Simplifying the Fair Use Doctrine, so Photographers Understand Their Rights

“Fair use.” As dedicated copyright lawyers who devote our practice to helping photographers enforce their rights, this is a phrase we often hear, usually from defendants trying to avoid paying compensation to our clients. Fair use is a commonly used defense to copyright infringement claims, but it is one that can be confusing.

Here, we will try to simplify some of the basics of fair use and how it might affect your rights.

What is the Fair Use Doctrine?

Under the fair use doctrine, there are circumstances under which someone can use copyrighted work without permission, without gaining a license, and without paying for it. Generally, whether something falls under fair use is the decision of a judge and is determined on a case by case basis.

When someone claims that their use of copyrighted work falls under this doctrine, judges consider the following when making their decision:

• purpose and/or character of the use
• nature of the work that is copyrighted
• amount and substantiality of the piece of work being used
• effect of the use upon the potential market

Fair use usually applies to work that is used for things like educational purposes, personal use, or research. One objective of the fair use doctrine is to give limited use of copyrighted work if and when it provides some benefit to the public.

Why Photographers Need to Understand Fair Use

What does it mean if you are a photographer, and someone uses one of your copyrighted photos without permission? It means that you (your copyright lawyers) have to demonstrate that the situation is not excusable under the fair use doctrine.

Is it being used to educate or help the public? Does the use deprive you of income or decrease the value of your work? Did the person using your photograph transform it in any way? Are they using all or part of the picture? These are all things to consider when determining if someone is violating your rights or is excepted under fair use.

What Does the Digitization of Photographs Mean for the Fair Use Doctrine?

In a post on canto.com, Casey Schmidt talks about how the digital era has affected fair use. “In the past, a photograph, painting, or drawing was singular, and there was a way to tell the original from a copy.”

Photographs are no longer a singular object. They can be duplicated with almost no effort once they are digitized.

In the context of fair use, Schmidt says the following:

“When considering the new landscape of fair use, think of the difference between copying a physical painting versus copying an image on a computer. Certainly, the level of effort and detail when copying a physical painting is immense. Copying an image digitally, no matter how complex, is done with the click of a mouse.”

Fair use still applies to digitized images. But, since the court considers how much effort the user puts forth to transform the work, images can be reproduced and altered so easily that it may make it harder to use the fair use defense.

Call Our Copyright Infringement Lawyers Today to Protect Your Rights

Contact our experienced copyright lawyers today for a free evaluation of your copyright claim. At Sanders Law Group, we are dedicated to protecting photographers from copyright infringement, including fair use claims.

Call our experienced copyright lawyers at (800) 979-3707 today.

Source:

• https://www.canto.com/blog/fair-use-images/

What Laws Control Copyright?

In the US, the comprehensive law that contains the basic framework for current copyright is The Copyright Act of 1976. Congress has added many sections to this framework as technology and industry have evolved. Satellite television and radio, the Internet, and social media have made it necessary for copyright laws to adapt. Some of these additions to copyright laws include:

• The Digital Millennium Copyright Act of 1998
• The Musical Works Modernization Act
• The Marrakesh Treaty Implementation Act

What Do Copyright Laws Cover?

Copyright laws generally cover a wide range of matters. They protect the work that people create and provide a framework for the rights and duties of the person who possesses a copyright.
The laws also cover copyright infringement, which is the unauthorized use of copyrighted works in ways not permitted by the owner of the copyrights.

Copyrights are important in many creative industries, as they ensure that individuals or companies cannot legally reproduce and distribute copyrighted materials without paying royalties or licensing fees.

Copyright laws also provide ways for creative professionals such as photographers and musicians, to seek remedies when someone violates their copyrights. The laws allow victims of copyright infringement to seek damages and injunctive relief, among other things.

What is Involved in a Copyright Infringement Claim?

As stated above, copyright laws allow the owner of a copyright, such as a photographer, to file a lawsuit for copyright infringement when someone uses a picture they took without permission or in violation of a licensing agreement.

