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11/18/2009November 18, 2009 MESSAGE FROM OUR PACA PRESIDENT Maria Kessler Dear Members, It has been a breathless past 5 weeks. Here’s a run-down of where PACA has been, and where we are going: Beginning the week of our 14th Annual PACA International Conference, Cathy Aron was able to attend the Young Photographers Alliance Board Meeting in New York. Many PACA members, including me, joined her for the benefit auction the night before picturehouse. The YPA is a great organization founded earlier this year by our own PACA members Jerry Tavin and Deborah Free and it is a bright light in these tough economic times for nurturing young talent. The program is financial support and hope for young photographers who are dedicated to their craft. At picturehouse, Nancy Wolff gave her Copyright Education Program to an overflowing audience. Doug Dawirs previewed pacaSearch in two sessions and we received great accolades from the photo buyers in attendance. Doug walked away with enough business cards to make up our beta testing group! From New York, we headed to Miami for our PACA International Conference where we had an incredibly productive weekend of meetings, networking, and program discussions. There was so much productive news between pacaSearch, shooting stills together with footage, progress on search (Google and imense) and insights on the convergence of PR and social media (Brian Solis) that everyone walked away with something. PACA also had a great collaboration meeting with ASMP, ASPP, SAA and the visiting CEPIC and BAPLA board members. And, did I mention that Miami Beach is still a mecca of sun, beauty and nightlife (and it all seemed to be happening at Eden Roc)? Back in New York, I attended the photographer’s panel at the UGCX conference. The panel was a mixture of “traditional goes micro” and how to succeed. The interesting items that I learned were that there have not been any major entrants into microstock since 2004, microstock is also seeing a slow-down in the market, and some of the same issues that plague traditional RM and RF business have begun to show up in micro—namely the lack of originality (shooters are beginning to mimic the style and subjects of the most downloaded images—creating an abundance of similar-looking images). PhotoExpo was later the same week where Nancy Wolff presented the PACA Copyright Education Program together with a speaker from the Copyright Office. On a Saturday morning at 8:30am, the attendees were unwilling to leave when the presentation was over. While Nancy presented real world issues on copyright cases and some pitfalls to watch out for, William Briganti from the Copyright Office reviewed the need for registration (e-registration) and a few different ways to make registration easier. There were just so many questions and subtleties to review. From copyright discussions, Nancy and I headed to a brown-bag lunch together with colleagues from six other trade organizations (APA, ASMP, ASPP, EP, SAA, PACA, SPE). The meeting of so many photographer and visual content organizations is quite an event. While our lunch was low key, we wasted no time in getting to the major issues—the need to communicate and collaborate on the issues that we all have in common. We agreed to work together on copyright education (sharing all of our program materials), and educating our members on contract language and photo contest language. We also set up a network to email and collaborate together as we face evolving issues and new business models. And now, I am headed to DC to attend the Copyright Alliance Exponential. This is an opportunity for PACA to get exposure in the House offices together with the likes of the MPAA, RIAA, Graphic Artists Guild, Entertainment Software Association, BMI, Association of American Publishers, ASMP, and others. This is an important time to represent the rights of our members and of content owners. We have important new treaties that are in development (Anti-Counterfeiting Trade Agreement (ACTA), and Net Neutrality) that will pave the way for further growth or a siphoning of creativity in years to come. PACA is forging ahead with new ways to help stimulate your business (pacaSearch), and to stay relevant as an important voice in the content licensing arena. There are many disruptive forces trying to morph how we sustain our relevance. We’re trying to stay on top of these issues and to inform you. Your comments are always welcome. Maria Kessler PACA President FOLLOW-UP ON THE 2009 INTERNATIONAL CONFERENCE Thank you to everyone who has completed the very brief survey regarding PACA’s 14th International Conference held recently in Miami Beach. If you have not had a chance to send in your response, please take a few minutes to visit . Each response is reviewed and all comments and suggestions are taken into consideration when planning the next conference. Most of you will be pleased that PACA will be back in New York City for the 15th Annual Conference next year. If you have any topics that you think will be beneficial to the membership or would like to recommend a speaker, please sent them to Stock Production Workshop ⁄ © Digital Decaf The Eden Roc © Grant Heilman Photography PACASEARCH BETA TESTING We are anxious to get as many PACA archives as possible up on pacaSearch by our beta testing launch date. Your company needs to be on pacaSearch by this Friday, November 11, to participate in the initial beta testing by buyers. It is quick and easy to make the necessary changes to your website. You can find all the information you need for the API here: www.pacasearch.com/docs/pacaSearch_API_v1.pdf If you need any assistance, please contact us immediately at webmaster@pacaoffice.org PACASEARCH MARKETINGLaunch Blitz: January 2010 Promotion and Marketing Team Recruitment Drive Join us and be part of the most exciting new service to have ever been launched by PACA for its members! We are looking for dynamic and creative individuals from within PACA’s membership to be part of the team that will help launch pacaSearch, the brand new mega image search engine, in January 2010. Us Take a look at our demo at to view an early version of what is sure to become the one-stop-destination for professional image users anywhere in the country. As simple to use as Google Images—only 100% better as our search engine will take potential clients directly to perfect images they can licence from our members’ own websites. At speeds that will literally make your eyes water, our unique system knocks spots off anything even remotely similar and is set to become the industry standard. Created and designed by our very own webmaster, Doug Dawirs, pacaSearch is going to mean that membership of PACA will not just be extremely useful—but completely