PB PM said:
Canadian copyright law for photographers is different, in several ways, so check them out. For example, if you shoot for a newspaper (if they are your employer) and the photo was taken for an assignment, unless otherwise stated the copyright lays with the paper, not you. If you took it for yourself and later sold it to the paper, that is different (similar to American law).

Hi PB PM, the Canadian copyright laws seem to have some differences as updated in 2011.

The 'for hire' laws are pretty specific and are rather clear. If the company owns the equipment used, they also own the images taken - which I take from your posting to mean employee - company's equipment, whereas assignment - your equipment, you own the rights.

US law has been very "unclear" about that. Most creators of media say, 'they' own it since it's clear the creator owns it, but a pay stub says you're the employee (by court cases in media law), it's been a pain to discern ownership. Government photographers don't (or didn't) their photos.

My best,

Mike

http://www.aphotoeditor.com/2011/06/01/what-to-do-when-your-image-is-stolen-online/

I am not familiar with US or Canadian copyright laws but there are a few things that come to my mind.

Regarding the four points for fair use mentioned above: point #3 mentions "the amount and substantiality of the portion used...". If I understand correctly they used your entire picture (as opposed to citing a sentence or paragraph of a longer new article). So I would also think that this is not fair use.

Even if you don't get any money and if you don't get the credits (because the ads are out already) you should make them aware that they did not have the right to use the image. Under different circumstances you might have a contract with a model on the image where the fee for the model depends on where and how often the image is published. Under those circumstances you would have to pay the model even if you don't get any money for this. Just to make them aware of that...

If it were mine and a small church. I would only want credit for the photo. It would not matter to me what religion the church taught.

If one of the major retailers were doing it I would definately want some $$$, or at least gift cards to their outlets. ;- )

I know the law in the UK at least (it's my job). Unless the publication printing a photo can prove in court that it has permission to use it then it is infringing copyright law. Irrespective of where the publication sourced the photo or image.

Not fully up on copyright laws, but my current understanding of U.S. law is on par with Mike's. The scenario described is not fair use. Also, it is a misconception that if a photo is not used for monetary gain, it is fair use.

Canadian copyright law for photographers is different, in several ways, so check them out. For example, if you shoot for a newspaper (if they are your employer) and the photo was taken for an assignment, unless otherwise stated the copyright lays with the paper, not you. If you took it for yourself and later sold it to the paper, that is different (similar to American law).

Hi Bowen,

The copyright laws are held to be _generally_ international, with North American laws being identical.

Education would be in a classroom environment, if I were teaching you Photoshop in a classroom and using a photo that had levels out of whack to work with and re-adjusted the levels for the class- that's fair use. If it's on my DVD, I have to have a release.

Criticism would be a review of a cited work, "Bowen's photo as seen on page 2 above, shows..."

News reporting is a tough one to cite, it kind of like a that photo is the news, not reporting the news, as in not too long ago there was a photo in which it _appeared_ that a man and woman were kissing during the riots in Seattle, but the woman was being comforted by the man as she had asthma from tear gas (I think - I do forget), and the photo becomes the news - not my days as a wire news photographer - something different; those photos are copyright protected by the wire service.

Research is non-commercial and is low to no impact on the market.

Teaching is similar, but can't be photocopied as in Xeroxed to death. Teachers making one of copies for their own use as reminders for lectures or notes, not for showing to classes - a huge distinction.

Library and scholarly archiving also mean low to no impact on marketing - no photocopying and no distribution, nor are they show to the public. Libraries buy copies to be shown. These are for archival purposes - (yes, there are libraries that don't have 'check outs, customers, or anyone to "see" their books, papers, or things').

The church can not argue fair use.

I would get them to pay a modest token amount. Again, I'm assuming you have EXIF data or something concrete that it's your photo?

The easiest approach is a photo call, that you're happy to work with them, a small fee (whatever you're happy with - it can be as little as you like - and you can invoice with a return envelop). No need to get huffy puffy. You can tell them that you have to do this to 'protect your rights', which is true.

Good luck and my best,

Mike

@ Mike Gunter - ah yes, never thought of that - Canadian vs American laws. Any idea where I can find out about the Canadian version of Fair Use?

Hmm, this has me confuzzled :)

I was reasonably certain they were within fair use terms, but the fair use doctrine seems to be intentionally vague: http://en.wikipedia.org/wiki/Fair_use

"Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test."

The balancing test mentioned above is 4 points:

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.

I'm pretty sure they would argue nonprofit educational purposes, and the fact that there's little effect of the use on the potential market for (or value) of the picture. (realistically this won't do anything for the value of this photo or it's market).

The last question for myself is - is it worth the time & effort? I doubt a church would use the 'We just won't get caught' attitude, they probably would believe they're within their fair use rights in using it.

spraynpray said:
I agree with the above, but if it really doesn't sit well with you to go after money, you could at least get them to publish your details (credit you with the photo). As I don't know the exact details (hoarding, pamphlets etc.), I don't know if that is feasible, but it is a thought.

