Deficiencies of Current Photography Copyright Law LCC 3410 Non-Lin Documents Patricia Uceda

Table of Contents I. II. Abstract Deficiencies of Current Copyright Law a. Introduction to Copyright Law b. Copyright Law & the Internet c. Policing Copyright Infringements Online d. Copyright Law is Too Polarizing e. Fair Use Doctrine is Too Restrictive f. Rights Afforded by DMCA are Easily Abused g. Conclusion III. IV. Glossary of Key Terms Works Cited 2 3 3 4 7 9 12 15 17 20 21

Abstract

The Internet has completely transformed how we access and use content. Unfortunately, the way these original works are protected has not changed much. Because of advances in communication technologies, millions of protected images are being produced and distributed each day. Most people would be surprised to know that something as simple as reposting a photo is actually a copyright infringement. Traditional copyright law needs to be updated in order to reflect the rapidly changing rate at which original works are being created and encourage creativity while simultaneously not restraining the public from the benefit of using those works.

Introduction to Copyright Law Unlike its contemporaries, U.S copyright law has not aged well. Meant to promote creativity and the property rights of the author, the ultimate purpose was for it to benefit the wider public through dissemination and creation of more works. While this purpose was served in the mostly agrarian society of the 18th century, one must question whether the true intention of copyright law is still being upheld in todays age of digital distribution. Copyright owners are finding it much more difficult to maintain a semblance of control over how their content is used now that images and other works are circulated around the Internet in a matter of seconds. The same copyright law that worked in the 18th century cannot be expected to continue working in todays digital age, where photographic images are produced and distributed almost instantaneously. In order to keep up with technological advancements, traditional copyright law needs serious reform. Traditional copyright law offers protections for all original works fixed in a tangible medium of expression, including visual works, literary works, musical works, audio recordings, and derivative works. It protects the expression of an idea, not the idea itself. This protection is available to both published and unpublished works. It is automatically afforded upon the creation of an original work of authorship, although registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. As is the case with other intellectual property laws, copyright law attempts to reach the best balance between the conflicting interests of encouraging creativity by giving exclusive property rights to authors and giving the public the freest possible access to creative works and the ideas they encompass (Copyright law of).

There are five basic rights protected by copyright, sometimes called the five "pillars" of copyright. The owner of copyright has the exclusive right to do and to authorize others to reproduce the work, prepare derivative works based upon the work, distribute copies of the work to the public by sale or other transfer of ownership, publicly perform the work, and publicly display the work (Copyright law of). A copyright infringement occurs when any of these exclusive rights of the copyright holder are violated. The only defense against infringement is Fair Use. This doctrine permits limited noncommercial uses of copyright material without acquiring permission from the rights holders (Fair Use). Examples of fair use include commentary, news reporting, research, educational, and library archiving. Copyright Law & the Internet The Digital Millennium Copyright Act (DMCA) of 1998 was an attempt to modernize traditional copyright law. It implemented two 1996 treaties of the World Intellectual Property Organization by criminalizing production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. These measures are commonly known as digital rights management or DRM. DMCA also criminalized the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet and provides a contingent safe harbor for online service providers such as Google or YouTube from secondary liability for their users' copy infringements, as long as they have someone in charge of receiving take-down notices of possible infringements from rights holders (Digital millennium copyright). Many viewed the DMCA as a short term solution instead of a long term one, and were very frustrated. It went some of the way to protecting digital artifacts from piracy, but given how easy it is for people with the technological know-how to circumvent encryption
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measures, the trade-off in terms of what potential benefit, if any we got, against the real problems that were created, is very small (Wharton, 2011). Despite Congresss best efforts, copyright law is becoming more and more archaic when viewed in terms of the Internet, and it is obvious that dire reform is needed. Traditional copyright law is based on books, but as the structure of our media changes our copyright law needs to change too. Digitization of media makes it easier and easier to copy and distribute creative works such as photographs, songs, movies, books, etc. Meanwhile, the kind of legislation that gets financial support and backing from major content producers makes it increasingly illegal, but not necessarily harder, to use these new powers of information and entertainment. According to Dr. Wharton, a fitting analogy to our current situation is that when the vacuum came along, we didnt enact laws to protect people that sold brooms, we said thats fair competition. Now were in a situation where technology is really changing things and rather than protecting the market for traditional media such as CDs, DVDs, we should be encouraging the market for new media products (Wharton, 2011). A good example of the deficiencies of copyright law and Internet users includes the case of Lara Jade Coton, an amateur photographer who posted the photograph Fig. 1 on deviantART when she was 14. Coton later found out that it was used on the cover of a porn film entitled Body Magic (Fig 2) without her permission.

