Technology and Business Law Blog

Copyright On Photographs

There has been a lot of buzz about the Obama image titled ‘Hope ‘ designed by Shepard Fairey, a Los-Angeles based street artist based on a photograph taken by Manny Garcia while working on a contract basis  for the Associated Press. So since it was taken by the photographer while being employed by someone, it will be considered a work for hire and the employer owns the copyright to the photograph, unless the photographer specifically retained the copyrights in writing or the employed assigned the rights over to the photographer.

In this case Garcia had no problem with Fairey using the photograph but the copyright owner, Associated Press did and so sued the artist for copyright infringement. The artist is being presented by Anthony Falzone, an attorney and the executive director of the Fair Use Project at Stanford University. Falzone claims that the use will fall under fair use. A similar issue was decided in the Blanch v. Koons case, in which part of a plaintiff’s photograph, was used by the defendant Koons where he had scanned in and modified by removing the background and changing the orientation and coloring. The court held that it was fair use of the photograph since it was ‘transformative’. The Center for Internet and Society at Stanford University has a peice on this ruling and can be read here.

Here is a small treatise on copyrights of photographs.

A copyright is a protection given to a creator of creative works, say a writer, musician or photographer who is credited as the creative party and allows the creator to profit from their work. It’s a set of rights granting to the author or copyright owner, the privilege of being the only one allowed to use that material. The owner of the copyright has the exclusive rights to sell, resell or produce the copyrighted material any way deemed fit.

A photographer owns the copyright to the photos that he or she takes, unless the copyrights were transferred to someone else or if the work was commissioned, then it would be a work for hire and the copyright belongs to the person who hired the photographer’s services. Making images of a photograph and distributing them implicates the copyright holder’s exclusive rights of reproduction, public display and public distribution.

Giving credit to the photographer is not a substitute for getting permission. A good practice would be to get permission and also give credit to the photographer.

As mentioned earlier the copyright holder has the right to reproduce the photos and that would include posting them on another website or homepage. The copyright holder also has the right to alter or change the photo/image and create a derivative work. Even if the copyright holder has given permission to use the image it does the give the user the right to change or alter the image by adding colors, or by other means. If the photo is licensed under a Creative Commons license then it may allow the user to change the image without permission form the copyright holder who would in this case normally be the photographer.

Fair Use

Under the Copyright Act, fair use of a copyrighted work, would be for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and such uses are not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Using the four factor test “fair use” is decided on a case by case basis. When it comes to using photographs without permission then it could be considered to be fair use if the use is for education, research, news reporting, criticism, in public interest or if the photos are transformative or used as parody.

Even if a small part or a portion of the photo is used it could still be considered infringing if that part is substantial. If the part taken is the heart of the work. It will vary on a case to case basis with no set rule as to how much is OK.

The presumption is that if the use is minimal and is not substantial and then it would be considered to be fair use as long as it is used for the purposes mentioned above.

In the case of Perfect 10 v. Google/ Amazon, it was ruled that thumbnail-sized photos (such as those used in Google Image Search results) was not infringing, because under the fair-use criteria, the small photo does not have an effect on the potential market or value of the copyrighted work. Similar result was reached in the case of Kelly v. Arriba Soft Corporation and the court held that defendants’’ use of plaintiff’s images as thumbnails in its search engine is a fair use.

In terms of display of a copyrighted photograph on the web, one would have to use all of the four factors of fair use and look into the nature of the photos, whether the photos are being used for a commercial or for a nonprofit educational purpose, the amount and substantiality of the portion used. If the images are used for commercial purposes then it would be hard to justify fair use unless the work is considered trans formative.

In Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., Tiffany Design created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Specialty produced a composite image of Las Vegas and included images of at least six buildings scanned and inserted from Tiffany’s work. The use of the images and the developments of the composite picture were to create a commercial product. The court held that Scanning and manipulating a highly creative work may be beyond the limits of fair use, especially if the ultimate purpose is to include elements of the original work in a commercial product.

If one is caught using copyrighted photos on their website without permission then the copyright holder can send a takedown notice under the DMCA provision of the Copyright Act, stating that the infringer photo needs to be removed from the website.


February 27, 2009 Posted by | Copyright Infringement | | 1 Comment

Pirate Bay Wins the First Round

I have been reading about the Pirate Bay court trial in Sweden, after all these years of hype and the public looking forward to a long legal battle, the trial has turned out to be a bit of an anti-climax right at the second day. The plaintiffs consisting of  the entertainment industry conglomerate, had accused Pirate Bay of assisting copyright infringement. To assist in infringement the defendant had to help distribute illegal files and the plaintiffs were not able to prove that, and as per the Capitol v. Thomas case heard in the U.S, making available cannot amount to distribution of copyrighted material.

