Copyright Infringement Updates 2016 – Online Photo & Digital Image Infringement Law
This blog discusses lawsuits filed by National Photo Group, LLC, BWP Media USA Inc., dba Pacific Coast News and FameFlynet a Plaintiff that provides “entertainment related photojournalism goods and services” including pictures of celebrities which are licensed to online and print publications. If you were served a lawsuit or a demand letter, contact us to discuss your legal rights. The firm you might have received a letter from is Sanders Law, PLLC in New York. Their tagline on their website is “Defending the Victims.” Here is a copy of one demand letter then sent to a company webmaster which in essence amounted to a cease and desist and demand for infringement penalties and possibly a future licensing fee if the photo at issue was to be used in the future.
The letter noted above attached a copy of a sample lawsuit which purported that it would be filed in the Eastern District Court (federal court) in Virginia. Obviously the threat of litigation for willful copyright infringement and contributory infringement must be taken serious, and you can check on the FEDERAL PACER ONLINE and see that National Photo Group does file lawsuits. The letter above deals with Jessica Simpson photos.
Who is National Photo Group?
According to Bloomberg:
“National Photo Group, LLC licenses celebrity photographs to websites and magazines. The company owns copyrights of photographs of celebrities and then license them to online and print publications. National Photo Group, LLC is based in Los Angeles, California.”
Who is BWP Media USA Inc.?
According to Bloomberg:
“Bwp Media USA Incorporated was founded in 2006. The company's line of business includes providing commercial photography services for advertising agencies, publishers, and other industrial users.”
Sample allegations from the complaints
Here are some of the sample allegations you might see in one of their complaints:
“On information and belief, Defendant is a Delaware corporation with a principal place of business in San Francisco County, California, and is liable and responsible to Plaintiff based on the facts herein alleged. The Website is a popular and lucrative enterprise that purposefully displays celebrity and news photographs, including Plaintiff's copyrighted photographs.
The Website is monetized in that it contains paid advertisements, sells sports equipment and sports paraphernalia to the public, and sells tickets to sporting events to the public—and, on information and belief, Defendant profits from all of these activities. Without permission or authorization from Plaintiff, Defendant volitionally selected, copied, modified, stored and displayed Plaintiff's copyright-protected photographs (hereinafter collectively referred to as “Photograph(s), as set forth in Exhibit “1,” which is annexed hereto and incorporated in its entirety herein, on the Website.
On information and belief, the Photographs were copied, modified, stored and displayed without license or permission, thereby infringing on Plaintiff's copyrights (hereinafter collectively referred to as the Infringement(s).
Without permission or authorization from Plaintiff, and in willful violation of its rights under 17 U.S.C. §106, Defendant improperly and illegally copied, stored, reproduced, distributed, adapted, and publicly displayed works copyrighted by Plaintiff, thereby violating Plaintiff's exclusive rights in its copyrights. Defendant's reproduction and display of the Photographs on the Website constitutes willful copyright infringement.” See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991).
As with most copyright infringement cases, the Plaintiff was seeking damages and an injunction against Defendants.
A case where BPW lost on its claim for copyright infringement
In BWP Media USA Inc. v. Polyvore, Inc., No. 13-CV-7867(RA) (S.D.N.Y. July 15, 2016) a federal court in New York determined that BPW could not make out a prima facie case for copyright infringement. The opinion noted:
“This case epitomizes the truism that litigation—like fashion—requires attention to detail. Plaintiffs own a variety of celebrity photographs and allege that Polyvore, Inc., which operates the fashion/style website polyvore.com, infringed on their copyright interests when some of those photographs appeared on Polyvore's website. In denying Polyvore's motion to dismiss, the Court noted that, in light of the factual nature of Plaintiffs' claims, it would “be in a better position to assess [Plaintiffs'] arguments on summary judgment.” Snyder Decl. Ex. 13 at 39:3-4. Plaintiffs nonetheless conducted no depositions during discovery; indeed, they appear not to have participated in discovery in any meaningful way. Now that the parties have cross-moved for summary judgment, the Court is left with approximately as much—or in this case, as little—insight into the critical facts as it could discern from the face of Plaintiffs' pleading. Although Plaintiffs have raised an interesting legal issue as to whether the preservation of metadata, which allows Plaintiffs to identify their photographs on other websites and which Polyvore purportedly deletes, is a “standard technical measure” that Polyvore must accommodate and not interfere with in order to invoke the safe harbor provisions of the Digital Millennium Copyright Act as an affirmative defense, the Court need not address it. Plaintiffs have not met their initial burden to present proof of any volitional conduct on behalf of Polyvore, and they are thus unable to establish a prima facie case of copyright infringement. On the sparse record before the Court, Plaintiffs have identified no disputed issue of material fact that prevents Polyvore from being entitled to summary judgment as a matter of law. Polyvore's motion for summary judgment is accordingly granted, Plaintiffs' cross-motion is denied, and this case is dismissed.”
