Tepp to Speak on NY Times v. OpenAI

On Tuesday, March 12 at Noon EDT, RightsClick co-founder Steve Tepp will join a panel discussing the copyright case NY Times v. OpenAI. The Times alleges copyright infringement by parent company Microsoft and its OpenAI subsidiary, which operates the ChatGPT generative AI platform. 

Like many authors and other creators, the Times is suing for the unauthorized scraping of their protected works for the purpose of building a generative AI system, which, some cases, provides outputs that are substantially similar to the works ingested.

Tepp will discuss the two main legal issues in the case: whether OpenAI’s scraping of works involved “reproduction” under the Copyright Act and, if so, whether OpenAI has a viable fair use defense. On the first point, it seems clear that Open AI must have copied the works, and the only reason there can be any question about this is the lack of transparency as to how developer operates. We’ve seen this tactic before — hiding the details of the technology in ways that frustrate law enforcement. But it isn’t credible and Tepp doesn’t believe it will work.

The fair use question is the bigger one. Others on the panel are expected to argue that generative AI systems are so useful in general that the manner in which they were built should be overlooked. Tepp disagrees. In fact, the Supreme Court’s most recent copyright decision, Warhol Foundation v. Goldsmith, makes it clear that doing cool stuff isn’t enough to justify trampling creators’ rights. And just as RightsClick is a tool to help creators protect their rights, Tepp will be a voice for protecting creators in the courts.

You can register here to register for the webinar. There will be a Q&A session following the discussion.

Do You Have To Put the © On Your Work?

The “c” in a circle: © is is a world-famous symbol, and yet it is no longer required for protecting works under U.S. copyright law. In fact, this has been true for many years, but here are some things about what the legal profession calls “copyright notice” that you should know:

For eighty years – from 1909 to 1989 – works published in the United States would only be protected under the federal Copyright Act if they were published with proper copyright notice. A proper notice included the name of the copyright owner (often but not always the author), the year of first publication, and yes, that famous © symbol.

It probably won’t surprise you that many works lost their copyright protection because the copyright owner forgot the notice or applied it incorrectly. In fact, things got so out of hand that the courts often devised rationales for finding that a work had not yet been published. Thus, the notice error did not void protection. Perhaps the most famous example involved litigation over Rev. Martin Luther King’s “I Have a Dream” speech. Written copies of the speech had been distributed to the press covering that historic event, but the court held that those distributed copies were not sufficient publication to have required the copyright notice. So, Dr. King won, and his heirs continue to control the copyright rights for the speech.

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In order to avoid the injustice of losing copyright rights due to mistakes with the notice requirement—and also comply with international copyright agreements to protectU.S. works around the world—Congress abolished the notice requirement altogether. Consequently, although many creators still use the © to remind people that their work is protected, any work published in the U.S. after March 1, 1989 no longer requires the notice as a matter of law.

BUT it is worth considering that even today, a copyright notice is not completely meaningless. If your work is registered with the Copyright Office prior to an infringement , you can elect “statutory damages,” which means you do not have to prove financial harm suffered as a result of the infringement. ,The court will instead pick from a range in the law (currently $750-$30,000) per infringed work for ordinary infringements. However, in some cases, where the infringer can prove they had a good faith belief that their use was not infringing, statutory damages can be reduced to zero. But if there was a copyright notice on the work, that can defeat the “innocent infringer” reduction of statutory damages.

Finally, although placing notice of copyright is not required, anyone who knowingly removes Copyright Management Information (CMI) for the purpose of facilitating infringement is breaking the law. So, the bottom line is that a copyright notice (e.g., © Your Name, Year) can’t hurt and might even help. But most importantly, register your work before you put it out in the world, or you give up key enforcement tools under U.S. law.

© RightsClick, Inc. 2023 😊  

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Did You Publish Photographs in 2023?

As the year draws to a close, we want to remind photographers in particular about group registration of published photographs. Ideally, your work is best protected when it’s registered with the Copyright Office before it leaves the studio. But deadlines and schedules being what they are, we know that registration often slips through the cracks.

