Forum Moderators: not2easy
The catalog of links is arranged according to pattern type (ie hearts, bookmarks etc) and shows the piece title, designer's name and year, any special techniques required to make it. It has a 100x100 thumbnail image of the piece generally from the site that is being linked to. The actual link to the site is an image of a globe to represent that it is not within my website. It is clear to users that these are links and that the content is not mine, just the format of collation.
This catalog represents several hundred dollars of development costs and many many hours of my own time to collate. As far as I am concerned, I am charging for the content collation. I do not charge a fee for members to click on a link to one of these sites.
One of my members has decided to get upset. I believe that it is because they do not wish to pay for a premium service at the forum. They have started writing to anyone with a pattern available accusing me of charging people to access their site and citing copyright laws for image use.
Now I'm getting threats and all sorts of nasty emails!
Anyone got any thoughts on this matter? Where do you believe that I stand? Does anyone else know of a site that charges for a premium level of portal access and does not charge the linkees for their links?
These creators didn't ask to be put in your "catalog"; if they want out, you should remove them. And people generally don't want to be charged for free stuff; you might want to clarify just what you're charging for, so people might not be so likely to get upset when they view what they've paid for.
Just my $0.02....
Eliz.
I'm not actually charging people to view the content. I'm charging to view my catalog of online content that I created. They are fully aware that it is a catalog of freely available stuff when they sign up. It was an add on as an extra thank-you for supporting the site. What they actually pay for is the other features, this is thrown in.
It's funny, people are more than happy to be included in the links, what they seem to be getting upset about is that I have used the images and everyone was completely happy about this until one members atrted telling outright lies to others and encouraging them to demand full access. Now I'm getting threats! When I offer to remove them they say "oh no, it's ok, just make it a text link" which actually defeats the purpose.
Here is an excert from a site describing the copyright act and fair use:
Fair use is the most significant limitation on the copyright holder's exclusive rights. Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors:
The purpose and character of the use:
Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use.
My use is to create a thumbnail of an image from the site. It is not always the entire image, most of the time it is a portion of that image. It is cropped, a border is added and it is added into another work being a catalog so that others may locate the exact pattern they wish to use.
The nature of the copyrighted work:
Is the copyrighted work a published or unpublished works? Unpublished works are less likely to be considered fair use.
Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.
These are all published online only, not in a commercial book. This is the only area of greyness...
The amount and substantiality of the portion used:
The more you use, the less likely it will be considered fair use.
Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work.
Is the particular portion used likely to adversely affect the author's economic gain? If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair.
The items or images are a representation of what will be achieved by following a set of instructions. The instructions themselves are not copied in any way. You could argue the essence ofthe work, but the picture is useless without the instructions!
The effect of use on the potential market for the copyrighted work:
The more the new work differs from the original, the less likely it will be considered an infringement.
Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use.
Now this is the funny part - by doing this I am actually increasing the likelihood that people will visit these websites. The work I have created is a portal to these sites, it is substantially new and original (I think that's part ofthe complaint - the person complaining does often come down on people and then later on come up with their old ideas that she had campaigned against!)
I believe that it's fair use... what do you think?
[fairuse.stanford.edu...]
[stfrancis.edu...]
[efuse.com...]
You will note that Fair Use applies to commentary or review, parody, and education. Your use must first be transformative under one or another of these categories. Only then does your use get subjected to the various tests you have posted. I'm sorry, but I'm not seeing how your use qualifies.
Eliz.
Other people have created content, and you are charging people to view that content. If I were one of those content-creators, seeing you making money from what I created, I'd probably be upset, too.
It seems he is charging people to view his directory of links to other people's content. I don't see how he's making money off what "you" created; he's making money of what he created, which is the directory of links. That is, the directory of links has inherent value in and of itself. Yes, people can search Google for the links (and are free to do so), but he's done the work for you and gathered them all together nicely. That's added value. If people think the fruits of his efforts are worth paying for, I don't see the problem here.
I'm not a lawyer, though, so I can't comment on the legal aspect.
You might want to read the Arriba decision before you make such comments about whether thumbnails are transformative. Specifically this bit:
[5] This case involves more than merely a retransmission of Kelly’s images in a different medium. Arriba’s use of the images serves a different function than Kelly’s use — improving access to information on the internet versus artistic expressio. Furthermore, it would be unlikely that anyone would use Arriba’s thumbnails for illustrative or aesthetic purposes because enlarging them sacrifices their clarity. Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
While Arriba's use is different than handbag's, it still casts a large shadow of doubt on your assertions.
What do you need to do to clear up what is now a public relations mess? Figure that out, and then do it.
One option, for example, might be to move the catalog into the free part of your site, and publicize the fact that you are doing so. Get some good publicity out of THAT.
But there may be other possibilities too. My main point is, look beyond what you need to do legally to consider what you need to do to keep your visitors and the sites with the patterns as happy as possible. You won't be able to make everybody happy, of course, but you may come up with something that will make more people happy.
Good luck!
As for public relations, yes I agree with Hunderdown there. My problem is the antagonist has mounted an email war against me. I am fighting totally in the dark. I believe that I am in the right yet from what I have seen this person is writing slander about me. I have removed their access to the forum - the first person to be removed in 10 years of this group's history!
I also have a lot of support from other members, it's just this person seems to want to stifle any creativity at all in this small craft's world. She has something to gain from that - she publishes and sells her own patterns so it is in her best interests to stifle the creativity of others!
