Copyright issues… a facebook friend sent me the following message:
Hi Terry, my niece, who is a photographer, has “chastised” me for sharing, or should I say, posting one of her pics. I gave her credit, plainly. She says it is a copyright infringement.
Is that so?
I told her that when I share or post YOUR pics, you have your logo on them, and I feel it is advertisement for you. She countered that she has her “watermark” on her pics, but it is still “stealing”.
I said that if I go to a FB photography page, which has privacy settings set to “public” and I save a pic to my computer, then post it, I don’t feel that is an infringement. Is it?
The main reason I started doing this, was because when I “Share” a pic to many of the pages where I am a member, they show up as “thumbnails” requiring the extra step of clicking to open. When I save, then post, this does not happen. I deliberately look for pics that are large: around 900×600 for instance.
I don’t want to be a thief, but I do think that to share beauty is a great thing…
let me know how you feel about this.
She apparently has a stick up her butt… anything posted publicly on facebook is basically ‘fair game’ – and if she doesn’t want it copied or ‘shared’ – then she might NOT oughta post them on fb.
She still owns the copyright, and has the right to ‘protect’ her work… but if she doesn’t want ‘her work’ shared or talked about… she shouldn’t have her stuff on fb (or any social networking), and damn sure not PUBLICLY VIEWABLE (sharable, save-able, or steal-able). That’s just a sad reality.
Technically, in a criminal sense, it is ‘stealing’ if a) you are attempting to make money with other people’s work without their permission (you aren’t), or b) you continue distributing it after they’ve asked you not to (you don’t). It’s her ‘right’ (as the copy right owner) to ask you to TAKE DOWN ‘her’ image, for any reason what so ever. So, basically, I’d just delete & stop sharing HER STUFF…
and, let her work be like a fart in the wind… it belongs to someone, and the owner might be proud of it… but few will ever know who the originator is, because it’s never seen, not marketed, not talked about, not sold, not anything… as if it never existed.
In MY opinion, liking and sharing (on social media… WITH MY WATERMARK and INFO) are the highest form of flattery…
I only post low res photos, and I too share others photos (especially when they are awesome, and I know who they are so I can give them credit). If any ‘real photographer’ doesn’t watermark their stuff that they post on line, then they are morons and missing opportunity! (A person purposefully removing watermarks IS A THIEF). Those not watermarking either a) don’t care, and are not wise in business or life… or b) don’t know any better.
As one of my business professors once told me, many years ago, ‘If you have something worthy of being stolen (or shared without specific permission) then you have something worth selling.’
The EULA (End User License Agreement) for Facebook, and many of the internet sites, notifies the photographer that when THEY PUT THEIR work on to that site, and set the permissions (who can view it) to PUBLIC… then it basically (in that size & format & crop) becomes ‘sharable’ and that they have granted a non-exclusive use license of that photo to the viewers in ‘public’ within the confines of that site, especially.
If your niece doesn’t like that, then maybe she shouldn’t post her stuff on fb (or unprotected public accessible pages).
Anyhow, I appreciate you (and others) sharing the photos I post on facebook… especially when it helps promote my work, my photos, MY SPONSOR (www.VetSupplements.com or www.MDsChoice.com). It means that the time I’ve spent behind the lens, and in all the ‘post processing’ wasn’t a waste… and that something I captured caught someone else’s attention, appreciation, and potentially sparked some emotion.
If I don’t want it shared, or happen to sell exclusive rights (which has happened a few times with photos on fb), then I either a) don’t post them, b) remove them from the net, c) make sure they are watermarked, or d) specifically encourage people to share my OTHER unaltered low res photos on fb.
Word of mouth is cheap advertising… and feed back (positive strokes the ego, constructive criticism helps improve the future). But remember, ‘free’ doesn’t pay the bills or IRS. Personally, I view negative comments as just someone’s opinion. Maybe they have a valid point based on their perspective of fact… or maybe it’s just jealousy or some anti-preference thing… but it should always be useful to GET FEEDBACK. Because it gives us some unbiased third party feedback, good, bad, and otherwise. It’s up to us to weigh it, sort it out, and decide if or how we wish to apply it. Remember, it takes all kinds to make this world go around. Just getting people talking about ‘a piece’ of ‘my work’ is ultimately ‘the goal’ and hope… because TALKING IS ULTIMATELY BETTER THAN SILENCE, and I’m absolutely aware that you can’t please ‘everyone all the time.’ As the old saying goes, “Negative Advertising is better than no advertising at all.”
I’d guess that your niece has issues with criticism… and is either a new ‘photographer’ (more of a hobbyist that is thin skinned) or just a control freak.
Feel free to share any of the photos I post on my “Terry Mercer Photography” FAN PAGE (on facebook), that I’ve taken… and share the ‘post’ or link of those that I’ve shared that aren’t mine. Helping others learn more about photography, and do better is a goal. Just having people ENJOY MY WORK… is also inspiring… and the more than talk about some… the more likely paying clients will notice, and art agents or sales opportunities will happen.