Fortunately, a work can be registered at any time during the term of its protection under copyright, which is your lifetime plus 70 years.[1] Additionally, photographers have a unique advantage because photographs can be registered in groups of up to 750 images per application. This is true whether the photos are published or unpublished, but there are two limitations to keep in mind.

First, no mixing. A group photo registration application must contain all published OR all unpublished images. Second, a group of published photos is restricted to images that were first published in the same calendar year.  That’s why we wanted to reach out at this time.

To be clear, you are allowed to register 2023 published photos next year, or at another time in the future. But we’ve met more than a few photographers who’ve let the backlog pile up and then try to remember When was that photo was first published? And we get it. The organization process of sorting through backlog is more work than registration—especially if you register through RightsClick, which is so easy.

Finally, we want to remind photographers that published work is likely to be most vulnerable to copyright infringement. And registration is the only path to the full range of remedies — from settlement to litigation.

[1] U.S. law.

Unsure about the meaning of “Publication”? You’re not alone. Learn more here

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The “Server Test” – A Shell Game in Copyright Law

Suppose you come across one of your images on a news site, blog, or promotional site– a common occurrence for many creators. You’re certain that you didn’t give permission to use the image, but when you contact the site owner about the use, they tell you it isn’t on their website. But of course, it is! You can see the image right there. What are they talking about? Well, they might be referring to the “server rule” or “server test”—a controversial topic in copyright law you should know.

According to the 9th Circuit, covering California and about a dozen other western states), infringing the “public display” right does NOT depend on whether you can see the image on the website, but whether the image is actually hosted on the owner’s computer (i.e., server). For instance, if a news site links to your image hosted on Instagram or Twitter but does not store a copy on its own server, the 9th Circuit considers this like hotlinking articles, and under this “server test,” considers the display non-infringing. The “server rule” was just re-affirmed this past Summer in a case captioned Hunley v. Instagram. Copyright attorney Aaron Moss has a thoughtful blog on the subject if you want to learn more.

Prominent copyright scholars Jane Ginsburg and Luke Budiardjo have criticized the “server test,” and in a few recent cases, the 2nd Circuit (New York State) disagrees with the 9th and thinks if anyone can see an image on a website, then gosh, that website is displaying the image publicly. This makes a lot more sense to us. But the 9th Circuit isn’t backing down. So, when we built the RightsClick Assessment tool to help you evaluate the strength of a possible infringement claim, we included a question to help you think about the “server test.”

Meanwhile, the Hunley case is on appeal and when different courts take opposite approaches, that is often the kind of dispute that will eventually be appealed to the Supreme Court. That is still a ways off, but we’ll be watching for news on the “server test” and will keep you posted!

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Now Integrated with Capture One

Making copyright management part of your workflow just got easier.

RightsClick is designed to help independent creators quickly and easily protect and enforce their copyrights. That begins with registration with the U.S. Copyright Office. With the new RightsClick plugin for the Capture One photo editing software, it is now even easier to make copyright registration a regular practice in running your business. Our new partnership with Capture One provides a seamless workflow — from editing a session to copyright registration. And RightsClick takes care of those spreadsheets!

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If your work is registered, and especially if a commercial entity uses a photo without permission, the settlement can be substantial—even thousands of dollars. I use RightsClick now to register new material and back catalog, and the process could not be easier. Plus, having taken action against infringements in the past, I’m eager to use the RightsClick enforcement tools in the future.

Jenna Close, Photographer/Filmmaker

Without registration, creators lose key enforcement tools, but we understand that many professionals will put off registration because it seems time-consuming, confusing, or costly. As described in our recent blog post, settlements for infringing uses of your work can be a valuable part of your business. The cost is negligible compared to potential value.

Together, RightsClick and Capture One make copyright management coffee-break easy!

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Artist Aurélie Graillot Calls RightsClick a Game Changer

Aurelie Graillot

Aurélie Graillot is a photographer and visual artist who produces stunning images for high-end brands. She wrote us this wonderful note.

Visit the Aurélie Graillot Studio website.

