Thou Shalt Not Steal

[Loose Canon]

Recently I was contacted by a media director of a church for a portrait assignment.

They were looking for a bust shot of the lead pastor in line with the Dirty Jobs television show that aired here in the USA. As an example of what they wanted the MD emailed me a promo photo of the show taken from the internet. It was a bust of the host of this show covered in grime depicting the “Dirty Jobs” theme. I agreed to do the shoot.

It turned out that by a miscommunication on the Client’s part I was unable to do the shoot.

The MD did the shoot in-house instead. What they did was shoot the pastor’s head and neck with some crud on it and then superimposed that onto the shoulders and chest of the shot taken from the internet. They then posted the composite to their website and on Facebook advertising for their sermon series entitled “Dirty Jobs”. They even used the “Dirty Jobs” copy that was on the original photograph. I understand that they have made up large posters and have them posted all around their property/buildings and are doing what I would have to call an advertising blitz for this sermon series.

As fate would have it, the original photographer found out about this and sent them an email entitled “Thou Shalt Not Steal” (hilariously ironic)! I have not seen the email but from what I am hearing it is akin to a “cease and desist” notice. The staff at the church consulted a lawyer who didn’t know anything about copyright law but advised them to consult a copyright lawyer. Which they said they were going to do.

In the meantime they have taken down the shot on their main website but still have it up on their Facebook site. As well as the printed copies posted all around.

I don’t know if they have actually consulted a copyright lawyer to determine the legalities of this at this time.

I understand that copyrighted photos may be used under certain circumstances without license. Education and news as a couple of examples. I am not extremely well versed on copyright law.

I would have thought that even if they were exempt from license that they could not just wantonly manipulate the photographer’s photo at will under any circumstance. Part of the photo is easily recognizable as the original photographer’s.

It is my position that this is certainly unethical if not out and out illegal. But again I am not a copyright attorney.

Fortunately, I did not do the shoot. I would have been livid to find one of my photos grafted onto another photographer’s copyrighted material and would have found it necessary to raise about nine kinds of hell. Not to mention contact the original photographer about it. (I know who shot the original). There would have been some serious ill will. And in fact there already is between the MD and myself. They just don’t know it yet!

Would anyone have any thoughts or information regarding this situation? I am going to see if I can monitor how this plays out. I am extremely interested in how far a religious organization can stretch the copyright laws, if they can at all.

I am also at this time planning to accept no further work from this organization.

[Jim B.]

Terry, good question.Here's what my cousin, an attorney,says.

"A copyright is granted when a photo is taken, whether or not the photographer registers the photo with the Copyright Office. However, if someone infringes on your copyright, you can only collect damages if your work is registered".

Keep us posted.Interested on how this turns out.

[Adrian]

My thoughts:

It does not appear to be your fight.
When people place images on the internet, they risk general use of those images.
It is difficult to assert copyright protection in many parts of the world (your jurisdiction may differ) unless the asserted copyright is clear and explicit.
Even if the copyright actually exists and even if it has been infringed, for damages to arise I suspect a financial loss would have to be proven.
One might conclude that in this case - use by a church - there is probably no loss or at best a trivial loss
The casual observer would most likely focus on the pastor's face, rather than relatively generic head and shoulders of someone else in the original photo. The original content may be regarded as incidental, particularly as it is unlikely that copyright could be asserted over the text.

In summary: storm in a teacup.

[Loose Canon]

Terry, good question.Here's what my cousin, an attorney,says.

"A copyright is granted when a photo is taken, whether or not the photographer registers the photo with the Copyright Office. However, if someone infringes on your copyright, you can only collect damages if your work is registered".

Keep us posted.Interested on how this turns out.

I have seen that written as well Jim. Thanks for posting that from your cousin. I have no idea if this shot was registered with the LoC or not. I’ll try to keep up to date on this if I can. I find it very interesting since I am kind of close to it.

It does not appear to be your fight.
When people place images on the internet, they risk general use of those images.
It is difficult to assert copyright protection in many parts of the world (your jurisdiction may differ) unless the asserted copyright is clear and explicit.
Even if the copyright actually exists and even if it has been infringed, for damages to arise I suspect a financial loss would have to be proven.
One might conclude that in this case - use by a church - there is probably no loss or at best a trivial loss
The casual observer would most likely focus on the pastor's face, rather than relatively generic head and shoulders of someone else in the original photo. The original content may be regarded as incidental, particularly as it is unlikely that copyright could be asserted over the text.

While it is not my fight Adrian it could have been had I done the shoot. One might also conclude that any unauthorized use, even by a church, is a financial loss. “Trivial” is in the eyes of the beholder (or the judge!). Apparently the photographer considered it important enough to follow up on and didn’t consider his work and financial loss as “incidental”.

But you are probably right in that it wouldn’t even be worth it in the long run to follow up on.

But to me it is an interesting situation. And one I have no desire to get mixed up in by shooting for these people.

