32 Comments

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

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  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?

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  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.

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  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.

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  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.”

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  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.

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  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.

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

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  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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  10. if someone through a hissy fit that i used one of their personal images on my personal site, id’ tell them to go f themselves, and then i’d take it down, and then point people to the person so they knew what some people were like.

    if they were very nice about it, i’d work out some offer like you did.

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  11. web worker – yes, my husband is in government work and in the sciences and has it drilled into him all the time about citations and such.

    When you’re an indy worker isolated on your own, you don’t always get that kind of input.

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  12. I had the question of copyright brought up to me about a design in general – not photographs. So the css file was copied and the same structure used to give it the same look and feel. Is there any copyright with that?

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  13. @Shelane – short answer, yes.

    Long answer (IANAL), in the US, anything written is automatically copyrighted. This includes works of literature, photographs, art work, and even computer source code. The CSS file falls into that last category, as does the HTML file, the images used in the design and any JavaScript, etc.

    Design by itself cannot be copyrighted, though it can be patented, but that is a different discussion, and it isn’t granted automatically like copyright is.

    That said, if you asked multiple people to write a loop in JavaScript that counted from 1 to 10, they would all look very similar. Likewise, a CSS file that does some basic styling to meet a set of written requirements might end up looking more or less the same to the competition’s response to those same requirements.

    When working in a limited language set attempting to accomplish the same goals it is inevitable that many similarities will exist. However, that doesn’t grant you license to take the work done by somebody else without their permission.

    Luckily in the web design community, many recognize these facts and only require attribution for you to be granted a license to use their copyrighted work. When taking CSS or JavaScript, etc. from a web source for your own use, make sure to understand the license it is granted under before using yourself.

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  14. Even when “laws” seem so easy to understand, there are always gray areas for all of them. That’s why when there are lawsuits there are clarification of the laws and sometimes multiple opinions from different Judges.

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  15. Hi —

    I’m a photographer, and yes, of course, I’ve had my copyright infringed in all of the above ways, *plus* someone taking a very distinctive and somewhat well-known photo off of my site and using it in a comment on another site of mine, claiming said photo as their own. Yes. Seriously. This has happened.

    If someone takes a photo off of my site and uses it with credit but without permission, I may or may not do anything about it, depending upon the larger context. The odds are good that I’ll drop a line just to start a friendly dialogue with someone who appears to like my work. I realize that that might come back to bite me in a legal battle, but there you are.

    If someone takes a photo off of my site and uses it without credit or permission, I may ask them to remove it, or give me credit, depending on the context.

    If someone HOTLINKS an image off of my site, with or without permission, I will take action. If it’s someone I know or otherwise don’t want to be mean to, I’ll just ask them to stop doing that. Otherwise, public humiliation is the order of the day. I will replace the image in question with something embarrassing for a day or two, then block their IP forever and ever. Die, hotlinking scum!!!

    And if someone takes one of my images and claims it for their own and I find out about it, they can put their head between their legs and kiss their ass goodbye.

    Obviously, there’s no way I can know for sure how much piracy of my images goes on below the radar — plenty, I’m sure. What’s bizarre is that for the most part, it’s unnecessary. If someone comes to me, says, “Hey, I like your pictures. Is it okay if I…?” and gives me credit, the odds are very high that I’ll say yes and we can be friends. Some people just can’t be bothered, I guess. Oh well.

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  16. @Peter

    so what would you do if they just went straight to your ISP/webhost with a DMCA violation request and had you shut down? They are completely within their rights to do that. Using someone else’s content is using someone else’s content.

    One of the reasons that people don’t understand the laws about copyright and copying is that they see people just copy stuff and think it must be OK because everyone else does. But it isn’t OK.

    Having said all that, I wouldn’t let the valuable versions of my work out on the web for anyone to copy anyway. The smart move is to make a lower res, less valuable version with a small, subtle notice about author/where to get it – the kind of thing people would just leave in – and then encourage copying.

