Copyright/fair-use of other people's images

"Bruce Lewis" wrote in message
...
"Walt Hanks" writes:

"True211" wrote in message
...
Would it be considered a copyright violation if someone were to lift an
image from a photographer's commercial web gallery, upload that image
to
another hosting service (Tinypic.com or Pbase, for examples), and post
the
new URL with a negative review of that image - all of this, without any
knowledge or consent of the photographer? No intention to profit.

This is what I teach my students, which is what our legal beagles told us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc.

You either need to get new legal beagles, or go back and ask them for
clarification. Ideas are explicitly not covered under U.S. copyright
laws:


Copyright laws are only one example of intellectual property law. There are
also patent laws. And, when ideas are expressed in a literary form, they
are copyrightable. This has been extended, rather far it might seem, to
include published research in academic journals. There are mountains of
case law on this.

Under fair use, you can use the results of my research, my words in
describing that research, even how I organized the report of my research,
but you must give attribution. And the purpose can not be for monitary
gain. All of these elements are intillectual property.

When a manufacturer wants to use my wife's data in developing a new
instrument for measuring the physics of the middle ear, they have to get her
permission and pay her and the University where her research was performed.
When a for-profit developer of safety programs wants to use my data on
driver fatigue, they at least have to get my permission (wouldn't mind
getting paid either).

Those rights include the right to
control when and where an image or idea is shown or published.

Not exactly. The key word missing from your summary is "publicly".
Copyright holders do not have any exclusive rights under U.S. copyright
law to control non-public showings. There are exactly six exclusive
rights that go along with copyright, and they're clearly laid out in
17USC106.


An open website is public and the words "shown" and "published" suggest a
public presentation, do they not?

As fas as I know, and I could be wrong, these fair use doctrines have not
been applied to creative works, including images and music. In fact, the
courts have held that the mere presence of creative works in your
personal
posession without having paid for their use is a violation of the law.
(Remember Napster?)

Napster was about copying and distributing, not possession.


You're splitting hairs. You can not have possession without either buying
or copying. And the recording industry successfully sued a lot of people to
enforce these laws. My children mistakenly got caught up in this and when I
received a letter asking me to cease downloading files, their fun ended very
abruptly.

It sounds like you're saying that original poster's scenarios could not
be fair use because they involve creative works. That simply isn't
true. The nature of the copyrighted work is only one factor in
determining fair use. Those scenarios sound like critique and satire to
me, which are generally fair use.

Title 17 doesn't define fair use, but gives the courts factors to
consider in each individual case. An informative discussion can be
found he

http://en.wikipedia.org/wiki/Fair_use

Anyway, that's my understanding. I am not an attorney, but I am an
academic
very concerned with the protection of my own intillectual property and
with
teaching my students to respect the right of others.

That's a very worthy goal. I'd suggest reading through Title 17, at
least chapter 1, to see what it does and doesn't say. I'm not a lawyer
either, but I found it very accessible.


Yes, but I know enough about the law to know that case law is more important
than statute law. And it is case law, as I understand it, that is paving
the way on internet uses of copyrightable material.

I hope you have discussions about ethics and not just legalities.

Of course, but then again, they're freshman who have been taught to
plagiarize their entire academic career. "Go to this or that website and
put it in your own words," is a common instruction in today's schools. It
is also plagiarism. Believe me, it is an uphill battle.

Walt

"Joseph Meehan" wrote in message
...
True211 wrote:
Would it be considered a copyright violation if someone were to lift
an image from a photographer's commercial web gallery, upload that
image to another hosting service (Tinypic.com or Pbase, for
examples), and post the new URL with a negative review of that image
- all of this, without any knowledge or consent of the photographer?
No intention to profit.

Pbase has a clear policy that you should not upload any images to
their site if you are not the copyright owner for that image, IIRC.
Tinypic.com, OTOH, does not go into very much detail on this issue in
their TOS.

