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Old 10-09-2012, 05:52 PM   #16
photo_chick
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Originally Posted by wbeem View Post
By law, you own copyright to anything you create. However, you can only sue for a copyright violation in Federal court if you have a valid ad timely registration of your copyrighted works. If you publish a work without a registration and someone uses it, you can't go back and register it and THEN sue them.
Generally you can go back and register your copyright after the infringement occurs but you have a very limited window to do so.

http://www.copyright.gov/title17/92chap4.html#412

In an Ed Greenberg interview on Scott Kelby's site from a few years ago (the very first time they had him on there) he said you have 90 days from the date the infringement occurs. But what I learned in a class on copyright and ethics is a little different, and goes with the code on the copyright.gov site that says you have 90 days from publication or 30 days from when you learn of the infringement. either way, you need to register your work and the best course of action is always to talk to an attorney who specializes in this.


And hyperlinking... the image linked to is the original file stored on the server where the copyright holder uploaded it. It is not a copyright violation.
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Old 10-09-2012, 06:03 PM   #17
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And hyperlinking... the image linked to is the original file stored on the server where the copyright holder uploaded it. It is not a copyright violation.
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Old 10-09-2012, 06:56 PM   #18
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Free legal advice is often worth what you paid for it.
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.

Now, it is still a somewhat fluid area of law. The court would consider other factors, including whether the hyperlinker is purely trying to profit from the work of the creator.
For example --- Keeping it to photography -- Imagine a blogger, who profits from advertisements on his page, posts a library of stock photographs that he created for the benefit of his readers.
Now imagine a "copier" creates a paid-for subscription website, selling stock photographs. And instead of using his own stock photographs, simply hyperlinks to the blogger. That example would be much grayer. But even under that circumstance, it may not be infringement.

For example, I've used some topaz products. 1 topaz product allows you to search the internet and copy the "tone" from any picture you find. Is Topaz committing copyright infringement?

Comes down to this -- If you publish your pictures on the public square (as opposed to keeping them in a private password protected account), then you are inviting the public to look at the pictures. To the extent you have given the public permission to look at the pictures, you have also given them permission to make "fair use" of the pictures.
At the very least, "fair use" allows 1 person to tell other people where to find your webpage -- The most basic possible hyperlink. The "click here to see XYZ"
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Old 10-09-2012, 07:10 PM   #19
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I'm probably in the minority here, but I don't think this is a big deal at all.

Is the OP right and the other lady wrong? Yep.

Do most people get their feelings hurt when we aren't asked permission or given credit? Unfortunately, yes.

Is that the extent of the damage here, hurt feelings? Sounds like it.

Are there ways to prevent this from happening? Yes.

Is this really worth worrying about? I doubt it.

Should I just keep my mouth shut? Probably.
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Old 10-09-2012, 07:46 PM   #20
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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.

Now, it is still a somewhat fluid area of law. The court would consider other factors, including whether the hyperlinker is purely trying to profit from the work of the creator.
For example --- Keeping it to photography -- Imagine a blogger, who profits from advertisements on his page, posts a library of stock photographs that he created for the benefit of his readers.
Now imagine a "copier" creates a paid-for subscription website, selling stock photographs. And instead of using his own stock photographs, simply hyperlinks to the blogger. That example would be much grayer. But even under that circumstance, it may not be infringement.

For example, I've used some topaz products. 1 topaz product allows you to search the internet and copy the "tone" from any picture you find. Is Topaz committing copyright infringement?

Comes down to this -- If you publish your pictures on the public square (as opposed to keeping them in a private password protected account), then you are inviting the public to look at the pictures. To the extent you have given the public permission to look at the pictures, you have also given them permission to make "fair use" of the pictures.
At the very least, "fair use" allows 1 person to tell other people where to find your webpage -- The most basic possible hyperlink. The "click here to see XYZ"

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.
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Old 10-09-2012, 08:07 PM   #21
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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.
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Old 10-09-2012, 09:27 PM   #22
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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.
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Old 10-09-2012, 09:55 PM   #23
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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."
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Old 10-09-2012, 09:56 PM   #24
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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.
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Old 10-09-2012, 10:22 PM   #25
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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.
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Old 10-09-2012, 10:49 PM   #26
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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.
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Old 10-09-2012, 10:53 PM   #27
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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.
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Old 10-10-2012, 07:31 AM   #28
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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).
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Old 10-10-2012, 09:48 AM   #29
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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.
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Old 10-10-2012, 09:51 AM   #30
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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.

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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.
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