Create, Consult, Control
News & commentary on intellectual property issues.
Jan042011 | Steve O'Donnell
Safely choosing images for your website
Over the past year I’ve had a few clients come to me with nasty letters from image licensing sites demanding $1000+ for copyright infringement. In these cases, a few simple tips could have prevented them from having any trouble.
1) Don’t just grab images you like from other blogs/websites. You don’t know where those images came from: they may be licensed, they may be original works. If you really, really want to use the image, email the site for permission or information on licensing.
2) If it looks professionally done, it probably is. Many people make money from works they post online and don’t like it if you just take them.
3) Be careful. It’s one thing to download examples from a stock photo site to use to create a mock-up page, it’s another to make that page live without being sure that you have a license to use those images.
4) Don’t assume you have “fair use” rights. Fair use is a very fact intensive defense to copyright infringement. You may think you can do something because of fair use, but, you’re probably wrong. Sorry, I didn’t write the law. Even if you do have a bullet-proof fair use defense. . . it’s a defense, it doesn’t prevent you from being sued or from getting a DMCA takedown notice. It’s something you argue in court, after paying your legal team some hefty fees
5) Wide use doesn’t mean it’s public domain. Sometimes wide use means that the image is just really popular, and brings in license fees.
So, how does one find images that they can use without running into problems?
1) License them. Look for images from Getty Images or iStockphoto or any of a number of other image licensing sites, pay their fees, and comply with their licenses.
2) Creative Commons. Search for images and read/comply with the license. These aren’t totally free, they might not cost money, but they might limit what you’re allowed to do or require a link back or attribution. When I’ve used CC images I’ve sent a copy of the page using the image to the creator and thanked them for their image. I’ve always received a nice thank you from the creator.
3) Use free images. Lots of site republish free images. Pull out your google-fu and search for “public domain,” “free graphics,” or whatever search terms suit your fancy.
One annoying point: even if you use a “free image” or a Creatively Commons licensed image. . . or even a purchased image, you can never be totally sure that the image is clear. There is nothing to stop someone from downloading an graphic and reposting it under a Creative Commons license or otherwise granting a dubious license. If you really, really, positively need an image you are stuck with either creating it yourself or commissioning the work (with the appropriate transfer(s) in place). Otherwise you’re depending on others being truthful and granting rights they have the ability to grant. Of course, I’ve never heard of a case where someone has offered a graphic for license that they don’t have the rights to, but that doesn’t mean that it couldn’t happen. The best course of action is to keep a paper trail for all images you use so that if you receive a nasty letter you can point to your records to explain why you’re not a proper defendant.
If you receive a threatening letter concerning an image you’ve used, you should contact an attorney that is familiar with copyright law to discuss your issue.
That picture. . . well, I had some credits with iStockphoto that were about to expire so I searched for “patent” and after looking at a bunch of lightbulbs found a pair of patent leather boots. It seemed almost relevant.
Jan042010 | Steve O'Donnell
How many copyrights does your blog infringe?
If you are a blogger you’re probably familiar with blog scrapers (sites that take other people’s content and republish somewhere else). Bloggers have a good reason to be upset about scrapers; after all, it is someone else taking your work. However, most bloggers don’t give a second thought about snatching a picture online and using it for a post.
If you find a picture on Flickr, another blog, or somewhere else online and upload it to your own blog (or worse yet, inline link to it from your blog) without permission, you’re committing a copyright violation.
By grabbing whatever picture you find that fits with your post you’re risking damages up to $150,000 for a registered work. Admittedly, that number is an extreme possibility, and probably one that would never be levied against a blogger, but it is technically possible. A more likely damages award would be $750 for a registered work, plus lots more in attorney fees.
Most graphic files you encounter online are not going to be registered with the copyright office, in that case damages would likely be limited to actual damages and an injunction to take down the picture, plus whatever you have to pay your attorney.
