Copyright infringment and "Fair use" of digital images...

dancorder · May 26, 2007

His main point seems to be that copyright infringement is not legally theft, it is copyright infringement. I am not a lawyer but everything I've seen on the matter agrees on this point. That said, he is clearly using semantics as a smoke screen to try and direct attention away from what he did wrong. Which, by the looks of it, he knew was wrong in the first place.

I reckon that if you'd accused him of copyright infringement in the first place his emails would have been a lot shorter.

Exactly what 'fair use' is I'll leave to someone that actually knows what they're talking about.

I don't sell any photos so take this with a bucket of salt, but if I did I would always use watermarks. It is simply too easy for people to copy your photos once you put them on line.

bsvirginian · May 26, 2007

Hopefully someone (maybe smugmug) might jump in and clarify this situation. bsvirginian

Andy · May 26, 2007

bsvirginian wrote:

Hopefully someone (maybe smugmug) might jump in and clarify this situation. bsvirginian

Clarify which part of what?

claudermilk · May 26, 2007

So as I understand it he made a screen capture to circumvent the protections set up on the site, then intended to use the image in a show program. Sounds to me like you are in the right. I have no idea how a show program can possibly be "fair use." My understanding of fair use is news or editorial, which doesn't sound like a use of a show program to me. I think he's just throwing up any smokescreen he can since he got caught with his hand in the cookie jar and knows it. However, IANAL.

BTW, I love the demand of an apology email.

My first thought was "take a long walk on a short pier buddy"

StevenV · May 26, 2007

The only distinction I see - and I too am a photographer not a lawyer but have read quite a bit on the topic - is that "theft" is a violation of criminal law where "copyright infringement" is a violation of civil law. Both are illegal, as any lawyer should be able to tell him.

A friend of mine in the Federal Copyright office has told me that "Fair Use" is only a defense once you're in court... not something that can keep you out of court. He compares it to a "temporary insanity" plea in a criminal trial... something that the judge needs to evaluate and either allow or not. Be that completely accurate or not, I'm not sure if this person even read all of the Wikipedia entry about Fair Use, and I'm fairly certain he hasn't read the Copyright law section on the subject.

If his "see the attached photo" included your image, then "it's how the internet works" or not... he copied the image. Once from Smugmug to his system (with more work than a browser normally uses to display it and put it in its cache) and secondly from his system to the email message. Unless you gave permission to make that copy, he has already violated your copyright.

StevenV · May 26, 2007

a few more thoughts
Photographs can't "return to the public domain" as they were never there in the first place. The photographer (unless a work-for-hire contract is in place) owns both the image and the copyright.

What part of "education, criticism, reporting, teaching, scholarship, and research" does he think his use or potential use contituted?

There are documents that talk about Violation of Copyright only occuring if a work was copied for public use or for sale. I don't know how the law views that, but his having it on his own computer could be likened to purchasing a CD then "ripping" it to iTunes... an act that technically is a violation of section 106 but is something that, since it's (usually) for our own personal use is (usually) allowed.

All that said, you probably need to evaluate what damage is being done or could continue to be done to the musical ensamble, and if it's worthwhile to continue to try to educate/drive the point home. from what I understand, unless you've registered your images prior to the infraction with the copyright office most lawyers won't even touch a case (even if it's a pretty clear violation) anyway, and even then you'd likely not get much compensation. Is being right, and perhaps even taking it to court for $50 or even $150, worth the Chorus being disrupted and perhaps even breaking up with hard feelings all around? only you can answer that.

In any case, it's probably long past the time to get the discussion out of email and sit down to talk over a cold drink. email's the worst form of communication when trying to resolve a dispute.

/me bowing out of this thread for good now...

slapshot · May 26, 2007

StevenV wrote:

Photographs can't "return to the public domain" as they were never there in the first place. The photographer (unless a work-for-hire contract is in place) owns both the image and the copyright. .

copyrights do expire and the work does go into the public domain eventually

I believe if created before 1978 it is life of the author +70 years, after 1978, it expires after 120 years from creation or 95 years after publication, whichever is shorter...either way, you won't have to worry about it in your lifetime

this guy Aaron is a real a-hole...seems clear his intent was to infringe on the copyright...I would have an attorney send him a nice letter

RogersDA · May 26, 2007

Copyright infringement can be considered criminal theft in certain circumstances. Perhaps a quick read of the The No Electronic Theft "NET" Act signed into law by Clinton and codified as 18 U.S.C. 2319 which provides for criminal penalties.

