Website Photos

[Grey]

I noticed the two recent threads on this subject were locked so I can assume that basically means "no discussion" but I feel that this is an important issue.

While some websites maintain copyright protection for their photos, these usually fall under Fair Use. Essentialy, Fair Use is an exception to the exclusive copyright granted to the author of a creative work. This applies to everything, such as citing refrences from a book or, in this case, images from a website. It allows for the legal inclusion of copyrighted work without permission or recognizition from the copyright holder so long as the work in question meets certain criteria.

For example, lets say you want to use a picture of a very sexy Rickenbacker 620 (JetGlo, of course) that someone has on their website. Several factors would be taken into consideration here, however the most prominant is wether or not the value of the original is diminished by replicating and re-posting it. In this case, the image was uploaded to the web and made avilable in the public domain, substantially reducing the exclusivity of the image. As such, copying and re-posting the image does not devalue the original. Adding onto that, the work is intented for nonprofit purposes. You arn't taking the image and printing it in a book, you're posting it in the public domain. The fact that the picture is non-commercial does not in and of itself absolve the poster of responsiblity, but is used as one of several factors when determining Fair Use. Furthermore, Fair Use is just one of several exceptions to copyright infringement.

[rickenbrother]

To Erik and to all else wondering why:

Just for reference, carefully read here:
http://www.rickenbacker.com/legal.asp

Just for another reference, carefully read here:
http://www.joeysbassnotes.com/JBN_TOU.htm

Most websites have user agreement terms.

[cjj]

Stating on one's website that all content is the property of the site owner and may not be republished, linked to, etc. is fine but does not abrogate the concept of fair use. As long at the use of the copyrighted material meets the tenets of fair use it is permissible to use the material.

As stated in U.S. Code Chapter 17, Section 107:

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.

And so, in many cases, images, text excerpts and even links posted on this website would likely fall under the first factor, being of a non-commercial nature for nonprofit educational purposes.

Now, this is how things work in the U.S. I have no idea how this applies to other countries, and since this website is essentially Canadian, I'm sure Canadian laws would also apply. I'm not very familiar with Canadian laws, but from what I can gather, "Fair Dealing" is similar to the U.S. Fair Use, but is quite a bit more restrictive. For instance, teaching is not listed as an example of fair dealing and it is not permissible to make copies of a work to hand out to a class without the copyright holder's permission. How this applies to research/educational usage on a website or copying source material from a U.S. based website, I have no idea...

[Grey]

To Erik and to all else wondering why:

Most websites have user agreement terms.

Yes, however, Fair Use supersedes their exclusive right to copyright protection (wether it is claimed in a ToS or otherwise) provided that the work being copied meets the aforementioned criteria. To quote:

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.

While citing the original author of the work may be considered when determining Fair Use, it is not a requirement for passing the four-factor balancing test. Should people make an effort to cite the original author when copying material from a website that has a ToS agreement stating as much? Yes. However, no one would be at fault for simply reposting the information without the intent to defraud or plagerize. If someone was attempting to pass the work off as theirs, that's an entirely different matter.

Edit: Cjj posted just a bit before me.

[coolhandjjl]

I am a professional commercial photographer in the US. I am also a member of the ASMP and keep up to speed in these matters as much as time allows. Intellectual Property Rights are as clear as mud and are a moving target. Until a member who is a licensed Canadian attorney gives their opinion, this is all speculation.

[cjj]

Until a member who is a licensed Canadian attorney gives their opinion, this is all speculation.

That's pretty much what I was implying above.

Further, the whole issue of how these laws apply to a medium such as the internet is even less clear in that it has in many cases not been tested in the courts. Then when the international aspects of the internet get involved, well...

[electrofaro]

Use of image for illustrative purposes with credit and direct link given to page where it originated, then it should be allowed, unless the webpage expressly stated in their terms it's not okay to use their images for this purpose. If nothing's stated then it's allowed according to EU law for illustrative purposes in educational situations and forum discussions, although the owner of the (rights to the) images has the right to demand removal at any time.

