ART LAW - Learn to Copyright your PhotographYou Have Permission to cite this website the Educational CyberPlayGround as your source. ( ISTC 301/501 Resources )
Your photos are copy righted by default but to get damages it must be registered. Do put a copyright on your web site.
FAIR USE Disney Parody
K-12 COPYRIGHT LAWS:
PRIMER FOR TEACHERS
Teachers and Administrators Need To Know what is legal to do in the Classroom.
Kelly v. Arriba Soft Corp., 00-5521 says Search engines can display "thumbnails," but not full-sized images of copyrighted works on their Web sites, the 9th U.S. Circuit Court of Appeals ruled 2/6/02. Setting parameters for copyright infringement on the Internet, the court found that reproducing photographs to create thumbnail images is a fair use of the material, but displaying full-sized images violates the copyright owner's exclusive right to publicly display his works. The court found that displaying the full-sized images through linking and framing was not transformative and harmed the market for the original photographs.
Photographs It is ok to take pictures in public places and you can
publish those pictures, though not for purely commercial gain.
You can get in trouble if you publish a photo in such a way that it puts someone in a false light. Much hinges on the "expectation of privacy". The primer from the Missouri Bar gives an overview for journalists. It suggests that so- called "privacy" claims about the photographer profiting from a photo taken in a public place are really more akin to intellectual property claims, namely the ability to control information about oneself. The Photographer's Bill of Rights, offered by an attorney covers taking pictures, not publishing them. A nice summary of this and other interpretations.
Unfortunately, the connection between Nussenzweig's suit and his religion was omitted, perhaps putting Mr. Nussenzweig in an unfair light. Here is the AP explanation (reproduced on WordWide Religious News)
Goldberg said his client's religion forbids, and he has a deep conviction against, reproducing his image by photography or other means because of the belief in the Second Commandment's prohibition against graven images.
"It puts him in a disgraceful light within his community,' Goldberg said. "It violates the tenets of the particular religious sect to which he belongs. He shouldn't be put in a position where people might think he sold out for a few bucks."
There may be some significance to the fact that the objectionable photo was not of a scene nor a crowd, but of the subjects head the photo of Emo Nussenzweig -- a head shot showing him sporting a scraggly white beard, a black hat and a black coat -- ...the photographer took...surreptitiously near Times Square in 2001 and then sold 10 prints of it at $20,000 to $30,000 each.
...The displayed photo of the 80-year-old Nussenzweig was about 3 feet by 4 feet.
VARA - Visual Artists Rights Act
VARA - The Visual Artists Rights Act LAWThe Statute 17 USC section 106A Law protectin certain rights of the artist's works.
A “work of visual art” is--
- (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
- (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
VARA is about the Rights of Attribution and Integrity.
- The artist has the right to be known as the author of the work and that his or her name cannot be used as the author of any work he or she did not create.
- The right to have his or her name removed from a work he or she created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist's honor and reputation.
- The right to prevent the indicated acts provided that those acts harm the artists honor or reputation.
A “work of visual art” does not include the following kinds of art:
- Any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication.
- Any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container.
- Any work made for hire.
- Who Owns a Website Created by Contractors?
- Any work not subject to copyright protection under this title.
TITLE 17 CIRCULAR 92
COPYRIGHT LAW includes information and ideas about copyleft and the cultural commons. Find out how this affects art and culture among researchers, practitioners, administrators, students, scholars, artists, policymakers, and the general public.
Fair Use *is* Fair Play
Obviously, the health of content providers is intrinsically crucial to the health of education. Schools require a steady flow of quality, reliable, accurate information as the source material from which effective educational experiences are built. However, technology changes the transactional basis in fundamental ways.
Using Scanned Images for Webpages
To use scanned images, you need the direct permission of the host/author to do that. If you find information on a government site, I think that that information is public domain. But if you find images on personal homepages/non-governmental sites, you must have direct permission from that author to use their images, unless they've posted otherwise. Citing where the images were found is not enough to use other people's images.
