Copyright infringement?

lifeandtimes

Im not sure if many people are aware but currently there is a popular cafe with an even popular social media page making headlines regarding use of a photograph depicting breastfeeding "without" the photographers permission.

The short of it is the photographer contacted the page and asked them to take it down as they hadnt credited them and there was no watermark on the photo. The page refused and instead credited the photographer in their own well known way. They have since recived word the photographer is looking to take it too court

The cafes defense is the picture was posted online and is available without any water mark,they had taken it from another page. They also have shown evidence of the photographer publicly stating on their own social media page that they allow anyone and everyone to share their work. Another argument is that the popularity and controversy surrounding this issue has catapulted the photographer into the public eye thus giving them more exposure than they had ever generated before.

Also to point out the photographer is based in the us and the café in ireland.

Who do you think is right and wrong, if it goes to trial who you think will win or can the page have any defense and can anyone provide links or info to copyright law and what jurisdiction this would all fall under?

Look forward to some responses and discussions on the matter

Paulw

The photographer is in the right. Under copyright law, the image rights belong to the photographer, no matter if the images is on the internet or not. The cafe took the image and used it, without properly confirming the image rights. Seems fairly simple.

Peregrinus

Paulw wrote: »

The photographer is in the right. Under copyright law, the image rights belong to the photographer, no matter if the images is on the internet or not. The cafe took the image and used it, without properly confirming the image rights. Seems fairly simple.

Well, except for this bit:

lifeandtimes wrote: »

[The cafe has] shown evidence of the photographer publicly stating on their own social media page that they allow anyone and everyone to share their work.

If this is true, the cafe could argue that the photographer has licensed the use of the image, and their use is in accordance with the licence given.

Of course, in these circumstances the photographer can withdraw his licence at any time. But if he (a) writes to the cafe telling them not to use the image, but (b) still maintains a webpage granting a general licence to the whole world to use his images. there's a least a degree of confusion, on the basis of which the cafe might escape liability, or at any rate damages.

ED E

Is a "share" a reproduction? Id argue its not. Its basically a fancy hyperlink of sorts, same way when I site X in a paper I'm not reproducting their material.

In any case I'm pretty sure Zuckerberg now has unlimited licence to the image too once the photog uploaded it per the TOS.

Peregrinus

Mmm. If I open your webpage and see a particular image, a copy of that image has been created in my computer, visible on my screen. And, if a copy has been made, you have a potential breach of copyright.

Even though the last step in the chain that led to the creation of that copy was me opening the webpage, the courts generally (and sensibly) take the view that the copy of the image has been created not by the person who opens the webpage or the owner of the computer on which the webpage is viewed, but by the person who creates and maintains the webpage; the website owner.

It doesn't matter, for this purpose, whether the website owners inserts code which calls up the image from data that he owns or maintains, or calls up the image from data owned or maintained by someone else. As long as he inserts code that calls up the image and causes it to appear on your screen, he is the one who has created the copy that appears on your screen.

lifeandtimes

I can see the cafes argument regarding the use of the image and permission given to the general public and then withdrawn specifically for the cafe.

A quick search and the image itself is populated in a search engine and the webpage linked to it does not have a watermark on it and there is no citation to the photographer which the cafe could use as an argument for where the image was found.

The cafe could argue the above regarding permission and where the image was located possibly absolving them of liability or damages but i wonder how the courts would view how after the fact of the matter was brought to their attention,how they went providing the credit to the photographer,i cant go into specifics however it was in a satirical way for which the page is known. My guess is probably not very favourably but then again does providing author accreditation have to be in a certain way or tone or as long as they are credited without certatinty is them whats the issue?

Peregrinus

it doesn't - except as noted below - make any difference where the cafe found the image that they used in their website. It wasn't their image; therefore they couldn't assume that they had a right to make a copy of it. They didn't need to know who the true owner was in order to know that it wasn't them.

