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Buzz Out Loud Lounge: Fair Use Scenarios
Fair Use Scenarios
by horsenbuggy - 12/4/07 6:04 PMI want to submit two scenarios to see what you think about them:
1. I am an serious hobbiest photographer. I post my photos at Flickr with an "All Rights Reserved" copyright. Occasionally, I find a blog where someone has linked to one or more of my images as part of their content. In all cases so far, the people have used img src tags to display medium sized images directly on their blog with attribution to me. In some cases, the photo directly relates to a news-worthy-ish item they are blogging about, sometimes it doesn't.
It the latest case, I found a blog that is nothing but a collection of "good" photos from Flickr (with attribution). The blogger even posts each photographer's own Flickr description of the photo along with it. The blogger does not comment about, critique or in any way discuss the photos displayed on his page. Instead, he lists along the top and side of his blog a disclaimer that these photos do not belong to him and that he will take any of them down if the photographer doesn't want them to be displayed.
To me, this is a flagrant violation of copyright law. In no way does this come under the heading "fair use." This guy is just collecting photos that he likes and displaying them on his website without permission. He's getting away with it because most photographers don't know how to find out that this is happening.
He removed my photo after I asked him to do so.
2. After this happened to me today, I ran across a really cool image of a computer wallpaper. However, I noticed that the Flickr user admitted that he did not create the image displayed in the wallpaper. He stated that he found it at another big art site. (I found where he, or someone else, has posted the same wallpaper at the other art site. The description over there said that it was found on "some blog" and it should be attributed to "whoever created it."
I was very annoyed, but I recognize that most people don't think about things like copyright. So I simply asked if the Flickr user had the right to post this art. He replied that I "thought too much about that" and that it wasn't a big deal since he posts his wallpaper out there free for anyone else to use. It's almost like he was using Karma as a copyright logic/defense.
I replied again, explain a little bit about copyright and fair use, even acknowledging that it probably was within fair use for him to use an image he'd downloaded from the 'net as a wallpaper on his personal computer, but not to then turn around and repost that wallpaper. I gave him a couple of links to websites that do a good job of explaining fair use in non-legalese. After that, he accused me of trying to start a flame war and indicated both that he no longer wanted to discuss the issue and that he wouldn't change his practices.
So, how do you interpret the above situations? I don't really want to link to either specific example because I don't want to make either of these guys mad. I just want to know:
1) do you think these constitute "fair use"
2) will there ever be a way to educate people about copyright violation without them getting angry and/or just having the attitude that it doesn't matter because it is so difficult to catch them?
Here is one of the links that discusses "fair use" pretty well:
http://www.engadget.com/2007/09/21/know-your-rights-how-does-fair-use-work/
Well
by Nicholas Buenk - 12/4/07 8:53 PM In reply to: Fair Use Scenarios by horsenbuggyRegarding number 1. You're putting your photos up on Flickr for free, why do you really care if someone else further distributes them. You're just getting free publicity right? How would anyone benefit if people were restricted from using flickr images in blogs? Are you less likely to take photos because they might appear on a blog? It seems to me that you are more interested in merely controlling where your pictures are, then the purpose of what copyright law is, which is to motivate people to produce things.
This guy is providing a useful service to people who view pictures, filtering and picking ones worth viewing. And if someone sees your name on one them they might look for more for your pictures, you should consider it free promotion, you can very easily look at this completely the other way, and say you're lucky he isn't charging you for the service. 
PS
by Nicholas Buenk - 12/4/07 9:15 PM In reply to: Well by Nicholas BuenkCome to think of it, this is the whole internet radio and royalty argument isn't it.
Copyright is the right to control your work
by horsenbuggy - 12/5/07 4:33 AM In reply to: Well by Nicholas BuenkYes, I am concerned about the right to control my own content - that's the whole point of copyright. What if this guy put my photo up next to a Pro-Nazi or Pro-Apartheid image, or next to kiddie porn, or next to any kind of image that displays content that I object to? Should I thank him then? No. The whole point is that he does not have the right to display my photos (even if he's not making money from doing so) without my permission.
