What is the ARTS Act?

In mid-October the Artistic Recognition for Talented Students Act – or “ARTS Act” – was signed into law. You may be wondering what this new law does and whether it helps you? Odds are, the ARTS Act does not apply to you. But it’s still a nice idea and we want to let people know about it.

Congress has supported art in many ways over the years, including annual competitions for high school artists. The winners’ works are displayed in the Capitol complex, most prominently, in one of the hallways connecting the House of Representatives’ office buildings to the Capitol itself. RightsClick co-founder Steve Tepp worked on Capitol Hill at the beginning of his career and fondly remembers walking from meeting to meeting past the talented and thought-provoking works contributed by high school students from around the country.

What the ARTS Act does is to waive the Copyright Office’s registration application fee for works selected as winners of the Congressional art competition. So, if you’re no longer a high school student and/or your work did not win that competition, the ARTS Act doesn’t apply to you. Although the law applies only to a very small group of people, we still like it. Even a $45 registration fee for a single work is a nice savings for a high school student, and we applaud any incentive for young creators to engage with the copyright system and to learn about their rights early in their careers.

We at RightsClick cannot say often enough how important it is for independent creators to register their works. The full strength of the copyright law hinges on copyright registration, and the sooner you register, the more options you have when dealing with infringement. This is true even if you never go to court – because a request for compensation for unauthorized use of your work carries a lot more weight if you show that you know your rights and have taken steps to protect them.

So, we thank Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC), the co-sponsors of the ARTS Act, as well as Representative Hakeem Jeffries (D-NY-8) who sponsored the companion bill in the House. All of three Members have a consistent record for supporting creators and an effective copyright system.

RightsClick and Qti.ai – A Winning Combination to Combat Counterfeiting

At RightsClick one of our core beliefs is that professional creators can take control of their copyright rights and take action against many unauthorized uses without the time and expense of consulting a lawyer and filing a federal lawsuit. Copyright registration is the lynchpin to successful DIY enforcement, which is why we built a tool to make it quick and easy to submit works for registration with the U.S. Copyright Office.

One area where registration makes a difference is compliance with DMCA takedown notices. Many creators have experience with some of the major platforms—Meta, YouTube, et al—avoiding compliance with takedown requests, whether the work is registered or not. We could spend pages discussing why these companies behave like this, but one area where DMCA compliance still works fairly well—and where that registration number appears to make a difference—is in conjunction with counterfeit and fraudulent merchandise sold on platforms like Etsy, Ebay, and Amazon. And this is one area where our partner Qti.ai may be able to help protect your business.

Counterfeiters infringe intellectual property in a number of ways, but a common practice is to make and sell copies of visual works, or products featuring visual works, that are already being sold by the legitimate copyright owner. But just because you aren’t selling your works doesn’t protect you. Sometimes they make unauthorized copies of visual works that the artist never intended to sell as merchandise – and sell it anyway. Counterfeiters also often copy product shots from a legitimate seller’s page to display on an illegitimate seller’s page. So, if you are selling merchandise, for example, you may want to register both your underlying work (e.g., designs) and the product shot photographs.

Unfortunately, counterfeiters frequently operate outside the U.S., making it difficult, if not impossible, to reach them directly through enforcement action. A silver lining is that many of the ecommerce platforms do comply with properly filed takedown requests in a timely manner, and when they are provided the registration numbers, this seems to aid in that compliance. This makes sense because registration with the U.S. Copyright Office is legal evidence of your ownership of the work.

Still, the enforcement process in the world of counterfeiting can be cumbersome, which is why we are very excited about the work being done by our partners at Qti.ai. “We love to help protect the brands of small artists and designers, so they can concentrate on their craft,” says co-founder Cheryl Darrup.

A U.S. company based in western New York, Qti.ai has developed some impressive enforcement methods to help small-business creators and to protect consumers. Their “Scam Intelligence Algorithm” is offered free to consumers to help determine whether a product offer is legit before an order is placed. But for copyright owners like entrepreneurial creators, their service can be used to monitor the major platforms for infringements and to initiate takedowns on behalf of the copyright owner. And Qti.ai has had success dealing with some of the largest platforms, both in the U.S. and abroad. “Our industry-leading Scam Intelligence Algorithm boosts efficiency in detecting infringements and keeps our monthly costs reasonable for our clients. As we fortify our database with deeper threat indicators, our strong success rate of takedowns will continue to improve across ecommerce platforms,” Darrup says.