The one exception would be if they found the image among a stock held out as being "rights-free". In that case, the owner of the website/database in which they found the image is representing to them that the image is rights-free and may be freely copied. It's probably justifiable to rely on that representation, but only up to the point where the true owner of the image contacts you and says, no, it's not a rights-free image; it belongs to me. If you go on making copies of the image after that point you're in trouble.

Watermarking/acknowledging ownership is not really relevant. If you need the owner's permission you need the owner's permission. If he gives you permission on condition that you watermark the image/acknowledge his ownership then, fine. But if he doesn't give you permission you haven't got permission, and unilaterally adding a watermark or acknowledgement isn't going to change that.

Paulw

The cafe admitted that they just found the image on google (not Facebook). They took them image and used it. They were then requested to stop using it, mainly because it gave no credit to the original photographer. They then gave a credit to the photographer, which ridiculed the photographer, and said they would not remove the image because they had now credited the photographer and were giving them publicity.

Just because others have breached copyright by taking the image and removing the watermark, doesn't now give this cafe the right to also do it, especially after being contacted directly by the photographer.

The cafe had no right to take and use. They didn't make any attempt to get permission from the photographer.

whippet

I saw the posts and the reaction of the café owner.

While he has received praise for the way he views the gluten free nonsense and his ultra liberal views ... he has an ego that can't possibly apologise for anything. he was in the wrong, given an opportunity to make amends and decides to go on the offensive.

His shenanigans are just tiresome at this stage

Kings Inns or bust

Might one distract the thread as to what standard a photograph must reach before it can be copyrighted? My understanding is it's quite a low threshold but it's somewhat of an interesting discussion. I'm more than happy to start my own thread OP if you feel this is OT.

Personally and for the sake of argument I believe the standard to be too low with my, admittedly, poor understanding of the jurisprudence.

Losty Dublin

Perhaps a better question here is how the photographer can enforceable their copyright on a practical and cost effective level both generally and specifically in this case. The two parties are in two different jurisdictions so taking it legal is not an ABC option; what happens next?

golfcaptain

lifeandtimes wrote: »

The short of it is the photographer contacted the page and asked them to take it down as they hadnt credited them and there was no watermark on the photo. The page refused and instead credited the photographer in their own well known way. They have since recived word the photographer is looking to take it too court.

The cafes defense is the picture was posted online and is available without any water mark,they had taken it from another page.

She gave them opportunity to take it down, fair enough. Response is to publicly deny the request and basically insult the photographer, all while showing complete lack of understanding of how copyright works.

lifeandtimes wrote: »

They also have shown evidence of the photographer publicly stating on their own social media page that they allow anyone and everyone to share their work. Another argument is that the popularity and controversy surrounding this issue has catapulted the photographer into the public eye thus giving them more exposure than they had ever generated before.

As others have said, the first point here is crucial. Can someone please point me to where this free licence was given? The second point doesn't deserve consideration.

ED E wrote: »

Is a "share" a reproduction? Id argue its not. Its basically a fancy hyperlink of sorts, same way when I site X in a paper I'm not reproducting their material.

In any case I'm pretty sure Zuckerberg now has unlimited licence to the image too once the photog uploaded it per the TOS.

No, the cafe wasn't authorised to upload the image, Facebook have no licence as the uploader had no licence.

lifeandtimes wrote: »

I can see the cafes argument regarding the use of the image and permission given to the general public and then withdrawn specifically for the cafe.

After a quick search I haven't been able to see this global copyright waiving the photographer supposedly gave. Can someone point me to it? Not being sarcastic, it's a crucial piece of the issue. Regardless, she PM'd the guy to ask he remove it.

lifeandtimes wrote: »

A quick search and the image itself is populated in a search engine and the webpage linked to it does not have a watermark on it and there is no citation to the photographer which the cafe could use as an argument for where the image was found.

The cafe could argue the above regarding permission and where the image was located possibly absolving them of liability or damages... does providing author accreditation have to be in a certain way or tone or as long as they are credited without certatinty is them whats the issue?

Finding an image on a search engine that is distributed freely without apparent copyright does not mean there is none and that you can use it freely, just the same as with music. Crediting the copyright holder does also not mean you can take and use copyrighted materials as you wish.

