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"Fair Use Exception" to the copyright law

Discussion in 'General Discussion' started by MikeMcA², Jul 13, 2008.

  1. Found this article very interesting; in a scary, we have no right to make a living kind of way. Perhaps it's old news to others. Apparently it's fine for people to steal your images, so long as they are only using them on the internet and morphing them into their mashup and exercising their own right of freedom of expression. Oh, you may be able to force them to at least give you photographer credit. :eek: 

  2. Lurker


    Jul 21, 2007
    can of worms
  3. wbeem


    Feb 11, 2007
    Sanford, FL
    William Beem
    Some people get bent out of shape and cry "stealing" when there's no harm done to them at all. If they aren't profiting from your labor, why worry about it? Copyright exists to promote sharing as well as protect the author.
  4. Who determines that no harm is being done? If one of my images was being used under the Fairness Doctrine by some organization [that I may have a healthy dislike for], I would not be amused.

    I read the whole article and have more sympathy for Lane Hartwell's case.
  5. Well for better or worse, the courts determine what harm is being done. If your work was being used by a group you might have a dislike for as you described it would not be able to be used in a way that would suggest your sponsorship or affiliation with that group - if it did, it would not fall under fair use. The other tenets of the doctrine (which is only a legal defense) are for uses for criticism, news reporting, education, and of course what we have here, parody. As bad as it may be to the individual, if the artist's first amendment rights and their expression under fair use is more beneficial to society as a whole its likely going to stand. That is easy for me to say now, because none of my images have been used in a "parody." I would have even less of a complaint because although some of my images are copyright protected, none of them are registered - and I bet there aren't many here who have registered copyrights in any of their photos. Just another thing to think about :smile: Miss Hartwell is getting some publicity/exposure out of the deal because I sure wouldn't have known who she was before this article.

    On a lighter note, in one of my intellectual property law classes we covered fair use and one of the students found this youtube video and the class watched it and it does a decent job of explaining copyright in general and the fair use doctrine and is kind of humorous as well if anyone is interested (fair use starts at about 6:15 if you don't want to spend 10 minutes watching):


    (sorry, don't know how to embed here)
  6. Tim:

    Thanks for the lucid explanation and reference to Fairness Doctrine in action.
  7. Why worry? If you knowingly allow copyright infringement, you may well lose the right to claim it later.

    Can you expound upon this view a little bit, please? I hope I am misunderstanding your point.
  8. Zorki1c


    Jul 9, 2008
    Boise, Idaho

    Copyright were designed to protect intellectual property--not to encourage sharing. Since the advent of the Wide World Web, the best way to protect a photo from being used without you permission is not to post it on the internet.
  9. Herman: You are welcome. Thats as lucid as I get at 2:44 a.m. :tongue: This is one of my main interests in the law and hopefully I can practice in the intellectual property area. Unfortunately, not many people (including myself) really understand the law as it pertains to them. Its tough to be a professional or serious amateur in a field like photography and not really know what legal rights you have (unfortunately I have learned some of these laws through experience). The article posted didn't do a really good job of explaining the law, just telling a situation and then how the artists kind of "got away with" fair use. Although some opinions might have stayed the same, if the article would have explained the relevant law (in a way we can understand it) it would have been a little more fair to both sides. Another GREAT blog that is all about "photography law" which is written by an attorney who actually practices in the area is:


    She is great, and covers all things that affect photographers in the legal field. She is also the author of "The Photographer's Legal Guide" which is a great guide to some of our legal rights. I had been meaning to post about her blog on here, and it may be worth its own thread but I figured I would add the link here.

    Howard: Zorki1C is right in a sense. Copyright was created with the idea to encourage creativity. It does this by controls the reproduction of an intellectual creation/expression - in other words keeps people from copying it. The reason this should encourage creativity is by protecting those who are creative - the idea is that someone wouldn't be motivated to create a work and publish it if they were afraid someone would just copy them and call the work their own. Sometimes I think it doesn't work, but then I wonder what my life would be without viewing some of the work of my favorite photographers because they didn't share their work with society for fear of it being stolen.
    Last edited by a moderator: Jul 14, 2008
  10. wbeem


    Feb 11, 2007
    Sanford, FL
    William Beem
    Well, that's part true and part nonsense. Yes, copyrights are supposed to protect the originator's rights to creative works so that he or she may share it with the larger community. What's the point of writing a novel and never letting anyone else read it in order to protect it?

    Part of the reason for the Orphan Works issue is so that the people can benefit from creative works. Now I'll grant you that there's a lot of controversy around the bill itself (and rightly so), but the intent is to share creative works. Some Congress-critters have openly spoken about that intent and that's partly why it's such a hot button these days.

    So you can take all the photos you want and hang them on your walls, that's great. Others of us would like to share our work because we're not in the business of selling it. That doesn't mean that I want someone else to profit from my efforts without sharing the money with me, but I honestly don't care if some blogger uses my image for a post, or someone takes one of my Vegas images for a wallpaper. I'm not diminished in the least by personal use or fair use.
  11. I think you're reading too much into the nature of copyright protection:

    Copyright is a form of protection provided by the laws of the United States
    (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
    -- www.copyright.gov (emphasis added by me)

  12. This is correct - but unpublished works must still be registered within 3 months of their publication to receive protection and to collect damages if infringement happens. Usually the "unpublished" work is being created with the intent to eventually publish.
  13. Close, but not quite right: If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    Whether or not a creator wishes to publish, that is still a separate issue from copyright protection. Copyright is implied to the creator from the moment of creation. I would agree that protecting a published work is the the primary invocation of copyright protection, but publication and registration are not absolutely necessary.
  14. wbeem


    Feb 11, 2007
    Sanford, FL
    William Beem

    I don't think I am. If anything, I think a lot of people are bellyaching.
  15. Right - that is true for statutory damages, but being able to prove actual damages and profits is really tough, so its better to be registered either way. Publication and registration are definitely not absolutely necessary. I agree with you that whether or not a creator wishes to publish is a separate issue than protection but in my original post I was saying that the aim and reason for copyright protection when it came about was to protect reproduction rights and creativity.
  16. RAMartin

    RAMartin Guest

    The purpose of copyright per Art. I Sec. 8 of the Constitution:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    Anyone claiming fair use better be correct in their interpretation of the law because if they guess wrong it could be devastaing. If you are going to claim fair use, go see a good lawyer and protect yourself. If your image is used without your permission and you do not like that, go see a good lawyer and protect your property.

    Copyright threads are always of questionable value. I have seen more bad information come from well intentioned discussions of copyright. Furthermore, the people who really should address the questions, the lawyers, usually are reluctant to chime in because of liability issues. The article which started this thread is a good example of a non legal approach to a complex legal issue. It just causes more problems than it solves.

  17. This is the smartest thing in this thread thus far. Great post.
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