DMLA Legal Update: Copyright Office News & New York State Right of Publicity Bill

2015 has already been a busy year for the U.S. Copyright Office. They have been publishing policy reports, issuing Notices of Inquiry (“NOI”), conducting various studies, and participating in congressional hearings about copyright law reform.The Copyright Office recently released a 234-page report entitled “Orphan Works and Mass Digitization,” followed by an NOI seeking comments about a potential extended collective licensing pilot program to facilitate the digitization of collections of books, photographs, and other materials for nonprofit education and research purposes. The Office is also in the process of conducting a study about the extent to which the Copyright Act’s bundle of exclusive rights satisfies the requirement under the WIPO treaties that member countries recognize copyright holders’ “making available” and “communication to the public” rights.In addition to these activities there is currently a discussion draft of proposed legislation pertaining to the Copyright Office circulating in the House of Representatives, and the Office has issued an NOI specifically concerning the legal challenges facing visual artists and the licensing industry.Proposed Legislation for Copyright Office ReformEarlier this month House representatives Judy Chu and Tom Marino released a discussion draft of the Copyright Office for the Digital Economy Act (“CODE” Act). This Act comes after more than a year of Congressional hearings on the status of U.S. copyright law. It would establish the Copyright Office as an independent agency with its director appointed by the President. It would further bring the Copyright Office into the 21^st Century vis-à-vis reforms to the registration process and the deposit requirement. The purpose of these reforms would be to facilitate a streamlined registration process, as well as establish a meaningful public record of copyrights. You can read the final version of the discussion draft here, and a section-by-section overview of the bill’s key points here.DMLA supports this bill and looks forward to the continued discussions about the proposals.Copyright Office Visual Works Notice of InquiryIn April the Copyright Office issued an NOI calling for comments about the challenges to monetizing and licensing, registering, and enforcing copyrights in visual works such as photographs, illustrations and graphic artworks. This NOI is a critical opportunity for DMLA and our members to voice the concerns of content creators and the licensing industry over the current state of copyright law in the U.S. DMLA is drafting a response that will focus on the legal and practical barriers faced by copyright holders and licensors and reiterate support for the proposed Copyright Small Claims Court, address issues with notice and take-downs and the difficulty in the registration system.The response to this NOI is due July 23, 2015. DMLA is working in collaboration with other visual artists associations in preparing a response to this NOI. Individual members are encouraged to provide a response as well. For more information visit the Copyright Office webpage dedicated to this NOI.New York Right of Publicity BillEarly this month legislation that would amend New York’s right of publicity statute to retroactively extend rights to deceased personalities was introduced as companion bills in the State Assembly and Senate. Similar legislation was introduced several years ago by the Strasberg Estate, which owns Marilyn Monroe’s publicity rights. That bill was defeated with the help of a coalition of rights holders associations who principally voiced concern over the lack of an expressive works exemption. The language of the bill was vague and would encourage litigation and interfere with image licensing. The DMLA, MPAA, New York State Broadcasters Association, New York News Publishers Association, and several others coordinated a letter writing campaign to voice the concerns of rights holders in the film, publishing, broadcasting, and licensing industries. We are happy to report that the bills were not put to vote before the end of the legislative session on Friday, June 26^th. This does not necessarily mean the fight is over, however, and it is likely that similar legislation will come up during future legislative sessions. We will keep an eye on any new efforts to introduce a retroactive right of publicity bill.