DMLA SUPPORT STILL NEEDED FOR CASE ACT

Dear Members:

We have had great response from the House for the CASE Act and we now have 31 co-sponsors for H.R. 2426!  The letter writing and meetings with representatives is working, but we can’t stop now.  We still need efforts from all of you to get the support for the bill up to triple digits to assure passage.

Many of you had made the push to get your contributors to participate in this important effort and we are grateful. We know that Serban Enache at Dreamstime sent an email to all of his 500,000 contributors asking them to write to their representatives and also wrote on social media in support of the CASE Act.  Thanks so much Serban.

The bill  is backed by the group of creative associations that DMLA  has been working with over the last 10 years including, ASMP, APA, ASCRL, the Copyright Alliance, GAG, NANPA, NPPA, and PPA. So, we’re off to a great start, but we need to build momentum, and that’s where you come in. DMLA has already written the relevant members of the House Judiciary Committee and the Senate in support of the CASE Act. However, getting a bill passed is hard work. We need to build as much support as possible for the CASE Act before Congress takes its summer break in August. The Representatives and Senators need to hear from their constituents to know that this bill has grass root support in their states and districts.

We’ve made it very simple for you:

  1. Send the attached letter (which you may modify) to your Member of Congress through their contact page
  2. Encourage your photographers to add their voices at the web portal copyrightdefense.com/action
  3. Tweet/use instagram and/or Facebook to show your support for the CASE Act

Thanks so much. We know we can count on you to make sure this important legislation gets all the attention it needs from our DMLA Membership.

 

PicRights Further Develops Global Copyright Enforcement Network with Expansion into Africa

New team in Johannesburg provides deep experience and a gateway to the African continent

 

June 4, 2019 – PicRights, a global leader in copyright enforcement, has added a new partner in Johannesburg, South Africa to monetize copyright infringements for the world’s leading news agencies, stock image agencies and independent photographers. No other copyright compliance service offers its clients as much geographical coverage of key markets around the world.

Stock Options, a well-known full-service production and footage house in Johannesburg with close ties to the stock licensing industry will handle copyright enforcement in South Africa, joining PicRights’ long established network in major markets in Europe, North America, South America and the Middle East.

“Copyright enforcement that works cannot be a purely technological solution; it relies heavily on the human expertise of our teams on the ground. Our chosen partner in South Africa has not only extensive experience in licensing content, but also a deep understanding of copyright and intellectual property. They will be an invaluable asset,” says Alfred Hoefinger, CEO of PicRights Europe.

“PicRights streamlined system allows enforcement teams, legal counsel and content owners to collaborate and exchange information quickly, regardless of location or time zone, which is a big plus for my team,” says Margi Sheard, Managing Director of Stock Options.

Geographically, this provides a foothold for future growth as Africa is home to several emerging markets. “Stock Options has a considerable history in South Africa when it comes to producing and licensing both still images and footage and are perfectly positioned to act as a gateway to Africa for our copyright enforcement activities,” adds Geoff Cannon, VP of Sales for PicRights.

PicRights handles the challenging business of monetizing copyright infringements, allowing copyright owners to focus on their core business. Using state-of-the-art technology to identify infringements and a team of professional QC staff to qualify them as enforceable, PicRights delivers actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees.

PicRights Europe GmbH

CONTACT: Geoff Cannon, VP Sales

PHONE: +1 416 816 5700

EMAIL: geoff.cannon@picrights.com

Permission Machine Announces the Opening of its French Office

 

 

 

Permission Machine bvba has continued its international expansion by opening an office in Lille, France. It follows the opening of Permission Machine’s Los Angeles office in the U.S. last year.

It will strengthen Permission Machine’s image search and infringement enforcement for all of its global clients. The new office will handle all French cases directly. As Nico Matthijs, head of the French operations says, “Being local, knowing the laws and speaking the language is the recipe of Permission Machine’s success. The Lille office and its French staff is crucial for us to successfully expand our operations in the French market.”

About Permission Machine

Permission Machine was established in 2013 by Ywein Van den Brande, a Belgian intellectual property attorney with degrees from Leuven University, UCLA and Rouen University. He founded the company to pursue infringements ethically, offering the service free of charge to photographers and agencies. Permission Machine’s proprietary technology ensures its clients see accurate filtered results to ensure their intellectual property rights are protected. The company has seen tremendous growth over the past three years with success based on achieving quick negotiated settlements.

