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Fair Use of News images

(15 posts) (10 voices)

Started 7 months ago by bowen
Latest reply from Mike Gunter
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bowen

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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!)

Posted 7 months ago #
Tom Gresham

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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.

Posted 7 months ago #
Mike Gunter

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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

Posted 7 months ago #
spraynpray

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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.

Posted 7 months ago #
Mike Gunter

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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

Posted 7 months ago #
bowen

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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.

Posted 7 months ago #
bowen

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@ 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?

Posted 7 months ago #
Mike Gunter

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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

Posted 7 months ago #
PB PM

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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).

Posted 7 months ago #
warprints

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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.

Posted 7 months ago #
Christina

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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.

Posted 7 months ago #
Geoff_K

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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. ;- )

Posted 7 months ago #
Correlli

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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...

Posted 7 months ago #
OnTheRopes

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

Posted 7 months ago #
Mike Gunter

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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

Posted 7 months ago #