21. Yes it's a bit like the "benefit" movies receive when they are downloaded off bittorrent or kazaaa - more people see the movie, but nobody involved in the creation of it get paid for their work.

Posted at 6:24AM on Dec 19th 2005 by Robert

22. I completely disagree that copyright infringement is not theft -- my copyright is my legal claim to my intellectual property. Is my intellectual property less protected than my personal property? US Copyright Laws grant me, as the creator, certain property rights to the physical manifestations of my creative ideas and abilities. One of those rights is to control who reproduces my images, and where. By usurping that right in a blog, you are stealing my ability and my right to profit from granting the exclusive use of my images to others. You may also be devaluing my images by placing them in a medium that my target market may not appreciate. The point is, you don't know how you may be affecting the value of my images.

As to Fair Use, you cite the 4-point test, but what you fail to cite is that, by defintiion, Fair Use only applies to very specific uses, "the fair use of a copyrighted work, [snip] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — " [followed by the 4-point test cited earlier], see http://www.copyright.gov/title17/92chap1.html#107 .

If you want to post one of my images for artisitc criticism, or to call my work disgusting or immoral, be my guest. If you are just looking for content to illustrate your own articles, and you can't be bothered to ask my permission or pay a fair fee for a use that's clearly commercial, then it's not Fair Use, it's stealing.

Andrew Buchanan

Posted at 6:24AM on Dec 19th 2005 by Andrew Buchanan

23. I am an intellectual property attorney. The comment above that "commercial fair use" is a contradiction in terms is wrong. In Campbell v. Acuff-Rose Music, 510 US 569 (1994), the court held, "If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of §107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities 'are generally conducted for profit in this country.'" The Campbell Court concludes, "The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character." There have been numerous instances where courts have found the commercial use of IP to fall under the Fair Use Doctrine. Blog users and other entities--for profit or otherwise--need to look at the 'letter of the law' and consult with an attorney in determining whether a use falls within the fair use exception. Fair use extends to criticism, comment, news reporting, teaching, scholarship, and research--often in a commercial context. However, even in the case of criticism, federal courts take a hard look at the character/nature of the criticism. An example would be that the courts find that criticism in the form of parody is protected, but that satire is not protected in certain instances. Dr. Seuss Enterprises v. Penguin Books, 109 F.3rd 1394. Likewise, and relevant to blogs, all news reporting is NOT fair use. My point is that much of this is not intuitive, is not common sense, and is fraught with fine distinctions. Here is a link for those of you interested in reviewing the Acuff case: http://www.law.cornell.edu/copyright/cases/510_US_569.htm
Regards, Jason M. Kays

Posted at 6:24AM on Dec 19th 2005 by Jason M. Kays

24. Jason -- It simply is not true that appropriating any photos you like and putting them on your blog is "a fair use." Legally, you're putting yourself and your blog in serious jeopardy, as it's pretty clear that the uses that you indulge in are not legally protected fair uses, such as parody of the photo or criticism of a photo exhibit.

And whether you are a profit-making entity or not is completely irrelevant. Non-profits, or for that matter, for-profit companies that lose money, are in no way given a blanket exemption from having to pay for goods and services that they use.

Of course, if a photographer wants to donate the use of his work to your blog, he or she can. But legally you can't just take it.

Also please don't confuse your blog, or other similar websites, with search engines like Google, which are allowed run small photos with links to the site where the picture is actually being shown.

Admittedly, we're in a new, 21st century media universe, where new technologies and new media such as blogs create all sorts of unprecedented and wonderful inter-connectivity -- and in some instances exisiting copyright law has not yet evolved to cover the new circumstances.

So, I don't want to be too harsh, but I think the comments likening blogs and other websites to magazines (or perhaps pamphlets -- remember people like Tom Paine writing pamphlets?) is relevant.

The poster who said that using a cropped picture is different from runing a small written excerpt and then linking to a complete story elesewhere on the web also had a valid point.

Bottom line -- ask permission to use photos. Don't just swipe them.

Posted at 6:24AM on Dec 19th 2005 by Bill Wisser

25. Jason -- It simply is not true that appropriating any photos you like and putting them on your blog is "a fair use." Legally, you're putting yourself and your blog in serious jeopardy, as it's pretty clear that the uses that you indulge in are not legally protected fair uses, such as parody of the photo or criticism of a photo exhibit.

And whether you are a profit-making entity or not is completely irrelevant. Non-profits, or for that matter, for-profit companies that lose money, are in no way given a blanket exemption from having to pay for goods and services that they use.

Of course, if a photographer wants to donate the use of his work to your blog, he or she can. But legally you can't just take it.

