Understanding Online Photo Rights

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?

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