One photographer, one video and copyright problems regarding embedded content from Instagram

The well-known photographer Paul Nicklen won a copyright lawsuit in the US.

The case at hand concerns a dramatic video clip of starving polar bears created by the photographer and uploaded on Facebook and Instagram in 2017.

Without any permission from Paul Nicklen or National Geographic, Sinclair Broadcasting Group embedded this video through a link from Instagram. What’s more they take a screenshot from the video for its cover image.

A lawsuit followed. According to the Sinclair Broadcasting Group there was no infringement because they didn’t used or displayed the video on they website. They just used an embedded link from Instagram, that is to say the video was stored on another server.

According to the law in the US, most precisely the so-called “server rule” online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work.

The court in New York disagreed with these arguments. The court stressed that the law is technology-neutral and is “concerned not with how a work is shown, but that a work is shown.”

The main problem from that point of view was the fact that although the video was embedded, the screenshot was taken separately and uploaded on the Sinclair Broadcasting Group website, which allowed their visitors to see one part of the video without playing it based on the link to Instagram. This constitutes a copyright infringement because displaying even a part of one work can be done based on permission from the copyright holders.

Other social media such as YouTube and Vimeo have already included an option where creators can choose whether or not their uploaded content to be embedded. For the time being, Facebook and Instagram haven’t done that which can trigger new lawsuits for copyright infringements in the future.

Source: PetaPixel.

Breaking news – Images, schools, copyright and a hot European court decision

photo-1489486501123-5c1af10d0be6The European court has issued an important decision in case C‑161/17 Land Nordrhein-Westfalen срещу Dirk Renckhoff, which concerns the following:

Mr Renckhoff, the applicant who brought the proceedings before the Landgericht Hamburg (Hamburg Regional Court, Germany), is a photographer. Stadt Waltrop (City of Waltrop, Germany) which was originally the defendant at first instance, but which is no longer a party to the dispute in the main proceedings, has responsibility for the Gesamtschule Waltrop (Waltrop secondary school, ‘the school’). The Land of Nord Rhine-Westphalia, also a defendant at first instance, has responsibility for the educational supervision of the school and is the employer of the teaching staff working there.

From 25 March 2009, it was possible to access on the school website a presentation written by one of the school’s pupils as part of a language workshop it organised which included, by way of illustration, a photograph taken by Mr Renckhoff (‘the photographer’) that that pupil had downloaded from an online travel portal (‘the online travel portal’). The photograph was posted on the online travel portal without any restrictive measures preventing it from being downloaded. Below the photograph the pupil included a reference to that online portal.

Mr Renckhoff claims that he gave a right of use exclusively to the operators of the online travel portal and that the posting of the photograph on the school website infringes his copyright. He requested the court with jurisdiction at first instance to prohibit the Land of North Rhine-Westphalia, on pain of a financial penalty, from reproducing/having reproduced and/or making available/having made available to the public the photo and, in the alternative, from allowing school students to reproduce the photo for purposes of posting it on the internet. He also claimed payment of damages from the Land of North Rhine-Westphalia of EUR 400.

Since Mr Renckhoff’s action was upheld in part, the Land of North Rhine- Westphalia was ordered to remove the photograph from the school website and to pay EUR 300 plus interest.

Both parties appealed against that judgment before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), which held, inter alia, that the photograph was protected by copyright and that posting it on the school website was an infringement of the reproduction right and the right to make available to the public held by Mr Renckhoff. That court found that the fact that the photograph was already accessible to the public without restriction on the internet before the acts at issue was irrelevant, since the reproduction of the photograph on the server and the making available to the public on the school website which followed led to a ‘disconnection’ with the initial publication on the online travel portal.

Hearing an appeal on point of law, the referring court considers that the outcome of that appeal depends on the interpretation of Article 3(1) of Directive 2001/29. In particular, that court has doubts as to whether the requirement, laid down in the case-law, according to which the communication to the public concerned must have been made to a ‘new’ public has been satisfied.