Other scenario:

Can you lift a photo of a politician from a government site, alter
the image in a negative way (such as the George W Bush mock images
with white powder under his nose), and post it on your own website?
Is this legal? Again, no intention to profit.

Do different jurisdictions have different ways of dealing with these
issues, or is there a universal standard?

Would someone please explain "fair use" in the context of publishing
other people's images on the web? I've read the statutes. Can
someone please break it down?

Thanks in advance. For the record, the examples above are strictly
hypothetical scenarios. I have no plans to do any of those things.

Fair use is always a sticky issue. To gain a good understanding of
that
issue, I suggest rather than reading the statute you read case law, and
lots
of it. Hypothetical situations are going to only give you guesses, case
law
will give you real answers.

As Joseph correctly indicates, fair use is an intensly fact-specific
doctrine, and only familiarity with the case law would allow for an accurate
prediction. However, another concern is right of publicity, which is a
creature of state law and will vary from jurisdiction to jurisdiction.




--
Joseph Meehan

26 + 6 = 1 It's Irish Math

"Joseph Meehan" wrote in message
...
True211 wrote:
Would it be considered a copyright violation if someone were to lift
an image from a photographer's commercial web gallery, upload that
image to another hosting service (Tinypic.com or Pbase, for
examples), and post the new URL with a negative review of that image
- all of this, without any knowledge or consent of the photographer?
No intention to profit.

Pbase has a clear policy that you should not upload any images to
their site if you are not the copyright owner for that image, IIRC.
Tinypic.com, OTOH, does not go into very much detail on this issue in
their TOS.

Other scenario:

Can you lift a photo of a politician from a government site, alter
the image in a negative way (such as the George W Bush mock images
with white powder under his nose), and post it on your own website?
Is this legal? Again, no intention to profit.

Do different jurisdictions have different ways of dealing with these
issues, or is there a universal standard?

Would someone please explain "fair use" in the context of publishing
other people's images on the web? I've read the statutes. Can
someone please break it down?

Thanks in advance. For the record, the examples above are strictly
hypothetical scenarios. I have no plans to do any of those things.

Fair use is always a sticky issue. To gain a good understanding of
that
issue, I suggest rather than reading the statute you read case law, and
lots
of it. Hypothetical situations are going to only give you guesses, case
law
will give you real answers.

As Joseph correctly indicates, fair use is an intensly fact-specific
doctrine, and only familiarity with the case law would allow for an accurate
prediction. However, another concern is right of publicity, which is a
creature of state law and will vary from jurisdiction to jurisdiction.




--
Joseph Meehan

26 + 6 = 1 It's Irish Math

"Walt Hanks" wrote in message
...
"True211" wrote in message
...
Would it be considered a copyright violation if someone were to lift an
image from a photographer's commercial web gallery, upload that image to
another hosting service (Tinypic.com or Pbase, for examples), and post
the
new URL with a negative review of that image - all of this, without any
knowledge or consent of the photographer? No intention to profit.


This is what I teach my students, which is what our legal beagles told us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc. Those rights include the right
to
control when and where an image or idea is shown or published.

In practice, fair use doctrines have been applied to words, ideas, and to
data from research studies to say that a person may use the words, ideas,
or
data of another in a non-income producing manner without their permission
*if* they give attribution. So, it can not be for monitary profit and
there
must be attribution.

Sorry, but that's wrong. There are instances in which protected works can
be exploited commercially, but still come within fair use. Additionally,
attribution is irrelevant and not required.


As fas as I know, and I could be wrong, these fair use doctrines have not
been applied to creative works, including images and music.

And that's also wrong. Fair use doctrine applies to protectable expression,
regardless of medium. There are numerous cases which apply fair use
doctrine to visual and musical works.

In fact, the
courts have held that the mere presence of creative works in your personal
posession without having paid for their use is a violation of the law.
(Remember Napster?)

And that's also completely wrong. It is not a violation to merely have an
unauthorized copy of protected expression. The Napster defendants were
liable for making and distributing unauthorized copies, two rights which are
reserved to copyright owners under the Copyright Act.


