, and the principal sponsor of President Bush's economic growth package in 2003, which cut capital gains and corporate dividend taxes to 15 percent.

Thanks to this agreement PPA now has the ability to put its members front and center, a coup for PPA given the recent discussions on orphan works and the U.S. Copyright office's push for the Next Great Copyright Act. 

"This could not come at a better time for us," said David Trust, CEO of PPA. "We are entering one of the most critical eras in the history of copyright law. This relationship with the Nickles Group will ensure that PPA members, and photographers in general, will have an increased position in the copyright discussion on Capitol Hill."

The Nickles Group represents the likes of the Comcast, Eli Lilly and Company, Exxon Mobil and now PPA. The agreement makes PPA the only professional photography association with a full-time presence on Capitol Hill.

In addition to having the photography world's only copyright and government affairs department, PPA provides a wealth of resources for photographers online, including sample contracts and model releases. For more information, visit ppa.com/copyright.

 

Of course, as the Nickles Group reports back to us, we will forward the info on to you! Things are really cooking up there in Washington. BE MORE!

 

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Yesterday, PPA's board of directors visited with key staffers and senators on Capitol Hill to voice their concerns on copyright protection. You can view yesterday's post on their visit to get caught up. 

Maria Matthews, manager of PPA's copyright and government affairs department is back with an update on what went down!

 

We talked, they listened!

On behalf of PPA members and professional photographers everywhere, an excited PPA board of directors spent their Tuesday in our nation's capita. They met with chief counsels, judiciary aides and senators and told their story. They explained the impact copyright theft can have on their business and families--as well as the potential economic impact for their state--and light bulbs went on.

The board asked staffers and senators to deliver this message to the senate: Copyright affects more than just big industry; it impacts mom-and-pop businesses in every corner of their state. Many of the offices we met with agreed that strong copyright laws are essential to ensuring a thriving creative community. They also admitted that most of their efforts on the intellectual property front as of late have been focused on patent and not copyright reform--something they will be looking to remedy!

This visit was great progress for the copyright debate. Next up: Keep lobbying to get the talk moving toward action on the senate!

The board had a great time in D.C. and shared their visit all over social media. Check out their posts below.

(Click the images to view the original posts.)

 

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PPA will continue to provide updates on the ongoing copyright movement. Things are getting really exciting!



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