Also please don't confuse your blog, or other similar websites, with search engines like Google, which are allowed run small photos with links to the site where the picture is actually being shown.

Admittedly, we're in a new, 21st century media universe, where new technologies and new media such as blogs create all sorts of unprecedented and wonderful inter-connectivity -- and in some instances exisiting copyright law has not yet evolved to cover the new circumstances.

So, I don't want to be too harsh, but I think the comments likening blogs and other websites to magazines (or perhaps pamphlets -- remember people like Tom Paine writing pamphlets?) is relevant.

The poster who said that using a cropped picture is different from runing a small written excerpt and then linking to a complete story elesewhere on the web also had a valid point.

Bottom line -- ask permission to use photos. Don't just swipe them.

Posted at 6:24AM on Dec 19th 2005 by Bill Wisser

26. Just thought it was interesting to see that Gawker put up their own photos, with their own mark and (c) "All Rights Reserved".

http://www.gawker.com/news/culture/party-crash/team-party-crash-wenner-medias-holiday-party-027890.php

Posted at 6:24AM on Dec 19th 2005 by Tom

27. It all comes down to this:

How much money do you want to spend defending yourself in court?

Time and time again, site operators have been sued by companies protecting their trademarks, web images, audio files, and copy. One day it's the operator of a Harry Potter fan site, the next it's The Beastie Boys getting sued for sampling, and the next day it's Mike Rowe of mikerowesoft.com under Bill Gates' thumb.

If you use copyrighted content, the copyright owner may eventually come calling, and dealing with that could be expensive. How much is that name/sample/image/copy really worth?

The only way to play it safe is to stick to well-established practices.

Is there any reason to believe that blogs change the rules?

Posted at 6:24AM on Dec 19th 2005 by Podcast Directory

28. Its surprising to see all of this discussion and not a mention of case law dealing with fair use of photos online.

Kelly vs Arriba Software
http://slashdot.org/article.pl?sid=03/07/07/2141216

Posted at 6:24AM on Dec 19th 2005 by akb

29. The Kelly case is only relevant to search engines, not blogs. Also note that image indexers can be excluded with robots.txt - while blogs can not and often willfully ignore the originating sites copyright text and marks.

Posted at 6:24AM on Dec 19th 2005 by Robert

30. I'm a budding photographer - mainly as a hobby. Most of the money of photography is in the selling of reprints. This is why film photographers very rarely release their negatives to anyone other than their lab. As for digital photos, I protect myself by not putting print quality photos on my website. If you want to copy a photo from my website for your blog, I probably won't mind, especially if you credit the source (similar to a quote in a research paper). I would like to know about your use, so I can see how you have used it and perhaps mention the fact of your use in my own promotions. If I take a nature photo and it is published in National Geographic, I guarantee that I will mention that in my promotional materials.

However, if you want a print quality file, I will very likely charge you for it (possibly a lot of money, since a print quality digital file can be the source for literally thousands of prints - for which I won't get directly paid). Someone mentioned exclusive use licenses. If I have sold prints to someone under an exclusive use license, I doubt that I would then have the right to post digital copies of those prints on my web page, especially considering the porous nature of the web - in order to view a page from my web site, you have to download a copy of all the content to your computer so your browser can display (render) the page on your computer monitor. Just viewing the page makes a copy on your computer (perhaps only in RAM, but it is a copy). An exclusive use license will probably prohibit this.

More food for thought.

Posted at 6:24AM on Dec 19th 2005 by Craig

31. Hope you can help me...got here because I have a question about copyrighted photos. I have a large collection of Theatrical souvenir programs/playbills and books with lots of photos...was thinking about scanning the pics and programs and sharing the pictures with other theatre enthusiasts (via website or blog)..only recently realized the copyright issue of posting these pictures...I assume I need to get permission...my site/blog would be for archival purposes only but still think I should get permission from the sourse of pictures (photographers, etc.) How do I go about this?.. Thanks!!

Posted at 6:24AM on Dec 19th 2005 by John Lewis

32. Very interesting as I am setting up my own blog and am a want to be photographer. I was looking for an easy way to publish my photos to my blog and came up with www.flickr.com but was concerned that the photos from what I read are fair game for others to use. On the flip side say I create a sculpture and someone photographs that and sells the photo, how do I get paid. Maybe I am at the beach and I appear in the background of a tourism brochure without my permission. I think we are going to find that low resolution images are going to be fair game on the internet. I think it is only fair to indicate where you got it from and add a link to their site. If the person complains take it down fast. In the day to day blog it is not feasible for a personal blogger to get copy write permission each time they use something as it often is a spur of the moment comment and image to illustrate. How many times have you seen newspapers and magazines rip 95% of content word for word from other sources including weblogs? Who is going to police it all? I am new to blogs and I have been online blissfully unaware of them. In the next year or two based on feedback I am getting the number of personal blogs will grow exponentially.

