So annoyed right now- stealing pictures, is this legal?

[havoc315]

I agree with you that it's not a settled area of law, but that's not really what matters. The biggest lesson I've learned with my own infringement suits is that we have a difference between what's written and what happens.

Only a rare few cases actually go to trial. Most cases are settled and that's generally good. The law favors a settlement. The courts could not actually try all of the cases that get filed.

Here's the key point between parties, though. Although you can file suit on a contingency basis, there is no such thing as a contingency defense. That means the defendant will spend an awful lot of money just to get to trial to see if the court will reject the hyperlink as an infringement or not. Most people and most businesses don't see that as a valid expense. It's less costly for them to settle and agree not to use a photo that isn't theirs - even if it was hyperlinked from another site.

We can debate all we want on this board, but it's irrelevant. I know IP attorney's who file suit against hyperlink infringers and come out with a favorable settlement.

Most big Internet copyright suits don't involve contingency. But they do involve top tier, very expensive lawyers. There are some freedom of speech advocates who will occassionally provide a pro bono defense to a defendant, but in most cases, it comes down to the might of the parties. Thus, you are ultimately correct about actual practice. If a small time blogger, for example, suddenly starts receiving threatening letters from Time Warner, or Walt Disney attorneys, the small time blogger will usually give in to the demands.
And if google wants to hyperlink to your images and pages, no small time blogger will be able to take them on.

So typically, these things settle for the sake of financial certainty, as opposed to legal merit.

 

[MarkBarbieri]

Wow! A friend used some pictures without permission and people are talking about legal remedies.

I'm guessing that your friend is not aware that what she is doing is illegal or that it bothers you. A friendly conversation on the subject sounds warranted. Getting mad at this point sounds kind of petty.

Before talking with her, I would think about what you really want out of this. Do you want to be paid? Do you want recognition? A simple thanks? I think that people are happier in life when they think about positive, win-win outcomes in these situations rather than reflexively demanding their full legal rights.

Also remember that there are some pitfalls to taking money for your shots. You'll need to declare that money as income and do the extra tax paperwork. Also, your insurance might not cover your gear if you are using it for commercial purposes.

I am thankful that Disney isn't as zealously protective of their intellectual property as some people here seem to be. They could easily ban us from taking pictures while at the parks. I chuckle when I see people being protective of the Disney pics they are selling. I guess it is OK for them to violate Disney's rights but people better not mess with them.

OK, that was a bit of rambling. I'd some it up with the thought that this person is (or was) a friend. Treat them like one, even you perceive them as having harmed you. Give them the benefit of the doubt. And make this world a better place by going to lawyers only as a very last resort.

 

[wbeem]

So typically, these things settle for the sake of financial certainty, as opposed to legal merit.

That's also the reason I gave away my MK photo guide instead of selling it. Even though I took the photos and own the copyright, even though the law is on my side for publishing photos of trademarked structures in a public place, I know there's no winning a fight between me and Disney.

I contacted them before publishing to request an approval to sell the book, but they gave a legalese answer that was easy to read between the lines. "No, but we don't want it to look like we're telling you what to do."

 

[wbeem]

Wow! A friend used some pictures without permission and people are talking about legal remedies.

There's nothing wrong with a legal remedy if it's appropriate for the circumstances.

 

[mad madam mim78]

I honestly don't understand the problem. I would do just about anything for my friends and if my picture of an average tree helped her in any way I would let her use it. No questions asked. No payment needed. You don't even need to put my name on it. But hey on the waaaay off chance one of her clients is blown away by my picture if she were to say she was the one who snapped the picture THEN I would be upset.

 

[photo_chick]

I won't claim it is a fully settled area of law. But look at it this way -- If hyperlinking was forbidden, then google and all search engines would be out of business. They don't seek permission before hyperlinking search results. Including image search results.

Exactly. Facebook is another example. That share button isn't copyright infringement. And then there's the issue of usage rights that you're granting to the public when you post an image on a hosting service and allow external links to it.

It is a gray area in extreme cases, but for every day people just sharing images there are already precedents in the US that support the idea that hyperlinking is not copyright infringement.

 

[photo_chick]

Free legal advice is often worth what you paid for it.

That's why I said you should seek the counsel of a real attorney, not someone who just plays one on a message board.

Oh, but you cut that part of the post out.

 

[havoc315]

That's also the reason I gave away my MK photo guide instead of selling it. Even though I took the photos and own the copyright, even though the law is on my side for publishing photos of trademarked structures in a public place, I know there's no winning a fight between me and Disney.