The copyright holder has to do very little to be eligible to file a claim for copyright infringement. For example, if you are a photographer, you hold a copyright the moment you take a picture. You don’t have to file anything. You automatically have exclusive rights to the photograph. If someone violates your copyright, you can file a claim against them. If you register your copyright, however you have an opportunity to collect statutory damages.

In general copyright infringement requires proof that the defendant used an original work. It is not always necessary that the defendant know the work they are using is copyrighted.

In some cases, there may be a defense of “fair use,” which allows the defendant to use the copyrighted material for limited purposes.

In a successful copyright infringement case, the defendant may have to reimburse the plaintiff for attorney’s fees and costs. In addition to ordering them to pay compensation, the court may penalize the infringer in other ways, such as issuing a permanent injunction.

Contact Our Copyright Infringement Lawyers at Sanders Law Group.

If you are a photographer who needs help enforcing your copyrights or licensing agreements, call our experienced lawyers at Sanders Law Group. We offer free, no obligation evaluations of copyright infringement claims, for photographers and other creative artists.

Call us today at (800) 979-3707 for a review of your copyright infringement lawsuit.

Source:

• https://www.copyright.gov/title17/

Photography Copyright Review: Some of The Most Famous Cases in Photography History

At Sanders Law Group, we represent photographers worldwide in all types of copyright matters. We can help register copyrights, draft and enforce licensing agreements, and file lawsuits when someone infringes on your copyright.

Our vast experience handling copyright cases is coupled with in-depth knowledge of the domestic and international laws that affect photographers’ rights. Here, we share with you some of the most well-known rulings, courtesy of Pixsy.com, that have substantial impacts on photographers and their rights.

1. Photographer John Mannion photographed NBA star Kevin Garnett for a magazine. Coors recreated the photo for a billboard ad for its beer. The court ruled in favor of the photographer, stating that copyright can protect the look and feel of a photo. Factors like originality, rendition, timing, and creation of the subject matter in a photograph can have an effect on copyright infringement.
2. A Hassidic man sued a photographer for publishing a photograph of him without his permission. The court ruled that the first amendment allows photographers to publish, sell, and display “street photography,” without asking permission from the subject.
3. According to a UK court, using a photoshop technique to retouch images might result in copyright infringement. An English tea company photoshopped an image to depict a red bus driving over a gray-colored rendition of the Westminster Bridge. The image was allegedly identical to one created by a souvenir company. The judge ruled that the individual photography techniques used by the souvenir company – i.e., taking a black and white photo and inserting color or combining the image of a double-decker bus driving over the bridge, when combined created a new “intellectual creation.” The judge determined that the tea company reproduced the “combination of visual contrast features,” violating the rights of the original photographer. This “red bus ruling” remains a controversial one.
4. Lara Jane Colton was beginning a career as a professional photographer when she learned a DVD company took one of her self-portraits and was using it on the cover of a pornographic DVD. Colton won her case for copyright infringement. It was one of the first cases to demonstrate how easy it can be to steal photographs online and how important it is for photographers to enforce their rights and protect their copyrighted materials.
5. Property owners sought injunctive relief and penalties for trespassing after a photographer took a picture on their private property and sold it. The court found in favor of the photographer on the issue of copyright, declaring that taking a picture on private property does not transfer copyright to the owner of the property. Copyright remains with the photographer, even if he or she is trespassing.

These are just some of the cases that re-enforce the rights of photographers. There are issues that remain at the forefront of copyright litigation and require photographers and their lawyers to be persistent and diligent when it comes to enforcing legal rights.

Photographers Call Sanders Law Group, When They Need Help Enforcing Copyrights

Call our copyright lawyers today at (800) 979-3707 for a free evaluation of your copyright infringement lawsuit. We handle copyright cases for photographers and other creative professionals around the world. If you need assistance with a registration issue, license agreement, lawsuit, or other copyright claims, call Sanders Law Group.

