October 26, 2016

Graham Ashton

Ridiculous copyright myths infringers want you to believe - Part 1

There are many copyright myths out there. Is it OK to publish an image just because you plucked it off Facebook? Or a blog post? In copyright, a photo’s destination matters just as much as the starting point. At Pixsy we see a constant stream of infringers who think legal ambiguity is good enough not to ask for permission.

In this 2-part post, we're answering the two most common questions: what are the more specific ways an image can be reproduced? Do the typical defenses have any merit?It’s worth stressing beforehand that the answer to every one of these copyright myths is: No. It’s not copyright infringement IF you get the creator's permission first. We also must make it clear that this list should NOT be considered legal advice - merely a compilation of legal cases and incidents that illustrate our point.Remember, if you’re ever in doubt about whether or not you can use a photo, just don’t.

"You can use/post any image if it's on Social Media"

Photo: mkhmarketing via Flickr

Unlike other copyright myths, this one is two-fold. Is it OK to use images you found on social media? And is it an infringement when you post a copyrighted photo on your Facebook, Pinterest etc.?The first answer is straightforward. A photo doesn’t lose its copyright just because a blogger or a journalist uploaded it to Facebook.

French newswire Agence France-Presse (AFP) learned this the hard way. They had to pay $1.2million in damages to photographer Daniel Morel for republishing his Twitter pics of the 2010 Haiti earthquake.

AFP could’ve avoided the whole situation just by posting the images as embedded Tweets. Even if you do this, we strongly recommend that you read the site’s terms of use to see if commercial, advertorial etc. sharing is allowed.

Second, are you infringing when you post copyrighted images on social media? Answer: most likely.

Businesses love to take advantage of the maelstrom of memes floating around on social media. But the rules are clear: those who post the content, not share it, bear the legal burden.

"I modified the photo into art. No one will recognize it"

art made from modified photo
The creator of this winning entry from a 2013 photography contest photoshopped it from another image, igniting a lengthy debate on what counts as “100% original”.

If you manipulate a photo so that it's entirely distinct from the original, that makes it a ‘transformative work’. Artists recognize how culturally valuable this is, which is why there are specific Creative Commons clauses which either allow or forbid such derivative changes.It all depends on whether you add new expression or meaning to the original work, and what value your changes have. For real-world examples just look at the painter Richard Prince. He keeps running into legal trouble by turning (sometimes full) photographs into collages and selling them for a high price.

This area of Fair Use is pretty dicey, but previous cases have determined that…“The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

"That business presentation was only educational!"

Photo: Citrix Systems

Many companies now make their presentations widely available online - meaning you have to be extra careful with any images you use.

This copyright excuse sounds especially ridiculous when the presentation (and photo) are viewed by hundreds in a conference room and sent out as a printed leaflet or PDF. Multiple cases like this were submitted to Pixsy, and in those instances, photographers had everything they needed to rightfully take action.Y

ou could run into trouble for using a photo in your company monthly, Even if you thought no one else would see it. Powerpoint presentations often end up on Slideshare or circulated through cloud services. Nowadays talks, conferences, and debates are also live-streamed for a global audience.

Many PhD scientists and University professors understand the importance of getting permission or citing a photographer in lectures. So, businesses or conference organizers have no excuse.

"When you paint a photo, it's a completely original work"

Luc Tuyman painted a photograph of a Belgium politician (both pictured above). The piece was ruled as plagiarism, but the artist insisted it was a parody.

Pictured above: Art Roger's original photo, and a derivative sculpture made and sold by Jeff Koons. The appeals court ruled that there was no clear need to imitate the photo for parody.

You can paint or make a model based on just about any photo, so long as the subject matter is reasonably generic, or if it's a scene many photographers have taken pictures of over the years. Different legal jurisdictions make this even trickier to determine - just last month, a Belarus photographer lost his copyright infringement case after his Northern lights image was declared to have "no artistic merit whatsoever."

Should you co-opt the unique style or look of a photographic composition, your new masterpiece might run foul if the average “art critic” can match it to the photographer’s work.The go-to example for this is Rogers v. Koons; where a sculptor mimicked the photograph of an elderly couple holding puppies (who’d want to argue against THAT in court?!). The statue’s exaggerated faces and other creative elements weren’t enough to distinguish it, and the court declared the piece “substantially similar” to the original photo.We agree that there's a lot of nuance in digital copyright law. New photo formats and platforms are rolled out every few months, and it's hard for lawmakers to keep up to date, let alone the people shooting and sharing the images. But we've long moved past the "anyone can use a photo if it's on Google!" excuse. Even if some stubborn infringers are still sticking to the same copyright myths, ignorance should never be held up as a justification for image theft.In Part 2, we'll look at whether "Fair Comment" is always a fair excuse, why courts will only embrace parodies in specific circumstances, and why putting a photo on a cake can still violate copyright (even if you eat the evidence!).

Graham Ashton

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