By Frank Gallagher, NANPA Blog Coordinator
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.
CASE Act update
NANPA’s advocacy team, led by Jane Halperin and Sean Fitzgerald, and membership in the Copyright Alliance and Coalition of Visual Artists gives nature photographers a voice in copyright and intellectual property discussions that influence law and policy. Our combined voices were instrumental in getting the Copyright Alternative Small Claims Enforcement (CASE) Act passed and signed into law at the end of 2020. How that act is implemented over the coming months will be as important as some of the court cases affecting copyright today.
The CASE Act establishes a small claims process for copyright infringement conducted through the Copyright Claims Board, a three judge panel within the Copyright Office. The Copyright Office must create the policies and procedures under which the CCB will operate. To that end, the Copyright Office issued a Notice of Proposed Rule Making in April and invited public comment. Groups like the Copyright Alliance raised objections and made suggestions to make the rules more clear, simple, and fair for copyright holders. In August, the Copyright Office published a final rule, incorporating many of the Copyright Alliance’s suggestions. This is another major step towards implementing the CASE Act and giving copyright holders a faster, easier, and less expensive way of protecting their rights.
Embedding content
In a case before a federal court in New York, Sinclair Broadcasting embedded a video filmed by conservation photographer and filmmaker Paul Nicklin on websites of Sinclair television stations. Nicklin had posted the video (of a starving polar bear) to his Instagram and Facebook accounts, from where it had gone viral and generated a lot of attention. Sinclair embedded his video into a story about it going viral, but did not attempt to contact Nicklen or to secure permission from him. Nicklin sued.
Sinclair moved to dismiss the case on the grounds that they only embedded the video and did not store a copy on their servers. Previously, a court had ruled in a very controversial decision, that embedding was legal so long as the content was not stored on the servers of the publishing organization. The Manhattan judge became the second judge to reject the server claim and allowed the case to move forward.
This follows other controversial cases involving embedding from Instagram embeds, such as Sinclair v. Ziff-Davis, McGucken V. Newsweek, and Instagram’s own changing interpretation of its Terms of Use.
The embedding issue is far from settled. NANPA’s advocacy team will continue to follow court decisions and keep you informed.
More Terms of Use problems
We have previously written about excessively broad language in the Terms of Use some organizations and websites use. The Museum of Modern Art (MOMA) in New York has a photo club that invites people to submit photos based on monthly themes. However, the Terms of Use give the museum virtually unlimited permission to do anything it wants with the photos. The same was true of a state fish and wildlife department in a photo campaign that has since been taken down. Even some photo contests have these questionable terms.
The latest example comes from the genealogy site, Ancestry.com. Its new Terms of Use state that “you grant Ancestry a perpetual, sublicensable, worldwide, non-revocable, royalty-free license to host, store, copy, publish, distribute, provide access to, create derivative works of, and otherwise use such User Provided Content to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. This includes the right for Ancestry to copy, display, and index your User Provided Content. Ancestry will own the indexes it creates.” Essentially, they can do anything they want with a photo you upload.
These kinds of overly broad Terms of Use are sometimes written by lawyers trying to anticipate any eventuality and protect their client from anything and everything. In the process, though, anyone submitting a photo gives the company carte blanche and basically surrenders the rights to their own photos.
Caveat Emptor
Before you post a photo or video, read the Terms of Use.
And happy Labor Day!
Frank Gallagher is a landscape and nature photographer based in the Washington, DC, area who specializes in providing a wide range of photograph services to nonprofit organizations. He manages NANPA’s blog.
Website: frankgallagherphotography.com
Facebook: @FGFStop
Instagram: @frankgallagherfoto
