Selling Photos of Things at Disney?

[MICKEY88]

4) "So who owns the copyrights to my WDW vacation photos?" The answer is "you do". But your rights may be in conflict with Disney's in some cases, if you decide to use them for commercial purposes. The smart thing to do would be to try and get Disney's permission first, but if you don't it's only an issue if Disney objects and opts to seek damages in a civil court. As mentioned above, there is no risk to Disney if they allow you to include a photo of WDW in your book without permission.

.

Thanks for giving me the copyright to your vacation photos !!!


as the new copyright owner I request that you cease and desist using said photos for any purpose whatsoever...:

 

[Geoff_M]

there certainly is law defining copyright and copyright infringement,

If you've found a US law that concisely defines what constitutes infringement of a copyright (or more importantly, what defines "Fair Use"), then I'd like to see it. It doesn't exist. It's a lot like pornography, it's illegal, but there's no clear definition.

Here's the US Law regarding copyrights: Title 17 of the USC It spends a lot of time describing what is NOT infringement. Play close attention to Section 107:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

These four factors are weighed in ALL copyright cases.... not just in cases involving the explicitly acknowledged exemptions for editorial, critical, and educational uses.

The point you are missing is that it's not infringement until a judge rules it to be so after one party files a lawsuit. If you and I publish two similar books, but I published mine first, does that mean you've infringed on my copyright? The answer is "Maybe it is, maybe it isn't." That's for a judge an jury to determine IF I feel that you've copied my "great American novel" and opt to file suit. In making such a determination, they will have to weigh a number of factors.

 

[MICKEY88]

If you've found a US law that concisely defines what constitutes infringement of a copyright, then I'd like to see it. It doesn't exist. It's a lot like pornography, it's illegal, but there's no clear definition.

The point you are missing is that it's not infringement until a judge rules it to be so after one party files a lawsuit. If you and I publish two similar books, but I published mine first, does that mean you've infringed on my copyright? The answer is "Maybe it is, maybe it isn't." Thats for a judge an jury to determine IF I feel that you've copied my "great American novel" and opt to file suit. In making such a determination, they will have to weigh a number of factors.

it might not be clear, but it is illegal..

again you are talking 2 different things, written works and photos, with photos infringement is much clearer, you have tangible visual evidence..

written works if altered slightly are harder to prove...

but again it is illegal no matter what court hears the case, maybe the following will help clear it up..



this article clearly states that copyright infringement is a misdemeanor, I'm fairly sure that means it's illegal, it can also be bumped up to a felony under certain conditions..again I'm certain a felony is illegal..






http://findarticles.com/p/articles/mi_m0FWE/is_4_8/ai_n6108144

 

[MICKEY88]

If you've found a US law that concisely defines what constitutes infringement of a copyright (or more importantly, what defines "Fair Use"), then I'd like to see it. It doesn't exist. It's a lot like pornography, it's illegal, but there's no clear definition.

Here's the US Law regarding copyrights: Title 17 of the USC It spends a lot of time describing what is NOT infringement. Play close attention to Section 107:These four factors are weighed in ALL copyright cases.... not just in cases involving the explicitly acknowledged exemptions for editorial, critical, and educational uses.

The point you are missing is that it's not infringement until a judge rules it to be so after one party files a lawsuit. If you and I publish two similar books, but I published mine first, does that mean you've infringed on my copyright? The answer is "Maybe it is, maybe it isn't." That's for a judge an jury to determine IF I feel that you've copied my "great American novel" and opt to file suit. In making such a determination, they will have to weigh a number of factors.

I'm not sure what isn't clear, having worked in a legal office in the past, I know that in many cases when law is written it would be way too complicated to list all things covered by a law, so instead when the legislation is drafted they list those things not covered, or the exemptions, the idea being that evrything not listed as an exemption is then covered by law..

therefore, once you read the short list of uses that are not infringment it is fairly safe to say that all other uses of a copyrighted image are infringement..

 

[Geoff_M]

it might not be clear, but it is illegal..

again you are talking 2 different things, written works and photos, with photos infringement is much clearer, you have tangible visual evidence..

Here's a photographer that would no doubt take exception to your notion that it's "much clearer" in the case of photography:
http://nylawline.typepad.com/photolawyer/2007/02/gentieu_litigat.html
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00137

therefore, once you read the short list of uses that are not infringment it is fairly safe to say that all other uses of a copyrighted image are infringement..

And that would be a very bad assumption. The "such as" qualification isn't there by accident.

 

[cpbjgc]

I am glad that you helped untangle my pet peeve on these discussions about the differences between trade-marks and copyright. As you point out there are distinctions on enforceability based upon how agressively you are protecting your IP rights.

