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.

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.

Using Photographs to Register Other Types of Visual Art

Trying to protect your copyrighted work without registering with the U.S. Copyright Office is like running uphill…with a rock tied to your waist. And for many small business creators, registration seems daunting and time consuming. This double-whammy has gotten in the way of many independent creators being able to protect their rights. The good news is that RightsClick makes submitting a registration application simple and fast. More about that in a minute.

A complete registration includes three elements: the application form, the application fee and a copy of the work being registered – known as a “deposit copy.” The basic idea is simple: you send a copy of what you are registering so the Copyright Office Examiners know which work goes with the registration application. With so many works being created in digital formats, it’s pretty intuitive that you send a copy of that file with your registration application. But what if your work is a visual art, like a painting or sculpture, that was not created in a digital format?

Once upon a time, people had to submit physical copies of their works to the Copyright Office. Yes, that meant they had a giant warehouse full of everything from lawn gnomes to cassette tapes, and of course stacks and stacks of books. If you’ve seen the final scene from the first Indiana Jones movie, you get the idea – just not as organized. Fortunately, today it’s much easier – you may submit photographs of your visual art to serve as deposit copies.

Because your deposit is the connection between your registration and your work, you want to make sure your deposit shows all the creative elements of your work. If you have two-dimensional visual art, a photo does the job. Just make sure the lighting is sufficient to see all the detail, and make sure the photograph reproduces the colors and shades in the work as faithfully as possible.

Three-dimensional works may require more than one photograph per work to make sure you show all the details – and don’t forget top and bottom if you have creative elements there. The catch here is that the Copyright Office website only lets you upload one file per work for registration (we’ll talk about group registrations another time). But if you just put all the photos of your 3D artwork into a single .pdf document – voila! You have all your angles covered (literally!) in a single file that is acceptable as a deposit copy.

Also, be sure to correctly identify the type of work you are depositing. For instance, just because you are sending in photographs, the work you are in fact registering may be identified as a “sculptural work,” “graphic design,” “painting,” and so on.

If you register before an infringement starts, you have a lot more enforcement tools at your disposal. RightsClick provides a friendly, easy system that walks you through all the information you need to register your work in just minutes. We even submit the application to the Copyright Office for you. And when you submit your registration through RightsClick, that information becomes part of your portfolio to help you manage your copyright rights throughout your career.

Maybe Don’t Talk About Your CCB Claim on Social Media

(Reposted from The Illusion of More by David Newhoff)

The copyright small-claim alternative, adjudicated by the Copyright Claims Board (CCB), was intentionally designed to accommodate pro se participants, meaning that both claimants and respondents can represent themselves without hiring attorneys. After all, the foundation of small claims court or alternative dispute resolution is to save money. And indeed, we are seeing some early pro se claimants file complaints with the CCB, which began accepting claims on June 16th.

It occurred to me while co-moderating a copyright page on Facebook because, of course, social media encourages a habit of saying or asking everything that comes to mind. But one aspect of legal training the copyright owner/claimants, or for that matter defendants, likely do not have is the discipline to keep mum about an active case. Or at least what should and should not be discussed publicly.

Asking questions or making statements about administrative procedures related to the CCB are safe topics to discuss in public, but parties to a case should remember that it is a legal proceeding with a discovery process. That means anything you say about the facts pertaining to the case itself—including intentions, timelines, beliefs, etc.—may be discoverable and may be entered into evidence by the opposing party. And announcing, griping, gloating, or just describing these matters on social media makes discovery very easy for the opposing party.

This is not to suggest that either claimants or respondents are going to lie or have much to hide of any relevance to a typical CCB case. But if you are a party on either side, it is just good practice to do what an attorney would tell you to do and simply not talk about the case publicly until it’s resolved.

Keeping this discipline could prove difficult for some. Both alleged infringers and anti-copyright ideologues are known to at least insult, if not harass, copyright owners looking to enforce their rights. “Greedy” may be the kindest thing someone calls you, but don’t take the bait, don’t feed the troll, and don’t talk about your case until it’s over. By the same token, if you’re the claimant and you’ve filed a CCB claim, it’s probably not a good idea to also engage in that odd form of digital-age justice generally called “shaming.”

The copyright antagonists want to see the CCB fail. As copyright owners and advocates, we want the small-claim alternative to work, and work in a serious and fair manner grounded in the merits of claims and defenses. As such, both for your own sake and the overall effectiveness of a brand-new system, if you are party to a claim, it’s a good idea to exercise some social media discipline and keep most of the conversation about your case to yourself.

Reasons to Register with the Copyright Office

Any work created in the United States after January 1, 1978 is automatically protected by copyright law. BUT there’s a catch. If your work is not registered with the Copyright Office, you lose key enforcement tools. And if the party who infringed your work knows this, you lose leverage in trying to negotiate a settlement.

But if you look at it the other way, registration of your work with the U.S. Copyright Office is your legal backstop. It provides an avenue for litigation, which usually serves as a reason for settling out of court. It’s simple math. An infringer is more likely to pay a settlement rather than pay a lot more to defend himself in a case he probably won’t win. Ask any copyright attorney what they want most from creative professionals, and they will probably say that they want everyone who intends to protect their works to register them BEFORE those works enter the market in any form.

Register Right Away

The best time to file a registration application with the Copyright Office is as soon as the work is done and before it enters the world — even social media. In addition to obtaining full protection for the work, there are certain financial advantages to registering right away.

For instance, groups of works that are not yet published can be registered in bundles of 10 per application–or up to 750 per application if they’re photographs. And since the meaning of “published” confuses a lot of people, registration before the works go anywhere is an easy way to be sure they are not published.

You can register works directly at the Copyright Office, but many people find the Copyright Office website clunky and confusing. As a RightsClick subscriber, our software will walk you through all the key information you need, help explain the technical terminology, and submit the application to the Copyright Office for you. At this time, we facilitate registration of single works, groups of unpublished works, and groups of photographs, all by a single author, and we’ll be adding more types of registration soon.

RightsClick charges a service fee to process your application, but our fees are much lower than other registration services. Plus, our application interface is easy to use, and once you register by using RightsClick, the registration information becomes part of the data you maintain in your Portfolio.

Considering a Small Claim?

On June 16, 2022, the Copyright Claims Board (CCB) began receiving small claims by copyright owners. Unlike federal litigation, a small claim may be filed for infringement of a work that was not registered at the time of the infringement. BUT a registration application must be filed along with the CCB claim, and the Board will proceed with the claim after the Copyright Office has approved the registration. The Copyright Office has also reduced its expedited registration fee to $50, if the service is requested in conjunction with a CCB claim.

Watch our videos demonstrating the registration process with RightsClick..

Registration Fees per ApplicationUSCORightsClickTotal
Single Work$45$15$60
Single Work Made for Hire$65$15$80
Group Photo Applications of <100 titles:$55$15$70
Group Photo Applications of ≥ 100:$55$30$85
Groups of up to 10 Unpublished Works:$85$15$100
Pricing for independent creators, sole-member companies, and small businesses copyright owners. Law firms, publishers, managers of rights for others, please contact Sales@rightsclick.com.

What’s a Work Made for Hire? See our Glossary.