Is it OK?

[Geoff_M]

This is a really interesting discussion. I wonder how the presence of the "Kodak Photopoints", or whatever they are called, affects this. Given that you are being explicitly encouraged to take photos there, wouldn't it be harder for Disney (should they wish to) to restrict the use of any photos you take?

regards,
/alan

We're starting to blend two separate legal concepts: copyright and the rights of exploitation. Say I take a picture of you in a public park and end up using it in a poster that I then sell. You are easily recognizable in my poster. I own the copyright to the image, but if I use the image for personal gain and you object and I have failed to secure from you a release to use your image in a product that I am marketing, then you can legally stop me from using that image in that manner. I can make all of the personal copies I want and its OK, but once I use it in a "for profit" manner, it's a whole new legal ball game. Legally, you have a right to control the public use of your image. For people, this is known as the "right of publicity".

The same sort of protections are given to works that contain things like trademarks, copyrighted works, and structures. Back when it was still alive, the well known "Lone Cypress Tree" at the Pebble Beach golf course was a trademarked "thing". You could not legally sell works that contained the tree without consent from the course's owners. It's safe to say that the same legal protections have been secured for things like Cindy's Castle and other major WDW landmarks.

The exception to this is when the image is used in an "editorial" manner. In these cases, permission to use the images of people or other protected things is not needed. "Editorial" is basically defined a when an image is "published". For example, if I'm writing a book on a celebrity that's an "unauthorized biography", I can use photos of my subject without their permission (as long as I secure the permission of the image's copyright holder). Here's a little known fact, the sale of a photo in and of itself is considered an "editorial use". I can sell photos I took at WDW all I want without Disney permission. But if I modify the commercial offering beyond that to offer the photo in a frame, or turn it into a poster... then I'm liable to Disney. No US court has ever ruled that anyone must secure the permission of a subject to simply sell a photo of the person. Disney may try and tell me or eBay otherwise, but the case law would not be on their side. But in the courts, a mere photo is simply another form of "publication."

Lastly, Disney is not in legal jeopardy of losing their right to control the exploitation of their properties by the mere placement of the Kodak photo sites. They can ask people to stop taking pictures on their property at any time and threaten to eject people that won't comply. I can assure you that if there's another accident on a WDW attraction and people start taking photos, they will be told in a firm and polite manner to put their cameras down. People that are on rides that have to be evacuated for any reason through backstage areas are told the same.

 

[Groucho]

I find the ethical side of this to be much more interesting than the actual law (mostly because the law is supposed to be clear on these things, and even if it's not, we gain nothing by debating the finer points of copyright law; whereas one may be convinced by an ethical discussion.)

1) Printing a picture published publicly on the Internet with no listed restrictions and using it for something personal like a scrapbook. Does it make any difference if there is no way for you to track down the copyright owner?

I don't like the idea of printing it, but I have no problem with saving a copy of someone's gallery (via spidering) or just a few favorite photos onto my hard drive. I know this rankles some people, but I know that I will not be redistributing them, printing them, sharing them, claiming them as my own, etc - it's mainly a convenience thing. Most online galleries are miserable to navigate and it's a really big pain to try to bring up higher-resolution examples. PicLens helps a lot in this regard, but it's still far from ideal.)

On a purely technical level, the photo exists on your PC anyway, in your browser's cache file. The exception would be ones that aren't actual standalone files, like Flash slideshows, and I don't bother trying to save those (and usually won't even bother looking at them.)

2) Publishing on a website a photo that incorporates someone else's copyrighted work, such as a picture that includes someone else's picture in the background or even something like Cinderella's Castle in the background. What if you publish the photo on a website that allows people to buy photos? What if you directly profit from the sale?

I have to say, it really kind of bothers me when I see people selling their personal, non-authorized Disney photos. (Hence my problem with the TMIP site, where that seems to be the main reason for it existing.) It really doesn't matter to me if it's legal or not (and I don't know what arrangements exist there), it just strikes me as somewhat distasteful. It also seems to take advantage of the casual buyer - certainly no one has a monopoly on decent Disney photos, and there are no shortage of top-notch images churned out by Dis regulars who are usually happy to let you have a high-rez copy of their photo for free.

