Our piece on allowing your photos to be scanned by photobuyers caused concern from both sides of the table.
Mary Goljenboom is the director of picture research at Ferret Research. She voiced concern about the possible misuse of copyright by ill-informed or amateur photobuyers.
Here's our interview.
PSN: Image databases give an advantage to the researcher. How was it done in the past?
MG: Hardworking, competent photo buyers have always tried to keep databases of
images. Mostly they were stored in our visual memories, but we also tabbed
catalogues, books and magazines with POST-IT notes, put photocopies and
promotional pieces in files, whatever we could do to allow us to get the
image we need under the pressure of an imminent deadline. Image databases
are an extension of that, as were CDs before them.
PSN: Are all photo researchers knowledgeable on the subject of copyright?
MG: To competent, well-trained, and experienced photo buyers, copyright is second nature. BUT, the fast-paced growth of the image industry, fueled first by desk-top publishing years ago, and continued today by Web site publishing, has brought into the ranks buyers who are ignorant of copyright or have been given incorrect definition and application information.
PSN: What can we do about this?
MG: It seems to me copyright ought to be a mandatory part of EVERY curriculum in design, art and art history, journalism, photojournalism, publishing, mass
communication, public relations, English, museum studies, and library science. In fact, if college students are expected to be able to write for publications in their professional lives, they ought to know what copyright is AND is not.
PSN: Are you personally doing anything?
MG: Because of my concern about the lack of professional training among too many new photo buyers, designers, publishers and editors, I started teaching a course at the University of Chicago's Publishing Program, in buying visual content. I encourage others to begin other such courses or work with a professor who will work it into the curriculum. Understanding copyright and intellectual property is fundamental to what we do, but it must be taught. And it can be taught - I taught it to my daughter's class of first, second, third and fourth graders. They understand that when they make a picture or write a report, NO ONE has the right to use it for anything without asking permission, nor should they use someone else's work without asking. (We also discussed fair use for educational purposes.)
PSN: Is there anything PhotoSource International can do?
MG: I urge you to make the effort to get copyright into the curricula at the college level. Then we will all rest a little easier about databases.
Mary Goljenboom, Picture Researcher, Ferret Research, Inc. P.O. Box 9145, Waukegan, IL 60079; 1 847 623 4744; Fax: 1 847 623 4744; maryg@ferretresearch.com. Instructor, VISUAL CONTENT: RESEARCHING AND SELECTING PICTURES FOR PUBLICATIONS ACROSS THE MEDIA, University of Chicago Publishing Program)
Welcome
to ChoiceStockPhotos.com. Here's where you'll
find information about copyright infringement,
photography, registration fee, copyright abuse,
and copyright forms.
Copyrighting Antique Photos
I have recently purchased photos and negatives from an estate in California. I believe that these photos have been taken from "photo albums" and are not "professional" photographs.
The subjects are people, animals and buildings photographed during the 1930's and 1940's.
My purpose, in purchasing these items, is to use them in paintings, photography and other artwork I intend to create for sale.
Should I worry about any copyright infringement?
Can I place a copyright on the photos and negatives myself? How far does my ownership of these items carry me in regards to copyright issues?
A: The situation you describe falls more into the "Law of Probability" than the Copyright Law.
The Copyright Term Extension Act of 1998 retroactively extended the duration of copyright to life of the author plus seventy years. The European Union provides protection for a term also of the author's life plus seventy years.
As an example, the photographs you mentioned, based on the Copyright Act revision of 1978 and the extension of 1998 would be in effect until (guessing, based on lifespan actuaries) 2050.
The spirit of the Copyright Law says that once you "click" the picture, the copyright is yours. So, anyone with a camera going around taking pictures is actually acquiring copyrights to those pictures. No formal registration of copyright is necessary. Practically speaking, unless the photographer is a professional, no attention is paid to copyright. The probability of the heirs or the author of the photos in your possession seeking copyright protection, is close to non-existent. But, you should make an earnest search to find the author of the photos, and record your efforts (in case of litigation) .
Getting back to the "spirit of the copyright law," Congress does not want to limit the artistic merit of artists and photographers, so Section 103 of the Copyright Act describes "derivative works," which means that a photographer or artist might employ parts of photos or artwork produced by other photographers or artists. The Copyright Law cautions that, yes, you own the copyright to that part of your photo that you have designed and photographed, but if you employ a part or parts of another's photograph, that person's copyright in still in force.
Here's how the Copyright paragraphs say it: "(a) protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully; ( b) the copyright in a compilation or derivative work extends only to the material contributed by the author ( -you-) of such work....". Translation: You own the copyright of the new photo or painting, but not the existing copyright of the image you employed in your painting.
Of course, if a photo you employ is in public domain, such as a government-owned photo which anyone may use, there is in most cases no copyright problem. (Hint: Use federally-owned photos whenever you can. See pages 208-211 of sellphotos.com.)
This whole problem came to the fore back in the 60's when Andy Warhol began employing 'parts' of photos and drawings in his paintings. Initially, when Warhol was still an unknown artist, no one bothered him about copyright infringement. Later on, others were simply honored that he employed one of their photos or their artwork in his paintings and silk screen prints. He often employed press photos of Marilyn Monroe, for example. The popular Monroe silkscreen prints that Warhol made from them now sell for a high fee. Warhol solved any copyright infringement situations "out of court."
