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Lawyers advise me

post #1 of 14
Thread Starter 
I know there are some lawyers on here, so I have a question. If you were to repost a picture that someone posted online on another site would this be legal. For example, say I posted a picture on the WAYWT thread and someone saved the picture and used it on their blog. Legal?

I've been reading about it, but it seems like a real grey area.
post #2 of 14
Quote:
Originally Posted by HelloIDistance View Post
I know there are some lawyers on here, so I have a question. If you were to repost a picture that someone posted online on another site would this be legal. For example, say I posted a picture on the WAYWT thread and someone saved the picture and used it on their blog. Legal?

I've been reading about it, but it seems like a real grey area.

I'm an attorney, but haven't got a good grasp of this sort of thing. My first reaction would be to read the terms of service for the website. For instance, it may say that once you post something here, it's in the public domain and good for any use. In the alternative, it may provide that there is some measure of confidentiality and that a user may not copy of substance found on the site.

That seems much easier than figuring out the various forms of misappropriation of a public image depending on what state you're in, etc. My gut says that you can use it if you post it yourself, but I don't really know straight off.
post #3 of 14
Quote:
Originally Posted by HelloIDistance View Post
I know there are some lawyers on here, so I have a question. If you were to repost a picture that someone posted online on another site would this be legal. For example, say I posted a picture on the WAYWT thread and someone saved the picture and used it on their blog. Legal?

I've been reading about it, but it seems like a real grey area.

What they are doing is copyright infringement if you have not given permission to use the image.

Of course you have very little recourse. You can alert them to the fact...then you can alert their hosting provider to the fact (they are somewhat likely to do something about it if you approach them correctly). You can hire a lawyer to send some letters...and eventually you can take them to court (which is bound to be a long drawn out process that nets you nothing).

A takedown notice from a lawyer is probably enough to get them to remove it...but depending on the content, it could just encourage Streisand Effect style spreading of the image.
post #4 of 14
Quote:
Originally Posted by otc View Post
What they are doing is copyright infringement if you have not given permission to use the image.

Of course you have very little recourse. You can alert them to the fact...then you can alert their hosting provider to the fact (they are somewhat likely to do something about it if you approach them correctly). You can hire a lawyer to send some letters...and eventually you can take them to court (which is bound to be a long drawn out process that nets you nothing).

A takedown notice from a lawyer is probably enough to get them to remove it...but depending on the content, it could just encourage Streisand Effect style spreading of the image.

Yes, what they've done is likely copyright infringement. However, as others have noted, there isn't much you can do. Taking them to court will likely prove to be a huge waste of money - you'll have to register the copyright first with the copyright office which can take MONTHS, and then the cost of filing fees, etc. Then, take into consideration that the alleged "infringer" can assert what they call a "fair use" defense, which further makes any kind of recovery more difficult.

Takedown is probably the best you can do, but even that is made difficult due to DMCA counter-notification procedures.
post #5 of 14
Thread Starter 
Thank you. This really isn't pertaining to me or anything anyone took. I was just throwing a hypothetical for a project I'm doing. Basically what I see is that it is a pretty grey area?
post #6 of 14
Quote:
Originally Posted by HelloIDistance View Post
Thank you. This really isn't pertaining to me or anything anyone took. I was just throwing a hypothetical for a project I'm doing. Basically what I see is that it is a pretty grey area?

With respect to "infringement," I wouldn't say it's really a gray area, only with respect to what the copyright holder's remedies are in that situation.
post #7 of 14
Quote:
Originally Posted by HelloIDistance View Post
Thank you. This really isn't pertaining to me or anything anyone took. I was just throwing a hypothetical for a project I'm doing. Basically what I see is that it is a pretty grey area?

The illegality of it isn't gray at all. What's uncertain is whether the copyright owner will (1) find out, (2) object, (3) take action to request you to take it down, (4) whether you'll take it down in response to (3), and (5) whether, if you don't take it down in response to a request, the copyright owner will take more serious action such as actually suing you in federal court.
post #8 of 14
Quote:
Originally Posted by otc View Post
What they are doing is copyright infringement if you have not given permission to use the image.
I would not be so sure. Using a single image could well qualify as fair use, which as much as some powerful interests in this country want us to forget about is still a legitimate defense to copyright infringement.
post #9 of 14
Quote:
Originally Posted by harvey_birdman View Post
I would not be so sure. Using a single image could well qualify as fair use, which as much as some powerful interests in this country want us to forget about is still a legitimate defense to copyright infringement.

I suppose he didn't clarify the use of the image.

If someone took his WAYWT image and foofed it or critiqued it, that might be fair use. If they needed a photo of a guy in a suit standing on a toilet to advertise how professional their bathroom cleaning service is...that would be straight up infringement.

Fair use only works if you are using it for one of the fair use reasons.
post #10 of 14
Quote:
Originally Posted by harvey_birdman View Post
I would not be so sure. Using a single image could well qualify as fair use, which as much as some powerful interests in this country want us to forget about is still a legitimate defense to copyright infringement.

Quote:
Originally Posted by otc View Post
I suppose he didn't clarify the use of the image.

If someone took his WAYWT image and foofed it or critiqued it, that might be fair use. If they needed a photo of a guy in a suit standing on a toilet to advertise how professional their bathroom cleaning service is...that would be straight up infringement.

Fair use only works if you are using it for one of the fair use reasons.

Right - the most important factor of the fair use analysis appears to be the "transformative" factor, so it would really all come down to how the alleged infringer was using the photo. Anyways, this all academic since the OP has said it was only hypothetical, so we don't have any actual facts to work with.
post #11 of 14
Quote:
Originally Posted by otc View Post
I suppose he didn't clarify the use of the image.

If someone took his WAYWT image and foofed it or critiqued it, that might be fair use. If they needed a photo of a guy in a suit standing on a toilet to advertise how professional their bathroom cleaning service is...that would be straight up infringement.

Fair use only works if you are using it for one of the fair use reasons.

One of the prongs of the fair use test is how significant of a part of the work is borrowed (ie, did you borrow the "heart" of the original). If the original work was defined as a whole web page, like if it's a blog post with a lot of text and several photos, the photo of the guy in a suit might not be considered that significant a part of the original.

On the other hand, if the original work was defined as the photo itself, that would point pretty strongly toward infringement.
post #12 of 14
I'm pretty sure that you don't actually have to register the copyright in order to sue on it. That said this is a pretty academic question, why would anyone ever pursue something like this in the legal arena.
post #13 of 14
Quote:
Originally Posted by AR_Six View Post
I'm pretty sure that you don't actually have to register the copyright in order to sue on it. That said this is a pretty academic question, why would anyone ever pursue something like this in the legal arena.

The Copyright Act §411(a) states:

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

Moreover, §412 requires registration as a prerequisite to certain remedies, i.e. statutory damages and attorneys fees.
post #14 of 14
If you're posting the image for purposes of comment or criticism, it's likely considered fair use. Of course, the copyright owner may still pursue a claim, though it's very very unlikely! If the owner really has an objection, he can send the site where the image is posted a take down notice per the DMCA. Best bet is to provide some credit to the original site (or owner) where image was taken.
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