Fig 1: Lara Jade Coton

Fig 2: Body Magic

When she contacted the owner of TVX Films, the distributor of the porn film, the owner Robert Burge stated that he would be happy to remove her photograph from their film cover because it was harming their sales anyways. However, he never removed it, so Coton sued TVX films for copyright infringement and defamation ("Breaking news: Lara," 2010). Today millions of people like Coton are becoming creators of user-generated content, such as online videos, photographs and blogs, effectively making them copyright owners. Unfortunately, the law was not written with them in mind, and clearly it does not meet their needs. With so many new participants and technologies in the copyright system, it is time for copyright law to receive an upgrade. Through my research I was able to identify four main areas of copyright law as it pertains to photography that are problematic and need serious reform. The first is that copyright infringements are too hard to police on the Internet. It is almost impossible for photographers to determine if their content is being used by someone else illegally, and because of how easy it is to download a picture it almost certainly is. Many amateur photographers think they are protected with watermark trademarks on their photographs, but that is not always the case. The
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second problem is that copyright law is too polarizing. There needs to be some sort of middle ground between full protection and no protection. Creative Commons has attempted to rectify this oversight, but they are not an adequate solution to this major problem. The third is that the fair use doctrine is too restrictive. It must allow for more non-commercial media uses; currently it is too easy to break a law without knowing it, and constantly having to check copyrights does not foster an environment of creativity. The fourth is that the rights afforded by the DMCA are too easily abused, especially with take-down notices. Policing Copyright Infringements Online One of the big problems with current copyright law is maintaining control over your photographs when they can be copied by someone else with the click of a button. Even simple java codes that prevent right clicking are easily bypassed by capturing the whole screen or going to the actual image URL. The main reason its so hard to enforce copyrights online is because there is no copyright police; copyright owners are responsible for enforcing their own copyrights, and thats next to impossible on the Internet. Even when copyright owners do manage to discover that their work has been infringed, the burden lies on them to establish a prima facie case for infringement in order to pursue relief, which means that they have to establish that they have ownership of a valid copyright and that it has been infringed upon in a court of law. This is where registering with the Copyright Office comes in handy. In order to ensure that their work receives protection, owners must go through the laborious process of registering a copyright with the Library of Congress. This involves filling out an application form, paying a nonrefundable filing fee, and registering a nonrefundable copy of the work (Copyright law of). Because of this long and intense process, many authors opt to forgo this crucial step, which can jeopardize their ownership in court.
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Admittedly, this problem affects amateur photographers a lot more than it affects major corporations who have thousands of staff members to tirelessly comb the Internet for copyright infringements. Photographers who post their images on popular online photography communities such as deviantART are finding that these photography websites are not equipped to safeguard against copyright infringements. DeviantART has a weak watermarking system that is easily removed, as was the case with Lara Jade Coton. Flickr is not much better; in 2009 they received negative attention when photographer Michael Bailey had his photograph of a skyline (Fig 3) stolen by BBC News (Fig 4).

Fig 3: Birmingham Skyline

Fig 4: BBC News

Bailey had clearly marked his image as All Rights Reserved on Flickr, but that didnt stop BBC News from using it for their purposes (Smith, 2009). A similar situation on Flickr is that of Rebekka Guleifsdttir, a native from Iceland who amassed quite a following on Flickr with her self-portraits and images of surreal landscapes (Fig 5).