Dear Steve & David:

I can’t thank RightsClick enough for opening my eyes to the importance of registering my creative works with the Copyright Office. Before discovering their services, I had no idea just how crucial this step was in protecting my intellectual property. Recently, I faced a situation where one of my former clients decided to use almost a hundred of my photographs without my permission.

The thought of all my hard work and creativity being exploited was disheartening, to say the least. But the real eye opener was when I learned about the potential compensation I could have received if I had registered my works earlier. Up to $30,000 for EACH infringed work! The realization was a turning point for me.

The RightsClick platform not only simplified the copyright registration process, but also allowed me to submit registrations for hundreds of photos at once and keep track of each submission and its status. The efficiency was a game changer for my post-production workflow. By using RightsClick, I am protecting my current and future works, and I also managed to efficiently reclaim what was rightfully mine from that former client. The ease and speed of the platform are now part of my creative/production process, helping ensure that my rights are protected and, when necessary, enforced.

I cannot recommend RightsClick enough to fellow artists, photographers, and other creators. With their suite of tools, you can protect your art and your financial interests with ease. Thank you for making such a crucial process accessible and efficient!

Aurélie Graillot

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What If the Copyright Office Rejects a Registration Application?

It doesn’t happen very often, but sometimes the Copyright Office will reject a registration application for a particular work (Title). In most cases, when the registration specialist detects an administrative error, he or she will usually email the applicant directly and try to clear up any confusion. If you submitted a registration through RightsClick, and receive such a message, you may forward it to our Administrators for assistance, if needed.

On occasion, the Copyright Office will refuse a registration on the basis that the work submitted lacks sufficient “originality” for copyright protection. Although U.S. copyright doctrine establishes a low threshold for “originality (and this can be a subjective analysis), it can still happen. For instance, one of the most common types of art that is rejected for lack of originality is applied art, such as jewelry, where the function of the item dictates certain elements of its design. If you want to review previous decisions, the Copyright Office maintains a database of Review Board Opinions.

Rejections can be appealed through a Request for Reconsideration, although appeals are a pricey option–$350 for a first appeal, and $700 for a second appeal – and the success rate is low. More information about the appeal process, including instructions, is available in Copyright Office Circular 20.

At RightsClick, we endeavor to keep our users apprised of the status of registration applications submitted through our software and to update Titles with Registration Numbers once they are issued by the Copyright Office. However, if an application is rejected by the Copyright Office (e.g., for lack of originality), that communication from the Copyright Office goes directly and only to you. We do not have any way of knowing whether or why an application was rejected.

About the Use of Artificial Intelligence

A new consideration with regard to copyright registration is the use of artificial intelligence (AI) to produce a creative work. You may have read about the case Thaler v. Perlmutter, which affirms that the Copyright Office will reject a work produced wholly by a generative AI. But that leaves open the question of how much human involvement there must be in the creative process, alongside AI-created elements, in order to be copyrightable and registered by the Copyright Office?

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The Copyright Office has issued guidelines for disclaiming the use of AI in works submitted for registration, and our friends at Copyright Alliance provide a good overview of this guidance in a blog post. If all this makes you nervous, we can offer you the solace that according to a Supreme Court decision, so long as you make a good-faith effort to provide accurate information on your application, then even if it turns out you were incorrect, you won’t get into any trouble for guessing wrong.

The Valancourt Books Decision and Deposit Copies

You may have seen some headlines recently announcing that the “deposit requirement” at the U.S. Copyright Office was held to be unconstitutional by the DC Circuit Court of Appeals. Because this announcement could be misunderstood by creators looking to register their work(s) with the Office, we wanted to clarify the nature of this decision, but if you read no further, know this:  the outcome in the case Valancourt v. Perlmutter has no bearing on the requirement to provide deposit copies with a registration application. If you intend to register your work—and we strongly urge every creator to do so—this case does not affect that process in any way.

If you want a little more detail, here is an adapted excerpt from RightsClick co-founder David Newhoff’s blog The Illusion of More:

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408 of the Copyright Act. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States.

Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration, and it is the basis for the court’s finding that the demand amounts to a taking in violation of the Fifth Amendment.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

We know this stuff gets complicated and sounds needlessly confusing—and that’s because it often is needlessly confusing! But that’s why we developed RightsClick to make copyright registration and management way easier.

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Why Retain the Copyright Rights if You’re Not Going to Register?

Many, if not most, creators who work for clients typically retain the copyright rights in their work. Commercial photographers and illustrators, for instance, use standard written agreements affirming that they retain the rights to the images and then lay out the terms by which the client(s) may use the works. Naturally, some clients will insist, or try to insist, upon Work Made For Hire (WMFH) agreements, but many creators resist or even refuse these arrangements.

Yet, despite the fact that most creators make an effort to retain their copyright rights, they then effectively nullify that effort by failing to register the work with the U.S. Copyright Office. Because if a work is not timely registered (i.e., before an infringement is discovered), key remedies under the law are not available. A registration may be filed at any time during the copyright term of the work (i.e., the author’s life + 70 years), but often, creators don’t think about registration until after they’ve had a work misused at least once. By then, it’s too late to do much about that infringement. That’s why attorneys tell their clients “register early.”

Making Registration Part of the Process is Easy

Having talked to many creators—some with decades of experience, and others just starting out—it seems that when registration is treated as an afterthought, it looks costly and like a chore. For instance, after spending the time and energy to plan, execute, and deliver a photo project, copyright registration is then set aside while attention turns to the next gig. But many experienced professionals who incorporate registration into the workflow, and even build the fees into their budgets, find the process is not only easier, but invaluable because they have settled infringement claims for thousands of dollars.

Photographer/filmmaker Jenna Close writes:

I have had one instance where we settled for $4,000. It happened immediately after the infringer knew the photo they were using was registered. In another instance, a client of mine discovered a competitor using an image I had photographed. The client came to me asking for help, and because I had registered the image with the Copyright Office, they took it upon themselves to pursue the case through their attorney. In the end, we split the proceeds from the settlement, but what was even more valuable to me was how grateful the client was for my knowledge and professionalism in obtaining legal protection for the images they had hired me to create. They are still my client to this day.

RightsClick Makes Registration Even Easier

In addition to putting off registration, many creators find copyright law and the Copyright Office website confusing. We know! That’s one reason we built RightsClick. In the time it takes for an average coffee break, you can submit a registration application through RightsClick. You don’t need to know anything about copyright law, and if you make registration part of your production workflow, you don’t even have to wonder whether the work is “published” because it hasn’t left the studio yet!

Not only is registration through RightsClick fast and easy, but the system is also your copyright database—a searchable portfolio that enables you quickly locate the relevant legal information associated with any single work in the system.

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DIY Copyright Registration is a Good Idea

Any attorney will tell creative professionals to register their work the U.S. Copyright Office because without timely registration, taking enforcement action against an infringement is either hindered or impossible. Some creators register on their own, and others have attorneys do it for them. But the truth is that it’s better (and cheaper!) to do it yourself, which is one reason we streamlined the registration process in RightsClick.

In November 2021, in a case involving potential invalidation of a copyright registration (Unicolors, Inc. v. H&M Hennes & Mauriz), the Supreme Court made a decision that was very helpful to creators—deciding that honest mistakes on a registration application are not a reason to invalidate the registration. And who’s more likely to make an honest mistake? You or a copyright attorney? Because of this decision, many copyright attorneys would rather creators take care of registration themselves.

In fact, counsel for Unicolors in that case, Scott Alan Burroughs says, “I tell my clients to register early and often, and it is in many cases preferable, for a number of reasons, if they do it themselves. In fact, I’ve referred clients to RightsClick to make the process more efficient.”

Of course, RightsClick software is designed to prevent common mistakes like mixing published works with unpublished works or selecting the wrong application form or the wrong administrative class. Plus, a registration application with RightsClick takes just minutes; it becomes part of your organized creative portfolio; and it’s a lot cheaper than having an attorney file the application for you.

Learn more here or write us with your questions below. We’d love to hear how we can help you start protecting your work today.