Fair Use, and Copyright

[Adrian Wareham]

From another conversation: "I don't give away full-size images. There is a lot of detail taken out by hosting websites. Notwithstanding, here, for the purposes of education, someone COULD legally "use", at least within a limited sense, my pictures to create derivative works, and so forth, under the fair use act. Besides, it's easier to prove authorship with the high quality original than a watermark. Traditional watermarks can be removed. Sufficient compression of the image file so that some data is lost guarantees that no one can quite emulate the original.

At least, that's my take. Again, if I really want to sell a photo, I only post teeny teeny versions anywhere. heh If people want to make prints from thumbnails, they can have-at-it!

-Adrian"

I actually spent some time looking over the Stanford law material on fair use, and precedents relating to it. I record a lot of video and ended up getting interested when YouTube said that some bagpipers playing a song (which was written before copyrights could be applied) was turned into "Amazing Grace". However, they did not sing the lyrics, the tune is centuries old, and they played their own "spin" on it. Since fair use is explicitly designed to allow for parody of the work, and Amazing Grace is a hymn, playing it on the pipes, at least in the US, should be considered fair use. YouTube caved to me when I sent that to them. (or at least they never put up ads, nor removed it)

Anyway, that's about all I know on the subject here in the 'states. What are the experiences of everyone else here regarding copyright and fair use?

-Adrian

 

[Asher Kelman]

From another conversation: "I don't give away full-size images. There is a lot of detail taken out by hosting websites. Notwithstanding, here, for the purposes of education, someone COULD legally "use", at least within a limited sense, my pictures to create derivative works, and so forth, under the fair use act. Besides, it's easier to prove authorship with the high quality original than a watermark. Traditional watermarks can be removed. Sufficient compression of the image file so that some data is lost guarantees that no one can quite emulate the original.

At least, that's my take. Again, if I really want to sell a photo, I only post teeny teeny versions anywhere. heh If people want to make prints from thumbnails, they can have-at-it!

-Adrian"

I actually spent some time looking over the Stanford law material on fair use, and precedents relating to it. I record a lot of video and ended up getting interested when YouTube said that some bagpipers playing a song (which was written before copyrights could be applied) was turned into "Amazing Grace". However, they did not sing the lyrics, the tune is centuries old, and they played their own "spin" on it. Since fair use is explicitly designed to allow for parody of the work, and Amazing Grace is a hymn, playing it on the pipes, at least in the US, should be considered fair use. YouTube caved to me when I sent that to them. (or at least they never put up ads, nor removed it)

Anyway, that's about all I know on the subject here in the 'states. What are the experiences of everyone else here regarding copyright and fair use?

-Adrian

Hello Adrian,

A fellow in New Zealand, I believe it was, noticed his friend's photo on a bottle of Nestlé product and congratulated the guy, who had no idea of that! The picture was lifted without permission and the financial settlement was handsome and changed the guys life!

With your own work, you can support a local kid getting a tutor or feed the homeless.

I think it's good to at least associate a work with its author as this give folk respect for one another. OTOH, it's generous indeed and praiseworthy that you want to put your work into the public domain. Still the etiology and provenance of creative works is helpful to for us to learn more about each other's worth and substance. After all, your photos are part of yyou speech and tell as much about you as about what you photograph.

Asher

 

[Cem_Usakligil]

The problem of being on the forums for so long is that most discussions have been conducted many times in the past. It can get tiring making the same statements over and over. Here are a couple of intetesting links. See if your questions have already been answered or not.

http://www.openphotographyforums.com/forums/showthread.php?t=13691

http://www.openphotographyforums.com/forums/showthread.php?t=13905

http://www.openphotographyforums.com/forums/showthread.php?t=13376

http://www.openphotographyforums.com/forums/showthread.php?t=10384

http://www.openphotographyforums.com/forums/showthread.php?t=11430

http://www.openphotographyforums.com/forums/showthread.php?t=10097

http://www.openphotographyforums.com/forums/showthread.php?t=8359

I could go on further but won't. Just do a search if you want to.

 

[StuartRae]

You may like to have a look at this, which I find somewhat puzzling.

Regards,

Stuart

 

[Adrian Wareham]

haha Thanks, Asher. This was a real hit with the locals. haha

I didn't have any questions or concerns. I have read most of the case law, and the written law is public knowledge. I was just wondering what everyone else here thought and knew. So I started a thread.

By the by, these laws are constantly evolving, so it IS a good idea to start a fresh thread now and again, just to keep up with current developments.

