Clarification of Answer by
hummer-ga
on
08 Jun 2004 08:40 PDT
Hi dashman,
RULE OF THUMB #1: *When in Doubt, Ask Permission*. More often than
not, owners will be happy to let you use their photographs as long as
you include a link to the original.
>>>>>>>>>>>
"But fair use IS sometimes permitted."
Yes, "...for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship,
or research..."
Chapter 1: An Overview of Copyright: II.I. Fair Use:
"Probably one of the most misunderstood concepts in copyright law is
fair use. This is a doctrine that provides a defense to copyright
infringement for some acts. But determination of whether or not
something is a fair use is fact-intensive. No particular act is
automatically fair use, and all four factors listed in Section 107
must be considered:
Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright."
http://digital-law-online.info/lpdi1.0/treatise13.html
>>>>>>>>>>>
And couldn't a great many websites be considered "reporting" - what's
required for that?
Your original question asked about copying photos and displaying them
on your website.
REPORTING:
"Fair use" vs. foul play:
http://www.salon.com/tech/log/1999/11/10/copyright/
How Much of Someone Else's Work May I Use Without Asking Permission?:
The Fair Use Doctrine, Part I:
"Because the courts consider all four factors - no single factor is
and of itself sufficient to prove fair use - publishers need to
understand each factor as it relates to determining whether use of the
original copyrighted work in the creation of a new work will be
considered fair use in the eyes of the court."
http://www.publaw.com/work.html
>>>>>>>>>>>>
"Also, what about the possibility of using a photo, crediting it, and
being prepared to remove if necessary?"
As with all laws, it's what you do *before* you're discovered that
counts, not after. If you rob a store and get caught, putting the
merchandise back does not let you off the hook.
That said, there are two important issues to consider. 1) In order for
the copyright holder to sue, he/she must have registered the photo,
and 2) the copyright holder must have a tangible copy of the photo in
order to register it.
"In order to sue an infringer the copyright holder must register the
photo.[7] In order to register the photo, the photographer must
possess the photo. Traditionally this is not a problem because the
photographer would have a negative, or a print or a slide or some
tangible object as a photo. If the photographer has scanned the photo
onto a home page or provided the photo to a gallery then there would
be no problem if the photographer retains the original. See Philip
Greenspun's FAQ on photo scanning. Similarly a CD disk photo would
also be tangible to register. However when a photographer uses a
filmless camera this projects images directly onto a computer for
real-time adjustment.[8] If a photographer were to upload this kind of
photo, some tangible print would still be required for
registration.[9]"
http://www.gsu.edu/~lawppw/lawand.papers/KB4.html
FAIR USE: The law:
Chapter 1: An Overview of Copyright: II.I. Fair Use:
"Probably one of the most misunderstood concepts in copyright law is
fair use. This is a doctrine that provides a defense to copyright
infringement for some acts. But determination of whether or not
something is a fair use is fact-intensive. No particular act is
automatically fair use, and all four factors listed in Section 107
must be considered:
Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright."
http://digital-law-online.info/lpdi1.0/treatise13.html
NWU Guide to Fair Use:
" The common law called for fair use defenses to be decided on a
case-by-case basis. Today, section 107 of the U.S. Copyright Act
requires courts to evaluate four factors in determining fair use. They
are:
1. the purpose and character of the use, including whether such use is
of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the
copyrighted work."
http://www.nwu.org/docs/fairuse.htm
FAIR USE NOTICE:
"This site contains some copyrighted materials, the use of which has
not always been specifically authorized by the copyright owner. We are
making such material available in our efforts to advance understanding
of political, human rights, economic, democracy, and social justice
issues. We believe this constitutes a 'fair use' of any such
copyrighted material as provided for in section 107 of the US
Copyright Law. In accordance with Title 17 U.S.C. Section 107, the
material on this site is distributed without profit to those who have
expressed a prior interest in receiving the included information for
research and educational purposes.
