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Largo
Sport climber
The Big Wide Open Face
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Sep 25, 2010 - 01:12am PT
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So this is on their blog(editorial) but really its commercial use.
When priced as editorial running for 1 year at that small size its about $150.
Switch that to what it really is (advertising/commercial use) and the price jumps to $720.
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You might get that rate if you're Jerry D., and Ford is the client, but you'll rarely if ever get that much for web use, and never for books.
I've had my stores filched so many times and stuck here and there that I can't even keep track of it.
JL
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Ghost
climber
A long way from where I started
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Sep 25, 2010 - 01:26am PT
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You might get that rate if you're Jerry D., and Ford is the client, but you'll rarely if ever get that much for web use
But if that kind of unlicensed use is never challenged, it will only increase. So, yeah, you may not get $700 from them for swiping your image, but even if you get no dollars you'll almost certainly get you image pulled and they'll think a bit before stealing someone else's image.
There are two issues at play here:
First, given that information has gone almost completely digital, copying is easy. The only way to ensure that your work is not illegally copied is to not publish it.
Second, if you do demand restitution every time your work is stolen, you'll probably get something, and you'll be doing your part to keep the stealing under control.
It's an imperfect world.
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Josh Higgins
Trad climber
San Diego
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Topic Author's Reply - Sep 25, 2010 - 05:41pm PT
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I sent them an e-mail on Friday asking for compensation for the use of the photograph. I copied the photographer, a friend and climbing partner. We DEFINITELY have the original and it is our picture. I asked them for compensation, but did not specify and amount yet. They haven't replied, but it's a weekend.
Thanks for all the information! You guys rule!
Josh
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Chaz
Trad climber
greater Boss Angeles area
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Sep 25, 2010 - 06:45pm PT
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Good luck!
I'll be interested to know what happens.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Sep 25, 2010 - 07:33pm PT
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Munge,
my point was that there was NO breach of contract because a contract didn't exist (ie. there was no prior agreement).
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rmsusa
Trad climber
Boulder
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Sep 25, 2010 - 08:04pm PT
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That's a decent foto. Get your panties out from where they're all wedged up in there and get over it. Are you embarassed about it? Just see the chance to maybe make a buck? Send a link to all your friends and they'll be impressed. The foto isn't even yours (or ours, as you said a post or two ago). It's a blog entry, not a commercial and you aren't exactly famous anyway. How, exactly, does this damage you?
Just my opinion.
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Jingy
climber
Somewhere out there
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Sep 25, 2010 - 08:30pm PT
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I've always been under the impression that, unless you put come kind of block on something, so that it cannot be saved to someones computer.. that it's fair game.
Just like the expectation of privacy.. out in public, you should have no expectation, but behind closed doors, yes.
But that's just my opin, means nothing, unless some jackass wants to come along and call me a moron (but I already admit.. I am a moron).
So I search the quickest way I no how:
Wikipedia:
Copyright can subsist in an original photograph, i.e. a recording of light or other radiation on any medium on which an image is produced or from which an image by any means be produced, and which is not part of a film.[10] Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit.[10] The owner of the copyright in the photograph is the photographer - the person who creates it,[11] by default.[12] However, where a photograph is taken by an employee in the course of employment, the first owner of the copyright is the employer, unless there is an agreement to the contrary.[13]
Copyright which subsists in a photograph protects not merely the photographer from direct copying of his work, but also from indirect copying to reproduce his work, where a substantial part of his work has been copied.
Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies.[14] A consequence of this lengthy period of existence of the copyright is that many family photographs which have no market value, but significant emotional value, remain subject to copyright, even when the original photographer cannot be traced, has given up photography, or died. In the absence of a licence, it will be an infringement of copyright in the photographs to copy them.[15] As such, scanning old family photographs to a digital file for personal use is prima facie an infringement of copyright.
Certain photographs may not be protected by copyright. Section 171(3) of the Copyright, Designs and Patents Act 1988 gives courts jurisdiction to refrain from enforcing the copyright which subsists in works on the grounds of public interest.
U.S. Copyright Office (FAQ page)
http://www.copyright.gov/help/faq/faq-fairuse.html
Some dudes Blog:
http://www.templetons.com/brad/copymyths.html
Yet another likely suspect:
http://www.photosecrets.com/photography-law.html
Then there is figuring out how much money you lost in the theft....
I'd hate to get into this... but.. really... It's not like you have proof that you posted an individual photo to your facebook paeg, marked it "private" and then found it used in a singles website advert.. That might be worth looking into..
But if it was posted to a forum.. I see it as fair game.
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Srbphoto
climber
Kennewick wa
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Sep 25, 2010 - 10:57pm PT
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the issue for the op isn't the copyright of the image. He wasn't the photographer. Unless the photographer signed over the rights to him, they are not his. His beef has to be about them using him in an advertisement without permission (to the website or to the photographer).
The question is whether the blog is an advertisement or an editorial.
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Srbphoto
climber
Kennewick wa
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Sep 25, 2010 - 11:01pm PT
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and where?