Source:

• https://www.pixsy.com/the-10-most-famous-copyright-cases-in-photography/

Copyright Infringement: Be Careful What You Tweet

Several years ago, photojournalist Daniel Morel sued Getty Images and Agence France-Presse for copying and selling images from his twitter account. Morel posted photographs he took of the 2010 earthquake that ravaged Haiti.

Morel, the photographer, was awarded over $1 million in damages in a case that clarified this point as reported on Pixsy.com: “Twitter allows for posting and retweeting, but not commercial use of photos posted by users.” Despite this ruling and much to the dismay of photographers around the world, many still believe that they can use copyrighted pictures anyway they want to, just because they are put on social media. Our lawyers at Sanders Law Group, know this is not the case and do our best to help photographers protect their rights to control and earn money from their work.

Variety Report: Twitter Deletes Photo of Trump After Copyright Complaints

Variety.com shared the news that Twitter removed a photo posted by President Trump. The picture was of Trump himself, a black-and-white image of Trump squinting and “pointing his right index finger at the camera.” New York Times staff photographer Damon Winter took the picture as part of a New York Times Magazine article in 2015. The image was taken down after the New York Times filed a Digital Millennium Copyright Act (DMCA) takedown request, alleging copyright violations.

More Posts Removed After Copyright Complaints

In its July 2020 article, Variety.com shares other instances of Trump’s content or that of his campaign, being removed because of copyright complaints.

• Twitter and Facebook removed a video after the original owner of the video complained
• Twitter removed a campaign video after receiving a DMCA request from the “rights holder” of one of the images used.
• Videos have also been removed from Twitter and other social media platforms after allegations that they contain samples of music that are protected and used without permission.

These allegations of copyright infringement have not resulted in legal action. There is no clear indication of whether copyright infringement exists or, if it does if the infringement was willful. We might never know.

What we do know is that it is important for photographers, videographers, and other creative professionals to pay attention. Understand your rights. Don’t be afraid to take the necessary steps to enforce them.

Call Sanders Law Group, For all of Your Copyright Needs

If you have concerns that your pictures, music, or other work is being posted, copied, manipulated, or sold without permission or compensation, call our copyright lawyers today. We provide free evaluations of copyright claims and are here to help you protect your legal rights to the full extent the laws allow.

Call Sanders Law Group, copyright lawyers representing photographers, at (800) 979-3707 to learn more about your right to collect compensation for copyright infringement.

Source:

• https://variety.com/2020/digital/news/twitter-deletes-trump-photo-ny-times-copyright-infringment-1234696756/

Famous New York Photographer Wins Copyright Case

Photographer Deborah Feingold won her New York copyright lawsuit, proving to the Judge that the Defendant RageOn, Inc. violated her rights.

Feingold began her photography career in New York in the 1970s and has captured images of some legendary musicians. RageOn is a company that serves as a digital platform for people to design, create, and sell goods, like clothing and accessories.
RageOn sells merchandise for others, processes payments and orders, and collects a commission on all sales.

Feingold sued RageOn in 2018. Feingold alleged that three shirts sold on the website violated her copyright.

According to an article on Bloomberglaw.com, the dispute was about shirts that depicted a “photo of Madonna holding a red lollipop against her tongue and one with a [Keanu] Reeves photo that appeared in Rolling Stone magazine in 1989.”

Pictures in Collection Deemed Protected

Feingold successfully showed Judge Kimba W. Wood that her registered book “Bright Moments Photographs + Philosophies” covered the photos. RageOn’s argument that the registration did not protect these images was rejected. Typically, when someone publishes a collection of pictures in a book, any previously published images are not protected by the book’s registration.

RageOn tried to prove that the photos in question were published previously but failed to meet the standards required by law.

Ruling in Favor of Photographer, Court Rejects Safe Harbor Defense

Perhaps most importantly, the court rejected RageOn’s “safe harbor” defense. Generally, a safe harbor defense is a provision of a law that protects from or reduces liability or penalties in certain circumstances. Sometimes, demonstrating good faith is all it takes.

