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Content, Writing and Copyright Forum

    
Pictures - Copyright Question
Krossinc

5+ Year Member



 
Msg#: 3445257 posted 7:56 pm on Sep 8, 2007 (gmt 0)

I'm in a bit of a pickle trying to figure something out. I've been developing a sports site (mixed martial arts specifically) that revolves quite a bit around current events.

Whenever a news article is posted, generally, a picture of the athlete is included. This is pretty common on every site of this nature. When reporting current events/news articles, is it okay to utilize pictures of athletes that have been traveling the web if the picture is not one I have taken personally? I've noticed that doing so is very common on major news websites, but I am just looking to watch myself. The photos are not being used to sell any item, just to report on an event. Any kind of information I could garner would be greatly appreciated.

 

Quadrille

WebmasterWorld Senior Member quadrille us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 3445257 posted 4:21 am on Sep 9, 2007 (gmt 0)

Most of the pictures you see are taken by freelance photographers working for agencies.

The picture are virtually certain to be owned by a major agency, and there will virtually certainly be a hefty fee to pay, possibly into hundreds of dollars (depending on the subject).

Some do chase fees; a recent case involves tens of thousands of dollars (I don't think it's settled yet).

Matt Probert

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 3445257 posted 1:15 pm on Sep 9, 2007 (gmt 0)

The photographs are copyright. Period. However, if they have been distributed through the public domain by third parties you can fairly safely (morality and legality are other issues) use them.

Should the copyright holder try to take you to court over it, you can argue entrapment. But of course must remove them when requested by the copyright holder.

Matt

Beagle

WebmasterWorld Senior Member 5+ Year Member



 
Msg#: 3445257 posted 2:45 pm on Sep 9, 2007 (gmt 0)

If it were a team sport, I'd suggest getting in touch with the team's PR office or checking the "media" section of their website to see if they have any pictures specifically provided for media use. I don't know how this would work for an individual sport such as martial arts, unless the top athletes have agents you could approach.

skunker

10+ Year Member



 
Msg#: 3445257 posted 3:02 pm on Sep 14, 2007 (gmt 0)

Why not claim "Fair Use"? As long as you are not making money off of it or causing the original photographer to lose money, you'll be fine. Done all the time.

LifeinAsia

WebmasterWorld Administrator lifeinasia us a WebmasterWorld Top Contributor of All Time 5+ Year Member



 
Msg#: 3445257 posted 4:00 pm on Sep 14, 2007 (gmt 0)

causing the original photographer to lose money

Guess what- using the picture without paying for it *IS* causing the original photographer to lose money.

jimbeetle

WebmasterWorld Senior Member jimbeetle us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 3445257 posted 5:00 pm on Sep 14, 2007 (gmt 0)

Why not claim "Fair Use"? As long as you are not making money off of it or causing the original photographer to lose money, you'll be fine. Done all the time.

It isn't quite as simple as that. Go to the source [copyright.gov] (in the U.S. at least):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.


In its fair use factsheet [copyright.gov], the copyright office itself acknowledges the problems of determining fair use:

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

And goes on the give some examples of what has in the past been determined to be fair use:

quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

stapel

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 3445257 posted 5:03 pm on Sep 14, 2007 (gmt 0)

skunker said: Why not claim "Fair Use"? As long as you are not making money off of it..., you'll be fine.

Sorry, but the definition of "Fair Use" is NOT "but I didn't make a profit on it" or even "but I didn't charge for it".

To learn about Fair Use, please try the following:

Naturally, for specific information, one should consult with an attorney. But the above should serve to clarify the definitions, etc, at least to some degree.

Eliz.

skunker

10+ Year Member



 
Msg#: 3445257 posted 5:20 pm on Sep 14, 2007 (gmt 0)

Great, so then what do we tell Youtube?

jtara

WebmasterWorld Senior Member jtara us a WebmasterWorld Top Contributor of All Time 5+ Year Member



 
Msg#: 3445257 posted 5:31 pm on Sep 14, 2007 (gmt 0)

In the case of a photo, it seems to me that the only possible fair use on a website would be discussion and criticism of the photo itself.

Great, so then what do we tell Youtube?

YouTube isn't copying any content - their users are. Their obligation is only to remove infringing material when it is reported to them.

A far cry from posting copied material on your own website yourself.

skunker

10+ Year Member



 
Msg#: 3445257 posted 5:46 pm on Sep 14, 2007 (gmt 0)

(One thing I never learned was how to quote messages in this post...)

But I want to comment on the fair use issue...

My beef is this:

How can something be "fair use" when the website places ads around the content? Sure, the users can be discussing and criticising the content, but websites are making a profit off of the material by placing ads (e.g. adsense, banners) on the pages, no?

I see that Youtube does not have a single ad on their content pages. Is this a reason why?

jimbeetle

WebmasterWorld Senior Member jimbeetle us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 3445257 posted 6:33 pm on Sep 14, 2007 (gmt 0)

The "commercial nature" of the use is just one of the factors involved. You can't just pick one, all the factors must be considered and, as the copyright office says, it's danged hard to make a determination. That's why fair use matters are usually left to the courts.

jtara

WebmasterWorld Senior Member jtara us a WebmasterWorld Top Contributor of All Time 5+ Year Member



 
Msg#: 3445257 posted 7:56 pm on Sep 14, 2007 (gmt 0)

I see that Youtube does not have a single ad on their content pages. Is this a reason why?

