We have commented on many occasions (and just recently on this site), that permitting an agent or stock agency to make, enforce or defend your copyright filings rather than doing those jobs yourself, can be a tricky business. Previously we referenced the fees that agents make in connection with these activities. That is money that could be in your pocket. We also mentioned that you may lose your ability to enforce your rights. There are even more problematic issues which we did not address in our short piece. Here’s proof:
The United States District Court, Southern District of New York in the case of Muench Photography, Inc. v. Houghton Mifflin Harcourt Publishing by Judge Loretta A. Preska, (May 4, 2010) has called into question certain “mass” copyright filings made by Corbis on behalf of its contributors. In fact, Judge Preska has ruled, “that Corbis is the author of the compilation (filings) …but the individual works are not registered“. This decision comes notwithstanding the efforts of PACA’s attorney Nancy Wolff with the copyright office (efforts referenced by the Judge) to uphold the legitimacy of these registrations and/or the Corbis format of registering the works of its contributors. The Copyright Office of course does not “advise the public” nor may it trump decisions of Federal Court judges, yet Corbis apparently relied on a letter issued by that office to support their “approach”.
We will be doing a complete analysis of the case in the next few days. You are always better off registering, enforcing and defending your copyrights yourself rather than having a stock agent, rep or syndicator takes over control of your most important asset – your copyrights. The full case (24 pages) is not as yet available on line to other than attorneys. If you want a copy send an e-mail requesting it to [email protected] and we will send it out to you via e-mail.
Ed & Jack
#1 by Mr. Curious on May 7, 2010 - 5:55 am
It’s available to the public; you just have to know where to look.
A harsh result but next time maybe follow the statute.
As the winning side amusingly phrased it:
“Rather than rely on a convoluted,
impermissible work-around centered on hollow transfers of copyright “for registration purposes
only,” photographers should simply register their works under their own names.”
#2 by Mr. Curious on May 7, 2010 - 7:21 am
Corbis would register automated databases containing the work of a bunch of photographers but would not list the names and domicles of each of the photographers. Which, as it turns out, is not a good idea if the goal is to register the individual photographers work.
The lesson for Corbis:
Automated Database registration (here a compilation of photographs by different photographers) doesn’t extend to the individual photographers works if the authors names are omitted from the registration form. Section 409 of the Copyright Act requires you to include the names.
More useful for photographers:
(1) If you have a bunch of photos, use the group registration process established to register photographs. Make sure you include ALL of the information required by section 409 of the Copyright Act. Here, they left off the name and nationality or domicile of each author (409(2)) and that was the end of their suit.
(2) Be careful when relying on the Copyright Office. They may be wrong. And their view while given deference by courts is not law. Here, the court gave no deference to the Copyright Office letter supporting what Corbis did because the court found it to conflict with the plain meaning of the statute.
(3) If a statute says provide your name, then provide your name even if the Copyright Office says they will take the registration without it. The first thing the other attorney will do is look for defects in your registration certificate. You’ll be left arguing as the photographers did here that the Copyright Office said we could or, alternatively, that it was an innocent error. Not where you want to be.
#3 by Paul Barton on May 7, 2010 - 2:12 pm
Sue baby Sue (Corbis)
#4 by admin on May 7, 2010 - 3:16 pm
All great points, and these are the reasons Ed & I emphasize at our lectures that photographers should ALWAY register their own work. Don’t rely on ANYONE else to do it for you.
Jack
#5 by Charles Carstensen on May 7, 2010 - 9:05 pm
A solid management principle is “you cannot delegate responsibility.” It is the photographers sole responsibility to register his/her copyright. This Corbis negligence should surprise no one. Makes me wonder how many Corbis photographers physically did any follow up with the Copyright Office on their own images..
#6 by Mr. Curious on May 8, 2010 - 2:00 am
“This Corbis negligence should surprise no one. ”
It wasn’t negligent.
It’s not like they concocted some theory based on nothing to fill out the forms. They relied on guidance from the Copyright Office.
Even the court puts the blame solely on the Copyright Office.
#7 by admin on May 8, 2010 - 4:01 am
A letter from a government agency, like the Copyright Office in this case, does not trump federal law or federal judges. Even a signed letter from Donald Trump doesn’t trump it.
A document without the signature of the President of the United States, a judge, a Governor, a mayor or your spouse, serves merely as a suggestion – not a law or statute.
#8 by Mr. Curious on May 8, 2010 - 5:33 am
Admin, I’m not clear what your post is in response to or the point.
If you’re interested in the legal weight to be given a letter from the Copyright Office or its circulars, the judges order goes into it at some length.
#9 by Bill Brooks on May 10, 2010 - 1:33 pm
If Corbis looses an appeal, what happens to all the court cases that Corbis has won, using the now declared faulty registration? Will Corbis photographers have to refund their share of the money? Will infringers band together in a class action suit to recover their money? The mind boggles.