There is a safe harbor provision, which is part of the Digital Millennium Copyright Act. The Digital Millennium Copyright Act is often invoked to protect platforms from the actions of their users. Why did the court refuse to accept the safe harbor defense in this case?

The article suggests that the ruling by District Judge Wood highlights the limitations of the safe harbor defense. RageOn did not quickly remove the infringing merchandise. Doing so might have demonstrated good faith.
Instead, after being notified of the alleged infringement, the merchandise remained on the website, and RageOn continued to profit from sales.

Feingold elected to receive statutory damages, which range from $750 to $30,000 per infringement. She could collect up to $150,000 if the infringement is deemed willful.

Contact Our Copyright Lawyers at Sanders Law Group.

At Sanders Law Group, LLP, you will find lawyers dedicated to protecting the rights of photographers around the globe. We are passionate about helping photographers, big and small, enforce their legal rights to control and profit from their work.

Call our copyright infringement lawyers today at (800) 979-3707 to find out more about how we can help you collect damages when someone uses your photographs without permission.

Source:

• https://news.bloomberglaw.com/ip-law/photographer-wins-madonna-keanu-reeves-pics-infringement-ruling

Covid-19 Creates a New Wave of Virtual Content

Covid-19 has changed the world in which we live. We have learned to work remotely and virtually visit with friends and family. We participate in “telemedicine,” virtual classrooms, and find creative ways to deliver and receive entertainment. Musicians, artists, actors, and other “performers” have been generous with their displays and sharing of content. DJ’s are doing virtual live music sessions on Instagram.

Athletes are playing video games on ESPN. Choirs are singing show tunes from around the globe. Celebrities are dancing to popular songs in Tik Tok videos.

Can Existing Copyright Laws Handle so Much Digital Streaming?

A recent Los Angeles Times (LA Times) article highlights some of the goodwill that has come from our immersion into the world of virtual reality. However, the article suggests that the amount of digital content that is being created has “powerful ramifications in terms of intellectual property.” Covid-19 has resulted in months of “casually spread” material- without licenses, permission, or compensation. At what point will copyright-holders want it to stop? When they are ready, will they musicians, photographers, or dancers, be able to enforce their rights?

Edward Klaris writes, “Streaming images, video, music, and books turn every interaction and event into a performance, display, or broadcast of intellectual property. And the law requires licenses for such streaming to protect the content of the creators.”
How many copyright lawsuits will result when the goodwill stops and artists want to get paid for the use of their work? Will existing copyright laws be enough to protect creative professionals?

Klaris suggests the answer is “no.” He points to several streaming services that continue to use unlicensed materials. For example, he claims that 50% of the music used by Tik Tok is not licensed. Also, Klaris points out that the rules associated with traditional licensing of copyrighted music, do not always apply to music synched to video, which is a significant component of streaming content.

Live internet events, which are becoming the norm, also raise licensing issues. Even if you wanted to license such content, how would you do it?

Copyright Laws and Licensing Arrangements Might Have to Evolve

The LA Times article asks more questions than it answers. But there is a single point to it all: To avoid the “free for all” harkening back to when Napster “almost destroyed” the music industry with free streaming, the stakeholders “need to create an easy policing system, such as copyright registries, user-friendly online legal content marketplaces (like Apple music) or a statute that provides for compulsory licensing of sync licenses…” Klaris also suggests, “Copyright owners could deploy anti-piracy software to troll the internet for unlicensed works — this tech is already within sight — automatically identifying and even charging the infringers with financial penalties or issuing licenses.”

Call Our Copyright Lawyers: We Help Creative Professionals Enforce Copyright

By protecting and enforcing, copyright means you receive the compensation you deserve for your hard work.

There might be a time and place, should you choose, to be generous with your work. However, do not let the public or other entities take advantage of your goodwill.

Call Sanders Law Group, for a free evaluation of your copyright infringement case. If someone is violating your copyright or a licensing agreement, call us now at (800) 979-3707.