For more information about our services, please contact Michael Masterson at michael.masterson@permissionmachine.com.

 

PicRights Advances Global Copyright Enforcement Network With New Partner in India

Team in Hyderabad joins long established network to monetize infringements for content owners

PicRights Europe GmbH, a global leader in copyright compliance, has once again expanded its enforcement network. To monetize copyright infringements for the world’s leading content owners, PicRights has added an experienced team in Hyderabad, India as the newest enforcement partner. This will augment PicRights’ long established network in major markets in Europe, North America, SouthAmerica and the Middle East, further cementing PicRights’ dedication towide-ranging geographical coverage of key markets around the world for its clients.

The new location is strategic. India remains the fastest growing major economy in the world. By 2024, India will have the largest population in the world and willexperience a 4x growth in consumer spending in the next ten years.

“Many of our current image collections have been available for licensing in this region for decades, but without the benefit of dedicated copyright enforcement. Our chosen partner in India will provide our clients withexcellent opportunities to further monetize their content,” says Alfred Hoefinger, CEO of PicRights Europe.

Conceptual Pictures, an experienced stock image licensor located in Hyderabad will be responsible for cases in both India and Singapore. “With the established expertise of my team and the PicRights state-of-the-art system, we were up and running on Day 1 in India,” says Ramji Ravindran, Founder and CEO of Conceptual Pictures.

Geoff Cannon, VP Sales of PicRights Europe, adds “As content owners know, copyright infringement is a huge challenge nearly everywhere, including in emerging markets like India. The addition of India to our already extensive enforcement network allows us to provide a robust global solution to our customers.”

With their end-to-end service, PicRights handles the difficult business of monetizing copyright infringements, allowing copyright owners to concentrate on their core business. Using state-of-the-art technology to identify infringements and a team of experienced staff to qualify them as enforceable, PicRights delivers actionable cases to the appropriate enforcement unit for settlement and collection of licensing fees.

 About PicRights:

PicRights Europe GmbH is headquartered in Switzerland with enforcement operations and professionalcompliance officers in central and northern Europe (Germany, Austria, Switzerland, France, Benelux andScandinavia), London (for UK and Ireland), the Middle East (Emirates and Saudi Arabia), Toronto (for USAand Canada), Sao Paulo (Brazil), Hyderabad (India) and Johannesburg (South Africa).

PicRights Europe GmbH

CONTACT: Geoff Cannon, VP Sales

PHONE: +1 416 816 5700

EMAIL: geoff.cannon@picrights.com

DMLA Needs Member Support for CASE Act

Dear Members:

May 2, 2019 was a big day for copyright advocacy in Washington D.C. as two companion bills (H.R. 2426 and S. 1273 ) were introduced in both the House and the Senate creating an alternative forum for hearing copyright infringement cases of relatively lesser value entitled the Copyright Alternative in Small Claims Enforcement Act (CASE Act).  The legislation, creates a small-claims process for creators and businesses whose work is infringed to be heard by a tribunal within the Copyright Office, without the need for attorneys, or personal appearances. The monetary limit  is $30,000 for two works

These bills have bipartisan support, which  is rare and very encouraging. The bill  is backed by the group of creative associations that DMLA  has been working with over the last 10 years including, ASMP, APA, ASCRL, the Copyright Alliance, GAG, NANPA, NPPA, and PPA. So, we’re off to a great start, but we need to build momentum, and that’s where you come in. DMLA has already written the relevant members of the House Judiciary Committee and the Senate in support of the CASE Act. However, getting a bill passed is hard work. We need to build as much support as possible for the CASE Act before Congress takes its summer break in August. The Representatives and Senators need to hear from their constituents to know that this bill has grass root support in their states and districts.  So, we are asking you to do the following:

  1. Send the attached letter (which you may modify) to your Member of Congress through their contact page
  2. Encourage your photographers to add their voices at the web portal copyrightdefense.com/action
  3. Tweet/use instagram and/or Facebook to show your support for the CASE Act

Thanks so much. We know we can count on you to make sure this important legislation gets all the attention it needs from our DMLA Membership.

