Update: Obama Administration Calls for Copyright Small Claims Courts, Embraces “Vibrant Fair Use”

Posted by on Thursday January 28, 2016 | Copyright/Legal

copyright copy_350An Obama administration task force has come out in support of “a vibrant fair use space” that allows  “the broad range of remixes to thrive.” At the same time, the task force supports “effective licensing structures” and is calling for the “creation of a streamlined procedure for adjudicating small claims of copyright infringement.”

The recommendations are from the US Department of Commerce’s Internet Policy Task Force, and  appeared in a publication released today called “White Paper on Remixes, First Sale, and Statutory Damages.” The purpose of the task force is to ensure that copyright policy continues to provide incentive for creativity as the digital economy changes how people communicate, create, innovate and conduct business.

The task force defines “remixes” as “works created through changing and combining existing works to produce something new and creative” and notes that remixes are part of a trend of user-generated content “that has become a hallmark of the internet.”

The task force asserts that “remixes make valuable contributions to society in providing expressive, political, and entertainment content.” But it says it is not calling calling for amendments to copyright law that would create a specific exception or a compulsory license for remix uses. Instead, the task force offers recommendations “that would make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so.”

Those recommendations include: development of “negotiated guidelines” that remixers can use to more clearly determine whether their use of a copyrighted work is fair; expanding the availability of “a wider variety of voluntary licensing options;” and broadening the understanding of fair use through education.

In calling for streamlined procedures to adjudicate copyright small claims, the task force says “further consideration should be given to the proposal of the Copyright Office to establish a small claims tribunal.” Although some individual copyright holders (e.g., photographers) and their trade organizations have called for copyright small claims courts to make it easier and less costly to defend their rights, the idea has run into fierce opposition from users of copyrighted works, including big corporations.

The task force has presented its recommendation for the copyright small claims courts as a potential benefit for small scale infringers. A tribunal, the task force explains, “could help diminish the the risk of disproportionate levels of damages against individual file sharers.”

The recommendations for adjudicating copyright small claims were incidental to the task force’s recommendations regarding statutory damages for infringement. Those recommendations included incorporating into the Copyright Act a list of factors for courts and juries to consider when determining statutory damage awards; implementing changes to the law’s copyright notice provisions to expand eligibility for lower-level statutory damages for “innocent infringement;” and giving courts more discretion to set (lower) statutory damages awards for secondary “non-willful” liability against online services.

In addition to those recommendations, the task force says it will continue to work during 2016 on ways to develop and use standard identifiers for all types of creative works, further the “interoperability” of databases and systems used to identify owners of rights and terms of use, and implement a possible portal for linking to such databases and to licensing platforms. Those efforts are intended to help users of copyrighted works more easily identify, locate, and properly license those works.

The task force, led by the US Patent and Trademark Office and the National Telecommunications and Information Administration, was convened in 2010. It’s mandate was to address privacy, information flow, cyber security and copyright in the context of the Internet economy. The recommendations are based on input that the task force sought from a variety of stakeholders, including rights holder organizations, internet-based companies, librarians, academics, and individual authors and artists. The recommendations pertaining to changes in law are non-binding, pending Congressional action.

Update: American Photographic Artists (APA) and American Society of Media Photographers (ASMP) both praised the task force’s support for copyright small claims tribunals. “That’s incredibly important to photographers to have that alternative available” for pursuing infringements that don’t rise to the level of damages required to take cases to federal court, says ASMP executive director Thomas Kennedy.

He adds that the onus is on trade groups to “come forward this year with a solid proposal for a workable small claims tribunal.” He says ASMP is working on a such a proposal that he hopes to be able to present to the House Judiciary Committee for legislative action. He acknowledges that because tribunals would make it easier and less expensive for individual copyright holders to sue infringers, the idea faces some strong opposition. “That’s the devil in the details that needs to be worked through” in the proposal, to make it legitimate and acceptable to those who so far resistant to the idea, he says.

Kennedy and APA spokesperson Eugene Mopsik both expressed concern about future action that might be taken with regard to the task force’s recommendations about remixing and fair use. Citing recent legal cases such as Cariou v. Prince and Graham v. Prince, Mopsik says the legal interpretation of fair use “has gotten out of hand.”  He says APA would like to see fair use defenses reigned in with tighter legal tests that are consistently applied “so it doesn’t vary from jurisdiction to jurisdiction.”

Kennedy says he recognizes the cultural value of remixing and fair use, but adds, “People have attempted to expand fair use in ways that are injurious to copyright holders.” But copyright holders have to do their part to address that, by developing systems that make licensing copyright works less difficult, “and eliminate fair use as an excuse,” Kennedy says.

Photographer Sues Richard Prince Over Instagram Rip-offs—At Last
Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says



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