3) Creating a slideshow of pictures you've taken and adding a song from a CD you own to the slideshow. Does it matter if the slideshow is for your personal use? For your household use? For use by close friends and relatives? To publish on the Internet for friends and strangers to view? To sell for a profit?

I have no really strong feelings on this. I understand that it's technically illegal in most of your examples but I just can't bring myself to really care.

4) Taking a picture that is primarily a photo of a photo? As an example, there are lots of posters on Disney World that are made from photos. If you took a picture of one of these posters, would that be OK? What it matter how you use the photo?

Well, I did take a photo of a photo last trip - a shot of Spaceship Earth being assembled, from the 25th anniversary display. It was a fisheye shot, I couldn't resist. But it didn't make it onto my web gallery, and while I have taken photos of posters sometimes, those very rarely make it onto my web galleries either - I try to put up photos that I find interesting more than purely informative. If you're taking a photo of a poster, it's the poster that's interesting, not the photo.

5) Can you freely plagiarize someone's photographic idea? Are there cases when someone has created an incredible technique that you love but you wouldn't re-use because you are essentially stealing their idea?

Hard to say - but I probably wouldn't have a problem trying the idea, but would make it clear that I didn't come up with it.

One example of an idea that I think is at least somewhat unique would be the "Groucho stick" that I had planned on trying to use for some unique photos a couple WDW trips ago - which was basically the camera on the end of a fully-extended monopod, with my holding the opposite end along with a wired shutter release, and putting the camera in places not normally accessible. I still think it's a valid idea but actually doing it in practice is 1) unwieldy and 2) embarrassing. I think I only tried it once or twice, and I totally muffed the proper choice of environment/lens when I did do it. I did end up with one somewhat interesting shot for the gallery, but that's it.

Point being, I don't care so much if someone tries to do the same thing themself after hearing about the technique, especially if they give credit. Then again, there's really nothing new under the sun, and I'm sure others have done it without me knowing about it.

 

[Geoff_M]

One example of an idea that I think is at least somewhat unique would be the "Groucho stick" that I had planned on trying to use for some unique photos a couple WDW trips ago - which was basically the camera on the end of a fully-extended monopod, with my holding the opposite end along with a wired shutter release, and putting the camera in places not normally accessible.

When you're engaged in something that been going on for over 100 years (photography), there isn't a lot of new stuff under the sun. The "camera-on-a-stick" is a case in point. I picked this use up from a friend of my dad's. I put my F4s w/ a 20mm f2.8 on top of a mono and gaffer taped a remote release down the shaft to use at Indy one year. I'd stand behind a team's pit box and place the camera over the top of the crew. Aiming is a real educated guess. Here's about the best image I got with that "rig":

 

[MICKEY88]

answer to Disney's take on selling pics from WDW...


when my daughter did the college program I visited her for a week, I took hundreds of photos of course..

I then made up a book of 8x10s of her favorite characters in the 3 o'clock parade{she worked in costuming so these people were her friends/coworkers} for her to get autographs..

the characters all loved the book , asked where she got it, and then asked if they could buy one...

I contacted disneys legal dept. to see if it would be OK to make more and sell them to the people that wanted one, my intent was to sell them at cost..they told me I could sell them to cast members only, and with low profit..

so I'm guessing that's why people have had them removed from hosting sites where they had them for sale...

they made it quite clear that if I sold them elsewhere, {specifically mentioning the internet} they would prosecute to the full extent of the law..

 

[Geoff_M]

they made it quite clear that if I sold them elsewhere, {specifically mentioning the internet} they would prosecutre to the full extent of the law..

First of all, corporate lawyers have been know to bluff. I don't think the issue would be that clear cut. Let me give you a real personal prime counter example...

As you may know, I work as a photographer at the Indy 500. There used to be a publisher in Indianapolis named Carl Hungness. Carl's company published lot of books on auto racing. He also had an open ended license from the Indianapolis Motor Speedway (IMS) to produce an annual "yearbook". My work appeared in about five of his yearbooks. This license allowed him to use IMS trademarks and such in Carl's books. However, in the mid-1990's the relationship between Hungness and IMS started to sour. One of the major episodes in this storm was when NASCAR started coming to IMS for the "Brickyard 400" race.

