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"Fair use" copyright

I took pictures of a project in West Africa organized and sponsored by a large university in the USA. The pictures were originally for a news story which has since been killed.

I put several snaps on my personal website in a private, password protected gallery to show to the academics back in the states. They liked them but didn’t want to pay for usage. They insist that because they are an academic institution, the images can be used by them without my permission under fair use copyright law.

This seems rather unfair to me. I had no obligation to show the images, and now they insist that they have a right to use my images from my private gallery.

How does this work? I’ve read up a bit on fair use (wikipedia and other sundry resources) and nothing I’ve found makes mention of how fair use would apply to unpublished images.

Anyone have thoughts on this? Or can point me in the direction of better resources I can use to read up on the issue?

Thanks.

by Glenna Gordon at 2009-05-22 13:56:09 UTC (ed. May 22 2009 ) Monrovia , Liberia | Bookmark | | Report spam→

Seems to me that the images are yours. They use them, you sue them…simple. :)

TS

by Tomas Stargardter | 22 May 2009 19:05 | Managua, Nicaragua | | Report spam→
I cannot give you legal advice, but I can say that universities are not entitled automatically to fair use of copyrighted works just because they are educational institutions.

I do urge you to register promptly with the Library of Congress the copyright in the photos that they are threatening to use, because, if you do have to seek legal action, having the work’s copyright registered will give you more rights on enforcement (including I recall some rights to statutory damages and an opportunity to collect your attorneys fees). But the best thing is to get a real lawyer to advise you on this matter.

by [former member] | 22 May 2009 21:05 | Washington, DC, United States | | Report spam→
Glenna, the following is from the US Copyright Office dealing with the issue of fair use.

“One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

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

the nature of the copyrighted work;

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

the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."

FL-102, Revised July 2006

For more information about copyright, go to www.copyright.gov.
The Copyright Office also has links to Title 17, the Federal law that governs copyright (appropriately enough), and a host of other information you might be interested in, including an excellent FAQ section.

by Akaky | 22 May 2009 22:05 (ed. May 22 2009) | New York , United States | | Report spam→
Thanks Akaky, I’m checking that out. It also seems like perhpas part of the issue is whether or not these images are “published” when they are on my personal site in a private gallery? Thoughts?

by Glenna Gordon | 23 May 2009 17:05 | Monrovia, Liberia | | Report spam→
I can tell you this…under US law copyright attaches once the image is “fixed.” It does not require “publication.” If the university’s position is that the images must be published before your rights attach, they are getting bad legal advice (sounds like that anyway).

Register the images and prepare to collect on them if they infringe.

by [former member] | 23 May 2009 17:05 | Washington, DC, United States | | Report spam→
Glenna, first, Neil is right about the “fixed” aspect of this. Concepts are not copyrightable, but once you’ve written them down or recorded them or in some way made a permanent record of them they are automatically copyrighted, even if you havent registered them with the USCO yet. Second, the traditional understanding of fair use in schools and libraries has been that you could use some portion of a given text as a teaching instrument, e.g. if a teacher copied out the chapter in David McCullough’s Truman about Truman’s 1948 presidential campaign and handed it out to his or her students as required reading. This would fall under the rubric of fair use. What does not fall under fair use is the teacher copying out that same chapter and then requiring the students to buy the copies from him or her. That is infringement, pure and simple. It sounds to me like this university’s notion of fair use is extremely broad and I’d bet good money they’re hoping you dont notice just how broad it is. If they insist on taking your images, get a good lawyer and let them know you’re going to sue. Five will get you ten they’re going after your images because they think they can get them for nothing; once they know there’s sharks in the water looking to take a bite out of their endowment they might back off.

by Akaky | 23 May 2009 18:05 | New York , United States | | Report spam→
This is the email the professor in charge of the project sent me. As you can see, he is not just wrong, it seems, but condescending and patronizing.

(I’m not his friend, clearly.)

I agree this is a tactic they are using to try and rip the photos off, but I’m unsure how to answer this….

EMAIL

…as a professor I feel somehow the need to remind you that copyright on digital imagery is not the right to absolute controls prohibiting use for “any purposes”. For instance we enjoy fair use rights to your work without seeking nor obtaining your permission. Your comments below might be read as suggesting otherwise. Examples of such use might include (and it can vary on the facts) our use of the images for in-class educational or research purposes, thumbnailing of the images, etc.