[John 2]

The situation in the UK is similar. Copyright accrues to the author automatically. The danger is always that unless you assert your right, the image can pass into the public domain and once there it is difficult to recover. In the UK all that is needed is a copyright notice, usually a "C" with the date and the Authors name or a statement to the effect that all rights are reserved. I suspect that the same situation exists in the US except that the registration of the image with the Copyright Office is how you assert your right. If someone thought it worthwhile, I suspect there are two issues here. The original photographer has a legitimate beef but so I suspect has the TV company that owns the programme rights.

[Adrian]

Copyright law is only of any use if you wish to pursue a damages claim and/or an enforceable cease and desist order.

Litigation in this area is excellent for lawyers because we have all sorts of esoteric points to argue and clients who tend to get all het up about their rights. I am no longer in professional practice so I am not a beneficiary but I know from experience that quantifying and proving loss is an uphill task for the photographer. Particularly if the photographer has placed unprotected or insufficiently protected work in the public domain.

There is a lot of case law in this area (in the UK) and quite a lot of it is not as favourable to photographer copyright claims as professional photographers like to believe.

[dan marchant]

The situation in the UK is similar.... The danger is always that unless you assert your right, the image can pass into the public domain and once there it is difficult to recover.

There is no requirement in law to assert copyright and the image can only pass into the public domain when the copyright term expires*. It doesn't matter how many people infringe on your copyright, that in no way weakens the protection.

In fact, the very fact that illegally using an image may expose it to further illegal use is actually a "positive" when seeking to take action for infringement, as it makes the infringement more serious.

In the UK all that is needed is a copyright notice, usually a "C" with the date and the Authors name or a statement to the effect that all rights are reserved.

This used to be true. To get copyright protection an image had to be published and it needed a copyright notice. This is no longer true.

In addition to the copyright case there is a second actionable issue here. The fact that the person in the original image is having their likeness (albeit partial) used for the promotion of a company/product/service or cause without their permission is an infringement of their image rights.

* It is supposedly possible to place a copyright work in the public domain but as copyright law doesn't actually provide any details on how to do such a thing and many countries don't have any copyright registration it would be very hard to accomplish and even harder to find out if the copyright holder had actually done so.

[revi]

Terry, good question.Here's what my cousin, an attorney,says.

"A copyright is granted when a photo is taken, whether or not the photographer registers the photo with the Copyright Office. However, if someone infringes on your copyright, you can only collect damages if your work is registered".

Keep us posted.Interested on how this turns out.

I understood it is a bit more complicated than that: you can not collect statutory damages for unregistered works, but you can still collect damage you can prove you suffered (missed sales and such) (in this case, that's probably close to 0$ anyway)

[John 2]

There is no requirement in law to assert copyright and the image can only pass into the public domain when the copyright term expires*. It doesn't matter how many people infringe on your copyright, that in no way weakens the protection.

Dan, there never has been a legal requirement to assert copyright. As I said, it accrues to the author automatically. But it can pass into the public domain if for instance, the author allows it's widespread unrestricted and unconditional use without reserving his or her position. The benefit of asserting your right no matter how you do it is to put the world on notice of your ownership and that this is not your intention. An infringer can't then claim they "didn't know". But in the absence of such notice and if you have allowed general use of your image for some time, it is then difficult to claim say loss of earnings because someone has found a market for it. That's why every book and every CD that you buy carries a copyright notice. That's why, particularly in the case of software, there is sometimes a notice to the effect that use is free of charge for personal use but not for commercial purposes.

[QUOTE=dan marchant;324451] This used to be true. To get copyright protection an image had to be published and it needed a copyright notice. This is no longer true. QUOTE]

As I say, a copy right notice of itself doesn't provide protection other than act as evidence of your ownership (proof of anteriority) and intention. The following link explains it:

http://www.ipo.gov.uk/types/copy/c-about/c-auto.htm

[dan marchant]

Dan, there never has been a legal requirement to assert copyright.

Under the 1790 (US) Copyright Act works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. This remained the case up until the US ratified the Berne Convention in 1989.

[revi]

Let's not forget that copyright laws differ between jurisdictions...
Terry's post concerned a situation in the USA, so perhaps UK rules aren't all that relevant...

[Cantab]

Let's not forget that copyright laws differ between jurisdictions...
Terry's post concerned a situation in the USA, so perhaps UK rules aren't all that relevant...

I agree. Without revealing too much about my professional background, I'll say that much internet discussion about copyright and related matters ignores the fact that copyright law differs from country to country. Although international copyright agreements exist, a person must pay attention to the domestic or local law of the specific country in question. Assertions about the law in one country are of very limited help in knowing the applicable law in another country.

[dnperfors]

I actually doubt that you could use copyrighted material for news or education, without some sort of license. I believe this is mostly when you use photographs of people when you don't need a model release when it is for news or education.
But here in the Netherlands one of the biggest news organisations is using photos with a Creative Commons license or from public domain a lot, or from there own photographers.
I would always advise to contact the photographer when you want to use a photo in some kind of material, unless you can find the license which explicitly tells you, you can use it (public domain or CC licenses...)