essential. Our target? Every buyer of every sort of image for every sort of use in the US (and worldwide at a later date). You Do you know about launching new products and services? Are you experienced with all the latest marketing tools both online and in print? What can you contribute in terms of your knowledge of social and professional networking? Come and join us in this exciting new venture and be part of PACA’s drive to lead the image industry into the next decade. We have a great team at PACA to guide this venture, but we need you to help us make this launch a smash hit. Please volunteer your name (or that of a talented colleague) for this mission… you won’t regret it. It’s going to be a really fun project and an opportunity to meet new friends and make a worthwhile contribution to our great organization. Email us at marketing@pacaoffice.org as soon as possible. There’s work to be done. Thanks and look forward to hearing from you! pacaSearch Marketing Committee: Sonia Wasco, Lauretta Dives, Cathy Aron, Doug Dawirs A WARM WELCOME TO OUR NEWEST MEMBERS Please join with me in welcoming our newest General (Provisional) members: age Fotostock America, Inc.594 Broadway Suite 707 New York, NY 10012 United States212/625-9000susan@agefotostock.comwww.agefotostock.com B2B Contact: Susan Jones, susan@agefotostock.com iCLIPART.com61 Dunedin Drive Box 312 Brussels, ON N0G1H0 Canada Phone: 519/489-4694 Toll-Free: 800/713-0398 Email: support@iclipart.com Fax: 519/887-8582 Website: www.iclipart.com B2B Contact: Charlie Hoy, charlieh@iclipart.com SCROCK NO LONGER SHOCKED!Schrock v. Learning Curve International, Inc., et al., 7th Cir., November 5, 2009Summary: In January 2008, the United States District Court for the Northern District of Illinois issued a controversial decision denying a photographer the right to sue for copyright infringement. The district court, classifying the photographs as “derivative works” of popular toy products, held that the photographer needed permission not only to make the photographs, but also to copyright them. Seeking to overturn this decision on appeal, PACA joined with ASMP, and a number of other associations in an amicus brief supporting the photographer. After a long wait, in November 2009, the district court’s holding was reversed by the United States Court of Appeals for the Seventh Circuit. Background of the Litigation: When Daniel Schrock, a Chicago-based professional photographer discovered that his client was using photographs he took on assignment longer than the two-year term of use granted in writing, and refused to pay additional use fees, he sued the client for copyright infringement. These photographs were registered with the Copyright Office as required under the Copyright Act to enforce his rights and he assumed he would have his day in court. To his surprise, his case was dismissed because the infringing client had never affirmatively granted him permission to copyright the photographs. What went wrong? For four years ending in 2003, Schrock created photographs of his client Learning Curve International, Inc’s, (Learning Curve) products for marketing purposes. Learning Curve designs, produces, and distributes toys and collectibles, including the popular “Thomas & Friends” line. The copyright in “Thomas & Friends” is owned by HIT Entertainment PLC (“HIT”). HIT had granted a license to Learning Curve to produce the toys. Schrock, (who must have listened to a copyright talk along the way) registered the copyrights for a large number of the photographs after taking the pictures for Learning Curve. In addition, the invoices he submitted to Learning curve included a two-year “usage restriction” after which the client was not to use Schrock’s photographs without extending the license term. The two-year period passed for a number of the photographs, but the client continued to use them despite Schrock’s objections. Left with no other recourse, Schrock filed a copyright infringement against both Learning Curve and HIT. These defendants asked the court to dismiss his claim on motions for summary judgment, asserting that Schrock had no right to register the copyright in these photographs because they are photographs of toys, which are copyrightable works under the Copyright Act so his photographs were only derivative. The court agreed and dismissed the photographer’s claims. The District Court’s Reasoning: The Illinois federal district court focused its entire decision on whether the photographs of these toys were derivative works as that term is defined under the Copyright Act. A derivative work is defined as a work that is “based upon one or more preexisting works” and recasts, transforms or adapts the preexisting work (Section 101 of the Copyright Act). Examples provided by the Act include translations, sound recordings, and motion pictures among others. A toy is a protected work under the Copyright Act as a three dimensional object. While there was no Seventh Circuit decision for the court to rely on to determine if a photograph of a copyrighted object was a derivative work, it interpreted other decisions in the Seventh Circuit (the circuit that includes Illinois) to conclude that a photograph of a three dimensional toy is a derivative work under copyright law. District Court’s Conclusion: Having concluded that these photographs were derivative works, the court went on to conclude that the photographer had no authority to even register the derivative works with the Copyright Office as it found that the photographer had no permission from the copyright owner of the toys to register his photographs. Under the Copyright Act, the copyright owner has the exclusive right to authorize the creation of a derivative work. While the court acknowledged that Schrock was authorized by the copyright owner to take these photographs of the toys, he was not expressly authorized to register the copyright in the photographs. Consequently, the court dismissed his copyright claims on the grounds that Schrock lacked a valid copyright in his photographs and as such lacked the ability to file a copyright infringement suit. This decision surprised most in the legal community as the owner of a derivative work has copyright in the original material that is added to a work and the Copyright Act does not require permission from the underlying owner to copyright the derivative work. The Seventh Circuit’s Decision to Reverse: Fortunately the 7th Circuit Court of Appeals reversed finding that the district court incorrectly granted summary judgment for the defendants. The Court of Appeals found that because Schrock was authorized to make the photos, he owned the copyright in the photos to the extent of their incremental original expression. Further, the Court of Appeals found that Schrock’s photos were original for