#10 by admin on May 10, 2010 - 5:17 pm
Mr. Curious:
Suffice for now that we disagree with your interpretation of the decision. It is the opinion of the attorneys here (from several law firms) that the judge has clearly laid blame at the feet of the filer of the registrations. It is the filer who bears the responsibility to follow the law. No lawyer can follow blindly the suggestions, recommendations, circulars etc. issued by any government agency. It is but one task that makes a lawyer’s life a difficult one especially when explaining such problems to a layperson who has followed such a directive to his/her detriment.
I assume that the defendants’ attorneys in this case saw the very same problems with the filings that the undersigned and many other attorneys and shooters have seen and commented upon for years. They correctly determined that the validity of the method employed by Corbis to make these filing was very suspect. Until and unless a Circuit Court of Appeals reversed Judge Preska’s decision, hers is the one to live by.
Ed
#11 by admin on May 10, 2010 - 5:18 pm
Excellent questions all. We have been receiving many inquiries about this decision and will attempt to answer as many as possible in a follow up piece in the next few days. Suffice for now however, that once a case has been decided, the time to appeal exhausted or all appeals have been denied, everyone must live by the finality of the original result. This applies in virtually all cases with only very rare exceptions. Those exception are not worth getting into…at least yet..
#12 by Mr. Curious on May 10, 2010 - 8:23 pm
Ed,
I doubt there is much, if any, difference over the meat of the decision (my second post):
“Automated Database registration (here a compilation of photographs by different photographers) doesn’t extend to the individual photographers works if the authors names are omitted from the registration form. Section 409 of the Copyright Act requires you to include the names.”
I also doubt there is any difference over the lessons that one can take from the case if you are a photographer (same post).
I was reacting to any inference that because of the result we have malpractice.
Clearly Corbis lawyers/Wolff got it wrong. You apparently characterize what they did as following ” blindly the suggestions, recommendations, circulars etc. issued by any government agency.”
Where do you get that from ?
If we’re going to speculate on their methods (the record is a bit thin on what Wolff did apart from the letter), probably better to assume these people are competent. That they read the statute and the relevant regs. That they then read the circulars. Then they called outside counsel/Wolff to run it by her. That she did the same and then to get additional support that she was reading it all correctly, she asked the Copyright Office for their view, which they put in a letter.
I am not defending the actual analysis. I find the original mechanism to enable Corbis to file the registrations as strange as Skadden did. And sec. 409 to be clear. But just because it made no sense to me (or you or “many other attorneys”) does not mean another lawyer committed malpractice because she had an alternative theory that was shot down particularly when it was blessed by the Copyright Office.
The judge wrote that “from the record presented to the Court, it appears MPI’s actions were completely appropriate – it sought the approval of the Copyright Office to ensure compliance with the statute. Unfortunately, MPI received poor advice [from the Copyright Office] …The fault in this case lies SOLELY WITH THE COPYRIGHT OFFICE and its relaxed interpretation of the statute.” [emphasis added].
I would not read that as you do as placing the blame “at the feet of the filer of the registrations.” And obviously the attorneys got it wrong. However, when involving a “novel question” in which a court later rules a statute clear on its face, in which losing counsel’s view coincides with the relevant governmental authority and the judge citing the steps taken as “appropriate” doesn’t add up to malpractice to me.
I can’t speculate on what recourse MPI might have against Corbis without seeing what agreements they had in place.
PS, why did your admin post on May 8 4:01am when I wrote in my second post:
“And their view [Copyright Office] while given deference by courts is not law. Here, the court gave no deference to the Copyright Office letter supporting what Corbis did because the court found it to conflict with the plain meaning of the statute.”
Still don’t know the point of that post other then to repeat what I already noted except adding the additional inaccuracy that a “document ….serves merely as a suggestion…” The weight given, of course, depends on different factors and exactly what document.
#13 by Mr. Curious on May 11, 2010 - 12:55 am
“If Corbis looses an appeal, what happens to all the court cases that Corbis has won, using the now declared faulty registration? ”
Nothing.
#14 by BTDT on May 11, 2010 - 12:21 pm
It has been only a matter of time before the Corbis ‘registration’ process melted down. The fig leaf of security many of us felt in reliance on C to safeguard our statutory interests has proven transparent in other ways:
Beside the failure to list the togs supposedly covered under particular registrations, there are other problems rendering all suspect as to validity. Because C claims a given work to have been included in a Form VA Deposit is not a guarantee it actually has been.
I had an infringement case eviscerated after discovering the absence of a subject image from the Deposit C claimed (publicly) to include it. (The hundreds of dollars lost in retrieving and inspecting the Deposit were only the out-of-pocket costs).
Were there enough shooters burned in detrimental reliance on C’s promised protections, would they have the ingredients of a class action suit for breach of contract or other causes? (I fear Statutes of Limitations would render many claims moot.)
Another question: If C’s registrations are worthless, so also must be there ability to enforce them. (The Freetard /FSB infringer community must be dancing with glee!) As C togs scramble to sort and register their now imperfectly copyrighted work, does it make sense to set up PhotoShelter accounts, accessible to Picscout, Tineye, et al?