The point you are missing is that it's not infringement until a judge rules it to be so after one party files a lawsuit. If you and I publish two similar books, but I published mine first, does that mean you've infringed on my copyright? The answer is "Maybe it is, maybe it isn't." That's for a judge an jury to determine IF I feel that you've copied my "great American novel" and opt to file suit. In making such a determination, they will have to weigh a number of factors.

Actually, the violation occurs at the time of the creation of the infringing work. Otherwise, the copyright holder would not have the various remedies (such as suing for profits made from the infringement, or taking possession of infringing material, interest on damages running from the date of the infringement) that they do. What a judge does is makes a finding that the infringement occurs after weighing evidence and applying the law at which point you get to enforce your remedies for the infringement as of the date it took place. Much like if you rob my house, I don't need the judge to find you guilty for your actions to have be considered illegal, but I do need the judge to throw you in jail for having committed the illegal act.

That's the great thing about the DIS boards - I love it how we can all generally agree on a point and still argue about it!

 

[MICKEY88]

Here's a photographer that would no doubt take exception to your notion that it's "much clearer" in the case of photography:
http://nylawline.typepad.com/photolawyer/2007/02/gentieu_litigat.html
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00137

And that would be a very bad assumption. The "such as" qualification isn't there by accident.

but it is much more clear with photography, not neccessarily cut and dry, but more clear, and with anything try hard enough and you will find at least one exception, that does not change the rule...


as for the assumption, it isn't really an assumption but the way laws work when the legislation is drafted in such a manner.

 

[Geoff_M]

Actually, the violation occurs at the time of the creation of the infringing work. Otherwise, the copyright holder would not have the various remedies (such as suing for profits made from the infringement, or taking possession of infringing material, interest on damages running from the date of the infringement) that they do. What a judge does is makes a finding that the infringement occurs after weighing evidence and applying the law at which point you get to enforce your remedies for the infringement as of the date it took place. Much like if you rob my house, I don't need the judge to find you guilty for your actions to have be considered illegal, but I do need the judge to throw you in jail for having committed the illegal act.

There's a key difference with the home robbery analogy... In that example, a determination has already been made that a crime has been committed before the trial begins. The only thing in question is whether I'm the guilty party or someone else did it. In the case of copyright infringement the finding is retrospective. Until a judge or jury makes a determination that an infringement took place, it's only a matter of opinion on the part of the plaintiff.

 

[MICKEY88]

Here's a photographer that would no doubt take exception to your notion that it's "much clearer" in the case of photography:
http://nylawline.typepad.com/photolawyer/2007/02/gentieu_litigat.html
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00137

And that would be a very bad assumption. The "such as" qualification


isn't there by accident.

I finally got the time to read the articles you linked to, did you read them....


I don't see where she was wronged by the court,


so getty hired other photogs to take similar pics, they did not use her images...

photographers hold copyright on their images, not on the idea behind them, if that were the case the first person smart enough to file copyright papers on high key photography would put others out of business

 

[cpbjgc]

There's a key difference with the home robbery analogy... In that example, a determination has already been made that a crime has been committed before the trial begins. The only thing in question is whether I'm the guilty party or someone else did it. In the case of copyright infringement the finding is retrospective. Until a judge or jury makes a determination that an infringement took place, it's only a matter of opinion on the part of the plaintiff.

Unless U.S. law on this point is significantly different from Canadian law (which I don't think is the case), I think you are confusing the defence to infringement (fair use) with a judge making a retrospective finding that there was an infrigement. The infringement occured at the time the infringing work was created. A judge, in finding a fair use, is not finding that no infringement occurred, rather they are making a finding that a complete defence is available in an action to recover a remedy from the defendant for the infringment. There can't be a fair use unless there was an act of infringement in the first place.

 

[manning]

 

[Anewman]

In review

1. Copyright infringement is always illegal.
2. If the copyright holder consents to use of its property in photos, there is no infringement.
3. IF DISNEY has never objected to use of its property that is not
'recognizable as distinctly Disney"...Like tiles, doorways and walls, it can be considered consent to use such details.

 

[MICKEY88]

In review

1. Copyright infringement is always illegal.
2. If the copyright holder consents to use of its property in photos, there is no infringement.
3. IF DISNEY has never objected to use of its property that is not
'recognizable as distinctly Disney"...Like tiles, doorways and walls, it can be considered consent to use such details.

other than in your posts ive never read such a thing,,

i find it hard to believe that's the way it works, if so, let's say someone sells disney pics for about a year in a small town in the middle of no where, then they decide to sell on ebay, if you are correct disney could do nothing because their lack of action for a year could be considered consent.

 

[Anewman]

let's say someone sells disney pics for about a year in a small town in the middle of no where, then they decide to sell on ebay, if you are correct disney could do nothing because their lack of action for a year could be considered consent.