Frankly, I’d love to see her (and her kids) computers & ipods, and video tape collection… and curious if she has a TiVo or DVR… the ‘sharing’ and ‘personal use’ concept NOT FOR PROFIT that she and her immediate family does (of other people’s work product). Retelling of a joke, for a profit, is potentially a copyright violation… if someone wanted to push it (legally).
Some words of wisdom on the topic:
“The controversy is whether making copies of music (and other data such as movies [or photos]) and then giving it to someone else violates the copyright laws and “intellectual property rights” of the company that produced it. For example, every time a song is copied and given to someone else, that is one less person that is likely to purchase that music. This costs the music industry money (or so they claim). The same is true with the movie industry. In many countries, the government has ruled this practice illegal, so, yes, it is wrong to use such shareware programs to distribute copyrighted material. If it were not illegal, it would be up to you—and your conscience—to prayerfully determine whether it is right or wrong.
“ If any of you lacks wisdom, you should ask God, who gives generously to all without finding fault, and it will be given to you.” ~ James 1:5
One of the best ‘writings’ I’ve seen on the topic of ‘Fair Use’ is:
“Fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as commentary, criticism, or parody. “Fair” uses do not require permission from the copyright owner. This article explains fair use, particularly with respect to education.
Determining fair use
There is, unfortunately, no simple definition of “fair use.” It is a right set forth in he U.S. Copyright Act, but how and when it may be applied is left to the discretion of judges and juries. Be aware that no guidelines provided in this article are guaranteed to be accepted by all courts!
Four factors determining fair use
Judges typically consider four factors in determining whether a given use of copyrighted material is fair use.
1. What is the character of the use?
Educational, non-profit, and personal use is likely to be considered fair use; commercial use is generally not considered ‘fair use.’
Personal use includes uses such as making copies for one’s own files or using the copyrighted material in a paper written for a class (but not otherwise shared). For example, to use a copyrighted image in a research paper or multimedia project created for a class is personal use, but if the paper or project is posted on the web, it is legally published, and this use no longer falls under fair use.
Educational use includes use by a teacher or student in a class or distance learning environment.
Uses that are “transformative” are most likely to be protected — that is, uses that do not merely reproduce the original work but transform it into something new or of new utility. Examples of transformative uses are quotation, criticism, commentary, and parody.
2. What is the nature of the work to be used?
If the material used is factual in nature, use of the work is more likely to be considered fair use. Additionally, if the work has been published, use of it is more likely to be considered fair use. Unpublished material (such as historical correspondence) is less likely to fall under fair use guidelines. Material that is made available to the public on the web is legally considered to be published.
3. How much of the work will you use?
You typically may reproduce only a small piece of a work — a common guideline is 10 percent. Another common guideline is that you may not reproduce a “substantial amount” of the work. This is less precise, but a “substantial amount” may be less than 10 percent in some cases. For example, a short clip of a scene from a movie may be far less than 10 percent of the movie, but still represent a substantial amount of the creative content of the movie.
How much of a work you may reproduce depends on the media in which the work was published (text, image, video, etc.). This article on LEARN NC provides guidelines for how much of a work may be republished for educational use (such as a student multimedia project); however, be warned that these limits may not apply to other kinds of use.
4. What effect would this use have on the market for the original or for permissions if the use were widespread?
The primary purpose of copyright law is to promote intellectual activity by ensuring that creators of works can profit from their sale. Ask yourself: is my use of this material preventing the ability of its creator to make money from its sale? If yes, your use of the material is likely not fair use. Hence you could play a piece of recorded music in your classroom but not distribute the music in an MP3 file to your students; the latter use interferes with the ability of the copyright holder to make money from the sale of the music, while the former does not.
This is often the most important of the four factors to consider, but remember that it is not the only factor — a creator retains rights to a work even if he or she does not intend to profit from it!
Fair use in education
Educational use and personal use (see #1 under Four Factors, above) cover most classroom uses of copyrighted work. However, the web and the desire to share or publish students’ work make it easy for teachers and students to cross the line from fair use into copyright violation. As a guideline, consider educational use to cover only what happens within the confines of your classroom (or distance learning environment).
What is not educational use. To republish or publicly perform a work does not fall under fair use. For example, a student may use a copyrighted image in a multimedia presentation to the class, but may not post that presentation to the web where anyone could see it. An English class may act out parts of a play as they study it, but may not give a public performance.
Fair use in distance learning
For the most part, fair use guidelines in distance learning environments are identical to those in face-to-face classrooms. Special rights granted to educators beyond fair use (see copyright) are subject to special restrictions in distance learning environments. The term “distance learning environment” also assumes a special restricted-access area for instructor and students, not a publicly available space on the web.
A simple text link from one web page to another typically does not violate copyright law, because it provides only a direction on how to find the copyrighted work; it does not reproduce it in any way. A text hyperlink may be thought of as similar to a card in a library card catalog, which merely tells you where to find a book on the shelf but does not reproduce the text of the book.
