Copyright and "Fair Use" - Photolaw.net

[Dread_Pirate_Mel]

This came up in another topic but it would be useful to post it as a separate thread so it won't get lost.

Photolaw.net, written by two US copyright lawyers, has excellent articles about copyright, fair use, etc., which should clear up any confusion on this subject:

- Copyright Law and Online Use

- Did Someone Remove the Copyright Notice from your Photograph?

- Common Questions & Answers About Copyrights: A Simple Guide for Photographers, Artists, Illustrators, Writers, Musicians and Other Creative Individuals

This section explains that physical ownership of a copyrighted poster provides no additional rights beyond the right to physically display it:



Other portions explain fair use:

[CSM]

Isn't "posting a poster" what a poster was originally intended for?

I am also curious how long (i.e. years) the actual copyrights are on movie posters?

[Dread_Pirate_Mel]

Isn't "posting a poster" what a poster was originally intended for?

Yep.

I am also curious how long (i.e. years) the actual copyrights are on movie posters?

It varies from country to country and when it was created, so it's rather complicated. US law is explained here:



Essentially all studio-issued movie posters created after 1978 are works for hire that are copyrighted for at least 95 years.  Posters created before 1978 may or may not be in the public domain.  

I don't worry about it because "fair use" generally allows posting of images of copyrighted posters on non-commercial hobby websites and forums.

Unfortunately, fair use may not apply in countries other than the US.  UK, Canada, and Australia have a much more limited "fair dealing" exception to copyright.  So if you're creating a website hosted outside the US you better understand your country's particular copyright laws.

[Dread_Pirate_Mel]

Long article in the NYTimes yesterday after artists' estates suing filmmakers who use copyrighted works in their films without permission.  Picasso's estate is particularly litigious.

Art Is Long; Copyrights Can Even Be Longer
NY Times, April 26, 2012

It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.

*****

Artists’ copyright is frequently misunderstood. Even if a painting (or drawing or photograph) has been sold to a collector or a museum, in general, the artist or his heirs retain control of the original image for 70 years after the artist’s death.

Think of a novel. You may own a book, but you don’t own the writer’s words; they remain the intellectual property of the author for a time.

So while MoMA owns the actual canvas of “Les Demoiselles,” the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043.

*****

It looks the NY Times is afraid of being sued too.  Look at the picture they chose to use in the article - a picture of a TV set, playing the movie Titanic, showing the Picasso work “Les Demoiselles d’Avignon.”

[brude]

It looks the NY Times is afraid of being sued too.  Look at the picture they chose to use in the article - a picture of a TV set, playing the movie Titanic, showing the Picasso work “Les Demoiselles d’Avignon.”

That is rich.
The old Gray Lady's afraid to kick the hornet's nest. 
That paper lost it's nerve long ago...
Great article, Mel.

[archie leach]

It's called 'illustrating the point'...   

[Dread_Pirate_Mel]

As mentioned in an earlier post, I became a "member" of LAMP, which offers the very detailed "Legality of Movie Posters" book for reading online.

It is copyrighted original research, so I won't go into too much detail or copy any of it here.  In summary, it lays out very clearly how the studios almost always used publicity stills that were NOT part of the movie as the basis for movie posters.  As such, they had to be SEPARATELY copyrighted  from the film but almost never were properly copyrighted, so under the old 1909 copyright law the posters IMMEDIATELY fell into the public domain when they were published.  