I contacted them before publishing to request an approval to sell the book, but they gave a legalese answer that was easy to read between the lines. "No, but we don't want it to look like we're telling you what to do."

A word on my background. I am an attorney, and I graduated law school with essentially a concentration in intellectual property, though I did not end up practicing in that field. I was an editir of a Journal of Science and Technology Law. I completed a quasi-thesis on the extenstion of the copyright law. Though I have tried to stay current, my formal education is 15 years old -- when the modern Internet was in its infancy. We were more concerned about the status of software copyrights than Internet usage.

There is no question the law is on your side. Disney's letter to you may have been discouraging of your work, but even they could not blatantly threaten you when they don't have a leg to stand in. And really, whether given away for free or profit, would not be determinative of an infringement issue. If I gave away copies of a Hollywood blockbuster, you better believe they would come after me for infringement.

But yes, unfortunately, this is an area where big business rules. They can use bullying, fear, litigation, to get their way, even when their legal positioning is questionable at best. (My legal thesis was that copyright extension was being rammed through Congress at the behest of big business, though the law was completely unjustified on its merits).

 

[wbeem]

A word on my background. I am an attorney, and I graduated law school with essentially a concentration in intellectual property, though I did not end up practicing in that field. I was an editir of a Journal of Science and Technology Law. I completed a quasi-thesis on the extenstion of the copyright law. Though I have tried to stay current, my formal education is 15 years old -- when the modern Internet was in its infancy. We were more concerned about the status of software copyrights than Internet usage.

There is no question the law is on your side. Disney's letter to you may have been discouraging of your work, but even they could not blatantly threaten you when they don't have a leg to stand in. And really, whether given away for free or profit, would not be determinative of an infringement issue. If I gave away copies of a Hollywood blockbuster, you better believe they would come after me for infringement.

But yes, unfortunately, this is an area where big business rules. They can use bullying, fear, litigation, to get their way, even when their legal positioning is questionable at best. (My legal thesis was that copyright extension was being rammed through Congress at the behest of big business, though the law was completely unjustified on its merits).

You're right that giving it away isn't a legal deterrent. Let's just say that it seemed less likely that they would have taken action against me for a free eBook compared to selling it.

Disney has shut down a number of photographers who sell their photos of Disney parks online, but they haven't taken any action against photos on fan sites or park blogs. One of their primary concerns is that people would be confused as to whether these items for sale were affiliated with Disney.

As you said, big business rules even if the law isn't really against you. They could throw complaints against you about trademark violations that would become very numerous with almost any photograph. One photo could have trademark violations for Cinderella Castle, hidden Mickey's, characters on balloons, characters in the park, and perhaps other items I haven't considered. Best not to fight such a battle without deep pockets.

 

[wbeem]

Exactly. Facebook is another example. That share button isn't copyright infringement.

Still providing bad information, aren't you? Have you ever read the Terms of Service for Facebook? You agreed to provide them a license to use your content when you accepted those terms. That was necessary for them to provide a feature that shares your content. It isn't copyright infringement when you grant a usage license.

And then there's the issue of usage rights that you're granting to the public when you post an image on a hosting service and allow external links to it.

You aren't granting the public anything. You grant the service usage by accepting the Terms of Service, and those usage rights vary by service.

 

[havoc315]

You're right that giving it away isn't a legal deterrent. Let's just say that it seemed less likely that they would have taken action against me for a free eBook compared to selling it.

Disney has shut down a number of photographers who sell their photos of Disney parks online, but they haven't taken any action against photos on fan sites or park blogs. One of their primary concerns is that people would be confused as to whether these items for sale were affiliated with Disney.

As you said, big business rules even if the law isn't really against you. They could throw complaints against you about trademark violations that would become very numerous with almost any photograph. One photo could have trademark violations for Cinderella Castle, hidden Mickey's, characters on balloons, characters in the park, and perhaps other items I haven't considered. Best not to fight such a battle without deep pockets.

Practice versus the actual law. Trademark protection is very thin, and in theory, trademark owners are not supposed to be able to use their trademark protection to stifle free speech. (Theory does not always equate with practice). A trademark is only supposed to be used to prevent consumer protection.

There are lots of books that use Disney photographs, without any license from Disney. For example, the Unofficial Guides to Disney utilize lots of photographs. (I could be wrong, but I'd be very surprised if they paid Disney any license which would really undermine their unofficial status).