CEO Bill Sagan - Wofgang's Vault - Copyright
VOLUNTEER LAWYERS FOR THE ARTS
Volunteer Lawyers are in Every State, click the link to get a first impression of how many you can find and where you live.
Volunteer Lawyer for the
Since 1969, VLA has been the leading provider of pro bono legal services, mediation, educational programs and publications, and advocacy to the arts community in New York and beyond. Through public advocacy, VLA frequently acts on issues vitally important to the arts community—freedom of expression and the protections to artists under the First Amendment being an area of special expertise and concern. The first arts-related legal aid organization, VLA is the model for similar organizations around the world.
OCEAN STATE LAWYERS FOR THE ARTS (OSLA), which was founded in 1984 as the Rhode Island affiliate of a nationwide network of non-profit public service organizations dedicated to providing legal assistance to visual artists, actors, performers, theatre companies, museums, dance troupes, artists' groups and any other artists or arts organizations in need of help regarding contracts, copyrights, trademarks, tax-exempt status, collection of accounts and any other arts-related problems. See David M. Spatt
FAQ: Questions and Answers
Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?
Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.
There are four major categories of network systems offered by service providers that qualify for protection
under the safe harbor provisions:
- Conduit Communications include the transmission and routing of information, such as an email or Internet
service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
- System Caching refers to the temporary copies of data that are made by service providers in providing
various services that require such copying in order to transfer data. [Sec. 512(b)]
- Storage Systems refers to services which allow users to store information on their networks, such as a
hosting service or a chat room. [Sec. 512(c)]
- Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]
Question: What does "under penalty of perjury" mean?
Answer: Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood."
Question: What are the DMCA Safe Harbor Provisions?
Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.
Question: What may be copyrighted?
Answer: In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photgraphic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. ? 104.
The originality requirement of 17 U.S.C. ?102 demands that a work, in order to be copyrigted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation.
Question: Who may hold a copyright?
Answer: A copyright ordinarily vests in the creator or creators of a work (known as the
author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the
discretion of the owner. 17
U.S.C. ?201(a), (d). In some cases, however, the actual creator is not considered the author of the
for copyright purposes: if a work is created by an employee in the regular course of her employment, it is
considered a "work for hire" and the employer, not the employee, is considered the
"author" of the work for copyright purposes. For example, in the absence of an agreement to the
contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does.
only applies to works created in the ordinary course of employment: if the same reporter writes a novel in
spare time, she herself owns that copyright.
Certain commissioned works may also be considered works for hire. 17 U.S.C. ?201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. ?101.
Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:
(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.
The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.
Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.
Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.
The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
A parody of LV's pattern, replacing segments with a stylized TM to match the stylized LV, and also a © symbol. It's not "infringement" was nor "willful" because you aren't an expert on Tradmark Law so you can't know better.
"PIPG has to be using a trademark in interstate commerce" defense
A little lesson
trademark law pdf and embedded below. LV Nasty Gram and the snippet
This egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking that this type of unlawful activity is somehow "legal" or constitutes "fair use" because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and "must be experts." People seeing the invitation/poster may believe that Louis Vuitton either sponsored the seminar or was otherwise involved, and approved the misuse of its trademarks in this manner. I would have thought the Penn Intellectual Property Group, and its faculty advisors, would understand the basics of intellectual property law and know better than to infringe and dilute the famous trademarks of fashion brands, including the LV Trademarks, for a symposium on fashion law.
from U of Penn's Law School: Intellectual Property Group re: Fashion Law a little lesson in trademark law (pdf and embedded below). Here's a snippet:
You assert that the clever artwork parody that appears on the poster and invitation is a "serious willful infringement." However, to constitute trademark infringement under the Lanham Act, PIPG has to be using a trademark in interstate commerce, which is substantially similar to Louis Vuitton's mark(s), and which is likely to cause confusion between Louis Vuitton's luxury apparel goods and PIPG's educational conference among the relevant audience. First, I don't believe that PIPG's artwork parody was adopted as, or is being used as, a trademark to identify any goods and services. It is artwork on a poster to supplement text, designed to evoke some of the very issues to be discussed at the conference, including the importance of intellectual property rights to fashion companies.... Second, although you don't cite the actual federal trademark registration that you assert protect your marks, I doubt any of them are registered in Class 41 to cover educational symposia in intellectual property law issues. There is no substantial similarity between the goods identified by Louis Vuitton's marks and the PIPG educational symposium. Third, there is no likelihood of confusion possible here. The lawyers, law students, and fashion industry executives who will attend the symposium certainly are unlikely to think that Louis Vuitton is organizing the conference; the poster clearly says that PIPG has organized the event, with support from Penn Law and a number of nationally-known law firms. The artwork on the poster and invitation does not constitute trademark infringement.
