80 FR 23054 - Copyright Protection for Certain Visual Works

LIBRARY OF CONGRESS
U.S. Copyright Office

Federal Register Volume 80, Issue 79 (April 24, 2015)

The U.S. Copyright Office is reviewing how certain visual works, particularly photographs, graphic artworks, and illustrations, are monetized, enforced, and registered under the Copyright Act. The Office seeks commentary on the current marketplace for these visual works, as well as observations regarding the real or potential obstacles that authors, and, as applicable, their licensees or other representatives face when navigating the digital landscape. This work builds upon previous studies and public inquiries in a number of areas, including small claims, the making available right, resale royalties, registration, recordation, and the interoperability of records. As always, the Office is interested in the perspectives of copyright owners as well as users of these creative works. This is a general inquiry that will likely lead to additional specific inquiries.

[Federal Register Volume 80, Number 79 (Friday, April 24, 2015)]
[Notices]
[Pages 23054-23056]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-09575]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015-01]


Copyright Protection for Certain Visual Works

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of Inquiry.

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SUMMARY: The U.S. Copyright Office is reviewing how certain visual 
works, particularly photographs, graphic artworks, and illustrations, 
are monetized, enforced, and registered under the Copyright Act. The 
Office seeks commentary on the current marketplace for these visual 
works, as well as observations regarding the real or potential 
obstacles that authors, and, as applicable, their licensees or other 
representatives face when navigating the digital landscape. This work 
builds upon previous studies and public inquiries in a number of areas, 
including small claims, the making available right, resale royalties, 
registration, recordation, and the interoperability of records. As 
always, the Office is interested in the perspectives of copyright 
owners as well as users of these creative works. This is a general 
inquiry that will likely lead to additional specific inquiries.

DATES: Comments are due July 23, 2015. Reply comments are due August 
24, 2015.

ADDRESSES: All comments should be submitted electronically using the 
comment submission page on the Office Web site at http://copyright.gov/policy/visualworks/. To meet accessibility standards, submitters must 
upload comments in a single file not to exceed six (6) megabytes (MB) 
in one of the following formats: The Adobe Portable Document File (PDF) 
format that contains searchable, accessible text (not an image); 
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file 
format (not a scanned document). The form and face of the comments must 
include the submitter's name and organization (if any). The Office will 
post all comments publicly on the Office's Web site exactly as they are 
received, along with names and organizations. If electronic submission 
of comments is not feasible, please contact the Office at 202-707-8350 
for special instructions.

FOR FURTHER INFORMATION CONTACT: Catherine Rowland, Senior Advisor to 
the Register of Copyrights, by telephone at 202-707-8350 or by 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Copyright Act \1\ has long protected photographs, graphic 
artworks, and illustrations, which encompass a wide range of formats, 
from fine art pieces to duplications of fine art to media photographs 
to political cartoons and images created to enhance or sell popular 
products or services. Whether these works are created by one's own hand 
or using a computer program, significant creative talent is frequently 
involved. The types of authorship also vary greatly. Some authors are 
professionals who spend many years creating unique portfolios for the 
sake of art or for commercial customers, and who publish and license 
their works with the expectation that they will be properly attributed 
and compensated. Others are amateurs or hobbyists who create or 
disseminate images on an informal basis using mobile phones and other 
consumer devices as well as social media.
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    \1\ 17 U.S.C. 101 et seq.
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    Photographs, graphic artworks, and illustrations have had a broad 
impact on U.S. culture. Few would question the

