Hi,
I need advice from a copyright legal-eagle on the inline image which I have removed but used to appear in this comment.
Thanks,
Lucia
38 thoughts on “Copyright legal eagles?”
Comments are closed.
Hi,
I need advice from a copyright legal-eagle on the inline image which I have removed but used to appear in this comment.
Thanks,
Lucia
Comments are closed.
you mean they contacted you about linking to this
http://hostedmedia.reimanpub.com/BNB/Images/2006/ON06/Cardinals_fBoxV.jpg
The most significant legal fact about inline linking, relative to copyright law considerations, is that the inline linker does not place a copy of the image file on its own Internet server. Rather, the inline linker places a pointer on its Internet server that points to the server on which the proprietor of the image has placed the image file. This pointer causes a user’s browser to jump to the proprietor’s server and fetch the image file to the user’s computer. US courts have considered this a decisive fact in copyright analysis. Thus, in Perfect 10, Inc. v. Amazon.com, Inc.,[5] the United States Court of Appeals for the Ninth Circuit explained why inline linking did not violate US copyright law:
Google does not…display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects…in which a work is fixed…and from which the work can be perceived, reproduced, or otherwise communicated†and thus cannot communicate a copy. Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights. …While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act…does not protect a copyright holder against [such] acts….
Here is a comment on that Perfect10 case. I agree with Steve, though it was an element of that case that it concerned thumbnails.
Mosher’s comment refers to a somewhat different issue (and should have a link and quotation marks so as not to be plagiarized). In that case, copyrighted material was published on websites, and Google then provided inline links to that material. Google wasn’t sued for its inline linking, but rather, because its inline linking was linking to unlawfully distributed copyrighted material. So while the decision is still relevant to the issue being discussed here, it doesn’t provide an “answer.”
When it comes to copyright infringement on the internet, there are three main provisions which may be relevant (found in 17 U.S.C. § 106). The first two are distribution and reproduction provisions, neither of which are relevant to this topic (inline linking doesn’t make copies). The third is the only one you have to worry about, and that’s the public display provision (106(5)). There have been lawsuits filed based on this provision, but so far, nobody has won one. To my knowledge, the only argument which has been raised against inline linking for this is it alters the context of the image. It hasn’t been accepted or dismissed by the courts (it’s validity was basically ignored as the courts in that case decided fair use doctrines outweighed it whether or not it was true).
As it stands, there is no legal precedent for claiming inline linking is copyright infringement. However, there is also no clear-cut decision preventing such a claim. It’s unlikely inline linking will ever be considered copyright infringement, and your linking to a handful of pictures won’t caused any financial damage (which is a prerequisite for any real legal action), so you have little legal reason to worry.
Of course, there are non-legal reasons to avoid inline linking. For example, it’s often considered rude to do it if the image’s owners don’t give permission. You also run the risk of the image’s owners changing that image, either on their site or when receiving referred requests from your site. It is relatively easy to force someone’s inline links to display a different image, meaning the image’s owners can make whatever they want show up on your screen. This can lead to unpleasant situations.
By the way, while I consider myself quite knowledgeable about copyright issues, as always, I advise you take any advice you get on the internet* with a grain of salt.
And huh. Apparently my RSS reader isn’t working for this site anymore.
Steven Mosher, the other problem is if you are “hot-linking” it, you are using the resources of the other server to store and display the info.
As I understand it, taking a figure from a paper or limited text and storing it on your computer for internet publication purposes falls under the “fair use” rubric.
Brandon:
Yep, especially if they get irritated with you hotlinking their image because you are a high volume site (like a major network), or they just want to screw with you
One example that comes to mind is when the LittleGreenFootball guy replaced an image after he noticed AlJazeera.com had hot-linked his original image. In that case, he replaced the hot-linked image with the Mohammad cartoon.
On the upside if there is an error on a graphic that you hotlink, and they fix it, the fix automatically propagates to your site.
Carrick:
Unfortunately, it isn’t that clear-cut. Fair use has many aspects to it, and they are weighed against each other. Generally, what you say is right. However, it is possible such internet publication of the image will cause enough economic damage to the copyright owner as to make you liable. Whatever damage may be done is weighed against one’s “fair use” rights, and that determines if any wrongdoing took place.
It’s especially bad as they can change the image which shows up on your site without affecting the one they show on theirs. Indeed, the can display different images for each site hotlinking to them. That makes the “screwing with” factor so much more desirable.
