[Alex00]

Giving someone credit for their pictures has nothing to do with copyright infringement. It's a professional courtesy, nothing else. The simple fact is that if you post a picture that you do not own the copyright to, or have a license to use, you are infringing on copyright. Giving credit will not protect you if the copyright owner decides to pursue action.

of course it does. Your giving credit to the author which makes it legal. If the author doesn't want you to use his photos he should be post a note on his site prohibiting the use of his photos without permission. This is how the web works.

[FHPhotographer]

Copyright is limited, in part, by the Fair Use sections of the copyright law (17, U.S., 107-118 ) and Fair Use has a critical component generally referred to as "transformativeness" that courts may apply to determine if copyright has been violated. Briefly, for our purposes on a photography site, any image that is transformed in such a way to allow viewers to apply new/different aesthetic or social standards, may be fair use and protected from copyright violation. The problem is, how much change is enough change for specific court, in any specific jurisdiction? The Associated Press suit against Shepard Fairey over his use of an AP photograph for his Obama "Hope"poster is wending its way through the courts, and the eventual decision might have given us some clearer guidelines, if Fairey wasn't now facing possible criminal charges for knowingly submitting false images and deleting others in an attempt to hide his use of the AP photograph in the civil case. They're working it out, maybe, as we read/write this and we may/may not have an answer this year on either/both/neither of those cases. This is why I take B&W photographs, color is like the law, it just complicates my world,
Brian

[GoremanX]

Giving someone credit for their pictures has nothing to do with copyright infringement. It's a professional courtesy, nothing else. The simple fact is that if you post a picture that you do not own the copyright to, or have a license to use, you are infringing on copyright. Giving credit will not protect you if the copyright owner decides to pursue action.

I think that's really the gist of this thread. A professional photographer is essentially using Copyright as a tool to make a living. Copyright allows him to do this, otherwise he'd have no business model. So it's in his best interest to understand it completely, and not make general assumptions based on what he may have heard in the past.

To be honest, I don't know where attribution fits into all of this. I'm pretty sure that attribution alone is not enough to allow you to do whatever you want with a picture. The actual use of the picture is what matters, and that's why the courts have tests to determine if a particular use was legal or not.

[alohadave]

of course it does. Your giving credit to the author which makes it legal. If the author doesn't want you to use his photos he should be post a note on his site prohibiting the use of his photos without permission. This is how the web works.

That's not how copyright works. Unless the owner of the copyright gives you permission to use a picture, when you use the picture, you are violating copyright.

Hotlinking, inlining and other standard web uses of pictures is where it gets murky from a strictly legal standpoint. Typically, it is an accepted part of using the web. Realistically, unless you are profiting from, or representing someone else's work as your own, it's not usually a problem (though the copyright owner can easily force the removal by filing a DMCA (in the US) claim).

[indytax]

There are several misconceptions about copyright law--at least under U.S. law--being spread in this thread, especially in the original post, and if I have time soon I'll try to address them in a longer post. But for now I'll just make a couple of points.

First, this idea that the fair use doctrine gives non-copyright holders "rights" is mistaken. It's true that U.S. law shelters persons from liability who have fairly used (within the legal definition) a copyrighted work without the owner's permission, but that doesn't mean that everyone has an unmitigated "right" to do so. Perhaps it's a fine line that courts and lawyers only care about, but I think it matters and misunderstanding that leads to even more misconceptions about copyright law. More importantly to this thread, non-copyright holders do not have a right to obtain access to copyrighted works (through right-click or otherwise) so that they can fairly use the work. No copyright holder has to provide access to any of his/her works for the use (fair or otherwise) of others and they don't give up any of their legal right to restrict access just because they chose to publish it somewhere. While the OP might find some copyright holders' efforts to hamper easy access to images on the internet to be insulting to the concept of fair use, I think that it's equally insulting to the copyright holder for others (who aren't willing to negotiate an appropriate license) to criticize legitimate and legal efforts to protect their work from infringement or outright theft. If you're insulted by the prevention of right-click (or DRM or whatever), then exercise your economic freedom to patronize those photographers who don't.

Also, private use of another person's copyrighted works within a home isn't fair use. I have no idea where the OP got this idea, but it's well established to the contrary (at least in U.S. law). Otherwise, those I could freely copy the proofs of the portraits I had taken of my son the other day and display them around my home for my "personal use" (short answer: I can't without committing infringement). Bottom line: personal use does not equal fair use.

[FHPhotographer]

...I think that it's equally insulting to the copyright holder for others (who aren't willing to negotiate an appropriate license) to criticize legitimate and legal efforts to protect their work from infringement or outright theft.