Source:

• https://www.latimes.com/entertainment-arts/business/story/2020-06-29/coronavirus-virtual-content-events-copyright-law

Publishers Filed a Lawsuit Against Internet Archive

In a lawsuit filed in New York City a group of large publishing companies accuses the Internet Archive of massive copyright infringement. According to the complaint, plaintiffs John Wiley & Sons, Hachette Book Group, HarperCollins Publishers and Penguin Random House, accuse the Internet Archive of creating an “astonishing” scheme of “willful digital piracy” along with intentional and systematic copyright infringement.

Publishers Dispute Legitimacy of Internet Archive “Library”

The Internet Archive (“IA”) describes itself as a nonprofit library that lends digital copies of books to the public. Historically, according to NPR.org, IA has implemented a waitlist. The waitlist was to ensure that only one digital copy of a particular book was borrowed at a time. A New York Times article stated the IA contains over 1 million books that have been digitized and “made available to one borrower at a time for a period of 14 days.”

In their complaint, the publishers allege that even the ordinary actions of IA “grossly exceed legitimate library services.” Instead, the lawsuit states, IA “produces mirror- image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.”

Creation of National Emergency Library Sparks Lawsuit

In March, IA announced that due to the Covid-19 pandemic, it was creating a “national emergency library.”

The group said that it “would lift all restrictions on its book lending until the end of the public health crisis, creating what it called “a National Emergency Library to serve the nation’s displaced learners.”

While many publishers have long-felt the IA has been infringing on copyrights, its announcement in March was the last straw. “IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty and planning deliberatively for future, changing markets.”

Laws Might be Complicated by Digitization, But They Still Protect Copyright

The ability to digitize someone’s text results in difficulty controlling where and when your work shows up. We see it with photographs and social media, music, and books. Authors and photographers are finding it imperative to assert control when they can and remind everyone that copyright laws exist to protect their livelihood.

If You Are Concerned About Your Copyright, Call Sanders Law Group, Today.

Our lawyers at Sanders Law Group, dedicate themselves to protecting the rights of photographers, authors, and artists around the globe. Call us today if someone is violating your copyright or the terms of a licensing agreement. You can reach Sanders Law Group at (800) 979-3707.

Sources:

• https://www.npr.org/2020/06/03/868861704/publishers-sue-internet-archive-for-mass-copyright-infringement
• https://assets.documentcloud.org/documents/6935704/4388-1.pdf
• https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html

Author’s Estate is Suing Netflix For Copyright Infringement

The estate of legendary writer Sir Arthur Conan Doyle is suing Netflix for copyright and trademark infringement. Netflix is releasing a movie called “Enola Holmes,” a film about the younger sister of Sherlock Holmes, who is also a skilled detective. Doyle was the exclusive author of all of the Sherlock Holmes stories.

On June 25, 2020, Fox News reported that the estate filed a 19-page complaint in federal court in New Mexico.

In addition to Netflix, the estate is also suing, “the author, writer and director of the Millie Bobby Brown-led film…as well as Nancy Springer, the author of “The Enola Holmes Mysteries” book series, on which the movie is based.”

Enola Holmes Movie Leads to Copyright Infringement Lawsuit

The complaint alleges that the copyright infringement stems from the unauthorized copying of Doyle’s “original expression” by Doyle in “copyrighted Sherlock Holmes stories.” Springer is the author of a series of books about Sherlock’s sister Enola, a character she created. Doyle’s estate complains that it is the portrayal of Sherlock himself in the movie that violates his expression. According to CNN, it is “the show’s depiction of Sherlock Holmes as kind, caring and respectful of women is a violation of the author’s copyright.”

Movie Version of Sherlock Holmes Character Violates Copyright

Many of Doyle’s early works about Sherlock Holmes are public domain now. However, the first works portray Holmes as aloof, unemotional, and “deficient in human sympathy.” Many of Doyle’s later works contain a different picture of Sherlock- The family claims that after his son was killed during the war, Doyle began to inject more empathy, connection, and humanity into Sherlock’s character. The works that contain this kinder, gentler version of Sherlock Holmes, as he is portrayed in “Enola Holmes”, only exist, according to the estate, in works that are still protected by copyright.