Steven–
Yes. I got a “Getty Letter”. But it was for the other images — which is also inline linked so the perfect10 should apply. I spent the morning googling. Boy do they send out a lot of letters.
I’ll post more about the Getty letter. But I want to post an image of the current temperatures. 🙂
Brandon-
It’s not the blog site owners whose image I hotlinked who are unhappy.
Oh, sorry for misunderstanding you. If your trouble is with Getty, that’s a different story. Getty is insane when it comes to copyrights, and it’s well-known for shady tactics. The letters they send to people are almost always baseless, and they’re basically designed to intimidate people into complying. And that’s for people who actually host the images themselves. If they’re sending a letter to you because of images you’ve simply hotlinked to, they almost certainly don’t have a case.
I have to say though, I’ve never heard of Getty going after people for hotlinked images. That seems like a new low. I can’t begin to imagine what they say is the legal basis for their claim.
Ok… now that I’ve posted the temperatures…
This morning, I received a “Settlement Demand” letter from an outfit called “Getty Images”. If you google “Getty Settlement Demand” you will find they send letters with quite intimidating wording to many, many people. I don’t know the details in the other cases. However, in my case, they allege copyright violation and demand $875.
As far as I can see there is no copyright violation on my part because the image is not hosted on my server. That is: I linked to an image elsewhere. So, the comments by Mosher and Shollenberger should be relevant to the issue. My interpretation of the law is like Brad’s.
Oddly, googling about it also appears that the US copyright law is worded to deal harshly with people who write intimidating letters demanding money from those who did not violate copyright.
Discussions at Forums, blogs and elsewhere suggest that Getty has never followed up on a demand letter with a suit — but I don’t know if that’s actually true.
Lots of the online discussoins are clearly useless. One online site seems to be a lawyer who is offering to write letters for $130/hour. (Which might be entirely fair. Nevertheless, obviously, no one wants to spend $130/hour for a lawyer to write letters when it seems Getty is sending out letters alleging copyright violations where none exist.)
Lucia,
I would agree with Mosh (now there’s a first) that the ‘hot-linking’ is least likely to be a copyright violation, although it might cause others to bristle about ‘bandwidth theft’, which i’d think would, by now, be a historical artefact rather than a problem.
Usual Caveats, IANAL, and I’m more familiar with the UK situation, but I’d be interested to see EXACTLY what they’re clzaiming for their money. In the UK we usually refer to Arkell vs Pressdram…
🙂
I actually know a Getty. Not that it will help.
Maybe I’m missing something here, but if you put a sentence in something you write locating a photograph publicly displayed on the wall of someone’s coffee-shop are you risking an infringement response?
Suppose that photo is hanging on the wall behind a couple of guys enjoying a beer together, and photographed, maybe at heartland?
This might be a bit tortured, but at least this time data are not being tortured, but what it looks like you did was to provide directions to view the bird photo in its natural habitat, the one Getty must be intent on protecting. If they are so concerned about the bird’s being viewed, why is it publicly accessible by a url?
My legal naivete lets me think that a discussion of these issues with the wit which our better attorneys can sometimes muster would be a joy to read.
Lucia, was the complaint solely about reffing the photo of the Cardinal?
Has Getty been retained by the bird-photo owner? Or is this a pro bono effort?
Maybe Getty needs a stiff response (the verbal kind) suggesting other possible outcomes to the matter that they have surfaced.
j ferguson (Comment #86443) November 29th, 2011 at 11:19 pm “Maybe I’m missing something here, but if you put a sentence in something you write locating a photograph publicly displayed on the wall of someone’s coffee-shop are you risking an infringement response?”
No, because that doesn’t cause the image to be reproduced. A URL in a img tag does cause the image to be reproduced and the intent is for the image to be reproduced. So there is a copyright issue and a moral rights issue (in the intellectual property rights sense that the creator of the image retains some rights over an image, such as attribution).
Nyq Only:
the route indicated in the url seems likely insufficient to be an attribution. Is it insufficient?
Can the originator of the image require that an attribution contain more information than he has provided at the place where he has made his image public?
Lucia has benefited through the use of the image (increased interest in her post) without compensation to the image owner, nor attribution, but wouldn’t the morality of this action depend on ignoring a tangible expression of its owner’s rights. If he publicized the image without indicating that he wished to maintain an interest in any further use how would Lucia know that she shouldn’t refer to it?
