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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Trademark and Copyright

Date & Time
  • event Date

    Tuesday, December 13, 2022

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE webinar will guide IP counsel on licensing and protecting digital content. The panel will discuss the Eleventh Circuit’s recent decision that addressed copyright metadata. The panel will examine the existing protection under 17 USC 1202, the Eleventh Circuit’s heightened standard and its implications for photographers and other digital creators. The panel will offer best practices for licensing creative works and protecting IP rights in the works.

Faculty

Scott J. Sholder
Partner, Co-Chair Litigation Group
Cowan DeBaets Abrahams & Sheppard, LLP

Mr. Sholder focuses his practice on litigation, counseling, and dispute resolution in connection with entertainment, media, art, and IP matters. He represents and advises clients across various industries in copyright, trademark, trade secrets, right-of-publicity, unfair competition, domain name, and commercial and business disputes, as well as defamation defense. Mr. Sholder has appeared in federal and state courts around the country as well as administrative and arbitral tribunals and has handled cases from pre-suit negotiations through trial, post-trial procedures, and appeals. He is a frequent writer and speaker on issues related to copyright and trademark in the entertainment and digital media space, with a recent focus on generative AI.

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Mark H. Wittow
Partner
K&L Gates, LLP

Mr. Wittow’s work focuses on complex intellectual property, technology and data related transactions and counseling, including the acquisition, development, marketing, licensing and distribution of mobile applications and computing devices, cloud-based software and other types of computing and data management services, other types of technologies, music, and other media content. He also advises clients on electronic commerce, data privacy and data protection issues, technology litigation settlements, and patent licensing and dispositions. Mr. Wittow provides advice to clients of all sizes on technology and content development, protection and licensing in a wide variety of industries. He is a frequent presenter and author on cloud computing, copyright and trade secret law developments and technology and patent licensing and transaction issues and is an active member of the CLE Board of the intellectual property law section of the ABA. Mr. Wittow is also an adjunct professor at the University of Washington and Seattle University law schools.

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Description

In a recent decision, the Eleventh Circuit raised the bar for photographers and other digital creators who license their creative works. On the issue of first impression, the court interpreted DMCA Section 1202(b), which provides that a person may not "intentionally remove or alter any copyright management information" or distribute a work "knowing that the copyright management information has been removed or altered" without the copyright owner's permission. The court held that Section 1202(b) includes a double scienter requirement. A person must know or have "reasonable grounds to know that [such actions] will induce, enable, facilitate, or conceal" copyright infringement.

The photographer in question embedded copyright management information (CMI) into the metadata of his photos. The court joined two other circuit courts and held liability is triggered when the copyright owner demonstrates the alleged infringer knew or should have known its removal or changing the CMI would likely result in infringement. This heightened standard makes it harder for copyright owners to succeed in DMCA litigation.

CMI has become a standard tool that artists and other creators use to enforce their IP rights. The decision has implications for digital artists licensing their work. Digital creators and their counsel should rethink the language of the licensing agreement to ensure the art is protected.

Listen as our panel examines the recent Eleventh Circuit decision addressing copyright metadata. The panel will discuss the existing protection for copyright metadata in 17 USC 1202, the heightened standard set by the Eleventh Circuit and its implications for photographers and other digital creators. The panel will offer best practices for licensing creative works and protecting IP rights in the works.

Outline

  1. The statutory context (17 USC sec. 1202)
  2. Victor Elias Photography L.L.C. v. Ice Portal Inc. (11th Cir. Aug. 12, 2022)
  3. Other recent court decisions addressing 17 USC 1202 and copyright metadata
  4. Heightened standard and implications for artists
  5. Best practices for copyright protection and licensing

Benefits

The panel will review these and other key issues:

  • How does the Eleventh Circuit's recent decision raise the bar for copyright owners?
  • What are the implications of the heightened standard for photographers and other digital artists licensing their work?
  • What best practices should counsel for photographers and digital artists employ when drafting licensing agreements?