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Copyright Guidlines |
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| Introduction The Questions Tom Owoc’s Thoughts Fair Use Prosecution Conclusion Web resources |
“Only
one thing is impossible for God – and that is to find any sense
in any copyright law on the planet……..Whenever a copyright
law is to be made or altered, then the idiots assemble”
The legal, moral and ethical issues associated with digital photography, scanning and the use of images found on the WWW are complex. This article attempts to answer queries to Communications Services on the subject from Dave Rosenberger of the Hudson Valley Lab, and pertains to image use by Station researchers in slide presentations, particularly.
Like many laws in the United States, copyright law had its origins in England, when, in 1710, the British Parliament enacted “The Statute of Anne.” Eighty years later, the United States Congress enacted the Copyright Act of 1790. Major revisions occurred in 1831, 1870, 1909 and 1976 and came about for various reasons. They included broadening the scope of what is covered, changing the term of a copyright, and taking into consideration new technologies. The 1909 revision, for instance, broadened the scope of categories protected to include all works of authorship and extended the number of years of protection, and two important sections of the 1976 revision extended copyright protection under certain circumstances to radio and television broadcasts and allowed library photocopying without permission for purposes of scholarship.
Copyright law throughout its history has always been difficult to understand, interpret, and apply. Peter Hirtle, Director of Cornell’s Institute for Digital Collections, in a recent lecture on Copyright Law and Distributed Learning, characterized copyright law as “a quicksand and something that defies all logic.”
John Barlow states in Wired, 1994, that “As a result of the new technology, everything we think we know about intellectual property is wrong.”Also, in 1996, Anne Fujita writes in the Journal of Technology and Policy, that, “There is no doubt that the new technology of digitization will have a profound effect on copyright law.” John Pavlik writes in New Media Technology in the same year, that, “Earlier generations of technology have presented challenges to existing copyright law, but none have posed the same threat as the digital age.”
On October 12, 1998, the U.S. Congress passed The Digital Millennium Copyright Act (DCMA) and, two weeks later, President Clinton signed the measure into law. Educause: Current Issues, a web-site out of Washington, DC, identifies as key among the topics included in the DMCA are “the provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and online service provider (OSP) liability including details on safe harbors, damages, and ‘notice and takedown’ practices.”
As a photographer, I am neither a lawyer nor scholar in copyright law. To attempt to read, digest and assimilate all that is available from the Internet and otherwise on this topic proved to be a daunting task, so I sought advice and enlightenment from two sources: Cornell University Associate Counsel Patricia McClary , and two members of the BioCommunications Association who have dealt with these issues extensively, Charles Hedgecock who is a Senior Research Specialist and photographer for the Arizona Research Lab’s Division of Neurobiology, University of AZ, Tucson and Tom Owoc, a photographer at Wayne State University School of Medicine. First we will deal with the responses to Dave Rosenberger’s questions from the two photographers:
#1 - Should photos used in PowerPoint presentations always include credits to the person who took the photo? What if it comes from a web-site where the ownership is unclear? If the person gave me the photos and said I could use them, do I still need to credit them?
Charles Hedgecock (CH): When someone uses a chart, graph, table or other illustration from your work, don’t they reference you? This is something you should do without having to be asked—a small favor for the photographer who is allowing you to use their image. As for web-sites where the ownership is unclear, check with the owner of the web-site to be sure they have the rights to the image in the first place.
Patricia McClary (PMC): Providing credits where available is always a good practice. While it is not a legal requirement, it could reduce your liability exposure in the unlikely event of a lawsuit.
# 2 - Is giving credit on the photo good enough, or does one need written permission for each use?
CH: For educational or personal use “probably not,”but asking the photographer will clear this up.
PMC: Whether you need to obtain permission from the copyright holder depends on whether your use falls within the "fair use" exception to the copyright law. The law identifies four factors to be considered in making this determination:
- the nature of the use (not for profit educational uses are favored),
- the nature of the work being copied (creative works receive more protection than factual works and new reporting),
- the amount of the work (e.g. journal article, photograph, illustration) copied (fair use usually involves the copying of a small portion of the original works; under certain exceptional circumstances the entire work can be copied under "fair use";
- and the impact on the potential market for the original work (courts treat this as the most important factor - if your use will result in a reduction in sales of the original, it is unlikely to be found to be a fair use). This is a fact-specific case-by-case analysis.
# 3 - Where credits are required, what is needed? Just the person’s name at the bottom of the photo?
CH: This will be answered by the photographer when you get permission and ask “How would you like the photo credit to read?”