[[Page 23055]]

iconic importance of photographs like Dorothea Lange's ``Migrant 
Mother,'' which epitomize eras of American history. Photographs that 
document current events often provide gripping images that illuminate 
critically important news of the day. For example, the remarkable image 
of firefighters raising an American flag amidst the wreckage of the 
World Trade Center provides an intense connection to the events of 
September 11, 2001, and is, in fact, the subject of recent litigation. 
Media art such as political cartoons provide commentary as well as 
entertainment; graphic art is everywhere in popular culture and on 
products; and professional illustrations such as those depicting 
medical instruction are crucial to educational texts. In short, images 
are ubiquitous and essential to life in the twenty-first century.
    Despite the protections afforded by the Copyright Act and the 
prevalence of such works in society, authors face significant 
challenges in the modern era. Photographers note that ``the average 
revenues for working photographers declined over the past year . . . 
[and] visual artists remain the group most vulnerable to the 
unauthorized uses of their works while being the group least 
financially able to bear the resulting economic losses.'' \2\ An 
illustrator recounts that ``[i]t has been a constant battle to educate 
the good faith persons who have used my art [in an] unauthorized 
[manner] because they found the works in media where pirates had 
deliberately deleted my copyright watermark and published my images 
illegally.'' \3\ Finally, the Graphic Artists Guild explains that ``50 
percent of the people who are infringing are not responding before any 
legal action is taken. They are not responding to the rights holder or 
their attorney who asks them to stop, to cease and desist, or ask for 
money.'' \4\
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    \2\ Comments of American Society of Media Photographers in 
Response to U.S. Copyright Office's Oct. 22, 2012 Notice of Inquiry 
on Orphan Works and Mass Digitization (``Orphan Works NOI''), at 3 
(Feb. 4, 2013).
    \3\ Comments of Gerrity Medical Art in Response to Orphan Works 
NOI, at 1 (Feb. 4, 2013).
    \4\ U.S. Copyright Office Hearing on Small Copyright Claims, Tr. 
at 266:17-21 (Nov. 16, 2012) (Lisa Shaftel, Graphic Artists Guild), 
available at http://copyright.gov/docs/smallclaims/transcripts/.
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    Regarding monetization, in the online era, many individuals and 
companies seek to use photographs and other illustrations to further 
their businesses. Some of these users license images from the authors 
or their representatives, e.g., stock photography companies. However, 
many authors are likely missing opportunities to monetize their works. 
These difficulties may be heightened when photographs, graphic 
artworks, and illustrations are embedded into other works that are the 
subject of licenses between third parties.
    Many of these works ``are particularly vulnerable to orphaning'' 
\5\ because the identity of the rights holder often is not included on 
the face of a work. In the digital world, some authors embed copyright 
information in their works, but this rights management information may 
be unlawfully stripped from digital copies.\6\ This, in turn, makes it 
very difficult for potential users to contact the copyright owner to 
obtain a license to use visual works they may find (i.e., on Web 
sites), and thus decreases artists' opportunities to monetize their 
works.
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    \5\ Comments of Association of Medical Illustrators in Response 
to Orphan Works NOI, at 1 (Feb. 4, 2013).
    \6\ This removal of rights information may violate Section 1202 
of the Copyright Act but is difficult to police.
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    The significant enforcement challenges also pose substantial 
difficulties. For example, ``[p]urloining of [photographs], whether 
produced for use by multi-national corporations for advertising 
purposes, use on apparel, product packaging or reportage, has become 
routine.'' \7\ Authors have found that ``[c]opyright infringement is 
rampant, especially by copying of digital works and the scanning [of] 
visual works into digital format.'' \8\ Accessing a photograph, graphic 
artwork, or illustration online is generally simple and images can 
frequently be copied or downloaded with ease, thus making it effortless 
for third parties to use images without permission.
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    \7\ Comments of American Photographic Artists in Response to 
U.S. Copyright Office's Oct. 17, 2012 Notice of Inquiry on Remedies 
for Small Copyright Claims (``Small Claims NOI''), at 3 (Jan. 17, 
2012).
    \8\ Comments of Graphic Artists Guild in Response to Small 
Claims NOI, at 3 (Jan. 16, 2012).
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    Authors and licensees who try to pursue infringements may face an 
