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Author Topic: COPYRIGHT !  (Read 5408 times)
Jeff Donald
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« on: September 02, 2003, 07:46:14 AM »
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Some architects or building owners have had their work (buildings) copyrighted.  I believe the Rock & Roll Hall of Fame, is one such building.  Most people think of the copyright issue as a right to privacy or anonymity.  But rather, the reverse.  They own the building and it's image and have a right to make an income from the image.  Standing on a place of public access is no longer a defense.  You can not transfer liability of a copyright violation under US law.  Consult an intellectual property lawyer.
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Joe Hardesty
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« Reply #1 on: September 02, 2003, 12:43:24 PM »
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Are there any Lawyers here, I would like to hear the expert view.
With all due respect, all the expert opinions in the world won't necessarily keep you out of court. Remember, in every law suit, 50% of the lawyers are wrong!

Actually, there are plenty of lawyers on the web that write and advise about copyright, trademark, and privacy issues, but they can only speak of vague generalities. Logic and law are not absolute and do not always prevail.

It is also important to remember that the law does not protect you--it only offers a mechanism for justice. You may be 100% right with the law on your side, but when a team of corporate lawyers comes after you, can you afford to fight the battle?

IMHO, the whole issue involves money. Tiger Woods loves his adoring fans and would likely never suggest they not be able to photograph him. But just let someone capture a great image of him that becomes financially successful and all #### will break look. And if you don't think that is true, just read the CameraArts article--it is worse than you can possibly imagine.

End of rant.
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victoraberdeen
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« Reply #2 on: September 02, 2003, 03:40:08 PM »
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Thank you for joining in Edward, it would assist us to know what specific areas your interested in...

Two extremes: In the UK people have no protection against published photos taken from a public place regardless of the location of the person. But the photographer should not be using an aid (ladder etc.) to get the picture. This is why the royal family gets so upset, being photographed in private cars etc.!  In France the person photographed owns the copyright, permission required, often ignored my the media! I am not aware of any other country that is so strict.

Is trademark law not about protecting the good name of the owner, so if it was used in a photograph it would have to be damaging against the holder? but money rules here!
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Joe Hardesty
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« Reply #3 on: August 31, 2003, 09:21:57 PM »
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If you are at all interested in copyright issues and the legal aspects of photography, you owe it to yourself to pick up the Aug/Sep issuee of CameraArts. The article by Jim Hughes titled "Private Parts" reveals the true legal battles of several photographers whose seemingly innocent photos found some measure of commercial success. Interestingly, some of these involve landscape pictures much like you and I might take every day.
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victoraberdeen
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« Reply #4 on: September 02, 2003, 01:56:08 AM »
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So much depends on the laws that cover location where the photo was taken and where it is published. My understanding is simply that if the photograph was taken from a place of public access and there is no product endorsement – then no permission is required. This rule of thumb has worked over many years. Even had a few try to litigate against the publications the pix were published in. On every occasion the above rule stopped them in their tracks.

However if the images were helping to sell a product then the rules change. Simply the image is implying that there is an endorsement for the product. If you sell photographs for such use ensure that the purchaser understands that 'no permission or release is available and that such should be obtained', place the comments on the photo copyright and the invoice. Result is that you have transferred the responsibility to the photo purchaser.

The bottom line is always consult a lawyer, not the guy in main street though, find one who understands the issues and is pragmatic, in the real world (fees etc). Maybe – like ArtLaws no recommendation, I have not used them.
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Joe Hardesty
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« Reply #5 on: September 02, 2003, 08:56:52 AM »
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Hi Jeff,

It is interesting that you mention the Rock & Roll Hall of Fame, because one of the law suits sited in the article is about Charles Gentile's photograph of that building which ultimately became a very successful poster. The Hall sued based on trademark infringement. But unlike most of us, Gentile had the resources to fight it, and ultimately won. He won because the appeals court found his image to be substantially different from the one the Hall uses to advertise itself.

The issue actually extends well beyond copyright and includes trademarks, property rights, and privacy. And for every lawsuit one can sight that appears to provide a new guideline, there are others which only serve to blur the boundaries.

If anyone wonders why so many landscape photographers gravitate toward national parks and public land, part of the answer may be that it is the only place where you are on a firm legal ground (at least for the moment), and can be somewhat assured that an innocent photo will not land you in a court of law.

Just my 2 cents.
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victoraberdeen
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« Reply #6 on: September 02, 2003, 11:12:15 AM »
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Standing on a place of public access is no longer a defense.  You can not transfer liability of a copyright violation under US law.  Consult an intellectual property lawyer.
Are there any Lawyers here, I would like to hear the expert view.

I think you will find that all buildings designs are covered by copyright, however they do not suffer any loss nor is the sale of photo's unreasonable, just find some prior art/publication.. It is best to photograph more then just the building, include other features!
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Jeff Donald
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« Reply #7 on: September 02, 2003, 01:15:35 PM »
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Thanks for the clarification, Joe.  I knew the building was involved in litigation, but I thought it was still in appeals.  

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If you sell photographs for such use ensure that the purchaser understands that 'no permission or release is available and that such should be obtained', place the comments on the photo copyright and the invoice. Result is that you have transferred the responsibility to the photo purchaser.

This might be interpreted as prior knowledge of violation of copyright laws and as such the violation was intentional.  Intentional violations of copyright laws carry heavier fines and penalties.
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victoraberdeen
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« Reply #8 on: September 02, 2003, 01:33:21 PM »
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Yes, and yes...

I agree Jeff, it is about money - or avoiding giving it away. Also I think the CameraArt article is only the tip of the iceberg.

Joe, yes, but you could also be in trouble if you imply permission is not required. catch 22!
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Joe Hardesty
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« Reply #9 on: September 02, 2003, 03:04:38 PM »
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Edward, thanks for weighing in on this one.

