Pro-Imaging

INTERNET MINEFIELDS

Volumes have been written about the hazards of relying on materials appearing on even “professional” web sites and blogs.  Most comments are authored by lay people with little to no legal expertise.  For some inexplicable reason(s) creators seek to play lawyer and the net has removed the impediments of fact checkers, editors, publishers and the costs attendant to having one’s work appear in a reputable magazine or book. 

We do not attempt here to run a cost/benefit analysis to society of the democratization of the internet.  My opinions are limited to the risks run by those who rely on frequently unvetted, misleading or wholly inaccurate statements or advice aimed at creators.   This post consists of just three examples of why there are not enough caveats to issue with regard to the internet.

“ IM – POSTERS”

Posts attributed to me, bearing my name and appearing to have been posted by me have been made on Drawger, a website viewed by many illustrators.   Drawger claims to have obtained the posts from a blog run by an illustrator. 

One problem - the posts were not made by me.  In fact, prior to being notified by a reader, I had never read the site nor posted on it.  Had I not been phoned by a curious third party, “my posts” could have remained for weeks, months or even years.   As a result of my actions, the posts have been removed.

I created the term "im-poster" to describe a person who, using the identity of another "real" person, assumes that identity for the purpose of posting on the web.  The motivation for so doing may be malicious.  On occasion however, the post is made in an attempt to convince (or dissuade) readers from adopting a particular view or opinion regarding any topic of interest.

This is but one danger of public postings by anonymous contributors whose identity is not screened by site or blog.    It serves to chill discourse and discourage the free expression of ideas and opinion by persons who frequently have no obligation to contribute their expertise or knowledge but volunteer to do so.  Such fake posts are often authored by those who have a great deal of time on their hands resulting from their lack of paying clients.  

Readers who rely on such posts may unwittingly be following unvetted, misleading or wholly inaccurate “advice”.  Akin to the foolishness of abiding by the advice of one practicing medicine without a license, is the creator taking legal advice from an unknown or even utterly fake source. 

I no longer post comments or replies on any public sites anywhere.  My articles do appear unedited and fully accredited pursuant to written agreements I have with others. My private posts may not be reproduced in whole or in part without my express written permission.  We are in the legal and technical process of determining the true identity of the im-poster and intend to seek legal redress against him/her regardless of the state or country of his/her residence. 

The key point however, is that posters are often “im-posters”.  This is hardly my first “im-poster” case, just the first time that I have been the victim.

FAIR USE ABUSE ON THE NET

Assume simple facts (which may or may not have actually occurred):  Article appears on the subject of the proposed Orphan Works bill and its possible effects on copyright infringement cases.  Author elects to use images created by other photographers and licensed by them for fees to advertisers, without first securing a permission or license from such photographers. 

Author could have used his/her own images to illustrate the same point(s) and avoided any question of infringement.  Instead, author elected to employ images shot by others which were used by high profile advertisers in big budget ad campaigns.  Author neither knows nor inquires as to whether any of the shooter(s) “sold” an exclusive to any of the paying client/agencies. 

Images are employed to illustrate an article which appears on a site which accepts advertising and sells products including books dealing with the business aspects of the photography industry.  Images are altered and/or cropped by the author to demonstrate to the reader how images could be changed by potential infringers.  Author attempts to illustrate how/if the proposed bill would affect such potential scenarios.   “Fair Use”?  We think not. 

“Fair use” is typically either parody or commentary/criticism. In parody one can use the original work (sometimes extensively) to make fun of that work.  Not the case here. 

Commentary/criticism allows the use of the original work to, for example: 

-     quote a portion of that work for a review of the work (ie. Book, article, screenplay, song, etc.)  Movie reviews being perhaps the most common example. 

-         quoting or even copying a portion for educational purposes; 

-         quoting a portion of a book or article, to use in a news report on the subject; 

-         copying or quoting the work for the purposes of trial in another related or similar type case. 

The law is set forth in  Title 17, US Code, which you commonly know as, “The Copyright Act”.  The concept has developed over the years and finally became codified in Section 107 where four key factors to be considered by the Courts are set forth (summarized below). 

