Copyright Infringement or Not?
Newsy
Registered Users Posts: 605 Major grins
This past week I discovered that one of my images, kept on Smugmug, was used in a news broadcast by one of Canada's largest television networks. It took until today to finally receive confirmation. I definitely did not consent to its' use.
This was part of their reply:
What interests me the most is the last sentence. Open for public use worldwide.
Really? Do you agree with this?
I'm not surprised this has happened but I really did not expect to come form a media organization that has an elaborate Copyrights page on their own web site. I fully expect people to download images to their own home PC's for viewing.
I just always thought that an organization who would profit from the use of an image would ask for and recognize the copyright.
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This was part of their reply:
I know how Google works. I've yet to see their image search not link to the Smugmug gallery. So that is an obvious fabrication. Also, my primary smugmug page does have a copyright notice. The image I saw was of reasonable quality so I know they downloaded at least an medium size image so I'm pretty sure they were downloading from Smugmug and not a Google thumbnail.The photo was indeed obtained in good faith. It was found using a google image search and when it was loaded, it did not come up linked directly to your website, and there were no copyright notices marked on the photo itself. Many photographers who post images to the world wide web often make copyright notes (or ghosts) directly over top of the photo, or otherwise attach such information so it is clearly displayed and unmistakable. Images found on the internet are part of a large and uncontrolled public domain, and as such are open for public use worldwide.
What interests me the most is the last sentence. Open for public use worldwide.
Really? Do you agree with this?
I'm not surprised this has happened but I really did not expect to come form a media organization that has an elaborate Copyrights page on their own web site. I fully expect people to download images to their own home PC's for viewing.
I just always thought that an organization who would profit from the use of an image would ask for and recognize the copyright.
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SmugMug Technical Account Manager
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nickwphoto
http://newsy.smugmug.com/
At the time I had a different "contact me" paragraph but from it they could have extracted an email to contact me or left a comment, neither of which happened.
Irrespective of whether or not there is an actual "Copyright" or "©" on the image itself, do they not have to respect artistic license as they are a commercial enterprise and the material was used to enhance their product?
Ironically, three weeks ago, for the first time ever, I was contacted by someone else wanting to use one of my images for a commercial presentation. I happily granted them limited use of the image for that purpose and all I asked for in turn was that they provide a credit for the photograph.
So this is all new to me but this latest event seems to be a little cheeky. The only other copyright issue I've followed recently involved Mike Yon... http://michaelyon-online.com/wp/dishonor.htm
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I also think that their response is a bunch of BS. I do not believe that you could waive your rights by posting your images on your own website.
I would pursue legal action, because it ain't right to steal.
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They appear to have violated US copyright law. Interestingly, they don't cite their only plausible defense, Fair Use. News operations are held to a different standard than the rest of us, a lower standard.
I'd demand payment. Figure out how much that photo would have sold for and send them an invoice, plus put them on notice that their payment is for that single use of the image. Any further use would require further payments.
But first, you need to find out what Canadian copyright law says.
Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam
http://www.mcneel.com/users/jb/foghorn/ill_shut_up.au
It may become more complicated, but my gut reaction is:
1) tell them that you have the raw file
2) tell them that private use does not equal broadcast rights
3) suggest them to pay you (read this and figure your price) or be ready to spent 10 times more on the lawsuit cause you're gonna sue their asses out, and as the media firm they can't just say it didn't happen
Just my $.02
Any publication would know this and to answer you in the manner they did is reprehensible.
You are due compensation for the use of your image and possibly punitive damages.
How you choose to persue this is up to you but I would turn the matter over to my attorney.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
1/ TV, not publication.
2/ Fair Use may protect them, if it was used in a newscast for a news story.
3/ Attorney fees would exceed the value of the image.
4/ Punitive damages? Sorry, not an issue.
Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam
http://www.mcneel.com/users/jb/foghorn/ill_shut_up.au
TV
Catapultam habeo. Nisi pecuniam omnem mihi dabis, ad caput tuum saxum immane mittam
http://www.mcneel.com/users/jb/foghorn/ill_shut_up.au
Why would anyone lacking legal experience want to throw themselves into the lion's den?
If you want to be proactive about this before engaging an attorney, simply compose an invoice for the image use, attach a tear-sheet and mail it to the photo editor's attention at the magazine. Be certain to maintain copies of everything you do and use a secure delivery system such as DHL. (I would not use the USPS's registered mail since international mail may not receive the same paper tracking as domestic mail)
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
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1/ TV - ahhh, sorry. Doesn't correct the wrong
2/ True but MAY is a big gray area and we don't know what the image is yet.
3/ In cases of malice the plaintiff MAY be awarded attorney's fees (in US courts system anyway)
4/ see #3
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
I'd hire Angelo !!