I have wondered about the street photographers myself, but I assume that most are just ignoring the whole legal issue and playing the law of averages.

As for the rest of the tangled mess with copyright, trademarks, and privacy, I am at a loss. Not long ago I actually felt I had a good layman's understanding of these legal and ethical issues. Today, all bets are off.

BTW, you said, "Some of us are working on this problem and would welcome comments." Are there any reliable web resources or current books that offer photographers guidance on the myriad related issues?

Thanks,
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Scott_H
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« Reply #10 on: September 02, 2003, 05:09:50 PM »
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The lighthouse does not make sense to me - the federal government does not have copyright in anything it does or owns, so they cannot charge you to use the images.
The USCG has been decomissioning lighthouses, at least the ones on the lakes, for years.  Lighthouses are considered obsolete as a anvigational aid, and they are expensive to keep up.

A lot of them are now privately owned.  Some are bed and breakfasts, some are owned by organisations that are preserving them as museums, some are private homes.  Some still function as lighthouses, and the Coast Gaurd only maintains the light.
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Erik M
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« Reply #11 on: September 01, 2003, 01:27:25 PM »
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I read the article and have to side with the lighthouse owners. If a man made structure is only an 'incidental' part of a landscape and not easily identifiable then you don't need a release. But it seems that in this case the lighthouse was integral to the photo and was clearly identified and therefore needed a release for commercial use. Still, all in all it's a sad situation.
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pmkierst
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« Reply #12 on: September 02, 2003, 10:35:21 AM »
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If anyone wonders why so many landscape photographers gravitate toward national parks and public land, part of the answer may be that it is the only place where you are on a firm legal ground (at least for the moment), and can be somewhat assured that an innocent photo will not land you in a court of law.
I was shooting in a National Historic site and Park in Canada about 2 weeks ago and was approached and told by a park warden that I needed a permit to shoot the historic lighthouse. They stated that for non-commercial use it was free and usually granted, but otherwise a fee may have to be paid.

Being a little pig-headed and especially for things my tax dollars paid for, I simply said no I didn't and continued to shoot. We did work out that it was for "artistic" purposes and they were satisfied by this. Apparently someone had shot a "moon" picture (the sort that involves dropping pants, not the lunar sort) with the lighthouse as a background and included it in a calender and they were somewhat outraged.

Anyway, in this case, not even a national park was safe.

It is bad enough I can no longer visit many portions of the park due to safety concerns. It is a place I have been visiting for over 20 years; I liked that they made it a park and preserved it since I start visiting, but I also liked the freedom I use to have there. Oh well, every time I visit (about once a year) I now get kicked out of some section that I am not allowed to be in.
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Paul K.
Edward
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« Reply #13 on: September 02, 2003, 01:45:19 PM »
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I am a law prof and know a little about this, but have not read the article, so I can only comment on photographing  buildings.  Last time I looked at this, I remember that there was a revision to the copyright law that allows photographing buildings, even for commercial purposes.  You can copyright the design and appearance of a building, but that only prevents people from building the building, not photographing it.  You cannot trespass to get the pictures, however.

The ROCK N' ROLL HALL OF FAME case was not about copyright but trademark, a distinction only a lawyer would make.:-) The photographer used the caption, "ROCK N' ROLL HALL OF FAME, which the plaintiff claimed was trademarked so he could not use it.  The plaintiff also claimed that the design of the building was so distinctive and so will known that it was also a trademark that could not be used without permission.  The court disagreed, finding that the building had not been used as a trademark and that using the name of the building was a fair use of the copyright.  See: Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749, 45 U.S.P.Q.2d 1412, 1998 Fed.App. 0020P (6th Cir.(Ohio) Jan 20, 1998) and Rock & Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 71 F.Supp.2d 755 (N.D.Ohio Sep 02, 1999)

People are different from buildings - they have a right to control their publicity.  The lighthouse does not make sense to me - the federal government does not have copyright in anything it does or owns, so they cannot charge you to use the images.

Want to worry about something?  How do all of those wonderful street photographs square with new state privacy laws?  This becomes especially troublesome when they are on the Internet.  Did Winograd get releases?  Could someone in one of his famous pictures block its sale or display?  All of the court cases are about news and reporters, not fine art. Some of us are working on this problem and would welcome comments.
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Edward
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« Reply #14 on: September 02, 2003, 09:46:41 PM »
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>Are there any reliable web resources or current books that offer photographers guidance on the myriad related issues?

Not that I have seen, at least on the hard issues of non-celebrities in public places and the problem of whether the laws that protect news media protect artists. This is cutting edge stuff that even the full time constitutional law folks cannot agree on.  The Internet makes it worse because the chance that the subject or someone who knows them will see the picture is much higher. I have a few things on my site, but nothing specific on photography:
Intellectual Propery Info

> Is trademark law not about protecting the good name of the owner, so if it was used in a photograph it would have to be damaging against the holder?

Trademark is solely about the trademark being a business identity.  You can get in trouble by defaming it or even just using it unless there is a legal exception. For example, you can do a Coke/Pepsi taste test, but you can get in trouble including trademarked products in your movie.

> Not long ago I actually felt I had a good layman's understanding of these legal and ethical issues. Today, all bets are off.

I taught this stuff for 3 years and I feel much the same way.  The Congress and the Whitehouse, Reps and Dems, have strenghtened the hands of intellectual property owners at the expense of public rights for the last 30 years.  Great if you are Disney, not so good it if you happen to have Mickey in one of your pictures.

The routine stuff is not too complicated - landscapes and buildings are OK if you do not trespass. (Shots from airplanes are a grey area.) Get a model release from everyting else and make sure it is at least 18 and has clothes on.:-)
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