These are federal laws in the U.S. The laws in other countries differ;
but,
as I understand it, International conventions hold that the laws of the
country in which the publisher of the material resides apply, regardless
of
the location where you view the images.

Yes and no. In order to be a Berne Convention signatory, a country's laws
must be harmonized with specific requirements of Berne. It is for that
reason that, for example, the US has dropped the notice requirement for
protection upon publication.

BTW, resides has been determined to
be where they are incorporated, not where the servers happen to be.

Again, it depends. The test isn't residence, but personal jurisdiction. In
the US, personal jurisdiction is a constitutional, and fairly arcane. As a
rule, however, it means "wherever the defendant can be found."


Anyway, that's my understanding. I am not an attorney,

Whereas I am.

but I am an academic
very concerned with the protection of my own intillectual property and
with
teaching my students to respect the right of others.

With all due respect, there are a number of misconceptions regarding IP
protection in your post.



Walt Hanks

"Walt Hanks" wrote in message
...
"True211" wrote in message
...
Would it be considered a copyright violation if someone were to lift an
image from a photographer's commercial web gallery, upload that image to
another hosting service (Tinypic.com or Pbase, for examples), and post
the
new URL with a negative review of that image - all of this, without any
knowledge or consent of the photographer? No intention to profit.


This is what I teach my students, which is what our legal beagles told us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc. Those rights include the right
to
control when and where an image or idea is shown or published.

In practice, fair use doctrines have been applied to words, ideas, and to
data from research studies to say that a person may use the words, ideas,
or
data of another in a non-income producing manner without their permission
*if* they give attribution. So, it can not be for monitary profit and
there
must be attribution.

Sorry, but that's wrong. There are instances in which protected works can
be exploited commercially, but still come within fair use. Additionally,
attribution is irrelevant and not required.


As fas as I know, and I could be wrong, these fair use doctrines have not
been applied to creative works, including images and music.

And that's also wrong. Fair use doctrine applies to protectable expression,
regardless of medium. There are numerous cases which apply fair use
doctrine to visual and musical works.

In fact, the
courts have held that the mere presence of creative works in your personal
posession without having paid for their use is a violation of the law.
(Remember Napster?)

And that's also completely wrong. It is not a violation to merely have an
unauthorized copy of protected expression. The Napster defendants were
liable for making and distributing unauthorized copies, two rights which are
reserved to copyright owners under the Copyright Act.


These are federal laws in the U.S. The laws in other countries differ;
but,
as I understand it, International conventions hold that the laws of the
country in which the publisher of the material resides apply, regardless
of
the location where you view the images.

Yes and no. In order to be a Berne Convention signatory, a country's laws
must be harmonized with specific requirements of Berne. It is for that
reason that, for example, the US has dropped the notice requirement for
protection upon publication.

BTW, resides has been determined to
be where they are incorporated, not where the servers happen to be.

Again, it depends. The test isn't residence, but personal jurisdiction. In
the US, personal jurisdiction is a constitutional, and fairly arcane. As a
rule, however, it means "wherever the defendant can be found."


Anyway, that's my understanding. I am not an attorney,

Whereas I am.

but I am an academic
very concerned with the protection of my own intillectual property and
with
teaching my students to respect the right of others.

With all due respect, there are a number of misconceptions regarding IP
protection in your post.



Walt Hanks

"Jeremy" wrote in message
ink.net...

"Walt Hanks" wrote in

This is what I teach my students, which is what our legal beagles told
us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc. Those rights include the right
to
control when and where an image or idea is shown or published.


A good example of Fair Use would be the showing the photo of Prince Harry
in
his Nazi uniform. The shot was taken and published by a London tabloid.
Television news services all around the world showed it--and in every case
I
looked at, what they did was to show the entire front page of the
newspaper--not just the photo.

There is a news media fair use exception, but it is very, very rarely
applied (the Zapruder film of the Kennedy assassination is one of the few
instances I can recall off the top of my head). I don't have an opinion
with respect to the Prince Harry incident because I missed both the incident
itself and the photograph of it. However, I can't think of any situation in
which showing the entire tabloid page would not infringe rights in the
photograph, whereas showing the photograph itself would.