You also state that PIPG's use of its artwork parody knowingly dilutes the Louis Vuitton trademarks. I disagree. First, PIPG has not commenced use of the artwork as a mark or trade name, which is a prerequisite for any liability under 15 U.S.C. 1125(c)(1). More importantly, however, even if PIPG has used the artwork as a mark, there is an explicit exception to any liability for dilution by blurring or dilution by tarnishment for "any noncommercial use of a mark." 15 U.S.S. 1125(c)(3)(c). A law student group at a non-profit university promoting its annual educational symposium is a noncommercial use. Lastly, the artwork is clearly fair use....
PIPG's lawyer cited a LV court case to back his claim of fair use and parody. Absolutely
"Lastly, the artwork clearly is a fair use under 15 U.S.C 1125(c)(3)(A), and a parody protected under 15 U.S.C. 1125(c)(3)(A)(ii). See also Loius Vuitton Malletier vs. Haute Diggity Dog, LLC. 507 F.3d 252 (4th Cir. 2007)."
P.S. You can't copyright Fashion!
Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.
The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of copying, and
- the market effect.
The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."
Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
Question: What are the notice and takedown procedures for web sites?
Answer: In order to have an allegedly infringing web site removed from a service
provider's network, or to have access to an allegedly infringing website disabled, the copyright owner
must provide notice to the service provider with the following information:
- The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
- The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider
an "information location tool" such as a search engine, the reference or link to the infringing
- Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
- A statement by the owner that it has a good faith belief that there is no legal basis for the use of the
materials complained of [512(c)(3)(A)(v)].
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].
Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.
Question: What are the counter-notice and put-back procedures?
Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]
A proper counter-notice must contain the following information:
- The subscriber's name, address, phone number and physical or electronic signature
- Identification of the material and its location before removal [512(g)(3)(B)]
- A statement under penalty of perjury that the material was removed by mistake or misidentification
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]
If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]
Question: Does a copyright owner have to specify the exact materials it alleges are infringing?
Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)].
However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.
Question: What are the criteria a service provider must satisfy in order to qualify for safe harbor protection under Subsection 512(a) of the Digital Millennium Copyright Act?
Answer: Subsection 512(a) provides a safe harbor for service providers in regard to communications that do not reside on the service provider?s system or network, but merely pass ?through? the system or network. Any copies of the communications on the system must be temporary, i.e., ?intermediate or transient.?
A service provider must satisfy the following critical elements in order to qualify for the ?safe harbor? or protection from liability provided by subsection 512(a) (note that subsection 512(k)(1)(A) defines ?service provider? as used in subsection 512(a)):
(a) The service provider is an entity offering the transmission, routing, or providing of connections for
digital online communications [512(k)(1)(A)];
(b) The service provider did not initiated the transmission of the material [512(a)(1)]
(b) The transmission, routing, provision of connections, or storage is carried out by an automatic technical process [512(a)(2)];
(c) The Internet user, not the service provider, must select the origination and destination points of the communication [512(a)(3) and 512(k)(1)(A)];
(e) The service provider must not modify the communication selected by the Internet user [512(a)(5)];
(f) The communication is transmitted ?through? the system or network of the service provider [512(a)(2)];
(f) No copy of the communication is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients [512(a)(4)]; and
(g) No copy is maintained on the system or network in a manner ordinarily accessible to anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, and provision of connections [512(a)(4)].