Friday, May 7, 2010

Corbis' Copyright Registrations - Images "Not Registered" Court Finds

In a stunning move, the US District Court for the Southern District of New York, in a lawsuit has found that not only is the methodology of how Corbis was registering the copyrights to images and their database flawed, but also the registration of images by Corbis, on behalf of photographers under its contract are invalid, in it's summary judgement grantied for the defendants, Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company, in the case Meunch Photography Inc, v. Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company (09-CV-2669) filed May 4, 2010.

The issue at hand is Corbis' methodology for registering images, which it has been handling the same way for almost every photographer, because the contractual language has been the same, for a very long time. The problem is, Corbis relied on direction not consistent with the statues and, it seems, in direct contradiction to the intent and spirit of the copyright registration procedures, when executing their registrations. Further, the US Copyright Office approved these flawed registrations, apparently, at the urging of Corbis.

Photographers contracts included the following language, as outlined on the court's order:

The agreements "grant to [Corbis] legal title in [Marc and David Muench's] images selected and digitized by Corbis and included in the Corbis digital collection solely for the purposes of copyright registration." Id. (emphasis in original).) After registration, Corbis agreed that it would "promptly reassign legal title to [Marc and David Muench] with respect to [their] registered original film images . . . "
If you are a Corbis contributor, and If that language looks familiar to you, then the court has also just set forth a path for every copyright registration that included your image(s) you submitted to Corbis to be invalidated. I first became aware of this issue when I viewed, first-hand, several Corbis registrations, which included images from hundreds of photographers, including the iconic black-and-white image of John F. Kennedy Jr saluting his fathers casket as it processed by, made back in 1963. I later learned from the Copyright Office that the justification for the inclusion of that image by Corbis was that it was an addition to a database, and that, further, certain things (retouching/dust-spotting/metadata/etc) were the justifications for the registration. From my perspective, these additions were deminimus to the creative content as a whole, and should not have been valid grounds for a registration, and I immediately was concerned for every Corbis photographer.
(Continued after the Jump)

We have been monitoring this case because of it's long-reaching impact on the field of photography and copyright registration, and was just able to download the file from a document filing service. In the court order, the court specifically addresses the copyright registration procedures, tries where it can to defer to the interpretations of the Copyright Office, but ultimately finds that Corbis was in the wrong. In the order, the court analyzed the facts thusly:
The Court is faced with the novel question of whether the registration of an automated database--here, a compilation of photographs by different photographers--by a third-party copyright claimant that has been assigned the rights to the individual works for the purposes of copyright registration registers the individual works thereby permitting the individual photographers to sue for copyright infringement.
The court, rather than trying to interpret certain issues at hand, among many other reasons for invalidating Corbis' methodology, notes that "A plain reading of § 409 of the Copyright Act mandates that the copyright registrations at issue here contain the names of all the authors of the work..." which Corbis did not do, among other things.

Then, in the court order, the court writes:
"The Court is not persuaded by MPI/s "doomsday scenario" that by granting Defendants motion millions of copyright registrations will be voided. Nothing could be further from the truth. Because Corbis is the author of the compilation the registration of the compilation remains valid. The individual works, however, are not registered."
The order goes on:
"The Court's ruling, although a seemingly harsh result for MPI, is guided by the clear language of the Copyright Act. The Court does not fault MPI for its failed forts to comply with the registration process. Indeed, from the record presented to the Court, it appears MPI's actions were completely appropriately sought the approval of the Copyright Office to ensure compliance with the statute. Unfortunately, MPI received poor advice and is now deprived, at least at this juncture, of the ability to seek statutory damages with respect to the Images not registered by MPI."
The conclusion of the court is that:
"For the foregoing reasons, Defendants' motion for summary judgment [dkt. no. 32] is GRANTED in part and DENIED in part. Defendants' motion is granted with respect to all of the Images except those Images registered by David Muench in January 1996."
Understand - this court order is a "summary judgement", in other words, the court didn't even begin to hear the cases of both sides - the argument by the defendant was so overwhelming, that there was no reason to actually move forward with the case.