Let me assure you that IMS is in the same league as Disney when it comes to protecting their trademarks and copyrights. Any credentialed photographer caught selling images from the speedway without permission risks a permanent ban from the track. IMS staff monitor the Internet and have been known to show up at memorabilia shows looking to "bust" people.

Carl angered the speedway by announcing that he would be publishing a yearbook for the NASCAR race too. The problem was that IMS had already licensed another company to produce an "official" yearbook for that race. Hungness' work had a large following from Indy fans and IMS feared it would have egg on its face with the publisher they sold the license to as the competing book would likely cut into sales of the "official" book. Carl also took moves to avoid legal action against him. For starters he called his book "The Indianapolis Stock Car Yearbook". He avoided using the trademarks of NASCAR or IMS as much as possible.

IMS countered by refusing to give Carl credentials for the race. They also forbade any IMS employee (including staff photographers) from assisting Carl with any work (including his Indy 500 licensed yearbook). Hungness lost his long-time main copy writer, the IMS Historian Donald Davidson. Davidson was told he couldn't work for both IMS and Hungness, he had to choose.

In spite of the situation, Carl was able to publish both yearbooks. Photographers slipped him photos to use with no photo credits, or an alias, used. And text was compiled using other reports or press releases as a basis.

IMS was livid... They then filed suit when the "Stock Car" yearbook came out. They tried to sue Hungness for trademark and copyright violations and asked a judge to impound and destroy all copies of the yearbook. Carl's defense was that uses were purely "editorial" and that he had gone to lengths to differentiate his publication so a buyer would not likely confuse it with an "official" publication put out be either IMS or NASCAR. The judge ruled for Hungness.

Carl won the battle, but eventually lost the war. IMS's embargo of Carl or anyone thought to be aiding him continued. IMS removed his books (even the officially licensed "500" yearbook) from their giftshops. Hungness also tried to counter-sue IMS claiming tortuous interference in trying to drive him out of business... the suit didn't succeed. Finally, Hungness closed up his publication shop. Reportedly he sold his rights back to IMS, in the end, for a small fee.

 

[jann1033]

this is the main point really isn't it, they basically ran the guy out of business in that area and like you said, they are comparable to disney. while it is true lawyers aren't really always truthful disney has a rep. for not backing down and who has deeper pockets me or disney, 3 guesses.

 

[Geoff_M]

this is the main point really isn't it, they basically ran the guy out of business in that area and like you said, they are comparable to disney. while it is true lawyers aren't really always truthful disney has a rep. for not backing down and who has deeper pockets me or disney, 3 guesses.

Yep, basically. If one incurs the wrath of Disney's legal department, you might very well win in court, but only after spending a lot of personal resources and then risking finding yourself on Disney's persona-non-grata list and barred from the parks. Most people would understandably opt instead to comply with Disney's desires.

 

[jann1033]

They sell a lot of photos of Disney park icons, etc. on this website. I know they have been around for a while, so it makes me think it might be OK to sell pics of Disney World. I'm not sure if they have some kind of licensing agreement with Disney, but the website does say it is unofficial and not affiliated with the Walt Disney World company, so I'm guessing there is no agreement. I would think photos of Disney could be sold just like photos of the Statue of Liberty can be sold. (but I'm no lawyer)

.

some places expressly disallow you from selling photos taken on their property without written permission and sometimes a fee, not sure about the statue of liberty since i think that is a national park? i emailed the guy at tmip and asked him...occasionally i post there and would like to know as well how he can sell stuff and if it pertains to anyone posting on that site.

 

[MICKEY88]

duplicate post

 

[MICKEY88]

First of all, corporate lawyers have been know to bluff. I don't think the issue would be that clear cut. Let me give you a real personal prime counter example...

.

although similar, the situations are quite different, IMS doesn't own the cars, Disney does own all the buildings icons etc, that are photoworthy on their property, I'm sure they also have much more money and a bigger legal team than IMS..

the other point is, if Disney knows of someone selling pics of their property, and does nothing, they then give up the right to do anything in the future, will they come after someone for selling 1 8x10. probably not, someone selling lots of pics or photo books, most definitely..

