Category: copyright

Sharpen your pencils peeps here’s an excellent multiple choice copyright test I found on the Art + Law + Blog via Photo Attorney.

1. Copyright protection comes from placing a “©” on your work.
a. Absolutely true. Why else would that little c be in the circle?
b. Sometimes true, depending on things I’m not really sure about.
c. Not true.

2. Copyright protection requires registering your work with the Copyright Office in Washington, D.C.
a. This is a trick question. It’s true that copyright protection requires registering your work, but you don’t have to do it at the Washington office. You can do it at one of the many affiliated offices through-out the country. In fact, I think I saw one just the other day.
b. Not true. I created it, it’s mine, and there’s nothing more I have to do.
c. Of course. Why else would your tax dollars go to support a federal copyright office?

3. Placing the work in an envelope and mailing it to yourself has the same effect as registering it with the Copyright Office.
a. No. If it did, why waste the ink to print this article?
b. Of course it does. If it didn’t, why waste the ink to print this article?
c. Yes. And if enough authors send in their tasteless dreck, the postal service may not have to raise rates again anytime soon.

4. If it’s on the Web, it’s free for the taking.
a. No. Stealing is stealing.
b. Sure, why not?
c. This is true, but only if I use a 28KB modem, and the copyright expires before I finish downloading it.

5. Copying just a little bit does not constitute copyright infringement.
a. Maybe.
b. Maybe.
c. Maybe.

6. Company names and slogans, such as Microsoft, Coppertone, “Just Do It,” and “Things Go Better With Coke” are protectable under the copyright law.
a. Sure, they all originated from companies that are crawling with copyright lawyers.
b. No, or it wouldn’t be a copyright myth.
c. What things go better with Coke?

7. Once I have copyright protection, it lasts forever.
a. Nothing lasts forever.
b. Define “forever.”
c. Yes, this much I know.

8. When I acquire a copyrighted work, I also acquire the copyright to it.
a. How else would museum shops stay in business?
b. Uh, isn’t this why Napster got in trouble?
c. This better be true; otherwise, I just severely overpaid for “A Bug’s Life.”

9. Sure, you can copyright a book, a movie, or a song, but there is no way you can copyright a house.
a. This must be true. Just drive through Orange County.
b. Not so fast. I’m from Orange County, and the houses are not all alike; those shades of beige are distinctly different.
c. This is false; you can copyright a building, but only if it was built less than a dozen years ago.

10. Once a copyrighted work goes into the public domain, I can reproduce it and claim the copyright for myself.
a. Uh — no.
b. Sure, but you need permission from the former owner first.
c. Yes, as long as the copyright had been held by the federal government.

11. The concept of “moral rights” does not exist under U.S. copyright law.
a. Oh, please. Is this going to get preachy?
b. No. Like snobby maître d’s, stinky cheese, and sautéed garden invertebrates, it’s a French thing.
c. Well, maybe it’s not called “moral rights,” but the same basic idea exists.

BONUS: Is this excerpt a violation of copyright law?
a. APE, you will be hearing from an attorney shortly.
b. No man, links are like internet money.
c. Yes this is a little too much but nobody who’s reading this and is the least bit interested in copyright will not hit that link to read the original material so I give you a pass unless they ask you to take it down in which case you better not get all offended and start spewing about how links make the internets run and go on a jag on your blog claiming you will never ever ever give them any of your valuable link juice…

Answers are (here).

“Manuel Garcia — has now moved to intervene in the action, claiming that he — and not the Associated Press — is the owner of the copyright in the photograph.” (here)

Link to the filing (here).

Really a fascinating and important case to watch.

fairey_ap_090709GarciaInterventionMemoLaw –

Thanks for the tip Ellis.

Yes, really. In a story entitled “Flickr as an Interior Decorating Tool” (here) Sonia Zjawinski says the following:

Through these bouts of procrastination, I’ve often found stunning photographs, so much so I’ve gotten in the habit of printing faves out and framing them. If a user offers the original resolution for download, don’t let that go to waste. Download, print, frame!

And if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.

You might want to check with Keller on that one.

I don’t see a correction anywhere even after getting completely shelled in the comments. Now acknowledges a ” controversy surrounding the use and reuse of other people’s content on the Internet.” What an idiot x2.