There are, however, exceptions. The key to avoiding copyright violation is not to link to content in a way that implies ownership of that content.
Deep linking. In some cases, website owners may object to deep linking — the practice of linking to a page within a website that is not the site’s home page. They may object because deep linking bypasses advertising or identifying material that appears only on their home page. However, objections are rare. A good practice when deep linking is to state the name of the website to which you are linking, if practical with a link to the website’s home page. (For example, the Stanford Copyright and Fair Use Center provides this explanation of linking and fair use.) This makes the ownership of the linked material clear.
Framing. Displaying another website inside a frame, for example with your own banner over top, may be a violation of copyright because it can cause confusion as to who owns the content displayed in the frame. If you use frames for your website, link to all outside websites in the top frame or in a new window.
Inlining content. Inlining content is displaying content, such as an image, directly from one website onto another. If you display an image on your website by pulling the file directly from another website’s server, you are inlining the image. Technically, you are not reproducing the image (because the file still resides on its owner’s server), but you are implying ownership by displaying it within the context of your own website. Additionally, inlining images draws on the resources of the originating website’s server, which may cost the owner money. Never, ever do this! If you want to display an image from someone else’s website on your own, ask permission, then copy the image file to your own web space.
Netiquette. In the mid-1990s, it was considered good “netiquette” (i.e. “net etiquette”) to ask permission before creating a hyperlink to someone else’s web page. Most legal documents providing advice on linking still claim this. But the practice of asking permission has been uncommon for several years, even for deep linking. Bloggers, for example, link to one another continually; the “blogosphere” would shut down if everyone stopped to ask permission. However, it is good practice to list the source of a deep link (see deep linking, above). ”
And, “For those of us who would appreciate a clear, crisp answer to that one, we’re in luck. The Center for Social Media and Washington School of Law at American University are sponsoring development of a growing number of Fair Use Best Practices statements that inform a fresh approach to the subject and make it easier than ever to know what’s fair. The Best Practices statements follow recent trends in court decisions in collapsing the Fair Use Statute’s four factors into two questions: Is the use you want to make of another’s work transformative — that is, does it add value to and repurpose the work for a new audience — and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.
But what if your purpose is not transformative? For example, what if you want to copy several chapters from a textbook for your students to read? Textbooks are created for an educational audience, and often quite expensive. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when she created it, we are not “repurposing” the work for a new audience. Or what if you are repurposing the work for a new audience and adding value to it by comparing it, critiquing it or otherwise commenting on it, but you want to use a lot more than is really necessary to make your point?
In cases like these we also look at whether the copyright owner makes licenses to use her work available on the open market — whether there is an efficient and effective way to get a license that lets us do what we want to do. If not, the lack of the kind of license we need to use the materials supports our relying on fair use due to the market’s failure to meet our needs. If you would like to know more about a case on the subject of nonprofit educational non-transformative uses, please read Georgia State Electronic Course Materials Case.
Don’t forget, however, that fair use exists within a larger context. When we create materials in an educational setting, fair use is part of a web of authority we rely on to use others’ works. No one strategy is enough today. Our libraries license millions of dollars’ worth of academic resources for our use every year. And there are millions of Creative Commons licensed works available online. We rely on implied licenses to make reasonable academic uses of the works we find freely available on the open Web. And we rely on fair use. If you can’t find what you want to use among your libraries’ offerings, or on the Web or through Creative Commons, and your use doesn’t qualify as fair use, getting permission is becoming easier every day. The Copyright Clearance Center now offers both transactional (item-by-item) licenses and subscription licenses to colleges and universities. And if you conclude that your use is not fair, but you can’t license access to the work, circle back around to fair use again, because the lack of availability of a license weights in favor of fair use.
There are many other excellent resources online providing guidance for the use of the four fair use factors. See, for example, IUPUI’s Fair Use Checklist, UMUC’s Copyright and Fair Use in the Classroom, on the Internet and the World Wide Web, University of Minnesota Libraries’ Fair Use Analysis Tool, and the many wonderful statements of Fair Use Best Practices published by or with the Center for Social Media and Washington School of Law, just to name a few. ”
Legally, Facebook and all users of facebook can use (and share) copyrighted works within the confines of the Facebook… and the poster choosing to post has already agreed to the terms of their EULA… so, technically… your niece has very short legs to stand on with her ‘you’re stealing’ statement… as long as you aren’t profiting from her work, and her posting it publicly with a ‘share button’ for public people (friends & strangers) able to share or right click copy a low resolution representation of her photo (or words), she’s technically and legally giving implied or inferred permission just by posting. But, if I were you, I’d never share another photo she ever posted… and would likely point out her hypocrisy when I stumbled across it.
Also, unless your niece has a signed model release for every person she snaps a photograph of she might be violating THEIR RIGHTS very potentially… there are very specific limitations, legal requirements, and laws on the topic, and is something most photographers (especially hobbyists jumping up & down about their newly found power & rights) often neglect.
Hope that helps… feel free to share away any of my nature photos posted on fb… you have no complaints from me! LOL