An Email from National Geographic

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 [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.


Posted on Tue Aug 31, 2004


First, I would suggest you go to and read the FAQ. has some useful information, as well.

Technically speaking, the fact that a copyrighted work is widely infringed on has no effect at all on the ability of the copyright holder's ability to enforce the copyright - even if they know it is happening an allow it for everyone else. As a practical matter, other than someone like National Geographic, who depend a good deal on their photo archive for their income, most people won't do more than make noise about infringement. They are within their rights to demand you remove the picture or get a license from them, unless you can demonstrate a fair use exception.

However, fair use is fairly limited. You might be able to convince them you are using it for reporting news, which is one possible fair use. covers the actual law, but it is intentionally vague. And if they don't agree that your use is fair use, the only way to prove you are right is in court (and then, even if you win, you don't win, if you know what I mean).

What I would do is just explain to them what the site is, that you are not making any money from the image directly, that it is a news oriented site, and just ask for permission to use it. If they say no, I would certainly remove it, because it's not a fight you can afford to win, much less lose.
Posted by Terry Austin  on  Tue Aug 31, 2004  at  06:50 PM
At the end of the day, you wouldn't lose much by removing it - it's not a hoax after all - but I don't think NatGeo are losing anything by having it here...

...maybe a compromise could be if you added a link underneath it allowing people to visit the NG site and buy the book containing the full size & quality picture. That way you're actually helping them, by providing what is effectively free advertising on a much visited site.

If NG make a fuss or demand money, I'd dump it but amend the relevant page (minus photo) with a description of what happened. I think this is almost bullying tactics by them, given the context the image is being used in and the widespread dissemination of it.
Posted by AW  on  Tue Aug 31, 2004  at  07:30 PM
This probably isn't helpful, but you might consider asking the folks at Snopes what they do under this sort of circumstance.
Posted by Laura  on  Tue Aug 31, 2004  at  08:22 PM
Is that picture important enough for your site to keep it?

I think that even bothering to link their stuff is a waste of time, not to mention having to deal with legal warnings, etc.
Posted by The Mexx  on  Tue Aug 31, 2004  at  08:35 PM
Everyone, thanks for the comments. Yeah, the image is completely unimportant to my site. If I just removed it I don't think anyone would notice. So that would be the easy route. Probably the smarter route.

On the other hand, I don't think I did anything illegal. If I were selling t-shirts with that picture on them, that would be one thing. But I was simply commenting on the picture. So I'm stubborn enough not to act as if I did something illegal by removing it.

I sent them a response explaining that I think my use of it is fair use, so I'll see what they say.
Posted by The Curator  in  San Diego  on  Tue Aug 31, 2004  at  08:49 PM
I completely agree with Terry Austin's comments. I think it's the best advice.
Posted by Mike Harris  on  Tue Aug 31, 2004  at  09:44 PM
Alex- Keep us posted... I think this kind of stuff is fascinating...If you need to add additional voices to the discussion, I'd be happy to write a letter with my views of your site (which I enjoy thoroughly)

Karen V
Posted by Karen V  on  Tue Aug 31, 2004  at  10:25 PM
The intention of copyright law is fairly simple, although in practice it's very complex. Original works (music, writings, photos, etc.) should not be stolen from the creator (copyright holder). Permission is required for almost any use of a copyrighted work.
You may be permitted to copy a work for personal use but posting a copied photo on a Web page for all to see is not personal use.
I'm a photographer so I have a personal interest in copyright protection.
Posted by George Dunbar  on  Tue Aug 31, 2004  at  11:38 PM
IANAL, but my views also coincide with Terry Austin's after several discussions with several people about the copyright law.

I would add another argument they could bring up if you were to end up in court: you ARE making money indirectly with their photo. The page on your site which features that photo contains ads, and the money for placing those ads end up in your pocket.

