Problems of Enforcing Copyright

Posted on 5/1/2008 by Tim Mcguire | Printable Version | Comments (0)

The Stock Artists Alliance (SAA) has published a member report by SAA's Corbis Ombudsman Tim McGuire that outlines important difficulties in enforcing copyright in the United States. SAA's volunteer ombudsmen act as liaison with most major agencies to assist with communications and problem-solving. Selling Stock is reprinting this article.

Last month, as SSA's Corbis ombudsman, I met with Corbis representatives Patrick Donehue (vice president, photographer relations) and David Weiskopf (senior corporate counsel). Our meeting focused on a critical issue: Corbis' ability and willingness to pursue infringements of their photographers' images. It was brought about by the discovery by some SAA members that a large number of Corbis-represented images have been improperly posted on the image-sharing network Flickr.

I was told Corbis has made the bottom-line assessment that Flickr does not pose a substantial enough threat to the stock photo business to warrant the time, effort, money, and drain on resources it would take to file a lawsuit and prove its claim in court.

Weiskopf explained the legal intricacies of following up on alleged infractions. I came to better understand why Corbis has decided not to pursue the Flickr infringements. While it recognizes the illegality of these uses and isn't complacent about them, Corbis believe it will be more effective to pursue a longer term legal strategy of promoting best practices throughout the stock-image industry as related intellectual-property industries, such as the music and movie industries, have done.
Certainly, part of Corbis' decision is a financial cost-benefit analysis, predicting that the extreme costs (time, money, resources) of a legal battle would far outweigh the benefit to photographers, Corbis and the industry at large. Both Weiskopf and Donehue shared some of the legal complexities of figuring out exactly who has what rights to what photos, and the challenges and costs of proving willful infringements in order to win each lawsuit.
The two cited a well-known case that Corbis did pursue against TemplateMonster. Corbis won that lawsuit, there was a large injunction and award (tens of millions), and it shut down one of TemplateMonster's offices in Europe. They noted that even in this case, with its positive outcome, it was not financially worth the costs involved. Regardless, according to Weiskopf, Corbis did it on principle in order to protect its industry and the rights of creators and their assigns. The company does not wish to characterize its actions as somehow better than its rivals, though they did point out that other stock distributors did not take legal action against TemplateMonster (or join in with Corbis), although images they represented were also being infringed.

Many in our industry are watching a similar lawsuit between Viacom and YouTube. This case involves many of the same issues that Corbis and other stock image distributors have with regard to Yahoo/Flickr. In this case, Viacom has been leading the charge by established entertainment conglomerates in demanding payment for unauthorized posting of its programming on YouTube.
It should be noted that to Corbis' credit, the company currently has around 1,700 infringement cases in the works. It is actively engaged in copyright protection and appears to have dedicated a substantial amount of resources to pursuing infringements it feels are worthwhile from a cost-benefit point of view.

During the discussion, I also asked: "Why can't Corbis just send out cease-and-desist letters to everyone who it finds using their photos illegally?" It was pointed out to me that without the cooperation of others in the industry (not just Corbis) to devote the time and money necessary for such efforts, the infringements would continue. Eventually, if all of such letters were not pursued, then those violating copyrights would learn to ignore them. According to Weiskopf, this has in fact already started to happen in the UK and other places in Europe.
So it has been determined by Corbis and many others in the industry that a more effective strategy is to devote their resources, time and money to the long-term goal of creating a better environment of "best practices" to protect copyrights in the digital age. I am personally convinced that Corbis is dedicated to strong copyright protections in the larger context of all intellectual-property industries. This means that some cases (like Flickr) will slip through the cracks for now, and that is unfortunate. Pick your battles carefully seems to be the mantra.

The stock-photo business continues to change fast, and Corbis has been challenged to deal with it, as are we all. Weiskopf pointed out that copyright law was not meant as a "hammer" for creators to use, but rather as a way to make sure it is always viable for creators to create and share their works in society. When that viability is threatened and society at large cannot reap the benefits of its creators, then copyright laws become the "hammer" to protect rights.
Personally speaking, I now have a different perception of the copyright infringements issue after hearing from those "on the front lines" describe what the pursuit of these infringements entails. I can appreciate how the substantial costs in terms of time, resources and money would be large factors in determining whether to pursue litigation of infringements.


Copyright © 2008 Tim Mcguire. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

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