Sorry to be pedantic! Just want to remind us all of our rights under the controlling laws! ;-)

Under contract law, as opposed to copyright law, there would be a way to limit fair use rights in circumstances such as this by having demanded the execution of non-disclosure agreements. That would come off as a bit heavy handed among us friends. But it is something you could consider if you are sharing material in another setting should you have significant concerns.

(END)

The conversation goes on and on after this, but you all get the idea… they continue to be rude and patronizing. He calls himself pedantic, but I’d say that’s an understatement. The next several emails are even worse.

More thoughts?

And, thanks so far to everyone who has given me feedback.

by Glenna Gordon | 23 May 2009 18:05 | Monrovia, Liberia | | Report spam→
This guy is not only wrong on legal issues, but also inept at dealing with people (not an unknown characteristic of academics..or photographers for that matter!).

If you are finished with the notion of trying to get some income from this institution, if I was in your position I would (AFTER YOU REGISTER THE COPYRIGHT IN THE IMAGES) write to the university attorney and basically tell him/her of your problem with this guy, tell him you know he is wrong, that you have registered the copyright in the images with the US Copyright Office, and that you will sue if the images are used without appropriate payment. You can register images online, I believe (http://www.copyright.gov/eco/index.html). Again, this is not legal advice — don’t rely on it.

If this is a state university there are indeed constitutional problems with collecting damages from the institution, but tell them that you will also seek to hold the persons who participate in publishing the infringement (including your buddy) personally liable for the actions infringing your copyright.

by [former member] | 23 May 2009 19:05 | Washington, DC, United States | | Report spam→
Follow Neal’s suggestions here, Glenna. Register the images ASAP.

by [former member] | 24 May 2009 15:05 | | Report spam→
I agree with Frank and Neal, Glenna; register now. You can do it online and pay the fee online as well. That way you leave them with very little wiggle room.

by Akaky | 24 May 2009 19:05 | New York , United States | | Report spam→
So the issue is that even if I register (which I’m doing AS WE SPEAK) that they insist that copyright law gives them the right – under the fair use clause – to use the images for “educational purposes.” To them, it doesn’t seem to matter if I’ve registered or not as they are just insistent on their practically innate right to use my images.

At this point I have most certainly given up on getting paid. I honestly don’t think they’ll use my images further since this has already caused a ruckus – so I guess what I would like is to understand definitively how copyright law really does apply in this type of situation (to unpublished images in a private gallery that they would like to use under fair use).

I do appreciate all the advice. Once registered, I will certainly follow up with an attorney (anyone got recommendations????) and I like Neal’s comment about holding the individual person responsible as well as the institution.

by Glenna Gordon | 24 May 2009 21:05 | Monrovia, Liberia | | Report spam→
David Wolf, Esq – http://www.cdas.com/atty_wolf.html
Joel Hecker, Esq – http://www.russoandburke.com/attorneys/joelhecker.shtml

by [former member] | 24 May 2009 21:05 | | Report spam→
The registration does not change the issue of their right to use the images…they still don’t based on all I hear here. It just adds rights with respect to enforcement of your copyright (increasing the probability of your collecting statutory damages and attorneys fees).

In the interest of saving yourself a few bucks I would not hire the attorney until you contact the university counsel to assert your rights.

by [former member] | 25 May 2009 01:05 | Washington, DC, United States | | Report spam→
Neal, I completely agree about the tone of the email that Galena shared, but I’m curious how the guy who wrote it is wrong on legal issues. Doesn’t ‘fair use’ enable the stuff he mentions as examples? Is it the contract law stuff that he got wrong?

by Matt Gainer | 26 May 2009 04:05 | Los Angeles, United States | | Report spam→
Matt, some parts of his assertion are technically correct. But it is more difficult to assert “fair use” where photos are involved. The uses he outlined MIGHT fall within “fair use” in the perfect circumstances, as he notes. But the uses that would justify application of the fair use doctrine would most likely have to be “transformative,” meaning such things as using them for criticism (e.g., “The photo you see demonstrates the proper use of aperture for blurring the background”). The use of a photo for thumbnails is an interesting challenge but if the thumbnail is merely used as a point of reference (such as in an index or catalog — a transformative use) , it might amount to fair use if the image is small enough.

