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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.
Categories: Miscellaneous
Posted by Alex on Tue Aug 31, 2004
Comments (57)
More from the Hoax Museum Archives:
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
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