:toni
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
It seems like they could not figure out who the owner of the picture was. Maybe that would grant them the right for fair use.
But now that you contacted them, they do know that you are the owner of the pic. Send them a bill.
When I hear the earth will melt into the sun,
in two billion years,
all I can think is:
"Will that be on a Monday?"
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http://www.streetsofboston.com
http://blog.antonspaans.com
www.ivarborst.nl & smugmug
Newsy,
See this on the Smugmug T&C site:
"copyright complaints
Smugmug respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact Smugmug's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at copyrightagent@Smugmug.com or Copyright Agent, Smugmug, 3347 Shady Spring, Mountain View, CA 94040. Please provide our Agent with the following Notice:
- Identify the copyrighted work or other intellectual property that you claim has been infringed;
- Identify the material on the Smugmug site that you claim is infringing, with enough detail so that we may locate it on the website;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
- Your address, telephone number, and email address; and
- Your physical or electronic signature.
Smugmug's Agent will forward this information to the alleged infringer."Mike
IR Modified Sony F717
http://2H2OPhoto.smugmug.com
Dgrin FAQ | Me | Workshops
If not regisered with copyright office no award of punitive damages.
At least in the US.
This should be common knowledge among photographers.
You could try to look up copyright law on google...
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http://www.dgrin.com/showthread.php?t=42831
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It was used in a clip discussing the recent decision by the Canadian Government to send a company of these tanks to Afghanistan. They flashed a montage of still images of the tanks and mine was the first shown.
I've found this summary of law for photographers in the province of Ontario which mostly pertains to actually taking pictures.
http://ambientlight.ca/laws.shtml
That site provides a link to copyright law in Canada.
http://laws.justice.gc.ca/en/C-42/index.html
and the Personal Information Protection and Electronic Documents Act
http://laws.justice.gc.ca/en/P-8.6/258031.html
A little more research finds that the Copyright Act of Canada was going to be amended in 2005 to recognize the rights of photographers. Bill C-60 was never enacted as the government was dissolved. As it stands, it seems there is little recourse for photographers in Canada under certain conditions, such as the photographer being difficult to locate (which I was NOT, they never tried).
I found this interesting article....
http://www.copyrightwatch.ca/?p=29
Way to much here to comment on at this time.... will be back after some more research.
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I pretty much agree with consensus here: used under Fair Use for editiorial you may be SOL, but that reply to me is complete BS. They didn't even look at the caption. I just ran a Google image search on Leopard C-2, your image show up on the first page (and three times on the second page) and has this as a caption:
"[FONT=arial,sans-serif][SIZE=-1]Tank - the Leopard C2. This one - 1:16pm
600 x 272 pixels - 56k - jpg
newsy.smugmug.com"
[/SIZE][/FONT]How much easier can it get? Besides, click on the darn image & it goes straight to your page. You can't help but see where it came from.
So their reply: :bigbs
http://www.chrislaudermilkphoto.com/
First, a work is copywritten from the moment that it is created. You do not need to use any copyright notice to enjoy that protection. I think it is BS that they say that because you posted to the WWW that it is, to paraphrase what their comment sounds like, "Public Domain" That would not be true. It might effect how much you can get back but it doesn't excuse them for their taking of it. Further, you do not need to have your work registered with the Library of Congress, if here in the US, in order for it to be protected, although it is advisable and can lead to stronger legal rights and entitlements. Your protection is automatic.
On the other hand, it has been mentioned in the past that how you use your work and whether it is registered with the LOC can effect what you get in return. In situations such as yours, caims could be limited to the actual damages that were suffered. In other words, as I understand that, say you would have been entitled to $150 for an editorial use of the photo, under normal circumstances, that would be the limit of your claim. If it were properly registered and perhaps notices attached as were mentioned, you might be able to get punitive and compensitory damage as well as attorney fees and court costs, in addition to the actual damages. That would then be where an attorney would step in and say, yeah, I will fight for you for a percentage. You would then be able to take them to the cleaners. Ignorance or lack of notice that they were infringing is not a defense. Either they did or they didn't. It would seem clear that they did. Now, what can you recover for that.
Therefore, for that little amount that you might be able to get, good luck finding an attorney who will fight it for you. Your damages would likely be less than what it would cost to pursue it. I would, therefore, as others said, send them a letter stating your dissagreement with their position along with an invoice for the cost of the use of your image. If possible, I would get any legal language that supports your position and send that also.
