June 17, 2011 - Everything on the Web is Free Copyrighted

No images today, sorry!

Recently I posted a link to a "blog" (to use the term loosely!) on Twitter and Facebook. At the time, I really liked this blog, as it featured the work of a lot of great photographers, past and present, including both the masters that everyone knows, as well as a lot of names that were new to me. Each blog entry was nothing more than the name of the photographer and a number of shots him or her. Most of the images were shots of people or abstract form, which are particular favorites of mine. I thought I had found a gold mine.

After posting the link, though, I started wondering how the "blogger" had put this together. That initial wonderment turned into concern after a response from a fellow photographer and friend who asked if the blogger had obtained reproduction rights on all those images. I looked, and could find no information whatever on the copyright status, permissions, etc. of any of the works presented. This appeared to be a case of someone simply mining the internet for images and then presenting them on their own page. There weren't any links — nothing to indicate the original source of the images or their copyright status.

So, what's the legal status here? The original images may or may not be covered by copyright. Some of them are old enough that, even if a copyright existed at one time, it has certainly since expired. Others are more recent, and almost certainly there is a copyright in force on the original image. Even if the original image is in the public domain, however, the digital scan of it almost certainly is covered by a derivative copyright. That's not unique to this blog. Pretty much everything on the web, unless explicitly placed in the public domain by the copyright holder, is copyrighted.

Let me say that again. Everything on the web, with few exceptions, is copyrighted.

Copyright? But if the images came off the web, then they're already in the public domain, right? WRONG! Publication on the internet does not invalidate copyrights any more than publishing a book invalidates its copyright. In fact, until 1976 publication was required in order to obtain a copyright in the United States.

Ok, but credit is given to the original photographer. That makes it ok, right? WRONG! Giving credit might guard against claims of plagiarism, but it has little to no bearing on copyright infringement. Copyright, as the name implies, provides protection against unauthorized copying, not (just) against plagiarism.

Well, all right, but it is doing the photographer good by generating exposure, getting their name out there, so no harm, no foul, right? WRONG! Exposure can be beneficial or detrimental, and in any case it is not yours to give (at least not in this manner). The publication of a work protected by copyright is the sole right of the copyright owner.

Yeah, but there's this thing called "fair use." And what I'm doing is fair, so it's ok, right? MAYBE! There are fair use rights, and they serve to balance copyrights. The law identifies certain uses such as commentary, criticism, education and news reporting as potentially non-infringing, and identifies four factors that must each be considered in every determination of fair use: the purpose and character of the use, the nature of the work, the amount and substantiality of the use, and the effect on the market value of the work. In different cases, each of these factors may weigh for or against fair use in varying amounts, and no one of them trumps the others — all must be considered, and determination of fair use, ultimately, is left up to the courts.

I'm not an intellectual property attorney, and this journal isn't a court. I don't even know if there are infringements or not on the blog in question (though I strongly suspect there are). I'll spare you my detailed analysis and just give the summary. If permissions were obtained, this may be completely legitimate, though it is poorly done as there is nothing to discourage others taking these images. If permissions were not obtained, then for those images where the original either was not copyrighted or has lapsed into the public domain, these may qualify as fair use. For those original images currently protected by copyright, however, these almost certainly do not qualify as fair use.

What does this mean? It means that the individual who created this blog could be guilty of copyright infringement, and could be sued by the copyright holders. If found guilty, he could face fines ranging from hundreds of dollars to $150,000 per image!

Of course, my guesses about the fair use determination might be wrong, though I have studied this subject pretty carefully. The only opinion that counts would be the opinion of a court of law. Fair use determinations are notoriously difficult to predict in many circumstances, and those concerning modern technology are even murkier since adequate precedents simply don't exist. But do you want to risk thousands of dollars on such an opinion?

If you are going to use non-original work on your blogs or other web postings, it behooves you to learn about copyright and fair use law, and to make sure your use is fair. Where possible, always seek permission to use the content. Where you can't do that (or don't get permission), you should be very, very careful about how you use the content. Remember, if it's on the web, it's almost always copyrighted, and you don't want to face an infringement law suit!

If you want more information on this subject, please check out my white paper, or consult a qualified copyright attorney.

Happy shooting!

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