It clearly gave proper attribution to the source, and it was fair use of
the
image because it was newsworthy.

Attribution is irrelevant to fair use. It is possible that use of the
photograph comes within fair use, but I'd have to know a lot more about the
circumstances. In any event, the mere fact that a photograph is published
in newspaper does not render other news-related uses of the same photograph
as fair use.



I suspect that the practice of merely "lifting" the image and reposting it
on another site would be a violation of the copyright owner's rights.

I can think of exceptions, but on its face, you're right.

"Jeremy" wrote in message
ink.net...

"Walt Hanks" wrote in

This is what I teach my students, which is what our legal beagles told
us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc. Those rights include the right
to
control when and where an image or idea is shown or published.


A good example of Fair Use would be the showing the photo of Prince Harry
in
his Nazi uniform. The shot was taken and published by a London tabloid.
Television news services all around the world showed it--and in every case
I
looked at, what they did was to show the entire front page of the
newspaper--not just the photo.

There is a news media fair use exception, but it is very, very rarely
applied (the Zapruder film of the Kennedy assassination is one of the few
instances I can recall off the top of my head). I don't have an opinion
with respect to the Prince Harry incident because I missed both the incident
itself and the photograph of it. However, I can't think of any situation in
which showing the entire tabloid page would not infringe rights in the
photograph, whereas showing the photograph itself would.


It clearly gave proper attribution to the source, and it was fair use of
the
image because it was newsworthy.

Attribution is irrelevant to fair use. It is possible that use of the
photograph comes within fair use, but I'd have to know a lot more about the
circumstances. In any event, the mere fact that a photograph is published
in newspaper does not render other news-related uses of the same photograph
as fair use.



I suspect that the practice of merely "lifting" the image and reposting it
on another site would be a violation of the copyright owner's rights.

I can think of exceptions, but on its face, you're right.

"me" wrote in message
...
"Bruce Lewis" wrote in message
...
"Walt Hanks" writes:

"True211" wrote in message
...
Would it be considered a copyright violation if someone were to lift
an
image from a photographer's commercial web gallery, upload that
image
to
another hosting service (Tinypic.com or Pbase, for examples), and
post
the
new URL with a negative review of that image - all of this, without
any
knowledge or consent of the photographer? No intention to profit.

This is what I teach my students, which is what our legal beagles told
us to
teach. The intent and common application of intillectual property
laws
(copyright laws) in the U.S. are to protect the ownership rights of
the
person who creates the idea, image, etc.

You either need to get new legal beagles, or go back and ask them for
clarification. Ideas are explicitly not covered under U.S. copyright
laws:

vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv vvvvvvvvvvvvvvvvvvvv

TITLE 17--COPYRIGHTS

CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

Sec. 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ ^^^^^^^^^^^^^^^^^^^^

Those rights include the right to
control when and where an image or idea is shown or published.

Not exactly. The key word missing from your summary is "publicly".
Copyright holders do not have any exclusive rights under U.S. copyright
law to control non-public showings.

If a site isn't password protected it is public.

Yes, so? Public distribution is one of the rights reserved to a copyright
owner. However, making copies is another right -- even if a site is
password-protected, and not publicly accessible, it is still copyright
infringement to post an unauthorized copy on a website, private or not.


IIRC this has been ruled on
by the courts. In addition, copyright holders do have control of
distribution public or otherwise, one example is the warning at the start
of
all movies.

Yes, though the warning at the start of all movies isn't the law, but rather
a notice by the IP owner.


An informative discussion can be
found he

http://en.wikipedia.org/wiki/Fair_use

Urban legend edited by who knows who. IMHO that is not a good source for
info about fair use.

Agreed.

