Tag Archives: Copyright

Protecting Online Photographs – Watermarking and Copyrighting

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There is risk when publishing your images online. Whether you are a professional or just writing a personal blog, there is a chance of theft or, more properly, copyright infringement when someone “borrows” your photographs. It feels horrible. Worse, you might have received some money if your images were used with your permission. However, there are ways to prevent copyright infringement and to encourage people to get your permission to use your photographs.

Watermarks

A watermark is a mark, text or image digitally added to another image. It could be your name, your company logo or company name, a copyright symbol or nearly anything. It should be something that uniquely brands your images. Some watermarks are obvious while others are hidden (much to the chagrin of a thief). Watermarks are used on nearly every banknote and passport. Watermarking is an ancient practice, dating back to at least 13th century Italy. As soon as papermaking started, watermarking became necessary. Cartiere Miliani in Fabriano is credited with the earliest watermark dating 1282 C.E. People are still protecting their paper and electronic works using watermarks.

Watermarking your photographs can be done a number of ways.  The most popular route is to create and add a watermark through a software such as Adobe Photoshop or Lightroom. There are plenty of tutorials online to teach how to create and apply watermarks to a single image or batch of images. There are also online services to let you watermark your images (e.g. Watermark-Images). In either case, you customize the watermark. One tricky part of watermarking is choosing the position of the watermark on the images.

Copyrights

Copyrighting is a more legalistic way to protect electronic works than watermarking. According to the United States Copyright Office, it is the “protection provided by the laws of the United States” for “original works of authorship.” This protection is available to both published and unpublished works. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do at least the following:

  • reproduce the work (make copies)
  • prepare derivative works based upon the work
  • distribute copies of the work to the public by sale or other means
  • display the work publicly

Copyright gives you control of what happens with any image as long as you own the copyright.

Why would someone use a watermark or copyright their images?  You should ask yourself some questions.

  • Is your work available to the public?
  • Can someone see your pictures?
  • Are your images uploaded to a photo hosting website?
  • Do you have a blog that you post photos to?
  • Do you share your work digitally?
  • Do you get paid for your work?
  • Do you not get paid for your work?
  • Are you using your photographs in this year’s Christmas card?

If you answered yes to any of these questions, you need to use a watermark. A watermark can help you prove authorship of your picture which can help you to enforce the copyright in your work.

How do I copyright my work? To copyright your images, you can go about it two ways: the easy, free way or the U.S. way.  According to the Berne Convention (which you should read to better understand what it covers and how it legally protects you), as soon as you press down the shutter on your camera you own the captured image.  The copyright is automatic and instantly yours. You own the copyright of that photograph for a minimum of 25 years (duration of copyright depends on the medium).  The Berne Convention states that people can use your work as long as they credit you with it. The Berne Convention does not ensure you will get paid every time someone else uses your photo. It does not clarify how you are to prove that the photo, if it were to come into question, would be proven as yours.

Registering your work with the U.S. Copyright Office is required to enforce your copyright in your work. You can register your work either online or on paper (the website offers a PDF file for you to download, fill out and mail in). Registering online is much less cumbersome, quicker and provides you with a status tracker. It is also cheaper to file online: only $35 versus $50 for the paper route. You can register a single image or an entire body of published work (Form GR/Pph/CON is needed for a group of published works). Registering your work with the Copyright Office is especially useful for those who sell their work to distributed publications. If in fact someone were to steal or abuse an image, you have the Copyright Office and the power of the United States courts, government and FBI on your side. The Berne Convention is like your angry big brother while the Copyright Office is like being supported by the mafia.

Enforcement

Even if you watermark and register your photographs with the Copyright Office, you still need to discover if someone is using your images or photos. A highly useful tool is TinEye – a reverse image search. It is not your ordinary search engine! You can search by either uploading an image or provide the image’s URL. It is a tense wait while TinEye searches for copies of your image, but you will be happy to get the results. It would be awesome if they had a notification service.

Copyright Class Action Law Suits – Unregistered Works

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On March 2, 2010, the U.S. Supreme Court decided Reed Elsevier, Inc. v. Muchnick, 559 U.S. ___ (2010). Ordinarily, a copyright owner must register its work as a precondition to bringing a law suit. The Copyright statute states in relevant part that except for an action brought pursuant to section 106A(a), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C.A. § 411(a) (Supp. 2009). However, the Court holds that the statutory requirement does not limit the Court’s subject matter jurisdiction with respect to infringement suits involving unregistered works and overturned the Court of Appeals decision.