To return to a possibly absurd concept, suppose it wasn’t “reproduced” by lucia’s url, but instead provoked to display itself, and in an identical way as if it had been happened upon by the class of viewer for which the image had been posted?
I’m trying to comprehend how an image poster who doesn’t assert ownership where the image is posted should expect to retain the rights that he might have had otherwise.
The photos of another blog i frequent contain “watermarks” which name their creator. I don’t know if the watermark is sufficient as an attribution, likely not, but at least with those photos, ownership is clearly asserted.
It comes down to how much care must a blogger take not to infringe the rights of a web published image owner?
Lucia, I think this seems pretty sound advise, and it is the approach I would take. The site warns “And, they are likely to go after anyone, even for one image, that simply ignores.”
Removing the hot link to the image is the minimum response. Acknowledging that you have removed their image is probably necessary too.
I think, agreeing with other sentiment, since the image was not hosted on your website, I believe you have no legal liability for linking to it (even hot linking it), but it is responsible for you to “cease and desist”.
Wiki has some text on that.
If you want to go with the legal theory on “hot-linked” image vise vi Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), I would suggest consulting a lawyer to write the response letter on your behalf, then post both the getty legal extortion letter along with your lawyer’s response (with his permission of course, but since you paid for it, legally you would own it anyway).
I suspect there are plenty here who would be willing to hit the tip jar to pay for it. And if you’re up for it, it sounds like a fun adventure. I’m also pretty sure it isn’t in getty’s interest to having this question tested in court.
Chuckles, if your (free-host) site has a monthly cap on bandwidth, then having somebody from CNN hot-link your website can still affect you.
Other advice from that site:
Let getty make all of their money through legal extortion. Let’s see how long they stay in business that way. My prediction is it will be a lawyer who turns the lights out for the last time.
Brandon, I usually go on the theory that as long as they permit the authors (and others) to link full pdf file, they aren’t likely to go after me for using a limited reproduction for educational or research purposes. (If a legal department were to ask me to remove it, I would do so, but I’d also write the society’s president asking for clarification on their policy.)
I’d be more concerned (and would acquire permission) were I actually getting one of those fat commission checks from the nefarious climate disinformation consortium that Michael Mann keeps alluding to. Perhaps I should write Michael asking him if he has their mailing address. I have a feeling the easy life is right around the corner.
Lucia, if you do go with legal advice, be sure to ask about class action law suits against getty’s extortion letters.
j ferguson (Comment #86446) November 30th, 2011 at 12:42 am Nyq Only: “the route indicated in the url seems likely insufficient to be an attribution. Is it insufficient? ”
I’m not an expert but I would think so -particularly as the URL isn’t actually displayed and the creator isn’t necessarily listed in the URL. However note that attribution is a separate issue from copyright and I think the legal threat Lucia received pertained to copyright rather than moral rights*
I only brought up the attribution issue because it is easier to see how an in-line image from another website can be a violation of moral-rights.
[*by the way I think ‘moral right’ is a stupid name for it – sounds like a tautology – but that is the term used]
Carrick
There is a large forum where people are discussing the history. It seem they have never followed up the letter with a suit for someone with one image. They have filed suits however.
In my case, I can’t follow her advise because…. I didn’t copy! That is: it’s not on my server, so I can’t delete it. I did respond. I told them they were in error and there was no copyright infringement in my case. I also told them I took the hotlink down as a courtesy.
I think it is not true that I would be required to take it down. Google was not required to stop framing images– which involves hotlinking them. The court was pretty clear on the hotlinking. The only copyright issue was related to their storing thumbnails on their server. So, the Google issue is more complicated, but would seem to clarify my case. I haven’t stored anything.
j ferguson
Yes. Displaying. I don’t think their crawlers look to see where the image is hosted. It just scans pages and compares. So… in this case, they are wrong. There is no violation.
Nyq
Correct. Also: I linked from a site where the image had been cropped and blurred.
My guess is they are violating copyright– but there was no attribution. I’d happily attribute. I’ve now seen the photographer’s images and — when not blurred & cropped– they are quite lovely.
Oddly, the same image appears to be downloadable for free at the photog’s personal site!
Perhaps they are claiming artistic input for the blurring and cropping 😉
Rob-
The letter wasn’t from the person who cropped, blurred and hosted the image. I have no idea whether that blog has a license– but it seems unlikely the image would be cropped or blurred by someone who did have a license.