Of course Disney could still do something, they as possible copyright holders can decide to take action at anytime. Just saying that if DISNEY has allowed this practice during its entire existence there is no possible infringement until they decide to object, and then the judge would still decide if the property in the specific photos is indeed infringing on Disneys copyrights(if the photographer chooses to continue after the objection). Until that happens, it is assumed that Disney has no problem with it HENCE making it entirely legal.

We are not talking about pictures of Mickey or the Castle here(read the op), we are talking about photos that are not clearly identifiable as Disney. Obviously with photos that are CLEARLY protected(as evidenced by DISNEYS prior legal actions and victories), most photographers KNOW that those subjects are legally off limits when it comes to commercial use.

Please do not try to make it sound like I am saying infringement is legal and/or that this scenario applies to all cases of possible infringement.

 

[MICKEY88]

Please do not try to make it sound like I am saying infringement is legal and/or that this scenario applies to all cases of possible infringement.

again I respectfully disagree, it is infringement whether or not the copyright holder files a complaint, the only difference is you can get away with it if they don't,,

kind of like walking out of your local mini-market with a cup of coffee that you haven't paid for, it is illegal whether or not the clerk does anything about it, the difference being you get away with it until they take action..


as for whether or not you said infringement is legal...

I guess I'm misunderstanding post 9 because that's what I gather from reading that

 

[fitzperry]

Unless U.S. law on this point is significantly different from Canadian law (which I don't think is the case), I think you are confusing the defence to infringement (fair use) with a judge making a retrospective finding that there was an infrigement. The infringement occured at the time the infringing work was created. A judge, in finding a fair use, is not finding that no infringement occurred, rather they are making a finding that a complete defence is available in an action to recover a remedy from the defendant for the infringment. There can't be a fair use unless there was an act of infringement in the first place.

I'm fairly out of my element in talking about copyright law, but I believe you're correct. Fair use is an affirmative defense, which means that the defendant bears the burden of proving it, and he does not need to prove it unless the plaintiff can make out a prima facie case of infringement. In other words, as I understand it, the factors constituting fair use are only considered if the defendant attempts to avail himself of the defense, and fair use is not part of the definition of what constitutes infringement.

As for whether "it's not infringement until a judge rules it to be so," I don't see how that can be the case. The court determines whether the particular facts of the case constitute infringement, but an infringement either occurred or it didn't at the time of the act in question.

Also, if we're not talking about recognizable Disney icons (the castle etc.), which I believe would involve trademarks not copyrights, then what is the problem? The photographer owns the copyright in the photos s/he creates. How could Disney claim a copyright in those? I suppose there could be something involved with the license you're granted to enter Disney property (for instance, maybe there's a prohibition against commercial photography?), but again that's not a copyright matter. Am I missing something here?

 

[Anewman]

kind of like walking out of your local mini-market with a cup of coffee that you haven't paid for, it is illegal whether or not the clerk does anything about it, the difference being you get away with it until they take action..

I have seen mini-markets allow persons(police officers and vendors) to help themselves to all the coffee they can drink, free of charge. Management has the right to allow it OR NOT. So no it is not always illegal, and this obviously does not apply to every possible shoplifting case.


And I just re-read post number 9... And nowhere does it say infringement is legal, the way I read it says that if Disney has no problem with the images in question there is no infringement.

 

[MICKEY88]

I have seen mini-markets allow persons(police officers and vendors) to help themselves to all the coffee they can drink, free of charge. Management has the right to allow it OR NOT. So no it is not always illegal, and this obviously does not apply to every possible shoplifting case.and there is a big difference between allowing something and just not taking action..because you don't see it..


And I just re-read post number 9... And nowhere does it say infringement is legal, the way I read it says that if Disney has no problem with the images in question there is no infringement.

So if Disney(in this case) does nothing, you have the legal right to use the images

are these not your words...you clearly say if Disney does nothing you have the LEGAL right



and again, if disney is unaware of what you are doing, how can they take action, therefore lack of action on their part does not make it legal, nor does it change the action from being infringement, as I've stated before everything I've read on the subject pretty clearly states that the unauthorized use of copyrighted material is copyright infringement..unless it falls under fair use, and it would not be Disneys burden to prove that it doesn't, but the infringer would have the burden of proving it was fair use..

 

[Anewman]

and there is a big difference between allowing something and just not taking action..because you don't see it..

I thought you said it was a crime regardless

So if Disney(in this case) does nothing, you have the legal right to use the images

are these not your words...you clearly say if Disney does nothing you have the LEGAL right



and again, if disney is unaware of what you are doing, how can they take action, therefore lack of action on their part does not make it legal, nor does it change the action from being infringement,

What if Disney is aware?
And they choose not to take action...

 

[MICKEY88]

I thought you said it was a crime regardless





What if Disney is aware?
And they choose not to take action...

and you know this how..????