She also has been waging a private war against my premium access from the start. Anything she can get her hands on to disparage me and it. She seems determined to undermine any opportunity I may have to recoup costs. The only reason I can see is so that her own very small list may take over from me.
I'm tired of rolling over for bullies like her! It's time I stand up for myself and knowing how I stand legally helps me to make my case and gives me the confidence to stand my ground.
If people think the fruits of his efforts are worth paying for....
You might want to read the Arriba decision....
According to one article I read, "Fair use is a hair-splitting doctrine. While the Arriba case might seem to have decided that thumbnails are fair use, this can't be relied on as a general rule....Final key issues to keep in mind: If a picture-pirate is directly profiting from displaying thumbnails, this will weigh against fair use....For now, thanks to the Arriba case, it seems clear that a thumbnail image will be deemed a fair use so long as it doesn't harm the market for the original image...." --GigaLaw [gigalaw.com]
The thumbnails being discussed within this thread do not, I think, hurt the market for the originals, but direct profit does appear to be being made from the thumbnails. It might be best to stop charging for the catalog, at least until after consulting with an attorney.
Eliz.
It would seem that some do not.
You might want to read the Arriba decision....
That decision specifically does not say that all thumbnails are "Fair Use". Using a thumbnail of an "aesthetic" image (for example, an artistic work) to catalog various styles or the availability of various types of images is one thing. But using a thumbnail of an advertising image to provide advertising might not be viewed the same way.
I have read it, very interesting. Where did "advertising" come from? I am creating a thumbnail of an image of an aesthetic work being a pieve of lace and using it to illustrate what pattern can be found if the user goes to that website. I am not charging to create this image, even though it involves some work on my behalf. In fact, there's no difference between what I am doing and what google image search does.
Final key issues to keep in mind: If a picture-pirate is directly profiting from displaying thumbnails, this will weigh against fair use....For now, thanks to the Arriba case, it seems clear that a thumbnail image will be deemed a fair use so long as it doesn't harm the market for the original image...." --GigaLaw
Now the images I'm creating are used to link to the originator's website. This is a very very small craft and many of these people want visitors to see their works, I am directing visitors to their sites. For a premium service charge my members receive access to a number of premium features, one of which is a catalogue of links that I have created. That catalog happens to include thumbnail images to show what can be found by following the link. This is a once-per annum fee regardless of whether or not the user uses the catalogue and regardless of whether or not an individual's pattern is represented in it, it is the whole product rather than the individual image that generates income. The catalogue is not dependent on the images - indeed I have begun to gather alternative images where possible to provide an example of what can be created, although I believe that this is detremental to the pattern owner.
might be best to stop charging for the catalog, at least until after consulting with an attorney.
The antagonists claims are designed to force me to make this free - she is really engaging in extortion by her threats and actions.
I have consulted with a lawyer on this. Her opinion was that this is fair use and that I should be bringing charges against the antagonist for commercial extortion! - I was after other opinions from those at the coal face.
Thank you so BigDave much for the pertinent case.
You're welcome.
When it comes to issues like this, I always like to go to whatever appropriate caselaw is available. It is also nice when the person you are talking to is willing to read it, but for some reason, some people are scared of them.
That decision specifically does not say that all thumbnails are "Fair Use".
Uh, did you read my whole message? Like this part:
While Arriba's use is different than handbag's,
See, I am not saying that all thumbnails will qualify as Fair Use, and I am even saying that handbag's use is different than arriba's.
What I was replying to was this assertion by you:
Taking an image that advertises a widget and cropping it to create a thumbnail that advertises a (link to a) widget is not transformative,
You are claiming something that is counter to what the appeals court ruled.
What handbag is doing, *might* or *might not* be fair use, but you are declaring (without knowing all the details) that it *is not*. I believe that anyone that reads the appeals court ruling on the thumbnails (not the final district court ruling on Kelly v. Arriba, which deals with other matters) would definitely find that "it still casts a large shadow of doubt on your assertions."
As for the dealing with the PITA that is causing you problems, every hobby commuity that I have ever been involved with has them.
Generally once the other people out there start dealing with her, they will start seeing that her motives are not necessarily pure. It will just take some of them longer than others.
My suggestion would be that you get in touch with everyone whose designs you link to, and offer them a free membership to your site.
I'm assuming that your site has some sort of forums related to the craft. Having some of these "pros" involved in the discussions can be a boon to all concerned.
And when the PITA gets in touch with them to complain about your site, they are more likely to defend you than attack you.
My review site is dealing with one such problem child right now. He is the Austrailian Distributor for a Swiss manufacturer, and he has taken exception to a review on our site.
He is contacting everyon that he can think of in the industry and everyone that has ever posted to any of our mailing lists, as well as posting things on a site that he set up on tripod.com.
Since our reputation is so strong, all he has succeeded in doing is to convince other publications that it would not be wise to review his gear.
Make your reputation that strong, and she will just end up destroying her own business.
The big thing in my favour is that I have the first and largest site dedicated to this craft in the world. Most of my members are extremely loyal to me.
One of the reasons not to give access for free is that this is what the individual is trying to achieve, however, I may look at other ways of doing this - perhaps a points system based on the number of patterns included.
Being an Aussie I do hope I don't accidently support your antagonist - you must let me know what products you review!