We are back to the Law of Probability. Your finished photos or paintings would probably have only vague similarity or identifiable characteristics to the original photo or photos you utilized, so the chances of any legal problems are very low. However, if you used the actual snapshots in your paintings or photos, would the original author or their heirs of the photos you acquired, come back to haunt you with a lawsuit? If you became fabulously wealthy (like Warhol) as a result of your photos and paintings, you would no doubt be happy to share the wealth with them. If no wealth evolves, it's unlikely you would experience a lawsuit.
Finally, the ownership of the actual photos does not allow you to own the copyright to those photos. The copyright still remains with whoever made the image (for "lifetime plus 70 years"), even though you may never locate the photographer or his/her heirs.
However, the new concepts and images that you create, utilizing parts of these photos, belong to you, once you "click" the shutter or lay brush to canvas. The law of probability is, that your complete ownership of your unique use of a deceased person's images, will probably never be contested.
-Rohn Engh
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com .
Business
Notepad
Digital Photographers!
Want to discover a powerful way to know exactly what photobuyers at hundreds of small publishers of books and magazines want in the way of photos, and how much they'll pay for them - every week -- week after week ?
You'll be able to build a mailing list of buyers who use your category of photos. Those clients can last you a lifetime!
Every Friday morning we send you ... Full
Story
Program maintains it's easy to earn extra
funds by establishing a photo business out of your home and
photographing local businesses, corporations, churches, schools,
sports teams, and families in your community.
THE PROFESSIONAL PHOTOGRAPHER'S LEGAL HANDBOOK
By long-time litigation expert, Nancy Wolff. http://www.photosourcefolio.com /bookstoreone.htm#1581154771. This book provides a comprehensive overview of the many legal issues that bear on creating, publishing and licensing still and motion imagery and illustrations. A clearly-written resource for anyone engaged in any aspect of the stock image industry. Key topics include requirements, limits, and enforcement of copyright and trademark; fair use and public domain; first amendment considerations; the law of privacy and publicity, ramifications of publication of images on the Internet, and much more. (ISBN 1-58115-477-1; $24.95) Allworth Press, 10 E 23rd St, Ste 510, New York NY 10010. E-mail: PUB@allworth.com .
As you may undoubtedly recall, Leslie Kelly previously sued Ditto.com (which was formerly known as Arriba soft corp), for infringing his copyrights. The United States Court of Appeals for the Ninth Circuit has now partially reversed its own opinion and sent part of the case back to the District Court for a trial on the issues.
As I reported in the April 2000 issue of PhotoStockNotes, Pg.5, the original District Court decision held that the use of thumbnail sketches of Kelly's images in the search engine was a fair use. I reported subsequently in the April 2002 issue, Pg.5, that the Circuit Court affirmed as to the thumbnail fair use, but reversed as to the use of the full screen image display, holding that such use constituted copyright infringement.
The facts are as follows. Ditto.com operates an Internet search engine that displays its results in the form of small thumbnail-size images rather than the more usual form of text. It obtains its image database by copying images from other websites, including Kelly's. A larger version of the thumbnail image appears when a viewer clicks on the thumbnail. However, the larger image actually transports a full-size high-resolution image onto the screen directly from Kelly's website.
Thumbnails Still O.K.
Upon rehearing, the Circuit Court adhered to its original determination that the thumbnail size use of the images was a fair use. It also withdrew its determination that the display of a full size image constituted copyright infringement on the technical ground that neither party had requested summary judgment on the issue of copyright infringement as to the larger image. Accordingly, the Circuit Court sent the issue back to the District Court for further proceedings.
Full-Size Image Still In Question
Both sides are claiming victory. Ditto.com had the copyright infringement finding withdrawn. Kelly had that portion of the District Court's opinion, which held use of the large image to be a fair use, overturned. In addition, although the original Circuit Court opinion was withdrawn as the Ditto.com's liability for copyright infringement on the larger image, Kelly must certainly find comfort, and Ditto.com concern, in the clear message sent by this particular appeals court panel as to its preliminary views as expressed in the withdrawn decision.
As previously stated in my earlier reports, in view of the importance of the issues to all users of the internet and particularly to photographers and those who seek to find photographs, this surely will not be the last word.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: Heckeresq@aol.com.
Of
Interest
A Complete Handbook for Professionals
Photographing Jewish Weddings:
by Stan Turkel
a review by Joseph Stanski
I love weddings. Most of all, I love ethnic weddings. Mainly because, I get to participate
and be a part of, another culture; and Stan Turkel’s book on Jewish weddings does just that; takes you into another culture; the Jewish cultural wedding.
Stan Turkel leaves no stone unturned as to defining a Jewish weddings. He begins Chapter 1 - Types of Jewish Weddings by defining the three major denominations, Reform Judaism, Conservative (Masorti Judaism) and Orthodox Judaism. And than introduces us (the photographer), to proper protocol with interacting with family members.
In Chapter 2, Marketing For Jewish Weddings, the ability to market your image successfully is very important to an Orthodox and non-Orthodox family. “Your marketing strategy must take this into account, as separate marketing efforts are required for each.” Timing, Buying Influences, and Wedding Packages and Shooting Styles are all very important considerations with the proper marketing of a Jewish wedding.
OLD-TYME FLIX -- National Geographic snaps up BBC Photography series, “Genius of Photography”. Outright Distribution has sold BBC2 documentary series to National Geographic Channels International (NGCI) as part of a raft of other post-MipTV sales. Produced by Wall to Wall, the series offered a comprehensive history of photography and was originally produced for BBC2 and BBC4.
http://www.broadcastnow.co.uk/news/2009/05/nat_geo_snaps_up_bbc_photography_series.html
