Licensing of orphan images and Flickr's data increase: hmmm...

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kintatsu

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it IS true ...
court system will no longer see copyright-cases where there is no proof-registration
this is what a consulted-lawyer told me and what someone at the ASMP told me 8 years ago.

you are welcome to try but you won't get far.

The fact is, the law allows it, whether or not it can successfully be concluded is a different matter. It makes sense that if no provable economic loss occurred, the lawyer would find it almost impossible to win, and therefore not take your case.

Also, if it was for a client or employer, you can't claim copyright unless agreed in advance, in writing. Metadata, printing, display, or publication can be used to provide proof of your copyrights, but can also be used against you.

Ansel Adams successfully defended his copyright of Moonrise against the US government, who claimed it as a work for hire.

There are literally millions of mitigating factors!
 

Bill Burk

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it IS true ...
court system will no longer see copyright-cases where there is no proof-registration.

I guess that means self-represented and taking your case to ... Maybe Judge Judy.
 

removed account4

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Makes sense. I would assume they would want you to sort things out with the copyright office before wasting the courts time.

In your case why did you think you held the copyright? Why didn't you simply register it and then go to court when you realized there was a problem? Why didn't the lawyer recommend just registering?

in my case, i DID register the copyright ( takes time to register ) ... and i believed like most people that i owned it when i depressed the shutter.
( they were allegedly in a RUSH for the work and buttered me up suggesting i was almost "staff" promised me additional work ( bla bla bla ) )
i did a "cease and desist" and they stopped ... they made up stories afterwards that it was all "on spec" because they had an open ended contract with me ( something their counsel always told them to do with contractors )
... they had me "phase + bill" as i went along .. i got wise and don't work like that anymore ...
 

Noble

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this is true, but if you are working for someone, as a contract photographer, on assignment with a signed contract ...
they receive / get the work and are supposed to send you the check, but instead copy the images on their hard drive, send back the images / CD
say they don't want them ( after duplicating them ) and make up some sort of BS/ DRAMA decide they will not pay you for them ...
you are not on staff/ work for hire and if you did not register the images with the copyright office ... well ... if they decide they are theirs and you didn't register them ...
well until you DO register them and claim ownership you are screwed ...


So why not just register when there is a problem? (edit: I posted this before reading your other post)

I found this in regards to some time limits and certain statutory damages...

§ 412 . Registration as prerequisite to certain remedies for infringement12

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

http://www.copyright.gov/title17/92chap4.html


I'm no lawyer so I don't quite understand it. But it does seem like within a matter of weeks or months certain things like ATTORNEY'S FEES in some cases will not be awarded. Lawyers usually don't work for free.
 

Noble

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in my case, i DID register the copyright ( takes time to register ) ... and i believed like most people that i owned it when i depressed the shutter.
( they were allegedly in a RUSH for the work and buttered me up suggesting i was almost "staff" promised me additional work ( bla bla bla ) )
i did a "cease and desist" and they stopped ... they made up stories afterwards that it was all "on spec" because they had an open ended contract with me ( something their counsel always told them to do with contractors )
... they had me "phase + bill" as i went along .. i got wise and don't work like that anymore ...

That is an ugly story and a real eye opener. I don't post anything on the internet unless it is watermarked through a stock agency, but I am definitely going to look into this copyright registration thing. I do this as a hobby and sell very little on the side so I can't afford a lawyer. I'm going to look into registering the stuff that is at the stock agency. Man life is so complicated.
 

removed account4

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Trask

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I've found this an interesting discussion. To my mind, the other side of the question is: what are the odds that you'll find out that someone stole your work? OK, if a company were to misappropriate a photograph and use it in a Super Bowl commercial, you might see it and know to complain. But if that same company took an image and used it in their annual report, what are the odds you'd ever see that? If one were so inclined as to misappropriate images, I bet he/she would get away with it 99% of the time simply on the basis that the odds of the actual photographer seeing the image would be miniscule.
 

Steve Smith

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This is the official response to any worries:

The Enterprise and Regulatory Reform Act 2013 –Your photos and you

Myth – the provisions remove the automatic right to copyright for owners of photos posted online
Fact - The powers do not remove copyright for photographs or any other works subject to copyright.

Myth – anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
Fact – A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a work can be used.

Myth – works will have their metadata stripped and be licensed en masse as orphans under the Extended Collective Licensing provisions
Fact – the Orphan Works scheme and Extended Collective Licensing (ECL) are separate and the orphan works scheme is about licensing of individual works.The Government will have no power to impose ECL on a sector, and the safeguards included in the scheme mean that ECL is only likely to be an option where there is strong existing support for collective licensing. Any rights holder who is worried about how their work could be used under an ECL scheme will always retain the ability to opt out.
It is unlikely that ECL will be an option for photography where there is a strong tradition of direct licensing: there is no collecting society for photographers in the UK, so no application for an ECL is feasible at present.

Myth – anyone will be able to use my photos for free if they cannot find who owns them?
Fact – If a work is licensed following the verification of the diligent search, there will be a licence fee payable up-front for its use. The fee will be set at the going rate.

Myth – anyone can use my photos without my permission
Fact – Anyone wishing to use a work as an orphan must first undertake a diligent search for the rights-holder which is then verified with permission to use the work granted by the Government appointed independent authorising body. If the work is not genuinely orphan then the rights-holder should be found, if the search is not properly diligent, no licence will be issued.

