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Summary:

To find out more about photo rights on the Web, I turned to a lawyer, Deena B. Burgess, Esq., Managing Partner with the Law Offices of Deena Burgess, and gave her a few scenarios to comment on. Here is what she had to say.

I recently had an email exchange with a photographer. He was unhappy that I used an image from his web site on one of my blogs without a proper credit or link back to his site. I took a look at the blog page in question – from 2005 – and noted that indeed, I did not credit him or link back to his site. So I removed the image immediately and replaced it with a Wikipedia Creative Commons image.

The photographer was not satisfied. He asked that I pay him retroactively for using his image. I argued with him that the blog was not a commercial one, it didn’t get very much traffic at all, and even though I did not link back to his image, it was embedded using the actual image HTML code from his site so all anyone had to do was view the image to see the source. He persisted. After further research, I learned that I was in the wrong.

To find out more about photo rights on the Web, I turned to a lawyer, Deena B. Burgess, Esq., Managing Partner with the Law Offices of Deena Burgess, and gave her a few scenarios to comment on. Here is what she had to say.

Scenario 1: I copy someone else’s image onto your computer and upload it onto my FTP site but I include a copyright notice and link back to the photographer’s site (I do not notify them that I have done this).

From Burgess:

The first thing that needs to be understood is that every photograph is the intellectual property of the person who took the photograph.  Copyright protection attaches even where the person has not put a copyright notice and even if the copyright is not registered with the Copyright Office.  (You do, however, need to register with the Copyright Office in order to sue on your rights.)

Every copyright holder has certain exclusive rights that attach to their work.  These include the right to reproduce, distribute, display and create derivative works from the work (there are others that don’t apply to photography).  Without permission, even if you were to give credit to the copyright holder, you would still be infringing their work.

As far as my liability for you loading the copyrighted of the work onto my computer and uploading it from there, I could be subjected to vicarious liability for my part (or, more accurately, my computer’s part) in the copyright infringement.

If you were to contact the photographer and ask for permission to use the photo, you then would not be violating the rights of the photographer provided you abide by whatever terms the two of you agree to.

Scenario 2: I don’t copy their image at all but instead embed it onto my site using the URL of the image that resides on their site – so it appears on my site. I include a copyright notice and link back to the photographer’s site (I do not notify them that I have done this).

From Burgess:

Again, since the copyright holder has the exclusive right to distribute, display and create derivative works from their work, even embedding the photo on your site would violate the copyright on that work.

If you were just to include the link on your site where the image is not displayed, rather than the photo, you would not be violating the photographer’s copyright to the work.

Scenario 3: I don’t copy their image at all but instead embed it onto my site using the URL of the image that resides on their site – so it appears on my site. In this case, I DO NOT include any credit or link back (I do not notify them that I have done this). But if someone were really interested in the source, all they would have to do would be view the image to see where it came from.

From Burgess:

Similarly to the answer to question 2, the display of the image on your site without permission is a violation of the exclusive rights of the photographer.

You need to either ask permission to use the work (which is often freely given when you explain that you’re crediting the source in any way that they’d like) or you need to include the link rather than the picture itself.

Back to my bad move on using a photographer’s image without permission, without credit and without a link. Learning that I could negotiate something other than pay for my infringement, I offered to feature him in an interview on my blog and include a small ad on the blog linking to his site. He was thrilled with the offer and accepted both as payment for the past use of his image.

Have you infringed on someone else’s copyright or had someone infringe on yours? How did you resolve the issue?

  1. Greetings,

    Nicely done! Easy and simple to understand information about things to consider PRIOR to using photographs available on the Internet. Now if we could just get the rest of the world to visit (and understand) your blog post!

    :)
    Dale

  2. I’m kind of stunned that with your history of interaction with the internet – before most people knew what the internet was – that you didn’t know this.

    I’m also stunned that people continue to think that the internet is a buffet to take content from. The last time I challenged a website to honor my Creative Commons license on Flickr they just refused to ever interact with me again. Other people offer, as you did, that the site “isn’t commercial” and that they’re giving me “exposure”. A lot of the time I would give permission if someone bothered to ask BEFORE doing it (a lot of people use my work and then write saying, “Hey, I did this! Hope it’s okay!!”) but a lot of times I just don’t want my content diluted (and that argument usually results in the childish “Well your photo isn’t that great anyway!” which begs the response “SO why are you so upset about not using it?”).