uphill battle. Litigation can be costly and expensive, and while the 
monetary harm of an individual infringement may be low, the impact of 
numerous infringements can be quite high. Similar issue are at play 
with the Copyright Act's notice and takedown procedures, which, while a 
valuable mechanism, can provide an incomplete or challenging solution 
for small authors.
    The Copyright Office has been concerned for some time about these 
and related issues. For example, in recent years, the Office studied 
and proposed the possibility of an alternative dispute resolution 
process for copyright claims that have a low economic value,\9\ the 
possibility of a resale royalty for certain visual art works,\10\ and 
the importance of the making available right in the online 
environment.\11\ The Office has also looked extensively at the problem 
of orphaned photographs and artworks, and how best to facilitate an 
exchange between a good faith user and a rightful owner.
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    \9\ See http://copyright.gov/docs/smallclaims/.
    \10\ See http://copyright.gov/docs/resaleroyalty/.
    \11\ See http://copyright.gov/docs/making_available/.
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    Aside from legal solutions, the Copyright Office is mindful of 
emerging practical solutions. Through an academic partnership with 
Stanford Law School, the Office has focused its attention on the 
subject of photographs and licensing gridlock. Stanford's students are 
exploring ways to centrally assemble information concerning marketplace 
resources for the licensing of photographs and the data standards 
relied upon by copyright owners and licensees to engage in such 
transactions. This project will not only serve creators and their 
customers, but will also help to inform the Copyright Office as it 
further adopts or, as necessary, establishes, global identifying 
information for copyright registration and recorded transactions. 
Across the sea, the United Kingdom's Copyright Hub is working on a 
prototype for transactions involving photographs as its first major 
project. And the Internet Task Force of the Department of Commerce 
recently explored photography questions as part of a broader public 
meeting hosted by the U.S. Patent and Trademark Office about 
facilitating the online licensing environment.\12\
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    \12\ See U.S. Dep't of Commerce Internet Policy Task Force, 
Facilitating the Development of the Online Licensing Environment for 
Copyrighted Works, Apr. 1, 2015 Agenda, available at http://www.uspto.gov/learning-and-resources/ip-policy/copyrights; see also 
U.S. Dep't of Commerce Internet Policy Task Force, Copyright Policy, 
Creativity, and Innovation in the Digital Economy (2013) (the 
``Green Paper'').
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    Finally, photographers, graphic artists, and illustrators face 
challenges when registering their copyrights. Many photographers, for 
example, are prolific, creating thousands of works per year or even per 
week or month. Because it can be expensive to register these works on 
an individual basis, the Copyright Office has provided certain group 
alternatives. At the same time, the Office also must provide an 
effective public record that includes sufficient detail regarding who 
has created what. Statutory damages are available against a user when 
an author has timely registered a work, and thus the granularity of the 
record is critical.

[[Page 23056]]

For this reason, while group options are helpful, they have to be 
carefully calibrated. How to improve the registration record by 
leveraging technology solutions is thus a priority.

II. Subjects of Inquiry

    The Office invites comments that address the subjects listed below. 
When submitting a comment, please identify the nature of your interest 
in this subject (e.g., whether you are a creator, licensee, etc.):
    1. What are the most significant challenges related to monetizing 
and/or licensing photographs, graphic artworks, and/or illustrations?
    2. What are the most significant enforcement challenges for 
photographers, graphic artists, and/or illustrators?
    3. What are the most significant registration challenges for 
photographers, graphic artists, and/or illustrators?
    4. What are the most significant challenges or frustrations for 
those who wish to make legal use of photographs, graphic art works, 
and/or illustrations?
    5. What other issues or challenges should the Office be aware of 
regarding photographs, graphic artworks, and/or illustrations under the 
Copyright Act?

III. Conclusion

    If there are any additional pertinent issues not discussed above, 
the Office encourages interested parties to raise those matters in 
their comments.

    Dated: April 21, 2015.
Catherine R. Rowland,
Senior Advisor to the Register of Copyrights.
[FR Doc. 2015-09575 Filed 4-23-15; 8:45 am]
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