As Corbis photographers, priority #1 right now should be to quantify which of your images were accepted by Corbis (and may now have invalid registrations) and begin the process of registering properly those images, as they are the most at risk of infringement right now, since it's open season on Corbis' images. If infringed, at any time in the past, and until you submit a new registration, you may find yourself without statutory damages and attorneys fees because of the Corbis error.

Priority #2 will be to quantify how much money you will have to spend to do this, and see if your contract allows you to recoup that money, or if the best course of action is a class action lawsuit (if it can be brought, subject to the terms of the contracts signed by the individual contributors, of course.)

Here's the entire 24 page order:
Usdc Sdny 09cv2669 Order



Tony Sal said...

Is this a wake call to all photographers regardless of what a stock agency intends to do with copyright registration the photographer should ALWAYS register their own images independently.

Is there any reason you might know which would prevent a photographer have their images registered twice?


Jeff Singer said...

It is mind numbingly insane that registering copyrights is so difficult. There should be no copyright registration. Your images are your images and they are automatically copyrighted. Done.

AdvRdr said...

The John John salute is a UPI photo which Corbis obtained when they swallowed-up Bettmann Archive.

yunghi kim said...

Jeff Singer,
I agree with you, why is it so difficult to register your images. It's clear who the owner is? This is just a technicality based on one judge. And why we have to separate published and unpublished. Definition of it is so complicated? We should be able to register it as one batch.

This is nuts.

Andre Friedmann said...

The incentives to *register* copyright in the USA in advance of infringement are enormous, imho. As annoying as it is to have to register in advance of infringement in order to have the full weight of all available remedies, those remedies are so powerful I'd be a fool to *not* register. If anything, the huge numbers of creatives who *do* *not* *register* in advance of infringement incentivize infringers and create opportunities for those of us who do register.

yunghi kim said...

I agree with you Jeff Singer,

Why is it so difficult to register our images.
In this case, it's clear who the owner is?
This decision is based on one judge's opinion.

And why do we have to separate published and unpublished? Definitions of published is so complicated. Why can't we just register as one group?

This is nuts.

Ed Silk said...

We don't have to register our images in the USA in order to own our images. Registration is not a requirement in order to own copyright. We only need to register in order to file an infringement claim in federal court (which can be done at any time), or to gain enhanced remedies (statutory damages and attorneys fees) which are not available at all in many other countries. There are good reasons for separating published and unpublished images on different registrations. pub and unpub are treated differently under copyright law and so must be separately registered. The real PITA in registering images is separating images by year of first publication. This rule is in place because images registered within 5 years of first publication receive special consideration, and images registered within 3 months of first publication qualify the owner for enhanced damages. So mixing images of various years would create a bit of a mess. but worth it, in my opinion.

Rich Green said...

I don't find it difficult to register my images as all. Now that it's online, it's easier to do but the process does take some figuring out at first.
And regarding copyright - it IS yours from the moment you take the photo. Registering is in case you have to go to court. Lawyers won't represent you if your images aren't registered. And it increases damages if the offender is found guilty (don't remember the legal term). Much is said about Europe, but when a European photographer's images are stolen, do they have the same monetary outcomes as in America? That's the question.

Tamea Burd said...

In Canada, photography copyright law states that when images are commissioned - if no contract or document is signed stating otherwise - the copyright for those images belongs to the party who has commissioned them. Not the photographer.

So... For any Canadian photographers reading this posting: For each job you do, be sure to have a signed contract stating that you retain copyright on your images. (This allows you to grant usage rights as you choose.)

Actually, that's something that should be done by all photographers, whichever country you're from.

Eugene Corporate Photography said...

The legal system differs from country to country and in many parts of South East Asia still, copyrights are not clearly understood. Respect for image copyright is utmost important.Fellow Singaporean Photographer

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