Uploading Copyrighted Images
November 25th, 2011
by Gwyn Headley
Managing Director
Yesterday we sold an image for a large amount of money, bought off the site by credit card.
As always, we were delighted — until we saw the image. It was a very jolly and colourful cartoon in a style reminiscent of the 1970s. I thought Blimey, this photographer is talented! He can’t half draw!
And then a little shadow of suspicion crossed my mind. This cartoon looked like the work of a commercial artist from the 70s, not a talented photographer from the 20 teens. We looked at the photographer’s portfolio. As well as his photographs there were several images which demonstrated a bewildering variety of artistic talent, from etchings to cartoons. In a number of different styles.
Now fotoLibra prides itself on being an open access picture library. Anyone can upload anything as long as it passes our technical Submission Guidelines (and isn’t porn, of course) and the photographer adheres to our terms and conditions.
One paragraph reads as follows: (The Member warrants that) it owns the Intellectual Property Rights in the Images and licencing of such rights shall not infringe any third party’s right to privacy.
In our expensive lawyerspeak, this means fotoLibra members are only allowed to upload images which are their copyright, or in the public domain. In the UK, copyright persists for 70 years after the death of the creator of the work. So the work of artists who died before November 24th 1941 can be sold on fotoLibra, unless their estates have extended the copyright.
We go on to say that if someone sues, we’ll dump them faster than Gaddafi shot up a storm drain, or in more lawyerspeak: fotoLibra shall in no way be liable for any breach by the Member of the warranties and the Member hereby indemnifies fotoLibra from and against any and all claims, liabilities, damages, actions, proceedings (including reasonable legal fees and expenses) that may be suffered or incurred by fotoLibra which arise out of or in connection with such a breach.
Our chastened member has removed the offending images. In turn we have grovelled in front of the innocent purchaser, rent our garments and refunded his money. He has been more than magnanimous in his understanding, and we hope he will be buying a different (and even more legal) image from us.
How wonderful some people are.
Please please PLEASE do not upload images for which you do not hold the copyright. And immediately delete from your portfolio any such images. We’ll delete them when we find them, as well.
But it’s YOUR responsibility.
Gwyn – there are a number of “legal bombs” just waiting to go off on the Fotolibra site in terms of flagrant copyright breaches.
I could point to several just from memory which I’ve seen uploaded to picture calls and which you really need to clamp down on.
To give you just one example – one picture call asked for a photo of a famous living author.
Someone simply photographed his pic on a book cover of his and uploaded it – and it’s STILL ON THE SITE.
I could point to many more.
Come on guys – no-one wants a big lawsuit against Fotolibra.
Gary — please email me the FOT number. We will get it removed.
Have emailed you Gwyn.
Very interesting thanks for posting to us.
Gwyn
I worry about some of my images showing Graffiti street art. Jowever, I do always shoot wide to ensure that the context/location is clear.
Advice is always welcome.
Keith Erskine
You can photograph works of art in a public place. Don’t make them RF images. They can be used editorially, but any image used in advertising must have full clearance — model, property and any other relevant clearances.
Well, the copyright issue is a pain. I’m sick to death of seeing my images on the web. Lifted by a…….s who take no notice of my copyright. They lift thumbnails from wherever and plonk them on their sites without so much as a “by your leave” OK, its a thumbnail, but it is still my image and should not be used anywhere without my written permission.
One cheeky bastard lifted my whole Flickr collection of 200 and plonked it on his site. It seems copyright for images is almost pointless. Anyway I deleted the Flickr stuff since it was always a prime target. But, the web giants are as bad as anyone for lifting my stuff. How much to sue them?
That’s the way of the web, Dave. Many people expect stuff on the web to be free. All images uploaded to fotoLibra have metadata embedded in the file, and all that can be seen online are lo-res Thumbnails and Preview images, the latter with a visible watermark. Drag them off the screen, and you drag the metadata with them.
Of course some people don’t care about breaking the law or being exposed as thieves. What I can’t understand is why anyone else would want to do business with them.