Look he

http://fairuse.stanford.edu/Copyrigh...er12/12-b.html

Fair use is an arcane equitable doctrine (meaning judge-made law) which has
been codified in the U.S. Copyright Act. However, despite the codification,
it remains an equitable doctrine, meaning it is fact-specific and determined
by the judge, and then only when it is raised in the context of a defense to
copyright infringement. That determination may be based on all, some or
none of the enumerated fair-use factors. Whether a specific use is likely
to be found a fair use is not something that a lay-person can readily
determine.


Sign,
me

"Walt Hanks" wrote in message
...

"Bruce Lewis" wrote in message
...
"Walt Hanks" writes:

"True211" wrote in message
...
Would it be considered a copyright violation if someone were to lift
an
image from a photographer's commercial web gallery, upload that image
to
another hosting service (Tinypic.com or Pbase, for examples), and
post
the
new URL with a negative review of that image - all of this, without
any
knowledge or consent of the photographer? No intention to profit.

This is what I teach my students, which is what our legal beagles told
us
to
teach. The intent and common application of intillectual property laws
(copyright laws) in the U.S. are to protect the ownership rights of the
person who creates the idea, image, etc.

You either need to get new legal beagles, or go back and ask them for
clarification. Ideas are explicitly not covered under U.S. copyright
laws:


Copyright laws are only one example of intellectual property law. There
are
also patent laws. And, when ideas are expressed in a literary form, they
are copyrightable. This has been extended, rather far it might seem, to
include published research in academic journals. There are mountains of
case law on this.

Patents protect novel inventions and processes.
Copyrights protect the expression of ideas, though not the ideas themselves.
Academic journals contain protectable expression, i.e. it is copyright
infringement to copy the specific expression of the ideas contained in the
journal. The ideas themselves, however, are freely available for use by
anyone without restriction (unless they constitute inventions or processes
for which a patent registration has been obtained).


Under fair use, you can use the results of my research, my words in
describing that research, even how I organized the report of my research,
but you must give attribution.

Sorry, but that's completely wrong. First, anyone can use the results of
your research -- those are ideas and are not protectable, except as patent.
Your ideas are freely available for use by anyone, with or without
attribution, except to the extent that such use constitutes patent
infringement.

The journal article in which you report your research constitutes expression
protectable by copyright. It can, in specific limited circumstances, be
used without your consent and without incurring liability for copyright
infringement pursuant to fair use doctrine. Fair use does _not_ require
attribution.

And the purpose can not be for monitary
gain.

And that's also incorrect (and, by the way, the word is spelled
"monetary" -- you've made that mistake twice). The character of a specific
use is one of the factors considered in determining whether something is
fair use, but it is non-dispositive, and there are numerous examples of uses
being held to be within fair use, even though they were for profit.

All of these elements are intillectual property.

"Intellectual property."


When a manufacturer wants to use my wife's data in developing a new
instrument for measuring the physics of the middle ear, they have to get
her
permission and pay her and the University where her research was
performed.

No, they do not. Data isn't protectable, either under copyright or patent.
The expression of the data as a specific sequence and arrangement _may_ be
protectable under copyright. Anyone accessing your wife's data pursuant to
a non-disclosure agreement ("NDA") would incur contractual liability for
unauthorized use. However, if your wife has published the data in an
academic journal (or even handed out a flyer at a lecture), the data
themselves may be used by anyone without infringing any intellectual
property rights of either your wife or her university.

When a for-profit developer of safety programs wants to use my data on
driver fatigue, they at least have to get my permission (wouldn't mind
getting paid either).

Not if it's published. If you've kept it confidential, it is your trade
secret and you can sell the data as you wish.


Those rights include the right to
control when and where an image or idea is shown or published.

Not exactly. The key word missing from your summary is "publicly".

Again, that's completely wrong. Title 17, Section 106 of the United States
Code specifies the exclusive rights reserved to copyright owners. Included
in these is the reproduction right and the right to prepare derivative
works, neither of which have a "publicly" qualifier, and both of which are
implicated by the OP's scenario.

Copyright holders do not have any exclusive rights under U.S. copyright
law to control non-public showings. There are exactly six exclusive
rights that go along with copyright, and they're clearly laid out in
17USC106.