We’ve had some great discussions with Cheryl and co-founder Will Boychuck, including ways we can work together to help small-business creators. It’s a natural collaboration. RightsClick is all about getting your portfolio organized, getting your work registered, and taking the most affordable actions possible to protect your business. And Qti.ai may be exactly the enforcement tool you need to stop counterfeiters from reaping the rewards from your intellectual property.

Visit Qti.ai to learn more.

Graphic Artists Guild Hosts RightsClick

Get organized. Register your work. Take action.

Thanks to the wonderful folks at Graphic Artists Guild for hosting last week’s webinar talking about reasons to protect copyright–and how to do it using RightsClick! Watch the video below to learn why we think you can do a lot more about infringements of your work other than giving up or calling a lawyer.

Join the Guild!
Webinar Hosted by Graphic Artists Guild – 9/21/22

NFTs, Copyright, and Your Rights

As long as there have been creators, there have been others who try to free-ride or exploit creators’ successes without permission. NFTs are one of the more recent developments (excuses) for more of the same. But creators don’t have to be confused and they certainly don’t have to take NFT-based infringement lying down.

NFT stands for non-fungible token. It is computer code that uses blockchain technology to certify that an electronic file connected to that “token” is uniquely identified. But let’s not get lost in the techno-jargon, because that’s not what matters to you.

The principle of the NFT that the technology allegedly guarantees that a computer file, usually of an image, is authentic and unique. In this way it’s a little bit like the painter who signs and numbers his paintings – a guarantee of authenticity and rarity, if not uniqueness. And if you – the artist and copyright owner – decide to “mint” one of your images into an NFT and sell that copy, that’s just fine

Other scenarios are not so clean-cut. Unfortunately, anyone could take a digital copy of your work, mint it as an NFT, and try to sell it, and this has already happened at scale with both visual works and music.  In other instances, people who buy an image that has been minted into an NFT may try to prevent others from making copies of that image.

This is perhaps the greatest misunderstanding about NFTs – just because a person buys a copy of an image, regardless of whether it’s been made into an NFT, that purchase has nothing to do with who owns the copyright. Nor does minting an NFT stop someone else from right-clicking on an image, making a copy, and saving it as a NEW file they are able post anywhere they please–even though this action might well be copyright infringement.

This brings us to a central point creators should be clear about – NFTS AND COPYRIGHT ARE COMPLETELY DIFFERENT AND SERVE DIFFERENT FUNCTIONS. So, if/when someone makes an NFT of your image without your permission, they might very well be infringing your copyright and you may have a legal claim against them. The moment you create an image or any other copyrightable work (literary works, music, movies, sculpture, etc.) it is automatically protected by copyright. That copyright is a property right and just because you sell or display copies of your work does NOT mean you gave away your copyright.

If a person buys a book, does anyone really believe that gives them the right to make more copies of that book and sell them? So, why would anyone think that simply buying a digital file of an image and “minting” it as an NFT would give them the right to stop others from making copies of that image? They just bought a copy, not the legal rights protected by copyright law. NFTs may be the hottest new topic, but they are for sure one of the newest ways for people to violate copyright law.

So, what are the steps you need to take to be able to defend and enforce your rights? First, get organized. Second, register your work with the U.S. Copyright Office. Third, take action where you can. These are the principles on which we developed RightsClick.

First, use the Portfolio database in RightsClick to organize your works according to legally relevant information like the creation date and the type of work it is. Next, you’re ready to register those works with the Copyright Office. Remember that automatic protection we mentioned? Well, there’s a catch.  

Under U.S. copyright law, if you don’t register your work with the U.S. Copyright Office before the infringement begins[*] the law takes away some of the most important enforcement tools against copyright infringement. And if the infringer knows what they’re doing, you are much more likely to get a stiff-arm response to a request for compensation, if your work wasn’t registered in a timely manner. But, looking at it from the glass-half-full side, if you registered on time, you are more likely to get paid. Sooooooo, Register your work!