Myth – the Act is the Instagram Act
Fact – Given the steps that must be taken before an orphan work can be copied, such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans.

Myth – a company can take my work and then sub-license it without my knowledge, approval or any payment
Fact – The licences to use an orphan work will not allow sub-licensing.

Myth – the stripping of metadata creates an orphan work
Fact – the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme

Myth – I will have to register my photos to claim copyright
Fact – Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection.

Myth – the UK is doing something radical and unprecedented with the Orphan Works powers
Fact – Other jurisdictions already allow the use of orphan works. The UK powers are largely based on what happens in Canada – which has been licensing orphan works since 1990.

From: www.ipo.gov.uk/hargreaves-orphanmyth.pdf

I think this is the most important bit: A licence must be obtained to use a work as an “orphan”.


Steve.
 
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Steve Smith

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and it seems that the poor mans copyright i mentioned is urban legend

All that proves is that you sent an envelope to yourself. It could have been empty and un-seealed and you put something in it later.


Steve.
 

removed account4

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All that proves is that you sent an envelope to yourself. It could have been empty and un-seealed and you put something in it later.


Steve.


it can not be opened until before a judge ...
according to the us copyright office it is not valid
because ... well the contents of the envelope were not REGISTERED with them ...
 

removed account4

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I've found this an interesting discussion. To my mind, the other side of the question is: what are the odds that you'll find out that someone stole your work? OK, if a company were to misappropriate a photograph and use it in a Super Bowl commercial, you might see it and know to complain. But if that same company took an image and used it in their annual report, what are the odds you'd ever see that? If one were so inclined as to misappropriate images, I bet he/she would get away with it 99% of the time simply on the basis that the odds of the actual photographer seeing the image would be miniscule.

hi trask

its strange that a similar discussion ( not really ) is going on here:
http://www.largeformatphotography.i...otecting-people-infringing-copyright-my-story

while it is pretty unlikely that people will take random photographs from random people and use them in an annual report
or billboard campaign or whatever, if someone's work is of a well known person, place, thing, or event, chances are more likely
that it might get noticed if not used. i assisted someone years ago who used to shuffle his stock images around to the credit card companies
they loved his crew/regatta images and used them as much as they could ... sometimes they kept using them and he had to slap them on the wrist.
it seemed like a game of cat n'mouse back then but that's how he got paid and he retained control over his work.
 

MattKing

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Three really important issues are being intermixed here.

1) the laws of copyright ownership and protection vary from country to country. And the practicalities of copyright vary from country to country;
2) in the USA, the remedies available to someone whose copyright may have been infringed are dependent on registration. And as any lawyer will tell you, it is all about remedies, because nothing much else matters; and
3) in the UK, a new wrinkle has been added to copyright law with the ostensible purpose of making it possible to use material for which the copyright owner cannot be identified or located.

Two observations:

a) some may recall a relatively recent fuss where Scarlett Johansson suddenly had a bunch of partially naked photos of herself appear on the internet. As it turned out, the photos had been taken by Ms. Johansson herself, using her phone, and someone hacked into her phone and stole them. Ms. Johansson had a lot of success using the courts to prevent the re-use and publication of those photos because, as the photographer, she held the copyright for them, and thus was able to expeditiously obtain a number of injunctions that prevented future breach of that copyright; and
b) in Canada, unlike most of the world, our traditional rule has been that if you contract with a photographer to have photographs taken, the copyright on those photographs belongs to you, not the photographer. That rule has been recently changed by new legislation to match most of the rest of the world - the photographer is the copyright holder now. This change isn't as important as it may seem though - it has always been the case that the rule may be amended by contract. In a commercial setting, invariably ownership of copyright is dealt with by contract.
 

Steve Smith

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it can not be opened until before a judge ...
according to the us copyright office it is not valid
because ... well the contents of the envelope were not REGISTERED with them ...

Exactly. You could have mailed yourself an empty envelope a year ago then put something in it a couple of days ago and sealed it.


Steve.
 

marciofs

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If you have the negatives how can someone else have the copyright without a document proving that the work is orphan or that the copyright was transferred to them?

If someone takes your low resolution image from your website to resell or to use in a marketing campaign, is it not god that you are the only one who can proved high resolution prints? Or even better, the only one who can provide a original traditional print.

What can they do with low resolution images other than print it small or a large but bad quality print?
 

Noble

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I found some interesting information on the U.S. Copyright Office website. I think everyone should have a look at it. You can do electronic registration of collections of work. I am not a lawyer, but what I'm thinking of doing is scanning in work as I create it and doing mass registrations in collections titled 2012, 2013, etc. We really need more awareness about this. I believe normal registration of collections without special handling is $35.

 

Noble

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If you have the negatives how can someone else have the copyright without a document proving that the work is orphan or that the copyright was transferred to them?

They are not "proving" they have the copyright. If a work is in the public domain you can use it without paying royalties. It is up to you to "prove" you have the copyright. None of us is lawyers, but from a reading of the U.S. copyright website you need to register your copyright before mounting a legal action. You may own the copyright but our novice interpretation of the U.S. copyright website leads us to believe without registration you cannot bring a successful legal action.
 
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batwister

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Everyone, I'm having a bonfire party next week. Bring your own negs!
 
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