Terms of Service - Copyright Issue - Fair Use

[Mitchell]

I am a copyright lawyer, so I was interested to read this sentence in the Terms of Service: 

"You also agree not to post any copyrighted material unless you own the copyright or you have written consent from the owner of the copyrighted material." 

Under the Fair Use Doctrine of US copyright law, there are many circumstances in which copying does not require the consent of the copyright holder.  For example, I might post a photo of someone else's to discuss and criticize it.  Or I might create a new work by copying, clipping and reassembling elements of other people's work into something new.  The British/Canadian doctrine roughly equivalent to Fair Use is called Fair Dealing, and it isn't quite as expansive.  Still, imho, it might make sense to amend the Terms of Service to add ". . . or permitted as Fair Use or Fair Dealing."

[Wayne Fox]

While your points may be true , I'm not sure how having a stricter policy as stated in the terms isn't within the rights of the website owners. 

[Mitchell]

Certainly the website owner can impose stricter terms.  But it would be reasonable for the site not to impose unnecessary restrictions, and the legal risk of recognizing that people may have further rights is negligible.   

[bjanes]

Certainly the website owner can impose stricter terms.  But it would be reasonable for the site not to impose unnecessary restrictions, and the legal risk of recognizing that people may have further rights is negligible.   

Copyright applies to printed material as well as to images. According to the strictest criterion one could not quote from copyrighted material hers on the forum without violating the copyright. Under the fair use doctrine, one could post excerpts from copyrighted material. To avoid plagiarism, one should cite the source. What is your legal opinion?

Bill

[Jonathan Cross]

Oh dear, I hope that this is not opening a 'Pandora's Box'.  I live in the UK and this thread prompted me to look up the Government's statements on https://www.gov.uk/exceptions-to-copyright

There are two points in that web page that may be pertinent.  The first is, 'You are allowed to copy limited extracts of works when the use is non-commercial research or private study, but you must be genuinely studying (like you would if you were taking a college course). Such use is only permitted when it is ‘fair dealing’ and copying the whole work would not generally be considered fair dealing.

The purpose of this exception is to allow students and researchers to make limited copies of all types of copyright works for non-commercial research or private study. In assessing whether your use of the work is permitted or not you must assess if there is any financial impact on the copyright owner because of your use. Where the impact is not significant, the use may be acceptable.'


The second is, 'Fair dealing for criticism, review or quotation is allowed for any type of copyright work. Fair dealing with a work for the purpose of reporting current events is allowed for any type of copyright work other than a photograph). In each of these cases, a sufficient acknowledgment will be required.

As stated, a photograph cannot be reproduced for the purpose of reporting current events. The intention of the law is to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor’s publications.'


My reading of this, FWIW, is that one has to be very careful to ensure one is not having any financial impact, and that any comment is genuine criticism, with any photographic reproduction not being of a current event.  Given that LULA reaches many countries, I have sympathy with a policy that is cautious and does not allow any possibility of contravening copyright.

Jonathan

[Chrisso26]

It only makes sense for LULA to cover itself for all eventualities.
In reality, people quote from other sources, and link to other photographic work all the time.
Internationally, copyright is a can of worms.
I'm a creative professional and I have been subjected to others 'stealing' my work. In many cases it is deliberate and on a grand scale. Debating the fair use of a photographic critique or a quote from another publication is not even worth worrying about IMO. This site is one of the good guys, so why question it's policies?

[Rajan Parrikar]

Just today, a photo of mine was used by a publication in California without permission, without license etc.  Is this "fair use"?  I don't think so.

See here.

It was taken from this blog entry -

http://www.parrikar.com/blog/2012/12/20/legends-of-silicon-valley-thomas-kailath/


PS: I am attaching a screen grab of the web page in case they decide to cover their tracks.

[Eric Myrvaagnes]

I hope you'll send them an invoice, Rajan.

[Rajan Parrikar]

I hope you'll send them an invoice, Rajan.

I did, Eric. 

The initial response was quite astonishing (well not, really - I am inured to this kind of thing by now).  To paraphrase, "we thought that blogged photos without the copyright mark are up for grabs."

[Slobodan Blagojevic]

... "we thought that blogged photos without the copyright mark are up for grabs."

And yet, with or without the copyright mark (©), by printing your name, they respected that copyright. Go figure. I guess they thought such an explanation sounds better, kind of "honest mistake."