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Author Topic: PicRights.com  (Read 17699 times)

kingkendall

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Re: PicRights.com
« Reply #45 on: August 17, 2018, 10:25:23 AM »
If the article or web page is not about the particular photo or the photographer, it is probably not fair use under the news reporting, commentary or education prongs of fair use.   Don’t confuse the subject matter of the photo with the actual photo.

I've seen this argument also about it's only fair use if one is writing about the photo itself and not the subject matter associated with a photo.  I've always had a problem with that.  Especially when it comes to bloggers using an image from an actual news story.  If a blogger uses an image of a news event Eg: Bad guy robs bank caught by cops.  Mom and Pop blogger uses the image of the bad guy who robbed the bank.  How is that not fair use?  He's the one who robbed the bank.  The image was found in a news report.  The copyright law allows for fair use in the context of news reporting and that's what Mom and Pop blogger did.  Mom and Pop blogger is not trying to screw the photographer who took the photo.  They're trying to do the right thing as far as they read the law.  Did they have to go to law school in order to read the law as lawyers instead of as laymen trying to comply with it? 
« Last Edit: August 17, 2018, 10:29:09 AM by kingkendall »

DavidVGoliath

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Re: PicRights.com
« Reply #46 on: August 17, 2018, 02:53:35 PM »
If a blogger uses an image of a news event Eg: Bad guy robs bank caught by cops.  Mom and Pop blogger uses the image of the bad guy who robbed the bank.  How is that not fair use?  He's the one who robbed the bank.  The image was found in a news report.  The copyright law allows for fair use in the context of news reporting and that's what Mom and Pop blogger did.  Mom and Pop blogger is not trying to screw the photographer who took the photo.  They're trying to do the right thing as far as they read the law.  Did they have to go to law school in order to read the law as lawyers instead of as laymen trying to comply with it?

If the scenario you cited were to play out writ large, then no news reporting agency would ever license editorial imagery; they would just take photographs from any source they saw fit and never have to pay a dime in licensing fees. So, yes, there are case precedents where it's been successfully argued that the newsworthy item must be the image itself.

Here's an example that's easy to understand: when Daniel Morel took photographs of the aftermath of the earthquake that hit Haiti, and his Twitter account was the only means of getting those images out owing to all other communications infrastructure being damaged or overwhelmed, Getty and AFP thought those shots were free for the taking. We all know how that played out a few years down the line.

in reporting on Morel winning a $1.2M damages award, many websites around the world would have used one of Morel's pictures to illustrate the case result in a "This is one of the pictures that Getty/AFP infringed on" capacity, and these uses would likely have fallen squarely under fair use exemptions.

So: Getty/AFP (and other outlets who settled directly with Morel) taking pictures of his from his twitter feed = infringement.

Using same pictures to report on Morel's court victory against Getty/AFP = fair use*

(* If the country has such fair use exemptions. As a contrary example, UK law does not allow the 'fair dealing' of photographic works for news reporting)

Ethan Seven

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Re: PicRights.com
« Reply #47 on: August 17, 2018, 07:36:29 PM »
DvG nailed it.  That is a good textbook answer on fair use.  Fair use is much narrower than what most people think.  Kingkendall is right that it is easy to misinterpret the language, but ignorance of the law is seldom a defense to any violation.
« Last Edit: August 17, 2018, 07:39:39 PM by Ethan Seven »
Even if I am a lawyer, I am not your lawyer.  Copyright matters can have serious consequences.  If you have assets worth protecting, consult a lawyer who is familiar with copyright law and who can review the facts of your case. If you cannot afford one, call your state or county bar association.

Matthew Chan

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Re: PicRights.com
« Reply #48 on: September 08, 2018, 04:08:42 PM »
This response is not directly at Robert but his post compelled me to state my position.

I declined speaking to someone and promptly refunded the money (after they paid for an ELI Support Call) because I discovered that that person wanted to spend most of their time discussing the ins and outs of a fair use defense.

I generally cringe when people want to use a "fair use" defense. It doesn't mean they cannot do it. It just means, generally speaking, I want nothing to do with it because most of the examples I see really doesn't meet my threshold for a solid fair use defense.

It is a very "soft" defense, very subjective, and very much a grey area which I agree with Robert.

I tell people that they can use any defense they want because it is THEIR CASE. They get to choose.  But that doesn't mean I have to be onboard with it or want anything to do with it. And if they strongly stand by it, they should go consult with a lawyer who is very knowledgeable about fair use defenses.  It ain't me.

And many people still don't get it. Most of these copyright extortion operations don't want to file lawsuits. And so people are desperately looking for an absolute legal defense to shut things down. Unfortunately, I have been following this for a decade. There are very few airtight defenses in most of the situations I see. There are generally only "practical" and "soft" defenses available which are have been well covered here over the years.

An example of a "practical" defense would be someone living that committed an infringement on a personal hobby non-commercial website in their parent's basement and has no meaningful assets and income. A divorced woman who lives on government assistance and has 3 children who was trying to make a few extra bucks with the unintended infringement.  The law makes no distinction about infringements.

But if a pursuing lawyer knows and can verify the facts of the situation of the accused, I am fairly certain they are not going to be that motivated to go full steam ahead on any lawsuit against such parties. It isn't "practical".  Generally speaking, filing lawsuits against broke or impoverished people is not a good use of resources.  But copyright collections are not mind-readers.  Someone actually has to communicate it so they don't think the worse.

That is why I am not a big fan of just "going dark" without some consideration of the pros and cons of such an approach. Lots of factors at play.

"Fair use" defense is something YOU will have to stand by but it is generally very "soft" in my view.

I don't think it matters what the "site" is about...the court would only deal with the image in question, not the site as a whole. Fair Use is solely up to a judge to determine and can sometimes be a very grey area.. see link below:

https://fairuse.stanford.edu/overview/fair-use/four-factors/
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, epithets, & profanity. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Matthew Chan

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Re: PicRights.com
« Reply #49 on: September 08, 2018, 04:10:20 PM »
Agreed.

Fair use is much narrower than what most people think. 
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, epithets, & profanity. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

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