The fact that the image has been circulating around is also irrelevant: on one hand, how can you prove it did circulate? On the other hand, even worse, follow this thread of thinking: How many people saw it in their inbox? How many asked themselves "is this real or is it a fake"? How many of those visited your site to find the truth about it? And how many generated revenue for you by doing so? And then, your Honor, shouldn't we ask ourselves if it's not Alex Boese who started circulating them e-mails in the first place, using copyrighted material to make himself some dough?

I know none of the above are true, and that in your inner self you feel innocent, but there are so many unprovable things that can be blamed on you indirectly that I would do exactly what Terry Austin suggests in the last paragraph of his comment.
Posted by Gutza  on  Wed Sep 01, 2004  at  05:19 AM
I'll add my agreement with TA, but add that I do think it's remarkably petty (and rather sad) of NG to act like this. Legally you probably don't have a leg to stand on - or very a tenuous leg maybe - but morally it's just ludicrous. I rather suspect that the negative impact such pettiness has on those learning of it far exceeds the (nebulous) damage done by your using the picture. It's certainly damaged my opinion of the company quite a lot.
Posted by Paul in Prague  on  Wed Sep 01, 2004  at  06:04 AM
I'm not a lawyer either, but the GEOGRAPHIC is in the right here. Copyright law doesn't require you to make money -- the word is very literal, it governs the RIGHT to make COPIES. You don't have such a right unless they grant it to you.

Listen to Terry Austin, who makes a very good living on creating copyrighted works.

Fair use is very, very limited, and in general you can't take an entire copyrighted work and use it, and then justify that by commenting on it. If you tried to argue for fair use in court, you'd be claiming that publishing the photo is more analogous to quoting a few lines from a novel in a review (legal) than using an entire poem in an essay without license (generally not legal).

If you do decide to keep it up, you should definitely talk to (and pay) a real lawyer.
Posted by Carl FInk  on  Wed Sep 01, 2004  at  06:09 AM
Time to fold your tents on this one. You have acknowledged you know the image is copyrighted and the owner has asked you to remove it. That's a smoking gun in copyright cases.

Fair use is mostly limited to scholarly research and use in religious services, (!) so I'd pay the license fee or pull the picture. Since you have ads on your site, it would be hard to argue you were non-profit in nature.

As for the copyright law in the wilds of the internet, that war's still being waged, but the open-source folks aren't gaining a whole lot of ground. If I were you I'd keep doing what you're doing, and remove any image that a legitimate owner complains about.
Posted by Kerry Townson  on  Wed Sep 01, 2004  at  10:12 AM
"[...] but the open-source folks aren't gaining a whole lot of ground" -- two errors in one sentence: on one hand open source has absolutely nothing to do with this, on no level whatsoever; on the other hand open source (actually free software, which is what you're probably trying to refer) IS in effect getting a reasonable share of ground these days.

Also, FYI, internet or no internet, the laws are the same.
Posted by Gutza  on  Wed Sep 01, 2004  at  10:22 AM
Like the photographer, I would urge you to remove it. I was a photographer and now am a paralegal. Copyright isn't my strongest forte, but I don't think you have a fair use right to use it.

I agree with the person that said you should ask Snopes what their policy is though. That would help you establish a policy and you should have a clear policy.
Posted by Bill B.  on  Wed Sep 01, 2004  at  10:41 AM
It looks like most people think I should play it safe and pull the image. But I think I'll wait to see what NG's response is first.

But there's one issue that a few people have raised which I would argue about: the fact that I have ads on the site somehow means I'm making a profit from the display of NG's ad. First of all, I don't actually make a profit from those ads. They just about cover the broadband bill for the site. That's it. But the larger point would be this: could a teacher not use an image for educational purposes if that teacher was simultaneously being paid a salary? or would a news organization's display of an image not be protected by fair use because that organization derived income from ads?