I wouldn’t be concerned. Its more of an annoyance than anything else.
http://en.wikipedia.org/wiki/Inline_linking#Copyright_law_issues_that_inline_linking_raises
Kevin-
Yes. But I’ve also been putting together a little file of oddities associated with the particular claim. I don’t know if the oddities would make any difference with respect to Getty v. alleged copyright violator, but some things seem strange.
For example: Using the “method of the eyeball”, it appears to me image of the cardinals is available both on the photographer’s PhotoShelter hosted blog and at Getty Images. That the same time, it appears that the standard licensing agreement for Getty grants Getty exclusive license to market blah, blah. But the standard one for PhotoShelter also gives them a right. INAL, but it seems to me that if Getty has an exclusive right to something, PhotoShelter can’t have simultaneously have an sort of right to do the same thing. Meanwhile, the text on one of the photographer’s page seems to suggest you can phone them to discuss purchases– which would mean… what?
I don’t know what order various licensing agreements relative to that picture of two cardinals might have been entered into, but it seems to me that things could get thorny!
I’ve also been reading the http://www.extortionletterinfo.com/forum/ I posted a few comments there also.
Thanx for the link back to the ELI forums..GI in this case has no standing as was decided in the Perfect 10 case… FYI I’ve been involved with this for almost 2 years and continually do research on a daily basis ( i’m no lawyer tho), and to date Getty has only filed a few suits and they have NEVER filed suit over 1 image. It would cost much more to file suit in Federal Court where the defendant is located, than they would ever collect EVEN IF they won. It is also widely known that a vast majority of Getty’s images are not properly registered with the US copyright office…meaning they could not seek statutory damages, bringing the number they could possibly win to around 200.00.. I will also note that the cardinal image you referenced is part of the “stone” collection which is registered, but again it is registered as a compilation, and I think this also effects the amount of damages..
BuddhaPi, if you do research on a daily basis, it might be a good idea to go back and read the federal copyright laws. I say this because you made a dangerously false comment:
You say Getty “could not seek statutory damages,” thus they could only win approximately $200. This is wrong on two counts. First, the value of $200 is found in § 504(c)(2), and it is not the maximum Getty could recover. In actuality, § 504(c)(1) sets the minimum at $750 and the maximum at $30,000. § 504(c)(2) does not override this fee, but rather, allows the court, at its discretion to lower the fee to as little as $200. However, the court is not obligated to do so, and it could still set the amount at as much as $30,000. In fact, it could award Getty more than that if it decides to also include court costs and lawyer fees.
However, your comment was wrong on a second count, and it largely mitigates the first. You say Getty “could not seek statutory damages,” yet the $200 you refer to is from statutory damages (technically you don’t seek damages). § 504(c) deals only with statutory damages, and the only other form of damages are actual damages, covered by § 504(b). § 504(b) does not have any maximum set.
If a person cannot recover statutory damages, they cannot recover actual damages (statutory damages are used to replace actual damages in the court proceedings), and thus, they cannot be awarded anything by a lawsuit. If a person can recover any sort of damages, the only minimum you can be sure they can recover is $30,000.
I suspect you know a lot more about Getty than I do, but if you want to give people advice about how to handle copyright issues, you really ought to sit down and make sure you understand the copyright laws. The information is readily available online, and if nothing else, I’d suggest you familiarize yourself with this section.
“So… in this case, they are wrong. There is no violation. ”
I wouldn’t be certain of that. I don’t know about US copyright law but the status of even plain links to other sites is unclear in Australian IP law (although commonsense dictates that the web would be stupid if you needed explicit permission to link to other sites). The image link is just the method by which the image was reproduced.
Brandon
I have a question. To some extent some of this makes me curious. Over on the other forum, some said a number of things I haven’t verified. One that I haven’t verified is that the copyright holder or the agent with exclusive rights must sue in the federal court applying to the alleged violator. Is that true?
If so, I live near Chicago which is under the 7th circuit. But I think Dreamhost is in Cali. Do you know which matters? Also,
I just read this:
http://www.iniplaw.org/2011/01/seventh-circuit-affirms-dismis.html
Which closes with
So, I gather from this that in these copyright cases, if Getty loses a case, they might have pay court cases and that I happen to live in the jurisdiction where they have a higher than normal risk of being required to pay them.
Carrick:
If you’re taking a figure from a PDF file, you’re talking about a different subject than I had in mind (perhaps I misread your comment). I was referring to you taking paper text and scanning it into your computer, then publishing that scanned copy.