purposes of copyright ability because of his use of various camera and lighting techniques to make the toys look more “personable” and “friendly”. The court also found that the originality requirement for derivative works is not more demanding than the originality requirement for other works and the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way. As applied to photographs, if a photographer’s rendition of a copyrighted work varies enough from the underlying work to enable the photograph to be distinguished from the underlying work (aside from the shift from three dimensions to two), then the photograph contains sufficient incremental originality to qualify for copyright. The 7th Circuit Court of Appeals found that there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work. The Court cited one of the leading copyright authorities—Nimmer on Copyright— which stated, “The right to claim copyright in a non-infringing derivative work arises by operation of law, not through authority from the copyright owner in the underlying work.” However, the Court also noted that “if the pertinent agreement between the parties affirmatively bars the licensee from obtaining copyright protection even in a licensed derivative work, that contractual provision would appear to govern.” The Court of Appeals remanded to the district court because the scope of the contractual rights and obligations by and between each party were unclear, and further facts needed to be developed to determine if Schrock was prevented by contract from registering the photographs for copyright protection. Implications: This lower court decision was clearly erroneous and although it took some time, the appellate court did reverse. Since it is not common for industry invoices to discuss whether one has “authority to register a photograph”, it is unlikely that the invoices in this action prohibited the photographer from registering the copyright in the product photographs. The Appeals Court punted, however on whether photographs of copyrightable objects are in fact derivative works at all. Many courts, including those in New York and Florida regard photographs of copyrightable objects not as derivative of the underlying work, but merely a depiction of the underlying work and copyrightable as a separate work, rather than a derivative work. Since some stock images depict objects copyrightable within them, it is a relief that the owners of the object will not be able to assert that the photographer had no right to own a copyright in the resulting photographs (and argument I did receive after the initial Schrock decision). GOOGLE BOOK SETTLEMENT UPDATE Late Friday night, the parties to the Google Book Settlement Agreement filed a revised agreement (179 pages short). I have not had a chance to review the entire document but the New York Times reports that the revisions primarily address the handling of orphan works, the millions of books whose rights holders are unknown or cannot be found. The changes call for the appointment of an independent trustee, who will be solely responsible for decisions regarding these books. According to the article, “the trustee, with Congressional approval, can grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate.” Apparently if the money goes unclaimed for 10 years, it will be used for philanthropy and to locate rights holders. The revised agreement restricts the Google catalog to books published in the United States, Britain, Australia or Canada (English language countries). This change is intended to resolve objections from the French and German governments, which complained that the settlement was in conflict with the laws in their countries. In addition, it is reported that the revised settlement could make it easier for other companies to compete with Google in offering their own digitized versions of older library books. The provision that no other company could get a better deal with authors and publishers than the one Google had struck was stricken. It is expected that sometime this week Judge Denny Chin of the United States District Court for the Southern District of New York will set to set a date for a “fairness hearing,” where arguments from both sides will be heard about whether or not to approve the settlement. We will keep you posted. ALASKA STOCK IMAGES EXPANDS REACH WITHIN ASIAAnchorage, AK Alaska’s premier photo agency, Alaska Stock Images, has signed agreements with two major Asian distributors of digital image content: Panorama Media Ltd and IPS Japan. Established in 1993, Panorama Media (www.panoramastock.com) has grown to become the largest online stock photo operation in China with headquarters located in Beijing. Panorama Stock is the Hong Kong and international hub, offering a library of over 1 million creative and editorial images. As a major provider of Rights Managed content, Alaska Stock sees its expansion within the Chinese market as a major step and huge growth area—China now being the third largest economy in the world after the US and Japan. Alaska Stock Images is very pleased to further extend its Asian distribution reach by adding IPS (ipsnet.jp), one of Japan’s most established Rights Managed distributors. Alaska Stock owner, Jeff Schultz, remarked, “We are delighted to have our Alaska images represented in China by Panorama Stock and feel they are positioned very well to market our unique set of images in the Chinese marketplace.“ Yasuko Kimura, the International Manager at IPS speaks very enthusiastically of the Alaska Stock imagery, citing in particular the relevance of the landscape material to their advertising and poster clients. A positive byproduct of greater distribution of Alaskan scenic and striking wildlife imagery within the Japanese market could also be an increase in Japanese tourism to Alaska. For further information, please contact: Jeff Schultz, Owner www.AlaskaStock.com 800/487-4285 jeff@alaskastock.com NEW IPHONE TRAVEL APP FEATURES ALASKA STOCK IMAGESAnchorage, AK Alaska’s premier photo agency, Alaska Stock Images, has paired with Alaska HDTV, Alaska’s best network for video travel stories, to provide exclusive wallpaper photos for the first Alaska Travel iPhone app to include mobile video of Alaska destinations and Alaska travel discounts and promotions. Alaska Stock owner, Jeff Schultz, remarked, “We are thrilled to have our Alaska images included in this new iPhone app and to provide a great selection of wallpapers for iPhone users.” The Alaska Travel iPhone App is designed to provide a visual sampling of what to see and where to go with short video episodes from regions around the state of Alaska. Attached to each of these video episodes are related wallpaper images of great Alaska scenery for users to decorate their iPhone or iPod touch and the ability to