[John Morton]

[QUOTE=John 2;324499]Dan, there never has been a legal requirement to assert copyright. As I said, it accrues to the author automatically. But it can pass into the public domain if for instance, the author allows it's widespread unrestricted and unconditional use without reserving his or her position. The benefit of asserting your right no matter how you do it is to put the world on notice of your ownership and that this is not your intention. An infringer can't then claim they "didn't know". But in the absence of such notice and if you have allowed general use of your image for some time, it is then difficult to claim say loss of earnings because someone has found a market for it. That's why every book and every CD that you buy carries a copyright notice. That's why, particularly in the case of software, there is sometimes a notice to the effect that use is free of charge for personal use but not for commercial purposes.

This used to be true. To get copyright protection an image had to be published and it needed a copyright notice. This is no longer true. QUOTE]

As I say, a copy right notice of itself doesn't provide protection other than act as evidence of your ownership (proof of anteriority) and intention. The following link explains it:

http://www.ipo.gov.uk/types/copy/c-about/c-auto.htm

I am going to side with Dan on this issue; and the case I have in mind concerns the iconic image of Che Guevera taken by Alberto Korda. This is the most widely reproduced image in the history of photography; but when a liquor company decided to use it in a series of billboard advertisements (for a vodka, I think), Korda took them to court and won his case. He still had the original negative and, although innumerable people had used that image without permission, he still had the right to tell people NOT to use it if he so desired.

[John 2]

[QUOTE=John Morton;326071]

I am going to side with Dan on this issue; ................................................

Remco, Bruce and John, you have to read my comments in connection with my original post which only stated the UK position as outlined in the link to what is the UK Government's official site. I have no doubt that the approach differs in different jurisdictions but I only have knowledge of the position in the UK. I was merely suggesting there might be an equivalence. The example I gave was just that, an example. It's a civil matter and nothing is ever fixed until it's tested in a civil court. My advice from lawyers in the past has been that defining what is and what is not in the public domain is a minefield. That being so, the point I was making was that asserting your copyright won't harm your position and could make all the difference. However, I would guess (and I don't know) that there must be a fair degree of commonality across borders otherwise what would be the point of an international convention on the subject - accepting of course that the convention isn't in itself, law.

[Adrian]

People always get very heated about copyright. In this case we are not talking about an iconic image, but the shoulders of a shot on which a third party has superimposed a head. This was locally by a church. It is quite trivial.

The internet is full to the brim with imagery. If people post images on line, it is inevitable that they will be used by others. If we don't want our imagery "borrowed" then we need to avoid putting it up for grabs in a very public way. Whilst I agree with John that there is no harm in asserting copyright, from a practical perspective litigation is very rarely viable unless one is intent on feeding lawyers.

It is a question of picking one's battle?

[Wayland]

Not too sure about this as I tend to understand UK law better but isn't there a clause in the Digital Millennium Copyright Act about altering digital works?

[barrydoig]

I am a church minister and a keen photographer so I guess I have a foot in both camps. If it was pointed out to me that we had somehow breached any copyright I would take immediate steps to withdraw all the images. As I understand this matter that's what the church should do.
Barry

[Loose Canon]

Interesting stuff guys!

Barry,

I tend to agree with you on this.

I can’t understand why a church, of all organizations, who preaches (literally) the supposed eternal pitfalls of this type of behavior, would continue to use this image in this way if there were even the slightest hint of infringement. Seems like a “practice what you preach” kind of thing. They could easily use their own photo, and have on their main website (since they got called on it already), without utilizing the other photographer’s work. No worries, no questionable concerns. The "slightest hint" occurred when they were contacted by the original photographer.

I wondered if this might be an “innocent” mistake. But I know for a fact that the media director has a degree in media arts and I can’t believe he isn’t aware of copyright laws. So they knew what they were doing when they did it. Or at least the media director must have.

It may well be “trivial”. But in this case it goes on to include hypocrisy and a “we don’t care what we do as long as we get what we want” attitude.

Which I find reprehensible, especially for a church organization.

[Loose Canon]

Well, I called the Media Director personally to inquire about this issue.

He is telling me that their attorneys (non copyright attorneys) are telling him that they need to claim an instance of “parody”. If the original photographer actually pursues them on this (which, let’s face it, he probably has other things to do), then this is their defense. This is a legal use of the shot if they could indeed convince a judge that this is the case. If anyone has heard of Weird Al Yankovic then it is pretty much the same!

They have been advised not to respond to the photographer, and in the event of litigation they are to engage a copyright attorney proper. They were further advised to pull the shot from the web (with which they haven’t completely complied) and hope they weren’t dragged into court!

I mentioned that I was only peripherally interested but could have found myself directly involved had I done the shoot. He told me that they “probably” wouldn’t have done that had I performed the shoot. They were in a hurry and needed something fast and this seemed the easiest way out.

With this conversation I have at least confirmed my position of no longer accepting any work from them.

I have enough problems as it is!