It’s very difficult to control what people upload, you’re trusting your users to have integrity which is a good thing, and it only takes a few bad apples to taint the basket which is a bad thing. It’s not easy, and that’s the way people are, and how the internet works, it’s not black and white, or even grey-scale, it’s full colour 🙂
I wish fotoLibra every success in maintaining a solid stock of interesting work for publishers to choose from.
“So the work of artists who died before November 24th 1941 can be sold on fotoLibra, unless their estates have extended the copyright.”
How are such extensions made? Is there a public record of copyright extensions? How would one know? Are photographs made by deceased employees, scientists, and other non-artists similarly unprotected?
Alas, I’m a picture librarian, not a copyright lawyer, and my guess is as good as yours. The first thing I would do is google the artist.
If you take a photograph for work purposes in the course of your employment, I understand the copyright in the image belongs to your employer.
Tut tut Gwyn.
This statement is incorrect: “The work of artists who died before November 24th 1941 can be sold on fotoLibra, unless their estates have extended the copyright.”
It should read: “So the work of artists who died before January 1 1941 can be sold on fotoLibra, unless their estates have extended the copyright.”
Because, at the risk of being pedantic, in the UK copyright duration is 70 years FROM THE END OF THE CALENDAR YEAR in which the last remaining author of the work dies.
Gary.
Good point Gary.
But I still don’t follow how an “estate” can prevent copies being made 71 years after the photographer’s death.
Any clues? A legal injunction against all and sundry?
Douglas
Hi Douglas.
Generally speaking I don’t think an estate can.
There is some case law I could bore you with as relates to copying a modern reproduction of an old out of copyright work.
Search for Bridgeman Art Library v. Corel Corp – makes an interesting read.
Personally, I buy a lot of original 19th century books from a specialist vintage bookshop near my home and sometimes photograph old images and photos and license them as stock.
I always research the origin of the images to ensure copyright has expired.
Gary.
The only case I know of an extended copyright is “Peter Pan” by J. M. Barrie who bequeathed the royalties from this book to Great Ormond Street Hospital, and this continues after the 50 year deadline (as it was in those days).
I agree with others though, you must own the copyright of any image you upload. At best, the real author can claim your fee, at worst, they could bankrupt you with damages and legal fees.
I recently had this correspondence with someone on one of the other sites I work with.
Me…Not sure you should be offering this image for sale.
Since your profile says that you are 19 & Robert frost died in 1963 this must be a photo of someone elses work, or am I missing something?
Poster…I thought I had clicked no sale, I’ll fix that right away.
It was clearly a photo taken of a photo on a wall, you could even see bits of the frame at the side, and yet he was happily accepting plaudits from people telling him what a great picture he’d taken, and what a great job he’d done of giving it an “old picture” look! He still hasn’t changed the description to make it clear it’s not him who took it. On this site they have groups, and the image has been featured in 1 & even been selected as male portrait of the week in another…
A very interesting subject. I read recently somewhere that there will soon be a register for intellectual property including amateur and pro photographs and anything not registered will be deemed as public domain. It’s all part of a shake up in the law in this area. I wonder if a system such as this will help or hinder?
The area of copyright seems to be a very confusing and often murky area.
I am aware of the 70 year rule regarding copyrighted work but does this cover reproductions of ‘public domain’ works.
For example is an illustration or photo of a public domain piece of work in itself copyrighted. I’m assuming it is unless of course the reproduction author is also deceased by over 70 years.
As mentioned earlier – do a search for Bridgeman Art Library v. Corel Corp and have a read. That case is concerned with exactly this kind of issue.
Gary.