The few exceptions to that rule are: educational use, critique and parody. That's pretty much it.
Huzzah
by Aeirlys - 12/5/07 7:20 AM In reply to: Copyright is the right to control your work by horsenbuggyThis is a point that people seem to miss in copyright discussions (or, at least the copyright discussions on BOL). My best friend is in a fairly successful indie-rock band, and to him, the purpose of copyright is to prevent someone using his songs to sell a product. He doesn't really care whether he makes money off the use of the song.
In that case
by Renegade Knight - 12/6/07 11:49 AM In reply to: Copyright is the right to control your work by horsenbuggyThe other photo's are not related to the fair use of your own photo. It's either fair use of your own photo's or not and that line is drawn on it's own merit. Not based on the other content of the site. Your photo could be the sole exception and the guy could have explicit permission on the others. You just don't know.
I'm not sure I'm following you
by horsenbuggy - 12/6/07 12:18 PM In reply to: In that case by Renegade KnightI used the example above to describe why I should have the right to control how and where my images are used. I didn't claim that the imaginary pro-nazi blogger didn't have the right to post the other images on his site.
But common sense would tell me that if someone posted my photo without regard of copyright, then they most likely (not certainly) did so with the work of other photographers.
But I think you're saying that it doesn't matter how my image is used if it falls within "fair use." Maybe, maybe not. But I don't think as many people can legitimately claim "fair use" as they think they can. ...thankfully.
Clarifiction
by Renegade Knight - 12/7/07 7:34 AM In reply to: I'm not sure I'm following you by horsenbuggyThe point was that the case for fair use on your photo stands on it's own. The other photo's don't have a bearing on it. You are right in that they don't use yours within fair use the odds are the others aren't either. But they would have to be taken case by case.
Your example of why you should have control is increasingly common. I am involved in an activity where if someone trades you an item for an item a lot of them feel that it means you can not then sell that item later. Only trade it to someone else. I'm of the school of thought that if I'm going to own something I'm going to own it free and clear. Otherwise the strings become too much to track. However more and more people see the strings as resonable. They don't see that they are really unmanagable beyond some truly minimal level. Like keeping family heirlooms in the family.
Again, I point out free versus fair use
by horsenbuggy - 12/7/07 8:02 AM In reply to: Clarifiction by Renegade KnightIt's a little difficult in this thread to keep track of which posts come before the other.
You will see downthread that I explained to another poster that all of his scenarios mention a "purchase" or some legitimate transferral of rights. So far, most of your examples have done the same, including your trade example above. From what you've described, a transaction between two consenting parties took place, which, yes, includes a transferral of rights. You now own the object and should be able to sell it if you desire.
My examples specifically refer to someone using my photos without any transferral of rights. There's no discussion, there's no agreement, there's no transaction. Therefore, the person does NOT have the right to use my photo in any way they see fit. It would be a whole different scenario if the person and I had come to an agreement based on either a straight out purchase (fairly liberal transferal of rights) or a non-compensated rights conferral which would probably be more restrictive.
A couple of people have compared these scenarios to the music industry. What I'm talking about here is identical to someone obtaining a copy of a song, entire CD or entire catalog of music from their friend instead of purchasing any of it. I continue to be blown away by the number of people who think it is perfectly legal to "steal music" in this way. By the same token, I am surprised by the number of people who think online photo sites are Royalty Free Stock Photography databases from which they can just take whatever they want for free and without permission.
Transfer of Rights
by Renegade Knight - 12/7/07 11:15 AM In reply to: Again, I point out free versus fair use by horsenbuggyPurchase/Sale is used because it's easy to understand (Unlike these forums in trying to track a conversation). However the same thing happens when you have taken a photo that you just know your friend will love and give it to them as a gift. While you got no money out of the deal, you did get the smile and thanks from your friend for such a thoughtful gift. You do have the right to give them your work which transfers with it fair use so they can enjoy it.
