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Monday, 17 May 2010

Comments

Do unto others as you would have done unto yourself, and all will be well.

Excellent final point, Mike. Opportunities to educate are worth taking. I suspect most people who don't understand what's going on with intellectual property don't want to do the wrong thing. They just haven't thought it through.

(Of course, one would hope that professional organizations would not be ignorant of basic copyright law, or would take the first opportunity to cure themselves of their ignorance!)

For those who just don't care, well, they'll always be there I guess. Too bad -- if more people paid attention to the golden rule, good form and fair play, the law would be needed less...

Wouldn't the whole mess have been avoided if the original picture, when published, carried in the picture area:
1. a copyright notice
2.'photo by' credit
and, as a grudging acknowledgement to our beloved modern age,
3. a URL for contact purposes?

That's some good Midwestern common sense right there.

(Coastally yours, Ben.)

Better still, the less egocentric version:

Do unto others as they would have you do unto them.

pax / Ctein

Mike, Mike, Mike. (sigh)

This is very troubling: "If nobody complains, then you don't have a problem."

Just because you steal a candy bar from the supermarket and no one complains doesn't make it right. It's still theft. (of the petit variety, but theft nonetheless).

As to your using images in your blog, I'm not a lawyer, but I believe that would fall under fair use. You're using the photo(s) to illustrate a point or comment on a topic, product, whatever.

Still, your points about giving credit are spot on. If you're not doing anything underhanded with someone's photo, they most likely will welcome the free publicity.

Dear Keith,

That's presuming that NO2 acted out of innocent mistake and that they're not idiots. Given the comments they made in response to the situation, which Mike did not exaggerate, either they're outright thieves or they're the stupidest people who've ever gone into the news business. In which case, such notices in the picture wouldn't have made any difference. They'd just have invented some other blatantly false excuse ("we had permission from the photographer," "we thought that putting the contact info in the photo meant they wanted people to copy it," etc.)

Copyright is the right to control who copies your work. NO1 has an ironclad and clear right to prevent NO2 from using their photo. A right that NO2 clearly didn't believe in.

pax / Ctein

Dean,
No, because if you've stolen a candy bar, you've stolen a candy bar. If you use an image, it might not be stealing: that hasn't been established, and, can't be established, absolutely, short of a court trial. To a very real extent, whether it is theft at all is in the perception of the rights holder. You point out yourself that many usages are clearly Fair Use, and thus not theft; but also, If the RH feels you have done him a favor by publishing his picture, or is for any other reason pleased to have his image used, then what you have done is also not theft. (Most people whose images I publish go out of their way to thank me for it, even in cases where I haven't secured their permission in advance.)

The corollary is that if an RH is upset and asks you to take their image down, you're almost always better off doing so--even if you feel the usage is Fair Use, or even if you feel you've done the RH a favor by providing free publicity or some other advantage.

There was one case in the early days of this site when I published a controversial image and I thought my use of it was going to be challenged. In that case I was prepared to leave the image up under the tenets of Fair Use, which I felt clearly applied. Fortunately, the rights holder did not demand I take the image down, and, in fact, I was surreptitiously forwarded some private internal emails by a sympathetic individual inside the organization that owned the picture which made it clear that the rights holder understood my use of the picture was Fair Use. But if it had come down to it, I was prepared to defy the wishes of the rights holder.

That was a very unusual situation. Ultimately, as a practical matter, and in almost all cases, the determination is up to the owner of the image.

Mike

Keith -- possibly. But the onus really is on each publishing organization to verify they have clear right to use any image. Making assumptions is a way to get into hot water. :) It's not that difficult to look at embedded metadata, which apparently was present with this image and ultimately contributed to resolving the conflict over who actually took / owned the image.

Even under proposed orphan works legislation that has a lot of people bothered, prospective publishers would be held to a higher standard of effort to locate the rights holder than just looking for visual or embedded metadata contact info before they conclude a work is orphaned.