My blog is now dedicated to catching infringers (Google Sheila Smart blog) with lots of hints on how to catch the b@#$%^&ds! My images have been found illegally on fridge magnets, iPhones, a front cover of UK police department brochure on how to stop bicycle theft, literally thousands of blogs, and even more websites, both commercial and otherwise. When I sent a “please explain” to a US company selling portable clothes racks (they had an image of mine of a rack of colourful second hand clothes nicked off my website), their response was that they were not infringing my copyright as they had not claimed the image as theirs! According to them, I could not license this image as it was considered “product” (no trade names were visible by the way – it was just a rack of clothes from the side view). They also went on to say that if I had taken an image of the Statue of Liberty, I could not sell that either as I would have to obtain permission from the State of New York. My response was:
“Darn. That is where I have been going wrong all these years. I am so glad you, a purveyor of coat racks, has enlightened me, a professional stock photographer of many years, a Getty Images contributor and other stock libraries, of the laws of copyright. I will be in your debt and will write off to Getty this minute and advise them that half of their stock library of images cannot be used. I will give them your name so they may thank you personally, especially regarding images of the Statue of Liberty”. I then gave them a link to the search function of Getty where they had over 1,800 images of the Statue of Liberty. Needless to say, I did not get a response!
Many thanks for your link Sheila. I’ve installed the firefox add on you mention & after ony 3 searches I found someone using one of my images to back up their advert for a rental home. At least they didn’t claim it as their own & had a link on it back to the site it’s for sale on.
Wondering what else will turn up when I have the time!
Dave
Also found a blog by a former book editor who used one of my graffiti images without any attribution at all.
I fear our Dear Leader is being just a tad simplistic with what is a very complex subject.
Firstly, whose copyright law are we talking about? Assuming it is British Law then according to my notes at the time the new law with the 70 year rule came in on November 28th 1969. Before then the rule was that the Copyright of an image belonged to the author (or the company hiring him) or the estates thereof for 50 years after his death or 50 years after the date of first publication, whichever was the earlier. Apart from the obvious, “publication” could be selling copies, giving copies away, giving a slide or magic lantern show containing the image, inclusion in a movie or TV programme, displaying the image in a place likely to be visited by persons other than the copyright holder or simply handing the copy around a group of interested people (for instance at a lecture or family gathering). When the new law came in it was very hard to see how the 70 year rule could be made retrospective as images published between 50 and 70 years previously were already in the public domain.
To complicate the issue further many companies, in the interests of publicity released images into the public domain.
Other countries have different copyright laws, while others do not recognise copyright at all.
It’s all akin to a minefield in an area of quicksand patrolled by flying predators!
This has been a problem on another site with an artist claiming to have created a piece of art when it was made by another. Very difficult to police.
Basically it is down to the honesty of the uploader.
However, in defence of the example Gary has given, maybe the person does not understand copyright (who does fully) and it might be helpful in the call briefs to add something about copyright as a standard sentence.
If a person have no copyright of an image, he/she has no right to sell that. Its a crime like theft. One must not forget – he/she can make fool some people for some time but not all people for all time.
A tricky one this. So copyright remains with the photographer until 70 years after his death? You recently sold an image of women despatch riders during World War 11. Let us say that the picture was taken in 1942, or 69 years ago. Copyright still with the original photographer? Further did he ever have copyright in the first place without Model Releases?
I have had a quick review of my own portfolio and deleted a few from World War 11 except for one of an infantryman running into battle alongside a tank. The photographer certainly did not get a model release from my uncle (!)
I have also deleted an image from a children’s book published 76 years ago in case the artist lived longer than 6 years after publication.
If a bookseller publishes pictures of books he has for sale, should he pay royalties to the photographer whose image is on the cover?
With respect, it’s not tricky.
If the picture was taken in 1942 and the photographer died in that same year then the copyright passes to his heir (s) upon his death (assuming the copyright was not owned by someone who employed him to take the picture) and would remain with the heir (s) until January 1 2013.
If the photographer died in a later year then copyright rests with the heirs for 70 years from the end of the calendar year in which he died.
Model releases have nothing to do with copyright.
Also – if you have uploaded a world war 2 photo of your uncle as a infantryman running alongside a tank (if I understand you correctly) you should delete it unless the photographer who took it (or his heirs) have given you the copyright or unless the copyright has expired under the 70 year rule.
The fact it features your uncle gives you no copyright claim whatsoever.
Thanks Gary. Ok it is now deleted. I was only joking about the “uncle”. The point I was trying to make or seeking guidance on was does a photographer have copyright if he photographs a person without permission? If he does then what is the point of getting a model release in the first place?
Hi Len.
