Is this "fair use"?

pbromaghin · Sep 26, 2012

A photograph, said in the article to be copyrighted, is taken from an online blog and photoshopped up for a political attack ad:

http://usnews.nbcnews.com/_news/201...-sues-after-photo-used-in-anti-gay-flier?lite

Prof_Pixel · Sep 26, 2012

The photographer will probably win a copyright lawsuit, but unless the image was actually registered at the copyright office, the damages wil be limited.

Benoît99 · Sep 26, 2012

This is very definitely a case of copyright infringement. The copyright, which came into existence at the moment the photo took tangible form, can be registered at any time even AFTER the infringement. The plaintiffs just have to be sure the registration is in place by the time they are heard by the court.

Many countries do not have copyright registration.

Prof_Pixel · Sep 26, 2012

Benoît99 said:
This is very definitely a case of copyright infringement. The copyright, which came into existence at the moment the photo took tangible form, can be registered at any time even AFTER the infringement. The plaintiffs just have to be sure the registration is in place by the time they are heard by the court.

I'm not sure that is correct in the US.

In the US, if you have actually registered a physical copy of your image you are entitled to triple damages; with out the physical registration, the image is still copyrighted, but you are limited to actual damages - generally, the actual commercial use of that image.

Worker 11811 · Sep 26, 2012

I think copyright infringement is only the half of it.

Those guys' image was published without their permission. Although they were in a public place, you can't publish identifiable images of other people without permission.

Further they were defamed in the public media. They were singled out as deviates, using an image that they had given no permission to publish and which was used in violation of somebody else's copyright privilege. There is also intentional infliction of emotional distress.

On top of all that, this group, "Public Advocate of the U.S." has been designated as a hate group by the Southern Poverty Law Center. That put them on the hook for some major civil rights violations.

Then, to put a big dollop of whipped cream and a cherry on top of the whole thing, that guy, Delgaudio, the chief of this group is also the County Supervisor of Loudoun County, Virginia.
That could potentially put him afoul of some major state and federal civil rights statutes. Specifically, 42 USC, Section 1983, also known as the Civil Rights act of 1871. To paraphrase the law, anybody who, "under color of law," deprives another of his civil rights is in violation of the law.

If it can be shown that Delgaudio, even remotely, used his position as County Supervisor to further or perpetuate his actions against the plaintiffs... to use a legal term... his ass is grass!

Prof_Pixel · Sep 26, 2012

The original poster asked if this was fair use - that implies a copyright issue.

You bring up issues outside of fair use/copyright use.

The issue of legal defamation is far beyond 'my pay grade' and probably should be outside the scope of this forum.

Benoît99 · Sep 26, 2012

In the U.S., you can register your copyright at any time but there are advantages to doing so within five years after first publication.

The U.S. Copyright Office says:

"Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works."

http://www.copyright.gov/help/faq/faq-general.html#register

Worker 11811 · Sep 26, 2012

Prof_Pixel said:
The original poster asked if this was fair use - that implies a copyright issue.

You bring up issues outside of fair use/copyright use.

The issue of legal defamation is far beyond 'my pay grade' and probably should be outside the scope of this forum.

Point taken.

The copyright issue seems pretty clear cut. Most of us agree on that, hands down, but, secondary to that, we, as creators and users of images, need to be aware of problems arising from publishing pictures of others without permission.

Defamation and civil rights issues come third. I only mentioned them as additional "gotchas."

I agree that these issues are tangential to the question at-hand and to the forum, in general.

My reason for mentioning all that was merely to highlight the fact that, when you use an image without permission, you potentially open up a knarly can of worms.

Suffice to say that use of that image was a no-no on many levels.

Prof_Pixel · Sep 26, 2012

Yes, I realized you have 5 years to formally register an image in the US; what I'm NOT sure about is how this affects infringement issues that happen before the formal registration is made.

Prof_Pixel · Sep 26, 2012

Worker 11811 said:
My reason for mentioning all that was merely to highlight the fact that, when you use an image without permission, you potentially open up a knarly can of worms.

Suffice to say that use of that image was a no-no on many levels.

There was a thread here recently discussing image release issues for people in some beach photos.

It's gotten too easy to misuse images. At the recent Democrat National Convention, during a segment designed to honor the US Military, a image of many naval ships at sea was projected on the screen behind the speaker. It turns out, people watching noticed that the radar antennas on the ship were Russian and NOT US; someone had grabbed a stock image from someplace, not noticing they were Russian ships and not US ships.

benveniste · Sep 27, 2012

Prof_Pixel said:
Yes, I realized you have 5 years to formally register an image in the US; what I'm NOT sure about is how this affects infringement issues that happen before the formal registration is made.

For U.S. law, see: http://www.copyright.gov/title17/92chap4.html#412

The basic rule is that for an unpublished work you may not recover statutory or attorney's fees for any infringement which occurs before the effective registration date. For a published work, you may not recover for infringement which occurs between the publication date and the effective registration date unless the copyright is registered within three months of publication.

pbromaghin · Sep 27, 2012

Being the OP, it's good that the issue of the subjects of the photo also came up. In asking about fair use, I wasn't clear enough to let it be known that I meant the use of their personal images, as well as the photograph. It's important that we as photographers be aware of these issues.

Sirius Glass · Sep 28, 2012

Clearly copyright and defamation of character violations.

JBrunner · Sep 28, 2012

Speaking as someone who has had a lot to do with these issues, I can tell you that whoever winds up culpable for this has purchased tickets to hell for all they can pay, sort of. First of all, it is an ad, not journalism. Snagging a photo you don't own for an ad is indefensible from any fair use standpoint. Regarding copyright, it exists the instant a photo is made, no claims or registration are necessary to enforce copyright, registration simply helps establish ownership in the event of a dispute. There will be little to dispute since the ad crafter did not originate the photograph nor seek to or posses releases from the subjects (separate but relevant, and also actionable). The hardest part will be actually extracting the money from a political organization, since they are notorious for being financially unreliable, even for things they have contracted for. They are around till election day, and then "poof". It's doubtful that a defendant or representative will even bother show up to court, and good luck finding someone to collect from.

Politicals are always cash on the barrelhead with me, no exceptions.

Prof_Pixel · Sep 28, 2012

JBrunner said:
Regarding copyright, it exists the instant a photo is made, no claims or registration are necessary to enforce copyright, registration simply helps establish ownership in the event of a dispute.

Yes, copyright is established when the image is taken. However, as I understand it, if you haven't actually physically registered the image, your damages are limited to the fair use value for that occurrence. Liability issues are separate from the copyright issue.

Is this "fair use"?

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