IMO we need to ratchet back use of terms like "outright theft." Theft is criminal law, copyright infringement is civil law. We can't have productive give n' take when we're using terms like that. Let's keep it civil
Brian

[FHPhotographer]

Goreman is spot on here. Copyright is automatic at the "creation" of the image and belongs to the photographer (unless acting as an agent of another, say a magazine etc). S/he owns it and all use without permission is presumed to be copyright infringement. It's then up to the acting party to defend that action in court with tests such as fair use. Use and only use is the issue,
Brian

[FullertonImages]

There are several misconceptions about copyright law--at least under U.S. law--being spread in this thread, especially in the original post, and if I have time soon I'll try to address them in a longer post. But for now I'll just make a couple of points.

First, this idea that the fair use doctrine gives non-copyright holders "rights" is mistaken. It's true that U.S. law shelters persons from liability who have fairly used (within the legal definition) a copyrighted work without the owner's permission, but that doesn't mean that everyone has an unmitigated "right" to do so. Perhaps it's a fine line that courts and lawyers only care about, but I think it matters and misunderstanding that leads to even more misconceptions about copyright law. More importantly to this thread, non-copyright holders do not have a right to obtain access to copyrighted works (through right-click or otherwise) so that they can fairly use the work. No copyright holder has to provide access to any of his/her works for the use (fair or otherwise) of others and they don't give up any of their legal right to restrict access just because they chose to publish it somewhere. While the OP might find some copyright holders' efforts to hamper easy access to images on the internet to be insulting to the concept of fair use, I think that it's equally insulting to the copyright holder for others (who aren't willing to negotiate an appropriate license) to criticize legitimate and legal efforts to protect their work from infringement or outright theft. If you're insulted by the prevention of right-click (or DRM or whatever), then exercise your economic freedom to patronize those photographers who don't.

Also, private use of another person's copyrighted works within a home isn't fair use. I have no idea where the OP got this idea, but it's well established to the contrary (at least in U.S. law). Otherwise, those I could freely copy the proofs of the portraits I had taken of my son the other day and display them around my home for my "personal use" (short answer: I can't without committing infringement). Bottom line: personal use does not equal fair use.

Thank you.

[FullertonImages]

Goreman is spot on here. Copyright is automatic at the "creation" of the image and belongs to the photographer (unless acting as an agent of another, say a magazine etc). S/he owns it and all use without permission is presumed to be copyright infringement. It's then up to the acting party to defend that action in court with tests such as fair use. Use and only use is the issue,
Brian

Do you mean that someone else is spot on? Because as far as I can tel, that is not remotely what Goreman has been saying.

The bottom line is that , fair use or not, one cannot just take what they want, without the copyright holders permission, under the claim that they are going to use it for fair use.

I would also make the argument that an online portfolio in no way constitutes published work, sop it wouldn't even fall into the Fair Use category. Dictionary definition of publish is "to issue (printed or otherwise reproduced textual or graphic material, computer software, etc.) for sale or distribution to the public." Nothing on my website has been put there for sale of distribution. It is a viewing gallery. Despite the fact that it is visible to the public, it has neither been sold or distributed to them.

[GoremanX]

Also, private use of another person's copyrighted works within a home isn't fair use. I have no idea where the OP got this idea, but it's well established to the contrary (at least in U.S. law). Otherwise, those I could freely copy the proofs of the portraits I had taken of my son the other day and display them around my home for my "personal use" (short answer: I can't without committing infringement). Bottom line: personal use does not equal fair use.

My apologies for the misunderstanding, I never intended to mean that what you do in the privacy of your own home has anything to do with "Fair Use". I used the words "Further..." at the beginning of a new paragraph to denote that it was an additional thing I can do with published copyrighted work. I suppose I could have made that part more clear, I can see how it would be mistaken as such since it was thrown into the rest of a post about Copyright law.

(edit: I'll clarify that in my original post)

While I agree that an author has every right to protect his copyrighted work in whatever way he wants, I disagree that Fair Use is not a "right". There's a long legal history of artists who have used other people's copyrighted material in their own professional works, were taken to court for it, and won. They asserted their right to use that copyrighted work in a manner that is consistent with the Fair Use doctrine. These artists were not reporters, they were not scientists, they were not teachers. They were just regular people who wanted to make a social statement.

[GoremanX]

Do you mean that someone else is spot on? Because as far as I can tel, that is not remotely what Goreman has been saying.

I think he's agreeing about my statement that attribution isn't the issue, but rather the way the copyrighted work was used.

The bottom line is that , fair use or not, one cannot just take what they want, without the copyright holders permission, under the claim that they are going to use it for fair use.