I'd be willing to bet it was contact from disney legal dept, to smugmug, that caused the removal of disney themed pics from the site..

as for bluffing, it's not so much bluffing as it is standard procedure, if a photographer finds copyright infringement of his photos, should he file a lawsuit immediately..no, the normal procedure is a cease and desist letter, giving the person time to remove the photos, once fair warning has been given, then the litigation follows..

 

[Geoff_M]

although similar, the situations are quite different, IMS doesn't own the cars, Disney does own all the buildings icons etc, that are photoworthy on their property, I'm sure they also have much more money and a bigger legal team than IMS..

Not different at all... The cars aren't the central issue. The structures at IMS are as identifiable as those at WDW... though to a smaller set of people. IMS has the same rights to their turf as WDW's.

the other point is, if Disney knows of someone selling pics of their property, and does nothing, they then give up the right to do anything in the future, will they come after someone for selling 1 8x10. probably not, someone selling lots of pics or photo books, most definitely..

It is a fallacy that the rights holder is required to defend use of their works lest they lose their rights. This is only true for trademark use and trade secrets.

I'd be willing to bet it was contact from disney legal dept, to smugmug, that cause the removal of disney themed pics from the site..

I don't doubt that... But Smugmug would also be faced with the choice of complying with such a request or possibly spending their legal resources in a court battle over the photos. That's probably an easy call if I'm Smugmug... the photos would be gone.

 

[MICKEY88]

I don't doubt that... But Smugmug would also be faced with the choice of complying with such a request or possibly spending their legal resources in a court battle over the photos. That's probably an easy call if I'm Smugmug... the photos would be gone.

which brings us back to my original point, with what Disney told me, so bluffing or not, anyone with common sense and less money than Disney would comply, so all of our posts in between are unneccessary

 

[Geoff_M]

which brings us back to my original point, with what Disney told me, so bluffing or not, anyone with common sense and less money than Disney would comply, so all of our posts in between are unneccessary

Not when you're in a thread that's discussing legalities and ethics instead of threats of legal bullying. Knowing the facts can at times can come in handy when someone may be bluffing. Here's a great example of when sometimes legal intimidation doesn't go as planned in the IP world: Monster Cable learns it's not a good idea to BS a guy that's got some experience with corporate ligation. Be sure to read the 14-April response, it's hilarious! Monster has apparently decided not to pursue the matter further.

 

[labdogs42]

some places expressly disallow you from selling photos taken on their property without written permission and sometimes a fee, not sure about the statue of liberty since i think that is a national park? i emailed the guy at tmip and asked him...occasionally i post there and would like to know as well how he can sell stuff and if it pertains to anyone posting on that site.

I'm interested to hear what he says. Or if you don't hear back, maybe I'll try to ask him at Magic Meets. I know they were selling photos there last year.

ETA, so did smugmug take down some Disney pics at some point? I think I missed a post or something (I see it in a quote above, but I didn't see the original post). I have some Disney pics shared there and I haven't had a problem, but maybe it is because I am sharing them for free?

 

[MICKEY88]

Not when you're in a thread that's discussing legalities and ethics instead of threats of legal bullying. Knowing the facts can at times can come in handy when someone may be bluffing. Here's a great example of when sometimes legal intimidation doesn't go as planned in the IP world: Monster Cable learns it's not a good idea to BS a guy that's got some experience with corporate ligation. Be sure to read the 14-April response, it's hilarious! Monster has apparently decided not to pursue the matter further.

I might agree with you,'till all was said and done you agreed that you would do as disney says rather than challenge them, so realistically all our posts in between could be deleted and the end result would be the same..

 

[jann1033]

I'm interested to hear what he says. Or if you don't hear back, maybe I'll try to ask him at Magic Meets. I know they were selling photos there last year.