The reality is that news shows regularly claim fair use when showing images (and video), even though they make money from ads. And teachers claim fair use, even though they're getting paid to teach. How is what I did any different than this? I wasn't using NG's image to decorate my site. I was commenting directly upon it, and I needed to be able to display in order to show certain features of it (such as the watermark that I detected).

I was reading through the links that Terry Austin provided and I got wondering whether the Museum of Hoaxes might qualify as an archive... since libraries and archives receive quite broad fair use privileges. May be a bit of a stretch, but on the other hand, the site obviously does serve an archival role for the benefit of the public.
Posted by The Curator  in  San Diego  on  Wed Sep 01, 2004  at  10:41 AM
It's also not quite as simple as that. You make money from the site. That the money goes to fund the site is irrelevent. There's some monetary gain from displaying that work.

Second, you can't compare what you do to a teacher. That's a very specific narrow exception and it doesn't involve reproduction of the work. You are "publishing" a web site. This site is wonderful, but it's a publication.

Libraries buy the books and prints in hard copy and make them available to the public. You have yet to buy this image. If all web pages were "archives" then you couldn't enforce any copyright on the web. Anyone could claim that exception. Yet, literature archive sites go to great lengths to ensure they comply with copyright.

By all means wait for a response, but they'll probably reinforce their opinion that you are infringing and you should be prepared to take it down.
Posted by Bill B.  on  Wed Sep 01, 2004  at  10:58 AM
Just to follow up on your last comment, Alex, IMO (which is that of a layman, not a lawyer by any means), *I* think you should qualify for a fair use exemption as a news site. However, and this is the important part, if NG is serious about making you remove the picture, being right will cost you as much as being wrong. The legal fees for that kind of lawsuit will run you at least $100,000, and there's just not point to that kind of fight.

However, and this is very important too, there's no reason to assume that NG is going to be assholes about it. They didn't say "take it down or we'll sue you and kick your dog," they said "take it down of talk to use about a license." It is entirely possible they will be reasonable, and agree that it's OK for you to use it in an educational way. It's worth talking to them about it, and there's no reason to not start with the assumption they want to be reasonable.

(And for Carl, I don't think I'm the Terry Austin you think I am. I'm not the comic artist, anyway. Wish I was. He's a hell of a talented guy.)
Posted by Terry Austin  on  Wed Sep 01, 2004  at  11:28 AM
Terry, I think you're absolutely right. There's no way I'd pursue this all the way to going to court. I just can't afford it. But since the issue is relevant to so much of what I do on the site, I don't want to simply surrender to every copyright owner either as soon as they pop their head up. I want to stand my ground a little bit.
Posted by The Curator  in  San Diego  on  Wed Sep 01, 2004  at  11:48 AM
You have to walk a careful line on "standing your ground," because it's not at all clear cut. You *might* qualify for a news or educational fair use exemption, but those are a lot narrower categories (legally speaking) than most people think, and there's only one way to prove you are correct.

Maybe you should put up a policy page on the matter, saying that you view yourself as a news site (or educational site, or whatever you prefer), and that you believe that gives you a fair use exemption for the stuff you use in your articles. And that if someone feels differently, they should contact you and you'll work with them. That may keep at least some of the yahoos from getting to rude.
Posted by Terry Austin  on  Wed Sep 01, 2004  at  12:27 PM
I think a policy page is a bad idea from a legal standpoint. I wouldn't do that without consulting an attorney. You would essentially be saying: "Yes, I know there is copyright material here, but I'm exempt." First, it's far from clear that you are exempt. Second, by making that statement, you are admitting the other elements. All someone has to do is disprove your exemption, since you've admitted the rest. It's the same thing as a "beware of dog" sign being used to prove that the dog owner knew the dog was dangerous. I would talk to an attorney before contemplating such an action.

I suggest that you contact the EFF (Electronic Frontier Foundation) and see if their attorneys will listen to your story and offer advice. You might get some free legal services. Your Web site is very large and has a high volume of visitors. That might make them take notice. They might not help, but it never hurts to ask.