On the other hand, a book of "Disney photography" really can get into much grayer area of intellectual property. If its some sort of history book, behind the scenes book, etc --- Then you really are on the much safer side of "fair use" -- as you are essentially transforming the intellectual property. You're not merely capitalizing on someone else's creation, but adding your own work on top of it. But if you work is merely capitalizing on the creation of someone else, then there is a much better argument that it could be infringement.
The infringement could be viewed as 2 types:
Actual copying of a copyrighted work. For example, if you videotaped Mickey's Philharmagic and then tried to sell copies of it-- That would be unquestionably copyright infringement.
Trademark infringement -- Here, there must be a danger of consumer confusion. So if you published a book of "Princess Stories" -- And you put a picture of Cinderella's Castle on the front of the book, and Tinkerbell on the back of the book, Disney could argue you are infringing on their trademarks, and leading consumers to believe that this is a Disney product when its not.

Ahhhh.... I miss copyright law. Unfortunately, all the Intellectual property firms wanted me to prosecute biochemical patents, and I had no interest in that.

 

[MikeandReneePlus5]

Practice versus the actual law. Trademark protection is very thin, and in theory, trademark owners are not supposed to be able to use their trademark protection to stifle free speech. (Theory does not always equate with practice). A trademark is only supposed to be used to prevent consumer protection.

There are lots of books that use Disney photographs, without any license from Disney. For example, the Unofficial Guides to Disney utilize lots of photographs. (I could be wrong, but I'd be very surprised if they paid Disney any license which would really undermine their unofficial status).

On the other hand, a book of "Disney photography" really can get into much grayer area of intellectual property. If its some sort of history book, behind the scenes book, etc --- Then you really are on the much safer side of "fair use" -- as you are essentially transforming the intellectual property. You're not merely capitalizing on someone else's creation, but adding your own work on top of it. But if you work is merely capitalizing on the creation of someone else, then there is a much better argument that it could be infringement.
The infringement could be viewed as 2 types:
Actual copying of a copyrighted work. For example, if you videotaped Mickey's Philharmagic and then tried to sell copies of it-- That would be unquestionably copyright infringement.
Trademark infringement -- Here, there must be a danger of consumer confusion. So if you published a book of "Princess Stories" -- And you put a picture of Cinderella's Castle on the front of the book, and Tinkerbell on the back of the book, Disney could argue you are infringing on their trademarks, and leading consumers to believe that this is a Disney product when its not.

Ahhhh.... I miss copyright law. Unfortunately, all the Intellectual property firms wanted me to prosecute biochemical patents, and I had no interest in that.

I can't believe Disney let's the dirt baggy fake Mickey Mouse's that patrol Times Square NYC to exist!

Slightly misshaped head, raggedly costumes. Ugh.....

 

[wbeem]

Practice versus the actual law. Trademark protection is very thin, and in theory, trademark owners are not supposed to be able to use their trademark protection to stifle free speech. (Theory does not always equate with practice). A trademark is only supposed to be used to prevent consumer protection.

There are lots of books that use Disney photographs, without any license from Disney. For example, the Unofficial Guides to Disney utilize lots of photographs. (I could be wrong, but I'd be very surprised if they paid Disney any license which would really undermine their unofficial status).

On the other hand, a book of "Disney photography" really can get into much grayer area of intellectual property. If its some sort of history book, behind the scenes book, etc --- Then you really are on the much safer side of "fair use" -- as you are essentially transforming the intellectual property. You're not merely capitalizing on someone else's creation, but adding your own work on top of it. But if you work is merely capitalizing on the creation of someone else, then there is a much better argument that it could be infringement.
The infringement could be viewed as 2 types:
Actual copying of a copyrighted work. For example, if you videotaped Mickey's Philharmagic and then tried to sell copies of it-- That would be unquestionably copyright infringement.
Trademark infringement -- Here, there must be a danger of consumer confusion. So if you published a book of "Princess Stories" -- And you put a picture of Cinderella's Castle on the front of the book, and Tinkerbell on the back of the book, Disney could argue you are infringing on their trademarks, and leading consumers to believe that this is a Disney product when its not.

Ahhhh.... I miss copyright law. Unfortunately, all the Intellectual property firms wanted me to prosecute biochemical patents, and I had no interest in that.

You've captured the essence of my dilemma. From observing how Disney reacted to other photographers and looking at my ebook, not to mention my conversations with their media relations folks, I decided to play it safe and not sell the ebook.