Warm regards,

Nancy Wolff, DMLA Counsel                                                                                                                       Cathy Aron, DMLA Executive Director                                                                                                       DMLA Legal Committee

SAMPLE DMLA MEMBER LETTER FOR CONGRESS

 

SAMPLE DMLA MEMBER LETTER

[NAME] is a member of DMLA, the Digital Media Licensing Association is writing to support H.R. 2426, The Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act), which was introduced in the House on May 1, alongside a companion bill, S. 1273, in the Senate.

Until now, federal courts have exclusive jurisdiction over all copyright claims. This means that most infringements of visual content go virtually unchecked, as the cost of enforcing copyright claims in federal court can far exceed any reasonable compensation the copyright owner or its licensing representation can expect to recover.

The CASE Act would create an affordable, efficient alternative to expensive and drawn out federal litigation to resolve ordinary copyright disputes. Copyright law and the means to effectively enforce rights under copyright is the bedrock of the media licensing industry. NAME represent(s) the works of thousands of photographers, illustrators, videographers and other visual artists for potential licensing. Weinvest substantial resources in creating easy to navigate online platforms that allow publishers, creatives, filmmakers and businesses of all sizes access to vast libraries of licensable visual content to visually enhance all forms of communications. Unfortunately, the ease in which visual content can be reproduced freely online undermines this valuable licensing economy our members have built including the livelihood of the artists whose works werepresent. DMLA has been working on our behalffor the past decade with the Copyright Office, Congress, and a coalition of visual artists associations in support of a creation of a voluntary copyright tribunal that will encourage the resolution of these kinds of infringement claims, where both sides can afford to seek a resolution without expensive legal fees.

We need a 21stcentury copyright regime that protects creators and a licensing system that rewards creation and encourages licensing models that add to the U.S. economy, instead of encouraging theft of visual content. The CASE Act does just that. We urge every member of the Committee to show their support by co-sponsoring the CASE Act.

Sincerely,

PERMISSION MACHINE AND THE COPYRIGHT ACT: WHEN YOU CREATE IN-DEMAND IMAGES, YOU NEED PROTECTION.

“The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

United States Constitution, Article I, Section 8

An image that speaks to the viewer, and tells a story without words is the ultimate goal for any photographer. And because of that, it is not surprising that there is an untold number of photographer’s images that are coveted and borrowed without the photographer’s knowledge or consent. As a result, there is an increasing need to protect the rights of creators and their work.

Permission Machine

In an increasingly digital world, it is becoming harder and harder to keep track of your imagery. It is not uncommon to find images being used that were not licensed. I wanted to learn more about how photographers could protect themselves and what recourse might be available for those that have instances they’d like remedied and spoke with Michael Masterson of Permission Machine. Permission Machine works to resolve infringement issues and are able to work with both registered and unregistered images. However, the below information will show, registering images will provide for protection and fewer headaches when seeking to recover fees.

When I spoke with Michael, he shared with me the services they provide which include image scans using proprietary reverse search engineering, filtering of images, reporting, in-house legal services, and finding new revenue streams. I liked that there is no upfront cost to the photographer. When a photographer uses Permission Machine’s services, and a case is pursued and settled, the “proceeds are divided equally among the client, the lawyer and Permission Machine with 33.3% going to each.” Michael explained that they routinely get four and five-figure settlements on registered images. “Money that’s just left on the table if not pursued vigorously.”

Copyright Protection

Copyright protects your creation so that you get credit for your hard work and creativity. There are several sources to consider when obtaining copyright information.

  • Copyright law is covered under Article 1 of the Constitution. The US Copyright Office offers guidance specific to photographs, including instructional videos.
  • The Copyright Alliance is a Washington, D.C. based copyright advocacy group who provides information on issues and policy, details on copyright law, resources, news, and education.

Consider two particular chapters within the Copyright Act, Chapter 5 and Chapter 12.

  • If the infringement occurs before an image is registered, you can’t get statutory damages. Under Chapter 5, you need to register before the infringement.
  • If the infringer knowingly removed the copyright or someone else did, then it falls under Chapter 12 whether it’s registered or not.

And if you want to read more about what we have written about copyright, link here.

We recognize photographers work tirelessly to bring their vision and creations to life. Those creations should be protected. Please visit the above sources for Copyright information and check out Permission Machine for timing, a trial, and pricing.