From a personal standpoint, I think this site is a great resource and deserves protecting. I'm just not sure you have legal standing.
Posted by Bill B.  on  Wed Sep 01, 2004  at  02:08 PM
I've been trying to see how other sites deal with this issue. One site, happily copies entire articles from papers, shielding itself by a fair use statement displayed on its site. The one difference between them and me is that they claim themselves to be non-profit and have no ads on their site (though they accept donations). However, it seems that the presence of ads doesn't mean that you can't be non-profit. This is the definition of non-profit that I found:

Non-profit means not conducted or maintained for the purpose of making a profit. Instead, it operates to serve a public good. Any net earnings by a non-profit organization are used by the organization for the purposes of which it was established.

All net earnings from this site are, in fact, funneled back into helping to maintain it. Believe me, there's no profit associated with it. The site's public mission would be to educate about hoaxes as well as general debunking. (though this argument seems a little thin, even to me).

Contacting the EFF is a good idea, which I'll probably do if NG ever responds to me. As for contacting Snopes, I'm not sure they'd have any better idea than me how to deal with the situation. Plus, they're not great about writing back.
Posted by The Curator  in  San Diego  on  Wed Sep 01, 2004  at  02:39 PM
Basically replying to your (Alex's) last post. You can be certain that NG *will* answer, it's just a metter of them getting in touch with their legal department, assessing your claims and so on, but they will -- just not expect 24 hour response.

Apart from that, you CAN set up your business to be non-profit, but you need a formal arrangement, it doesn't work just by saying out loud that "All net earnings from this site are, in fact, funneled back into helping to maintain [the site]". So be aware that you are formally NOT in the clear as a non-profit organization, even if you can prove objectively that you made less than you earned. If you personally made one cent out of this site, you have even less rights, but even if you didn't, don't rely on it -- private business models are legally based on form and expectations, not on practical results: you can't just decide you're non-profit retroactively after a couple of years of commercial failure (not that the site would be a failure, it's actually great, just proving a point.)
Posted by Gutza  on  Wed Sep 01, 2004  at  03:45 PM
Your thought process seems logical, but it's not legal.

First, you are right, being nonprofit doesn't mean you are barred from earning money from advertising. Nonprofit means that you are an organization which doesn't market products for money which is then paid to shareholders or the company owner.

Second, Gunza is certainly corrent in the nonprofit aspects. Creating a nonprofit organization is a legal process, not something which is simply stated. It would be a process similar to setting up a partnership or limited liability company, and might require bylaws, corporate officers, nonprofit organization tax returns, etc.

Third, being nonprofit won't exempt you from enforcement of copyright law. If the Red Cross used a copyright work to generate money for their organization, it would be copyright infringement.

In this situation: Your site has one copyright work from the National Geographic. You display advertising. The copyright holder can argue that you are receiving a commercial gain from their work. That's not based on being a nonprofit organization. Rather, it's based on the specific use of the work.

You believe the purpose of that work on this site is not for commercial reasons. However, it appears on a site where you have advertising. You realize a commercial gain when that work is viewed. That's a hard rock to crawl out from under in court.

Also, I'm not sure that the site you reference is following the law exactly. Just because they say they have a fair use right doesn't mean that they actually have a fair use right. It means they haven't been sued.
Posted by Bill B.  on  Wed Sep 01, 2004  at  05:21 PM
Title 17, United States Code, Section 107:
"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

That doesn't mean educational purposes by a nonprofit organization. It means educational purposes for which no commercial gain occurs. Since you have advertising, you realize a commercial gain. It doesn't matter whether you lose money in the costs to maintain the site or make a million dollars a year.
Posted by Bill B.  on  Wed Sep 01, 2004  at  05:32 PM
Bill, I see what you're saying. But what confuses me is why this same argument couldn't be used to prevent any news organization that relies on ad revenue (i.e. every news organization that I can think of) from ever claiming 'fair use' privileges. But instead, news agencies claim fair use quite regularly.
Posted by The Curator  in  San Diego  on  Wed Sep 01, 2004  at  05:40 PM
Whether or not there is commercial gain is one factor to be considered. It is not a binary equation - commercial gain does not equal infringement and lack thereof does not equal fair use. It is simply one of a list of things to be considered in determining whether or not a particular use is fair. (That list is not exhaustive by any means, BTW, other things can be considered as well.)