PMC: If the photo has a copyright notice, i.e. © or (c) name and date of creation, you should reproduce that. In the absence of that, I do not believe there are any rules.
# 4 - Are requirements for a one-time Extension presentation different than they would be for presentations that I might make as a consultant hired by a chemical company? Different than for posting on a web-site? Different than for print media?
CH: This is between you and the photographer. What if they don’t like that “chemical company” and would be offended by the association? You’ll find out when you ask, and, in the case where you are being paid, consider whether they shouldn’t be getting paid as well?
PMC: (1st part of question) See discussion of “Fair Use” factors above. (2nd part of question) Yes. Posting to a publicly accessible website would potentially be a distribution to millions of individuals and unlikely to be a fair use. (3rd part) The “fair use” analysis could produce different results. i.e. for profit vs. not for profit. The number of copies being made is significant for assessing the impact on the market for the original.
# 5 - Provided the source is acknowledged in the presentation, is it legal or ethical to use a digital photo of the front of a magazine cover or of newspaper headlines without express permission of the publisher?
CH: Acknowledging the source should cover you, but perhaps Cornell’s own legal team could better handle this question.
PMC: Here again, a “Fair Use”analysis should be performed. Providing an acknowledgement does not “legalize” what would otherwise be a copyright infringement.
# 6 - In my own photos, should I always superimpose my name (using PhotoShop) in the lower corner of photographs I use on the web or in shared PowerPoint files so that ownership will be transmitted with the photo, or is that approach presumptive or arrogant?
CH: For your own talk, it might be a bit much. If you are concerned that the image may wind up in the wrong hands, having your name as part of the image shows ownership, and, if removed by someone, shows a blatant attempt to circumvent copyright law.
PMC: I cannot speak to what is considered “presumptive and arrogant” in your field, but this sounds like a sensible self-help method to me. Various technological means such as watermarking etc. are being employed by copyright holders and the law has been amended to protect such efforts. Under the Digital Millennium Copyright Act, it is unlawful to remove or alter copyright management information encoded with an electronic work.
In a separate e-mail; Hedgecock offered this advice: “I sometimes ask people to substitute the words ‘Photo on the web’ with ‘Car with the keys in it.’ Thus: ‘I found a car with the keys in it, can I just take it? Or should I find out who owns it and ask first?’ ”
Tom Owoc’s Thoughts:
- As a photographer, I appreciate when someone gives me a photo credit, even though my university technically owns the copyright to any image I produce during work. This brings up an important point: the moment you snap the shutter you, or your institution, owns the copyright regardless of whether it’s registered, watermarked or “signed” in any way. Period.
- Copyright, in most cases, is generally
a toothless law. That is, unless someone profits monetarily or,
in due course, impinges on your ability to make a profit from
your work, it’s usually not worth the effort to pursue claims
against infringement.
- It is legally sufficient if someone
gives you verbal permission to use their images, so written permission
is not necessary. And if, for example, someone submitted an image
to be included in a shared or online database, anyone who uses
that image has “implied consent.” However, I believe
it is always proper to include "© John/Jane Doe"
if you know who created the image. It’s good for business
too. The next time they may not grant permission if you fail to
acknowledge them.
- Acknowledging your sources, like footnoting
a research paper, is generally sufficient to insulate you from
ruffling feathers. If it’s for informative or educational
purposes, and does not result in personal (monetary) gain, you
should be okay. But, keep in mind that private universities with
“big pockets” are a little more susceptible to lawsuits
than “poor” state-funded universities.
- If you’re worried about protecting
your own images—use the digital watermark in Photoshop: FILTER>DIGIMARC>EMBED
WATERMARK... If your name is superimposed in the image it would
be easy enough to remove or crop out. Regardless, you own the
copyright whether it’s indicated or not. Also, always save
your original digital camera file. If push ever comes to shove
in court there is metadata from the camera imbedded in the file
that can help prove it’s your (or, at least, your camera’s)
photograph.
- When in doubt, whenever possible, contact the source for permission. And, to be safe, if you don’t have permission, don’t use an image—no matter where it came from—if you stand to profit from it in any tangible way.
Fair Use
Pat McClary makes reference in several of her responses to the “Fair Use” exception of copyright law, and in her response to question #2 lists the four factors that must be considered in determining what is and what is not fair use. A University of Texas website says of fair use that “We would all appreciate a clear, crisp answer to the question, what is fair use? But far from clear and crisp, fair use is better described as a shadowy territory whose boundaries are disputed, more so now that it includes cyberspace than ever before. In a way, it’s like a no-man’s land. Enter at your own risk.”