Kings Inns or bust wrote: »

Might one distract the thread as to what standard a photograph must reach before it can be copyrighted? My understanding is it's quite a low threshold but it's somewhat of an interesting discussion. I'm more than happy to start my own thread OP if you feel this is OT.

Personally and for the sake of argument I believe the standard to be too low with my, admittedly, poor understanding of the jurisprudence.

I'm not sure what you mean here by standard.

Losty Dublin wrote: »

Perhaps a better question here is how the photographer can enforceable their copyright on a practical and cost effective level both generally and specifically in this case. The two parties are in two different jurisdictions so taking it legal is not an ABC option; what happens next?

Contact poster and/or/then lawyers. Facebook also have procedures for dealing with this type of thing but does not mean it absolves the poster of responsibility.

afatbollix

As the photographer was from the USA and facebook is based in the USA would it not be US law that should be followed?

Fred Swanson

This post has been deleted.

lifeandtimes

golfcaptain wrote: »

As others have said, the first point here is crucial. Can someone please point me to where this free licence was given? The second point doesn't deserve consideration.


After a quick search I haven't been able to see this global copyright waiving the photographer supposedly gave. Can someone point me to it? Not being sarcastic, it's a crucial piece of the issue. Regardless, she PM'd the guy to ask he remove it.

Please see attached for your reference

lifeandtimes

Fred Swanson wrote: »

Facebook is HQ'd in Ireland. Check and mate for the copyright holder.

So would that mean the copyright holder would have to bring charges to cafe under irish law and press charges here?

Fred Swanson

This post has been deleted.

Paulw

lifeandtimes wrote: »

Please see attached for your reference

I would also assume that the free distribution relates to breast feeding, and not to advertising a cafe. The image gives permission to "raise awareness and celebrate mamas". Very different from the cafe usage.

The photographer should have immediately lodged a case with Facebook who would have removed the image within minutes. They are usually very good with that stuff.

lifeandtimes

Paulw wrote: »

I would also assume that the free distribution relates to breast feeding, and not to advertising a cafe. The image gives permission to "raise awareness and celebrate mamas". Very different from the cafe usage.

The photographer should have immediately lodged a case with Facebook who would have removed the image within minutes. They are usually very good with that stuff.

I get your point however to play devils advacate the image was used in conjunction with a tongue in cheek joke regarding breastfeeding,the joke being that breast feeding is welcomed and encouraged at the cafe however a corkage fee applies. Now whether he would actually charge it or not is not up for debate but the fact he is raising awareness and promoting breastfeeding at the establishment would fit the criteria under which permission was originally given would be the argument

whippet

The copyright owner said it was free to share .. Not free to use .. Cafe owner did t share the image they used the image without credit.

The cafe owner has history of 'knowing he is right about everything' and anyone who takes issue with him is a tool.

Lovely sort of bloke I'd say

Kings Inns or bust

golfcaptain wrote: »

I'm not sure what you mean here by standard.

There is an argument, which I can't quite get on board with, but I'm not far off it, that a photograph should not attract copyright. It is after all, a mere recording of the light reflected from an object. While I can get behind the idea that once a certain level of work goes into the photograph, analogous to music merely being a vibration of the air, I believe we've set the standard too low. Surely a candid snap of a woman breastfeeding in the instant example is just that, the pressing of a button? Perhaps not this is the very discussion I'd like to have. Why should someone profit from that?

One needs to get rather technical (legally) and look at some of the decisions of various jurisdictions of the purpose of copyright. Langwallner and Kolodzinski refer to the Feist decision as 'consider[ing] the reductio ad absurdum argument' of a telephone directory being able to attract copyright protection. Now I've trouble understanding David when he's speaking in English, let alone Latin, but surely compiling and laying out a telephone directory is more work/skill/judgement - whatever standard you wish to apply - than snapping a button at the right time?

I find myself agreeing with O'Connor J in so many areas that perhaps the accusations of right wing leanings are justified, but that aside her rationale of copyright protection as primarily to drive and encourage creativity is a seductive one. Surely the photography of such a medium is unlikely to suffer from the reduction in copy rights?