[rickenbrother]

To Erik and to all else wondering why:

Most websites have user agreement terms.

Yes, however, Fair Use supersedes their exclusive right to copyright protection (wether it is claimed in a ToS or otherwise) provided that the work being copied meets the aforementioned criteria. To quote:

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.

While citing the original author of the work may be considered when determining Fair Use, it is not a requirement for passing the four-factor balancing test. Should people make an effort to cite the original author when copying material from a website that has a ToS agreement stating as much? Yes. However, no one would be at fault for simply reposting the information without the intent to defraud or plagerize. If someone was attempting to pass the work off as theirs, that's an entirely different matter.

Edit: Cjj posted just a bit before me.

When people ignore the TOU of a particular website, it makes the owner remove content and take legal action if necessary.

[cjj]

Removing the content is, of course, at the website owner's discretion.

The possibility of successful legal action depends on whether or not the usage falls under the definition of "fair use"...

[rickenbrother]

Removing the content is, of course, at the website owner's discretion.

The possibility of successful legal action depends on whether or not the usage falls under the definition of "fair use"...

So far, the offending websites I've caught up with, have had to remove content that was from my website.

[cjj]

Glad to hear it! One must assume then, that their usage did not count as "fair use"...

[rickenbrother]

Thanks CJ. As far as I'm concerned he only "Fair Use" of the content of my website, would be if an except was posted here, the RIC company forum or another music forum were the content is truly appreciated and credit of the content is given to the site. It's been done before and I have not had a problem with it.
I sort of look at my website as an extension to the Rickenbacker forums anyway.
Other "Fair Use" from other websites or music instruction institutions, would be if I was asked first and I gave written permission.

[admin]

Erik: There is always room for discussion on the RRF provided that it does not focus on matters of religion, politics and sexuality or use inappropriate language. It is important, however, that the discussion be respectful of the views and feelings of others. While we may not agree with one another It is possible to disagree without offending others.

[cjj]

Thanks CJ. As far as I'm concerned he only "Fair Use" of the content of my website, would be if an except was posted here, the RIC company forum or another music forum were the content is truly appreciated and credit of the content is given to the site. It's been done before and I have not had a problem with it.
I sort of look at my website as an extension to the Rickenbacker forums anyway.
Other "Fair Use" from other websites or music instruction institutions, would be if I was asked first and I gave written permission.

Unfortunately, how one feels about the usage of their website content has little to do with what is legal. Some of this has, in fact, been tested in the U.S. courts.

Google was sued for providing stored copies of copyrighted works in their cached links. The court held that Google did not infringe because Google had an implied license due to the fact that website owners can choose whether or not the data is cached via code and tags.

It's a complicated issue indeed and I'm sure the courts have barely scratched the surface of all of the legal intricacies where the internet is involved...

[johnhall]

Everyone has overlooked several points here.

First, fair use does not permit the use of a work in it's entirety. In this case, the photograph IS the work, in its entirety. Fair use was designed to allow quotation of selected parts or excerpts for various educational or critical purposes, not the entire work, whether it's literature, photographic or audio.

Second, even fair use requires clear attribution; this has just been reinforced within the last few days by a decision in the Murphy v. Millennium Radio Group LLC case. Someone posting a photo taken from a website is PUBLISHING that photo and without attribution, the value to the right-holder has been diminished.

Third, entry to a website is considered in many cases to be contractual, that is, access is granted only is you agree to conform to the user agreement. While many sites require you to go through an agreement process to enter, legal notice is all that's actually necessary.

Fourth, at least in the case of the US, the provisions of the Digital Millennium Copyright Act apply, which are slightly different than the regulation of traditional analog media.

This is not a legal interpretation but does offer a nice generalized opinion with additional links:

http://www.templetons.com/brad/copymyths.html

Finally, in the case of materials under our copyright, we are becoming strongly inclined to eliminate public access to these materials if they are not used within the terms of service stated on our site.