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  17. [...] einbinden? Hier sind ein Paar interessante Aussagen. Ist zwar USA, hat aber auch eine generelle Gültigkeit hier [...]

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  18. As had been hinted at above, serving the image from the source site doesn’t make the transgression better – it makes it worse.

    That’s because the photographer is paying for the bandwidth you are now using.

    That’s a double whammy and a very big no-no.

    Anyways, I appreciate the writer’s honesty.

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  19. [...] WebWorkerDaily has a post on Understanding Online Photo Rights [...]

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  20. As a photographer, I have no objection to someone posting a photo they have taken of mine and displaying it somewhere else. That’s why I watermark everything that’s available as a JPG; if you are that concerned about not getting some sort of direct credit or link bank then just put a small watermark in the corner of your photograph.

    Now, if someone were to crop out the watermark I wouldn’t find that good etiquette and would probably find that offensive.

    As for bandwidth, if you are starting to lose that much bandwidth then just disable hotlinking in your control panel.

    It’s not the viewers responsibility to know the laws and by some intuitive source know whether the photographer finds it ‘stealing’ or exposure.

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  21. what about a password protected educational site designed by middle school students?

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  22. [...] had proper knowledge of copyright law when they did it, or it might be an honest mistake (such as what happened to fellow WWD blogger Aliza Sherman a few months back).  Show them the facts and tell them what they need to do to set things [...]

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  23. It occurs to me – after reading this again, and some of the responses… what about the statute of limitations? What about the laws as they existed in 2005?

    I wonder if the statute of limitations hadn’t run out, although I’m sure that this was still copyright infringement in 2005.

    I was surprised you didn’t understand this as copyright infringement, but then I’ve been tracking so-called “intellectual property” for some time…

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  24. A large weekly newspaper in Montreal once used one of my Flickr photos of a spoken word artist to accompany an article they published about her. It appeared both on the web and in the paper, without credit, and without permission.

    They never contacted me about it, and it was only coincidence that I noticed the infringement. When I contacted them to ask about it, they were quite rude, blamed the artist, claimed they were within their rights to use the photo, and stubbornly refused to do anything about it other than give me a credit on the website.

    After I persisted they finally agreed to pay me $50; however, I never received the payment.

    I ended up dropping it altogether, as the stress it was causing wasn’t worth it. I typically aren’t bothered by a blog using my photo, and have always freely given permission when asked. But I feel much differently when it’s taken by a commercial newspaper with a budget to pay for photography — and the experience to know they should.

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  25. Embedding an image is copyright infringement, along with STEALING bandwidth from that website, not just a problem with the image, but a problem with using up someone else’s web traffic (bandwidth) amount. If the site (and the image that is embedded) gets a lot of traffic, the original person could be liable for extra fees on their website because it got too much traffic.

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  26. @David – the current copyright law has been in effect since 1978, no statue of limitations are relevant.

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  27. [...] Sherman of WebWorkerDaily posts a very good read about copying an image off a photographers website and placing it on her [...]

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  28. what if I wanna use an online photo on a brochure?

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  29. I found a comment that I left here two years ago and wanted to update it to reflect a changed point of view. When this article was first written I don’t think reverse image searching was a reality, or if it was then it was neither accurate nor notably useful. While reverse image searching is still a little bit away from perfection, it is becoming more of a reality. In the near future I predict better meta tag preservation along with more accurate reverse image searching results eliminating the need to copyright or watermark images, based on how you want to brand your images.

    If someone wants to erase your watermark then they are going to erase the watermark, tools to do this are now free and easy enough for the average non-technical person to use. Instead of worrying about how many people are seeing our artwork without logos we should be ensuring that when someone searches for the source they can easily find it.

    If someone is hot-linking to an image why the heck would you turn away all those extra eyes? Write a script to route the hotlinked image to a custom advertising image of yours unless the user has already been to your site before.

    Two years in the future,
    -Chris

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  30. Quite possibly the best photo copyright write-up I’ve ever read. Thank you. I will be linking to this shortly. I also just sent it to someone who yanked a photo off of my site.

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