ETA, so did smugmug take down some Disney pics at some point? I think I missed a post or something (I see it in a quote above, but I didn't see the original post). I have some Disney pics shared there and I haven't had a problem, but maybe it is because I am sharing them for free?

since was the one that started that , i remember a few people( sorry don't remember who) on here that were upset maybe 6months-1 yr( maybe 2 yr time flies) because photos on a photosite like smugmug/zenfolio where some photos are for sale, those that included disney icons/trademarks were removed by someone, supposedly due to them violating disney's "rights"..that was the story at the time. iirc ( and what are the chances) some of the photos weren't up for sale, they were in family albums, which was why the uproar and they were just removed, the owners weren't told to remove them. i think it was from the same site so not sure but it would seem the site owner removed them but don't know who initiated it. i think most sites say they can remove photos they find objectionable which i am sure ones that might cause them to lose their shirts financially would be pretty objectionable

 

[Geoff_M]

I might agree with you,'till all was said and done you agreed that you would do as disney says rather than challenge them, so realistically all our posts in between could be deleted and the end result would be the same..

I'm afraid I'll have to differ... In the case of Smugmug, there's little upside to telling Disney to "stick it". The photos in question are a drop in their "ocean". However, if the demand is made of me and the photos in question are earning me a decent sales figure, then I might be tempted to call their bluff.

I also think we've added some interesting legal points to the groups "knowledge base" with our posts. I don't think they were for nothing.

 

[MICKEY88]

I'm afraid I'll have to differ... In the case of Smugmug, there's little upside to telling Disney to "stick it". The photos in question are a drop in their "ocean". However, if the demand is made of me and the photos in question are earning me a decent sales figure, then I might be tempted to call their bluff.

I also think we've added some interesting legal points to the groups "knowledge base" with our posts. I don't think they were for nothing.

wow, you also added some interesting thoughts to the ethical side, you basically just said if the money was right you would break the law..


and if Disney had any clue your profit was good, they would definitely go after you with all they had

 

[Geoff_M]

wow, you also added some interesting thoughts to the ethical side, you basically just said if the moeny was right you would break the law..

Where exactly have I said I would "break the law"? We're talking about civil matters, not criminal. In the example I cited, Carl Hungness did not "break the law" in the criminal sense and IMS's basis of a civil complaint was found to be baseless in court. My whole point is that isn't not certain that you could not have sold your book of costumes without being found liable to Disney if they decided to take you to court over the matter. Disney might not be happy about it, but even they have limitations as to what they can do about it. "Fullest extent of the law" doesn't mean they'd win. Yes, many people will tremble in fear when they receive a nastygram from Disney legal staff, but that doesn't mean they're in the right. Some times 800 lb. gorillas can lose and sometime they can be scared off if you point out to them why it may not be a good idea to attack you (like the makes of Tartan Cables did to their "Monster").

and if Disney had any clue your profit was good, they would definitely go after you with all they had

"Good" is a relative term. Disney may not think it's worth the billing rate of the lawyers to go after $10K, but that would be a "good" amount of money to me.

 

[MICKEY88]

Where exactly have I said I would "break the law"? We're talking about civil matters, not criminal. In the example I cited, Carl Hungness did not "break the law" in the criminal sense and IMS's basis of a civil complaint was found to be baseless in court. My whole point is that isn't not certain that you could not have sold your book of costumes without being found liable to Disney if they decided to take you to court over the matter. Disney might not be happy about it, but even they have limitations as to what they can do about it. "Fullest extent of the law" doesn't mean they'd win. Yes, many people will tremble in fear when they receive a nastygram from Disney legal staff, but that doesn't mean they're in the right. Some times 800 lb. gorillas can lose and sometime they can be scared off if you point out to them why it may not be a good idea to attack you (like the makes of Tartan Cables did to their "Monster").

"Good" is a relative term. Disney may not think it's worth the billing rate of the lawyers to go after $10K, but that would be a "good" amount of money to me.

Actually..copyright violation involving more than 10 copies and value over $2500 was made a felony in the "90s

I personally don't think challenging disney and most likely being banned from all disney properties for life, is worth the profit on a few picture books..

billing rate..???. corporate lawyers are usually salaried employees and get paid the same whether they are in court, or sitting at their desks hoping for something to do..

it would appear the only way we wil agree on this issue, is if we agree to disagree...