Thanks for the tip Lane.

Filmmaker and journalist Edward Nachtrieb says Fairey Ripped his photo first (here).

thx Joerg.

Freelens, the largest group of photo journalists in Germany issued a notice a few weeks back that Jahreszeiten Publishing was forcing all photographers to sign a contract without the possibility for negotiation that would grant them ownership rights to all photographs taken in the course of an assignment.

“Should photographers sign the agreement, they will be left with absolutely nothing – not even the possibility of marketing their works later in the form of archive photographs. This is because the contractual clauses are intended to secure free-of-charge use in all print and online objects of the publishing house. This would make untold publications possible for many years, in return for only a modest work fee that merely covers single, non-recurring use.”

You can read more on their blog (here).

Or better yet sign the petition (here).

Oh, the irony and hypocrisy… It appears that celebrity gossip blogger Mario Lavandeira (aka Perez Hilton) who rose to fame for his mean spirited commentary about celebrities and his blatant disregard for the copyright of the images he posted on his site has come running and crying to the copyright police. He issued a takedown notice to YouTube over a video with footage of him someone lifted off his blog (that looks to actually be fair use).

Copyrights & Campaigns blog has the story:

Perez Hilton né Mario Lavandeira may be the unlikeliest copyright enforcer on earth. The blogger rose to fame by posting photos of celebrities — without permission from the copyright owners — and defending himself from the inevitable lawsuits by claiming that his crude scribbling of penises, cocaine, and semen on the subjects’ faces rendered his conduct fair use.

Well, the times they are a changing. Lavandeira, who has morphed into a gay-rights activist, has now issued his own DMCA takedown notice over a TV ad posted to YouTube by the National Organization for Marriage, an anti-same-sex-marriage group. The ad still available on NOM’s web site focuses on the recent Carrie Prejean/Miss California USA imbroglio, in which Lavandeira played a starring role. The 30-second NOM spot uses about 3 seconds of footage from Lavandeira’s video blog where he says of Prejean, “She’s a dumb [beep], OK?” As NOM describes its spot:

The ad highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them “liars,” “bigots,” and worse.

Over on ARTINFO.com they are reporting that Gagosian’s lawyers are claiming fair use in the appropriation of 22 of Patrick Cariou’s images by Richard Prince which is hardly surprising. Prince has also issued the standard “these images are not that distinctive” and “I’ve made them better” probably under the direction of his lawyers or maybe he’s done this enough to know you have to pretend the photographs are not that important to the art work.

As a side note Fairey is doing the same thing with the Mannie Garcia image he used for his Obama poster and has gone so far as to claim he used an image that isn’t an exact match (story here). But, of course he also said he sorted through thousands of images to find the one he wanted to copy for the poster so that doesn’t really sound like “any image will do” now does it.

Cariou feels the same way because he can’t understand why Prince would use 22 of his images if there’s nothing distinctive about them. In the end I think this one will not land in the courts. Apparently Cariou has already received a settlement proposal and it’s just missing a few zeros. And, let’s all be honest here if you saw your photographs selling for $1.5-$3 million after they had been slightly altered “turned into art” wouldn’t you settle for a piece of the action? Or maybe it’s just a matter of paying a licensing fee plus a penalty for not getting it in advance and all will be fine.

Terry Gross of NPR’s Fresh Air asks Shepard Fairey about the the Mannie Garcia photo and the lawsuit then she talks to Mannie about it and finally she talks to a law professor about fair use. You can listen to it (here).

I pulled a few relevant passages out of the transcript for you here.

–How did Shepard Fairey decide what image to use as the basis for his poster?

Mr. FAIREY: Well, I looked through a lot of photographs, but I had an initial concept that I’d like to divide Obama’s face in highlighting shadow between tones of blue and red. So, it was really the direction of the gaze which I felt looked presidential, looked like Obama had some vision and some leadership, and that combined with the way that the light was falling.

–Why did he decide to sue the AP?

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.

And the meaning of their art pieces is completely different than the original intention of the source image and adds a new layer, a new value. It’s transformative, and I think it should be fair use. And I felt that I needed to fight the AP not for myself only, but for a whole group of artists that would be self-censored, probably, because they can’t afford the photos and they don’t want to be in a legal entanglement over using those types of images to communicate a message.

