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Old February 10th, 2020, 11:37 PM
Total Noob Total Noob is offline
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Join Date: Sep 2007
Posts: 520
OK. But there's more to the law and to the ethics and values underneath copyright than you guys are apparently aware of.

Copyright protection on photos are under Federal law, as I understand it, automatic with the publishing of the photo, assuming certain announcements an disclosures are properly made with the release.

But the holder has to file for the copyright and pay a fee before he can go to court on it, and even if he does, his recovery is limited by law to provable loss if the infringement occurs 3 months or more after the original publication. In some sense, if you post 10000 pics to Insta without paying any copyright fees, and then file a claim on just the one of them that someone screenshot, then you are in some sense stealing protection for the entire batch from the government.

Aside from the fact that if you have posted any images of yourself that are not selfies, then you have stolen them yourself, which could create a "dirty hands" scenario when you come to court crying about how the one picture from that disputed and mostly illegal batch you actually took yourself was stolen. Also, lots of pictures that are taken have copyrighted backdrops or backgrounds, for example, the wallpaper in your house, the pictures on your walls, the program on your tv, and so forth. Some sculptors have filed cases for people taking pics of their statues even though they are sited in public places, arguing it is the same as taking a picture of painting in a gallery. If a plaintiff is including within his image a third party's copyrighted work, IMHO that is as lecherous as an internet surfer simply screengrabbing the plaintiff's image, and I would suggest the copyright holder has "dirty hands" when he brings his case, and really isn't too entitled to a recovery.

A "dirty hands" scenario is kinda bizarre because it means that two wrongs makes it right, ie, allows the guilty conduct, but there it is.

There are other problems too. In order to win any money for an ostensible theft, the plaintiff rights holder -- the photographer usually -- has to demonstrate reasonably foreseeable financial damage to get any money from you as defendant. The stranger the plaintiff asked to take his picture with plaintiff's phone isn't going to be able to show that, assuming the stranger is found and he files for a copyright and is made a co-plaintiff. The other thing the rights holder can ask for is disgorgement of the infringer's profit. That is going to be difficult too if the photo is only used on a non-paying blog or some such.

So this is the metaphysical no harm no foul situation. It may be illegal and immoral but if there are no penalties because no one can show an injury, how illegal and immoral is it?

It is going to be more difficult in a situation in which a photographer is paid for his time, not for his images. A non-employee photog at a party will be given an hourly rate and told to forward everything to the party host, and he will do so, not necessarily retaining his original files and not necessarily knowing how the pics are going to be used, ie, posted to the host's website where anyone can see and/or download them. Technically, this could be a work for hire -- if the photog is an employee -- and that means the rights belong to the host. But more likely he is an independent contractor, like a wedding photog, who continues to hold the rights until transferred in writing, who is technically licensing the work to the person or entity paying him. This is hard to tell and the parties themselves may not know because the evaluation is very fact sensitive and can go either way depending on precise details of the conversation leading to the engagement. I'm going to say that if the people involved don't know what rights they have or what legitimizes their activities, then it will be hard for them to claim they were ripped off, and that will very much undermine a copyright claim.

There are other problems with headshot photographers. These are independent contractors paid for their time. The deal with the actor or athlete or businesswoman that poses prolly involves a non-exclusive license that the photographed people may put on their websites that specifically invite third parties -- prospective buyers of their services -- to download for their own benefit. If you are specifically inviting people to take your material without charge, I suspect you might be putting it into the public domain.

There are also a series of "Fair Use" exceptions to copyright, among them criticism and newsworthiness. When a network shows a posted youtube as part of a news story, that is generally OK even if it is in some sense stolen because they didn't put a paid cameraman there, especially as the network makes money off the news, and sometimes something is only news because the video turns up.

Now when I said "site to site" I was thinking of physical locations. Some states have laws about how you can use images with other people in them as a matter of privacy. Some states have their own copyright laws too that are not necessarily consistent with Federal law. But generally speaking, it is hard to recover any money if the infringer isn't making money on it, and it is hard to say that is stealing.

My understanding is that songs are subject to what is called mandatory licensing. Anyone can appropriate a song (as opposed to a performance of that song) by paying a trivial fee. If someone understands what distinguishes these situations, please advise. If not, I would argue that if it is not stealing in one case to pay a trivial fee for use, then it is not in the other, and there is certainly no basis to allow the rights holder to prohibit the use of an image outright.

This is not to demean IP holders or copyright. But IMHO, the topic is way too nuanced for anyone to categorically say it is theft, ie, you are taking bread off my child's plate.

Personally, I don't think anyone wanted the pics I was interested in. The business that hired the photog is long gone. Unless the photog has the right writing currently in his possession -- which will be hard to prove -- and some way of establishing that the pics continue to have some value to him -- which will be hard to prove -- then it is problematic to suggest I was really interested in doing something wrong.
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