But the key point here is that where photos are involved, it is much more difficult to sustain a fair use defense than with, say, textual works. It is hard for me to believe that, where photos are taken to document a project in the field and then used to display elements of that project, such display is a transformative use.

by [former member] | 26 May 2009 13:05 (ed. May 26 2009) | Washington, DC, United States | | Report spam→
While I realize this conversation has now become more about the issue of fair use than my particular circumstances (which is great as this can be a reference for people going through similar battle of the wills), I just wanted to update all of you.

I spoke with the public relations officer at the institution who had originally been very keen on me doing some work with them and she was appropriately apologetic for her bull headed academic colleagues. She also pointed out, which I think is valid for all such cases, that her colleague should have known better in this situation because the images were in a password protected flash website. So, they would have had to enter using the password and then do some computer trickery to even get copies the images on their computer. They did this. But going to this length clearly implies violation of my intent for usage.

The issue of fair use for photos, more generally it seems, is as Neal says, very tricky. I think his point about transformative use is very valid and should this continue I will certainly mention that.

Thanks again to everyone for the advice, and I’m sure other photographers will be able to benefit from seeing this back and forth written out.

by Glenna Gordon | 26 May 2009 14:05 | Monrovia, Liberia | | Report spam→
“They insist that because they are an academic institution, the images can be used by them without my permission under fair use copyright law.”

They are wrong.

by James Colburn | 26 May 2009 15:05 | McAllen, Texas, United States | | Report spam→
Neal, Thanks for explaining.

Glenna, I definitely sympathize with your situation, and apologies for taking the post into a more general discussion. Best of luck finding a decent resolution!

by Matt Gainer | 26 May 2009 17:05 (ed. May 26 2009) | Los Angeles, United States | | Report spam→
Final point…one cannot use photos merely because one is an educational institution. Being an educational institution only bears on one of (and certainly does not determine) the various factors that are the basis for determining whether a use is a “fair use.”

by [former member] | 27 May 2009 01:05 | Washington, DC, United States | | Report spam→
Glenna,

Here is a great blog post on how you can submit your images to the copyright office online, you might want to check it out:

http://blog.photoshelter.com/corp/2009/05/electronic-copyright-registrat.html

Wish you luck!

by Theo Ribeiro | 27 May 2009 15:05 | Buenos Aires, Argentina | | Report spam→
Glenna,

Here is a great blog post on how you can submit your images to the copyright office online, you might want to check it out:

http://blog.photoshelter.com/corp/2009/05/electronic-copyright-registrat.html

Wish you luck!

by Theo Ribeiro | 27 May 2009 15:05 (ed. May 27 2009) | Buenos Aires, Argentina | | Report spam→
The bottom line here, Glenna, is that you own the work and no-one can take that away from you. As such, you need to be prepared to protect that right, whatever it takes. Not just for yourself, but for all photographers.

My wife and I took on someone who tried to claim “fair use” of her work"… I can’t say any more, except that we are very happy that we fought hard for her rights to decide what happens to her work and to enforcing her underlying ownership.

Being prepared to fight for what is rightfully yours is half the battle. Once the other side understands your firm resolve (to go the whole way), they usually retreat or opt for a settlement. Nobody wants to be seen as operating unethically, taking advantage of others with no basis, or attempting to withhold or usurp that which belongs to others. Nobody wants to defend the indefensible. It just takes courage and resolve, and judging from what I have read here, you have both. Also know that, as a community, we have your back.

by [former member] | 27 May 2009 16:05 | | Report spam→
Here’s a chart not sure how much to the letter of the law it is – but interesting what educational institutions can/can’t do with copyrighted work. http://home.earthlink.net/~cnew/research.htm#Fair%20Use%20Matrix%20for%20Teachers
Best to you for a speedy, just resolve.

by Angela Cumberbirch | 27 May 2009 20:05 | New York, United States | | Report spam→
That’s a somewhat bizarre chart, Angela, which is not really reliable. I don’t think it was written by a lawyer. The four factors of fair use have to be balanced in each individual circumstance. They just don’t lend themselves to the bright lines that “charts” seek to provide.

by [former member] | 28 May 2009 01:05 | Washington, DC, United States | | Report spam→
Fair use is a tricky and very grey area. It depends entirely on what the images are to be used for. For example, If a professor is using your photographs to illustrate a lecture he is is giving on a certain subject, then fair use applies. He or she would not necessarily have to ask permission or pay you under US copyright law as your images would be used in a limited non-commercial, educational way. If the institution is claiming that they have the right to make use of your images for any purpose they wish – for example to publish them in University literature or an academic journal without payment or permission, then they are wrong. Fair use protects your copyright, an academic institution is not allowed to wholesale ignore your copyright and use images for any purpose it wishes just because they are an academic institution. If they do so then you are within your rights to send them a cease and desist letter and if that is ignored then you may sue for copyright infringement. Obviously, I am not a lawyer and you would have to employ one if you wished to take it further but this is my understanding of US copyright in regards to this issue both as a photographer and an educator.

