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Author Topic: FWIW: Oddball question / thought ... not sure if it's been discussed here  (Read 4090 times)

FGetty

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Hi all-  I'm a newbie to this forum, but wanted to post something that I feel (after browsing the forum and finding a TON of great info about defending oneself from these jerks -- thank you all so much!) may be worth considering...

The image Getty sued me for is one that is widely available in print on posters. People hang posters all over the place, in public and in private and, as far as I know (I'm not a lawyer, though), if a poster is hanging somewhere in the real world, there isn't any kind of law that says you can't take a picture of it, for whatever purpose. So, let's say that my friend Bob has one such poster in his home, and he's standing there next to it, and I take his photo. Then, on my business' blog, I post the photo in high-res... maybe I even crop it and just show the poster w/ a note like "Hey, look at this cool poster that was hanging in Bob's home office."

I'm not sure what I'm asking here... it just seems to me that, if you license images to people who are making posters out of them for public display, then that ought to factor into things somehow here. Of course, this is merely one additional thing that, if it came to a trial, I would likely work into a defense. I'm just not sure how.  But, I did want to at least mention it here in case others haven't yet, as I'm happy to contribute any type of defense-style thinking possible against these criminals. Thankfully, they're only suing me for one lonely image. So, I'm ignoring them, and will continue to follow advice I've seen here. 

ps Just for the record, I've been sued by these idiots before and actually go to great lengths to avoid using their imagery online. I've been buying images from much better places for years. The story above is just one example of how one can rather innocently fall within their greedy sights.

Dreamer

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Re: FWIW: Oddball question / thought ... not sure if it's been discussed here
« Reply #1 on: December 02, 2014, 04:29:39 PM »
You were actually sued... and went to court? If so, how did that turn out? Or were you just threatened before?

Greg Troy (KeepFighting)

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Re: FWIW: Oddball question / thought ... not sure if it's been discussed here
« Reply #2 on: December 02, 2014, 04:30:22 PM »
It is my opinion (and I am not a lawyer) that this type  of infringement would be de minimis infringement.  I cite Davis v The Gap.  This case involved The Gap making at least one commercial where the actor was wearing custom eyeglass frames created and copyrighted by Davis.  Davis wanted licensing fees and part of The Gap's profits from the advertising campaign.  The court ruled that de minimis infringement is not infringement at all otherwise you would get letters for having your picture taken in front of a statue or anything.

Quote
"The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright. Trivial copying is a significant part of modern life. Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on Jose de Creeft's Alice in Wonderland sculpture. We record television programs aired while we are out, so as to watch them at a more convenient hour. 8 Waiters at a restaurant sing "Happy Birthday" at a patron's table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement."

See Davis v. The Gap,246 F.3d 152 (2d Cir. 2001).
« Last Edit: December 02, 2014, 04:32:52 PM by Greg Troy (KeepFighting) »
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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FGetty

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Re: FWIW: Oddball question / thought ... not sure if it's been discussed here
« Reply #3 on: December 02, 2014, 05:51:57 PM »
@Dreamer:  Ahh, no. Sorry, I should clarify that: I received my first *set of letters and harassment calls* from their extortion machine years ago. It didn't go to trial.  In that one... via a very bizarre (long story) way, a graphic of their made it onto a deeply-buried page on my company site that only a bot would ever find (but of course Getty's bots crawl every nook & cranny), so... Anyway, I nearly settled for like $800 (and had used only a tiny portion of a guy's head from a larger pic they owned), but my boss said, "F*ck them" and instructed me to ignore them. I fugured it was his ass on the line, so I did ... and it went away.

@ Greg:  Thanks. Yeah, that sounds about right to me as well. I'll be reading up on that one, for sure. I suspect part of their strategy in pricing their images at like $500 (when similar ones routinely cost about $1 - $5 online everywhere else) must be an attempt at un-trivializing these things.

lucia

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Re: FWIW: Oddball question / thought ... not sure if it's been discussed here
« Reply #4 on: December 03, 2014, 04:19:04 PM »
The image Getty sued me for is one that is widely available in print on posters. People hang posters all over the place, in public and in private and, as far as I know (I'm not a lawyer, though), if a poster is hanging somewhere in the real world, there isn't any kind of law that says you can't take a picture of it, for whatever purpose. So, let's say that my friend Bob has one such poster in his home, and he's standing there next to it, and I take his photo. Then, on my business' blog, I post the photo in high-res... maybe I even crop it and just show the poster w/ a note like "Hey, look at this cool poster that was hanging in Bob's home office."
I'm not a lawyer, so take this for what it's worth. But still, this is what I think!

Copyright contains a provision for "fair use". Fair use is an affirmative defense you can advance if you are sued.  You then have to make a case your use does fall under fair use.  You are describing a situation that might be borderline and details not included in your discussion would matter. 

One on extreme of "you took a photo of Bob":

Suppose you are in Bob's living room, he's on the couch, you snap a photo. The photo is mostly Bob, but in the background one can see the photo.  Then you put that on  your facebook, blog, or even a business blog etc.  You say, here's bob on his couch! The focus is Bob but the image in the poster is undeniably 'copied'.   There's a pretty good chance you can assemble a convincing argument that will pass the four factor fair use test. Basically: it's most likely that with that set of facts, the photo you are posting doesn't affect the market for the image and you can probably convince a judge that your 'creative' contribution is of "bob in his living room" and as such, the image is only copied for it's function of "being in his living room" and so -- in some sense-- is your "speech" and that speech is about "bob and his living room".  Maybe you'd lose, but I suspect you could put together a good argument.

If the portion of the photo containing the image was small enough or lots of people were milling around in front of it and so on, you might even get "de minimus" which is also not infringing but under a slightly different principle than 'fair use'.

On the other hand, suppose you are with Bob in his living room. You see he's got a remarkable image on his wall. You intentionally get him to siddle up to it-- not obscuring the image at all. You take a photo in which you intentionally focus on the image-- not bob. And then you crop bob out, and only have the image-- in high resolution and in focus. And then you upload and use that as a decoration at your business blog, but include some tiny nearly insignificant snippet that few readers might see that says "Look at this cool poster Bob has in his home"-- and that is done in a context where you are marketing ... something.... You might have a harder time putting together a fair use claim. The judge might see that as just you trying to get around paying a fee to get permission to display the photo itself.  If it's the whole photo and your business blog gets a lot of traffic, I would be too optimistic about winning under 'de minimus' in this case either.  (Worse, if it's a photo of a celebrity and your blog is a celebrity fan site.... forget it. Putting "look at this cool photo on Bob's wall" is not going to cut it. )

Or not. Hard to say. But what you are talking about is how good the argument of 'fair use' or 'de minimums' might be in a specific instance. And "fair use" is very fact specific.

 

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