Court decides snatching online phots OK

[smoke665]

There's no sign at the corner intersection directing pedestrians to only cross at the cross-walk; can I therefore walk through traffic and successfully dispute the "jay-walking" ticket I receive based on my ignorance of the law?

That depends on #1 If there was no LE to see or write the ticket, and #2 There was no harm to you or anyone else as a result of you ignorance. Shy of the these would it not be a victimless crime? In the court case the judge used somewhat the same analogy when he said there was no harm caused the copyright holder.

 

[tirediron]

I suspect the perceived degree of harm differs significantly between the judge and the photographer; that aside, my point was that the judge appears to be stating that ignorance of the law is an acceptable excuse for having broken the law, which is in yours, I assume, as it is in ours, stated very clearly at the most basic level, not the case.

 

[MartinCrabtree]

It places the burden on the owner. Instead of seeking permission the violator is only suggested to seek forgiveness. NO.

 

[limr]

No, it's not the same as saying someone can be ignorant of the law. It's saying that there needs to be reasonable warning that a law would be broken. This isn't a case of "I didn't know there was a copyright law." It's "I know there is copyright law but had no indication that I was actually breaking that law." As Martin said, it's shifting the burden to the copyright owner to warn people that they would be breaking the law if they use the image without permission, rather than putting the burden on the person to check if there are any restrictions on the usage of the image (which may be easy in many cases, but not so clear in other cases.)

 

[Braineack]

They way I'm reading the judge's decision, had the website used this image to sell product, it would have gone the other way.

 

[tirediron]

No, it's not the same as saying someone can be ignorant of the law. It's saying that there needs to be reasonable warning that a law would be broken. This isn't a case of "I didn't know there was a copyright law." It's "I know there is copyright law but had no indication that I was actually breaking that law." As Martin said, it's shifting the burden to the copyright owner to warn people that they would be breaking the law if they use the image without permission, rather than putting the burden on the person to check if there are any restrictions on the usage of the image (which may be easy in many cases, but not so clear in other cases.)

I'm sorry Lenny, but I'm going to respectfully disagree with you. Copyright is created simultaneously with the work; irrespective of the nature of the work, the copyright comes into being as soon as the work does. That is the law. Extrapolating that point to a logical conclusion, saying that "there was no indication of copyright" is a valid excuse is indeed allowing ignorance of the law to be used as justification for breaking the law, since there doesn't need to be an indication of copyright; the fact that the work exists means that copyright exists. The holder of the copyright can choose to do a wide range of things with it, including license it under the 'creative commons' umbrella, or other 'free use' doctrine, but in this case the creator did not do that. Placing the burden on the creator to protect his work with signs is no different than saying to someone whose house has just been burgled, "Well... you didn't manage to keep the thief out, and you didn't have any "No burglary" signs, so... it's your fault.

 

[Braineack]

how to "properly" handle this:



take notes on how much of that $60,000 he actually recovered.
bonus points: take notice how he achieved that valuation.

 

[smoke665]

Placing the burden on the creator to protect his work with signs is no different than saying to someone whose house has just been burgled,

Actually you've brought up an interesting analogy, to the photo. At least here in our state if someone walks across my property, they can't be charged with trespassing unless I've already notified them that they can't cross, and/or the property is posted with signage around the perimeter. I can ask them to leave, and if they don't --then they can be charged, but up to that point, ignorance of property lines is a defense. If they do damage or other harm then they can be charged for that.

I reread the article again, and one thing I couldn't find is "IF" the original photo had a watermark and "WHERE" the defendant got the photo. The article shows the photographer's photo on Flickr. Typically Flickr photos contain information as to copyright regardless of watermark, so if the defendant didn't read the information available and downloaded the photo, then I'd say the plaintiffs attorney slipped up in not presenting the judge with the facts. However if the defendant pulled it from another website, and there was no watermark or other restrictions noted, then it might be like the trespass law noted.

 

[limr]

No, it's not the same as saying someone can be ignorant of the law. It's saying that there needs to be reasonable warning that a law would be broken. This isn't a case of "I didn't know there was a copyright law." It's "I know there is copyright law but had no indication that I was actually breaking that law." As Martin said, it's shifting the burden to the copyright owner to warn people that they would be breaking the law if they use the image without permission, rather than putting the burden on the person to check if there are any restrictions on the usage of the image (which may be easy in many cases, but not so clear in other cases.)