Fig 5: Guleifsdttir Landscape Unfortunately, she soon discovered that a photo printing site was selling several of her works under a false name and had already made about $5,000 off of her photographs ("Photographer gets plagiarized," 2007). Naturally, Guleifsdttir was outraged and hired a local attorney to send a cease and desist. The company removed the works, but no compensation was received and Guleifsdttir was left with a large legal bill. Clearly online photography communities are not providing enough protection for their users. Many have argued that in order to better protect the rights of its users, these photography communities need more prominent copyright information. Usually users have to manually insert a copyright on their photographs, when it should be automatically inserted by the service provider. Additionally, the watermarking system needs to be improved, even if it lowers the aesthetic quality of the photographs displayed. Its currently far too easy to remove a watermark by cropping or resizing a photograph ("Art theft scandals," 2007). Copyright Law is Too Polarizing Of the infinite amount of digital content on the Internet, it really is astounding to think that every single one of them is afforded full copyright protection (unless otherwise stated). This

amount of content ranges from user-generated content on websites such as Flickr or deviantART to huge rights holders such as film or music corporations to everything in between. Undeniably, different content producers have different needs, and copyright law needs to reflect that. Current copyright protection as it stands is simply too polarizing. There is no middle ground between all rights reserved and public domain, its either protected or its not. Because of this vast oversight, Creative Commons was created in an attempt to remedy this problem. They are a nonprofit organization that allows copyright owners to release some of their rights while retaining others (Creative commons). Copyright owners who choose to participate select from four conditions to create their own copyright licenses streamlined to their own unique personal preferences and needs. These conditions include attribution, which means that the user has to give the photographer credit; noncommercial, which means that the user may only use the work for noncommercial purposes; no derivative works, which means that the user may only use exact copies of the original work and may not create a derivative; and share-alike, which means that the user may create a derivative work but only under a license identical to the one which governs the original work (Crawford, 2007). The goal of Creative Commons is to increase access to and sharing of intellectual property. Many photography websites now use Creative Commons and it has amassed a following. Theyve done great job with a public education campaign; using info graphics and different modes of communication to get the word out there and build a community out there thats educated about what creative commons is and what the licenses are (Wharton 2011). Unfortunately, Creative Commons is not a solution to underlying copyright problems. It is not completely well-known to everyone, and many people either misconstrue Creative Commons licensing or abuse it. For the community that theyve established its workable, but

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its not sufficient. We still need to have some kind of major copyright reform in addition to Creative Commons (Wharton, 2011). Additionally, it is too hard to define what constitutes each condition, such as an attribute or a derivative work. For example, if a photograph is protected the share-alike attribution and it is put into a PowerPoint, does that mean that rest of the PowerPoint needs to carry the same license? What about attribution, does citing the work in a Works Cited suffice? (Crawford 2007). All of that is very much up in the air and open to interpretation, which can obviously be problematic. More specifically with photographs, the very nature of photography as an art form does not lend itself to being very welcoming to this open source movement, whereas in software it has really taken off. Companies such as IBM are more and more using open source products as part of their business model (Wharton, 2011). With photography, the problem is that as an artist you are selling copies of you work, not experience. As a software programmer you can build a business model about being able to provide support around your products, and have products that people can build on and modify, whereas that model that doesnt really work with more traditional media fields where its not about productivity but creativity (Wharton, 2011). While Creative Commons licensing may provide solutions to some users, it is clear that a more widespread renovation is needed, which is why many people agree that Creative Commons is just a distraction from efforts that should be aimed at revising the existing Copyright law (Creative commons). The confusion surrounding Creative Commons licensing is clearly illustrated with the controversy they faced in 2007 with a young girl named Alison Chang. Virgin Mobile launched a bus stop ad campaign using images from amateur photographers on Flickr. Justin Wong was one of those photographers, and he had posted a photograph he took of 15 year old Alison Chang at

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fund-raising carwash. He posted it using the Creative Commons Attribution license only, which essentially freed his work for use by anyone as long as it was credited ("5 nightmare photography," 2007). Virgin Mobile used his image (Fig. 6) and upheld the license by printing the URL of the photographers Flickr page on each of the ads.