**Permission Machine is a Sponsor of DMLA.

VISUAL ARTS GROUPS APPLAUD RELEASE OF NEW SMALL CLAIMS LEGISLATION

 

May 1, 2019 – A coalition of visual artists, representing hundreds of thousands of mom-and-pop creators in every state across the country is praising U.S. House and Senate sponsors for taking steps to correct a century-old inequity in copyright law. The legislation—introduced today by Congressmen Jeffries, Collins as well as Senators Kennedy, Tillis, Durbin and Hirono, creates a small claims process for creators whose work is infringed.  The Copyright Alternative in Small Claims Enforcement Act (CASE Act) represents a rare bipartisan, bicameral effort on Capitol Hill.

The CASE Act creates a small claims tribunal operating under the U.S. Copyright Office — a process that will be especially valuable to an estimated 500,000 or small creators, including photographers, illustrators, graphic designers, song-writers, independent authors, and others whose only  remedy for infringement is to pursue an action in Federal Court. A Federal court action can cost hundreds of thousands of dollars to bring to fruition, while small creators report that most infringements are valued at $3,000 or less.

“It’s hard to imagine a world that doesn’t protect small creators, but that is exactly what we have today,” says David Trust, CEO of Professional Photographers of America.  “Ironically, it is the same group of creators that can least afford to have their work stolen.”  Trust is referring to surveys that show many, or most, small creators earning just $35,000 a year on average.  “With the CASE Act, smaller creators would finally have an equal seat at the table of protections enjoyed for so long by other creators.”

The CASE Act would provide a way for creators to recover damages from an infringement without going to Federal Court.  Damages would be capped at $30,000 per proceeding, although expectations are that most of the claims would be valued at much less than that.  Proponents of the bill believe the creation of a small claims process is long overdue.

Proponents of the bill believe the creation of a small claims process is long overdue.

“For ASMP members, congressional action on the CASE Act is not an abstract exercise in lawmaking,” says ASMP executive director Tom Kennedy. “Photographers we represent are small business owners who depend on licensing income from their photographs to stay solvent as they work long hours without the luxury of lots of staff to make their businesses work smoothly.  Yet, unfortunately on a weekly basis, our members experience multiple infringements that deprive them of the income so necessary for business success.”  That lack of income can be the different for making a mortgage payment or paying a school tuition.

The Graphic Artists Guild strongly supports the introduction of the The CASE Act, establishing a copyright small claims tribunal.  “Graphic artists – designers and illustrators – are caught in a zero-sum game when it comes to enforcing their copyrights”, says Rebecca Blake, Advocacy Liaison for the Graphic Artists Guild.  “Their work is routinely infringed and infringers, knowing that the artists often don’t have the means to take an infringement lawsuit to federal court, usually ignore their attempts to revolve the dispute. The CASE Act will provide an affordable, equitable means for graphic artists to enforce their copyright.”

“Copyright infringement is a pernicious problem for our members,” said Michael P. King, President of the National Press Photographers Association. “Visual journalism is incredibly valuable work that is regularly stolen and circulated on the Internet. Yet visual journalists currently face a long, expensive process to be compensated for the theft of their work. The manner in which infringement persists without a workable remedy is economically devastating for photographers, their clients and their employers. It is our hope that the balanced nature of the CASE Act provides a real solution for photographers and other authors.”

“We are so grateful that Congress is taking up the CASE Act,” says Cathy Aron, DMLA Executive Director.  “This legislation is a critical element of copyright reform as it offers the image licensing industry, and others, an alternative to expensive Federal litigation to resolve copyright claims in an affordable manner.  An effective copyright  system is the bedrock of the  licensing community, and an ability to seek real remedies for the garden variety infringements  that are pervasive in an online environment, is essential to the licensing  industry.   We are delighted that all the hard work from many associations, people from congress, senators, and advocates is finally paying off.”

Having the CASE Act enacted into law would finally provide individual creators with the tools they need to protect their creative works from those who use them without permission or compensation. Enacting the CASE Act would remedy a historic inequity of the copyright system and by giving visual creators the kinds of protections that enables them to continue to create works that impact all of society in a positive way.

 

About the members of the Coalition of Visual Artists:

American Photographic Artists(APA) is a leading national nonprofit organization run by and for professional photographers. APA strives to improve the environment for photographic artists and clear the pathways to success in the industry. Recognized for its broad industry reach, APA works to champion the rights of photographers and image-makers worldwide.