In some ways, that worked along with my planning. I always intended to have an ebook to give away for free. This wasn't the one I had in mind, but it still worked out. The other benefit for me was to change my thought process about the market I wanted to reach.

As you say, theory does not always equate with practice. I erred on the side of caution in this one case and decided it wasn't worth the risk to test it. It's not like an ebook would have made me rich, so the decision was rather simple.

 

[photo_chick]

Still providing bad information, aren't you? Have you ever read the Terms of Service for Facebook? You agreed to provide them a license to use your content when you accepted those terms. That was necessary for them to provide a feature that shares your content. It isn't copyright infringement when you grant a usage license.



You aren't granting the public anything. You grant the service usage by accepting the Terms of Service, and those usage rights vary by service.

You're contradicting yourself a bit with those two statements. Also, perhaps you should read the facebook EULA. And the EULA for pretty much any other social media site or image hosting service. And there's the implied usage you grant by uploading that allows people to hyperlink to your work. The term de jure comes to mind here, but I'm a photographer and wouldn't even pretend to be a legal expert.

But really, people should talk to an attorney if they have copyright concerns. Anyone can pretend to be a legal expert on a message board, get solid information specific to your situation from a reputable source. And follow the rule don't post what you don't want stolen.

 

[WDWFigment]

As for conversations with lawyers, bear something in mind. They often disagree. That's natural, so don't expect to get the last word from any single attorney. Chances are excellent there's another one who could point out the issue in another light.

If you ask 10 lawyers the same question, chances are you'll get 10 different answers--especially when the matters involved are unsettled, jurisdictional, or fact-specific.

That said, I generally agree with most of what havoc has written in this thread. However, the only IP law I ever practice is Trademark, and that's only on rare occasion.

 

[Shutterbug]

....
By the way, if you're a photographer, why is it that you never post any photos? Perhaps I've missed the photos you share here. Could you please let me know which threads you generally post your photos, or do you just talk about photography without every putting it to practice?
.....

Just because one chooses not to post photos on a public board doesnt mean they are not out taking photos. I take tons of photos myself. Though I rarely post any here. One reason is, yes, like the original poster, I don't want a photo I took time and effort to create to just start showing up all over the place. That's my choice.

 

[wbeem]

Just because one chooses not to post photos on a public board doesnt mean they are not out taking photos. I take tons of photos myself. Though I rarely post any here. One reason is, yes, like the original poster, I don't want a photo I took time and effort to create to just start showing up all over the place. That's my choice.

I agree. On the other hand, it's not unreasonable to expect to see the photos of someone who identifies his or her self as a photographer - particularly if someone adamantly tries to represent his or her self as an authority.

Otherwise, it's just another case of "Big hat, no cattle."

 

[mom2rtk]

I agree. On the other hand, it's not unreasonable to expect to see the photos of someone who identifies his or her self as a photographer - particularly if someone adamantly tries to represent his or her self as an authority.

Otherwise, it's just another case of "Big hat, no cattle."

You could try the link in her signature.

 

[wbeem]

You could try the link in her signature.

I have in the past. Those seem to be personal snapshots, which is why I asked the question of her.

Folks, this thread has taken a turn outside of the topic. I just asked a question and I don't want to turn the thread into a hunt for someone else's photos or a debate on whether it's necessary to post photos here. If we want to discuss that, perhaps we should create a different thread on the subject.

 

[photo_chick]

Yep. That link goes to my personal snapshots. What I share with friends and family. And the reason that's pretty much all you'll find actually goes back to the original topic of this thread. Never post anything online you don't want stolen. I learned that lesson the hard way about ten years ago when someone entered my work into an online contest and won.

I have never claimed to be an expert, in fact I'm the first to say I'm not (I guess you've selectively ignored that I have said that on more than one occasion, as you have so many things that have been posted wbeem). If you feel the need to seek me out and see what I do outside of my family snapshots then come for a visit. I'd love to share the cyanotype/vandyke project I'm working on. I'm also getting into making platinum prints from 4x5 negatives and it's pretty cool though quite expensive for the process. But if you want me to get defensive because you think you know more... you win. Your lens is bigger. Did that help your ego?

I do agree with one thing... Let's get back to actually having a discussion now. Which we'd have been doing if you could have actually taken two seconds to stop and think that maybe not everyone who disagrees with you is insulting you or being condescending to you or even saying you're wrong. Maybe they're just discussing things. On a discussion board. I know it's a hard concept to grasp. We're not all going to agree. The world would be awfully boring if we did.