The full site also includes the recent case of Warner Bros. Entertainment, et al. v. X One X Productions, et al., App. No. 10-1743, in which Warner Brothers explicitly conceded that the original Gone With The Wind posters had immediately fallen into the public domain when published in 1939:

Warner Bros. asserts ownership of registered copyrights to the 1939 MetroGoldwyn-Mayer (“MGM”) films The Wizard of Oz and Gone with the Wind.  Before the films were completed and copyrighted, publicity materials featuring images of the actors in costume posed on the film sets were distributed to theaters and published in newspapers and magazines.  The images in these publicity materials were not drawn from the film footage that was used in the films; rather, they were created independently by still photographers and artists before or during production of the films.  The publicity materials, such as movie posters, lobby cards, still photographs, and press books, were distributed by the  original rights-holder, MGM’s parent company Loew’s, Inc.,  and did not comply with the copyright notice requirements of the 1909 Copyright Act, 17 U.S.C. §§ 1 et seq. (1976) (superseded effective 1978).  Warner Bros. also asserts ownership of registered  copyrights to various animated Tom & Jerry short films that debuted between 1940 and 1957.  Movie posters and lobby cards for these short films also were distributed without the requisite copyright notice. As a result, Warner Bros. concedes that it has no registered federal copyrights in the publicity materials themselves.

[guest4208]

It would seem that ebay has a different view about this. Here is their policy ....

You're not allowed to use the following if you're not authorized to do so by the owner, its agent, or the law:

Photos and text from other eBay users

Photos and text copied from websites

Scans from catalogs or advertisements
 
Members can't copy pictures or text from another member's listing unless they're authorized to do so by the owner, its agent, or the law. 

If you believe another member is using your photos or text in violation of these guidelines (for example, the pictures are not included in the eBay product catalog and the member is not otherwise authorized by you, your agent, or the law to use them), please follow these standards when contacting us:

Make sure you are the original owner and creator of the picture or text.

If reporting text, the copied text needs to be in the description. Because of the limited space in which to describe items, some similarity will occur between titles and subtitles for the same merchandise, so we won't typically remove a listing for similar text in these areas.

Provide an item number from your account that clearly shows you were the first to list an item with the photos or text you created. If you reuse your photos and text in many of your listings, please give us the item number of the earliest possible instance of using the photos or text.

[Dread_Pirate_Mel]

That's a very general policy and Ebay's legal and business concerns are not those of a typical collector. Furthermore EBay can set restrictions for its site beyond what is legally required. Certainly under US law it is frivolous to claim an ownership interest in a digital image of a movie poster.

[ddilts399]

Basically ebay whats no stock photo's unless their, "use the barcode to build the listing" logic is used. As they go further and further towards a giant B-stock/overrun website, it is not really enforced real strictly.

[guest4208]

I think it is worthwhile being aware of their policy. They do act on reports and complaints. Also, the laws about image use can vary from country to country so if you simply copy an image and load it to the "internet" it might be OK under US law but not under the laws of other countries.

[AdamCarterJones]

Laws vary around the world, of course, but I am a firm believer in crediting the images used on a website to the source (if not your own) no matter what the law states. This gets by a lot of copyright issues.

There are people (including one or two members of this forum) who believe it is perfectly fine to use images as their own and to even photoshop out watermarks, so I think it is worthwhile to note one of the main reasons behind watermarks as is it relates to this thread:

One of the main reasons images are watermarked in the first place is because it prevents others from simply using them as their own. If people stopped stealing images and correctly attributed where they came from then watermarks would be obsolete, but until then watermarks are one of the few ways (in the most part) to stop the theft of images.

[Louie D.]

I recently had an altercation with a local entertainment magazine which stole an image right off my website and ran it without contacting me or crediting me.  Needless to say, when I found out a letter went right to the magazine owner with a bill, which he balked at, and proceeded to berate me over the phone.  Pissed, I made a few inquiries to friends and one suggested I contact a copyright attorney who does a lot of free consulting for artists and musicians.  After a 15 minute conversation with the guy, I had all the tools I needed to go back and confront the paper owner and we settled on a price and they ran a correction.

Two of the things I came out of my convo with the lawyer, 1., no matter how trivial, it pays to get your images registered with the US Copyright office, it's easy, cheap, and you can do it on-line and 2., you don't ever want to go to copyright court with a person or corporation who has more money than god, they will destroy you with lawyer fees, delays, and basically ruin you financially and even if you win, they may appeal til the end of time.  Better to try and settle the case.