-Adrian

 

[Cem_Usakligil]

Hi Adrian,

haha Thanks, Asher. This was a real hit with the locals. haha

I didn't have any questions or concerns. I have read most of the case law, and the written law is public knowledge. I was just wondering what everyone else here thought and knew. So I started a thread.

By the by, these laws are constantly evolving, so it IS a good idea to start a fresh thread now and again, just to keep up with current developments.

-Adrian

Just to prevent a potential misunderstanding, I was not objecting to you starting a new thread. I was just trying to be helpful by providing links to interesting threads from the past. You are right in that things evolve and revisiting them periodically is a good idea.: )

 

[jake klein]

So your saying I should allow my full res files to be viewed on flickr? Oh well, I like the fact that any of my family can make a large print from any picture I post to that site.

If I were running a business it would be a different story though.

 

[Adrian Wareham]

No worries! This was one of the most useful bits on fair use in US law: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/

Just in case anyone else finds that helpful ...

 

[Adrian Wareham]

Jake, if the data is compressed with JPEG to a quality that is suitable for standard paper size prints, it can still be much lower quality than the original. In a copyright dispute, it's just like seeing the blemishes on a photocopy.

So, at the minimum, I'm just putting out a photocopy, in a sense. Not bad enough to notice, but different enough to detect.

 

[Jerome Marot]

Some people actually put full resolution pictures on the web in the hope that somebody else will use them and they can extract a nice settlement fee...

Of course, whether that is possible depends on the particulars of the laws of your country. Which shows the limits of the discussion: we all live in different countries and the laws are different. For example, there is no equivalent of "fair use" where I live. The concept of "copyright" is also subtly different from the concept of "droits d'auteur" or "Urheberrecht". How are we supposed to discuss the concepts if they are different for every one of us?

 

[Asher Kelman]

Some people actually put full resolution pictures on the web in the hope that somebody else will use them and they can extract a nice settlement fee...

Of course, whether that is possible depends on the particulars of the laws of your country. Which shows the limits of the discussion: we all live in different countries and the laws are different. For example, there is no equivalent of "fair use" where I live. The concept of "copyright" is also subtly different from the concept of "droits d'auteur" or "Urheberrecht". How are we supposed to discuss the concepts if they are different for every one of us?

Jerome,

but I photograph in Paris, London, Florence and show them in the USA. So what laws count? At the very least, when I'm in Paris I'd better know something of what's legal!

Asher

 

[Jerome Marot]

For copyright, what counts is the country where the picture is published.

 

[fahim mohammed]

Cem is right you know. This subject has been beaten to death.

If one can get away with ' it ' i.e. with infringment..not only of copyrights but life itself; that is all

that matters in practical terms.

Discussions, such as the one we are having for the umpteenth time, are to give a false sense

of open debate. As if that matters.

Take a walk along the Embankment, or visit the Louvre; just two examples.


Then tell me about copyrights and infringement of property rights.

Else, we are wasting time. Sounding off in grandiose fashion. All sound and fury..signifying

nothing.

There is discussion like similar to the one we are having here; giving one a false sense of

choice..black or white. An ass or an elephant.

Everyone is happy. Me included. Something for me to write about.

Yes sir, it sure does matter. Such discussions.

Think about the most famous and recognizable portrait of modern times. Got that one?

Was there ever a model release? Any permission sought and given?

All such discussions are hogwash. And I am being very generous to the intellegensia here.

 

[Adrian Wareham]

This is not the direction threads should go. If you aren't interested, move along and the thread will go away on its own. There is no reason to try to stop those of us who are interested from having a discussion.

Cheers,
-Adrian

 

[fahim mohammed]

Starting a new thread on a subject for which there are multiple views generally leads to...differing

opinions; the value and veracity of arguments then are relative to one's point of view.


It would have been, in my opinion, more productive to add your opinions to one of the previously

posted threads. ( one of several I might add ). In that way those of us who had already

expressed our views on this subject would have ' moved along ' as you say. At least I would have

moved along. Moved far far along.

I am refering to the subject of this thread. Nothing more.

A million photographs of cats or dogs or flowers are much more instructive. Each one is different.

Fresh. New. Even then there is place reserved for them on this site.

If I do not like cats and/or dogs, I could just ' move along '. Much easier for me that way.

 

[Adrian Wareham]

I was asked to create this thread from a private conversation the with owner/editor of this site. So, chill.

I used to see this all the time anywhere I was an admin. People forget that discussions aren't just lists of facts. We admins would put the information part of a common thread into a sticky, and let people discuss elsewhere all they want.

Besides, this is the Layback Cafe. The purpose of a post here is to start a conversation. If you don't want to continue to discuss this subject, don't. I, on the other hand, would still like to hear anyone else's current thoughts on the matter of fair use in light of potential legislature, like SOPA.