Pirate Bay lawyer has held on to the old argument that  “To supply a service that can be used illegally or legally is not illegal.” Pirate Bay does not host any of the copyrighted material themselves but makes available file sharing BitTorrent technology to search and download files. BitTorrent technology though used for peer to peer file sharing can also be used for other non-infringing uses.

The prosecution  dropped charges relating to “assisting copyright infringement”, and focused on “assisting making available copyrighted content”, stating that “everything related to reproduction will be removed from the claim”. The reason for this was that the prosecution was not able  to prove that illegally distributed files had used the Pirate Bay site.

This is a real set back for the entertainment and software industry but a victory for people who believe in creativity and progress. Just as I have stated before, copyright is losing its grip and with the avalanche of new technology, copyright infringement issues will lose its meaning. Copyright infringement has happened from pre-historic times, when man started drawing figures on cave walls and will continue till the human race exists.

February 18, 2009 Posted by | Copyright and innovation, Copyright Infringement, p2p | | Leave a comment

O v. W

Bush’s shadow still looms over the justice department.

President Obama, as soon as he took over the office issued  memos to designed to improve the federal government’s openness and transparency. The first memo instructs all agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests, while the second memo orders the director of the Office of Management and Budget to issue recommendations on making the federal government more transparent.

In-spite  of Obama’s directive, the justice department is still trying to shield the dirty secrets and methodologies of the Bush administration, which was one of the worst administrations in the history of this country. It was a sham democracy, and the administration conducted more terrorizing activities under the pretext of security than any terrorists from outside the country. All the freedoms and values that this country was built on were cast aside without any recourse. Organization like the EFF, the ACLU and others tried their best to resist these by filing law suits and bringing these issues and activities in the open to create public awareness.

The Bush Justice Department said it would use any legitimate legal argument to defend withholding records from the public.The Obama administration is just advocating the opposite and seeking openness and disclosure, but we might just never come to know the dirty secrets of the past administration. The silver lining is that it is the past administration and thank God it is over and hopefully we don’t have to be subjected to humiliating treatment each time we are in the public for the simple reason that we look different or that our name sounds different.

February 18, 2009 Posted by | Executive Privilege, Security, Surveillance | Leave a comment


There is so much noise about delaying the switch to digital broadcasts from analog transmission, and the FCC has said that it would not allow 123 stations to switch on Feb. 17 as originally scheduled. Congress postponed the deadline last week to June 12, citing concerns that many people were unprepared for the move to digital. FCC said it reserved the right to prevent stations from switching if it posed a public safety threat to particular markets since people who received digital signals on analog televisions would lose access to important public safety information and local news alerts.

For years people have been told that on such and such date there will no longer be analog transmission but still, people are not ready. To know about the difference between analog and digital, read here.

Basically, people are so addicted to watching TV that they cannot imagine a few days without sitting in front of the tube, that is the only disaster, that would happen in their lives, and not really any “important public safety information or local news alerts”. There are other media and channels through which these can be received. I basically never watch TV, I feel that if it is important enough, I will find out about it anyway.

February 14, 2009 Posted by | Uncategorized | Leave a comment

Copyright Humbug

After a long break, I am back and I seem to have developed a writers block. It is funny that when you write on a regular basis thoughts and words flow easily.

I have been thinking about how the concept of copyright got started and after doing a some Googling, just as I had suspected it was a concept which was developed in the western world as early as the 1600’s. It is interesting that the concept caught on in the eastern world only in the mid 2oth  century. Copyright was started to protect the economic interests of artists but in my opinion there is no need to protect a creative process. Most creative works are and have been inspired from something that was already in existence.

Copyright protection is inefficient, unproductive and hypocritical. In the modern era, it protects the economic interests of business conglomerates who create monopolies. It mainly serves the needs of companies like Disney. In fact Disney is one of the companies that thrives on using creative material from every part of the world. For example, it takes ancient tales of Panchatantra, cheapens it, by changing the characters with westernized names and re-spins it out by copyrighting the tales themselves.

Art and the artist did survive and flourish before the copyright protection system was put in place. Taking India as an example, wonderful paintings, music, writings and other forms of art were created without anyone copyrighting them. They have been reused, embellished and new forms have been created out of the old and both the art and the artist thrived. Imagine copyrighting artistic works like the Taj Mahal, well maybe if it could have been done, (still by now would be in the public domain) then there would not be this so called replica Taj Mahal in Bangladesh.

It is interesting to note that some writing of Mahatma Gandhi will soon become part of the public domain and the trust that has the rights to these works will not be seeking to extend the copyrights, since Gandhi himself did not believe in copyright protection.

Each one of us in our everday lives infringe copyrights on an on going basis and if we start listing them, and there was a cop around each time to penalize, our everyday infringement will add up to thousands of dollars per day. In essence, copyright infringement will never cease and if anything will only grow with todays technology. Creative works are creations that should be enjoyed and be allowed to create other things based on them freely.

February 13, 2009 Posted by | Copyright, Copyright and innovation, Copyright Infringement | Leave a comment