The American Society for Collective Rights Licensing(ASCRL) is a 501(c)(6) not-for-profit collective management organization (CMO) for visual art authors and rights owners. We collect royalties and distribute them to our members based upon representation agreements that we have with other collecting societies around the world. Our intention is to provide an ongoing revenue stream from reprographic funds for authors or rights owners in visual works.

The American Society of Media Photographersis this country’s foremost trade association supporting independent photographers who work commercially for publication in all forms of media.  ASMP is the leader in promoting photographers’ rights, providing education in better business practices, producing business publications for photographers, and helping to connect clients with professional photographers.  ASMP, founded in 1944, has nearly 5,000 members organized into 38 chapters across the country.

The Digital Media Licensing Association(DMLA) has developed business standards, promoted ethical business practices, and actively advocated copyright protection on behalf of its members for over 65 years.  In this era of continuous change, we have remained an active community where vital information is shared and common interests are explored.  In addition, DMLA educates and informs its members on issues including technology, tools, and changes in the marketplace.

The Graphic Artists Guild(GAG) has advocated on behalf of graphic designers, illustrators, animators, cartoonists, comic artists, web designers, and production artists for over fifty years. GAG educates graphic artists on best practices through webinars, Guild e-news, resource articles, and meetups. The Graphic Artists Guild Handbook: Pricing & Ethical Guidelines has raised industry standards and provides graphic artists and their clients guidance on best practices and pricing standards.

The National Press Photographers Association (NPPA) has been the Voice of Visual Journalists since its founding in 1946.  NPPA is a 501(c)(6) non-profit professional organization dedicated to the advancement of visual journalism, its creation, editing and distribution in all news media. Our Code of Ethics encourage visual journalists to reflect the highest standards of quality and ethics in their professional performance, in their business practices and in their comportment. NPPA vigorously advocates for and protects the Constitutional rights of journalists as well as freedom of the press and speech in all its forms, especially as it relates to visual journalism. Its members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community.

North American Nature Photography Associationpromotes the art and science of nature photography as a medium of communication, nature appreciation, and environmental protection by providing information, education, inspiration, and opportunity for all persons interested in nature photography.  NANPA fosters excellence and ethical conduct in all aspects of our endeavors and especially encourages responsible photography in the wild.

Professional Photographers of America(PPA) is the world’s largest and oldest association representing professional photographers.  Founded in 1868, PPA exists to help its members prosper artistically and financially by providing artistic and entrepreneurial skills through its industry-leading education system, unmatched benefits, and award winning magazine.  PPA was founded over a predatory patent application, and continues its work on Capitol Hill to defend photographers’ rights today.

 

 

Fourth Circuit Rules in Favor of Stock Photographer Russell Brammer

In October 2018 DMLA filed an amicus brief in support of photographer Russell Brammer’s appeal to the Fourth District over a questionable Virginia district court decision, which held that production company’s use of his stock photo of a Washington, D.C. neighborhood on a website promoting a film festival was fair use.

Our focus was on the extent of the market harm -and the impact the lower court’s decision would have on the licensing industry if this type of fair use of an image became widespread. Other visual artists associations as well as the Copyright Alliance, submitted amicus briefs on behalf of the photographer addressing other factors. This is great example of the industry coming together to correct a decision that if left to stand, could adversely affect the rights of content owners and members of DMLA if other courts followed the lower courts fair use analysis.

In the decision released on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s use of a cropped version of photographer Russell’s photo of Adams Morgan in a list of tourist attractions on a website promoting the Northern Virginia International Film and Music Festival did not qualify as a fair use.

This is also another good example of DMLA’s advocacy and how we use your dues monies to work for the benefit of the industry and your business.

Read the entire article here

Fourth Circuit Rules in Favor of Stock Photographer, Overturning Questionable Fair Use Decision (Brammer v. Violent Hues Productions, LLC(4th Cir. 2019))

By Sara Gates and Nancy Wolff CDAS

The rights of a stock photographer were recently vindicated when the U.S. Court of Appeals for the Fourth Circuit overturned a questionable Virginia district court decision, which held that a production company’s use of a stock photo of a Washington, D.C. neighborhood on a website promoting a film festival was fair use.  In the decision released on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s use of a cropped version of photographer Russell Brammer’s photo of Adams Morgan in a list of tourist attractions on a website promoting the Northern Virginia International Film and Music Festival did not qualify as a fair use.

