Any copyright lawyers out there willing to offer some free advice? I just received the following email from
National Geographic (I'm sensing a bad trend developing here with emails like this... first the
time travel mutual fund, and now Nat Geo):
One of our readers has informed us that you are featuring one of our
photographs on your website at http://hoaxes.org/weblog/2003/10/ [note: here's a more direct link].
We would ask that you either remove the photo immediately, or forward me
details of how long the image has been posted and how long you intend to
keep it posted so that we can determine an appropriate licensing fee and
send you a formal retroactive rights release and invoice. Please let me
know if you have any questions.
I'm not quite sure how to proceed. Nat Geo, unlike the time travel mutual fund, isn't someone you want to mess with. But on the other hand, I believe (hope) that my use of the image is protected by fair use. First of all, the image had circulated widely via email before I put it on my site. All I did was add some commentary to it in order to inform the public of the image's true source. Second, my use of the image hasn't deprived Nat Geo of any income since the image was too low quality to make print copies from. In fact, my commentary probably provided them with some free advertising.
I could just buckle under and remove the image, but this question of what is and what isn't fair use with regard to images that have escaped into the wilds of email is one that I'd very much like to know the answer to. Does a site such as mine, that tries to provide some information about random images that people find in their inboxes, have to request permission from the copyright owner whenever the owner is identified? Am I going to have to request permission from
Touristguy to have his image on my site, or from
that guy posing with the big bear? If so, that would potentially kill off large portions of my site.
Comments
1) NG is completely correct about this. No matter how many times the image has circulated via e-mail, you still need to properly acquire a license to use the image. In fact, you need to do so with ALL the non public-domain images on your website if you are to comply with copyright law. Also, since you've already violated their copyright, the request that you take it down or obtain a license is actually a courtesy request; they could just sue you for the violation that has already occurred. But they are in a position where they hope you'll realize the image has value for your website, so you'll properly license it, and everyone can benefit. I'm afraid they've got the law on their side on this one.
But having said that...
2) National Geographic has one of the WORST rights-grabbing contracts for photographers. The way the magazine photography business works, unless your photographer is on staff, you have to license the rights to the images from the photographer you hire, and pay that person every time you use the image. If you want more rights, you pay more money. Sometimes, you know you'll need broad usage, so you pay the photographer more up front instead of on an as-needed basis. But National Geographic has suckered and strong-armed photographers into giving up pretty much all the rights to their images for almost no pay -- just for the glory of working for National Geographic. While NG has a nice magazine, glory doesn't pay the bills.
You can read an analysis of one of their contracts for freelancers at the website of Editorial Photographers (EP), a professional organization for editorial photographers. They go so far as to call NG the "bully on the block."
The contract and analysis are at http://www.editorialphoto.com/contracts/ngworld.html
I sent you a message on such and such date in which I stated (restate your opinion). I have yet to receive a response to that message. If I haven't heard from you by (insert date), I will assume that you concur that my use of the image is a fair use for the purpose of news reporting and will consider the matter resolved.
I urge you to seek some legal advice, whether NG replies or not. Just because they don't reply, don't assume that this is resolved. Nothing anyone says on here replaces advice from a lawyer.
To the photographer: There is a news reporting exemption. That these images are circulated with false or misleading information through email and this site reports that as news might qualify under that exemption. There's some basis for it.
Everyone agrees that when people discuss books or movies, they have a right to quote from the original material. But when discussing images it's also often necessary to refer to the original image. How is that to be done? Images can't be quoted from. Occasionally it's possible to isolate a small part of the image, but more often the entire image needs to be shown in order for it to make sense.
My solution was to display a very low-res version of the image that wouldn't threaten the owner's right to sell quality copies of it. If this was illegal, then the only alternative option that I can think of would be to verbally describe the image. But that's silly because anyone who hadn't already seen the image would have no clue what I was talking about.
So is there a way for the public to freely discuss and refer to images in the same way that we freely discuss and refer to movies, books, poetry, etc.? Or does the public have to pay for the right to discuss images?
Best of Luck
Jared
I've always understood copyright holders to have an obligation to protect their copyright. Those who do not risk losing that copyright. Put another way, if NG knows you're using a work they own and that you do not have permission to do so, it's their duty to follow up.
In a case like this I would hope permission would be granted without charging you for continued (and past) use of the picture. I doubt fair use would apply here--though it is a murky area.