Fig. 6: Alison Chang Alison Chang was not aware that he had uploaded his photograph to the Internet under that license, and was very upset to find her image portrayed in such a negative way. She sued Virgin Mobile but since they had followed the Creative Commons license Justin Wong selected the case was thrown out (Creative commons). Wong had probably never anticipated that his photograph could be used in such a way without any compensation, and all because he haphazardly chose that Creative Commons license and released some of his copyright rights. Clearly people need to be better educated on the seriousness and possible ramifications of Creative Commons licensing, and it is not a full-proof solution to the problem.

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Fair Use Doctrine is Too Restrictive There are four categories used to determine if a work is Fair Use or not. The first is purpose and character. If it advances knowledge or the progress of the arts, then it will more than likely be found to be fair use (Fair Use). Then there is the nature of the copied work, such as fact or fiction or commercial vs. noncommercial. Facts and ideas cannot be copyrighted, so if it is a borrowed fact it will be considered fair use. Commercial uses of a copyrighted work are generally not considered fair use. The third category considered is amount and substantiality used of the original work. The less that is used in relation to the whole, the greater the chance that it will be found to be a fair use. The last category is effect upon works value; if it affects the copyright owners ability to market his original work, it will not be considered fair use (Fair Use) As time has progressed, it has become fairly evident that fair use favors the rights of big corporations over the rights of the general public, which is completely opposite from what copyright law was originally intended to do. It is supposed to foster creativity and growth, but that is rarely the case when users have to continually check copyrights in order to make sure they can use something without getting sued. At the same time, major corporations have tons of money they can spare on a few lawsuits, so they are less careful when it comes to using media without permission. Additionally, burden of proof of fair use falls on the defendant, so copyright owners will make claims of infringement even when they know it is fair use in the hopes the user will back down in order to avoid wasting money on legal fees, which is often the case (Fair use). In order to encourage creativity, fair use must allow for more non-commercial uses; it is currently far too easy to infringe on someones trademark without even realizing it. Something as simple as reposting a picture on the Internet can be found to be a trademark infringement.

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Further evidence of how fair use and copyright law in general favors major corporations can be seen in the continually changing length of copyrights. In terms of balancing the interest of rights holders in terms of people needing to use the content its kind of inadequate when you consider that copyrights can last more than a 100 years now (Wharton, 2011). When copyright law was first enacted with the Copyright Act of 1790, the term provided to creators of works was 14 years, with an optional right of renewal for another 14 if the author was still living. As time has gone on, big rights holders such as music companies or film companies have lobbied hard to have this term increased, and it has been dramatically. The Copyright Act of 1909 extended the term to 28 years with a 28 renewal, the Copyright Act of 1976 extended the term to 75 years with a 50 year renewal, the Copyright Renewal Act of 1992 made renewal automatic without registration, and the Copyright Term extension Act of 1998, or the Sonny Bono Copyright Term Extension Act, extended the term to 120 years after creation for corporate works (Copyright law of). Clearly, this level of protection is not what our forefathers had in mind. In addition to the absurd length of copyright laws, another negative aspect of restrictive fair use is the fact that if a copyright is found to be violated, copyright owners can potentially be granted statutory damages. The statutory damage rule of copyright law was originally designed to provide some compensation to copyright owners when harm from infringement was difficult to prove. U.S. law authorizes judges and juries to award such damages in any amount between $750 and $30,000 per infringed work, and up to $150,000 per work if the infringement is deemed willful, without proof of any actual harm. The statute says the award should be "just" but provides no guidance about what this means (Fair Use). There have been instances of illegal music downloaders being fined thousands of dollars for a few songs, causing others to question the fairness of this rule. The statutory damage rule might have made sense back when it was