by Tom White | 28 May 2009 04:05 | West Orange, New Jersey, United States | | Report spam→
Yeah you’re right is bizarre but seems in keeping with the way educational institutes are tying to understand/interpret ‘parameters of use’ – but ‘fair-use’ re: academic institutions seems a pretty nebulous and even somewhat subjective legal matter at best, at least in my experience of similar issue.

by Angela Cumberbirch | 28 May 2009 12:05 | New York, United States | | Report spam→
I think I’ve said enough in this thread, but I have to throw in one final observation. Tom, if someone can show me a court decision that holds that a professor can under the doctrine of fair use always display a copyrighted photo while giving a lecture on the subject to which the photograph relates. especially if the photo is being used to illustrate the content of the lecture, I will believe it. Until then, however, I don’t think the doctrine of fair use gives her (the professor) that right, any more than she has the right without license to put the photograph into a textbook written by her and published for sale.

Now for my beer….

by [former member] | 28 May 2009 23:05 (ed. May 28 2009) | Washington, DC, United States | | Report spam→
I think that Tom’s description is actually a pretty realistic description, not that a court case around the matter wouldn’t provide extra muscle…but combining the issue of use in a classroom with publishing in a book is taking the argument too far…yes, teachers should be able to use copyright content as part of teaching, no, they should not be able to take copyright material and publish it in a book. The original issue here was that the university “sponsored” the creation of the works, then refused to pay for usage, essentially taunting the creator with “we can use it without paying for it because we are an educational institution…nah, nah, na, na!” This is bad behaviour, but is it a crime or a real threat of infringement?

Let’s get real here, everyday teachers use photographs for the purpose of teaching, they can’t be expected to get usage clearance from all of our photogs to perform this important societal purpose. However, they would be crossing the line if they took copyright photos to produce a book or any new work. I am not a copyright lawyer, and I don’t think Neal is either, but I know a few and if this is a serious enough issue for you, Glenna, and you feel that you face possible economic harm by this institutions threats of usage, I would get on the horn and get some advice. Otherwise, this may ultimately come down to bad behaviour and abuse of privilege. Just MHO

by [former member] | 28 May 2009 23:05 | | Report spam→
In the UK at least, the professor could use the images in lectures without breaching copyright. The relevant bit is S. 32 of the Copyright Act 1988:

“Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying—
(a) is done by a person giving or receiving instruction, and
(b) is not by means of a reprographic process”

Generally, UK and US law are fairly similar (but not totally identical) on copyright issues, so I’d be surprised if US law doesn’t have a roughly equivalent provision.

That doesn’t mean they can use the images for any educational purposes whatsoever of course.

by Simon Crofts | 31 May 2009 22:05 (ed. May 31 2009) | Edinburgh, Scotland | | Report spam→
p.s. I think the rights to educational fair use in the United States is set out in S.110 of this code: http://www.copyright.gov/title17/92chap1.html#110

As you can see, professors have the right to use images in lectures:-

“the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made…"

etc.

by Simon Crofts | 31 May 2009 22:05 | Edinburgh, Scotland | | Report spam→

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Participants

Glenna Gordon, Photographer, Journalist Glenna Gordon
Photographer, Journalist
Monrovia , Liberia ( ROB )
Tomas Stargardter, Photojournalist Tomas Stargardter
Photojournalist
(Photo Editor at LA PRENSA)
Managua , Nicaragua ( MGA )
Akaky, Contemptible lout Akaky
Contemptible lout
New York , United States ( AAA )
Matt Gainer, photographer Matt Gainer
photographer
Los Angeles , United States
James Colburn, Photographer/Photo Editor James Colburn
Photographer/Photo Editor
Omaha, Nebraska , United States ( OMA )
Theo Ribeiro, Photographer Theo Ribeiro
Photographer
São Paulo , Brazil ( GRU )
Angela Cumberbirch, Photographer Angela Cumberbirch
Photographer
New York , United States
Tom White, Tom White
Singapore , Singapore
Simon Crofts, Photographer Simon Crofts
Photographer
Edinburgh , Scotland


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