The Good News may be the end of illusions as to where responsibility resides in registration and enforcement. If licensing revenues are off, perhaps infringement chasing can fill some of the void…
Those who gnore Admin do so at their own peril!
#15 by admin on May 11, 2010 - 3:48 pm
As we posted previously, we intend to give a comprehensive analysis of the practical effect this case may have in the coming days.
We have no intention of engaging in a nuanced discussion as your posts seems to seek. You appear to be a lawyer or have some legal training. Suffice to say we have no intention of commenting on some of your references to what Corbis lawyers did/did not do. We are not opining on the acts of attorneys or their methods and will not be provoked into so doing.
The point we make in this matter – and in countless others – is that a letter, directive, circular or oral statement by any government or civil service employee does not carry the force of law. Creatives often, very often rely on such advice from taxing authorities and so to their detriment. Written laws, statutes, administrative codes and judges’ decisions are what really matter in the real world.
We have no intention on “speculating about any recourse” the plaintiffs in the case may have. We trust they have lawyers who are intimately familiar with the relevant facts and circumstances and will advise their clients accordingly.
The case is significant to our readers if for no other reason than it stands for the proposition that we try to hit home to all creatives: register your own work and never give up the decision to prosecute or defend your rights to a third party (like an agency) over whom you have no control, period. Take care of your own business and don’t rely on others to do it for you. If we succeed in convincing our readers, lecture attendees and clients of nothing else, we at least accomplished one BIG thing.
Ed & Jack
#16 by admin on May 11, 2010 - 3:52 pm
Another quick note to a question, I’m in London on my way to NY, getting back from Croatia. Ed’s been in court doing his lawyer thing. So that’s why comments sometimes take a while to get posted or replied to. I’ve been doing the admin things in what are weird hours in the States.
Jack
#17 by Mr. Curious on May 11, 2010 - 9:10 pm
It’s your blog. No need to explain what you do or don’t want to address though I appreciate the response.
I have no interest in your opinion on the actions of the lawyers nor was I trying to solicit it (“provoke”). Ditto speculating on any action by Plaintiffs. Nor do I have any information on what Corbis or its lawyers did or did not do other then what was described in the order. I was looking at it from their point of view. My point of view was expressed in my first two posts.
As far as this:
“… Creatives often, very often rely on such advice from taxing authorities and so to their detriment. Written laws, statutes, administrative codes and judges’ decisions are what really matter in the real world. ”
Not a good example.
People rely on the guidance of the taxing authority all the time. It’s called a private letter ruling. Without which real deals would not get done in the real world.
In the real world guidance from the governmental authority can be what matters most. Clumping in “letter, directive, circular or oral statement by any government or civil service employee” and stating they don’t have the force of law while true ignores the real world issues.
I know, stating it depends on what agency, what context and what document is too nuanced, right ? You can stick with documents from government agencies are “merely a suggestion.” In the real world, the devil is in the details.
Cheers,
Mr. C
#18 by admin on May 12, 2010 - 8:07 pm
A “private letter ruling” referred to by Mr Curious can be relied upon only when as and if it is determined (ie by a a tax court) that all of the information supplied by the requester is accurate, applicable and that all relevant factors were properly presented in the request for the private letter ruling. If the request and/or information provided is determined to be inaccurate, not applicable, incomplete and so on, reliance on the contents of private letter ruling issued by the taxing authority may not protect you from liability. These issues are best left to accountants, tax attorneys and professionals who represent your interests and not those of the government. They are simply beyond the knowledge of both lay people and lawyers who do not specialize in tax matters.
Mr. Curious is attempting with good intentions we trust, to suggest that there are circumstances under which a layperson can rely on opinions, letters and such issued by government agencies. We suggest that you never do so unless your own professional advisor suggests that you do.
We are striving to avoid nuanced legal arguments but think it very important that our readers rely on the advice of professional when their livelihood is at stake.
#19 by anonymous on June 9, 2011 - 10:49 am
It has been about a year since a request for re-argument was made. It didn’t change anything. I am getting conflicting advice…do I go ahead and register my Corbis work, or wait for an appeal? I don’t see an appeal having been filed, but I’m not a lawyer or “in-the-loop”.
Thanks
#20 by admin on June 9, 2011 - 11:25 am
Leif,
I don’t know what Ed would say, but I looked at the Corbis registration and I just don’t see the ruling being changed. The registration filing was a mess.
But either way, no matter what happens, you should ALWAYS register yourself in your name. I don’t depend on anyone. The book Ed and I wrote was specific in our contract that the publisher registers the book. We tried to change that, but the publisher’s lawyer wanted them to do the registration. When I checked after it was out for a month with the person at the publisher who registers. They hadn’t done it yet, and it needed to be done within 3 months of publication, so I did it myself.
Never trust anyone else to register your work. Just do it yourself.
Jack
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