Posted at 6:24AM on Dec 19th 2005 by ian

33. If I save your image that is posted somewhere on the internet and then upload it to my host to use on my blog, am I violating your copyright of that photo if: 1) you didn't put a notice or a watermark on it; 2) the source I found the image did not identify the owner (so no way to even seek permission); and 3) there are no ads or any commercial nature to my blog?

Also, if I just link to your image, how am I violating your copyright?

As an aside, if you are a photographer and you post your images on the internet without a watermark or any identifiable copyright notice, seems like you are just inviting others to use it.

Posted at 6:24AM on Dec 19th 2005 by Fuzzie

34. Fuzzie, please read the material above. You would be violating content. Your questions are answered in the material written above your post, including some written by intellectual property lawyers, with citations.

Posted at 6:24AM on Dec 19th 2005 by Monito

35. Fuzzie, if you link to my image you are using up my bandwidth allocation. I specifically prohibit this in the terms of my web sites and so so most sensible site owners.

You seem to have a very shaky understanding of both copyright and ethics. If I left my car on the road outside my house with no notice in the windscreen of who owned it, would it be OK for you to hotwire it and drive it away for non-commercial use? Of course not.

Posted at 6:24AM on Dec 19th 2005 by lois

36. Examples. Ok!

Lets say I'm a photographer, and I either am having an exhibition at a gallery, or I just put out a book with a collection of pictures. One of your websites decides to post a review, or even a scathing critique of my work - in such a case you may use examples as you are discussing the work. "The right set forth in Section 107 of the United States Copyright Act, to use copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research."

Lets say you found one of the images in above book to suit a post about something else enterily, and you use it. Wrong. That would not fly.

Now say instead that I have a photo on my blog/website that I took showing some strange car I spotted at a car show the other day. Your autoblog people see it and think it's a newsworthy picture - all they have to do is ask for my permission to post that image and we'll all be fine. If they don't they have infringed my copyright of my image, and it will not please me, especially not since they'll be posting it on a blog where it reads "All contents copyright © 2004, Weblogs, Inc." at the bottom, actually changing my copyright without consulting me.

my 2 cents anyway.

Posted at 6:24AM on Dec 19th 2005 by Dabitch

37. Oh, I think it's worth noting that the fair use clause I cited in the above comment, naturally, only applies to material produced by US citizens. It's the world wide web here and countries have different laws. Any shot I take in Denmark is mine from the second the shutter closes, and the accidental postings of Danish copyrighted photos on websites may be billed to you even if you remove them from your website. Worth keeping in mind.

Posted at 6:24AM on Dec 19th 2005 by Dabitch

38. Lets equate a blog to a magazine... that is essentially what a blog is, just more dynamic and online. By your definition, since the use is not commercial you can use the image. Well, magazines have to license images from the photographers in order to run them with an editorial article. Why shouldn't blogs be put up to the same standard? The mentality is "oh, its just a blog so its not really anything big." It doesn't matter, if you use my image you need to pay for it if I don't want to let you use it for free. And don't try to tell me you aren't a commercial entity. The content of your blog, including the images, is what brings people to your site. As your blog get more popular you start charging users and/or attract advertisers and begin to make money. You are then making money based on your content which includes my images. Why should you profit from my content? BTW, "we aren't making money" isn't an excuse either because I'm sure if you could be you would be. It is up to me, not you, to determine if you can use my image for free.

Posted at 6:24AM on Dec 19th 2005 by Jeff Singer

39. Interesting commentary comparing magazines and blogs. News magazines are generally protected under freedom of the press rulings. COVERS are considered by many Federal District Courts to be commercial.

In all fairness, you should always ask permission. If it is not granted, don't use it. Real Simple. You're skating on very thin ice if you think that you can continue using images in your blog without permission. All it takes is one suit - with two of the three of the major photographic trade organizations backing the suit and your blog is history along with a substantial civil penalty.

Just ask permission. If they say no - don't do it.

Posted at 6:24AM on Dec 19th 2005 by Cameron Davidson

40. If we are not making money, as above's post states then I believe it is ok, since if we were making money as the above writer suggests, I am sure we would have no problem sharing that money with the authors of photos we use in our blogs. Free/Non-Profit should ba fair use.

Posted at 6:24AM on Dec 19th 2005 by Dmitriy K