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Author Topic: Can you copyright an image after it has been placed in the public domain?  (Read 6583 times)

stinger

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Although I cannot be 100% sure of this, both myself and my ex-marketing director believe that in 2005 Getty's royalty free images web site:
  • did not speak of license fees, and
  • allowed visitors to search for pics, with no copyright notice, right click and save them to their device.
I am in the software business and decades ago was warned by attorneys to never let the case be made that our software was in the public domain, because if we did, we would lose our copyright.

In April of 2007, we stopped using photos from that site.  Both my ex-marketing director and myself remember him coming into my office to tell me that the free photos were no longer free and were exorbitantly priced.  I think that was when Getty changed the site to a shopping cart.

I tried to verify what we remember by going to archive.org, but Getty will not allow them to archive that page prior to 2009.  Is there anywhere else I can go to see what that page looked like in 2005.

I feel like a complete sucker.  They put the pics out there, told us they were free, said nothing about copyright, then changed the rules and now are demanding close to $50,000 for infringements that stopped taking place over 5 years ago.

Does anyone else recall getting their images free from getting and now being trolled?

SoylentGreen

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #1 on: February 20, 2012, 06:04:54 PM »
I don't recall what Getty's site was like in 2005.

I surmise that the site didn't speak of "license fees" because that term is more associated with "rights managed" images.
Additionally, I don't think that the ability to save an image from a web site would provide an "implied license".

Are you sure that the images were actually "free"?  I don't see the point of such a business model.
In any case you'd need an actual example or screen shot of the site, or some sort of expert testimony to employ this as a legal defense.
---

The good news is that Getty hasn't done a very good job at copyrighting much of its collection.
Also, the statute of limitations is only three years; they can't collect on anything prior to three years ago.
That is, if they came at you today and said, "you owe us five years of license fees", that's legally incorrect.
You'd only technically owe them for the prior three years.  Technically.
---

About "losing copyright".  Normally, the owner of an image cannot seek damages relating to infringements that occurred preceeding the first 90 days before actual registration of copyright.
That's US law.

Now, one could argue that an image that has become practically ubiquitous before being copyrighted is "public domain".
Take the "troll face" for example:
http://knowyourmeme.com/memes/trollface-coolface-problem
It's likely much, much too late to copyright and try to monetize "trollface".
But, in an actual dispute, only a court could make that actual determination.
"Law" doesn't make a specific provision in cases like this as far as I know.

S.G.


« Last Edit: February 20, 2012, 06:14:01 PM by SoylentGreen »

Robert Krausankas (BuddhaPi)

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #2 on: February 21, 2012, 10:39:50 AM »
I highly doubt Getty's images were ever in the "public domain", offered as royalty free, yes, but these are 2 different beasts altogether. I "think" once in the public domain it stays there, I don't rememebr exactly how long a copyright exists before expiring, but I want to say like 75 years..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

stinger

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #3 on: February 21, 2012, 10:42:38 AM »
Thanks for your thoughts S.G.

My thought was that allowing copying of images from a site where they were not designated as protected by copyright was some sort of "failure to protect a copyright".  Most high school photographers today prevent copying images off the web site you order them from.

Imagine this site http://www.gettyimages.com/CreativeImages/RoyaltyFree without:
  • the paragraph about pricing
  • a shopping cart built around the images you can link to, and
  • watermarks built into the images.

I am not sure it was a business model so much as poor web developers more interested in getting their content out there than protecting it.  The result was it may have fooled lots of people into grabbing what they thought were free pics.

I am somewhat interested in the statute of limitations.  We only used the images to dress up monthly customer newsletters and ended that practice in April of 2007 when we became aware that the photos were not indeed free.  We of course, left the newsletters on our web site where customers could search for articles in them, but we had no links to those newsletters.  I'm guessing that since the newsletters could be found by Getty's bots, even though they are dated April 2007 and before, the state of limitations does NOT save us?

Robert Krausankas (BuddhaPi)

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #4 on: February 21, 2012, 10:51:08 AM »
The statute starts to run when the images are discovered, generally you can start the clock from the date the first letter was sent to you..

Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

SoylentGreen

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #5 on: February 21, 2012, 11:19:59 AM »
The thing with "copyright" is that there's really no onus on the copyright owner to notify others of the copyright or even to protect the image from misuse.
A notice of copyright on something would reinforce the concept of "negligence" on the part of an infringer, however.

It's different story with "trademarks" wherein they absolutely must be in use and protected.
If you're old enough, you'll remember General Mill's "Boo Berry" cereal.
You can hardly find that cereal anywhere.  But, it's sold in limited quantities in some places and online.
They do that so that they don't lose the trademark; it's actively "in use" and "protected".

There's merit to the fact that the images weren't used since 2007.
For example, if Getty could find an infringement from that far back on an Internet archive (but the original is no longer on the web live) they'd be out of luck.
The law does provide that the copyright owner has to act within a time period that's referred to as the "discovery rule".
This states that the clock starts when the owner discovered, or should have discovered the infringement if the owner had been diligent.
http://www.photoattorney.com/?p=1040

Here's an article that discusses a case wherein the court went by the "injury rule".  I think that this a more rare determination.
However, I do find this part to be of great interest, and you should too:
"The Court also rejected that plaintiff's claim of a "continuing infringement.” This is the argument that an infringement of a given work, which commenced before the three- year period, ought to still be actionable if it is continuing and ongoing, as long as infringing activity occurred during the three-year look-back period as well. In other words, if the continuing acts occurred prior to and during the three-year period, then the infringement should be actionable, but only limited to damages during the current three years. The Court rejected this concept as not being the law."
http://www.photosource.com/psn_full.php?type=Headlines&id=350

Here's another quite an interesting tidbit that I found:
"As discussed in Wolk v. Olson, the discovery rule does not apply to mass-media publications such as newspapers and the Internet; the statute of limitations begins to run at the date of publication."
http://en.wikipedia.org/wiki/Statute_of_limitations

In any case, Getty recently lost a court case over the infringement of 37 images.
The defendant didn't even show up for court, and still prevailed.
Look up Getty vs Advernet on here.  You can take some solace in that...

S.G.

« Last Edit: February 21, 2012, 11:21:33 AM by SoylentGreen »

stinger

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #6 on: February 21, 2012, 11:52:07 AM »
Thanks S.G.  You are a big help.

SoylentGreen

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #7 on: February 21, 2012, 12:43:10 PM »
You're quite welcome.

This brought something to mind that I'd like to discuss here also, as I think that we'll be hearing about in the near future regardless.
Sorry if it's already happened.

People license "rights-managed" images by paying by the length of use (often yearly), the resolution, and the intended use.
Now imagine that purchased a license to use an image one year ago for the period of one year, for example.
Maybe I'm making a "flyer" that I'll print and mail out.  Also, I'll display my flyer online in .pdf format.
Also, assume that I stopped using the image when the license expired (today for the sake of argument).

Now, that flyer might still reside on the Internet within other sites or archives not owned/controlled by myself after the license has expired.
That's not an infringement on my part.  I don't owe anyone a cent for the image license even if I make a sale just because somebody found a copy of the old flyer elsewhere.

I think that this example is a good case against the concept of a "continuing and ongoing" infringement, and why the "clock" should begin "running" at the time that something is "published".

S.G.





Robert Krausankas (BuddhaPi)

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #8 on: February 21, 2012, 12:53:29 PM »
Very interesting concept SG, the same scenario could also appy to a "royaly free" image, using your flyer example, say I create the flyer, and you post it on your site, they could easily send you a letter as you never purchased said royalty free image, and therefore have no "right" to have it on your site..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

SoylentGreen

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Re: Can you copyright an image after it has been placed in the public domain?
« Reply #9 on: February 21, 2012, 02:12:54 PM »
I think that you're right about this, Buddhapi.
As we already know....
Some have even been sent letters about billboards or other advertising that accidentally appear in personal snapshots.
Graphic artists have been sent letters for images that appear in portfolios of their work, even though the client has paid and the stock image house made money.
...it does work both ways.

Naturally, if I could show that a `third party` posted it, and I had a `registered DMCA` agent, I`d have some protection...
...but that`s been discussed quite a bit previously, I guess.

It never hurts to have an answer for everything, though.  lol.

S.G.


« Last Edit: February 21, 2012, 02:15:35 PM by SoylentGreen »

 

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