1. character of the use, commercial use or non profit and educational;
2. nature of the copyrighted work;
3. amount and substantiality of the portion (taken) as compared to the entirety of the copyrighted work;
4. the effect of the use on the potential market for or value of the copyrighted work.

The flat out, egregiously wrong view of countless non-legal “experts” is that as long as the article is editorial or educational in nature, use of copyrighted images without consent is permitted by “fair use”.  If such were the case no photojournalist, newspaper or newsgathering entity could protect their work from rampant copying and infringement by their competitors or anyone else.   Those who license their work via stock agents for editorial purposes at editorial rates would need to get on the closest unemployment line.

“Fair use” cannot be manufactured.  If the article is of or concerning the copyrighted image itself then a fair use argument may be valid.  So, for example, in a very public divorce where Mr. & Mrs. Richerthangod are fighting over a registered, collectable photograph valued at $5 million, a newspaper could reproduce the subject photo in an article about the divorce trial.  Similarly, if the validity of the copyright in the photo was challenged, a newspaper could run a story containing an interview with the “real” creator and illustrate that story with an image of the work.

But one cannot, without the license or consent of the creator, appropriate an image simply to avoid paying a licensing fee or because it’s convenient. Simple example:  NY Post  pays  (exclusive) licensing fee to photographer to employ his authentic image of Reese Witherspoon, Angelina Jolie, Courtney Love and Sarah Jessica Parker fighting for the affections of Dom DeLouise on his yacht.   Post runs front page shot on Monday.  Daily News then cannot on Tuesday use the shot for the purpose of showing: how an image may be digitally altered, how stars have fun, the importance of sun block or the cost of yachting.   If on Wednesday, however, Dom files suit against shooter claiming trespass, invasion of privacy, etc. as a result of the photo appearing in the Post, The News could show the whole front page of Monday’s NY Post which is now the centerpiece of a very public lawsuit.   An article on the “World of Photography” would not of itself give the author the unrestricted right to use any image, ever created, by any photographer, anywhere in the world without first obtaining a license.

Ignoring the lawsuits brought by shooters and agents against celebrity sites which illegally harvest images, photo bloggers continue to perpetuate their utter misunderstanding of the law.  Many shooters inexplicably rely on the unvetted musings and opinions of non-experts.  Would these same people rely on the advice of lawyers with regard to the selection of say, the appropriate lens for a given shoot.

UNTINTENIONALLY MISLEADING

Often well intentioned, articulate, frequent posters morph into experts in the eyes of readers by answering questions posted.  Some of these frequent posters revel in their new found status, some seek to profit and build upon their new found notoriety and still others genuinely seek to simply help their fellow artists. 

Such posts may be entirely unvetted, flat out wrong and/or dangerous.  Following such advice can get you sued and/or divorced.  Some posts have the veneer of legitimacy in that they appear to be correct but may be misleading. 

Examples (only slightly altered from original posts) 

• “ The purpose of copyright registration is to obtain statutory damages”.
• “Creators do not have to register their work now because you own the copyright the minute you create the work”.
• “If you did not register you can’t sue” (used for images created several years prior).

None of the above statements is false.  Each is misleading.

1. If you do not have a registration you can not sue in a United States District Court for copyright infringement.  You must have a registration or you will  be thrown out of court regardless of any merits your case may have.  It is the key to the courthouse.  So yes, statutory damages are only available to those who timely file but “the” purpose of registration is so you can sue the infringer and receive an award of damages which may or may not include statutory damages.

2. You cannot sue without obtaining a registration.  Yes, you own the copyright upon creation but you can not enforce that right without registration.

3. You can register many years after creation.  If you shot the image in say 2001, published it in 2002 and have never registered it, the only thing that would prevent you suing an infringer who ran it in 2008, is a $45 registration fee.  You must file and then can sue.

 

Information masquerading as truth is pervasive on the net.  Advice, suggestions or factoids gain no credibility by their mere appearance on trade sites.  The net remains a crowded beach with no lifeguards on duty.  We suggest that you surf very carefully.      

Edward C. Greenberg, PC

570 Lexington Ave.

17^th Floor

NYC, NY  10022

(212) 697-8777

 

No portion of this post may be reproduced without the express written consent of the copyright holder, Edward C. Greenberg. Nothing in this post should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.