When you post on the internet while it's not as clear cut as giving a photo to your friend, you are giving something up in that the itnernet uses things a certain way. Many of those ways are becoming fair use because they are common practice. Linking to your photo is fair use. Looking at your photo, fair use. Thumbnailing your photo on google, fair use. Posting a blog on some good photo's? Fair use. You put your photo out there for people's use. To what extent? That's the debate. But you did transfer some fair use rights when you put your photo out there. More so than if you had left it on your own computer for your own personal use.
With a sale, there is a contract, the reciept proves it. With a gift, there is an implied contract that it's fit for it's use. Which means they have a right of fair use. It's the same on the internet. You do imply that we all can use your photo within the bounds of internet fair use by the simple fact that you posted it on the net.
This is the crux of the matter
by horsenbuggy - 12/7/07 11:38 AM In reply to: Transfer of Rights by Renegade KnightI fundamentally disagree that by putting my photo up on the internet, I transfer any rights. That is why I specifically mark each photo with an "All Rights Reserved" copyright notice. Granted, I do this through the Flickr interface and it doesn't necessarily JUMP OUT at you, but the notice is there.
The only scenario I can think of to illustrate this in an "offline" way - suppose one of the technicians who processed my film looked at an image and said, "Ooh, that's pretty." He printed a copy for himself and had it made into a big magnet that he stuck onto the side of his car. He wasn't making money off driving that car around town. And his only desire for displaying the photo was because he thought it was good. But does that give him the right to take it (when he had free access to it) and plaster it all over his car? I don't think so. Free access to view does not grant permission to use and publicly display. This magnet scenario is a little silly, but it's kinda the same thing as creating a blog that exists for no other reason except to say, "I like these photos that I did not take."
It is the crux of the matter
by Renegade Knight - 12/7/07 12:18 PM In reply to: This is the crux of the matter by horsenbuggyBy putting your photo's up you have in fact allowed fair use of them for allowable purposes on the net. Further since you signed over your rights to flicker...they also have allowed fair use of them. That's separate from your own rights, but valid for others using those photo's on the net.
If I put all rights reserved in the text of this message would it stop you from quoting it to answer it? Of course not. It's an allowable and fair use of a forum post. That's true regardless of how I feel about you doing it.
However to make my case. On the front page of flickr it says "Share your photo's." Thus you know you are going to be sharing them and have agreed to that. While you are retaining your rights, you have clearly allowed and intended for others to have certain rights from your sharing of the photo's on that service. Your retain all rights statment would apply to any rights left over after the intended sharing.
From the Terms of Service:
...with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), ...
The go on to say they can do what they want with it. This is standard. Kudos are in order since they self terminate their lisence if you pull your content. Most companies keep those rights in pepetuity. Flickr has done a good job of maximizing your rights while obtaining the ones they need to run their service. More so than most.
Bottom Line. You own the copyright. No contest about that. You have also given over certain fair use rights because you have chosen to share your photo's. No contest there. Otherwise you are not sharing your photo's. A lot of contest on how many you have given over. I happen to think the one guy who liked your photo is fine. You disagree, but you have agreed that others who wrote more have met with your own expecation of fair use. The crux becomes how much verbage is needed and in what format for you to agree.
I liked your film processing analogy.
by Renegade Knight - 12/7/07 2:00 PM In reply to: This is the crux of the matter by horsenbuggyThis is my take on that.
It’s a different purpose. You do assign them certain “fair use” rights as it relates to their business and your intent. You want the film developed. They want to develop it. That means a few things. First you have given up the right of being anonymous. They need to know who their customer is to give the film back. You have given them the right to look at your film. They need to see if it’s over exposed, or under exposed to adjust the process and give you good prints. Even if they have a machine they have to keep the machine calibrated which means looking at the negatives on occasion. They also have a legal obligation to report certain photo’s. You by law have given them the right to do that. If they belong to a “film labs quality assurance” approved program. They have the right to have a 3rd party inspection of film and process to garner the certification. They have the right to make test prints, and probably a right to market their skills by showing a “before and after” to show the good things they can do with a bad negative. That last one is probably at the limit of their fair use rights.