In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay proceedings and refer the following question to the Court for a preliminary ruling:

‘Does the inclusion of a work — which is freely accessible to all internet users on a third-party website with the consent of the copyright holder — on a person’s own publicly accessible website constitute a making available of that work to the public within the meaning of Article 3(1) of [Directive 2001/29] if the work is first copied onto a server and is uploaded from there to that person’s own website?’

The Court’s decision:

The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website.

Conclusions: This decision gives clarification on whether if you use a publicly available work from one website to another, this will constitute a copyright infringement. According to the court obviously, this is the case.

Image: Javier Quesada on Unsplash.

Designs, novelty and a General Court decision

The General Court of the EU ruled in Case T‑651/16, Crocs, Inc. v EUIPO, Gifi Diffusion. This case concerns a registered EU design 257001-0001 by Western Brands LLC on 22.11.2004 with claimed priority based on a US design registered on 28.05.2004.

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This EU design after that was transferred to Crocs. In 2013, the French-based company Gifi Diffusion filed an application for a declaration of invalidity of the design based on a lack of novelty.

As it is known, one EU design can receive protection only in the case that it is novel and has individual character.

EUIPO took a decision for invalidation of the design, which decision was confirmed by the General Court.

The reason for this was that information for the design was available in 2003 through the Corcs’ website, it was displayed on an exhibition in Florida and was available for sale.

Corcs argued that such information wasn’t accessible in EU at that time, but the Court dismissed it because there was no evidence that the Corcs’website wasn’t accessible in EU.

This case is indicative of the need for a good intellectual property planning. In the case of industrial designs and inventions, this is crucial because if these IP assets are not new, for example, they cannot be protected. Due to this, all information regarding them has to be managed very carefully in order to fulfill the respective legal requirements.

Патентното ведомство на Великобритания с нов сайт – The UK Patent Office with a new web site

Патентното ведомство на Великобритания оповести цялостното обновяване на своя интернет сайт.
Повече информация може да откриете тук.


English version

The UK Intellectual Property Office launched its brand new website. More information can be found here.

OHIM с нов сайт и нова система за заявяване на европейски марки и дизайни – OHIM with a new website and a new system for filling of European trade marks and designs

OHIM е с обновен сайт считано от вчера. Сайтът е с изцяло нова архитектура и визия. Важна забележка относно тази променя е и подменената система за подаване на заявки за европейски марки и дизайни. Новата система е значително опростена и лесна за работа. Тя обаче вече изисква предварителна регистрация с акаунт за да може да бъде използвана.
Нова е и търсещата система за европейски търговски марки.
Цялостно новият сайт на ОХИМ предлага редица нови възможности, както за обикновени потребители, така и за професионалисти в областта.
Повече информация може да откриете тук.
English version
OHIM has renewed its website since yesterday. The site has a completely new architecture and vision. An important note about this change is the replacement system for the filling European trademarks and designs. The new system is much simpler and user friendly. However, it now requires pre-registration to be used.
There is also a new system for searching for European marks and designs.
The complete new
OHIM‘s website offers many new opportunities for ordinary users and professionals in the field of industrial property.
More information can be found here.

OHIM ще има нов сайт – OHIM will have a new website

OHIM потвърди официално обновяването на своята интернет страница, както и на системата за електронно заявяване на търговски марки и промишлени дизайни. Новият сайт се очаква да стане реалност на 02.12.2013.
Повече информация за очакваните новости може да откриете тук.


English version

OHIM officially has confirmed the renewal of its website and the e-filing system for trademarks and industrial designs. The new site is expected to become a reality on 12/02/2013. 
More information about the expected news can be found here.

WIPO обнови своят сайт – WIPO update its web site

WIPO обнови своят сайт http://www.wipo.int, който вече е с нова визия и подредба. Повече информация може да откриете тук.
English version

WIPO has updated its website http://www.wipo.int, which already has a new vision and layout. More information can be found here.