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Jerry Dodrill
climber
Sebastopol, CA
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Sep 25, 2010 - 11:34pm PT
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The question is whether the blog is an advertisement or an editorial.
No, there is no question about that. The question is whether or not the company had permission from the copyright holder to use the image on their website/blog at all. Whether editorial or advertising, the usage needs to be authorized. By grabbing it and using without asking the copyright holder's permission they are violating that holder's right to be compensated for their creative property. Both print and online editorial and advertising uses are licensed from photographers and stock photo agencies all the time and do not fall under the fair use doctrine.
Now that the unauthorized use has been established, it is up to the copyright holder to pursue or not pursue the damages. The copyright holder is not obliged to do this. However, the issue of the talent having claim to damages is a whole 'nother story, one in which if the photographer was being smart they would have a signed release from the model to use the image as they wish, in which there is no case. That is where this could get interesting. In theory the model could hold the photographer liable to pursue protection of their copyrighted photo, and here it starts to fall beyond the scope of my experience.
FWIW, I see this as an editorial use. Even though it IS on a commercial website, it is not being used to directly sell or advertise a product or service.
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Srbphoto
climber
Kennewick wa
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Sep 25, 2010 - 11:47pm PT
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Jerry - you are right, the rights still go to the copyright holder whether or not it is editorial.
The interesting part is he would probably have to go after his buddy (the photographer) as well.
Or can the photographer go after the OP for unauthorized use of one of his photographs?
This is fun!
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Jerry Dodrill
climber
Sebastopol, CA
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Sep 25, 2010 - 11:49pm PT
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Josh,
I'm wicked ignorant about this stuff. I have photographs posted on the internet. Backcountry.com took one, and used it in their blog. A simple question: Is that legal? In short, NO.
Is a copyright automatically assigned to original works?
In Short, Yes.
"How does this work...?"
read copyright basics: http://www.copyright.gov/
I don't mind significantly, I just asked them to provide a reference. They should provide a credit to the copyright holder (usually the creator), but not necessarily the model, as that info would normally be in the caption if there is one. There isn't always a caption.
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Jerry Dodrill
climber
Sebastopol, CA
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Sep 25, 2010 - 11:54pm PT
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Srb, Those are good questions that I'm sure these guys can work out amongst themselves without lawyers. Whenever I forward images from a shoot I usually advise them in an e-mail about what they can do with them, and embed my contact and copyright info in the metadata, and often add a watermark in the image.
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Srbphoto
climber
Kennewick wa
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Sep 25, 2010 - 11:57pm PT
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I hope this doesn't affect their friendship. haha
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Ken M
Mountain climber
Los Angeles, Ca
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Sep 26, 2010 - 10:38am PT
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Yes, it is likely legal. It would likely fall under "fair use" doctrine, which allows limited use of copyrighted material for certain purposes:
"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
=The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
=The nature of the copyrighted work
=The amount and substantiality of the portion used in relation to the copyrighted work as a whole
=The effect of the use upon the potential market for, or value of, the copyrighted work"
From: http://www.copyright.gov/fls/fl102.html
It is clearly being used as news reporting, and education as to what they are talking about when they talk about "high risk" climbing.
Parsing through other sites on the subject, the real issue is if the photo is being used in a commercial way--that is, to make money for the enterprise. I can't see how BC would make money from that posting.
So...seems to be legal use, if impolite.
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the kid
Trad climber
fayetteville, wv
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Sep 26, 2010 - 10:39am PT
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sue them...
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Jerry Dodrill
climber
Sebastopol, CA
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Sep 26, 2010 - 12:19pm PT
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Thanks for your input Ken. However I will politely disagree. I just don't see any relevant correlation between the news story about a guy getting busted for speeding in Calgary and Josh Higgins free-soloing in Utah. If anything I find it to be somewhat defamatory, as if Josh were the criminal. If it was a picture of the guy who was busted, it might be closer to being news. But even then the news source would need permission to use the photograph.
As to how BC.com would make money from the posting, check the first link at top left of the page that says "Store". As in, "while you're here reading this "news" story, why don't you buy some new gear?"
I just don't understand why everyone is trying to find excuses to declare things "fair use."
From your link: The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation.
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Josh Higgins
Trad climber
San Diego
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Topic Author's Reply - Sep 26, 2010 - 01:10pm PT
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I originally asked for a credit to be added to the photo. A rep replied to my e-mail and told me that a credit would be added. Instead, the guy who runs the blog changed the picture. They have not replied to the request for compensation yet.
Josh
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Josh Higgins
Trad climber
San Diego
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Topic Author's Reply - Sep 27, 2010 - 11:37pm PT
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Last update: They took the photo down, apologized, and told me they wouldn't give me compensation for the use of the photo. They said it was a blog and not for commercial use. I thanked them for the apology and told them I hope that they stop using photographs illegally in the future. The guy who actually runs the blog seems like a dick from his response in the comments.
Josh
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