order photo prints at AlaskaStockPrints.com Alaska Travel iPhone App includes: Great videos from around Alaska Exclusive Alaska wallpaper images from Alaska Stock Images Travel discounts and promotions for the current season Monthly addition of new videos, discounts and exclusive bonus content Pricing & Availability: The iPhone app is available now for $2.99 here in the popular Apple iPhone App Store. Additional information: Short link to iTunes App Store: clicky.me/fortheapp Video screencast: www.alaskahdtv.com/screencast/ Description of the app: www.alaskahdtv.com/2009/alaska-hdtv-travel-iphone-app About Alaska HDTV: Alaska HDTV Productions, an Alaska company, is based in Anchorage, Alaska. Alaska HDTV is a network of High-Definition productions including television, podcasts and unique applications like our new iPhone app. www.alaskahdtv.com For further information, please contact: Laurie Campbell, Director of Sales & Marketinglaurie@alaskastock.comwww.AlaskaStock.com 800/487-4285 GETTY IMAGES ANNOUNCES CONTINUATION OF GRANTS PROGRAMS IN 2010London, UK & Seattle, WA Getty Images, Inc. today announced that its two major grant programs, Getty Images Grants for Editorial Photography and Getty Images Grants for Good, will continue in 2010. The popular programs, which have provided grants of more than $500,000 over the past five years, are to continue next year with the following changes: Getty Images Grants for Editorial Photography was established in 2004 to enable emerging and established photojournalists to pursue projects of personal and editorial merit. Getty Images will again award five professional photojournalism grants of $20,000 each and four student grants of $5,000 each, annually. However, instead of awarding these Grants in two separate rounds during the year, all will be announced in September at Visa Pour l’Image, the international photojournalism festival held in Perpignan, France. The application deadline for the editorial grants is May 1, 2010. “As we are all aware, these are trying times for our industry and many of the traditional resources that would have given financial support to photojournalists have all but dried up, as our colleagues in newspapers and magazines have seen their budgets greatly reduced,” said Aidan Sullivan, Vice President, Photo Assignments for Getty Images. “That makes awards like this even more crucial, as without the grants, the photojournalists’ important work may never have been seen. We at Getty Images are delighted that we are able to continue this support, which enables talented and dedicated photographers to complete their chosen projects.” Getty Images Grants for Good was launched in 2009 to involve the creative and nonprofit communities. In the program’s first year, the participation of a creative agency was optional, but is now a requirement in the application process in 2010. This change ensures that all grant proposals will benefit from an agency’s strategic guidance as to how the imagery will be used by the nonprofit. Accordingly, the two grants of $15,000 each that are offered annually to cover photographers’ and agencies’ associated fees and costs will be equally shared as they collaborate to benefit the nonprofit that they choose to support. These grant recipients will be announced in June and celebrated at the Cannes Lions Advertising Festival in Cannes, France. The application deadline for Grants for Good is March 1, 2010. “Our clients who are marketing and communications agencies do important work with nonprofit clients, often at reduced or donated fees,” said Andrew Saunders, Vice President, Creative Imagery for Getty Images. “The new structure of our Grants for Good recognizes the important role they play and encourages photographers and agencies to collaborate in developing imagery that delivers nonprofits’ messages effectively.” For more information about both grant programs, including application details, please visit www.gettyimages.com/grants PICTUREHOUSE MARKETING US BECOMES VISUAL CONNECTIONS Picturehouse Marketing US, LLC is now trading as Visual Connections LLC. We believe that the new name and branding better reflects what we are about and gives us a strong platform to launch a number of new services in the New Year. As of November 1, 2009, our license to use the Picturehouse name and logo expired and, at this time, neither Deborah Free nor Visual Connections is affiliated to picturehouse marketing ltd. We don’t want to lose contact with you, so please take this opportunity to: Update your bookmarks with Update your address book for Deborah Free to deborah@visualconnections.com Please note that the Picturehouse name and logo is owned by, and will continue to be used by, picturehouse marketing ltd (www.picturehouse.org), a UK company directed by Michael Brown. Visual Connections New York 2009 We would like to thank everyone who made our New York event last month a great success. Despite the marked downturn in the economy (evident from the large number of freelance picture buyers/researchers attending who were employed last year), there was a very positive buzz around the hall. The new, larger venue was a big hit and we are negotiating our return there next year. We have published a review of the event, which includes a slideshow of photos of the day and a PDF of the show guide: www.visualconnections.com/newyork/previous.php “The new venue was light and spacious; the seminars throughout the day meant that there was a steady flow of image buyers coming through the doors all day. [Visual Connections] New York remains the single most important show we attend in the US and it was great to see so many other exhibitors and attendees felt the same way!” David Price-Hughes, akg-images Preparing for 2010 Owing to the uncertain state of the economy we have decided not to run an event in Chicago in 2010. We are focusing our energies instead on making next year’s New York event an even bigger draw to picture buyers, growing the audience for our online directory, and offering other cost-effective ways for you to communicate with picture buying professionals in the US and Canada. Our goals are to: stage the best picture buyers’ fair to date in New York City in 2010; develop the Image Sources directory into a standard reference tool for picture researchers; offer a range of cost-effective direct marketing and advertising opportunities throughout the year to keep you in front of your targeted audience; facilitate the matching up of needs and expertise throughout the industry (more on this later). If you would like to be notified about our 2010 program, please register your details with us at Please feel free to contact Deborah Free at or 585/768-7880 at any time with any questions or suggestions for how Visual Connections can help you market your business.