If the copy in question is already in digital form, and you’re just taking a figure from it, that’s a different matter. In fact, copying just a figure from a printed copy is quite different. Because you’d only be copying a small part of the source material, it would almost certainly fall under fair use. About the only way you would have to worry at all is if you tried to commercialize the figure, and even then, it’d be a weak case. It would have to be shown your use of the figure economically impacted the author of the original figure, and I doubt that would be the case. If you gave credit to the original source, it would have to be some extreme hypothetical situation where you would actually be damaging him or her.
Nyq—
I’ll admit to being sufficiently unsure to have modified the link so it doesn’t display. OTOH– I would do that as a courtesy anyway. Other than that: I’m not in Australia. So, notwithstanding any ambiguity in Austrialia, I’m pretty sure her in the US. In the US is “Perfect 10, Inc. v. Amazon.com, Inc.,” seems to be relevant.
Brandon:
Yes, that is exactly what I do.
What is this strange archaic technology “scanned into a computer” of which you speak? And printed? They still do that?
😉
lucia:
Yes and no. Technically, it is possible for a lawsuit to be filed in the district of the plaintiff rather than the defendent (or any other district, in fact), but doing so requires the plaintiff prove that district has jurisdiction over the other. I don’t know of any way that could happen in a copyright lawsuit, and I don’t think it does happen, but I don’t know enough to rule out the possibility.
If you are being sued, it is where you live. More specifically, it is where your primary residence is (as people can live in more than one state). The only reason it would matter where Dreamhost is located is if they are being sued as well (which couldn’t happen in this case as there is no possibility of joint liability).
That is correct as long as that source is right about the Seventh Circuit. I wouldn’t know one way or the other about that.
Carrick:
It’s strange. I’m probably one of the youngest people posting on this blog, and yet, I always feel so old.
😉 indeed.
I need to correct something I said in a previous comment. When I was making that comment, I inadvertantly included a paragraph I had intended to delete as I realized it was mistaken. Unfortunately, I forgot to, and it is now too late to edit the comment. The paragraph in question is:
This paragraph is wrong. § 412 prevents statutory damages from being considered for unregistered work (with a couple minor exceptions which aren’t relevant here). BuddhaPi’s comment is still wrong on both counts I discussed, but I was also mistaken on a point.
I wrote that paragraph in haste without verifying it, and despite confirming it was wrong, I failed to delete it. I apologize for that, and I hope nobody gets mislead by it. I would go back and edit the comment accordingly if I could, but since I can’t, I hope people will at least see this correction.
(Or if you want lucia, you could strikethrough/delete that paragraph.)
I know what you mean Brandon.
There is a cute little image copyright story on my blog:
http://nigguraths.wordpress.com/2010/05/19/climate-fudge-fraud/
Briefly: I wrote a post about Roger Pielke Jr defending Der Speigel’s characterization of Michael Mann’s ‘Nature trick’ as a harmless thing. He said the trick was ‘just a fudge’ and ‘not fraud’. Pielke Jr used an image for chocolate fudge, presumably gathered from a Google Image search, in his post. Ironically the image of the fudge itself was photo-manipulated (i.e., photoshopped), and my post was about that.
About a year later I was contacted by a comment on my blog by the fudge making company that was using the images in their marketing.
I took the images down.
Thanx for the correction, as stated I’m not an attorney nor do I want to be one, nor was i quoting from the actual law..so maybe I should attempt to rephrase my thinking on this.. as quoted from an attorney..
“There are two general types of damages awarded in copyright cases: statutory damages and actual damages. Statutory damages allow courts to award large numbers per infringement and also award attorney’s fees and enforcement costs. In order to obtain these valuable statutory damages, the “work,” in this case the image, must have been registered with the US Copyright Office. As of this writing, about 1% of Getty’s catalog has been registered. That means in about 99% of the cases, Getty cannot claim statutory damages and may not even be able to get automatic Federal Court jurisdiction, which also requires registration. A copyright holder seeking actual damages, can only get the lost value for the image; they are not entitled to incidental fees and costs.
How you obtained the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office, a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount. ”
This is where I got the $200.00 number from and I tend to agree that any judge that deems it an “innocent infringement” would base his number on a. the innocent infringment and B. the fact that most of these images can be licensed thru getty for 49.00 per image per year ( for royalty free images)..yes their are other circumstances that could come into play if the image is registered..
Bottom line is and remains that GI will most likely not file suit over 1 image, as it’s not a money maker for them. Hopefully this may clear my ignorance in the earlier post.