We have written in the past about the concerns that broadcasters face about the unauthorized use of photos on station websites. Some broadcasters have had problems when they found that photos posted on their websites were posted without permission of the copyright holder – and representatives of the copyright holder contacted the stations with demands for significant compensation. We reminded broadcasters that everything that you find on the Internet cannot be appropriated for your own uses – that copyrighted material retains copyright protections even when it is made available on the Internet. It appears that this is not an isolated problem, as the Copyright Office has just announced the commencement of a study to determine how best to protect the copyrights of photographers and those who produce other digital images. In this digital age, when photos and other images can be copied and reproduced digitally, distributed on websites and through other digital means, often stripping out any embedded information about the copyright owner, problems in copyright enforcement are common. The Copyright Office seeks information both from copyright owners and from users of such images on how to best protect copyrights, while at the same time making it possible for users to obtain clearances for photos that they want to use.
This issue for broadcasters actually cuts both ways, as broadcasters themselves create photos and other images it their news coverage, and in connection with other station activities and events. They don’t want these images exploited by competitors and other media sources without permission. So legal clarity could be a good thing, as it will not only to help broadcasters clear rights to use photos and other images online and in their over-the-air broadcasts, but it will also help them to protect the images that their employees create in the course of their broadcast employment. What does the Copyright Office ask?The Copyright Office notes that photos and other images are vulnerable to “orphaning” – meaning that it is often difficult to find the copyright owner of a photo as the image is often embedded in other media (e.g. a page of a newspaper, magazine or on a website) and often the owner is not identified, or any identification disappears in subsequently made copies. So users often unwittingly reproduce or distribute a photograph or other image without knowing that it is copyrighted, or because they cannot find the copyright holder to get the appropriate rights. The Copyright Office asks for comments from copyright owners and users as to how to best identify photographs and other images so that rightsholders can enforce their rights, and users can get access to the photos that they need.
Because photographers often take hundreds of images, not all are registered because of the time and cost involved in registration. Thus, photographers may not be entitled to statutory damages when their works are used without permission (up to $150,000 per infringement for registered works). Without statutory damages, a lawsuit where actual damages would have to be proved may be too costly to enforce a photographer’s rights. Thus, the Copyright Office asks if there should be some sort of small claims process by which copyright owners can assert their rights in a cheaper and quicker process than going to court.
The study also asks general questions about the issues involved in registering, protecting and obtaining rights to use photos and other images. The study does not ask specific questions about when a use in infringing, and when a use is a fair use. This question comes up more and more in the context of social media, where photos are often shared. Sharing is the nature of these services, but there has been at least one case (about which I may write in a subsequent post) where a photographer challenged a media company for using a copyrighted photo on their social media site without permission. Certainly, clarity about fair use in a social media context would be welcomed by many Internet users (we wrote about fair use here).
Comments on the issues raised by the Copyright Office, asking for information about both legal and technological solutions to the issues, are due July 23, with replies due August 24. As with any Copyright Office study (see our recent article on their Music Licensing study) conclusions reached by the study usually need Congressional action before they can become effective, which only sometimes follows the issuance of a report. Nevertheless, these studies do focus attention on legal issues in copyright law, and users and copyright holders should pay attention to the process.