More likely than someone suing you for scraping their .jpg is them sending your ISP a takedown notice, which is probably going to result in them taking your site down until you remove the picture. It’s less onerous that taking a $150k hit, but still not good.
If you want to be a good internet citizen, and have the moral authority to complain if your blog gets scrapped, don’t take from others. There are plenty of sources for Creative Commons images, Google Image Search’s Advanced tab will pull such images, as will the Creative Commons' own home. Just make sure you comply with the license.
Image published in 1906 found on cyberlawcentre.org and is from the Library of Congress' Bob Hope Vaudeville and American Variety Archive.
Oct032009 | Steve O'Donnell
Hey dude, don't fear TI. Take a calculator and make it better
For the geeks that came before me, it was the slide rule; for those that came after me it's probably a Linux tablet; but for those around my age, it was the graphing calculator (specifically the TI-81). It was something you could carry like a badge of your geekiness, warning others that they'd probably work for you at some point. Now, Texas Instruments is threatening the programmable calculator geek elite in what appears to be a rather poorly thought out legal and business strategy.
What does a true fan of, well, anything, do with the subject of their fandom? They deconstruct and reconstruct it. Think of it, if you really love music, you make your own, if you really love a show you might write fan fiction or analyze the canon to death. If you really love technology, you tweak it and make it better. So it's no surprise that a group of programmable calculator enthusiasts have taken it on themselves to modify their calculators.
Of course, nothing worth doing is easy, and installing a homebrew OS on a calculator is worth doing, so of course, there have to be hoops. The main hoop is that the Texas Instruments calculators check the signature of software before allowing it to load on the hardware. In order to find the private keys that could be used to unlock the hardware, the public keys were analyzed via distributed computing. Once the key was discovered, the hardware could be unlocked and calculator owners would install their own operating systems.
One might think this would make TI happy. After all, between notebooks, netbooks, tablets and iPhones, I'd think that the market for programmable calculators was not as big as it once was. Of course no one asked my opinion.
TI has instead decided to fire off cease and desist letters under the theory that the anti-circumvention provisions of the Digital Millennium Copyright Act give TI the power to force the suppression of the keys. I think TI, or more appropriately, TI's attorneys are reading even more into the DMCA than there already is and there are some problems that TI would encounter if they tried to assert their claims in court.
First, the DMCA, among other things, prohibits circumvention of technological measures put in place to prevent copying files as well as the distribution of circumvention tools. But, the operating system and boot code on the calculators is not encrypted, so no circumvention is needed to get to it. Second, the DMCA explicitly allows people to reverse engineer code in order to achieve interoperability with other software, such as a homebrew OS. Lastly, there needs to be some nexus between the actions and copyright infringement in order for the DMCA to attach. In this instance, the calculator homebrewers weren't distributing TI's copyrighted code, but were installing their own operating system on their own calculators, so there is no copyright infringement.
Why is TI challenging these homebrewers? I can't say. I don't understand it. I would think that the possibility of selling some more calculators would be more attractive than threatening their remaining customers. Now, I must admit, even though I don't think TI would have much chance in court, that doesn't make it so; the courts have not (yet) ceded ultimate authority to me. But even if TI does have the legal ability to shut down homebrewers I fail to see how they can benefit from threatening their customers.
Photo licensed under the Creative Commons Attribution ShareAlike 3.0 License.
Sorry about the post title.
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Comments
Great advice. I rarely use images on my blog because I don't have time to clear the licenses. I used one recently because wikimedia claimed it was in public domain, but in reality it's a digital reproduction (derivative work) of a 13th Century painting.
If someone sues me, I figure it means either my blog has really taken off in popularity, or someone has waaaaay to much time on their hands ...
Anyway, great post.
post. Do you know, am I wrong about having students follow these same guidelines for their work? Thanks for the advice!
a legal question. I’d say that if you take reasonable efforts to get permission the chances of running into trouble are minimal.