Copyrights working for (and against) you.

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Copyrights working for (and against) you.

Postby DickK » Mon Sep 01, 2008 10:05 am

(Note: the following is specific to US law and process. Copyright provisions vary by country but most are quite similar thanks to the wide adoption of several international treaties and conventions.)

Fundamentally, the rule is this: if you make something that is a creative, original work then you are the copyright holder.

Now that the US has signed the Berne Convention (http://en.wikipedia.org/wiki/Berne_convention) it is no longer the case that you need do anything to establish your rights. Under US law, however, statutory damages and attorney's fees may only be awarded in the case of registered works. In the US, copyright is administered by the United States Copyright Office, a part of the Library of Congress. More information on US copyright law, and the registration process, can be retrieved from the Copyright Office's web site, (http://www.copyright.gov).

What this means to you is that every photograph you take and every slide show you produce is protected by copyright. All rights are yours until you transfer them to someone else, temporarily or permanently, completely or in specific. When you give or sell someone the photograph or slideshow, you may grant any rights you wish and withhold any rights you wish. And what are those rights?

There are five basic rights protected by copyright. The holder of copyright has the exclusive right to do and to authorize others to do the following:

    * reproduce the work (make copies in any form)
    * prepare derivative works using the work
    * distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending
    * publicly perform the work
    * publicly display the work

Anyone who violates any of these exclusive rights of the copyright holder is said to have engaged in copyright infringement.

For anyone making slideshows for someone else (paid or not), there’s a vital point that needs to be made here but first we need the concept of transferring these rights. Three types of transfers exist:
    * Assignment
    * Exclusive License
    * Non-exclusive License
The first two, assignment and exclusive licenses, must be in writing. Assignment transfers the specified right(s) completely--they become the other persons entirely. A license doesn't transfer ownership of those rights, just lets the other party freely use the item in specified ways. Exclusive transfers grant rights to just one party with the rights holder promising to not grant those rights to anyone else although they may be time limited. Nonexclusive licenses need not be in writing and they may be implied. Example: buying an MP3 online has a non-exclusive, implied transfer to you of the right to perform (play) the audio. All transfers must spell out all specific rights transferred. For instance, a license may provide a right to perform a work, but not to reproduce it or to prepare a derivative work (that’s what you acquired when you purchased most music by the way, “all other rights reserved”).

The important point is that when images (or video or music) are provided to you to make the slide show, you need (at least) the derivative work right to be transferred with them. Unless the copyright holder* transfers (by assignment) full rights to you, they retain all rights not explicitly transferred—they are not yours to do with as you wish. Conversely, the resulting slideshow is a new work, a derivative work, and the copyright for that is yours exclusively unless you transfer it to the other person--which you must do, in part, so they can perform (play) it. The exchange of property and rights should be spelled out clearly in a written contract (technically a verbal contract works but it’s harder to enforce).

*Warning: there’s an assumption here that the person providing you the material for the show is the copyright holder and, therefore, has the right let you make the slideshow (i.e., transfers the right to make a derivative work to you). That might not be the case. If they aren’t the person that made the images, the music and/or the video, then they do not have the right to make a derivative work and, therefore, they must obtain that right before giving the material to you—they can’t transfer that right to you if they didn’t have it! Failure to do so means that the resulting derivative work, your slideshow, will infringe the rights of the real copyright holders. Language in the contract specifying that the other person has the necessary rights for the material may (or may not) protect you but it won’t change the fact of infringement.

Enforcement.
This topic is so dependent on the specifics of the infringement, that it’s hard to say too much useful. If you need more information, seek the advice of an attorney or at least read some of the online resources. Still here are a couple very basic notes:

What happens if you infringe someone’s copyright or someone infringes yours? Absolutely nothing—unless and until the rights holder takes action. No one will protect your rights except you.

Almost all copyright actions are civil cases and the result will fall into two categories: injunctions and damage recovery. An injunction is simply an order to stop the infringing activity and may include provisions for recovery or destruction of the infringing material. Monetary damages can either be recovery of their actual damages and any additional profits of the defendant or statutory damages.

Caveat: This information is the opinion of it's author and does not constitute legal advice of any kind. Risk associated with the use or misuse of this information is entirely the responsibility of the reader. If these issues are important to you, consult an intellectual property rights attorney.
Last edited by DickK on Fri Oct 31, 2008 3:34 pm, edited 2 times in total.
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Re: Copyrights working for (and against) you.