Copyright holders do not have to defend their copyrights in order to retain them. Rather, their copyrights expire at a certain date.
If people were free to use photographs like AP wire photos wherever they wished, then the systemof photo agencies anf photographers could no longer function.
And it's not like this is some college or not-for-profit web site -- you make money from advertising, and having these wacky photos adds to the desirability of your site and its traffic. Hence you are indeed profiting from the use of these unlicensed photos.
As much as people in the digital age love to think everything is free for the taking, the photographers, musicians, and software coders deserve to protect their work and any profits made from it.
However, I'm definitely going to put it back up if Nat Geo doesn't come up with a decent argument for why it isn't fair use, because I think my case is pretty strong. Here's why:
Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9th Cir. 2003).
Stanford's fair use website describes this very recent, precedent-setting case: "Arriba-Soft [an image search engine] was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to "catalog and improve access to images on the Internet," and was thus considered a "transformative use" (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.)" So Arriba-Soft won the case (which, I assume, is why other image search engines such as Google continue to exist).
In other words, a 'transformative use' of an image weighs heavily in favor of fair use. Arriba-Soft was cataloging the images and making them easier to find. I'm providing a resource to help people determine if images are real or fake. That's clearly also a 'transformative use.' I'm not just putting the pictures up there because I think they're pretty. I'm adding a new layer of meaning and context to them.
Add to this that my use of the image was for the purpose of commentary and educational, and that I used a low-resolution image that doesn't threaten Nat Geo's ability to sell the image.
Of course I'm biased, but I think that adds up to a compelling case for fair use. Though I need to convince Nat Geo of that, not you all. 😉
And although you quote that case, this site is not a search engine. Thr thumbnail on your site does not link to NG or to the photographer's web site.
If you know what's good for you, you'll drop it IMHO.
Keep up the good work, this is a great site!
This has nothing to do with freedom of speech or of the "press". Alex has a right to say whatever he likes. He just can't use a commercial image owned by someone else without paying.
Let's say I set up my own "news" site, and use photos from CNN and the NY Times on it to illustrate my stories or commentary. I'd be in trouble since CNN and the Times owns their photos -- they pay photographers and editors for them. They also license wire photos from AP, Reuters, and the like. The pictures on their site are not just free for the taking.
Professional photographers (and artists, writers, musicians, etc.) have every right to be compensated for the fruits of their talent anbd effort.
Point taken, but don't you think there's a difference between reproducing an image for the purpose of commenting on it, and reproducing it just for the sake of reproducing it?
Let me give you an example. Say that I was reviewing a book of photography. Do you think it would be legitimate for me to reproduce one or two images from the book for the sake of commentary, in the same way that book reviewers quote passages from books for the sake of commentary?
If not, then why not? Why is there NO controversy about reproducing short passages of text for the sake of discussion, but there's an ENORMOUS controversy about reproducing thumbnail-sized (or extremely low-res) images for the sake of discussion?
It isn't that there's no controversy. It is arguable that "quoting" the photo for commentary purposes is legitimate "fair use". The trouble is, it isn't CLEARLY fair use, meaning that NG can sue you and you'll have to defend yourself, and make a case.
You should really consult an intellectual property lawyer. An attorney of my acquaintance maintains that IP law is so specialized, any non-specialist lawyer giving advice on it is treading close to malpractice automatically. Certainly, the comments of people on some blog discussion board are not a substitute for actual legal advice, especially when they're emotional messages of support rather than practical advice on the consequences of various actions.
Carl
PERIOD !!!!
You review hoaxes and alleged hoaxes. This has been circulating around. Inquiring minds want to know: Is it a hoax? Unlike so many others who have merely circulated, you attribute and explain, thus actually bringing benefit to NG.
If I had a magazine or web page and someone like you took some of my material and referred people to me, I'd say, "Thanks!!" I'd send you more of my pictures with notes asking, "Hey, what about this one?" .. and hope you'd publish them.
A tremendous amount of the expertise of a Professional Web Designer involves getting referrals like the one you gave NG unsolicited and for free.
Often, and particularly in this case, "NG" means "No Good, throw away." I always liked National Geographic. Their own actions in this case make me think of them as NG... Leaves a bad taste... smell...
you may freely keep this link to a picture of my wrecked car on your site