It is the picture stupid

joerookery

joerookery

Well-known member
To make a change from former US President Clinton's comment.

Yesterday I spent much of the morning with a copyright attorney firm in downtown San Antonio. I had a number of issues concerning some upcoming publishing things and while they stood by and backed up everything I had originally thought about copyrights; I was completely surprised by several items they brought up. Perhaps you know this from your experience and perhaps others do, but I didn't know.

It's the picture and not the item. I always thought some rights accrued to the owner of an item or an artifact. Not true. Here is the example. Remember that picture of Max’s helmet?

Max owns a helmet. Max takes a picture of the helmet. Max gives me permission to publish it on my web site. Some unknown eBay seller copies the picture and uses it in his advertisement. I had always thought that there were some rights that accrued to the owner of the helmet. In reality, the rights accrued to the owner of the picture. If the eBay seller or anyone else had snuck into Max's home and took a picture of the helmet and published it, he would be dead right in the copyright world. He does not need Max's permission. On the other hand, the eBay seller who stole the picture taken by Max, is dead wrong, because the picture is the copyrighted property that belongs to Max. Under US law, Max has to issue a cease and desist order to the eBay seller. If the seller complies the issue is dead. If the seller refuses Max can determine if it is actionable or not, as he can only recover the amount earned by the seller based on the use of the picture. There are many caveats, and this is US law. I looked in some detail at German copyright laws and international conventions. There are a lot of interesting items that happen when pictures are published in books. This is a real headache...
 
Yup. This is the way I understand it as well. The image is considered to be the intellectual property of the individual who made it. It is also interesting when it comes to "ownership" of photos. If I have a nice photo and scan it for my web site, and then sell the photo to someone, that person cannot ask me to remove the picture from my web site. They may own the original photo, but I made the scan. The scan is my intellectual property. :tard:
 
...I don't drink :-k ...but I need a beer...
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Pictures and intellectual-property fell into two general categories. There were those that were in the public domain, and those that were not. Older pictures from the timeframe not marked with a copyright are in the public domain under US law. Other nice photos on your web site that are more modern are indeed part of your intellectual property.

Even if you have an older public domain photo and someone publishes it in a book the publishers of that new book could possibly have some claim to the copyright of the photo. A great example is a picture I have used recently. Remember the picture of the VI Corps that was often cited as an attack going through France in 1914? I own the 1913 source document. I have scanned it. It is in the public domain. The picture is used in a 2004 publication that I am aware of. The publisher of the new book, could claim copyright if he had used my scan. Any claim made on this part would be useless as the picture is in the public domain. However, there is precedent, and this kind of thing has been done many times. Never successfully.

A modern photo that is not in the public domain is surely part of someone's intellectual property. However, as long as our friend the eBay seller gave credit to the book, web site and author of the picture he is sailing clean. Should Max object to his use of the current photo he could issue a cease and desist order. If the seller stops using the picture the issue is dead. If the seller insists on continuing the use than Max will only find redress if it is actionable. The shocking thing is if Max loses his cool and writes the eBay seller a nasty letter calling him names, Max would be subject to violations of the criminal code. It is far more likely that Max could be prosecuted for this infraction than any chance of a civil action resulting from a potential copyright infringement. The fact that the seller had stolen from Max would not matter in this case. It is neither a case of extenuating or mitigation. The focus would entirely be upon Max's actions.

I guess the reinforcement that I left with was that if you give proper credit, you are pretty free to do as you wish. If the copyright holder objects to your use of his picture, he must inform you, and behavior must change for future uses of the picture.

Suffice it to say there were enough caveats to fill a foot locker. I will not pursue any publication in print that does not have holy water sprinkled on it by the attorneys. In the meantime, I will continue to ask permission for use on my nonprofit web site and try to do the right thing. Moral high ground seems the best guide
 
joerookery said:
In the meantime, I will continue to ask permission for use on my nonprofit web site and try to do the right thing. Moral high ground seems the best guide
Click to expand...

And that is about all we can do.
 
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