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Copyright, appropriation and fair use

May 16, 2010

Over at The Online Photographer yesterday, editor Mike Johnston’s intended day off was interrupted to express his opinion over a somewhat annoying situation that happens all the time with unauthorized appropriation of photographs on the internet. Read his article, but here’s a quick summary:

News organization 1 (NO1) commissions a photographer to go photograph a school for a story; NO1 owns the photo and publishes it online. The school sees the image and grabs it for the school web site, which NO1 doesn’t object to. Some time later, news organization 2 (NO2) does an unrelated article on the school and wants a photograph. NO2 goes to the school web site, sees the photo, and takes it for their own online publication.

Now NO1 starts to get concerned about these unauthorized uses, and sends an informal email request to both the school and NO2 to remove the photo from their sites. The school complies, and so does NO2 but only after kicking up a fuss in a new article of their own.

Searching on google for some of the quotations in Johnston’s post will locate the article & associated comment thread posted at NO2. Many comments there are dismissive of the issue, or contribute to a blizzard of incorrect or inconsistent information masquerading as facts. These sorts of comments demonstrate, in part, why it is a challenge to legitimately protect intellectual property rights in the internet age.

Many (most?) people, including industry professionals such as NO2, apparently don’t understand the law. Probably a certain percentage in fact don’t care whether they understand or not, they’re just going to do whatever they want to do. There’s nothing new about that. What has changed is that digital photography and the internet gives everyone broad access to copyrighted works such as photographs. Like opening Pandora’s box, people now have unprecedented technical capability and ease of opportunity to act on their beliefs about intellectual property rights.

What may happen when those beliefs are acted upon is why there is legitimate concern about things like proposed “orphan works” legislation. This scenario — Org 3 takes image unattributed & unauthorized from Org 2 who took it unattributed & unauthorized from the rights holder — is right in the target zone of how copyrighted works could become stripped of their ownership and rights information, and then infringed to the detriment of the rightful owner. Fortunately in the case Johnston writes about, image metadata and firsthand information was able to quickly establish ownership of the photograph, despite all the conflicting claims. It is feared that this won’t happen in many cases, and certain forms of orphan works legislation could be harmful to the interests of copyright holders.

Even existing copyright law may contribute some confusion in situations like this. Enter the idea of “fair use”. While there can be some variation across legal jurisdictions, it’s reasonable to say that copyright law is not designed exclusively to protect the rights of intellectual property owners. Fair use considerations can protect the ability of another organization to use an image without permission. Typical cases involve things like criticism, education and news reporting, where a social good is deemed to outweigh the rights of the owner. Fair use is tricky to evaluate, however, and often can only be really determined by a court. Unfortunately, the courts don’t always seem to rule consistently, and what seems like a clear-cut case of fair use (or not) may turn out the opposite.

It’s not clear that fair use would cover NO2 in this example, even though it used the photo in question to report some news. Since it is a competing organization with NO1 and the photograph was used in an unrelated context to the original use, NO2 might well have been legally off base. However, it might be possible that I could write an editorial article about this appropriation spat between two news organizations and a school, and use the photo in question without first obtaining permission. Because the photo itself is at the center of the issue, and therefore is now newsworthy, fair use doctrine might cover me. I’m not about to try it, though. 🙂

In U.S. copyright law, the Digital Millenium Copyright Act (DMCA) takedown notice has been an effective mechanism for dealing with internet based copyright infringements. In short, if a copyright owner detects an unauthorized online use of material, he or she can send a specially structured letter to the publisher’s internet service provider requesting that the offending material be taken down. Normally, ISP’s are not liable for the broadcast of copyright infringing material, but if they fail to act on a valid DMCA takedown notice then they can become liable. Not surprisingly, ISP’s don’t like liability, so a takedown notice is often instantly effective.

Then and Now, Calgary

Then and Now, Calgary

That’s all well and good. However, in an attempt to balance fair use with the DMCA, an August, 2008 U.S. district court decision has clarified some limits on how takedown notices can be sent. Failing to consider the potential for fair use (even though it can only be truly determined by a court) can invalidate an otherwise properly structured takedown notice. Or further — in extreme cases it could expose a notice sender (the copyright owner, remember) to a counter-claim of bad faith and misrepresentation in sending the notice. If this reversal was upheld, the copyright owner could be liable for legal costs and other damages.

The internet has removed a lot of barriers and delays in the interactions — both positive and otherwise — between various parties. In the case of copyright, it seems the law is see-sawing a bit trying to find an acceptable new level to balance the rights & responsibilities of intellectual property owners vs. the benefits to society.

Hopefully, one lesson from cases like the situation Johnston writes about is for professionals (individuals and organizations alike) to be exactly that — professional. Get educated and act accordingly with good faith. Otherwise a lot of needless conflict is going to keep cropping up. We all have better things to do with our time than get embroiled in disputes like this. Photography matters to society in a tremendous number of ways, and there is much that can be done so that all interests can be served and nobody needs to be ripped off.

As a photographer, here are some of the things you can do:

  • Put a copyright notice adjacent to — or even better, visibly on — each of your images published online. Make it clear that your images are copyrighted.
  • Attach metadata to each of your images repeating your copyright notice, and providing your full contact information. Make it easy for prospective users of your images to contact you.
  • Register your photos with the U.S. Copyright Office. You don’t need to do this to establish copyright, since that’s automatic when you create an original work. However you do have to register to be able to launch a copyright infringement lawsuit in the U.S.
  • If you detect an infringement, take detailed notes including screen captures, PDF captures or hard-copy prints of the infringement. Once you have the evidence, determine what to do about it — nothing at all, an informal email, a DMCA takedown notice, getting a lawyer involved, or whatever.

A few references from Carolyn E. Wright’s Photo Attorney site, among the many of her posts that are well worth reading:

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