Copyright Question

[silentmikedotus]

Hello,

I have a question regarding one of my clients.

They have a picture taken by Reuters up. They modified it with a caption and "devil ears and tail" and posted it.

They, and I as the host, have gotten an e-mail message from Reuters asking us to remove it. I cited Section 107 of Title 17, and claimed fair use, as it's a free site; no money is asked for or accepted.

What are your thoughts/experiences on it? If they go to my datacenter and claim copyright infringement, do I have a leg to stand on?

Understanding no one's a lawyer here, any advice/previous experience would be helpful.

Thanks!

[VegasRook]

There was a Playboy case many years ago (think it was around 1990). A user of a BBS posted some Playboy pictures. The BBS claimed it was not their responsibility because they did not do the action. The judge thought otherwise and informed them that they are responsible for knowing what goes on in their network.

So the point is, you are responsible as well.

As to this particular case, I am not sure, but you better find out sooner rather than later.

The other question is: even though you might be right, do you have the money for court battle?

*Note: I am no lawyer. :D

[monsterhead]

Read up on the DMCA . there is safe-harbor provision for ISP (internet servic provider including web host/BBS op)

I am not lawyer (yet). Above does not constitute legal advice.

[monsterhead]

Contributory infringement of internet service providers

Internet Service provider – any entity that makes others to use the internet. AOL etc.

ISP exempt conditionally from direct and contributory liability. If adopts adopt implement or inform users of policy of termination of users who are infringers. Standard technologies to identify copyrighted work. Does not require beyond standard industry practice. Not active monitoring.

Safe harbor provisions:
Storing referring system caching transmitting routing. Etc. Generally subject to safe harbor.

[incrediBILL]

Wait, you DID modify the image in a satirical manner?

There is such a thing as fair use, and satire is a covered component of fair use.

However, if they send a DMCA letter, your data will probably get yanked first (or site suspended) no questions asked as the web host isn't responsible for making legal decisions, they are just responsible for following the safe harbor convenants of the DMCA to avoid any liability.

[hunderdown]

incrediBILL is right--parody or satire gives you a stronger claim of fair use. The fact that your site is a free site is not relevant--simply by posting their copyrighted material you are arguably diminishing its value.

Unfortunately, you'll probably have to go to court to prove this. Copyright holders who also happen to be big corporations are generally pretty aggressive about asserting their rights, even when there is a strong fair use case.

Talk to a lawywer and decide if you care enough about this to make a stand.

[eZeB]

As an ISP you are not responsible (ie liable) for your clients content as long as you make reasonable effort to ensure (etc. etc.). HOWEVER as a designer/creator you are definately liable (ie responsible) because you are deemed to be a publisher of the material.

Our lawyers have advised us of this several times and he says to think about like publishing a book -- there is the author (client) and there is a publishing house who prints, edits and distributes the manuscript in book form.

Nothing like talking to a lawyer yourself tho... :)

[BigDave]

Parody probably gives you more fair use protection than just about anything else short of being a library or archive. (this is a completely US-centric response)

The reason is that parodies are first amendment protected speech. "Congress shall make no law . . . abridging the freedom of speech,"

Just copying something is not free speech, making fun of that thing is.

There is a tricky area with parody where you do not get complete right to copy any old thing you wish. Are you making fun of the picture, or are you only making fun of the subject of the picture.

For example, if it is a picture of a famous person, is there something specific about that picture, that caused it to be chosen? Think about what they do with news photos and headlines on the late night talk shows.

If it is just a quick comment on a picture, where there is no creativity on your part, then claiming parody is pretty much out, and you should probably do what they say. You aren't going to get anywhere with the non-commercial claim.