Postby BarbaraC » Mon Sep 01, 2008 2:25 pm

I'm glad you pointed out the fact, Dick, that just because someone has handed over the music for us to use doesn't mean we're not guilty. It's similar to knowingly accepting stolen goods.

It all boils down to our not having the right to do anything more than listen to the music on a CD and in a private setting, whether we've purchased the CD or someone else has purchased it, unless the copyright holder has granted further rights.

No matter how we try to justify using all or some of someone else's hard work, the justification is faulty.

That's been my understanding of things too--that it's difficult to bring a civil case without having registered a work with the Copyright Office.

If anyone's interested in registering work, by the way, it costs $35, and such works can be bundled under that single fee. If they couldn't be bundled in this way, professional photographers would probably go quickly broke.

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Re: Copyrights working for (and against) you.

Postby DickK » Mon Sep 01, 2008 7:26 pm

BarbaraC wrote:That's been my understanding of things too--that it's difficult to bring a civil case without having registered a work with the Copyright Office.

The sources I've read indicate that registration has no influence on your ability to bring suit. It does control your ability to recover monetary damages and attorney fees. Effectively I think that means you can freely bring suit with the intention of obtaining an injunction against the infringing party and seek recovery or destruction of the infringing work(s).

The underlying advantage in registration is that it establishes ownership so you can't get a counter-claim that you didn't produce the work at all. This is, in part, why many photographers will apply an invisible watermark to an image. As I understand it, they won't register most items at all but need a way to establish ownership that will withstand challenge. As you probably know better than I do, watermarks aren't the only way to do that but it's one, easy way.

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Re: Copyrights working for (and against) you.

Postby debngar » Tue Sep 02, 2008 7:43 am

I remember reading an article or post stating if someone steals an image and removes the watermark in attempt to cover up the theft, the photographer can be awarded more money by the court in a copyright lawsuit. I don't have any of those bookmarked for reference though.

Also if name/contact info is included in the exif part of the digital file that can help prove ownership as well.

See almost tot he bottom of screen - the post from JULY 3 2007 Watermarks Can Be Music To Your Ears regarding the fines for removing watermarks.

http://www.photoattorney.com/2007_07_01 ... chive.html
Last edited by debngar on Tue Sep 02, 2008 9:01 am, edited 1 time in total.
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Re: Copyrights working for (and against) you.

Postby BarbaraC » Tue Sep 02, 2008 7:58 am

All of this reminds me of an interesting incident that happened recently with a friend. He was contacted by a college in Scotland for permission to use a photo, but the college didn't want to pay for that use, claiming the college was a non-profit organization, and as such, should be allowed to use it for free in a brochure, which happened to be for the recruitment of students. My friend had placed an already low price on the picture, but the recruiter insisted that, being a (supposedly) non-profit "organization," there should be no cost. My friend told him the answer was no. My friend then received mail suggesting that it would be all right if the photo was cropped and therefore not really the original. My friend then proceeded to read this man the riot act, and the dealings came to an end.

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Re: Copyrights working for (and against) you.

Postby DickK » Tue Sep 02, 2008 12:42 pm

debngar wrote:...Also if name/contact info is included in the exif part of the digital file that can help prove ownership as well....

Better than nothing but, as I'm sure you know, EXIF data is easily altered or removed. There's no substitute for registration but with the hassle and cost, few are going to register everything. Oh, and it's okay to register even after the infringement is detected and in preparation for legal action. You currently won't be eligible for some damage payments but it will make it possible to claim for others that won't be available if the item is unregistered.
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Re: Copyrights working for (and against) you.

Postby BarbaraC » Tue Sep 02, 2008 1:11 pm

I'd have to dig out the magazine where I read about this, but the shortest short of it is that there's an organization separate from Creative Commons that's developed a similar system but one specifically focused on photographers. Not only can they register their photos, but there's some way of tracking the photos to find copyright infringement. They either have or will be hooking up with Creative Commons.

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Re: Copyrights working for (and against) you.

Postby DickK » Sat Sep 06, 2008 9:23 am

debngar wrote:...Also if name/contact info is included in the exif part of the digital file that can help prove ownership as well...