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drafted in the 1960s, and copyrights mattered only to professional authors and photographers who were mainly concerned with deterring commercial-scale infringements. The copyright landscape has, however, changed radically since then with the advent of the Internet. Rights Afforded by DMCA are Easily Abused The DMCA affords copyright holders a means to protect their content online by ensuring that online service providers comply with takedown notices issued from copyright holders as well as requiring them to police their own websites in order to make sure no infringements are occurring. If they do not comply with issuing take down notices or having someone in charge of policing the user-generated content, service providers will be violating the Safe Harbor requirements and can be found liable of copyright infringement. Because of this, online service providers have little incentive to fight for the rights of its users; if it receives notice of an alleged copyright infringement from a major corporation, more often than not they will remove the offending content without waiting to ensure it was fair use or not. Many online service providers will even screen content and if they find it to be potentially infringing they will remove it themselves just to be safe. Just this year at Tech for example, a group of students and teachers made an It Gets Better video in which they obtained a license from recording artist Matt Morris in order to use his song in the video (Fig. 7).

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Fig 7: It Gets Better Unfortunately, when they attempted to post it online, they realized they had to go through these additional steps of clearance, even though they had the rights, to avoid Youtubes proactive takedown measures (Wharton, 2011). These type of measures certainly arent protecting the general public, who they are really benefitting are the big rights holders, 800 pound gorillas, the Disneys, the Foxs, major movie production houses and music labels, and it creates a lot of problems for people who are engaged in entirely legal activities that make fair use of digital content online (Wharton, 2011). Facebook is another such online service provider that is quick to eliminate potentially infringing content without stopping to inspect whether it is fair use or not. Earlier this year they received a lot of criticism for shutting down half a dozen legitimate Facebook pages because of faulty copyright infringement claims. The affected sites were given no warning that their pages would be shut down, and they received no description of the offending content (Lee, 2011). Virtually anyone can submit a takedown notice; as long as they have an e-mail address they can make that claim without having to validate it, and that is obviously problematic. Theres this
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cultural fear thats created. Its allowed digital rights holders such as Disney to go on the web and search for infringing content on the web and they can send a takedown notice and in most cases the website administrator will comply with that (Wharton, 2011). Conclusion Copyright law undeniably needs a lot of reforms in order to fit in with our digitalized age. The old structure where everything is based on text and gets protection by analogy to books is clearly not functioning and needs to be redone. With books it was fairly easy to say if a book is 30000 words, taking a paragraph can be considered fair use. What is the equivalent with photographs? If I take two square inches from a photograph or even 20 pixels, its much harder to think about comparing how much was taken in the fair use analysis (Wharton, 2011). Additionally, photographs also raise the question of whats original. Copyrights only protect what original creative expressions, but what is the original creative expression that goes into creating a photograph? Photography by its own definition is the art of capturing an image of the surrounding world. One of the controversies surrounding whether or not we should award photographers the same rights as authors and artists and weavers of tapestries; people would argue that it takes a lot less effort to make a photograph; photographs are representative of what actually exists (Wharton, 2011). They are valued because they invite introspection and allow viewers to look upon the world in different perspectives, but at the same time you have to question if they are truly original or just a compilation (Wharton, 2011). At the same time, photographs raise questions about derivative works. If you took a photograph of a bookshelf, that is copyrighted, and I could prevent someone from using that, but what are the derivative works of that? You cant recopy a photograph, but if you dont reproduce
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it in its entirety, what are you taking (Wharton, 2011)? One of the very basic purposes of copyright protection is that derivative works can be created, but it is very hard to determine what this means in terms of photographs. A distinction may need to be made between photographs for non-professional purposes such as memory sharing and photographs for professional purposes, with different requirements for what constitutes protection for each one. From a professional standpoint, the photograph would need to be altered in some way that qualifies it as an original expression and gives it same type of protection as artworks; it cant just be a photograph of a tree or something similar with no lighting changes or editing done. Derivative works could consist of photographs shot in that similar style or aesthetic, thus allowing other photographers to mimic that style. Either way, equating works to books in order to afford copyright protection needs to stop. Using books as the touchstone for what is copyrightable, what is an original, what is a copy, what is derivable is problematic in this new media setting where those things arent primarily whats in circulation (Wharton, 2011). In addition to reshaping how we think of copyright law, other structural factors need to change as well. Shorter terms are necessary in order to shift some of the favor back from the corporate rights holders to the general public. One term of 14 years renewable for another 14, thats 28 years, thats a long time in todays market (Wharton, 2011). Additionally, we should also return to formalities such as requiring copyright notices, as well as registration with the U.S. Copyright Office. The reason these formalities were done away with in the first place is because people wanted their works to be protected even if the work was published without their knowledge or made public before a copyright could be applied for. However, the scale has shifted to far to the other side, where now we have orphaned copyrights, where good-faith users are trying to do the right thing and find out whether a work is copyrighted or not but are unable
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to locate one. If you have formalities, what you say is were willing to do some harm to rights holders in order to protect the public domain, if you do away with formalities what youre saying is were harming the public domain by creating uncertainty about what is protected/unprotected in order to not harm rights holders (Wharton, 2011). Either way, rights are infringed upon, but Copyright Law should not be in favor of corporations, it should be in favor of the general public.