If you wish to use copyrighted material from this site for purposes of
your own that go beyond 'fair use,' you must obtain permission from
the copyright owner."
http://www.honestreporting.com/a/About_us.asp
"This site contains copyrighted material the use of which has not
always been specifically authorized by the copyright owner. We are
making such material available in our efforts to advance understanding
of environmental, political, human rights, economic, democracy,
scientific, and social justice issues, etc. We believe this
constitutes a 'fair use' of any such copyrighted material as provided
for in section 107 of the US Copyright Law. In accordance with Title
17 U.S.C. Section 107, the material on this site is distributed
without profit to those who have expressed a prior interest in
receiving the included information for research and educational
purposes.
http://www.commondreams.org/headlines04/0507-02.htm
>>>>>>>>>>
Key Court Case Summaries on Fair Use:
"Conclusion: Scanning an image in order to copy creative elements and
insert them into a new work is not fair use."
http://www.copyright.iupui.edu/FUsummaries.htm
>>>>>>>>>>
What People are Saying About it:
Fair Use for photos on the web and in blogs: a modest proposal to
avoid a major battle:
"No attorney can tell you for certain if it legal to use someone
else?s photo or text?it is a judgment call based on a number of
factors like how much of the original you use and if the use of that
original content damages the authors ability to make money."
"As a group we need to set a standard when using other people?s
photos. Perhaps we should all agree that we won?t use more then 50% of
the original photo, cropping out the rest. Nick does this on Fleshbot
all the time. Now, granted it is because of the design and to keep the
site more ?work friendly,? but I think he is on to a model of fair use
for bloggers. Also, we could agree that no photo will be over 300x300
pixels and that any time you use an image you should link back to the
source (we do this already, as almost everyone does)."
http://calacanis.weblogsinc.com/entry/8042716626204694/
cropping would be a pain in the arse:
"I don't mind when people repost my images as long as they link to the
original post as attribution."
http://calacanis.weblogsinc.com/entry/8042716626204694/#c5225
Ask before you use a photo:
"Just mail any photographer b e f o r e you are going to use his/her
images on your website. In 95% youŽll get the permission simply
because it is a strong advertisement for their work and secondly a
positive acknowledgment for their work.
But this will of course only work if you link back to his/her website
and write some sentences about them and their work.
This will not work if the photo is considered to be only some ephmeral
kind of illustration delivering nice colors etc. for a website.
And forget about cropping or resizing photos. YouŽre either pregnant
or not. Any professional photographer will talk to his lawyer if you
are using his/her photos without asking. Stealing pictures for the web
is a alltime long running topic for professional photographers."
http://calacanis.weblogsinc.com/entry/8042716626204694/#c5227
I drove that Porsche Boxster for two days, but frankly, I didnŽt want
to use it, I just wanted to make advertisement for Porsche:
There are mainly three major sources for finding images (besides
Google Image Search):
-amateur: he might be highly delighted finding his image with his name
on a website/blog if someone tells him
-professionals: two possibilities. If he is represented by a photo
agency (a), the answer is NO (see below). If he is working without an
agency representing him, I guess at least 80% will say NO because
otherwise they would lose the control where in the world millions of
weblogs are showing their images. Losing control about what is
happening with your work is like a future going-out-of-business.
-photo agencies and portals: they will, under no circumstances, allow
you to show the images of their photographers or foreign partner
agencies on your website/blog. Just keep in your mind that other
customers might have payed for the usage of that specific image.
Imagine that had been you. Imagine, you would have payed a high price
for exclusive usage; now you find yourself in a situation where
somebody else, just for the fun of it, shows that pix in the WWW... ."
http://calacanis.weblogsinc.com/entry/8042716626204694/#c5242
>>>>>>>>>>>>>>
I hope I've been able to address your concerns - please let me know if
you have any other questions.
Regards,
hummer