When someone violates one of a copyright holder’s rights, 17 U.S.C. § 501(b) states that a copyright owner “is entitled, subject to the requirements of section 411, to institute an action” for copyright infringement. Federal courts have subject-matter jurisdiction over copyright infringement actions based on 28 U.S.C. §§ 1331 and 1338(a). In this case, the Court follows Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) and recognizes that the controlling precedent is Arbaugh v. Y & H Corp., 546 U. S. 500 (2006). The Court also distinguishes Bowles v. Russell, 551 U.S. 205 (2007) and its progeny. In Bowles, a sharply divided Court held “mandatory and jurisdictional” the time limits for filing a notice of appeal stated in 28 U. S. C. §2107(a), (c).

Implications for Copyright and Class Action Litigation. In this case, the named plaintiffs each owned at least one copyright (e.g. a freelance article written for a newspaper or a magazine) that they had registered in accordance with 17 U.S.C. § 411(a). The alleged class of plaintiffs included both authors who had registered their copyrighted works and authors who had not. Because of the growing size and complexity of the law suit, the District Court referred the parties to mediation. In March 2005, after three years of negotiating, the parties reached a settlement agreement that they intended “to achieve a global peace in the publishing industry.” In re Literary Works in Electronic Databases Copyright Litigation, 509 F. 3d 116, 119 (CA2 2007).

The parties moved the District Court to certify a class for settlement and to approve the settlement agreement. Ten freelance authors, including Irvin Muchnick, objected. The District Court overruled the objections; certified a settlement class of freelance authors under Federal Rules of Civil Procedure 23(a) and (b)(3); approved the settlement as fair, reasonable, and adequate under Rule 23(e); and entered final judgment. At no time did the Muchnick respondents or any other party urge the District Court to dismiss the case, or to refuse to certify the class or approve the settlement, for lack of subject-matter jurisdiction.

On appeal, the Court of Appeals sua sponte ordered briefing on the question whether § 411(a) deprives federal courts of subject-matter jurisdiction over copyright infringement claims involving unregistered copyrights. Relying on two Circuit precedents the Court of Appeals concluded that the District Court lacked jurisdiction to certify a class of claims arising from the infringement of unregistered works, and also lacked jurisdiction to approve a settlement with respect to those claims. The Supreme Court, as stated above, reversed this decision.

The lesson seems to be that it should be easier to certify a class and get a settlement in a case that involves copyright owners who have failed to register their works.

Right of Publicity Cases Belong in State Court

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No Doubt v. Activision Publishing, Inc., 2010 WL 1387988, 2 (C.D.Cal. 2010) (Court Case Number: 2:09-cv-08872-SVW-VBK) was filed in state court and removed to federal court.  The question before the court was whether or not to remand the case back to state court.

The court decided that the contract, right of publicity and unfair competition were not preempted by federal law, and remanded the case back to a California state court. The court stated that it “must first determine whether the ‘subject matter’ of the state law claim falls within the subject matter of copyright as described in 17 U.S.C. §§ 102 and 103.” If it does fall under copyright, then the court “must determine whether the rights asserted under state law are equivalent to the rights contained in 17 U.S.C. § 106, which articulates the exclusive rights of copyright holders.” See Laws, 448 F.3d at 1137-38.

The court reasoned as follows.

Plaintiffs’ rights “do not fall within the subject matter of copyright” because in this case, in contrast to Laws and Fleet, the object that is “fixed in a tangible medium of expression” is the physical likeness and persona of the Plaintiffs. Name, likeness, and persona are not copyrightable subject matter, both under the Copyright Act and the Copyright Clause of the Constitution, because a name, likeness, or persona is not a work of “authorship” entitled to copyright protection. The court cites to Downing, 265 F.3d at 1003-05; see also Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir.2005) (holding no preemption where photo model asserted right of publicity claim against photo copyright holder).

The court further reasoned that Defendant’s videogame is a work of authorship entitled to copyright protection, see Midway Mfg. Co. v. Arctic Intern., Inc., 704 F.2d 1009, 1012 (7th Cir.1983), and that the musicians’ songs incorporated into Defendant’s videogame are copyrightable. See 17 U.S.C. §§ 102(a)(2), (7) (listing “musical works” and “sound recordings” as copyrightable works of authorship). Further, live musical recordings that are captured on videotape are also copyrightable. See, e.g., Armstrong v. Eagle Rock Ent., Inc., 655 F.Supp.2d 779, 2009 WL 2923173, at *7-8 (E.D.Mich.2009) (musician’s publicity and appropriation claims against music video distributor preempted by Copyright Act where case involved live musical performance recorded on videotape); see also 17 U.S.C. § 102(a)(6) (listing “motion pictures and other audiovisual works” as copyrightable works of authorship). Thus, if Plaintiff were suing on the basis of Defendant’s misuse of Plaintiff’s songs or videotaped musical performance, its claims would be preempted by the Copyright Act. See, e.g., Laws, 448 F.3d at 1138-43. The same result would occur if Plaintiff were claiming a right in the entire videogame as infringing a similar work of Plaintiff’s own authorship. See, e.g., M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421, 445-46 (4th Cir.1986).