In the end, though, commercial gain is a canard where copyright infringement is concerned. Copyright law isn't about money, it's about control. Having control of the work includes control of financial aspects, but that is a secondary effect. The purpose of copyright law is to control making copies.

The first and most important right of a copyright holder is not the right to make money, it's the right to force others to not infringe.
Posted by Terry Austin  on  Wed Sep 01, 2004  at  06:17 PM
Alex, Terry Austin is right, regardless of you exploiting the image for lucrative purposes, the owner of the copyrighted item (in this case the image) does holds the right to allow where such item is displayed. In other words, if you are displaying their property against their express will, you are breaking copyright law.
Posted by The Mexx  on  Wed Sep 01, 2004  at  09:29 PM
If all news use is fair use, all news photographs would be fair use. However, organizations (like the AP) charge for the use of their photos.

Terry, you are right. I just explained it that way to point out the difference between using a work for nonprofit teaching and a nonprofit group using a work. Monetary gain is only one factor.
Posted by Bill B.  on  Thu Sep 02, 2004  at  12:00 AM
If the EFF doesn't help, you might also contact the Public Citizen. I know they've done some trademark cases that involved internet domains. You are still begging for free legal advice, but it might work. And I would still see if you can get legal advice on copyright somewhere.
Posted by Bill B.  on  Thu Sep 02, 2004  at  12:09 AM
Well, I've already learned a lot more about copyright law than I knew before. But Nat Geo still hasn't responded. Either they've decided to drop it, or they're preparing to let their lawyers loose on me.
Posted by The Curator  in  San Diego  on  Thu Sep 02, 2004  at  12:23 AM
May I suggest that the best way is to remove the picture and instead put in a BIG announcement to the effect that the picture was removed upon the dempand of NG to keep them from looking silly. Those who want to see the original picture and understand why NG are ashamed of being associated with it, are referred to ....
Posted by George Temmann  on  Thu Sep 02, 2004  at  01:03 AM
As a professional photography who makes a living licensing the rights to use his photographs, I have the following two comments to make:

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
Posted by David  on  Thu Sep 02, 2004  at  08:24 AM
I suggest, if you don't receive a response in a week, that you send a follow up message. In that message, say, basically:

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.
Posted by Bill B.  on  Thu Sep 02, 2004  at  10:33 AM
David, if what you're saying is right, then it would seem to me that the public has no right or ability to discuss images without first paying a licensing fee for the right to do so (which would have a chilling effect on public discussion).

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?
Posted by The Curator  in  San Diego  on  Thu Sep 02, 2004  at  10:36 AM
I am undecided as to whether NG is trying to bully you into giving them money or whether they are playing nicely and save you the burden of a lawsuit. Because of the ambiguity of this situation i would remove the photograph immediately but also sending NG an email stating your intent behind displaying the photograph - i would not inform them of how long the photos been up as they might be so inclined to charge you for it - at this point in the email i would request permission to use the photo at no charge and see what happens. Worst comes worst they want to charge you for it but cant

Best of Luck
Posted by Jared  on  Thu Sep 02, 2004  at  02:29 PM
Keep us updated about what happens. Though I honestly think that you are fighting a lost cause (and all for a stupid picture).
Posted by The Mexx  on  Thu Sep 02, 2004  at  07:55 PM
I'm not a lawyer, but I have actually registered copyrighted materials so I know the basics reasonably well. One thing I haven't seen mentioned (apologies if I've missed it).

