The following article was written by Nancy Wolff, Legal Counsel for the Digital Media Licensing Association
Sending copyright demand letters to users of images where no license is apparent has been a common practice of many DMLA members, even before images were distributed digitally. These demand letters have been part of the copyright boot camp and form letters available to members to contact users and educate them about copyright misuse and to seek compensation if the images are not licensed.
On January 11, Maryland State Senator Edward Reilly (R) introduced a bill, HR 65 before the state legislature to regulate copyright demand letters. The bill is aimed at preventing copyright owners from “making certain assertions of copyright infringement in bad faith” and stipulates that a court may consider, among other factors, the absence of a certificate of copyright registration accompanying the letter as evidence of bad faith.
The proposed remedies include the possibility of courts costs, attorney’s fees, and treble damages, including fees up to $50,000. On January 25, 2017 the Maryland State Senate Finance Committee held hearing on the bill. DMLA; Getty Images, the Copyright Alliance, MPAA, Comcast, BMI Music and others representing creators and owners of content testified at the hearing as to the problems and burdens imposed by such a bill and provided written opposition. A copy of DMLA’s letter to the finance committee opposing the bill is [
here].
The associations representing all the visual artists unanimously joined in the opposition as it would subject all copyright owner to unfair burdens in seeking compensation for infringements and violate federal copyright law. Joining our letter were the Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Professional Photographers of America (PPA), North American Nature Photography Association (NANPA), American Photographic Artists (APA), the Graphic Artist Guild (GAG) and Shaftel & Schmelzer.
Bill No Longer A Threat
Last week we learned that the Maryland Senate Finance Committee was not going to vote on the bill and as to not embarrass the member of the Finance Committee who had introduced the bill. Thanks to the Copyright Alliance for alerting us to so promptly so we could respond so quickly and for Getty Images for attending and speaking directly with Senator Reilly before the hearing.
The entire content community mobilized to avoid a very problematic state bill. We will need to stay alert for other state legislatures who may feel the need to protect their citizens if complaints arise over copyright enforcement. Copyright is very different from patents and there is a push to stem what is known as patent trolling. We need to avoid being swept into the same category of bad actors. The underlying cause in this bill seemed to be a lack of understanding as how images are licensed and the value of a rights managed image.