Family Claims Some Sherlock Holmes Stories Remain Protected by Copyright

The first Sherlock Holmes book was published in 1892. All books published before 1924 are part of the public domain. Books that are published after 1923 but before 1978 are protected by copyright for 95 years. It is the position of his family that the character of Sherlock, as portrayed in the movie, derives from work that is still protected by copyright.

Contact Sanders Law Group, if Someone Violates Your Copyright

Sanders Law Group, is dedicated to protecting the rights of photographers, artists, and creative professionals around the globe. If someone has infringed on your copyright or violated the terms of a licensing contract, call our lawyers today for help. You can reach our copyright infringement lawyers at (800) 979-3707.

Sources:

• https://www.foxnews.com/entertainment/netflix-sued-enola-holmes-movie
• https://www.cnn.com/2020/06/26/entertainment/netflix-enola-holmes-sherlock-lawsuit-scli-intl-gbr/index.html

Fashion Brand Files Multi-Million-Dollar Lawsuit Against Nike and Michael Jordan for Copyright Infringement and More

In an article posted on June 30, 2020, on thefashionlaw.com, (TFL) Faded Royalty has filed a multi-million-dollar lawsuit against Nike and Michael Jordan for copyright and trademark infringement. The lawsuit was filed in New York Federal Court on June 29 also contains allegations of unfair competition, deceptive practices, and unjust enrichment. Court documents request injunctive relief and damages in the amount of $30 million.

Lawsuit Alleges Nike Uses “Copycat” Logo on Michael Jordan Items

Faded Royalty, an independent fashion brand, and its founder Rocco Giordano asserts in the lawsuit that in 2000 the company began using its “6 point star logo” on all of its apparel.
It has been used they say “consistently and without interruption in the 20 years since.” The logo is always somewhere on their apparel, printed on the tag, embroidered into the item, or printed somewhere on the article itself.

The lawsuit asserts that Nike, in collaboration with artist Cody Hudson, began using a “copycat logo,” primarily on the Jordan brand of Nike apparel. In court documents, Faded Royalty alleges that Nike and the other defendants “intentionally and willfully creating apparel and other promotional goods using [its] ‘6 point’ star logo,” with no authorization or permission.

Founder of Faded Royalty Learned Nike Was Using His Copyrighted Logo From Friends Who Thought It Was His

Giordano first heard of the infringement in 2020 when several people “congratulated” him on his alleged deal with Nike and the Jordan Brand, which led to further investigation into the matter. Giordano discovered the copycat logo being used in a Jordan Chicago Collaborators’ Collection, which is more than clothing. It also includes items such as “sculptures, coffee cups, [and] books.” In the lawsuit, Faded Royalty claims this is causing customer confusion in the marketplace and affecting their business and brand. Giordano is particularly disturbed by Nike’s claims that the logo is the result of Hudson’s “exclusive work of creativity.”

Plaintiff Alleges He Has Exclusive Rights to Logo

Giordano maintains registered copyright for the Faded Royalty’s logo. It is the copyright to this graphic, he claims is being “infringed by Nike and Hudson’s “creation and use and publication of an unauthorized replica and or derivative work of [his] ‘6 point’ star logo.”

Call Sanders Law Group, for All of Your Copyright Needs

Our lawyers take tremendous pride in representing designers, photographers, and creative artists worldwide to ensure their rights are protected. If you think a business or individual is infringing on your copyright, using your work without permission or compensation, or violating the terms of an agreement, call our office today. At Sanders Law Group, we offer a no-risk-no-cost evaluation of copyright claims. Call us at (800) 979-3707 to learn more about how we can help you collect damages when someone violates your copyright.

Source:

• https://www.thefashionlaw.com/nike-michael-jordan-sued-for-30-million-for-allegedly-co-opting-indie-fashion-brands-logo-for-all-star-collab/