Hi,

Exactly, but in days of yore... A 'due consideration' clause was part of the contract in North America, exacting a monetary or at least _quid pro quo_ for the photo. In the credit, a 'Thanks to Joe for the use of the photo' with a copyright 2012 or whatever date, by whoever, all rights reserved, attached.

But since my retirement, I haven't been current with media law.

My best,

Mike

I agree with the above, but if it really doesn't sit well with you to go after money, you could at least get them to publish your details (credit you with the photo). As I don't know the exact details (hoarding, pamphlets etc.), I don't know if that is feasible, but it is a thought.

Hi,

It's not fair use. The holder can ask them to cease and desist and to protect the copyright, or the holder should, or arrange for them to give the holder an amount, $100, $50, even $20 for using the photo, assuming the holder can prove prove ownership and provide an agreement to use it.

If holder isn't proactive, the copyright could be lost due to publication without use agreement.

Bowen, you've mentioned 'newspaper' and 'photographer' and I've responded with holder, so I want to be a bit clearer. US Law and Canadian law is nearly the same. He/she who creates is usually the holder, unless there is a work for hire agreement.

You likely won't ruffle feathers by taking a contract to the church with a friendly attitude and ask for a tiny amount of cash for the photo to protect the rights.

My best,

Mike

You own it? Then they don't have a right to use it the way you describe.

I'm guessing that the church takes donations. They pay for the electricity, the heat, the mortgage, for staffers, for . . . .

Why should they use your image without paying?

I'd send a reasonable note with a reasonable invoice for the use.

Otherwise, you are saying anyone can use your photos without your permission. There is way too much theft of images today. For some reason, people think that just because they can copy an image from a web site that it's okay to use it. Or, maybe they just think they won't get caught.

You don't have to be nasty, but you also don't need to get run over. Get paid for your work.

I've done a forum search, but couldn't find anything directly relevant.

I'm looking for a bit of advice regarding this scenario: You find one of your images being used in an advertisement - in this specific case used by a church to advertise a public lecture (non-profit church group, they dont even take collections), what are the implications, opinions or answers to the following:

What would you personally think or do as the photographer?
What legal recourse is there (or should there) be?
Would the newspaper have reason be upset too?

I would believe in this case (even if I don't like it) that it is fair use. The organization using it is non-profit, they are not selling a service, just advertising a public lecture at a community center. They certainly are not making any profit from it.

The original image was news reporting, there are probably well over 100 other images almost identical from other photographers, and it was a historical political event.

I honestly think it would be practically impossible (very difficult) for the church to go out of their way to identify the individual photographer of that specific image to ask permission.

What do y'all think?

(please realize, I'm not going to sue a church!)

I should note that I completely agree with TaoTeJared's statement that this case is much narrower than people are making it! There is merit to this topic thread in that it is good for us to know what is going on.

I am familiar with the Supreme Court ruling regarding the Edward Balkian case. To use someone's image and to photograph a similar subject even in the the same place will not over time hold up as intellectual property. On the other had the courts and attorneys may have a field day with this kind of suit. It does indicate to many photographers to do their own compositions. I for one am not into slavishly copying someone else's style or view. Many of us also study photos and to a degree emulate work we admire. I do not see this as a court matter. But a minor change in angle,etc. can often give a refreshing view and take on a iconic subject. Too bad this subject is fodder for attorneys and the courts. Buyers do peruse advertising and I believe are relatively sophisticated in regards to copycat advertising photos?

SkintBrit said:
As I said in my previous post, I dont understand how the judge could have known who was responsible for the original idea, or first person to come up with that image was. Surely this would have been a pertinent point in his decision?

The photographer took the image and it was made into a postcard in 2005. The video was taken a few years later. There was a clear record of the creation of the images and it didn't sound like anyone contended it.

sevencrossing said:
Normally Logos are protected by registering them as a Trade Mark
It is an interesting to idea to protect them by copyright laws

If you don't trade mark your logo, it is still covered under copyright laws. I have heard it is not as strong in court though.

spraynpray said:
...it seems possible now that copyright can be used for objects in photos. Quite where all this ends is impossible to estimate right now.

They made a point for the France case that French law was unique. It sounded like the pieces were the "subject" of the photos and not used as an accessory. That seemed to be threshold. If you are in France you should be careful but as for the USA that ruling would not happen.

tcole1983 said:
I think the judge was ruling on companies basically using a similar image for their products. So the problem being the one company is making their advertisement look similar to the others label or whatever.

That is exactly it. This is what the defending company (who hired the company who did the work) did:

...To produce the second work, the one with which this case is concerned, Mr Houghton took four photographs. Three were of different aspects of the Houses of Parliament and the fourth was a picture of a red Routemaster bus while it was stationary on the Strand. Of the three, one photograph showed the facade of the Houses of Parliament, one showed Big Ben and one showed part of Big Ben with Portcullis House across the road. Mr Houghton explained how the defendants' work had been produced by Sphere Design. They combined and manipulated Mr Houghton's images as well as an iStockphoto image of a Routemaster bus. The bus was re-sized to fit and the road marks were changed to be consistent.
Thus the original was a photograph, and the second was Photoshop-ed to create the look of the post card. It was not just two photos. The "copied" image was intentionally created to look like the original image.