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.
Posted by jb  on  Thu Sep 02, 2004  at  09:26 PM
You are confusing copyright and trademark. Trademark holders have to protect their trademark or else they may lose them. Some of our common words were once actually trademarks that a company failed to defend. Aspirin, cellophane, nylon, thermos, escalator (to name a few of the more recognizable ones) were once trademarks and now are common words. Xerox vigorously defended against the assimilation of their name, which was in danger of being a common word for a photostatic copy. Now Google is fighting to keep their trademark, as it becomes a part of language rather than a brand name, ex., "I'm going to google it."

Copyright holders do not have to defend their copyrights in order to retain them. Rather, their copyrights expire at a certain date.
Posted by Bill B.  on  Thu Sep 02, 2004  at  10:37 PM
David is completely right. The law is on the side of NG here. The best thing you could do is immediately take down the photo and any others you do not have the rights to.

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.
Posted by Steve  on  Fri Sep 03, 2004  at  11:19 AM
An update: I've decided to temporarily remove the image in question and replace it with a big note explaining why the image was TEMPORARILY removed. That's just to demonstrate my good faith willingness to negotiate with National Geo on this issue.

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. 😉
Posted by The Curator  in  San Diego  on  Fri Sep 03, 2004  at  12:30 PM
That legal precedent you just quoted, by itself means nothing, unless it is used by a judge to rule on your particular case... -during trial- And that means that you would have to go through litigation. Heard lawyers are quite expensive on the US these days, best of luck if you intend to go to trial over this.
Posted by The Mexx  on  Fri Sep 03, 2004  at  11:33 PM
I.m sorry, you can rationalize it anjy way you like, but bottom line is you used copyrighted material without permission (or even a credit). And for profitable purposes.

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.
Posted by Tom  on  Sat Sep 04, 2004  at  06:49 PM
Is this picture the one of the Cessna crashing into the ground and a lucky fellow just missing being cut up by a metre or so? If it is, I have seen it before in a NG photo book, and I'm afraid it is their intellectual property... So I guess removing it was a wise thing to do. May I suggest taking a few pictures of Cessna's at your local airfield? With a bit of patience and a preferably legally obtained copy of Photoshop, we might get some lovely pics.
Keep up the good work, this is a great site!
Posted by Martin  on  Tue Sep 07, 2004  at  10:56 AM
Who cares about copyright??? What about FREE SPEECH!!! FREEDOM OF PRESS!!! why is it large corporations are allowed to take away our freedom of speech laws? that's why they use different names on TV shows. and besides he didn't know it was copyrighted until it was posted. So all you biotches better get off alex's case. he's just doing what he likes, exposing hoaxes. if it weren't for him, we wouldn't never known about the DVD rewinder or Hogzilla or any of these hoaxes. Alex is right, and I'm defending him all the way. and i have the same picture saved on my hard drive, maybe i'll post it on my blog and make money off it.
Posted by john  on  Tue Sep 07, 2004  at  04:31 PM
Good thinking, John, and I hope they sue you too.

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.
Posted by Steve  on  Tue Sep 07, 2004  at  05:39 PM

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?
Posted by The Curator  in  San Diego  on  Tue Sep 07, 2004  at  05:53 PM

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.

Posted by Carl FInk  on  Tue Sep 07, 2004  at  06:45 PM
Carl, I have been in contact with the EFF (Electronic Frontier Foundation) who feel that I have a strong fair use case. But for now I'm keeping the image down because I'm leaving on vacation tomorrow, and I don't want to have to deal with the issue while traveling.
Posted by The Curator  in  San Diego  on  Tue Sep 07, 2004  at  06:57 PM


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...
Posted by WRC  on  Tue Sep 07, 2004  at  10:33 PM
Wow, I am never getting their magazine or any of their books again. What bullies- and don't they realize they got free publicity from you? Maybe you should send them an email asking for some compensation for that.
Posted by No Name  on  Sat Sep 11, 2004  at  05:26 PM
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