The Court went on to discuss “Direct copyright infringement” and what it takes to show that
I. Direct Infringement A claim for direct copyright infringement contains two elements: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Polyvore concedes, for the purposes of the pending cross-motions, that Plaintiffs own valid copyrights in the relevant photographs. See Oral Arg. Tr. at 39:1-8. Polyvore also concedes that exact copies of the photographs appeared on its website. See id. In most cases, this would end the inquiry. In most cases, however, “the allegedly infringing act and the identity of the infringer are never in doubt.” Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130 (2d Cir. 2008) [hereinafter “ Cablevision”]. When the identity of the infringer is in doubt, as it is here, “[t]he question is who made th[e] cop[ies].” Id. (emphasis in original). In Cablevision, the Second Circuit considered whether the operator of a “Remote Storage DVR System” could be liable for direct copyright infringement because it allowed subscribers to select television programs to record and stored digital copies of the programs subscribers selected on its own server. See id. at 124-25. One claim raised by the copyright owners was that “by copying programs onto [its server], Cablevision … directly infringe[d] the reproduction right” contained in 17 U.S.C. § 106(1). Id. at 125. The Second Circuit disagreed. The court instead endorsed two out-of-circuit decisions that imposed a “volitional conduct” requirement on direct infringement claims, such that the “volitional conduct that causes the copy to be made” must be performed by the defendant and not someone else. See id. at 130-31 (citing CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004); Religious Tech. Ctr. v. Netcom On-Line Commc'ns Servs., 907 F. Supp. 1361 (N.D. Cal. 1995).
PODCAST: Important Photo infringement tip from Attorney Steve®
Companies known to be involved in photo infringement, poetry infringement, and other rights infringement cases
Call us for a free consultation if you have received an infringement notice from any of these, or other, companies demanding settlement fees for photo infringement:
- Getty Images
- BWP Media USA
- National Photo Group
- Adlife Marketing and Communications
- ImageRights International
- DeBoer IP
- Higbee & Associates
- Linda Ellis / Linda's Lyrics (Dash Poem Copyright Infringement)
- Woolf, Gafni & Cirlin
- License Compliance Services
- Photo Attorney (click here for a list of photographers)
- Gavin & Levin
- Associated Press
The most important question to ask if you received a photo infringement demand letter from a law firm
PODCAST: Click to listen to Attorney Steve® explain the important of asking the question about whether or not a photograph is registered with the United States Copyright Office. This short podcast could save you THOUSANDS OF DOLLARS!!!
What if you manage a website that allows user generated content and a user uploaded a copyright protected photo?
This is where the DMCA allows an internet business to protect itself by signing up with a DMCA agent to get “safe harbors” from the infringing actions of its users since it is hard to police a website that has thousands or millions of users. So if you are the webmaster on a site like this, call us to get you setup using our law firm as your DMCA agent.
If not, you can be open to claims of contributory copyright infringement. We offer low flat rates to get you setup. Here is a thread from one user on an internet forum who received a letter regarding an infringed photo allegedly hosted on their website. As you can see, panic can set in on these cases:
“I took my entire site offline a few hours after receiving the complaint because I was freaked out and didn't know what had happened. When I finally got the details of the complaint, I emailed the person listed as the contact – stating that I was unaware that there had been any type of violation, that the possibly infringing image (as well as the article the user had written on his own) had been completely removed from the server and the database, that my site does not generate any sort of profit (actually takes a loss because of the hosting costs), and that I was sorry. I've been so sick over this that I forgot to mention that it is user generated and not created by me. It might not make a difference since I haven't designated an actual DMCA agent, but I wish I had mentioned it anyway. There is definitely a place set up on my site where a DMCA complaint could have been filed without all this hassle. I think they intend to directly get your personal information and skip the whole DMCA process.”
How a website operator can avoid liability for copyright infringement that may occur on their website?
In UMG Recordings, Inc. v. Veoh Networks, Inc., 718 F.3d 1006 (9th Cir. 2013) the federal court held that under Section 512, a website operator is not liable for copyright infringement if:
(1) it did not have knowledge of the user-generated infringing content,
(2) as long as it designated a copyright agent to receive takedown notices on a form submitted to the Copyright Office. Even after the website operator receives a takedown notice identifying infringing content, it can avoid liability if it acts expeditiously to remove, or disable access to, the material. [This highlights the importance of having a DMCA agent].
Is use of a photo on a website considered a “fair use” such that it is not infringing?
To learn more about the fair use defense click here.
Contact a copyright infringement defense lawyer
If you are a Plaintiff or a Defendant in a photo infringement case, call us to discuss the potential for legal representation. For Plaintiff's, a contingency fee recovery program may be offered. For Defendants dealing with allegations of unlicensed photos, we can normally offer a flat rate fee for non-litigation cases. Call us at (877) 276-5084 for a no-cost initial discussion with a copyright attorney.
We can normally handle federal photo infringement cases nationwide including Los Angeles, New York, Dallas, Houston (we have been admitted to Federal Courts in Texas and New York), San Francisco (Marin County), Newport Beach, San Diego, and other areas.