A copyright conundrum

There are many mysteries in the area of copyright, especially in the digital domain.

Here is what is to me a very fundamental conundrum:

By way of background, as the owner of the copyright to an image, I have several exclusive rights, including:

•The right to make copies of the image
•The right to display the image publicly

The fact that my rights are exclusive means that others do not (in general) have those rights (unless I somehow convey them). (There is of course the doctrine of fair use, but I think that is not involved in my point here - but maybe it is.)

Suppose I take an image, in digital form, for which I hold the copyright, and post it on a non-password-protected area in my Web site. The intention, in copyright terms, is "public display".

A viewer, perhaps finding the image listed on an index, accesses it. When he does so, it is transmitted over the Internet under the auspices of his browser, and is displayed.

Of course, when the image file is received, it is written into the computer memory and presumably onto the hard drive as well (perhaps in the sense of caching). That certainly constitutes, in the technical sense, a copy of the representation of the image. (Which is of course all right with me - I expected that as an unavoidable part of the realities of "public display" in this context.)

But I did not grant any other party the right to make a copy of my image.

So does the writing of that copy constitute patent infringement? And if not, why? Would that perhaps constitute a form of "fair use"?

Now, assuming that such writing of a copy of the file didn't not constitute infringement:

What kind of action involving a copy of that digital image could a recipient do that would be infringement?

Would it be if he saves another copy of the image to his hard drive to a location other than where it already appears for caching? And if so, what is the legal distinction involved?

I'd be curious as to the take on this of those of you who have had to deal with copyright subtleties in your professional work.

Thanks.

Hi Doug,

Have never had to deal with subtle issues such as those that you talk about, but it got me thinking - and digging for some information.

There is some quite good information on UK Copyright Law at the following website: Link

Having read through some of the information on here I think that your example would fall under the definition of 'fair use', at least in the UK. This covers both backups and 'incidental inclusion' - which perhaps covers a browser/operating system caching a copy?

The definition of fair use does seem a little bit loose though, I'm sure it's one of those areas where good lawyers would make a difference if there was an argument!

Appreciate you're in the US, but hope you find the above of some interest.


Regards,

I want to add another aspect to the copyright concerns expressed in this thread.

In the past few days I received several emails about the copyright notice on the image in this thread and on my other images. I wrote this answer in response. I am posting it here but if it needs to be relocated please do so. I think that the issues I address and face are of concern to many phographers and thus very important to address in a public forum.



About the copyright text placed on my web images:

The type is not meant as advertising. It is meant as a way to see who is the creator of the photograph and provide my site address in case someone wants to contact me or find out more about me. This approach is widely used by many photographers as they become aware, like I did, that hot-linking and use of photographs on various sites without notifying the photographer is increasing exponentially. I have hundreds of people linking to my images from myspace and other networking sites.*

Also, from looking at my web stats for specific image files, I know that over 70% of people who look at my images download them to their computer. This includes people who see my photographs on this forum. Again, this is typical of web practices today. Other well known photographers who I have talked to face the same issue.

Regarding type size many photographers use even larger type sizes than I do. Some place the type in the middle of the photograph. I have decided to place my writing in the bottom part of the image, and I have used what I consider to be a medium type size.

It is not worth my time and effort to try and stop them. However, by placing my name and web address on my photographs I indicate who is the author of the image and where the original work can be seen. Since I use only 1 web version of each different image, this type appears wherever this image is posted, on this forum for example. The images are stored on my site.

If this is not up to your standards simply delete my posts because I am endorsing this approach to protect my rights and do not plan to make any changes to my approach. I work extremely hard on creating these images, I spend considerable amounts of money, and I think that placing a copyright logo the way I do is necessary to protect my investment and effort and intellectual property.

As an example, here is one photograph that features my copyright text:



Alain Briot
April 2009

Bonjour Alain
I can only agree with your concern, I to do have plenty images stolen.
Most of them on commercial websites! One day I will hire a lawyer, and it should bring some money back home…
In the meantime I also have chosen to embbed my name on the images, but a little bit less obvious than yours…
BTW, it wouls seem less "marketing" in fora if you write your name only and leave people do a Google search with your name only, you come out on 1st line of the 1st page!

As we're talking stolen images, we have discussed in OPF a year or 2 ago about a software that was supposed to recognized copies of an image posted on the Internet. Does anyone reminds this? I would be happy to test taht site again (at that time, it was a beta and their database wasn't really completed…)

Kind regards to all!

It's a serious issue and I am looking forward to hearing how others handle this.

Hi, Andrew,

Andrew Stannard said:

Hi Doug,

Have never had to deal with subtle issues such as those that you talk about, but it got me thinking - and digging for some information.

Having read through some of the information on here I think that your example would fall under the definition of 'fair use', at least in the UK. This covers both backups and 'incidental inclusion' - which perhaps covers a browser/operating system caching a copy?

Click to expand...

That certainly makes sense. I will read over some more the US information on fair use (which is intentionally vague!) and see if the same notion pops out.

The definition of fair use does seem a little bit loose though, I'm sure it's one of those areas where good lawyers would make a difference if there was an argument!

Click to expand...

Indeed.

Thanks for your insights.

Best regards,

Doug

Hi, Alain,

I for one have no problem with the idea of a copyright notice appearing on images presented here. It is the preferred way to put viewers on notice that the item is subject to copyright.

One might argue how "bold" it should be to fulfill that purpose, but that is up to the discretion of the artist/publisher.