I don't know if this has anything to do with the discussion above, but yes, the studios own copyright on all the poster images, they probably just don't have enough time to go after such small potatoes such as people using the images on websites.

[erik1925]

This copyright information is fascinating.

Does anyone know how this would pertain to someone who owns an original release poster, but then goes out and makes prints of this poster and offers them for sale? Do the same or similar laws apply here? We all know that businesses like Moviegoods sell 27x40 (and smaller sized) reproduction prints, and individual sellers on sites like ebay often offer 11x17 reproductions, as well.

 

[Louie D.]

This copyright information is fascinating.

Does anyone know how this would pertain to someone who owns an original release poster, but then goes out and makes prints of this poster and offers them for sale? Do the same or similar laws apply here? We all know that businesses like Moviegoods sell 27x40 (and smaller sized) reproduction prints, and individual sellers on sites like ebay often offer 11x17 reproductions, as well.

 

It's probably not the artists who were either on payroll or contracted to do a job which at the time they sign over all rights.  Like I said, the amounts Moviegoods is making on the reprints is not worth to have people look into it or pay lawyers to go after them.  Now, if one of those entities started pulling in a million or 3 a year on the business, then we may have another story but I doubt it's even close to that.  Plus Moviegoods probably does a print-on-demand thing, I'm sure that catalog is not sitting on the shelf.

Making exact posters of a poster that already exists is a pirate, no doubt about it.  But seeing how the poster is just used for promotion and not many, if any, studios sell them direct, then to make a reproduction of a promotional item is more than likely something they aren't going after.

Whenever I do a photo job, I have retained all copyrights to images and the client contracts for a certain time, either an issue or a campaign, they can use them in advertsing but must always credit me.  I have it written in the contract it's only available for use for a specific time and after that time I must be contacted and the price negotiated, depending on use, or just give them written permission.  I shoot a lot for bands and they can never pay, so my payment is always a credit and link to my site.  Not saying photography is the same as poster art, just relaying my experience.

[Dread_Pirate_Mel]

For you UK/commonwealth people, read this article:

http://www.jiscdigitalmedia.ac.uk/stillimages/advice/copyright-and-digital-images/

Here's the critical portion of the article:

If the original item was in copyright at the time the photograph was taken, then the photograph is an infringement of copyright if permission was not granted. This may mean that you can own the copyright in the photograph but you can't do anything with the photograph because you are infringing the copyright of the original object. If you want to take a photograph of an object in copyright, then you should apply for permission, stating with absolute clarity what you want to do with the photograph. This means that if the copyright owner grants permission they will be giving 'informed consent'. If you leave the details ambiguous and you exploit the photograph, then the copyright owner can sue you. Thus it is in your interests to fully inform the copyright owner of all details.

So the law in the US and UK is the same for poster collectors:

(1) You have zero copyright protection in your images of your copyrighted posters;
(2) You violate copyright law by even taking a picture of a copyrighted poster; and,
(3) You violate copyright law by "watermarking" or otherwise claiming ownership interest in them.  

Fortunately, in the US, "fair use" gives broad protection to use of images on copyrighted posters, so it's nothing to worry about if you're using the image on a non-profit hobby website, although it's still a good idea to credit the copyright owners. Crediting the "contributors" of such images is utterly pointless and, indeed, identifies them as potential copyright violators.

"Fair use" does not apply in UK and the much more limited defense of "fair dealing" probably does not apply to this hobby, so it's a good idea to host your site from US servers, so US law would apply.

*****

As far as MovieGoods, that's been covered extensively in another thread:

http://www.allposterforum.com/index.php/topic,4205.0.html

In short, the studios successfully sued MovieGoods.  MovieGoods settled and in the settlement agreement agreed not to sell illegal reproductions.  They can only sell posters if (1) they have a license from the studio or (2) the poster is a "first sale" original poster.