I'm willing to argue with myself here and say that copyright protection flows not from the same Constitutional underpinnings in Ireland as they do in the US and rather from the more pedestrian protections of the livelihood and private property. Nonetheless I would enjoy sparring with someone who has an alternate point of view.

golfcaptain

Paulw wrote: »

I would also assume that the free distribution relates to breast feeding, and not to advertising a cafe. The image gives permission to "raise awareness and celebrate mamas". Very different from the cafe usage.

The photographer should have immediately lodged a case with Facebook who would have removed the image within minutes. They are usually very good with that stuff.

This is nearly identical to a response I've just written up before I read yours! I would add another potential argument is that the post by the photographer doesn't confer that everyone is free to share her pictures, merely those who have contacted her: "Many of you have contacted me to ask... you are more than welcome to share..." Of course the cafe may argue that as it was posted publicly it could reasonably assume it was free to use it.

lifeandtimes wrote: »

I get your point however to play devils advacate the image was used in conjunction with a tongue in cheek joke regarding breastfeeding,the joke being that breast feeding is welcomed and encouraged at the cafe however a corkage fee applies. Now whether he would actually charge it or not is not up for debate but the fact he is raising awareness and promoting breastfeeding at the establishment would fit the criteria under which permission was originally given would be the argument

An interesting argument and one I'd be making as the cafe but there's a counter to be made that all posts by a business are for the purpose of advertising that business. The fact it may also raise awareness and promote breastfeeding does not negate that fact. I don't know enough to say if this is a fair contention though.

Kings Inns or bust wrote: »

There is an argument, which I can't quite get on board with, but I'm not far off it, that a photograph should not attract copyright. It is after all, a mere recording of the light reflected from an object. While I can get behind the idea that once a certain level of work goes into the photograph, analogous to music merely being a vibration of the air, I believe we've set the standard too low. Surely a candid snap of a woman breastfeeding in the instant example is just that, the pressing of a button? Perhaps not this is the very discussion I'd like to have. Why should someone profit from that?

A book in the same view is merely the recording of words on a page. I would argue that the lighting, composition etc. of a photograph meets such a standard of being copyrightable. I wouldn't agree that photos should be held to a higher standard just because it is possible that less 'artistic/professional' work went into creating it. If that were the case, I could, by chance, happen to take the most incredible picture in history and not have any rights to it. I'm sure there's a better way to phrase this but it eludes me right now! One of the principal aims of copyright as I understand it is to guarantee the holders right of commercial use of their works.

One needs to get rather technical (legally) and look at some of the decisions of various jurisdictions of the purpose of copyright. Langwallner and Kolodzinski refer to the Feist decision as 'consider[ing] the reductio ad absurdum argument' of a telephone directory being able to attract copyright protection. Now I've trouble understanding David when he's speaking in English, let alone Latin, but surely compiling and laying out a telephone directory is more work/skill/judgement - whatever standard you wish to apply - than snapping a button at the right time?

I find myself agreeing with O'Connor J in so many areas that perhaps the accusations of right wing leanings are justified, but that aside her rationale of copyright protection as primarily to drive and encourage creativity is a seductive one. Surely the photography of such a medium is unlikely to suffer from the reduction in copy rights?

I'm willing to argue with myself here and say that copyright protection flows not from the same Constitutional underpinnings in Ireland as they do in the US and rather from the more pedestrian protections of the livelihood and private property. Nonetheless I would enjoy sparring with someone who has an alternate point of view.

I'm afraid my knowledge of the relevant case law is virtually non-existent so I'm not sure I'd be able to contribute much to a deeper discussion! I would suggest though that one of the key ways copyright encourages creativity is by protecting the owner's right of commercial exploitation, much the same way that economic prosperity is encouraged by individuals free enterprise and profit generation under capitalism.

It's always interesting to read how the interpretation of concepts such as copyright have massive implications to how they are applied in different jurisdictions.