The case focuses on the photograph “Adams Morgan at Night,” which Brammer shot from the rooftop of a building in the Washington D.C. neighborhood in 2011.  Experimenting with various shutter speeds and aperture combinations, Brammer photographed a busy street full of passing cars that appear as trails of red and white lights.  He published a digital copy of the photo on his website and on Flickr with a “© All rights reserved” notice, and later licensed the photo for online use.

Years later, in 2016, Violent Hues downloaded the photo—presumably from Flickr, while overlooking the rights notice—and proceeded to crop out the negative space before posting it on http://novafilmfest.com, necessitating the litigation.  After the district court absolved Violent Hues of liability under the fair use doctrine, Brammer appealed the decision, asking the Fourth Circuit to set the record straight.

The Fourth Circuit did just that when it engaged in a thoughtful analysis of the fair use factors and considered the arguments raised by each side.  Its decision is instructive as it adds to the wealth of case law on how to interpret the complex and nuanced doctrine of fair use.

Purpose and Character of the Use

For the first factor, the Court considered whether Violent Hues did anything to transform the work.  The Court rejected Violent Hues’ suggestion that the analysis should focus on the subjective intent of the parties and instead compared Brammer’s photo and Violent Hues’ use, as it appeared on the website, side-by-side.  The only obvious change, the Court noted, was the cropping, which generally is non-transformative.

The Court also rejected Violent Hues’ contextual argument, in which they claimed that they transformed the photo by putting it on a list of tourist attractions.  While courts have found minor contextual changes to be sufficient in two specific instances—raw material for technological functions and documentary uses—the Court found that Violent Hues’ copying did not fall within either category.

As Violent Hues’ use of the photo was also for a for-profit film festival, and Violent Hues’ did not have to pay the customary fee for its use of stock image, the Court found this factor ultimately weighed against fair use.

Nature of the Copyrighted Work

The Court’s consideration of the second factor focused on the thickness versus the thinness of the author’s rights, noting that some works are closer to the core of intended copyright protection that others, which should be entitled to only thin copyright protection.  Here, the Court found the photo was entitled to “thick” protection, considering Brammer’s many creative choices, such as the location, shutter speed and aperture combinations, uses of vivid colors, and birds-eye-view angle.  The Court noted that photos are generally viewed as creative, even if they capture images of reality, and have long received thick protection.

Additionally, the Court noted that publication status of the photo was not relevant fair use analysis.  Unlike in the case of literary works, where the right of first publication is paramount, photos are often intended for repetitive viewing, so the publication consideration is different in the area of photography. The Court summed it its point as follows: context matters.  Accordingly, the Court found that this factor also weighed against fair use.

Amount and Substantiality of the Portion Used

The Court’s analysis of this factor was straightforward, as it was clear that Violent Hues used roughly half the photo by cropping out the negative space, but kept the most expressive features, i.e., the heart of the work.  While a substantial taking can still constitute fair use, if it is justified (requiring the Court to look back to the first factor), here, the taking was not justified.  This factor also weighed against fair use.

Effect on the Market

For the fourth factor, the Court consider both the extent of the market harm and whether Violent Hues’ conduct, if widespread, would result in a substantially adverse impact to the photos’ potential market.  Here, the Court found a presumption of market harm, which exists when commercial use is not transformative, but amounts to a mere duplication.  Though Brammer was not required to present any evidence to show the negative effect on the licensing market for the photo, given that the Court found the presumption applies, he did so, showing that he received a $1,250 fee in one instance.  The Court noted that Brammer would have missed out on this fee if the company that decided to license his photo had instead opted to act like Violent Hues. Thus, this factor weighed against fair use as well.

As all four factors weighed against fair use, the Court’s balancing test was fairly easy: no fair use.  The Court signed off with this reminder the there is no difference between copying photos for print use versus online use: “What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

DMLA’s Interest

DMLA filed an amicus brief in favor of the photographer, specifically addressing the fourth factor – extent of the market harm -and the impact the lower court’s decision would have on the licensing industry if this type of fair use of an image became widespread. Other visual artists associations as well as the Copyright Alliance, submitted amicus briefs on behalf of the photographer addressing other factors. This is great example of the industry coming together to correct a decision that if left to stand, could adversely affect the rights of content owners and members of DMLA if other courts followed the lower courts fair use analysis.