Yes. They haven't gotten around to figuring out how to monetize the site yet.

(Actually, the founders got that figured-out quite well - they sold the site to Google!)

In fact, though, they HAVE just recently started putting ads IN some of the videos.

ceestand

5+ Year Member



 
Msg#: 3445257 posted 8:09 pm on Sep 14, 2007 (gmt 0)

I suspect that many of the pictures you see floating around that seem to be public domain are actually being used without the copyright holders' permission and they're willing to take the risk since the interested parties don't have time to track down all the offenders and that usually a C&D letter will be sent and the offender will remove the pic and that's enough to placate everybody.

BTW, as an MMA fan myself, I do know that a certain organization that has been buying up all the other organizations, does not take kindly to shenanigans concerning their content. I've read plenty of stories of reporters/photographers being kicked out/banned/blacklisted for all manner of reasons.

stapel

WebmasterWorld Senior Member 10+ Year Member



 
Msg#: 3445257 posted 8:41 pm on Sep 16, 2007 (gmt 0)

skunker said: One thing I never learned was how to quote messages in this post.

Open the "reply to this topic" link in another tab or window. Insert "[quote]" and "[/quote]" tags inside your message. Between the tags, insert the bit you want to quote.

For more information on how to use the Style Codes for this forum, try following the "Style Codes" link [webmasterworld.com] to the left of the message-entry box, the next time you compose a message.


skunker said: How can something be "fair use" when the website places ads around the content?

To learn about Fair Use, try following the links, provided earlier.

Thank you.

Eliz.

skunker

10+ Year Member



 
Msg#: 3445257 posted 1:34 am on Sep 17, 2007 (gmt 0)

I finally got around to reading the LA TIMES vs FREE REPUBLIC. Thanks for making that link available. It answered my question below:

Commercial Nature Of The Free Republic Website

In addition to examining defendants' purpose in copying plaintiffs' articles, the first fair use factor also directs that the court evaluate the "character" of the use. The mere fact that a use is commercial does not "give rise to a presumption of unfairness." Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000). See also Campbell, supra, 510 U.S. at 584-85 (noting that the Court's earlier decision in Sony, supra, 464 U.S. at 451, "called for no hard evidentiary presumption"). Rather, a defendant's commercial purpose is only "a separate factor that tends to weigh against a finding of fair use." Campbell, supra, 510 U.S. at 585. Thus, a court evaluating the first fair use factor "must weigh the extent of any transformation . . . against the significance of other factors, including commercialism, that militate against fair use." Sony Computer, supra, 203 F.3d at 607. [*42]

The parties vigorously dispute whether defendants' operation of the Free Republic website is a profit or non-profit venture as those terms are used in § 107. Their disagreement focuses on the corporate status of Free Republic, and on the extent to which defendants' operation of the website generates revenue, donations, and commissions.

Defendants argue that Free Republic is a non-profit organization and that they make no money from operating the website. The undisputed evidence reveals that Free Republic is currently a for-profit company. It also demonstrates that Free Republic solicits donations from visitors to the website who wish to support its mission and operations. n50 In addition to these direct solicitations, defendants concede that they have facilitated links to third-party web pages where donations to Free Republic and/or Robinson are requested, and where donors receive Free Republic-related souvenir items in exchange for a contribution.

John_Blake

5+ Year Member



 
Msg#: 3445257 posted 11:34 am on Sep 25, 2007 (gmt 0)

Does anybody know whether it is legal (not regarded as theft) to make screen shots of videos (particular video frames) and use them as pictures on a blog post or a website if you will?

jimbeetle

WebmasterWorld Senior Member jimbeetle us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 3445257 posted 2:33 pm on Sep 25, 2007 (gmt 0)

Does anybody know whether it is legal (not regarded as theft) to make screen shots of videos (particular video frames) and use them as pictures on a blog post or a website if you will?

What would be different in that situation as opposed to what's been discussed above?

vincevincevince

WebmasterWorld Senior Member vincevincevince us a WebmasterWorld Top Contributor of All Time 10+ Year Member



 
Msg#: 3445257 posted 2:44 pm on Sep 25, 2007 (gmt 0)

Fair use is normally adjudicated according to the spirit of why it is permitted. Spirit of.

It is there to stop certain cases such as:
- A lecturer being unable to mention phrases from a work in a review, even when properly cited and directly implicated in the work under discussion.
- A theatre critic being unable to quote a line from the play he watched for fear of creating a derivative work.
- A newspaper being unable to quote from published statements without specific copyright permission.
- A comedian being unable to parody a work

These are all clearly cases where any reasonbable person would agree that the work should be permitted to be used in that way regardless of copyright claims.

Taking an artistic work intended to illustrate a particular sports professional and using it in its entirety and without permission to illustrate that sports professional is most certainly not reasonable and not fair use.

Sure, if the photographer is noteworthy in his field, and your work discusses the methods he uses to capture martial artists on film, you might be able to claim fair use. Might. But not for using the photographs for precisely what they were created for!

Whilst that's not legal advice, I hope it gives you a bit of context to your train of thought. If in doubt, ask one of the photographers if they feel it's fair use.

John_Blake

5+ Year Member



 
Msg#: 3445257 posted 11:13 am on Sep 27, 2007 (gmt 0)

Thank you for the clarification! It was a kind of question I've always wanted to find the answer for.

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