Your friend's statement that images are not property is ridiculous - that's why we distinguish between real property and intellectual property (copyrights, patents, trade secrets, trademarks).

On another note the "defenses" raised by your friend are the same raised by every other accused infringer. It was fair use!!! Bah - almost always fails in situations like this.

bham · May 28, 2007

IMHO

My main suggestion to you would be to go through your site and fergies and watermark everything. The additional cost to get a pro account is worth the image protection hands down. Then he wouldn't have been able to attempt to use the photo in the first place. Sometimes temptation gets the best of people.

He didn't like being called a thief in front of his peers which is understandable. He did admit and apologize for violating the copyright of the photo and explained that he did a screenshot. If after that response you would have said, "Oh I wasn't aware that is what you did or that was possible. From now on I will ensure that we watermark all photos with our copyright so any screenshots are unusable to viewers for any possible copyright violations but allow for fair use (to view but if printed or displayed in any fashion, their ownership and copyright is evident to everyone that sees them)". That right there might have possibly ended the discussion. Hindsight is always 20/20 and at that point he seemed a little reasonable in his response. I myself would have been significantly angered by this, as I was when I saw one of my images stolen and printed. But you live and learn. Anyway at this point I don't think he is going to back down from his demand and I am not sure you should give way, but to put the issue to bed you may need to speak in person. If you could come to the agreement that maybe calling him a theif was a bit harsh, then maybe he would admit (he actually said "I didn't men to violate your copyrights") that he shouldn't have done the screenshot and can understand that you see a violation of your copyright as you losing potential sales, thus a loss of income, and to you that was taking money out of your pocket and thus a theft.

At this point if you want to diffuse the situation, I think his anger comes from the term "thief", if you might back off that a little he may calm down and come around some. For two sides to come to a compromise one side needs to take the first step. I am assuming he has no value in settling the dispute and you have potential future business with him and other Chorus members. I agree that you are right but how much business is it worth to say "I was right" to him and the other chorus members? If they don't realize you were right, then I doubt even having him admit to everybody he was wrong probably wouldn't change their minds.

bham · May 28, 2007

Also hey from a former resident of Lacey, WA. I get to visit every 3 or 4 years but haven't been back since 2000. I hope to get out to Washington within the next year. I shot a ton of images in 2000 all film and haven't had a chance to scan much of the film.

bham · May 28, 2007

Seymore wrote:

Hmmmmmmmm... Sent you a PM about this.

And thanks for your input. I know people don't like being called a thief... I rarely pull punches but I try to be somewhat PC and in this case, if I see a spotted horse, I call it a spotted horse. And that's all there is to it.

I also think "PC-ness" is drastically over-rated. What are we trying to teach people now with this? That they will get a slap on the hand if they cross the line? And where is that line drawn? Seem to be many grey areas when is comes to "being PC". Sad AFAIC. Draw the danm line and let people know where it is. If they want to cross it, they know there will be consequences.

The watermarks (WM) have been initiated and will remain. My site is not yet a PRO acct... but I now see the importance of this and will be upgrading as soon as I start migrating the images to MooreFoto. Should be August or so...

Oh, and please take a look at the Div II / Div IV images and let me know if you have any thoughts/suggestions for me to the effect of the WM's. Think 70% fade is prominent enough? I tried 65% but thought it was almost to prominent. I want them to be able to see the images and faces without to much distraction.

I do a basic text @year website but then rotate the text 45degrees and tile it and fade about 50%. I end up with mulitple lines of text diagonally across the image. Mainly so people don't screenshot then crop in on part of the image. For example

but if you did it like I do you would get this

Please excuse the fact that I copied an image to use as an example. I will be glad to delete them.

I wasn't suggesting that you go PC, just if holding your ground was costing you business that maybe trying to resolve the argument. But if that is not a major concern then stick to your guns.

Angelo · May 28, 2007

bham wrote:

For a copyright imprimatur to be valid it must contain: the word copyright or the encircled c symbol, the year of creation and the person (or legal entity) owning the copyright.

In the example above, is MooreFoto a legal entity such as a corporation or LLC? If not it can not "hold" copyright and should be replaced with the name of the photographer.

bham · May 28, 2007

Angelo, more of my point was about having a watermark like the second one makes it pretty obvious who the photo is and someone can't potential use a screenshot for anything unlike how they are currently watermarked, someone could do some cropping and have something they could use on a website, etc.