Of course in some situations, it might be more artistically "nice" for such a notice not to appear. I've never been fond of the big "Ford" across the tailgate of my pickup truck either.

But the images presented here are not "deliverables" presented to a purchaser, who might legitimately request that no copyright notice appear on the face of the print. (When I buy a car, part of the deal is that the dealer not put his nameplate on it!)

Best regards,

Doug

Doug_Kerr said:

Hi, Alain,

But the images presented here are not "deliverables" presented to a purchaser, who might legitimately request that no copyright notice appear on the face of the print. (When I buy a car, part of the deal is that the dealer not put his nameplate on it!)

Click to expand...

There is no such text on my fine art prints. I did not mention it here because my purpose is not to sell prints. however mention of this is made on my website in the image galleries, wherever prints are offered for sale.

Alain

Nicolas Claris said:

As we're talking stolen images, we have discussed in OPF a year or 2 ago about a software that was supposed to recognized copies of an image posted on the Internet. Does anyone reminds this? I would be happy to test taht site again (at that time, it was a beta and their database wasn't really completed…)

Click to expand...

I know about this site:

http://tineye.com

The real question is:

How many of you who are so worried about copyright and usage, actually register your images? When was the last time you did it and what method did you use?

http://www.piercelaw.edu/thomasfield/ipbasics/copyright-on-the-internet.php

Hi, Bill,

Bill Miller said:

How many of you who are so worried about copyright and usage, actually copyright your images?

Click to expand...

I'm not sure I'm qualified to answer, as I am not "worried" about copyright.

My images, like everyone else's, are copyrighted (automatically) when they are recorded to a file in the camera ('fixed", in the legal language).

Perhaps you are inquiring about doing something further, such as applying a copyright notice, registering the copyright, depositing a copy with the Library of Congress, or something like that.

In that regard, at a minimum, I apply a copyright notice in the IPTC metadata when the files are uploaded to my computer.

When was the last time you did it and what method did you use?

Click to expand...

I did that last about ten minutes ago. The method I used was via a setting in Downloader Pro.

Best regards,

Doug

Doug_Kerr said:

There are many mysteries in the area of copyright, especially in the digital domain.

Here is what is to me a very fundamental conundrum:

By way of background, as the owner of the copyright to an image, I have several exclusive rights, including:

•The right to make copies of the image
•The right to display the image publicly

The fact that my rights are exclusive means that others do not (in general) have those rights (unless I somehow convey them). (There is of course the doctrine of fair use, but I think that is not involved in my point here - but maybe it is.)

Click to expand...

Doug,

This is such an important subject for us. You've started this discussion well.

Your own rights stem from your ownership of the image at the highest level whereby you can exploit it's potential for your benefit to enjoy, mine, change, derive and profit any way you choose or which you can get personal or technological help to realize.

When you show the image, you are granting limited rights.

When an image is published by you on the web, you are implicitly licensing the use for viewing only, (the temporary storage in the computer is of course allowed).

If you post it on your own website you specify the conditions for use of the content. That restricts the legal license you have granted. As Alain has pointed out, the image is likely to be downloaded to the viewers hard drive at least to examine it more closely for a short while. If you have not excluded this, the latter use might well be "fair use" AFAIK, but I'll ask.

In any case, under most circumstances, reposting an image is not licensed. Linking to your web available image and/or making it appear in your web page, is likely not allowed.

So what are the problems that arise:

The person who downloads it for "inspecting" or "hoarding", wither licensed or not, might re-post the image on some other website, without your consent and license paying your fee if you so require it, and now it's been re-published. If there is no ownership notice attached to the picture, then this image will be virally spread and its origin and ownership might be lost. So this is what I have been advocating repeatedly here on OPF.

Here are the MUST DO's when posting your images on the web to protect your rights:

Include Copyright © ownership in the IPTC file with your name

Describe Usage Rights with your contact information. "All rights Reserved" "License limited to use on http://ABC etc as you wish.

Add to the Description of the Picture, the line underneat it, either your email address or your website or your web searchable name so that any commercial users will not be able to assert that your pictures was an unidentified "orphan" and therefore open to exploitation without licensing from you.

Add to the edge of the image your name, website, agency or contact information. This must be legible. (Size and boldness I will discuss in a subsequent post).

Hopefully, the company who uses your image for an advertising campaign has deep pockets and makes it essential for their commerce. Then you have a good source of income as there are fees and considerable penalties for such unlicensed exploitation of your work.

Asher

Your image might be used legally for editorial comment. I'll also discuss my take on that in a separate post.

Doug,

In "Fair Use" of pictures from another website, my understanding is merely from reading and of course I'm no lawyer or legal authority. I understand that one can post another person's image for the purpose of editorial/academic, (or perhaps, in addition, certain other) discussion.


I refer to photographic work that has been shown on other websites. In each case, I endeavor to follow all these rules to the letter.

Asher

Editing or versioning within OPF is another subject, and one must have a really good idea that the person would not likely object. Most often I write privately to get consent. However, one has to be careful to get to know folks feelings on this matter as each photographer has different sensitivities.

Alain Briot said:

I know about this site:

http://tineye.com

Click to expand...

Thanks Alain!

Do you use it?
Some other OPFers?

Nicolas Claris said:

Thanks Alain!

Do you use it?
Some other OPFers?

Click to expand...

Yes, I check a few of my images out every so often but since I have to select one photograph at a time it is tedious and time consuming. It's more productive to sell prints instead of looking for those who want to use the image for free!