Reading unrelated stuff (and now I can't seem to find the darn info on the site) I ran across a comment in an article that advised putting your name/company name and the "copyright <year>" statement in the EXIF data if you don't watermark or want it visible in the image. The comment there was that it might help even if removed because it would still be in your copy. I'm a bit skeptical but it's easy so why not!

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Re: Copyrights working for (and against) you.

Postby BarbaraC » Sat Sep 06, 2008 9:33 am

One aspect of copyright infringement is the fact that photos put up on the web are too small to be used for much of anything other than putting the photo on a web site. The money made in photography is for high-quality versions of pictures.

So, if I place some sort of prize photo on my site, and it's two inches high and 72ppi, and if someone swipes it and uses it to decorate their page, have I lost anything I might have otherwise gained?

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Re: Copyrights working for (and against) you.

Postby DickK » Sat Sep 06, 2008 9:48 am

Which means you probably can't recover damages from lost sales/profit. Doesn't mean that the infringement didn't occur, just means it may not be worth the time to enforce it beyond a self-generated "cease and desist" demand. Common situation and the reason that such misuse is widespread and isn't going to stop.

Frankly, if people did the right thing and credited the original site and/or the photographer it might then be a non-issue in nearly all cases.

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Re: Copyrights working for (and against) you.

Postby BarbaraC » Sat Sep 06, 2008 10:02 am

Common situation and the reason that such misuse is widespread and isn't going to stop.

Rather like pencils being lifted from the office.

Frankly, if people did the right thing and credited the original site and/or the photographer it might then be a non-issue in nearly all cases.

Except that a huge number of people don't even know it's the right thing to do. I can't even begin to count the times I've had to explain to people that just because they see it, it doesn't mean they can have it. Then, of course, there are the rest of them who know it isn't right but go ahead and do it anyway. I have a gut feeling that a simple cease-and-desist along with a veiled threat of legal action would cure it in a lot of cases. But again, who wants to spend time trying to search out all the thieves?

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Re: Copyrights working for (and against) you.

Postby g.vandeusen » Thu Jun 25, 2009 2:15 pm

Extend the discussion to soundtracks. Now we all know that using a classic song that everyone already knows will almost always bring a more emotional connection to a slideshow. I'm speaking of a show you might play for friends, or even post on YouTube. I mean, come on, if anything, it's an advertisement for the song! Originally YouTube was stripping copyrighted songs from online slide shows, but recently I notice that they just put a drop down menu on the show with a link to buy the song legitimately from an online source. Now that's thinking out of the box and a win-win all the way around!

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Re: Copyrights working for (and against) you.

Postby BarbaraC » Thu Jun 25, 2009 3:09 pm

Your remarks about YouTube are coincidental with what I've been going through for a good part of today. I need songs that are about a minute long or can be cut to that length, and they have to be royalty free because I'll be using them with shows that promote my products. This is a case where I have absolutely no right whatsoever to use someone else's hard work to sell my own. Too bad I don't like very much of Digital Juice's music. :(

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Re: Copyrights working for (and against) you.

Postby AMD » Thu Jun 25, 2009 6:04 pm

You know, I see--quite often--our comments regarding concerns about copyright and think that most are following the "rules." Then, I watch multiple shows using obviously copyrighted music, see avatars that are noticeably copyrighted characters, and visit members' commercial Web sites with advertisements for shows where one's favorite popular music can be added to their shows for a small extra fee. I have even seen some sites (not necessarily belonging to our forum members) where even song suggestions are offered.

I enjoy making slide shows but don't think I would ever be able to make any money at it; I must already have a couple of thousand dollars of DJ royalty-free resources already and I have only been working with Producer approximately a year. I agree that most royalty-free music with its repetitive bars of often synthesized music leaves much to be desired in most cases--especially compared to our favorite popular tunes that are most certainly copyrighted. Frankly, I think the record companies could pick up a few extra bucks and help the situation if they could consider offering some type of small affordable license to individuals and small businesses. While it would be "small potatoes" to them, I am sure, I would think it might be more profitable than having nothing in place now and an infinite number violators that they don't feel they can justify chasing.

Of course, if everyone followed the "letter of the law" regarding use of photos, resources, model releases, etc., there would be few shows made and posted, I would think. It certainly gives one "cause to pause" for sure.

Ann

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