Summary for Photographers of IP Legal Freebies: Reply

And a few lagniappe topics:

This post is a valentine for my mom… who will be lecturing on this topic for other authors and photographers over the weekend.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

What happens to your photos once posted to Facebook? Reply

Facebook thrives because people want to connect and share photographs and other content. However, connecting and sharing content on Facebook means that Facebook makes the rules for how the content is shared, used, copied and made available to others. (Facebook also has the privilege of changing these terms of use at anytime and is known for making significant policy changes frequently. For the current Terms of Service see –>; http://www.facebook.com/legal/terms).

Here are three significant components of Facebook’s current policy concerning photographs that you post to Facebook (these are the terms as of today… and may change tomorrow):

  1. …you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. (Subject to how you set the privacy and application settings on your account).
  2. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
  3. Facebook respects the intellectual property rights of others and is committed to helping third parties protect their rights. Our Statement of Rights and Responsibilities prohibits users from posting content that violates another party’s intellectual property rights. When we receive a valid notice of IP infringement, we promptly remove or disable access to the allegedly infringing content. We also terminate the accounts of repeat infringers in appropriate circumstances.

What can happen to your photographs when you post it to Facebook under these Terms? The short answer – ALMOST ANYTHING… especially if you have left the default settings on your Facebook page to allow public access to the content you post on Facebook.  If however, someone else posts a photograph that you took and own the rights to… then you have a bit more muscle and can request that Facebook remove or disable access to the photograph by reporting a copyright infringement to Facebook.

To report a copyright infringement on Facebook go to –>; https://www.facebook.com/help/?faq=190268144407210 …you will see that there is an online form as well as a contact email [ip@fb.com] and mailing address.

See also: http://www.facebook.com/legal/terms, https://www.facebook.com/help/?faq=190268144407210; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

Copyright Law – Using photos of other people on your website, blog or publications Reply

Using recognizable pictures of other people on your website, blog or publication of any kind requires their express permission (unless they are a celebrity or it is ‘newsworthy’ photo).  How do you do this?  Ask them for permission AND have them sign a simple agreement giving you permission to use their image.  Specify in the agreement the ways, websites, publications etc where the photo will be used.

Here are a few myths and truths on this topic: 

MYTH:  Just because you took a photo of the bride at her wedding gives you permission to use it on your website

MYTH:  Having permission to use a portrait in a book automatically gives you permission to use it in a film

MYTH:  It’s okay to use a portrait you took of someone in a public place without permission

TRUTH:  Virtually any photo of a celebrity is considered newsworthy and okay to use

Cover your bases and get permission to use the photos you take of other people at the time you take the picture.  (These types of agreements are called a Photo Release or Model Release).

See –> http://wp.me/p10nNq-J for more information on Photo releases and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

Interested in PINTEREST.COM’s growth and use of photographs posted to the site 3

Have you heard the buzz about PINTEREST.COM? Amazingly, PINTEREST is demonstrating record-breaking growth and is now the fastest growing site to reach 10 million users… and it focuses on sharing photographs and visuals.

This obviously raises questions on what you are ‘agreeing to’ when you post a photograph or visual image on the site. Like all large social media websites, PINTEREST, outlines these details in their terms of use.

The bottom line: If you post a photograph to PINTEREST you are virtually giving your image away. By posting content on PINTEREST you grant the site a:

“worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.” http://pinterest.com/about/terms/

(This means that the website can use your image for virtually any, conceivable purpose…. including granting their other users permission to use and exploit your work on the ‘Site, Application, or Services.’)

Three things to watch out for:

  • Post only your own original work or work you are authorized to distribute and license (or the content can be removed due to copyright infringement if the actual owner requests PINTEREST to do so)
  • Post only work that you want to have FREELY USED by and potentially SOLD to others
  • Post only work that you have permission to use in this way

For example, a bride may not have permission from the professional photographer who took the photo to share it in this way and conversely the photographer may or may not have permission from a bride to share her portraits in this way. (Under these terms agreed to when posting a photograph to this site… any picture posted could potentially be sold to another party and end up in an advertisement on the other side of the world without needing permission from or paying $ to the person who posted it on the site. This could get complicated…)

P.S. Keep in mind that the Terms of Use often change frequently for most social media websites… so it’s a good idea to recheck them often.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

See also:http://pinterest.com/about/copyright/ ; http://rawsocialmedia.wordpress.com/2012/03/19/the-power-of-pinterest-a-great-infographic-guide-to-pintrest-with-some-very-persuasive-data/; http://www.bloomberg.com/video/88836636/@iplegalfreebies and www.kasterlegal.com.

Copyright Law: Using someone else’s photograph in your blog, website or promo materials 2

If you have reached this posting because you Googled, “is it free to use photographs taken from another person’s website” ….the answer is probably NO… and this post is dedicated to you.

Just because it is EASY to access and copy photographs via the internet doesn’t mean that the photographs are free for the taking.  Copying a photograph from another website or online article or blog can easily violate another person’s copyright in the image.