The RightsClick registration tool walks through a few, plain-English questions to enter the info needed to apply for copyright registration. A few clicks and you’re done. We submit the application for you – you don’t have to deal with the Copyright Office website.

Once you’re organized and registered, you’re in a much stronger position to quickly take action against an infringement of your work (NFT or otherwise), and RightsClick provides tools to help you do that. You can watch how these work in our video demos.

To repeat, if we can make one thing clear, NFTs and copyright rights are two very different things. If you see an opportunity to mint your work and make money, go for it. But don’t be confused about your rights to control your work or about anyone else’s claim to that they are allowed to exploit it. Because it’s your work.

[*] It’s actually more complicated than that, but we’re trying to keep this short.

RightsClick Offers Simplified Copyright Management

by Jonathan Bailey at PlagiarismToday

For independent creators, every hour spent working on one’s copyright is an hour not spent on creating new work or running their business. As such, many creators either neglect their work’s copyright protection or pay someone else to handle it, often at great cost.

The reason for this is simple, the systems for organizing, registering and enforcing copyrights were, by in large, designed for large copyright holders. What works well for a large movie studio or record label doesn’t work well for independent creators.

See full article at PlagiarismToday.

Commercial Publishers Keep Using Photos Without Permission

by David Newhoff – Republished from The Illusion of More

I understand pursuing a fair use defense in a copyright case when the user of a work does something new and creative and believes there is a plausible argument to be made. I also understand why copyright skeptics file amicus briefs seeking opinions that would change the fair use doctrine. But what I find astonishing is the professional, who makes an archetypal use of a work, for which permission was obviously required, and then believes they can prevail on fair use through costly litigation. Because this keeps happening.

In the Spring of 2019, fine art and landscape photographer Elliott McGucken captured a transitory natural phenomenon—the sudden appearance of a lake in the middle of Death Valley, CA, known to be one of the hottest and driest places on Earth.[1] Heavy rains that March formed the 10-mile-wide ephemeral lake, of which McGucken made a series of beautiful and rare photographs, and several publications used his images by permission to accompany articles about the unusual event.[2] But when UK-based, digital publisher Pub Ocean failed to obtain permission for a similar use, McGucken sued for copyright infringement.

Using a photograph for illustrative purposes in an article or book is a paradigmatic use that requires license from the copyright owner. Newspapers, periodicals et al. have had to obtain permission for this purpose for as long as photographs have been protected by copyright law. Yet, despite this longstanding practice, even large commercial entities, perhaps lost in digital-age habits, too often use images without permission. Then, rather than settling with the photographer upon notification of the alleged infringement, these parties compound the error by litigating fair use defenses that will evaporate as surely as a lake in Death Valley.

Granted, in McGucken v. PubOcean Ltd, the fair use defense did prevail on summary judgment in the California District Court, and we have seen lower courts deliver such opinions in a handful of cases of this nature. But I cannot think of one similar instance in recent years that has not been overturned on appeal, including this case. It’s not that the fair use defenses are close calls, but rather, it seems, that certain district courts are hasty in reviewing their own circuit precedents. And in circumstances like this one, defendants are unlikely to find opinions favoring fair use any circuit.

Of the 27-page opinion delivered last week by the Ninth Circuit Court of Appeals, six of those pages cite a litany of precedent denying Pub Ocean any footing on factor one of the fair use analysis (purpose of the use, including commerciality). And here, as in other instances, losing on factor one is fatal to the rest of the fair use defense. In fact, commercial users of photographs (and their counsel for that matter) could read this opinion as a primer about typical uses of works that are not “transformative” under prong one.

As if wandering in a desert with a divining rod, Pub Ocean tried to exploit the seemingly vague semantics of the “transformativeness” doctrine, hoping to escape a sound reading of case law. It tried to argue, as others have done before, that merely placing McGucken’s photographs in the context of a news article, surrounded by text and captions, imbues the photographs with “new meaning and purpose” sufficient to find “transformativeness.” But the court writes …

Practically speaking, it is hard to imagine what would not be a fair use, or what could not be readily turned into a fair use, under Pub Ocean’s theory. Any copyrighted work, when placed in a compilation that expands its context, would be a fair use. Any song would become a fair use when part of a playlist. Any book a fair use if published in a collection of an author’s complete works. It would make little sense to treat this kind of “recontextualizing” or “repackaging” of one work into another as transformative.