Yes, the photographer does have copyright if he photographs a person without permission.
In the UK (laws may vary elsewhere) a photographer or publication does not need a model release to then publish that image in an editorial context (provided the image was taken in a public place).
For example – if I take a photo of someone throwing snowballs in the street and wire it to a UK newspaper they can run it to illustrate a “Snowy weather in Britain” type of story (the British press are obsessed with weather and are always full of such pics when we get a bit of snow). I and the paper don’t need the person in the image to give permission.
You do however need the person’s permission (ie a model release) to use the image for non-editorial purposes such as advertising.
For example if they happened to be wearing a distinctive branded furry jacket then the makers of that jacket can’t just use that image for an advert saying “Hey wow look at our lovely warm clothes!”
That’s, broadly speaking, the issue regarding the model release – it adds value to your photo because it can be used for many more things and advertising uses attract much higher fees.
A friend of mine is a pap photographer in LA and over the years has sold a lot of photos to the press of Hollywood stars popping in and out of a famous coffee chain.
At one stage the company concerned was contemplating using 12 of those pics for a calendar -one star clutching their drink each month.
Ultimately, and unsurprisingly, the idea was vetoed on the grounds the celebrities would probably kick up a legal fuss as they would claim they were effectively being used to endorse a product without their permission.
There are a lot of grey areas as to when a model release becomes necessary – and the internet is awash with discussions about it, some informative, much of it nonsense, but you get the drift of the issue.
Gary.
Greetings yes this is very clear and fair ,if your organisation was going to foot the bill for photographers litigation ,you could not afford to pay photographers.
Can I bring up a point I emailed about last week namely That I have a number of pictures of my daughter as a baby / child she is happy for me to send them is that sufficient or is a model realease required I would assume blanket release if possible
regards
Chris Osborne
An owners’ lifetime plus 50 years now 75 years, where is it going to end?
I’m retired and hope to live to a ripe old age, then another 70 years before it all ends, we should be reducing it not extending. Why should the Queen or anyone else hold a copyright to a one off photograph, taken in the 1850’s and still charge a copyright fee? Why should New Pathe News, have 70 years copyright? None can claim intellectual rights in creating them.
As to your own images watermark them and use: http://www.digimarc.com/DigimarcForImages/
There must be lot more examples.
They cannot per se claim copyright on an image in which the original copyright has long expired.
What they are effectively claiming is copyright on their copy of that original item.
Whether they can do that is arguable in law – see the Bridgeman Art Library case I have already referred to.
As to why they should be able to stop people simply ripping off their copy – there are perfectly legitimate ethical reasons.
Some organisations invest considerable time and money in restoring, preserving, tracking down old pictures and footage. Why should they not then make money off it?
Making old out of copyright images digitally available can be expensive – if you, for the sake of example, spent £100 on a vintage book published in 1800 and then photographed some old illustrations in it and made them available for sale you would expect some recompense. Else why bother?
rule of the thumb ,”if it is displayed out on the street ,it is public domain.”
Copyright and invasion of privacy vary greatly from country to country.It is always wise to be extra cautious
Havn’t sent any but info was useful.
I had uploaded an image from a Children’s book published in 1945 and was alerted by Gwyn querying whether or not I had copyright. In view of the various comments on this blog I decided to delete it while I did some investigating with the publishers The Oxford Univerity Press. Ihave now had a very nice reply from them thanking me for checking whether or not the image was now in the public domain. Unfortunately it is not. Although the book was published in 1945, the author did not die until 1984 so copyright remains with his estate until 2054. They also told me that the book in question was re-published
I had uploaded an image from a Children’s book published in 1945 and was alerted by Gwyn querying whether or not I had copyright. In view of the various comments on this blog I decided to delete it while I did some investigating with the publishers The Oxford Univerity Press. I have now had a very nice reply from them thanking me for checking whether or not the image was now in the public domain. Unfortunately it is not. Although the book was published in 1945, the author did not die until 1984 so copyright remains with his estate until 2054. They also told me that the book in question was re-published in 2007 to the benefit of the author’s estate.
OMG. This is an image of Einstein I had in a draw, as if.