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Glossary of Key Terms Copyright: a legal concept giving the creator of an original work exclusive rights to it, usually for a limited time Fair Use: a limitation and exception to the exclusive right granted by copyright law to the author of a creative work Copyright Infringement: the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works Service Provider: an entity that provides subscription or web service to other businesses or individuals Orphan work: a copyrighted work for which the copyright owner cannot be contacted

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Works Cited 5 nightmare photography court cases [Web log message]. (2007, November 11). Retrieved from http://blogs.photopreneur.com/5-nightmare-photography-court-cases Breaking news: Lara Jade Coton awarded $130,000 in damages. (2010, September 17). Plagiarism Today. Retrieved from http://www.plagiarismtoday.com/2010/09/17/breaking-news-lara-jade-coton-awarded130000-in-damages/ Smith, P. (2009, February 10). Bbc uses copyright image from flickr for news 24 [Web log message]. Retrieved from http://www.bitterwallet.com/bbc-uses-copyright-image-fromflickr-for-news-24/7498 Walker, D. (Photographer). (n.d.). Marigold bloom. [Web Graphic]. Retrieved from http://dwalker1047.deviantart.com/gallery/?offset=72 Copyright law of the united states. In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/United_States_copyright_law Fair use. In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/Fair_use Digital millennium copyright act. In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act (Digital millennium copyright) Creative commons. In Wikipedia. Retrieved from http://en.wikipedia.org/wiki/Creative_Commons Art theft scandals rock deviantart. (2007, May 29). Plagiarism Today. Retrieved from http://www.plagiarismtoday.com/2007/05/29/art-theft-scandals-rock-deviantart/ Crawford. (2007, March). 7 things you should know about creative commons. Retrieved from http://net.educause.edu/ir/library/pdf/ELI7023.pdf Lee, A. (2011, April 28). Facebook closes pages because of false copyright infringement claims. Huffington Post. Retrieved from http://www.huffingtonpost.com/2011/04/28/facebookpages-copyright-infringement-claims_n_855029.html Wharton, R. (2011, November 2). Interview by P. Uceda [Personal Interview]. Copyright law
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deficiencies. , Atlanta, GA. Photographer gets plagiarized then censored. (2007, May 16). Plagiarism Today. Retrieved from http://www.plagiarismtoday.com/2007/05/16/photographer-gets-plagiarized-thencensored/

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