I'm sorry Lenny, but I'm going to respectfully disagree with you. Copyright is created simultaneously with the work; irrespective of the nature of the work, the copyright comes into being as soon as the work does. That is the law. Extrapolating that point to a logical conclusion, saying that "there was no indication of copyright" is a valid excuse is indeed allowing ignorance of the law to be used as justification for breaking the law, since there doesn't need to be an indication of copyright; the fact that the work exists means that copyright exists. The holder of the copyright can choose to do a wide range of things with it, including license it under the 'creative commons' umbrella, or other 'free use' doctrine, but in this case the creator did not do that. Placing the burden on the creator to protect his work with signs is no different than saying to someone whose house has just been burgled, "Well... you didn't manage to keep the thief out, and you didn't have any "No burglary" signs, so... it's your fault.

Read more carefully. I did not say "no indication of copyright." I said that the ruling suggests that there should be reasonable warning of any restrictions on usage. There are a lot of images on the internet that are copyrighted but which are also, for example, labled for "re-use" or "re-use with modification" or "re-use with/without permission." Is a person supposed to always assume that no mention of usage rights = no rights at all? Or all rights?

And as Braineack said, the issue of warning is only 25% of the decision. If the facts of the case had been that the website did NOT remove the image (failing to prove good faith), or profited from the image, the ruling could very well have been different.

These cases depend on a lot of things, and this one happened to fit the standard for fair use. It doesn't mean that the case now become binding precendent.

Trespassing would be a more apt analogy than burglary.

 

[vintagesnaps]

From what I understand the best way to deal with copyright infringement is to issue a DMCA takedown notice. You could consider contracting/licensing usage, but I don't know if this photographer did that or not. Most likely you'd spend more in legal fees than you'd ever get back in a lawsuit (unless maybe you make a lot of money with your photography to put into legal costs, such as people who sell instructional videos... lol). Maybe in some cases it would be worth it, but in this case the festival did what he'd requested and had stopped using the photo. I don't think you can assume the general public knows anything about copyright, and it's probably better to register copyright if you're going to use a photo 'out there', as well as indicating or displaying your copyright to inform people of it.

I did a quick search and this mostly shows up on clickbait sites shared from Petapixel, where the headline says "... Copying Photos Found on Internet is Fair Use" which seems generalized and inaccurate. The tone seems to have been set in the first paragraph - "... a decision that photographers won't be happy to hear." Why listen to what the self proclaimed 'editor' of Petapixel says to think or feel? He seems to set the framework for people to be unhappy and share it. I've read that people sharing something negative, that they don't like, actually gives it more attention than if they hadn't read and shared the article in the first place.

The photo had already been published, so I think that makes a difference; it's already 'out there' and the photographer was already compensated. So what further usage is acceptable, I don't know... to me it seems sort of like when I had a photo used in a brochure; it was already distributed in thousands of copies. If someone had saved a copy and scanned in the brochure and shared it online, then, so what? plenty of people already had it and probably tossed it in the trash years ago! lol

So I'm not sure on this one, but the photographer's probably out some money. I looked him up quick and found what I thought were two photographers with the same name but it turned out to be the same guy who'd relocated across the country. The most recent social media seemed to be from over a year ago, although if he's no longer a working photographer wouldn't matter as far as copyright. But it did make me wonder what his motivation was to sue the festival when they'd already stopped using the photo.

 

[Braineack]

Or this: Wrong Lady Liberty on Stamp to Cost US Postal Service $3.5M

 

[tirediron]

Read more carefully. I did not say "no indication of copyright." I said that the ruling suggests that there should be reasonable warning of any restrictions on usage.

Apologies; I did not mean to suggest you were making a statement; I'm simply disagreeing with what I interpreted as your contention (and that of the ruling magistrate) that not knowing there were restrictions was a viable defence.

There are a lot of images on the internet that are copyrighted but which are also, for example, labled for "re-use" or "re-use with modification" or "re-use with/without permission." Is a person supposed to always assume that no mention of usage rights = no rights at all?