Also, the arguement of for educational or editorial use being fair game, would not be completely true. If it were, then why would any news media pay someone for use of their photos or videos if they don't have to. There are some allowances for editorial, educational and critique uses however I believe that there are limits to that. Like using a photo of some tanks in a news story would not be a critique use of the photo nor would it be educational. I believe that they owe you something for the photo, something equal to what they would normally pay for a stock photo. What and how little that might be, I don't know.
http://en.wikipedia.org/wiki/Fair_dealing#Fair_dealing_in_Canada
Note: The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
News Reporting.... interesting!
Found this... The Copyright Board of Canada
http://www.cb-cda.gc.ca/unlocatable/brochure-e.html
And digging around at the Copyright Board, I found a reference to a decision...
http://www.cb-cda.gc.ca/decisions/a16112000%2Db.pdf
From page 10...
29.1 and 29.2 of the Act provide, among other
things, that fair dealing for the purpose of
criticism, review or news reporting does not
infringe copyright if the source and, if provided,
the name of the author, are mentioned.
MusiquePlus inc. argues that four of its
programs, representing seven per cent of the air
time of MusiquePlus, constitute fair dealing.
(b) if given in the source, the name of the
(ii) performer, in the case of a performer's performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
That said, with my current bandwidth woes, the last thing I want is to have my smugmug URL given out in the middle of a contentious story.
I think I will pass some of this along to my contact at the TV network.
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If they'd been producing a segment on the wildly exciting world of photography websites, they may have had fair right to use my image in order to provide an example of content of those sites. But they would still be required to identify the source of the image.
They weren't and they didn't.
For what they did do, they in essence sourced an image that they normally would have sent a video team out to gather images, at great expense. In other words there normally would have been a contract to obtain media to supplement the content of their news clip. That contract was never offered to me.
They have, IMHO, for all intents and purposes stolen from me, and most certainly have violated copyright in either Canada or the USA.
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If the photo itself is THE STORY, that might make it a fair use for a broadcaster who is doing a story about the photographer or the photo to use the image as it would be an integral part of the subject matter. I am not sure though that it would quite go to the extent of illustrating something like photography on the web or something. If they wanted a generic photo to illustrate photos on sharing websites, they might need to acquire a specific photo through normal means. I would still think they would need permission for your example as the photo is not THE STORY but a mear illustration of a part of the story. However, if your photo was of a subject where the photo itself was the story, say because you took it, or how it was aquired etc., and that specific photo, would make it newsworthy to the point where it's use would be essential to the illustration of the story that might make it fair use. I don't know how to quite explain what I am saying but I hope my point is clear enough. If there is an evaluation or analysis of that photo then using it is essential to the whole story or critique, it might qualify as a fair use.
In the case of Education, if you were a student or a teacher and using the photo to illustrate a school presentation within a class, as a part of research for a reserch paper or analysis of the content of the photo for details pertinent to an assignment... or maybe a professor showing techniques, like stop motion or depth of field, that are evident in your photo for a photography class, it might then be fair use to copy the photo to use in the classroom or hand out to students as a handout. A student could take your photo from a book, photocopy it for their assignment or research and probably be safe. Say a history teacher were to issue an assignment to some high school students to find articles about the "War on Terror" to discuss in class and a student copied an article that contained your photo and brought it to class, that might be a fair use.
I note though that here in the US, there has been the issue of photos and other copyrighted materials being copied by library photocopiers and that in some cases that has been determined to be an infringement of copyright. Photocopiers in some libraries are adorned with signs warning about copyright infringement. If Education use was absolute and fair use, than why bother to warn people about use of photocopiers and infringement of copyright. So, it would seem, use for education would seem to not be absolute.
Certainly though, I believe, someone taking a photo from your web page and putting it into a textbook and then publishing it around the world or accross the country, would, I believe, be a clear violation of copyright, even though it is used for educational purposes.
Not accurate. Please read below (taken from the US Copyright Office webpage)
http://www.copyright.gov/circs/circ1.html#fnv
(and from Canada: http://www.cb-cda.gc.ca/info/act-e.html#rid-33378 )
Notice of Copyright
The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.
Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. Although works published without notice before that date could have entered the public domain in the United States, the Uruguay Round Agreements Act (URAA) restores copyright in certain foreign works originally published without notice. For further information about copyright amendments in the URAA, request Circular 38b.
The Copyright Office does not take a position on whether copies of works first published with notice before March 1, 1989, which are distributed on or after March 1, 1989, must bear the copyright notice.
Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected.
The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
You could have, and should have, been identified by name (usually printed on-screen) without your URL.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
Looked up the link above. No mention of punitive damages. What's your point?
-M-
___________________________
Gear:
Nikon D-200 :thumb
Sigma 18-200mm F3.5-6.3 DC
Tamron AF 70-300mm f/4-5.6 LD
Nikkor 50mm f/1.8 D
Vivitar Series 1 60mm f/2.5 Macro
Kenko Extension Tube Set DG