From what I have read, (and remember I am not a lawyer) my interpretation of the fair use exception is that it favors the limited use of scanned images and images from websites in scenarios such as department seminars, national and international professional meetings and extension talks since these situations are educational and not for profit. I would, however, be reluctant to say that the same materials used in a presentation made to say a chemical company as a paid consultant would be considered fair use.
Prosecution
Someone recently mentioned to me that copyright in most cases is a “toothless” law. I passed this along to Ms. McClary whose response was: “I would disagree to some extent with this statement. The copyright law contains several provisions that are helpful to plaintiffs and encourage the bringing of infringement suits. These include 1) the awarding of ‘statutory damages’ (generally ranging from $750 to $30,000 per infringement) to owners of infringed works even when the owner is unable to prove that he or she has suffered any economic loss and 2) the awarding of attorneys' fees to the prevailing party—this is rare under US law; a copyright owner with a strong case would not have to hesitate to bring a lawsuit because of the fear that he/she would have to pay his/her attorney's large fees; these could be recouped from the infringer in addition to other damages. The law does contain provisions reducing the amount of damages that can be assessed by innocent infringers (having no reason to believe that his/her actions constitute infringement) and nonprofit educational institutions and their employees who have reasonable grounds for believing that their use of copyrighted material is a “fair use” (under the 4 factor test). These latter provisions tend to discourage lawsuits against colleges and universities.”
Conclusion
And so it appears that copyright law in the digital age remains as complicated, convoluted and vague as it has been over the many years of its existence. Perhaps the best advice is to exercise caution and ask permission. Thomas Field, Jr., from the Franklin Pierce Law Center, points out on one of the Center’s web pages, that “A poem or picture is as much protected on a disk or hard drive as it is on a piece of paper or canvas.” And this from The USGenWeb Project : “The internet is nothing more than another method of publication. Original wording appearing on a web page cannot be reproduced without permission. A web page cannot reproduce material subject to a valid copyright without permission.” It can be inferred from the above statement that original photographs are entitled to the same protection as original wording. Even the manufacturers of digital hardware echo a cautionary note. Epson’s Operator's Manual for their Perfection 1250 Flatbed Scanner, 2001, includes a note concerning responsible use of copyrighted materials. “Digital cameras and scanners, like photocopiers, conventional cameras, and ink jet printers, can be misused by improper copying or printing of copyrighted material. While some countries’ laws permit limited copying of copyrighted material in certain circumstances, those circumstances may not be as broad as some people assume. EPSON encourages each user to be responsible and respectful of the copyright laws when using digital cameras, scanners, and ink jet printers.”
I contacted Bugwood, an insect photo archive and asked the following question: “The use of images section on your web page does not say anything about using images in a talk or seminar as opposed to publication. These presentations are made to peers such as at a department seminar or regional or national entomology meetings. Should information be superimposed on the image itself (slide or electronic image) - if so, how much? - the example citations you provide would prove rather unwieldy. Is there an abbreviated form that could be used as to not detract too much from the photo? -or could attribution be given verbally or in an acknowledgement slide?” The owner of the site replied “For presentations, just use the image as is. If you want to give the photographer credit then list it for example as C. Bargeron/forestryimages.org. Or as you said, list the site as part of the acknowledgements. For presentations to chemical companies, that would still be considered educational use as far as we are concerned.” These requirements will, of course, vary from site to site.
Cornell is developing a copyright site as a joint effort by the University library, University Counsel, and Information Technologies. Although the site is not yet complete, there is some information currently available including Cornell’s Copyright Policy and a section entitled: Web Page Guidelines: Content, Ownership and Responsibilities. In the meantime, University, Pat McClary offers these guidelines: “In general, the rules for scanned images are the same as those that apply to hard copies i.e. those which provide access to the materials may impose license conditions (look for the fine print on those image repositories). ‘Fair use’ permits the making of one copy for individual research or scholarship. Beyond that, one should probably get permission. You should assume that all works are copyrighted even if they don’t have a copyright notice because the notice requirement was removed from the law back in the 1980’s.”
Web resources
United States Copyright Office, The library of Congress
10 Big Myths about copyright explained
Copyright Law in the Electronic Environment
The Great Internet Panic: How Digitization is Deforming Copyright Law
Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web