-Adrian

 

[Jerome Marot]

Fair enough. Let me answer your question:

I record a lot of video and ended up getting interested when YouTube said that some bagpipers playing a song (which was written before copyrights could be applied) was turned into "Amazing Grace". However, they did not sing the lyrics, the tune is centuries old, and they played their own "spin" on it.

This has nothing to do with "fair use" or parody. The melody is old enough to be in the public domain. If you friends play a melody which is in the public domain, they can publish it on the net as they wish. Same if they play classical music (say Bach or Mozart): the copyright has lapsed.

Where it gets a bit tricky is in case of "arrangements". Suppose someone arranges some tune of a Mozart symphony to be played on the piano. The melody is in the public domain but the arrangement is a derivative work and copyrighted as such. The copyright belongs to the person who arranged the melody.

Where it gets even more tricky is that this person may have a contract which forbids it to give their own music away for free. This is often the case in some countries when a musician has published CDs with a label.

 

[Adrian Wareham]

This has nothing to do with "fair use" or parody. The melody is old enough to be in the public domain. If you friends play a melody which is in the public domain, they can publish it on the net as they wish. Same if they play classical music (say Bach or Mozart): the copyright has lapsed.

That was also part of my argument. The reason it was flagged is that, in the last century a specific version with specific lyrics was copyrighted. Wold Media Inc (I think) has since tried to extend that copyright across anything with a very similar tune, lyrics or no. Eventually it was conceded that this was not infringing. But you'd think something so ubiquitous as "Amazing Grace", even with the lyrics, would be impossible to copyright at all!

 

[Jerome Marot]

That was also part of my argument. The reason it was flagged is that, in the last century a specific version with specific lyrics was copyrighted. Wold Media Inc (I think) has since tried to extend that copyright across anything with a very similar tune, lyrics or no. Eventually it was conceded that this was not infringing. But you'd think something so ubiquitous as "Amazing Grace", even with the lyrics, would be impossible to copyright at all!

There is no registration for copyright (as there is for patents, for example). Therefore "trying to extend a copyright" is not possible. The only think which can happen is that World Media Inc goes to court whenever a similar tune is published.

This is a very important difference. Why? Because World Media Inc can sue whomever they want, whether they have a copyright to not. They can sue for pieces long in the public domain, even when they are sure to lose in court. Who knows? The other party may just get afraid, cave in and pay. And when a third party is in the middle, as would be the case for youtube, that third party may cave in as well. This is even more likely if legislation increasing the responsibility of that third party is voted, as was in the news last week.

This is however not a problem with copyright per se, but a problem with the judicial system.

 

[Asher Kelman]

There is no registration for copyright (as there is for patents, for example). Therefore "trying to extend a copyright" is not possible. The only think which can happen is that World Media Inc goes to court whenever a similar tune is published.

[/QUOTE]


Jerome,

One can register for copyright purposes, at least in the USA. One sends the material to the copyright office and then one also sends a registered sealed letter to oneself with a copy inside in case there's a lawsuit.

I take responsibility for this new thread. I suggested it because of the new twist of major generosity and openness in post work without © designation. In fact Adrian wants people to use his pictures, even make money off them! So that informs us of another angle in this discussion.

Fahim,

In a group setting, one could have a monitor who's say, "Stop", we discussed this 7 months ago, so let's print out the notes, lest we repeat ourselves". Rather, we one could say, "Those who weren't with us 7 moths ago might appreciate these points from a discussion of that time".

That, perhaps could be an approach to consider.

Otherwise, how could we discuss anything?

Asher

 

[Cem_Usakligil]

...Rather, we one could say, "Those who weren't with us 7 moths ago might appreciate these points from a discussion of that time".

That, perhaps could be an approach to consider. ...

Asher that is why I have spent my precious time collating those URLs and posted them for the benefit of the readers.

..
Otherwise, how could we discuss anything? ...

Fwiw, I don't like discussing things just for the sake of having a discussion. My time is too valuable for that.

 

[Mark Hampton]

You may like to have a look at this, which I find somewhat puzzling.

Regards,

Stuart

Staurt thanks for that - the judge is an arse. then again most of them are.

the implications of this ruling are the things of nightmares.

cheers

 

[Jerome Marot]

Jerome,

One can register for copyright purposes, at least in the USA. One sends the material to the copyright office and then one also sends a registered sealed letter to oneself with a copy inside in case there's a lawsuit.