Dear Members,
It has been a breathless past 5 weeks. Here’s a run-down of where PACA has been, and where we are going:
Beginning the week of our 14th Annual PACA International Conference, Cathy Aron was able to attend the Young Photographers Alliance Board Meeting in New York. Many PACA members, including me, joined her for the benefit auction the night before picturehouse. The YPA is a great organization founded earlier this year by our own PACA members Jerry Tavin and Deborah Free and it is a bright light in these tough economic times for nurturing young talent. The program is financial support and hope for young photographers who are dedicated to their craft.
At picturehouse, Nancy Wolff gave her Copyright Education Program to an overflowing audience. Doug Dawirs previewed pacaSearch in two sessions and we received great accolades from the photo buyers in attendance. Doug walked away with enough business cards to make up our beta testing group!
From New York, we headed to Miami for our PACA International Conference where we had an incredibly productive weekend of meetings, networking, and program discussions. There was so much productive news between pacaSearch, shooting stills together with footage, progress on search (Google and imense) and insights on the convergence of PR and social media (Brian Solis) that everyone walked away with something. PACA also had a great collaboration meeting with ASMP, ASPP, SAA and the visiting CEPIC and BAPLA board members. And, did I mention that Miami Beach is still a mecca of sun, beauty and nightlife (and it all seemed to be happening at Eden Roc)?
Back in New York, I attended the photographer’s panel at the UGCX conference. The panel was a mixture of “traditional goes micro” and how to succeed. The interesting items that I learned were that there have not been any major entrants into microstock since 2004, microstock is also seeing a slow-down in the market, and some of the same issues that plague traditional RM and RF business have begun to show up in micro—namely the lack of originality (shooters are beginning to mimic the style and subjects of the most downloaded images—creating an abundance of similar-looking images).
PhotoExpo was later the same week where Nancy Wolff presented the PACA Copyright Education Program together with a speaker from the Copyright Office. On a Saturday morning at 8:30am, the attendees were unwilling to leave when the presentation was over. While Nancy presented real world issues on copyright cases and some pitfalls to watch out for, William Briganti from the Copyright Office reviewed the need for registration (e-registration) and a few different ways to make registration easier. There were just so many questions and subtleties to review.
From copyright discussions, Nancy and I headed to a brown-bag lunch together with colleagues from six other trade organizations (APA, ASMP, ASPP, EP, SAA, PACA, SPE). The meeting of so many photographer and visual content organizations is quite an event. While our lunch was low key, we wasted no time in getting to the major issues—the need to communicate and collaborate on the issues that we all have in common. We agreed to work together on copyright education (sharing all of our program materials), and educating our members on contract language and photo contest language. We also set up a network to email and collaborate together as we face evolving issues and new business models.
And now, I am headed to DC to attend the Copyright Alliance Exponential. This is an opportunity for PACA to get exposure in the House offices together with the likes of the MPAA, RIAA, Graphic Artists Guild, Entertainment Software Association, BMI, Association of American Publishers, ASMP, and others. This is an important time to represent the rights of our members and of content owners. We have important new treaties that are in development (Anti-Counterfeiting Trade Agreement (ACTA), and Net Neutrality) that will pave the way for further growth or a siphoning of creativity in years to come.
PACA is forging ahead with new ways to help stimulate your business (pacaSearch), and to stay relevant as an important voice in the content licensing arena. There are many disruptive forces trying to morph how we sustain our relevance. We’re trying to stay on top of these issues and to inform you.
Your comments are always welcome. Maria Kessler PACA President
Thank you to everyone who has completed the very brief survey regarding PACA’s 14th International Conference held recently in Miami Beach. If you have not had a chance to send in your response, please take a few minutes to visit . Each response is reviewed and all comments and suggestions are taken into consideration when planning the next conference.
Most of you will be pleased that PACA will be back in New York City for the 15th Annual Conference next year. If you have any topics that you think will be beneficial to the membership or would like to recommend a speaker, please sent them to
We are anxious to get as many PACA archives as possible up on pacaSearch by our beta testing launch date. Your company needs to be on pacaSearch by this Friday, November 11, to participate in the initial beta testing by buyers. It is quick and easy to make the necessary changes to your website. You can find all the information you need for the API here: www.pacasearch.com/docs/pacaSearch_API_v1.pdf
If you need any assistance, please contact us immediately at webmaster@pacaoffice.org
Join us and be part of the most exciting new service to have ever been launched by PACA for its members!
We are looking for dynamic and creative individuals from within PACA’s membership to be part of the team that will help launch pacaSearch, the brand new mega image search engine, in January 2010.
Us Take a look at our demo at to view an early version of what is sure to become the one-stop-destination for professional image users anywhere in the country.
As simple to use as Google Images—only 100% better as our search engine will take potential clients directly to perfect images they can licence from our members’ own websites.
At speeds that will literally make your eyes water, our unique system knocks spots off anything even remotely similar and is set to become the industry standard. Created and designed by our very own webmaster, Doug Dawirs, pacaSearch is going to mean that membership of PACA will not just be extremely useful—but completely essential.