There is one clear benefit to having a visual copyright notice on the image. If the notice gets removed by an unauthorized user, it can qualify the copyright holder for additional statutory damages under the DMCA. These damages may exceed the actual damages (license value) in many cases. They're likely a bit punitive to recognize the fact that deliberate cropping out of a copyright notice probably means the unauthorized user knew full well what they were doing.

Still, forcing every image producer / publisher to visually clutter every image with possibly several lines of information (aside from a basic copyright watermark) doesn't seem like the direction we want to go, to prevent unprofessional, unethical or illegal behavior from other publishers or users. I do agree that all this info should be present in embedded metadata, however that means it can be stripped out more easily by an infringer...

i think you should acknowledge that you are in a privileged situation when you write "see if you can do them a favor.... Ninety-nine times out of 100, the best way to do this is just to give a link."

yes, most photographers, bloggers and even major news sites may feel that a link from TOP would benefit them -- there are very tangible recognition and site traffic factors when an "important site" uses your material; but when the same material is borrowed by someobscureblog.com, the equation shifts; there will be less perceived benefit and more tendency for the RH to feel violated, regardless of how credit is given

leave it to the BBC to cover this very issue today:

http://news.bbc.co.uk/2/hi/business/10118823.stm

sporobolus,
I see your point, but I think what I'm saying is that you just have to judge what will work best for you in each individual situation. If a link is no favor for them, then perhaps you'll just have to ask permission first. You just have to do whatever you think will make the rights holder comfortable.

Don't think it's always a piece of cake for me just because I have a bigger blog. Many's the time I've done a Google search for an illustration and found one that would be perfect, only to have it say "Photo property of ShutterBob, may not be used without permission" or something like that. So I try to ask permission, but often as not the only means of communication is some proprietary channel within the sharing site, and of course ShutterBob doesn't actually visit the sharing site very often, so he doesn't get the message. Ergo, I can't use the picture.

In one case I asked someone for permission to use an image and didn't get a reply...until EIGHT MONTHS later! He had just gotten the message. Of course by then it was far too late. He turned out to be a TOP reader and was very disappointed I hadn't used his picture. But the point is, if the owner of the picture is making his or her wishes clear, I'll always respect that.

Mike

Dear Sporobolus,

I concur with Mike; you have to figure out how the rules are going to work for you, and everyone's going to do it a bit differently. For example, I interpret the rules more strictly than Mike does. If it's a genuine fair use situation (e.g., a critical essay or commentary) I'm neither going to ask permission in advance nor will I remove the photograph if requested to. Conversely, though, in a situation that is not fair use, I will never, ever use a photograph without permission. When it comes to copyright, I don't feel the adage "it's easier to ask forgiveness than permission" respects either the spirit or the letter of the law.

Personally, I would be rather ticked off to find someone had used one of my photographs without my permission, no matter how favorably, if it wasn't a fair use situation. As far as I'm concerned they don't get to do that, and it is not supposed to be my burden to track down infringers and decide whether or not I approve of the infringement. They are simply not supposed to do it in the first place. That's just me. My mileage differs from Mike's; yours will probably differ from both of ours. You have to figure out what works for you, but what's important is understanding the fundamental principles, which clearly NO2 did not.


~ pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
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-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
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"When it comes to copyright, I don't feel the adage 'it's easier to ask forgiveness than permission' respects either the spirit or the letter of the law. Personally, I would be rather ticked off to find someone had used one of my photographs without my permission, no matter how favorably, if it wasn't a fair use situation"

...But don't forget, you're an artist. Your attitude is perfectly appropriate for artistic photographs. So that would factor into any decision I would make regarding whether to use your picture.

Many photographs aren't art; the last one such I used was an Ebay sale photo, one of a dozen or so the RH had posted on his sale page. I helped him sell his item (I really did, because a TOP reader bought it as a result of my post). It's true, I didn't bother asking permission. But I doubt the RH is unhappy with me. I apply a higher standard for a photograph that is presented in an artistic, expressive context.

Maybe not the letter of the law, but I think that observes the spirit of the law....

Mike

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