    How would you feel if someone just copied your columns into their web site with no attribution, with the argument that your writing should be obvious to recognize?

  3. Photographer – as I mentioned in my post, the image was embedded using the photographer’s own image HTML code and back in 2005, this was still a fuzzy area. The thinking back then amongst those of us not in the legal profession was that if you don’t copy it onto your computer and don’t claim it as your own – and if you use it while it still resided on the other person’s site – it would be “fair use.”

    If anyone used any of my content using code – in the case of text it would be my RSS feed – but didn’t have a live link back or a credit – I’d simply ask them to please provide that. If the photographer had asked me to do the same, I would have been happy to do so.

    If they were selling my content and claiming it as there own, then I’d ask them to stop.

    A lot of what I publish online is for someone else so they have the onus of policing it for copyright infringement.

    For the stuff I publish personally, I don’t make money from it and am putting it out there to be shared. Sure, I’d love a credit or link back, but I just love sharing it and having it shared.

  4. I have to agree with photographer’s comments. As someone who has been doing websites for 14 years, it’s my opinion that this particular issue hasn’t been fuzzy for a long time. In my experience, people only call it fuzzy when they want to get around it: when it’s their own product being used by someone else, it’s pretty clear cut.

    Also, it’s not someone else’s responsibility to police your work for copyright infringement: that falls under what’s called professionalism. I am appalled that WWD would promote that attitude.

    For the record, I’m not someone who has been “burned” on this issue; the majority of my work is for public domain sites. I’m just confused that this issue is still being treated as “news” by professional web workers.

  5. If this explanation is meant to correspond to U.S. law, then you need to accept that fair use entitles people other than the copyright holder to reproduce a photograph under some circumstances. It is false to state categorically that reproducing a copyrighted photograph without advance permission is always copyright infringement.

    The photographer is not necessarily the copyright holder.

    Though the phrase is quite common, copyrighted works are not “property.”

  6. In the same vein is the issue of orphan works. There is a law the publishing industry is attempting to pass, H.R. 5889, which essentially says that if you make a “reasonable” attempt at finding a copyright holder and you can’t, then it is permissible to use (read: steal) the work. The definition of reasonable is yet to be determined, however, and the artist, or author, or coder, for that matter, will have very little or no recourse for reparations if their work is deemed an orphan.

  7. web worker – I’m surprised that you are surprised and appalled.

    First, I’m being open and honest about a misunderstanding I had and did my best to do additional research, rectify the situation to the satisfaction of the “injured party” AND share the experience I had to hopefully help others who aren’t as informed as you seem to be.

    After 18 years working online, I still am fuzzy about all sorts of legal issues pertaining to the Internet and turn to my corporate attorney to help when I have a question. At the time I used that image, I didn’t have a question and that was a mistake I admit.

    Second, if I sign a contract with someone else and write or blog for them, it actually is their responsibility to police their marks, copyrights, etc. which I’ve assigned them in the contract. They have a legal department. I’m just one person.

    That said, if someone else is infringing on work that I’ve written under assignment to another company, I do make that company aware of it. But as an indy web worker, I don’t have the means to pursue anything legal on their behalf.

  8. Aliza, you did a good thing by sharing this story with the clear intent to help others. I, for one, thank you.

  9. Aliza – That’s so interesting! I guess it’s just an example of how things vary between sectors, fields, and/or organizations.

    As a gov worker who does everything from developing content to code to design, it was a written part of my basic job requirements to have a working understanding of the legal issues and regulations that apply to the web sites for which I am responsible. Like you, I have counsel I go to when there’s a gray area; I’m not supposed to play lawyer (thank goodness!), but I am expected to keep current on the issues — from copyright to Section 508 — as they apply to my work.

    When I did similar work in small non-profits, it was my responsibility, too.

    It may also be that I work in the sciences, where it’s drilled into you from day 1 that you have to be clear on what is or isn’t original work and to cite your sources.

    So, I (happily) continue to live and learn!

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