–What was Mannie’s reaction when he found out the image was his?

Mr. GARCIA: Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto the Internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it, doesn’t mean it belongs to you.

–Mannie also talked about his dispute with the AP over who owns the copyright. I haven’t heard or seen the AP produce the contract or agreement with Mannie that says they own it so I assume they can’t find it or there’s problems with it.

–And finally Terry talks with a law professor about fair use.

Professor GREG LASTOWKA (Rutgers School of Law-Camden; Visiting Professor, Columbia University): One thing that’s really important about fair use, they need to understand, is the Supreme Court has said that each fair use case needs to be decided individually, and there are no bright-line rules. And that’s one of the things that’s most frustrating about fair use because if you look at these four factors for fair use, none of them are strictly controlling, and you can find a case that has, you know, one of these factors going one way or the other and a finding of fair use or no fair use.

–Terry asks him about the recent Facebook uproar.

Prof. LASTOWKA: I see it as very relevant because I think the reaction of the public to something like, you know, Facebook’s changing the terms of service, the fear that someone else is going to be able to monetized the creative work that you’re uploading to Facebook shows that we all feel like we are authors and proprietors of the content that we create. So, yeah, I think it’s very relevant because it shows the public’s reaction when their own authorial interests are at stake.

UPDATE: The Zuck backed down and returned to the previously shitty TOS that is not nearly as horribly shitty as the new one. They say they’re going to rewrite the whole thing so maybe there’s a chance they can come up with something besides a lazy ass rights grab. Story on CNN.

In order to become friends with Mark you need to grant him rights to whatever you upload to their servers forever.

The story about facebook’s revised TOS  is making the rounds (I think the consumerist broke the story) and even garnered a response from the Zuck hisself (here) that I discovered on Harrington’s blog. In general all these sharing sites use similar language for their Terms of Service and User License Agreements because most of them have no clue how to handle the situation they’ve created for themselves with copyrighted material and figure it’s just easier to grab a license and sublicense.

I hope all the attention this issue is getting will force Facebook and other companies that allow you to upload images (pretty much everyone) to figure out better ways to restrict how content is used, where it’s displayed, where it’s stored … translated, cropped, scanned, edited…, so they don’t have to be so lazy and grab all the rights instead. After all none of these sites are worth a damn without the content people add to them.

Jim Goldstein has a good post all about the terms (here).

UPDATE: Scrap that AP credit. According to an interview with Manny himself over on Photo Business News (here):
“3) So, you own the copyright to the image?
The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.”

… I’m not sure what there is to discuss unless AP figured out a way to change copyright law.

From a story on Breitbart (here):

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Thanks, Thomas.

Now that the photographer of the image in the Obama poster has been found (here) fair-use debate can begin in earnest.

Photographer Mannie Garcia had this to say over on Tom Gralish’s Philadelphia Inquirer photographer blog:

“Of the iconic poster he said, ‘I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture. I thought, ‘that’s familiar.’ I would see it and say that’s cool, but it did keep sticking in my head.’ He was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.'”

“I talked with him again this morning, and he is still proud his photo is the basis of the painting that now hangs in the National Portrait Gallery, a part of the Smithsonian Institution, in Washington, DC – the first portrait of the new president to enter the national collection.”

I followed a post by Carolyn E. Wright of the photo attorney blog where she brings up “thin copyright- where there is not much original copyrightable expression in a particular work” (here) to a discussion on Madisonian.net (here) where a commenter (Bruce Boyden) has this to say:
“The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.”

“To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.”

“Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. ”

and Carolyn had a comment earlier in the thread where she says:

“It’s a common excuse for copyright infringement – the photo wasn’t anything special and anyone could have shot it. That begs the question – then why didn’t they?”

The Art Law blog has more (here) including this tidbit:

“”This would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm”

which leads to this from Time magazine (here):

“I would think Fairey would not have much trouble proving that it was his pulsing three-color reinterpretation of the Obama photo that elevated it from press conference news photo to icon.”

and finally a bunch of law professors get in on the debate (here):

“changes in color and style have been held not fair use before, see Rogers v. Koons”

I am of course fascinated by the debate… you may not be.