Our target? Every buyer of every sort of image for every sort of use in the US (and worldwide at a later date).
You Do you know about launching new products and services? Are you experienced with all the latest marketing tools both online and in print? What can you contribute in terms of your knowledge of social and professional networking?
Come and join us in this exciting new venture and be part of PACA’s drive to lead the image industry into the next decade. We have a great team at PACA to guide this venture, but we need you to help us make this launch a smash hit.
Please volunteer your name (or that of a talented colleague) for this mission… you won’t regret it. It’s going to be a really fun project and an opportunity to meet new friends and make a worthwhile contribution to our great organization.
Email us at marketing@pacaoffice.org as soon as possible. There’s work to be done.
Thanks and look forward to hearing from you!
pacaSearch Marketing Committee: Sonia Wasco, Lauretta Dives, Cathy Aron, Doug Dawirs
Please join with me in welcoming our newest General (Provisional) members:
age Fotostock America, Inc.594 Broadway Suite 707 New York, NY 10012 United States212/625-9000susan@agefotostock.comwww.agefotostock.com B2B Contact: Susan Jones, susan@agefotostock.com iCLIPART.com61 Dunedin Drive Box 312 Brussels, ON N0G1H0 Canada Phone: 519/489-4694 Toll-Free: 800/713-0398 Email: support@iclipart.com Fax: 519/887-8582 Website: www.iclipart.com B2B Contact: Charlie Hoy, charlieh@iclipart.com
age Fotostock America, Inc.594 Broadway Suite 707 New York, NY 10012 United States212/625-9000susan@agefotostock.comwww.agefotostock.com B2B Contact: Susan Jones, susan@agefotostock.com
iCLIPART.com61 Dunedin Drive Box 312 Brussels, ON N0G1H0 Canada Phone: 519/489-4694 Toll-Free: 800/713-0398 Email: support@iclipart.com Fax: 519/887-8582 Website: www.iclipart.com B2B Contact: Charlie Hoy, charlieh@iclipart.com
Summary: In January 2008, the United States District Court for the Northern District of Illinois issued a controversial decision denying a photographer the right to sue for copyright infringement. The district court, classifying the photographs as “derivative works” of popular toy products, held that the photographer needed permission not only to make the photographs, but also to copyright them. Seeking to overturn this decision on appeal, PACA joined with ASMP, and a number of other associations in an amicus brief supporting the photographer. After a long wait, in November 2009, the district court’s holding was reversed by the United States Court of Appeals for the Seventh Circuit.
Background of the Litigation: When Daniel Schrock, a Chicago-based professional photographer discovered that his client was using photographs he took on assignment longer than the two-year term of use granted in writing, and refused to pay additional use fees, he sued the client for copyright infringement. These photographs were registered with the Copyright Office as required under the Copyright Act to enforce his rights and he assumed he would have his day in court. To his surprise, his case was dismissed because the infringing client had never affirmatively granted him permission to copyright the photographs. What went wrong?
For four years ending in 2003, Schrock created photographs of his client Learning Curve International, Inc’s, (Learning Curve) products for marketing purposes. Learning Curve designs, produces, and distributes toys and collectibles, including the popular “Thomas & Friends” line. The copyright in “Thomas & Friends” is owned by HIT Entertainment PLC (“HIT”). HIT had granted a license to Learning Curve to produce the toys. Schrock, (who must have listened to a copyright talk along the way) registered the copyrights for a large number of the photographs after taking the pictures for Learning Curve. In addition, the invoices he submitted to Learning curve included a two-year “usage restriction” after which the client was not to use Schrock’s photographs without extending the license term. The two-year period passed for a number of the photographs, but the client continued to use them despite Schrock’s objections. Left with no other recourse, Schrock filed a copyright infringement against both Learning Curve and HIT. These defendants asked the court to dismiss his claim on motions for summary judgment, asserting that Schrock had no right to register the copyright in these photographs because they are photographs of toys, which are copyrightable works under the Copyright Act so his photographs were only derivative. The court agreed and dismissed the photographer’s claims.
The District Court’s Reasoning: The Illinois federal district court focused its entire decision on whether the photographs of these toys were derivative works as that term is defined under the Copyright Act. A derivative work is defined as a work that is “based upon one or more preexisting works” and recasts, transforms or adapts the preexisting work (Section 101 of the Copyright Act). Examples provided by the Act include translations, sound recordings, and motion pictures among others. A toy is a protected work under the Copyright Act as a three dimensional object. While there was no Seventh Circuit decision for the court to rely on to determine if a photograph of a copyrighted object was a derivative work, it interpreted other decisions in the Seventh Circuit (the circuit that includes Illinois) to conclude that a photograph of a three dimensional toy is a derivative work under copyright law.
District Court’s Conclusion: Having concluded that these photographs were derivative works, the court went on to conclude that the photographer had no authority to even register the derivative works with the Copyright Office as it found that the photographer had no permission from the copyright owner of the toys to register his photographs. Under the Copyright Act, the copyright owner has the exclusive right to authorize the creation of a derivative work. While the court acknowledged that Schrock was authorized by the copyright owner to take these photographs of the toys, he was not expressly authorized to register the copyright in the photographs. Consequently, the court dismissed his copyright claims on the grounds that Schrock lacked a valid copyright in his photographs and as such lacked the ability to file a copyright infringement suit. This decision surprised most in the legal community as the owner of a derivative work has copyright in the original material that is added to a work and the Copyright Act does not require permission from the underlying owner to copyright the derivative work.