This case was much narrower than people are making it.

Now that I step back and think about this again. I think the judge was ruling on companies basically using a similar image for their products. So the problem being the one company is making their advertisement look similar to the others label or whatever. Although to me they don't look that similar and I can imagine half of everything in that area have a red double decker bus on them.

At least in the United States I don't think we see much photography used for company logos. The only place I see this being a problem would be in the travel industry such as like Yellowstone or whatever, but even then how many pictures of like old faithful are there??? I have at least a half dozen. I think the key would be how it was really actually used. If you model your ad directly off the other with a very similar picture then I could understand that. On the other hand I don't think it should apply just because a similar technique is used...such as making the background black and white which is a very common one that even I have done. In those cases I think the picture would have to be very exactly replicated to hold any ground of copyright infringement type cases.

Tao, my point was that not only does what you said apply but also (reading the link to the French action) it seems possible now that copyright can be used for objects in photos. Quite where all this ends is impossible to estimate right now.

I saw at least a couple of paintings in the National Gallery which used the pointillism technique - no court cases about that in those days (even though courts existed) because it was not a litigious society on the scale it is now.

Hypothetically, if someone takes a picture of Times Square with a slow shutter, flashing lights and car streaks, can they claim copyright over that image and effectively prevent anyone else from using a similarly composed shot that uses a slow shutter from using that shot commercially?

The way I see it, photoshop really is just a tool like any other tool an artist uses, same as a brush or a camera. If we start placing prohibitions over the use of certain techniques of photoshop then what's there to prevent us from placing the same prohibitions over camera techniques like DoF or slow shutter effects? I think a line needs to be drawn and the way the judge drew it, is very blurry.

Here is another dilemma the arises from the ruling; what about similar paintings? Even paintings that use similar brushing techniques? Would it be possible to apply the same ruling here? Just to clarify, I'm not talking about forgeries here, just paintings that are made about the same subject in the same settings and the same general style; similar but with enough differences to be distinguishably unidentical.

And as far as the other case involving the designer chair... if someone buys a chair, wether from Ikea or a junk heap or an ill-famed designer, wouldn't they own that chair and (at the very least) own the right to produce a photograph of it?

spraynpray said:
I see this as more complex than that.

As I said in my previous post, I dont understand how the judge could have known who was responsible for the original idea, or first person to come up with that image was. Surely this would have been a pertinent point in his decision? The Defendant may well have coppied the work of the plaintif, but how does the plaintif prove that the idea was his? I guess that in this case, it would be for the defendant to show an example of the same or very similar work carried out by onother person before the plaintif produced his? Many people who have left a comment about this subject state that the idea has been around for a very long time. (schlinders list springs to mind).

TaoTeJared said:
What if it was your logo/watermark that represented your work and camera shop opened and used it but making it 3d looking as their logo?

Normally Logos are protected by registering them as a Trade Mark
It is an interesting to idea to protect them by copyright laws

Your example of the chair is not the remotely the same. That is an object used as a prop. The ruling was not focused on the use of the bus, it was on the copying of artistic interpretation of the whole image that included the same technique and similar framing.
Now if you created a video that exactly resembled an advertisement that company used to promote that chair, but were advertising was for home designer's business saying how good their homes where... don't you think you would a letter stating you owed some licensing fees?

Think of it this way - We all know the image of the Afghan Girl by Steve McCurry. If a company re-created that photo, color, eyes etc, but obviously a different person who looked very similar and then created a branding for a product around it - would you believe McCurry would have a right to licencing fees?

What if it was your logo/watermark that represented your work and camera shop opened and used it but making it 3d looking as their logo?

Ideas, images, logos, writing, music, etc. all belong to the person who created it until they sell or sign it away. There was a time when businesses could steal anyone's and other businesses ideas and creations to use as they wanted.

As for the money - those cases are settled in small claims court per UK law due to the nature of the cases. Max 5,000 pounds = around $7,500 us. That wouldn't even pay for the lawyer fees.

I suppose I do not see it as a "litigious nature of the world" but another large corporation seizing a guys success believing it has the requisite to not pay, because a photographer may not have the means.

I see this as more complex than that Tao as your post gives only one perspective - that of protecting photographic work or images.

Say a company creates an original and very special piece of furniture which they market for £250000. They don't sell many as the pieces are so expensive, but the furniture is so desirable that they do sell to those who can afford it and who want exclusivity in everything they buy. I come along and use the piece in a photograph and the photograph sells - say to be used in a magazine with a large circulation.

Now, am I harming the brand because it is perhaps shown somewhere non-exclusive? Am I promoting the brand at no cost to the designer/maker? Am I creating original art which this piece just happens to be used in (as an accessory)? Does the perception blur depending on how sophisticated the image is as well as where it is displayed i.e. whether it enhances or detracts from the image the designer want to create?

I can't see any easy answer to this yet. It is made harder because of the litigious nature of the world that we live in - people see a chance for a quick buck and their thinking ends right there.

Just my 2c.