However, Plaintiff did not allege that Defendant misused Plaintiff’s copyrighted songs or copyrightable musical performances. Plaintiff alleged that the contents of Defendant’s videogame infringes Plaintiff’s rights under the parties’ contract and under state publicity laws. Specifically, Plaintiff asserts that Defendant’s videogame contains cartoon likenesses that resemble Plaintiff. See Kirby v. Sega of America, Inc., 144 Cal.App.4th 47, 55-57, 50 Cal.Rptr.3d 607 (2006) (video game character that resembled plaintiff potentially infringed plaintiff’s likeness and identity); see also Wendt v. Host Intern., Inc., 125 F.3d 806, 810-12 (9th Cir.1997) (robot look-alike misappropriated plaintiff’s identity); White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1397-99 (9th Cir .1992) (same); Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-94 (9th Cir.1998) (cartoon likeness of baseball player potentially infringed rights of publicity); Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 967-68 (10th Cir.1996) (same).

Even more specifically, Plaintiff asserted that Plaintiff consented to Defendant’s use of Plaintiff’s name, image, and likeness in the videogame, but only within the well-defined parameters laid out in the parties’ contract. Defendant’s videogame then included Plaintiff’s name, image, and likeness in a manner that was outside the scope of Plaintiff’s contractual consent.

This case is exactly what the Laws court had in mind when it suggested that Debra Laws might have a valid cause of action against Elektra Records (with whom she had entered into a recording contract), but not against Sony Records (which had obtained from Elektra licenses to use Laws’s songs). The Laws court clearly counseled that artists and entertainers should proceed exactly as Plaintiff has proceeded in this case:

If Laws wished to retain control of her performance, she should (and may) have either retained the copyright or contracted with the copyright holder, Elektra, to give her control over its licensing. Laws, 448 F.3d at 1145. The court added: But if Elektra licensed “Very Special” to Sony in violation of its contract with Laws, her remedy sounds in contract against Elektra, not in tort against Sony. Id. at 1144. Laws’s right-of-publicity claims against the copyright licensee were preempted by the Copyright Act; but Laws’s claims against the party with whom she contracted would not be preempted.

Here [in No Doubt v. Activision Publishing, Inc.], Plaintiff contracted with the videogame’s copyright holder (that is, Defendant) so that the copyright holder would only engage in certain activities. Plaintiff carefully controlled the rights it was allowing Defendant to incorporate into the videogame. Subsequently, Defendant engaged in certain other activities that were not contractually permissible. Thus Plaintiff has a valid breach of contract cause of action. Further, Defendant’s alleged breach of contract involved Defendant’s impermissible use of Plaintiff name, image, and likeness. Thus Plaintiff also has a valid tort cause of action for violation of Plaintiff’s right of publicity. Accord Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1031-32 (3d Cir.2008) (sportscaster’s breach of contract and right of publicity claims not preempted by copyright where sportcaster’s contract allowed defendant to use sportscaster’s voice recordings in context of sports broadcasts, not in context of television advertisements for videogame).

In short, the rights asserted by Plaintiff are not copyrightable, see Downing, 265 F.3d 1003-04, and Plaintiff did not agree to Defendant’s incorporation of Plaintiff’s name, likeness, or image into Defendant’s copyrighted work in the manner that Defendant did so, cf. Fleet, 50 Cal.App.4th at 1919, 58 Cal.Rptr.2d 645. Accordingly, Plaintiff’s tort and contract claims are not preempted by the Copyright Act.

Federal Courts have Jurisdiction over Copyright Suits Involving Unregistered Works

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On March 2, 2010, the Supreme Court issued a decision in Reed Elsevier v. Muchnick and held that the Copyright Act’s requirement pursuant to 15 U.S.C. § 411(a) (copyright owners must register their works before suing for copyright infringement) is not jurisdictional. The Court clarified that federal district courts have subject-matter jurisdiction over infringement claims involving unregistered works.

The unanimous ruling seems at odds with the plain language of the statute which states that no lawsuit for infringement of such works can be brought. In pertinent part, 15 U.S.C. § 411(a) states: “Except for an action brought for a violation of the rights of the author under section 106A(a) . . . no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” This ruling should allow for greater judicial review of cases involving large groups of parties interested in securing rights in the digital age. However, the ruling may have unintended consequences.