UPDATE:

Patrick Cariou appears to have a better case than I first thought. Take a look at these examples where Richard uses most of the image and then add to that the possibility that Patrick’s images have appeared in a gallery at some point in time. There certainly is a case for harm to the potential market for the original copyrighted work which along with the amount of the image used is the main test for infringement in this case (that’s how I see it anyhow).

Here’s my previous post:

Cityfile has the exclusive (here) on a lawsuit filed by photographer Patrick Cariou against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here).

Unlike the most well known instance (here) where Prince appropriated another photographers work for his art, the images he used this time are owned by an individual photographer (from Patrick’s book Yes Rasta) and not a corporation. This should be a very interesting test of fair use because from what I can tell he’s taken only parts of Patrick’s images combined them with other images on a canvas and painted upon them.

I think this is going to be a tough case for Patrick because of the following:

“The fourth fair use factor – effect upon the potential market or value of the copyrighted work – considers the extent of harm to the market or potential market for the copyrighted work caused by the new work. This test evaluates the potential as well as actual financial harm to the original copyrighted work, as well as to current and potential derivative works.

The United States Supreme Court has declared this fair use factor the most important element of fair use. Therefore, those who wish to use another’s copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.” (from PubLaw.com)

I’ve tried to argue in the past that photographers enjoy the benefits of fair use all the time when taking pictures that have copyrighted material in them but Richard Prince certainly takes this idea to the extreme every time.

gagosian

“Today, we’re announcing an initiative to help bring more magazine archives and current magazines online, partnering with publishers to begin digitizing millions of articles from titles as diverse as New York Magazine, Popular Mechanics, and Ebony.”

“Over time, as we scan more articles, you’ll see more and more magazines appear in Google Book Search results. Eventually, we’ll also begin blending magazine results into our main Google.com search results, so you may begin finding magazines you didn’t even know you were looking for.”

Official Google Blog post is (here).

In a related story:

“… the high court, without comment, let stand rulings that Tasini — which bars publishers from selling published articles to Internet databases without securing new copyright permissions from freelance contributors — did not prohibit publishers from selling their digital archives on CD-ROMs without securing new copyright contracts.”

Read about it (here).

Thanks for the tips John.

From a story in the NYTimes Magazine entitled “What is Art for” (here):

For nearly a decade he had been struggling to explain — to his family, to nonartist friends, to himself — why he devoted so much of his time and energy to something as nonremunerative as poetry.

The predicament of all artists living “in an age whose values are market values and whose commerce consists almost exclusively in the purchase and sale of commodities.” For centuries people have been speaking of talent and inspiration as gifts; Hyde’s basic argument was that this language must extend to the products of talent and inspiration too. Unlike a commodity, whose value begins to decline the moment it changes hands, an artwork gains in value from the act of being circulated—published, shown, written about, passed from generation to generation — from being, at its core, an offering.

If creative work doesn’t necessarily have any market value, how is the artist to survive?

In the course of writing “The Gift,” Hyde underwent an intellectual transformation on this subject. He began the work believing there was “an irreconcilable conflict” between gift exchange and the market; the enduring (if not necessarily the happy) artist was the one who most successfully fended off commercial demands. By the time he was finished, Hyde had come to a less-dogmatic conclusion. It was still true, he believed, that the marketplace could destroy an artist’s gift, but it was equally true that the marketplace wasn’t going anywhere; it had always existed, and it always would. The key was to find a good way to reconcile the two economies.

Copyrights are utilitarian things. They generate money to pay a mortgage and buy groceries and continue working. Extended too far beyond their practical usefulness, copyrights not only contradict their original intent; they also wall creators off from the sources of their inventiveness. Genius, Hyde believes, needs to “tinker in a collective shop.”

Next stop is the house. Email or call your representative and let them know how you feel about it (here).

I’d say most people writing about photography and/or photographers on a blog are using the “Fair Use” limitation in copyright law (here) as a way to avoid having to get permission and possibly pay for the use. I use it sometimes and in turn I can expect to see things that I write about quoted and used without my permission as well.