Did you know that every original work (including photographs, designs, poetry, text, music… etc) that is created in the US today, is instantly vested with copyright as soon as it is written down, printed… or ‘fixed in any tangible form’?  It’s true.  Copyright is instantly vested in fixed, original works and this means that the owner has the right to monetize the work. (ie charge a fee to license or sell a photograph).

As you might guess, the price to license a photograph depends on how you plan to use the image and for how long.  For example to license a photograph from Getty Images for 1 month, to use on a social media site costs approximately $160… and $360 for 3 months.  (the price varies by image etc).  Or hire a photographer to take photographs for you!  Or take them yourself.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.gettyimages.com

Copying another artist’s work into a New Medium can violate copyright 2

The idea behind a piece of artwork is not protected by copyright.  However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work.  What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit.  For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation.  However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph.  Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.

Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:

  • Photographing a sculpture… for use on a postage stamp
  • Making a painting of another artist’s photograph… to display in a gallery show
  • Making a campaign poster out of another artist’s photograph… to sell and raise money
  • Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
  • Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J  rendition… to display and sell

Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling.  However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.

The solution is to get a license from the original artist to make a derivative work.  (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com.

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian; @iplegalfreebies and www.kasterlegal.com.

Sending a Cease and Desist Letter (stop monkeying around) 1

Sending a cease and desist letter is a common way to notify someone that they are using your copyright protected material without your permission and to request that they remove the infringing use and/or pay up.

The owner of the copyright protected material (ie the author, photographer or commissioner of the original work) has the authority to issue a cease and desist letter.  If the infringing use is on a social media website or popular internet website, look to the TERMS or TERMS OF USE agreement posted to the website (usually a clickable at the bottom of the page) for step by step instructions on how to draft your cease and desist letter.  Generally, the ‘Terms of Use’ on a reputable website provide a clear outline of the information that needs to be included in your letter.   Click on the ‘Terms of Use’; scroll down to the ‘Protecting Copyright and Intellectual Property’ section; use the language provided; and give the requested information to the provided contact.

A cease and desist letter is only effective if it is sent by the owner of the work.  A funny scenario surfaced recently, when a news agency sent a cease and desist letter requesting that a photograph taken by a monkey be removed from a website.   But hold on… who owns the copyright in a monkey’s self portrait anyway?!?  Evidently, a monkey in a national park in Indonesia picked up a photographer’s camera and snapped a few pictures.  (One of them is a hilarious self portrait of the monkey. Take a look  at –>  http://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml.)

Since, the news agency didn’t employ the monkey or own the monkey, nor did it license the monkey’s work… the cease and desist letter that it sent… doesn’t have much oomph.

For more info on what to do if you receive a cease and desist letter, see –> http://wp.me/p10nNq-1B 

BY: Vanessa Kaster, Esq.

vk@kasterlegal.com and www.kasterlegal.com

When does Copyright start? Copyright protection starts automatically 2

When does copyright protection start?  It starts automatically, as soon as you create an original work.  It’s like having a baby (ie your creative, brain child)… as soon as it’s in this world it’s yours and it’s covered by copyright protection.   You don’t have to DO anything… other than create it and put it in a fixed and tangible form.

What does this mean?  As soon as you have written a song down; typed out a manuscript; applied pen or paint to paper… copyright protection starts automatically.

Using the copyright symbol © and registering your copyright with the US Copyright Office are two extra steps that give you more rights in your copyrighted work if and when you want to sell it, transfer it or protect it from being abused, misused or copied by other folks.

There is 99.999% chance that you have created original works that are already covered by copyright protection… even if you didn’t know it.

For more info SEE:

–>    How and why to use the © copyright symbol?: http://t.co/iBjePPU

–>    Copyright registration only costs $35: http://t.co/ykPmZ3T

 

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

ORIGINALITY is Key To Copyright Reply

Originality is key to securing copyright protection over a work.  This is true for literary works, sculptures, paintings, music and all varieties of creative output.  While this may seem obvious, in truth it’s a gray area.  Here are a few examples:

  • TELEPHONE DIRECTORY, WHITE PAGES:  not original; therefore, no copyright protection.
  • PHOTOGRAPH OF AN ARMFUL OF PUPPIES: is original; therefore, making a sculpture that is a deliberate copy of the photograph is a copyright violation.
  • A PAINTING: is original; however, making an engraving of the painting is not a copyright violation because of the engravers artistic use of light, shade, lines and dots.

MARDI GRAS INDIAN COSTUMES: possibly original works of sculpture.  At present the Mardi Gras Indians are seeking copyright projection for their elaborate costumes as works of sculpture.

What does this mean?  For the Mardi Gras Indians it will mean that photo releases, licenses and fees will need to be paid to the Indian sculptors before others copy, reproduce and sell their images as photographs, fine art, in calendars or on t-shirts.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

for info on copyright registration –> http://t.co/ynaHCbX; @iplegalfreebies and www.kasterlegal.com.