Yes, but the misunderstanding hangs on the meaning of the word "register" in the context of "extending copyright". One can "register" in the sense that one can construct a proof that a particular creation of the spirit was published by him at a given time. That does not allow one to "extend copyright".

I gave the specific example of patents. Patents are examined (in the US and in most part of the world). That means that someone will decide that something which is applied for is indeed a new invention. This, in turns, defines the extent of protection. That would be analogous to "extend copyright".

Except that there is no such process for copyright. You don't have to prove that what you "register" is yours or is new, you just state that it was published.

The legal construction of "copyright" is that nothing is decided before infringement and trial. That is a very important difference with properties or patents, where the extent of the property or of the invention is defined before infringement and trial.

 

[Jerome Marot]

Staurt thanks for that - the judge is an arse. then again most of them are.

If you read the judgement in detail, you will find that the judge is actually quite reasonable.

 

[Adrian Wareham]

This is however not a problem with copyright per se, but a problem with the judicial system.

They recently enacted some laws to prevent that. The "SLAPP" laws. I believe it's just in California, though. Here it's a criminal offense to file lawsuits as a means of intimidation, or to cause damage to another person while he, or she, waits for the courts to decide.

 

[Michael Nagel]

I know that this discussion is not new and there are a lot of valid points in the posts above and in the threads being linked. Here is my personal take on Copyright and Fair Use.

Photography is my hobby and passion, but I do not gain my income from it. My intend is not to sell (except maybe somebody nicely asks for it and insists a lot) as I license my photos CC-BY-NC-SA. The NC and SA part are very important for me.

During the last 10-15 years, professional photographers became increasingly under pressure by two elements:
1. The flood of images created by amateur photographers and easily distributed via the Internet.
2. The changing attitude of many publishers and people in need of photos to use available photos from the WWW and for those who needed e.g. a particular photo to take it themselves and to use the (in most cases) inferior quality as it was cheap (in multiple ways).

I like to publish my photos on the WWW. I have no objections at all, if these are used in a non-commercial context, hence the NC part of the license. The SA (share alike) part completes this approach. I do not want to be one of these amateurs and enthusiasts who intend to be (or even worse - pose as) professionals thus creating pressure on the market through the lower prices they ask for and making life of those who have to live from it more difficult.
The BY part is interesting for me, as this helps me to see, which kind of photos are popular and which not.

What makes life difficult from time to time are companies or individuals using my photos in a commercial context. This happens both intentional and unintentional. Usually I write an e-mail and the photo is removed from the site. Sometimes this process takes a while and requires insistence. The license is well visible on each page, but I have the impression, that Watermarks are increasingly needed, as people tend either not to read what's written in terms of license or even worse - misread (unwillingly or willingly) the license terms and repeat these falsely.
For me this is not good for all the free, non-commercial content and the connected Culture.

Best regards,
Michael

 

[Mark Hampton]

If you read the judgement in detail, you will find that the judge is actually quite reasonable.

no jerome its not. it is really piss poor. i can apply that judgment to most images that have been made of landmarks, with the same or similar tonal ranges from the same or simal vantage points.

the law in this case and the judge are idiotic. i now have to find out if the english law applies up here.

 

[Adrian Wareham]

That does not allow one to "extend copyright".

A better word would have been "overreaching". It seemed that they were overreaching well beyond the scope of their rights under copyright law.

Cheers
-Adrian

 

[Jerome Marot]

i can apply that judgment to most images that have been made of landmarks, with the same or similar tonal ranges from the same or simal vantage points.

No you can't. The judgement is such because the defendant tried to redo a picture from the plaintiff, not because the bus is red. You obviously have not read the judgement in detail.

 

[fahim mohammed]

Will you steal. Loot. Confiscate. Buy and sell known stolen goods.

Knowingly.

Would you then hypocritically indulge in a pseudo-intelelligent discussion of copyrights, patents,

property rights and the like?

Would you then ask me to ' move along '.

I respect Asher. But respect does not imply an absence of disagreement. Me and Asher have, will

and shall disagree. Vehemently on many issues. In public but mostly in private.

But I do not have time for those that tell me to ' move on', from behind the safety of the internet.

One cannot discuss copyrights and the like, if one chooses to ignore and skirt the issues

of stealing, buying and selling of stolen goods, exhibiting and profiting of artistic work; not

only of a person but entire nations.

Those that claim to have been ' admins' and trumpet this fact hoping that this shall impress the

s**t out of me and get me to ' move along ' but fail to address issues I have put forward, are

worth the bother for me. Because such and their followers would deny an entire people their

artistic copyrights, and appropriate compensation, to preserve their own. And that, my friends, is

my issue with this hypocritical discussion.