An open website is public and the words "shown" and "published" suggest a
public presentation, do they not?

Read the statute.


As fas as I know, and I could be wrong, these fair use doctrines have
not
been applied to creative works, including images and music. In fact,
the
courts have held that the mere presence of creative works in your
personal
posession without having paid for their use is a violation of the law.
(Remember Napster?)

Napster was about copying and distributing, not possession.


You're splitting hairs. You can not have possession without either buying
or copying.

No, he is not splitting hairs. He's exactly right. "Buying" doesn't incur
liability. "Copying" does, as does "distributing." The Napster defendants
were liable for unauthorized copying (by downloading and saving protected
expression to their hard drives) and unauthorized distribution (by making
their music files available to others to download and save). They were
_not_ liable for unauthorized "possession."

As an intellectual property attorney, I have a small museum of interesting
infringements and knock-offs. Some I purchased, some were given to me. I
have incurred _no_ liability whatsoever, either by purchasing the
knock-offs, or accepting a knock-off as a gift.

And the recording industry successfully sued a lot of people to
enforce these laws.

Yes, but not for the reasons that you think.

My children mistakenly got caught up in this and when I
received a letter asking me to cease downloading files, their fun ended
very
abruptly.

That is because "downloading files" is the act of creating an unauthorized
copy on your childrens' computer.


It sounds like you're saying that original poster's scenarios could not
be fair use because they involve creative works. That simply isn't
true. The nature of the copyrighted work is only one factor in
determining fair use. Those scenarios sound like critique and satire to
me, which are generally fair use.

Title 17 doesn't define fair use, but gives the courts factors to
consider in each individual case. An informative discussion can be
found he

http://en.wikipedia.org/wiki/Fair_use

Anyway, that's my understanding. I am not an attorney, but I am an
academic
very concerned with the protection of my own intillectual property and
with
teaching my students to respect the right of others.

That's a very worthy goal. I'd suggest reading through Title 17, at
least chapter 1, to see what it does and doesn't say. I'm not a lawyer
either, but I found it very accessible.


Yes, but I know enough about the law to know that case law is more
important
than statute law.

Sorry, but that doesn't mean anything. They're both important, and you
can't ignore either.

And it is case law, as I understand it, that is paving
the way on internet uses of copyrightable material.

Only to an extent. Congress has enacted the DMCA (a very bad law, in my
opinion) which specifically addresses certain kinds of internet uses.


I hope you have discussions about ethics and not just legalities.

Of course, but then again, they're freshman who have been taught to
plagiarize their entire academic career. "Go to this or that website and
put it in your own words," is a common instruction in today's schools. It
is also plagiarism. Believe me, it is an uphill battle.

I've taught university as a doctoral fellow and have multiple graduate
degrees in addition to my JD. Believe me, I am very much pro academe. So,
please, do not teach your students the misconceptions which you have recited
here. I don't know your area of expertise, and I wouldn't presume to give
you advice about it. However, _my_ area of expertise is intellectual
property law, and I'm telling you that quite a bit of what you've said here
is wrong.


Walt

me wrote:

http://en.wikipedia.org/wiki/Fair_use

Urban legend [...]

A review of the document reveals no glaring errors to my inexpert eyes
(but see below). Please point to an "urban legend" found therein.

[...] edited by who knows who.

You click on the "history" link near the top and it tells you who has
made the changes. You can even compare versions. What more do you
need?

IMHO that is not a good source for info about fair use. Look he

http://fairuse.stanford.edu/Copyrigh...er12/12-b.html

This page is titled "When to use a release", and its contents do not
even use the phrase "fair use".

Maybe you meant:

http://fairuse.stanford.edu/Copyrigh...er9/index.html

except the contents of this document (and its children) seem to be in
fair accord with the wikipedia reference you denigrate. So if this was
the document you meant to reference, and if Wikipedia is a nest of
urban legend, then why isn't fairuse.stanford.edu?