Photo Ownership - legal questions

[Fred W. Schneider III]

If I forgot ... thanks for the time you and your friend put into researching this.

brathke at juno.com wrote:

> I have received an opinion from my attorney friend, who specializes in
> intellectual property and Internet law, and her comments are reprinted
> below.
>
> Bob 7/4
>
> -----------------------------------------------------------
>
> Online copyright infringement is the source of lots of new law.  I'll try
> to address your questions one at a time:
>
> 1.      If you took a photograph, you obviously have all the rights of the
> copyright owner--to reproduce, sell, publish, etc.  If you "bought the
> rights to it," what you are allowed to do with it will depend on which
> rights are spelled out in the agreement under which you bought it.  If
> it's not specified in the agreement how the photo is to be used, it is
> not generally safe to assume that you can do everything you want with it.
>  The best course of action is to discuss it with the copyright owner, or
> better yet, have it spelled out in the agreement.  Having purchased the
> rights to a photo does NOT give you the right to give permission to
> someone else to use it, on the web or otherwise.  It is the copyright
> owner's exclusive right to give permission to use the copyrighted photo.
>
> You are right that a photo should not go on the web without the
> photographer's permission.  If there is no photographer's name on the
> photo and it is very old (50+ years), it MAY be in the public domain and
> probably would be okay to use with a credit to the person from whose
> collection it came.  If the photo is not that old but has no
> photographer's name on it, a similar attempt at credit is a good thing to
> do.
>
> 2.      The person "publishing" the photo--i.e., the website owner--has the
> responsibility to assure that whatever he publishes is not violating any
> other's rights under copyright law.
>
> 3.      If a photographer sees his photo in an unauthorized use on a website
> and he has registered the photo for copyright with the U.S. Copyright
> Office, he typically would send a letter asking the website to cease and
> desist from using the photo.  If the request to remove isn't successful,
> he can sue in a federal court for up to $10,000 per infringing use (or
> the profit gained from the unauthorized use, whichever is greater), plus
> costs and attorney's fees to file suit, plus enjoin any further use and
> request a court order for the destruction/termination of any infringing
> uses.  If he didn't register the photo with the Copyright Office but just
> put the (c) symbol or notice on the photo, he can still enjoin further
> use and request a court order for the destruction/termination of any
> infringing uses, but can't get any money damages.
>
> 4.      Placing the copyright symbol on a photo DOES give the photo some legal
> protection.  It puts the world on notice that the photographer owns the
> rights in that photo, and that if they use it without authorization, he
> has the rights of a copyright owner.  This is true for websites, too.
> The law does not require that you actually register with the Copyright
> Office to claim exclusive rights to a copyrighted work--and gives you the
> right to stop infringing uses.  Registration lets you claim those rights
> AND sue in federal court AND get money damages and attorney's fees.  This
> is as true for websites as it is for any other copyright-able work, such
> as a photo, book, painting, sculpture, etc.
>
> 5.      After the photo is scanned and uploaded, the photo with the copyright
> line no longer at hand, you really should make SURE that the information
> on that copyright line somehow follows the picture attached as a caption.
>  If the copyright owner can show that it's his photo that was used
> without permission, and that copyright line (called "Copyright Management
> Information") is not included, the infringing use could fall under the
> new No Electronic Theft Act, which provides additional money damages and
> criminal prison terms(1-6 years) for online copyright infringement.
>
> Hope this answers more questions than it raises, Bob.  If you do have any
> other questions, please feel free to e-mail me.  And if there's anything
> else I can do for you, please let me know.
>
> -------------------------------------------------------------
>
> On Wed, 28 Jun 2000, Dietrich, Robert J. wrote:
>
> Dave has already given me permission to use anything on his site but I
> realize he
> doesn't always obtain proper permission.  So what should I do?
>
> -------
> There's a difference between what may be the "legal thing" (as contrary
> to
> threats which have been made by company lawyers when they didn't
> like the way something had been linked to, there's no case law on this
> yet
> that I can find or that's been cited) and what may be the "right thing",
> which
> you'll have to decide. Intellectual property battles can get nasty so I
> try to stay away from the whole deal altogether, generally making
> available stuff which is directly mine, but also now old documents from
> expired companies. I suppose it's possible someone owns rights to
> PRCo and PRR documents, but I'm not going to worry about it for now.
>  ------------
>
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