More specifically, the court reaffirms what it means to make fair use of a work for the purpose of
“news reporting,” often a subject of confusion because it is one of the statutory examples cited as a purpose that may favor fair use. But here, the court clarifies, “We have recognized that ‘where the content of the [copyrighted] work is the story. . ., news reporters would have a better claim of transformation.’… ‘[C]ourts should be chary of deciding what is and what is not news,’ that label alone does not get Pub Ocean very far.” (Citations omitted).

Users of works are often puzzled by this distinction, but the courts are generally clear-eyed on the principle that the work used must be the subject of the commentary, criticism, or news reporting in order to favor a finding of fair use.[3] By contrast, when a work is used to illustrate, enhance, decorate, etc., especially by a commercial user, then use of the work requires permission of the copyright owner because it is unlikely to fall under the fair use exception.

Further, the court in McGucken adds a footnote stating that even if Pub Ocean had raised the argument that some portion of its article comments upon the photographs, this minimal commentary, in context to the rest of the article, would be unlikely to “help Pub Ocean establish fair use.” Again, this is instructive. Far too many users of visual works believe that adding a bit of text on top of an image (e.g., in a meme) or a caption below it automatically makes the use a fair use, and this belief persists despite guidance from many legal experts that fair use can be tricky and is always a case-by-case consideration.

But there is nothing complicated in McGucken. A commercial publisher used a photograph in the most common manner for which publications have long had to license photographs. The defendant has no foundation for establishing a purpose that would favor a finding of fair use, and absent such a purpose, the other factors fail almost by default. For instance, the court clearly states, under the factor four consideration (potential market harm to the original work), that McGucken’s interest in licensing his photographs would be substantially harmed if Pub Ocean’s use were allowed and became rampant among other users.

I skipped over factors two and three on purpose because a) factor two (the nature of the work) almost always goes to the plaintiff owner of a photograph and is rarely determinative of fair use outcomes; and b) I wanted to highlight the factor three consideration (amount of the work used) because it appears the defendant made another typical blunder. “Pub Ocean argues that this factor favors fair use because the article used twenty-eight photos from other sources, making McGucken’s photos only a small part of the article as a whole,” the opinion summarizes.

That is wrong as a matter of law. The third fair use factor does not consider the weight or role of the used work relative to the scope of the work in which it is used. Here, the court rejects Pub Ocean’s claim stating, “this approach runs contrary to the text of the statute, which plainly calls for a comparison of ‘the portion used’ to ‘the copyrighted work as a whole’ and not the infringing work.” Further, the court reaffirms the interaction between factors one and three, stating, “Pub Ocean failed to point to a transformative purpose that would justify reproducing any of McGucken’s photos—much less the entirety of twelve of them.”

As I say, I don’t get why certain commercial entities so flagrantly infringe photographers’ copyright rights but am even more baffled when they spend tens of thousands of dollars on a doomed fair use adventure. I imagine Mr. McGucken would have settled for a fraction of Pub Ocean’s legal fees to resolve the matter, but it seems as if something in the air whispers “fair use,” and even defendants who should know better chase that vision only to discover that it isn’t even an ephemeral lake but is just a mirage.

[1] This post was drafted while unprecedented rains were flooding Death Valley National Park, trapping tourists and staff.

[2] SF Gate, the Daily Mail, the National Parks Conservation Association, PetaPixel, Smithsonian Magazine, AccuWeather, Atlas Obscura, and Live Science.

[3] Educational use is a bit different, and different conditions apply—namely that works used must be in a traditional classroom setting.

Photo by: Pakornmay

How’s the Copyright Small Claim Going So Far?

by Rachel Kim & Maggie Hibnick

It’s only been a little over a month since the new small copyright claims tribunal, the Copyright Claims Board (CCB), started taking claims. Claimants have been keeping the CCB busy and some claims were approved for service of process at the beginning of this month. We at the Copyright Alliance have been monitoring the flow of cases, the types of claims and claimants, and the timeline and pace at which the claims are proceeding. There are some interesting observations and takeaways so far which generally show that the CCB seems to be operating as designed by Congress under the Copyright Alternative in Small-Claims Enforcement (CASE) Act.  Read full article at Copyright Alliance.