What you didn’t give them was the right to share your picture outside of “the business of film processing”, or make copies for personal use. That doesn’t fit your intent or their needs when it comes to developing film. You may actually sign over additional rights on the film processing agreement. However even without the agreement there is a minimal amount of fair use that you have to transfer for them to do their job. The example of the guy who posts the photo on the side of his truck would be a clear violation of fair use as it relates to film processing. It would probably get them fired.
In order to not transfer some fair use rights in film processing you would have to process your own film in your own lab.
Flickr Terms
by entee - 12/12/07 2:07 AM In reply to: This is the crux of the matter by horsenbuggyThe discussion was interesting and made me look up the Flickr terms. I was actually surprised to see that it is quite clear what their stand is on content posted on Flickr, I found it within a minute.
My post will basically clarify the issue of Flickr photos posted on a user blog. I don't use Flickr or post any content other than my own on my blog, which I use basically as a personal diary, so my motives are purely academic at this time.
You need to read the Flickr terms, community guidelines, FAQ, Help sections which will help you understand how that works. Excerpts here:
Help section:
I'd rather people didn't blog my photos. How can I prevent that?
Go to Your Account and specify who sees the "Blog This" button on your photos. Removing this button makes it more difficult for people to blog your photos, but remember that anyone can copy and blog a public photo. If you'd rather this didn't happen, change your settings to make your photos private.
Community Guidelines:
Do link back to Flickr when you post your photos elsewhere.
The Flickr service makes it possible to post images hosted on Flickr to outside web sites. However, pages on other web sites that display images hosted on flickr.com must provide a link from each photo back to its photo page on Flickr.
From the Flickr website, it is clear that Flickr is fine with people linking to and viewing public photos on the Flickr website as long as there is attribution.
But I am also piqued by a scenario where a user may benefit commercially by providing a feed of say Flickr photos. What if a blogger used adsense or other advertising on his/her blog, will that constitute a violation of the terms. Should the blogger provide royalty and seek permission for displaying photos in this case...
There is another scenario which I found interesting, what if someone was to come across a blog displaying some photographer's work and later hired that photographer for work, should the photographer pay a commission to the blogger for the lead?
CAN vs LEGAL
by horsenbuggy - 12/12/07 4:08 AM In reply to: Flickr Terms by enteeThe postings that you highlighted define technology, not legality. Flickr provides the technology to view photos from another site because many of the users within the community want to do so. Those users either mark their photos with a CC license or establish a specific agreement with the person displaying their images.
I have disabled the Blog This button for everyone except myself. But you and I know full well that only the very technically challenged need that button to generate code.
None of that addresses the issue of whether or not it is legal for someone to display my "All Rights Reserved" images without permission.
As for your commission scenario, I'm not sure about that one. If there was no agreement between the photographer and the site host, I don't think there are any grounds for a required commission. (If life was like Little House on the Prairie, this is where Pa would tell Half Pint that even though Mr. Olson was able to sell his goods, it still wasn't right for her to ... do whatever she did with them. Half Pint would crinkle up her freckled little nose, say, "Yes, Pa," flash that snaggle-toothed grin and walk into the setting sun holding her fathers hand. Unfortunately, we live in the world of Bart Simpson. He would look at Pa and say, "Get real, man!" and knock an old lady to the ground as he rushes past her on his skateboard.)
If there was an agreement between the photographer and the host...that's where I'm a little stumped. I don't know how commissions on jobs go. Do photographers do that? I guess the big ones do. Maybe it depends on the size of the job/sale. So far, I've only let my images be used on business blogs. I doubt Arthur Frommer (who has used three of my images) would expect a commission from me if I sold my image based on it being seen on his blog.
I think the commission angle would be more clear if the blogger had to give some kind of compensation for using the image.
I haven't been able to update this thread in a while. I acknowledge that I was not aware of the rights that Flickr and Yahoo acquire as a result of me using their service. I have been thinking about it over the last week. I believe that I accept their terms. I'm not terribly comfortably about them designing an entire ad campaign around one of my photos without compensation. But I don't think that would happen because: 1) there are much better images available to them and 2) I don't think that would go over well with their user base, specifically the ones who pay for the service. They would ultimately lose a lot of business.
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