On another forum MovieGoods claimed that it does license its reproduction and the entire Fox lawsuit was an "honest mistake" but who knows if that's true:

http://www.movieposterdb.com/forum/topic/313

As the Imaging Director of MovieGoods, I would like to just state that we are sincerely apologetic to Disney and Fox for unknowingly reselling copyrighted images, as that was never and will never be our intention. In a business that rotates through as many posters in a year as we do, some posters got through that were mis-marked and ended up being printed, when in fact they were a Disney or Fox copyrighted image. We immediately paid the royalties that were due to these companies for these images. We have an agreement and license with Disney, Fox and several others to sell original posters that are provided by them and we are in great standing with all of these companies to date. All of our reproduced posters that we sale, we make sure we have the license to print and sale these items. The printing of the posters for Disney and Fox was a very unfortunate over-sight that has been corrected and will not happen again. In every business if the workflow is not being carefully monitored mistakes can happen, and this was a very unfortunate and embarrassing mistake to have to learn from.

We thank all of our customers for their business and we look forward to many more years of poster distribution.

Sincerely,
MovieGoods
Imaging Director

[Louie D.]

For you UK/commonwealth people, read this article:

http://www.jiscdigitalmedia.ac.uk/stillimages/advice/copyright-and-digital-images/

Here's the critical portion of the article:

If the original item was in copyright at the time the photograph was taken, then the photograph is an infringement of copyright if permission was not granted. This may mean that you can own the copyright in the photograph but you can't do anything with the photograph because you are infringing the copyright of the original object. If you want to take a photograph of an object in copyright, then you should apply for permission, stating with absolute clarity what you want to do with the photograph. This means that if the copyright owner grants permission they will be giving 'informed consent'. If you leave the details ambiguous and you exploit the photograph, then the copyright owner can sue you. Thus it is in your interests to fully inform the copyright owner of all details.

So the law in the US and UK is the same for poster collectors:

(1) You have zero copyright protection in your images of your copyrighted posters;
(2) You violate copyright law by even taking a picture of a copyrighted poster; and,
(3) You violate copyright law by "watermarking" or otherwise claiming ownership interest in them.  

Fortunately, in the US, "fair use" gives broad protection to use of images on copyrighted posters, so it's nothing to worry about if you're using the image on a non-profit hobby website, although it's still a good idea to credit the copyright owners. Crediting the "contributors" of such images is utterly pointless and, indeed, identifies them as potential copyright violators.

"Fair use" does not apply in UK and the much more limited defense of "fair dealing" probably does not apply to this hobby, so it's a good idea to host your site from US servers, so US law would apply.

*****

As far as MovieGoods, that's been covered extensively in another thread:

http://www.allposterforum.com/index.php/topic,4205.0.html

In short, the studios successfully sued MovieGoods.  MovieGoods settled and in the settlement agreement agreed not to sell illegal reproductions.  They can only sell posters if (1) they have a license from the studio or (2) the poster is a "first sale" original poster.

On another forum MovieGoods claimed that it does license its reproduction and the entire Fox lawsuit was an "honest mistake" but who knows if that's true:

http://www.movieposterdb.com/forum/topic/313

As the Imaging Director of MovieGoods, I would like to just state that we are sincerely apologetic to Disney and Fox for unknowingly reselling copyrighted images, as that was never and will never be our intention. In a business that rotates through as many posters in a year as we do, some posters got through that were mis-marked and ended up being printed, when in fact they were a Disney or Fox copyrighted image. We immediately paid the royalties that were due to these companies for these images. We have an agreement and license with Disney, Fox and several others to sell original posters that are provided by them and we are in great standing with all of these companies to date. All of our reproduced posters that we sale, we make sure we have the license to print and sale these items. The printing of the posters for Disney and Fox was a very unfortunate over-sight that has been corrected and will not happen again. In every business if the workflow is not being carefully monitored mistakes can happen, and this was a very unfortunate and embarrassing mistake to have to learn from.

We thank all of our customers for their business and we look forward to many more years of poster distribution.