I’ve been asked a few times by readers “What’s fair use and what’s illegal when using photography that’s not yours on a blog?” I can’t actually answer that question, because I’m not a lawyer, but I would like to help bloggers understand the best practices for using photography that doesn’t belong to them, so when I saw this “Code of Best Practices in Fair Use for Online Video” (here) I thought I should create one for photography (and not 16 pages long), since it doesn’t already exist. There’s really no end in sight to the practice of bloggers writing about a photograph or a photographer and then posting a picture, so don’t you think it’s time we set down some guidelines on what acceptable and what’s not? I’m going to post the best practices guide on the url http://www.fairusephoto.com and I’d like it to represent what photographers and photo industry bloggers feel is acceptable. Here’s what I think:

Nearly all the photography in the world is copyrighted and belongs to the person who took the picture.

The absolute best practice for using photography that doesn’t belong to you is to ask for permission first.
Oh, you thought there was more? Email or call the photographer and ask for permission. It’s that simple.

If you are looking to cite “fair use” as a way to publish copyrighted images without permission because you believe it falls under the following:”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” then you should follow these best practices:

Always include the photographers name and links to both the image(s) you are writing about and their portfolio in your story or in the caption to the image.

The destination of the anchor link for the image should be the page where the image was found (most blogging platforms have the anchor link to a larger size image so this has to be changed manually).

The bare minimum number of images should be used to make your point. You want to pique the readers interest so they visit the photographers site to see a full selection of images.

Use a screenshot of the image (instead of downloading the file used on their site) and include as much of the surrounding page as possible so it’s obvious that the image came from another website.

The end result should always be that readers, who find the photograph interesting, click to visit the photographer’s site.

Please understand that this is a best practices guide and following this guide does not exempt you from copyright infringement and potentially a lawsuit from the copyright holder. It is ultimately up to the courts to determine if your use was “fair use.”

Here are some resources for further exploring copyright and fair use:

Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code.

Copyright Term and the Public Domain in the United States, 1 January 2008.

Summaries of Fair Use Cases.

US Copyright Office- Can I Use Someone Else’s Work? Can Someone Else Use Mine?

Let me know what you think.

Jody Rosen, a writer at Slate Magazine, was alerted by a reader to a story in a small Texas alternative weekly called the Bulletin where “10 and a half paragraphs copied nearly verbatim from ‘A Pirate Looks at 60,'” were plagiarized from an essay he wrote on Jimmy Buffett.

So, Jody writes a story for slate (here) about the plagiarism and uncovers a writer and possibly publisher who nab stories online and re-appropriate them for their tiny (20,000) unsuspecting audience.

After the story comes out the publisher is inundated with emails and the stories about the plagiarism spread around the blogosphere (here, here, here and here).

The Bulletin ceases publication and the writer issues a statement (here).

Does anyone think they can get away with this shit anymore? Do you really think you can steal someone’s words (pictures and designs too) and not get caught in 2008?

The incident below can serve as an important warning to corporations that mistakenly think Flickr photographers won’t jump your shit if you infringe upon their copyright. Also, they should keep in mind, the cc license is virtually worthless in protecting you, if you mistakenly believe those photos can be used for free, because it can be revoked at any time (Dan Heller explains here).

One of the photographers who’s work was stolen, Richard Sharman, sent me the following:

A website run by brewing giant Heineken was leeching hundreds, if not thousands of copyright photos through the flickr API and posting them to promote the Oxegen music festival in Ireland.

The website at, www.heinekenmusic.ie was pulled after Heineken Music Ireland started receiving demands for payment from photographers for the unauthorized commercial use of copyright material.

There is active discussion about this at several flickr groups including (here) that was set up specifically to discuss the matter. There are a number of screenshots there of the website and the use of copyright images.

There was a comment on their blog which appears to come from within the company about the problem with the heinekenmusic.ie website:

Normally our player should’ve only display photos with commercial CC license, he’re gone something terribly wrong and we’ve currently disabled the flickr photos module on the player. We’re currently looking into the thread on Flickr and see what we can do for the photographers …
I’m sorry if we’ve offended photographers …

Finally, it appears that Heineken is sending settlement emails to the photographers who contacted them with the following offer: “Accordingly, we would be willing to pay in full and final settlement an amount of €15 per image allegedly used” which might get a few to go away but no those who make a living shooting pictures.

You have been warned.