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06/07/2003 09:33:00 PM · #1 |
Last year i took a picture at a local golf course. I had submitted it to a local website that posts amateur shots and the editor emailed me to thank me and let me know that he would be using it on the home page that week. I thought it would be a nice gesture to frame an 8 x 10 print and give it to the pro at the course. I brought it to him and told him I had taken the shot, submitted it to a local website they had used it on their home page and I was giving him a print that he may want to hang in his office or the clubhouse.
I just went to the golf course's website to check for a tee time and my photo is on the main page. Is this a copyright issue or did I give permission to use the photo by giving him the print?
Any feedback would be appreciated.
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06/07/2003 09:51:23 PM · #2 |
By giving him a print you gave him the right to reproduce it for his own personal use, but not for commercial use. He could email it to his relatives/friends or post it on a family website, but using it as advertising for the golf course is technically a violation.
However, if your print did not include a copyright notice, either part of or clearly affixed to it, you may have waived your copyright.
If this was an "inadvertant error" you can correct it (probably) with the US Copyright Office, but you will probably need to register it before you can take any legal action. I'd also suggest visiting Nolo Press for more books and info on copyright issues. All the forms and documents you will need are available for download.
My suggestion would be to call the guy up and say:
"Hey, I didn't know you were going to use my photo on the website -- actually, it's copyrighted. I'm happy to have you use it on the website, but could you maybe please add a photo credit?
"If the course wants to use the photo on a brochure or something, just let me know and my attorney will arrange a reasonable use fee."
Please note that you do not actually have to have an attorney NOW to make the above statement truthful.
Congratulations!
Message edited by author 2003-06-07 21:53:05. |
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06/07/2003 10:02:39 PM · #3 |
While it is true that he did not have permission to use the photo as an advertisment on the site. If you mention a lawyer they may end up saying that you were not given permission to take photographs of the course in the first place, and it could open a can of worms you may not want to have opened. I don't knwo if the course you are refering to has a pervision like this but it is not unheard of, and you may open yourself to a lawsuit. I would just suggest heeding caution. I think asking that your name accompany the photo is not to much though
Ambrose |
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06/07/2003 10:05:41 PM · #4 |
Thank you for the input. To clarify, the course is a public course and the shot was taken from the side of a public road.
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06/08/2003 04:04:28 AM · #5 |
Originally posted by GeneralE:
However, if your print did not include a copyright notice, either part of or clearly affixed to it, you may have waived your copyright.
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Not in the U.S., and probably not in most other countries, either. Copyright exists from the moment your work is "created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device", which is to say, from the moment you stop visualizing it and actually create it. Copyright notices simply serve as additional, not required, notification.
Giving someone a copy of your work does not infringe your copyright; the 'use' of a work has to be fully authorised by the copyright holder. If you didn't say "you can publish it on your web site", then they can't. (Also, I'm fairly certain a verbal authorisation couldn't be defended in court anyhow; they'd have to show written authorisation to prove you'd given permission and under what terms. This is why publishing works of fiction, for instance, require very specific contracts, as there are all sorts of specific rights you can assign or refuse to assign.)
However, that having been said, registering a copyright in the U.S. is very useful in terms of potential lawsuits, and it may not be possible to recover damages without it, because the U.S. rules on copyright are very strange in terms of lawsuits. U.S. registration costs $30 per work, however, which is more than most people are going to want to pay for every single photograph they took. Even without being able to collect damages, you should have no trouble limiting who can display your work where; infringment has remedies other than monetary, most notably cease-and-desist requirements.
If you are in the U.S., the Copyright Office maintains a FAQ page at //www.copyright.gov/faq.html which covers the above in more detail as well as other issues.
I don't have info handy for other countries, but it should be easy enough to find. |
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06/08/2003 04:25:35 AM · #6 |
From the Copyright Office's Circular 1 (Copyright Basics):
Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected.
The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
Form of Notice for Visually Perceptible Copies
The notice for visually perceptible copies should contain all the following three elements:
1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
Example: © 2002 John Doe
The "C in a circle" notice is used only on "visually perceptible copies." Certain kinds of works--for example, musical, dramatic, and literary works--may be fixed not in "copies" but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are "phonorecords" and not "copies," the "C in a circle" notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.
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06/08/2003 05:14:45 AM · #7 |
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
//www.copyright.gov/help/faq/faq-general.html
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Read again what you quoted. What it says is that a visible copyright notification will automatically trump the defendant claim that "I didn't know it was copyrighted". It doesn't say that the person bringing the suit -- copyright holder or someone acting on behalf of them -- doesn't still own copyright in its absence, it just says that its presence is useful in helping prove the defendant had to have known he was committing copyright infringement. Or, in short, what I said above.
In the absence of the copyright notification, the defendant can claim "I didn't know", but that just limits damages. It does not in any way transfer the rights of the copyright holder, and I believe that the court would still order the person to cease infringement from that point forward, having been properly notified.
Message edited by author 2003-06-08 05:15:09. |
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06/08/2003 05:37:28 AM · #8 |
A reasonable claim of innocent infringement ("he just gave me the picture, he didn't say I couldn't do anything with it, and there was no copyright notice on it ....") would LIKELY result in a cease-and-desist order but probably not a monetary recovery -- that's probably how I would vote if on a jury, unless the circumstances were extraordinary.
I'm not disputing who actually owns the copyright here. Before 1978 it was a much more serious ommission -- you would have to register and file extra forms to document that it was a mistake (like a printer's error) and not an intentionally copyright-free distribution. |
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06/08/2003 05:53:27 AM · #9 |
*nods* It's true he probably couldn't get monetary repartation, but the issue seemed to be use without credit, and for that, registering a trademark and/or a written authorisation agreement aren't really necessary. But either way, you don't give up your copyright by any means, you simply can't get the kind of repartations you could otherwise.
Yeah, pre-1978, copyright was a horror. Luckily, it's been fairly well sorted out since then.
With any luck the issue will be easily resolvable with a clarification of intent and a request for credit anyhow. |
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