November 1, 2016

Graham Ashton

Ridiculous copyright myths infringers want you to believe - Part 2

Featured Photo: Ludovic Bertron

Even with a clear cut case of image theft, some infringers are convinced some copyright myths are true. Photo misuse isn't always malicious, but there is a degree of legal ignorance involved. Unfortunately, we at Pixsy see that disregard shared online continuously.

We wanted to cut down this mountain of misinformation, and so we previously published a list of ridiculous copyright myths and common excuses. Contrary to what you've heard, these won't absolve you from legal consequence. This continuation has even more ridiculous defenses we've seen infringers use. Here's why they aren't as airtight as they'd have you believe.

"Your photo is on my T-shirt - only I will wear it"

Copying photos onto clothing is highly circumstantial. If you slap someone's image on your personal T-shirt, the image itself is still copyrighted.Sometimes this personal use of a photo is too trivial. There is a legal principle known as maxim de minimis non curat lex (“the law cares not for trifles”). Some legal experts feel that a custom Tee amounts to non-actionable amount of copying. As with Fair Use, this is a semantic nuance. There are dozens of factors to consider e.g. is the photographer selling other photos of the subject matter? What if they eventually start printing T-shirts with their photo?

As soon as you multiply your lone T-shirt or list it for sale, there will be trouble. If the photo is already sold or licensed by the photographer, then yours could be an illegal counterfeit. Before you complain that the artist isn't selling the image on a T-shirt...sorry. A lack of availability is not a legal defense.

"I'm only using the photo so I can comment/critique it"


On many occasions, we've encountered infringers "hiding" behind a concept of Fair Use.

But this US legal concept isn't universally recognized. It is also a broad subject, with a million and one applications.

A clear-cut example is to put a photo on a blog or non-profit publication, so you can critically examine it. This often satisfies the four criteria behind Fair Use:

1. The purpose and character of your use.

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion taken.

4. The effect of the use upon the potential market.

It’s worth remembering that copyright Fair Use is, at the end of the day, a legal defense. It’s not a magical barrier that can prevent anyone from suing you or filing takedowns. Even if you're sure your use of the photo meets all four criteria, only a court can decide what is Fair Use and what is not.

"It was obviously a parody. A satire?One of those..."


Fair Use isn’t a black or white affair. In the past, courts have only embraced parodies in particular circumstances.The photographer who shot Demi Moore's infamous pregnancy shoot (pictured above, on the left) tried to sue Paramount. The movie studio mocked up her image for a The Naked Gun 33 1/3 poster by adding Leslie Nielson's grinning face on top (pictured above on the right). The court ruled this a fair parody. However, the the puppy-packed photograph that we mentioned in Part 1 was not.It doesn't matter if poking fun was the only reason you used a photograph. That won't stop the creator taking action. For example, celebrities and politicians notoriously sue for copyright infringement, purely because an article about them was mean-spirited or humiliating. The idea that "parody" will always protect you is a major copyright myth.

"That's a protest - you can't take down free speech!"

Photo credit: Newtown Grafitti

Free speechThe United States affords free speech the highest level of protection. That's why this New York photographer could legally shoot and showcase his neighbor's apartment for the sake of art. Fair use acts as a safety valve, ensuring both free speech and copyright can co-exist and complement each other.You can deface a politician's photo for a placard, or throw their headshot onto your nonprofit blog. You'll always have a defense armed and ready if ordering a copyright takedown would violate your free speech rights.Once again, this is something you may have to defend on the stand. Things can get complicated if your use of the photo either defames or invades the privacy of your local legislator.

"But everyone's using that photo in YouTube videos..."

We previously showed why the "No Copyright Infringement Intended" tag on YouTube videos is it's own bogus excuse..

YouTube has a longstanding debacle with copyright violations. The big debate surrounds Fair Use and who's responsible for the infringing content. It is possible to track images inside videos, so don't think slipping a photo into a split-second of your Vlog makes it any harder to find.The copyright myths involving Youtube videos are a dime-a-dozen, so allow us to dispel some...Your video can still be taken down even if:

  • Credit was given to the copyright owner.
  • The video was not monetized.
  • Other videos are using the image.
  • The image appears only in recorded footage.
  • You stated that "No copyright infringement is intended" (we have a whole blog post on this misleading caption).

"It's in Open Source Software, which is free to all"

The entire idea behind copyright in open source software is that it's released with relaxed licensing, which allows anyone to use it as they wish.That however only extends to the tools you use to make it. Add copyrighted images to sections of your program or throw a photo into your video game mod, then you've not only violated copyright but gone against the whole concept of open source.We recommend taking a page out of the open-source initiative's book and using only Creative Commons images for your home-brew programs.

"Your photo was on my cake? Too bad, I ate the evidence"

Photo: Peggy_Marko

Cake-makers have to be careful with using copyrighted characters, and the same is true with licensed photos.Icing is shaped into all kinds of mouthwatering images, but that doesn't make it a legally defensible piece of "art." Sweet-talk the license holder all you like; selling a cake with an edible version of their copyrighted photo on top won't impress them.A cake made for personal consumption is still infringing (even if the holder is unlikely to act on it). We all love sharing photos of desserts on social media, so it's unlikely that the frosted image will stay just between you and your party guests.

Which copyright myths are you tired of hearing?

We've covered only the most common copyright myths from infringers, but we know there are countless more that photographers hear every day. From people who think it's OK to use an image just because they're in it, to those who believe no photography watermark equals no copyrights, there're many more myths to stamp out. Which one has ground your gears that we missed?Share your experiences with us either on the Pixsy Facebook page, or by tweeting us at @PixsyHQ, and we will include them in our next post in our series on Ridiculous Copyright Myths.

Graham Ashton

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