The Seventh Circuit’s Decision to Reverse: Fortunately the 7th Circuit Court of Appeals reversed finding that the district court incorrectly granted summary judgment for the defendants. The Court of Appeals found that because Schrock was authorized to make the photos, he owned the copyright in the photos to the extent of their incremental original expression.
Further, the Court of Appeals found that Schrock’s photos were original for purposes of copyright ability because of his use of various camera and lighting techniques to make the toys look more “personable” and “friendly”. The court also found that the originality requirement for derivative works is not more demanding than the originality requirement for other works and the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.
As applied to photographs, if a photographer’s rendition of a copyrighted work varies enough from the underlying work to enable the photograph to be distinguished from the underlying work (aside from the shift from three dimensions to two), then the photograph contains sufficient incremental originality to qualify for copyright.
The 7th Circuit Court of Appeals found that there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work. The Court cited one of the leading copyright authorities—Nimmer on Copyright— which stated, “The right to claim copyright in a non-infringing derivative work arises by operation of law, not through authority from the copyright owner in the underlying work.”
However, the Court also noted that “if the pertinent agreement between the parties affirmatively bars the licensee from obtaining copyright protection even in a licensed derivative work, that contractual provision would appear to govern.” The Court of Appeals remanded to the district court because the scope of the contractual rights and obligations by and between each party were unclear, and further facts needed to be developed to determine if Schrock was prevented by contract from registering the photographs for copyright protection.
Implications: This lower court decision was clearly erroneous and although it took some time, the appellate court did reverse. Since it is not common for industry invoices to discuss whether one has “authority to register a photograph”, it is unlikely that the invoices in this action prohibited the photographer from registering the copyright in the product photographs. The Appeals Court punted, however on whether photographs of copyrightable objects are in fact derivative works at all. Many courts, including those in New York and Florida regard photographs of copyrightable objects not as derivative of the underlying work, but merely a depiction of the underlying work and copyrightable as a separate work, rather than a derivative work. Since some stock images depict objects copyrightable within them, it is a relief that the owners of the object will not be able to assert that the photographer had no right to own a copyright in the resulting photographs (and argument I did receive after the initial Schrock decision).
GOOGLE BOOK SETTLEMENT UPDATE
Late Friday night, the parties to the Google Book Settlement Agreement filed a revised agreement (179 pages short). I have not had a chance to review the entire document but the New York Times reports that the revisions primarily address the handling of orphan works, the millions of books whose rights holders are unknown or cannot be found. The changes call for the appointment of an independent trustee, who will be solely responsible for decisions regarding these books. According to the article, “the trustee, with Congressional approval, can grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate.” Apparently if the money goes unclaimed for 10 years, it will be used for philanthropy and to locate rights holders.
The revised agreement restricts the Google catalog to books published in the United States, Britain, Australia or Canada (English language countries). This change is intended to resolve objections from the French and German governments, which complained that the settlement was in conflict with the laws in their countries.
In addition, it is reported that the revised settlement could make it easier for other companies to compete with Google in offering their own digitized versions of older library books. The provision that no other company could get a better deal with authors and publishers than the one Google had struck was stricken.
It is expected that sometime this week Judge Denny Chin of the United States District Court for the Southern District of New York will set to set a date for a “fairness hearing,” where arguments from both sides will be heard about whether or not to approve the settlement. We will keep you posted.
ALASKA STOCK IMAGES EXPANDS REACH WITHIN ASIAAnchorage, AK
Alaska’s premier photo agency, Alaska Stock Images, has signed agreements with two major Asian distributors of digital image content: Panorama Media Ltd and IPS Japan.
Established in 1993, Panorama Media (www.panoramastock.com) has grown to become the largest online stock photo operation in China with headquarters located in Beijing. Panorama Stock is the Hong Kong and international hub, offering a library of over 1 million creative and editorial images. As a major provider of Rights Managed content, Alaska Stock sees its expansion within the Chinese market as a major step and huge growth area—China now being the third largest economy in the world after the US and Japan.
Alaska Stock Images is very pleased to further extend its Asian distribution reach by adding IPS (ipsnet.jp), one of Japan’s most established Rights Managed distributors. Alaska Stock owner, Jeff Schultz, remarked, “We are delighted to have our Alaska images represented in China by Panorama Stock and feel they are positioned very well to market our unique set of images in the Chinese marketplace.“
Yasuko Kimura, the International Manager at IPS speaks very enthusiastically of the Alaska Stock imagery, citing in particular the relevance of the landscape material to their advertising and poster clients. A positive byproduct of greater distribution of Alaskan scenic and striking wildlife imagery within the Japanese market could also be an increase in Japanese tourism to Alaska.
For further information, please contact: Jeff Schultz, Owner www.AlaskaStock.com 800/487-4285 jeff@alaskastock.com
NEW IPHONE TRAVEL APP FEATURES ALASKA STOCK IMAGESAnchorage, AK
Alaska’s premier photo agency, Alaska Stock Images, has paired with Alaska HDTV, Alaska’s best network for video travel stories, to provide exclusive wallpaper photos for the first Alaska Travel iPhone app to include mobile video of Alaska destinations and Alaska travel discounts and promotions.