If it's publicly published for mass consumption, yes I can.

I would also make the argument that an online portfolio in no way constitutes published work, sop it wouldn't even fall into the Fair Use category.

That is incorrect. Again, if it's published for public consumption in any way, it's published. If it was a password-protected site that only specific people have access to, then it's not "published". That's a private portfolio. In that case, you can give someone a license to view your web site, and that license can have restrictions. If it can be viewed by the general public without restriction, it's published. This has been determined in courts many times. Putting a notice of restrictions on your site is not sufficient.

Nothing on my website has been put there for sale of distribution. It is a viewing gallery. Despite the fact that it is visible to the public, it has neither been sold or distributed to them.

According to the law, the server is distributing your web site to my computer. I receive a copy of (part of) your web site in my browser's cache and in my computer's memory when I view it. That's distribution. Again, this has already been established in courts years ago.

[GoremanX]

First, this idea that the fair use doctrine gives non-copyright holders "rights" is mistaken.

I'll grant you that the point is debatable, however the following statement (again, straight from Wikipedia) reinforces to me the idea that Fair use is a "right":

'Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … is not an infringement of copyright."'

Therefore, I don't need anyone's permission to use someone else's published copyrighted work, as long as I'm using it within the bounds of Fair Use. Figuring out what constitutes "Fair Use" is up to the courts if the copyright holder wants to make a claim.

[George Lama]

A few years ago I did a calendar shoot for a local newspaper. In thanks, they said they would make a free full back-of-the-calendar thank you ad. Since my wife is a pro-graphic designer we offered to make it. They said "no-no-no, we'll do it" Three months later we get copies of the calendar and surprise! - they had taken photos from my website to make the ad.

The publisher of the paper had the same delusion - "oh, but they're on the web so we just used them." Her ignorance of copyright law blew my mind. I countered asking her how fast would she sue me if I took some copy or photos from her website and used them on one of my advertisements. To make it worse, she admitted her design team often went out on the web to look for photos and it had never been a problem. Beyond that, I held the model releases, not the publication, so legally I could have forced them to pull the back page on all calendars (the assumption being that the subjects in those photos wouldn't want to be on this calendar - even if they agreed to be on my website).

Obviously this was a commercial situation, not personal, but the same rules can apply for so-called personal use, particularly when personal use means posting it on the web for everyone to see.

Fair use as far as the copyright laws of the US can be somewhat confusing but some things are made fairly clear by the US Copyright Office. To put it very simply:

* Fair use can be a gray area except in some very limited circumstances.
* When in doubt, consult an attorney.
* To be safe ask for permission.

Most times, asking for permission is all it takes.


U.S. Copyright Office - Fair Use

[GoremanX]

Obviously this was a commercial situation, not personal, but the same rules can apply for so-called personal use, particularly when personal use means posting it on the web for everyone to see.

But that's not personal use. Once you place it for all to see, it's no longer personal, that's just blatant Copyright violation. I'm not implying that an individual has more rights than a company. The copyright act applies to any entity, whether an individual or a corporation.

* To be safe ask for permission.

Most times, asking for permission is all it takes.

That's excellent common sense that I wish more people had. However, if I asked you for permission to use the subject of your work as an example for a negative commentary, you probably wouldn't consent. But I'd have every right to do so even without your consent.

Please note, I keep using negative examples (like "negative commentary" above), but that doesn't have to be the case. I don't cherish my right to bitch about other people's stuff I hold dear my right to use someone else's contribution to our culture as a tool to enrich that culture. That may sound like an overly noble ideal, but that's really how I see it. When an artist publishes something, he's contributing to our culture. It's only fair that anyone should be able to comment on that contribution (or teach it, or learn from it, etc.), and that's exactly how the Fair Use doctrine came to be in the first place.

[George Lama]

But this is where it gets hairy when you're talking about people photography - if I have images of someone's portrait session on my site, I have a release that says I am authorized to use this photo on my website, advertising, competition - whatever the agreement with the client states. Some say yes to website, no to advertising, whatever floats their boat.

If that image is taken by a third party and used anywhere else for any reason whatsoever, my client and I as the holder of the release have every right to request it be taken down, regardless of its use, based on that release. Although the law allows the use of images for educational use, it does not preclude the rights of the subject of that photograph. Yes - tough to prove, but some clients are adamant and can involve attorneys fairly quickly (hence why I flipped out at the paper when they took photos from my site)

Only when taken for editorial/journalistic purposes does a release become unnecessary and that person's photo seems to become fair game. Well - fair game as far as Getty, AP, and Reuters would allow it to become without them sending their army of lawyers after you