Sincerely,
MovieGoods
Imaging Director

Didn't I say the same thing in my last reply?

[erik1925]

Didn't I say the same thing in my last reply?

 

[Ari]

Your honor, I object!

[Dread_Pirate_Mel]

NYTimes: At Sundance, Film Tests Disney and Fair Use

By BROOKS BARNES 2:31 PM ET

Randy Moore’s new film at Sundance, “Escape From Tomorrow,” filmed without permission inside Disney’s theme parks, would seem to test the limits of fair use.

PARK CITY, Utah — Is Randy Moore’s new movie about a father going insane at Walt Disney World simply cinematic art? Or is Mickey Mouse about to get very, very mad at Mr. Moore?

A betting person would put some chips on anger after his movie’s premiere at the Sundance Film Festival here over the weekend.

Mr. Moore, without permission from Disney, filmed “Escape From Tomorrow” inside its theme parks and hotels in Florida and California. If that wasn’t gutsy enough, his film is a horror fantasy that harshly critiques Disney’s style of mass entertainment. It’s not the Happiest Place on Earth in his movie. Not by a long shot.

The movie, while careful to leave out certain copyrighted material (like the “It’s a Small World” song), would seem to test the limits of fair use in copyright law. It has a lot of Disney iconography: Mr. Moore, a first-time director and the movie’s screenwriter, filmed inside at least eight rides, and a lengthy sequence involves the line for a Buzz Lightyear attraction.

How did Mr. Moore get away with it? After all, his cast and crew went on the It’s a Small World ride at least 12 times, filming all the way with high-tech (albeit small) video recorders. “I was surprised the ride operators weren’t a little more savvy,” he said.

“Escape From Tomorrow” underscores the difficulties confronting Disney, intensely vigilant about its intellectual property, as it tries to control the imagery flowing from its parks as people are shooting increasing amounts of video with their smartphones. Disney has followed an increasingly patient approach, allowing video taken inside its rides, for instance, to be uploaded to YouTube. But that video is usually extremely positive.

A spokeswoman for Walt Disney Parks and Resorts had no comment....

[MoviePosterBid.com]

I don't think there's really a question as to whether he did or did not go over some civilly liable line Mel.

He was filiming in a public area, but on private property. Disney owning the property would supercede and public area claims  I would have to think. Furthermore, the film maker is almost certianly liable for unpaid taxes and permits along with any subsequent fines should the state decide to go after him.

Concerning Disney or any other land owner, they have the right to refuse to allow such behavior on the property they own and the fact that the film maker himself alludes to almost being "busted" a few times is representative of the fact that he was aware that he may have been doing something wrong, which wouldn't work in his favor if Disney were to sue him.

Certainly, Disney has since re-trained security to more reliably recognize such episodes in teh future.

[Louie D.]

I hope this goes to trial as I would love to the see outcome. Yes, Disney is a public place on private property, but millions of people photograph and shoot "film" there all the time.

As for the unpaid taxes and permits, I don't buy that argument. Tons of guerrilla film makers out there now doing the same thing and not paying taxes, permits, or having to deal with any union which would certainly rear their head if they smelled the green.
 
I find it fascinating that Disney hasn't squashed it already. The certainly have the economic power to crush this guy so why not do it?

Too bad any lawsuit will take place in Florida, because the mouse will certainly win.

[brude]

Furthermore, the film maker is almost certianly liable for unpaid taxes and permits along with any subsequent fines should the state decide to go after him.

His 'unpaid taxes' are a mere drop in the bucket compared to Disney.
They have enough loopholes to hang the entire Chinese army.

[Bruce]

Only the little people pay taxes, Ted!

<a href="http://www.youtube.com/v/hvZs8VaQIiw" target="_blank" class="new_win">http://www.youtube.com/v/hvZs8VaQIiw</a>

[brude]

If bums like Disney, facebook, General Electric, Springsteen and ALL of Hollywood started paying their 'fair share,' this country could avert a catastrophe.
It's not who you know, it's who you blow.