Alaska Stock owner, Jeff Schultz, remarked, “We are thrilled to have our Alaska images included in this new iPhone app and to provide a great selection of wallpapers for iPhone users.” The Alaska Travel iPhone App is designed to provide a visual sampling of what to see and where to go with short video episodes from regions around the state of Alaska. Attached to each of these video episodes are related wallpaper images of great Alaska scenery for users to decorate their iPhone or iPod touch and the ability to order photo prints at AlaskaStockPrints.com
Alaska Travel iPhone App includes:
Pricing & Availability: The iPhone app is available now for $2.99 here in the popular Apple iPhone App Store.
Additional information:
About Alaska HDTV: Alaska HDTV Productions, an Alaska company, is based in Anchorage, Alaska. Alaska HDTV is a network of High-Definition productions including television, podcasts and unique applications like our new iPhone app. www.alaskahdtv.com
For further information, please contact: Laurie Campbell, Director of Sales & Marketinglaurie@alaskastock.comwww.AlaskaStock.com 800/487-4285
GETTY IMAGES ANNOUNCES CONTINUATION OF GRANTS PROGRAMS IN 2010London, UK & Seattle, WA
Getty Images, Inc. today announced that its two major grant programs, Getty Images Grants for Editorial Photography and Getty Images Grants for Good, will continue in 2010. The popular programs, which have provided grants of more than $500,000 over the past five years, are to continue next year with the following changes:
Getty Images Grants for Editorial Photography was established in 2004 to enable emerging and established photojournalists to pursue projects of personal and editorial merit. Getty Images will again award five professional photojournalism grants of $20,000 each and four student grants of $5,000 each, annually. However, instead of awarding these Grants in two separate rounds during the year, all will be announced in September at Visa Pour l’Image, the international photojournalism festival held in Perpignan, France. The application deadline for the editorial grants is May 1, 2010.
“As we are all aware, these are trying times for our industry and many of the traditional resources that would have given financial support to photojournalists have all but dried up, as our colleagues in newspapers and magazines have seen their budgets greatly reduced,” said Aidan Sullivan, Vice President, Photo Assignments for Getty Images. “That makes awards like this even more crucial, as without the grants, the photojournalists’ important work may never have been seen. We at Getty Images are delighted that we are able to continue this support, which enables talented and dedicated photographers to complete their chosen projects.”
Getty Images Grants for Good was launched in 2009 to involve the creative and nonprofit communities. In the program’s first year, the participation of a creative agency was optional, but is now a requirement in the application process in 2010. This change ensures that all grant proposals will benefit from an agency’s strategic guidance as to how the imagery will be used by the nonprofit. Accordingly, the two grants of $15,000 each that are offered annually to cover photographers’ and agencies’ associated fees and costs will be equally shared as they collaborate to benefit the nonprofit that they choose to support. These grant recipients will be announced in June and celebrated at the Cannes Lions Advertising Festival in Cannes, France. The application deadline for Grants for Good is March 1, 2010.
“Our clients who are marketing and communications agencies do important work with nonprofit clients, often at reduced or donated fees,” said Andrew Saunders, Vice President, Creative Imagery for Getty Images. “The new structure of our Grants for Good recognizes the important role they play and encourages photographers and agencies to collaborate in developing imagery that delivers nonprofits’ messages effectively.”
For more information about both grant programs, including application details, please visit www.gettyimages.com/grants
PICTUREHOUSE MARKETING US BECOMES VISUAL CONNECTIONS
Picturehouse Marketing US, LLC is now trading as Visual Connections LLC. We believe that the new name and branding better reflects what we are about and gives us a strong platform to launch a number of new services in the New Year.
As of November 1, 2009, our license to use the Picturehouse name and logo expired and, at this time, neither Deborah Free nor Visual Connections is affiliated to picturehouse marketing ltd.
We don’t want to lose contact with you, so please take this opportunity to:
Please note that the Picturehouse name and logo is owned by, and will continue to be used by, picturehouse marketing ltd (www.picturehouse.org), a UK company directed by Michael Brown.
Visual Connections New York 2009 We would like to thank everyone who made our New York event last month a great success. Despite the marked downturn in the economy (evident from the large number of freelance picture buyers/researchers attending who were employed last year), there was a very positive buzz around the hall. The new, larger venue was a big hit and we are negotiating our return there next year.
We have published a review of the event, which includes a slideshow of photos of the day and a PDF of the show guide: www.visualconnections.com/newyork/previous.php
“The new venue was light and spacious; the seminars throughout the day meant that there was a steady flow of image buyers coming through the doors all day. [Visual Connections] New York remains the single most important show we attend in the US and it was great to see so many other exhibitors and attendees felt the same way!” David Price-Hughes, akg-images
Preparing for 2010 Owing to the uncertain state of the economy we have decided not to run an event in Chicago in 2010. We are focusing our energies instead on making next year’s New York event an even bigger draw to picture buyers, growing the audience for our online directory, and offering other cost-effective ways for you to communicate with picture buying professionals in the US and Canada. Our goals are to:
If you would like to be notified about our 2010 program, please register your details with us at
Please feel free to contact Deborah Free at or 585/768-7880 at any time with any questions or suggestions for how Visual Connections can help you market your business.
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