Angelo · May 28, 2007

bham wrote:

Angelo, more of my point was about having a watermark like the second one makes it pretty obvious who the photo is and someone can't potential use a screenshot for anything unlike how they are currently watermarked, someone could do some cropping and have something they could use on a website, etc.

Yep, I agree.

But it's important people do it correctly as well.

Angelo · May 28, 2007

Seymore wrote:

As a Sole-Proprietor registered with the State and paying taxes I think you're incorrect about who can hold a CR. Please point me to a link that proves your point as I'm unable to find any specific information to this regard. My understanding is that even Grandma has a CR every time she pushes the shutter button.

You're confusing two points. You, as does grandma, hold copyright to any image you create. I never said otherwise.

YOU own copyright. YOU! I can't point to anything more than all the information already covered in copyright discussions. Read the info on the capyright pages; you'll see reference is always made to the artist who created the original piece of art.

In your case Seymore is THE artist. MooreFoto is not a person (or legal entity) so can not be an artist.

Individuals are legal entities. Corporations are legal entities.

DBA's, Partnerships, et al are not considered legal entities with rights to own and hold property, real or intellectual. Try buying a building under the name MooreFoto (DBA), see how far you get.

MooreFoto, "Inc." could buy a building and could hold copyright.

so back to my original point... if you're not incorporated, you are doing yourself a disservice by marking copyright as you have, leaving yourself vulnerable.

I'm trying to offer you advice, not start an argument.

Seefutlung · May 28, 2007

Interesting thread. My call, not that anybody cares ... is that Aaron is a weasel with no backbone or huevos to admit he did something wrong. But then again I'm only seeing this matter from one side ...

Not only did Aaron take/use an image not belonging, which was clearly for sale ... but he insulted you by requesting you find a photo hosting site which would make it easier for him to take/use images which belong to others without consent or payment.

Slimeball.

Then he hides, like a cockroach, behind "fair use" and tries to dilute the situation by saying has has hundreds of images ... (all probably acquired under the "Fair Use" clause.)

As to calling him a thief ... I once call an attorney an a*****e in court. We rode down the elevator together and he threatened to sue me ala slander ... I told him go ahead, I would love to see you defend in court that you are not an a*****e. The threat ended there.

Gary

PS- It's a shame that people without honor are allowed to associate with and just make life miserable for those that act with honor.
G

bham · May 28, 2007

Seymore wrote:

No worries about copying that image. You using this image, as an example, I would call a good example of "fair use". Also, I would like to know your process in rendering the CR as you did. Please share. Did you put this on before UL'ing the image or is this a SM ability you used?

Also, as you can see, I get the white back ground on mine. Even if I save as a PNG. (using PSP9... not a CS man.) So, any thoughts for me to this effect?

And your point about tiling @ a 45 degree angle is well noted. I see the tiling aspect in setting up the CR on SM. But please talk to me more about your process...

In photoshop, new file, created layer clear, then changed background layer to regular layer and made it black. Did the type in white, then Edit, transform rotate. Did -45 degrees. Saved as a psd (so if you want to come back and edit the text without having to start from scratch) , then delete the black layer and saved as a .png and interlace none.

Upload and then create watermark tile, whatever % fade.

One important note. I usually create multiple copies of it with the image size from 100 x 100 pixels to 300 x 300 pixels. The smaller ones repeat more once tiled. I upload and test a few. I can email you the ones I created if you like. PM me your email address.

bham · May 28, 2007

Angelo wrote:

But it's important people do it correctly as well.

I agree and I probably need to change my watermrks as well.

bham · May 28, 2007

For people like him (the thief) you could always do something like this

Halliday · May 29, 2007

Anyone that quotes a wiki for legal issues is a nut. Don't deal with him.

StevenV · May 29, 2007

slapshot wrote:

copyrights do expire and the work does go into the public domain eventually

Understood. When I said they can't return to the public domain since they weren't there to begin with, it was with emphesis on the word "return."

I can "go to" Hawaii, but I can't can't "return" there since I've not yet been to the islands.

The photos have likewise never been in the public domain, so they can't "return" to it... though at some point in the future their copyright may expire or they may otherwise enter the public domain.

