Photo Ownership - legal questions

[brathke at juno.com]

Fred,

She was happy to help.  If any additional questions arise on this topic,
let me know and we'll seek another opinion.

I think I'm starting to sound like an attorney!

Bob 7/23

-------------------------------

On Sun, 23 Jul 2000 11:02:06 -0400 "Fred W. Schneider III"
<fschnei at supernet.com> writes:
> 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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> 

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