Yes, that's exactly what they should assume. I'm not naive enough to believe that they would/will, but it is what they should. That digital image that I post [insert location where I have made a conscious decision to post >here>] is my property, and someone else's use of it is NO different than had they walked into my studio, taken the print out of my window display and put it up on the counter of their business. People are determined to believe that because an image exists as a digital file, it's value is diminished.

And as Braineack said, the issue of warning is only 25% of the decision. If the facts of the case had been that the website did NOT remove the image (failing to prove good faith), or profited from the image, the ruling could very well have been different.

In all likelihood they did profit from the use of the image; possibly not by much, but I'm willing to bet they did. Don't forget "profit" can be more than a direct monetary benefit. Additional traffic, even so much as a single extra hit on the website is profit.

These cases depend on a lot of things, and this one happened to fit the standard for fair use. It doesn't mean that the case now become binding precedent.

Putting aside the fact that there is no way that anyone can justify the "fair use" of someone else's property from a moral point of view, how anyone can justify use of someone else's IP on a commercial website without permission is beyond me.

Trespassing would be a more apt analogy than burglary.

I don't believe so, in part for exactly the reason that Smoke stated. Enforcing trespass statutes on property, particularly unmarked property is difficult. It is also a completely different category of crime; what this case is about is theft. Plain and simple theft. It's unfortunate that the magistrate doesn't understand the concept.

 

[limr]

In all likelihood they did profit from the use of the image; possibly not by much, but I'm willing to bet they did. Don't forget "profit" can be more than a direct monetary benefit. Additional traffic, even so much as a single extra hit on the website is profit.

The court ruled based on the facts of the case that there was no commercial benefit, nor was there monetary loss by the copyright author. Do you know otherwise, or are just assuming, based on...?

Putting aside the fact that there is no way that anyone can justify the "fair use" of someone else's property from a moral point of view, how anyone can justify use of someone else's IP on a commercial website without permission is beyond me.

Of course there is justification for fair use, which has been written into copyright law for a very long time. You can believe until the cows come home that the law is immoral, but until it's challenged or changed, it's still the law, and that is what this case was based on: its legal, not moral, merits.

I happen to disagree with the law being immoral, but it's again beyond the scope of this court ruling, so I for one am not going down that dead-end street.

I don't believe so, in part for exactly the reason that Smoke stated. Enforcing trespass statutes on property, particularly unmarked property is difficult. It is also a completely different category of crime; what this case is about is theft. Plain and simple theft. It's unfortunate that the magistrate doesn't understand the concept.

Um...Smoke was arguing the same point that I was - that trespass is a more apt analogy. The point is not what the crime is, but whether or not there was a reasonable way to determine that one was even committing a crime. Fences and signs? Yeah, you're not allowed. Flickr, copyright symbol? Yeah, okay, it's not allowed to use.

But no fence or no sign? No structures? Ambiguous. No markings or notices about usage rights? Ambiguous.

And we don't have magistrates.

 

[smoke665]

@tirediron in some respects I can agree with your assessment of the crime as theft and I'm not condoning it. On the other hand would you leave a valuable car on the street with the keys in it? As the owner of the property you have some responsibility in securing your property. The internet makes it so easy to steal images, movies, music, that posting an image is like leaving your keys in your car. Sooner or later someone's going to borrow it. The way to solve the problem is to either don't post your images on the internet or come up with better methods of securing images in the cloud.

 

[tirediron]

@tirediron in some respects I can agree with your assessment of the crime as theft and I'm not condoning it. On the other hand would you leave a valuable car on the street with the keys in it? As the owner of the property you have some responsibility in securing your property. The internet makes it so easy to steal images, movies, music, that posting an image is like leaving your keys in your car. Sooner or later someone's going to borrow it. The way to solve the problem is to either don't post your images on the internet or come up with better methods of securing images in the cloud.

You're right' the Internet makes it far too easy to steal images, but with respect to your car analogy, the difference is, in today's environment, the Internet is where we NEED to display our wares; I don't actually need to leave my car on the street with the keys in it! It is the storefront of the world today, in much the same way that an actual brick and mortar store was in 1970. There is no way to secure images; if it can be seen, it can be stolen. Don't misunderstand me, I'm am not a rabid "Though shall not use my images"; I give away a lot of images; what I am absolutely dead-set against is people using my work without permission.