Semantics, I know.

docwalker · May 29, 2007

Seymore wrote:

Yep... had me wondering also. And knowing that Wiki's can be modded by "people", some who are NOT lawyers, makes you question their validity when it comes to legal issues.

Amen.... I was thinking the exact same thing while reading the thread. If he depends on wiki for his legal advice

.

mercphoto · May 29, 2007

docwalker wrote:

Amen.... I was thinking the exact same thing while reading the thread. If he depends on wiki for his legal advice .

This thread reminds me to water-mark some new galleries of mine. A lesson I learned two racing seasons ago and have apparantly forgotten. It amazes me how little people will pay for someone else's work and time. $40 too much to pay for a photo to use in a program? $20 was too much still? This thread was a depressing read....

mercphoto · May 30, 2007

Seymore wrote:

For those still watching this thread... Please let me know if you think this version of watermark is acceptable protection.

Most likely, yes.

Angelo · May 30, 2007

Seymore wrote:

For those still watching this thread... Please let me know if you think this version of watermark is acceptable protection.
http://fergie.smugmug.com/gallery/2723715
http://fergie.smugmug.com/gallery/2723718

Thanks,

http://www.copyright.gov/circs/circ03.html
Form of Notice

The form of the copyright notice used for “visually perceptible” copies—that is, those that can be seen or read, either directly (such as books) or with the aid of a machine (such as films)—is different from the form used for phonorecords of sound recordings (such as compact disks or cassettes).
Visually Perceptible Copies

The notice for visually perceptible copies should contain three elements. They should appear together or in close proximity on the copies. The elements are:

The year of first publication. If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology.

The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles; and
The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.*
Example: © 2004 Jane Doe

*The United States is a member of the Universal Copyright Convention (the UCC), which came into force on September 16, 1955. To guarantee protection for a copyrighted work in all UCC member countries, the notice must consist of the symbol © (the word “Copyright” or the abbreviation are not acceptable), the year of first publication, and the name of the copyright proprietor. Example: © 2004 John Doe. For information about international copyright relationships, request Circular 38a, International Copyright Relations of the United States.
The “C in a circle” notice is used only on “visually perceptible” copies. Certain kinds of works, for example, musical, dramatic, and literary works, may be fixed not in “copies” but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are “phonorecords” and not “copies,” the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.

bham · May 30, 2007

Seymore wrote:

For those still watching this thread... Please let me know if you think this version of watermark is acceptable protection.
http://fergie.smugmug.com/gallery/2723715
http://fergie.smugmug.com/gallery/2723718

Thanks,

Yep, they came out good.

Finally got them to work I see.

k2butter · May 30, 2007

Halliday wrote:

Anyone that quotes a wiki for legal issues is a nut. Don't deal with him.

This was the very first thing I thought when I saw the first link he posted! I actually laughed that he gave a link to wiki

dogwood · May 30, 2007

My contribution to this thread (which is quite interesting-- the thread, not my contribution

)

I'll point out that the warnings before DVD movies now use some variation on the word "theft"-- as in "you wouldn't steal a car... etc, etc... so don't steal this movie by illegally copying it."

Obviously, I'm paraphrasing, but you get the idea. The music and film industry calls it theft to make illegal copies. And I'm guessing they have much, much, much better lawyers than me!

Seymore · May 30, 2007

Thanks for your input K2B... It does make one wonder what our 20-something kids are learning (life lessons) and their interpretation of reality. BTW, I like your daily self port gallery. Keep it going...

I didn't know that Pete. Thanks. If you do come across the actual wording you remember, please share it. In very fine print, on my Season One DVD set of 24, it reads "Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to 5 years in prison and/or a $250,000 fine".

Hmmmmmmm... maybe I should call the FBI about this issue?

I wonder if he'd listen to them?

dogwood · May 31, 2007

Seymore wrote:

I didn't know that Pete. Thanks. If you do come across the actual wording you remember, please share it. In very fine print, on my Season One DVD set of 24, it reads "Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to 5 years in prison and/or a $250,000 fine".

Hmmmmmmm... maybe I should call the FBI about this issue?
I wonder if he'd listen to them?

What I'm talking about are the new commercials that run on new releases when you first pop them in (and you can't skip over them). I know there's the FBI warning too-- but now most movies have actual commercials that call illegal copying of the movies "theft" and compare it to stealing a car.

Copyright infringment and "Fair use" of digital images...

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