Response to Star Trek Fan Film Guidelines

11/6/2015 - Taurid Meteor Shower - Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

11/6/2015 – Taurid Meteor Shower – Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)

In light of the recent lawsuit between CBS and Paramount Pictures and a Star Trek fan film creator, CBS and Paramount released guidelines regarding fan-created films.

Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.

A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:

CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)

Guidelines for Avoiding Objections:
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)

2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)

3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)

In my Starfleet uniform and Trill Make-up, 2000

In my Starfleet uniform and Trill Make-up, 2000

4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)

5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)

6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):

  • CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
  • The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
  • The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
  • The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
  • No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
  • The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)

7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)

8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:

“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

Hanging with the Klingons, Grand Slam Star Trek Convention, 2001

9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)

10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)

CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)

I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.

If you have questions about the legalities of fan art/fiction or you just want to geek out about Star Trek, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Stolen Images: How to Respond if Someone Uses your Photo Without Permission

Caught in the Act by *sax from Flickr (Creative Commons License)

Caught in the Act by *sax from Flickr (Creative Commons License)

What should you do if you discover that someone is using a photo you took without your permission? As the person who took the photo, you are likely the copyright owner, which gives you the right to control where and how your work is copied, distributed, displayed, and used in other works. You may have grounds to sue the person for copyright infringement, but that’s often not a practical course of action, especially if your damages are minimal or the alleged infringer doesn’t have means to pay you the damages.

In many cases, the owner simply wants the person to stop using their image, so what do you do? If your goal is removal of the photo and cessation of further uses, this is one way to proceed.

1. Dial Direct: Contact the suspected infringer directly, inform him/her of your concerns, and request that they remove the image. Many people still believe that they can use any image they find on the internet as long as they give an attribution and a link to the original.

Look for contact information on their website if that’s where the alleged infringement is occurring. If that information is not available, it might be listed on WhoIs from when the person registered the domain.

2. Send a DMCA Takedown Notice: If you can’t contact the person or they don’t respond to your request to remove your image, you can send a DMCA takedown notice to the company that hosts their content. If the image is on a person’s website, be aware that the company that registered the domain is not necessarily the same company that hosts the site. Before I send a DMCA takedown notice, I usually contact the hosting company and verify that they host the site in question. I also ask if there’s a specific email address to use to send DMCA notices or if they have a form on their site for submitting them.

The downside of sending a DMCA takedown notice is that it may result in the image being removed, but only for a short time. The infringer can have the content restored to their site merely by sending a counter takedown notice.

3. Consider the Court or the Court of Public Opinion: If sending a DMCA takedown notice is not effective, you may have to sue the person to get the image removed from their site or account. You may also consider turning to the court of public opinion. If you pursue the latter option, be careful about what you say. You don’t want this person to have grounds to sue you for defamation, false light, or a similar claim.

If you’re interested in seeing an epic copyright battle that was fought in the courts and the public eye, I recommend The Oatmeal vs. FunnyJunk. Be sure to read this update, this one, and this one too.

Of course if you’re in this type of situation, it’s best to consult a copyright lawyer to determine the best course of action based on your specific circumstances. If you want to talk with me about copyright issues, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Using Others’ Content – Legal Dos & Don’ts

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

I’ve received a lot of questions lately about how and when it is permissible to use other’s content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there few black-and-white rules regarding the legal use of others’ content.

Sharing a Post
If you like a post, you may want to share it with others. The legal way to do this is share a link to the original post with your audience. Sharing a link is the digital equivalent of pointing at something. It doesn’t create a copy of it. You will likely be accused of copyright infringement if you copy/paste the content from the original site to your website. Even if you have good intentions, you’re still interfering with the copyright holder’s right to control where their work is copied and distributed.

If you want to share a copy of a post, ask for permission. I get 2-3 requests a year from people who want to print and share copies of a post I wrote for training purposes or as part of a seminar. I’ve always allowed this as long as they include an attribution so the audience knows where it came from.

Commenting on a Post
If you want to quote someone in a post and add your own commentary to their thoughts, that is generally permissible. This is one of the things fair use is meant to protect. It’s best to quote the original post, provide an attribution and a link to the site, and then add your thoughts about it. By adding commentary, you’re more likely to be contributing to the conversation rather than committing copyright infringement.

One of the questions I was recently asked was whether they could write about the same topic as someone else. There’s no copyright protection for facts or ideas, so as long as you’re not copying someone’s working and claiming it as your own, you can write about the ideas as another writer, even without as attribution – unless you quote them.

Using an Image
This was an interesting question – someone asked when they write a post that comments on another person’s work, can they use the image from the original article. This raises a “red flag” for me because depending on the circumstances, it could be permissible or copyright infringement. If the article is about the image itself, then using the image is likely protected by fair use.

Otherwise using the photo from another’s post may be copyright infringement, especially if readers are seeking the original post and accepting yours as a substitute. I could see readers being confused because the image on the two posts are identical. If the image on the original post is not as essential aspect of the story, I recommend using a different image. I usually get my images from Creative Commons that come with the license to modify and commercialize the original.

Copyright and fair use are complicated issues that permeate the blogosphere. Before using another’s content, consider whether what you’re doing is likely to be legal and whether it might be best to request permission before using another’s content. If you have any question regarding using others’ content and fair use, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. If you want access to my exclusive content that’s shared only with my mailing list, please subscribe to the firm’s newsletter.

Why Taylor Swift Won

Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

Taylor Swift 092 by GabboT from Flickr (Creative Commons License)

A few weeks ago, Jesse Braham sued singer Taylor Swift and her record label for $42 million for copyright infringement, alleging that she copied the lyrics from his song “Haters Gone Hate” in her song “Shake It Off.” Braham claimed to be the author of the phrases “Haters gone hate” and “Playas gone play,” which are similar to the lyrics in Swift songs. He claimed that Swift never could have written her song if it wasn’t for his. (Note: There are no other obvious similarities between these two pieces of music.)

Last Friday, United States District Court Judge Gail Standish dismissed the case in a brilliant fashion, saying, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

So why did Taylor Swift win this case, legally speaking? (Anyone who read the article about the lawsuit probably thought Braham had no basis for bringing the claim.) Under the U.S. Copyright Act, to get a copyright, you need an original work of authorship that is fixed in a tangible medium. Writing lyrics for a song on paper or creating an mp3 of a song would each qualify as a copyrightable work. Short phrases are typically not original enough to quality as an “original work of authorship.” That’s why Paris Hilton couldn’t get a copyright for “That’s hot.”

If Braham had a copyright in “haters gone hate,” he could stop anyone from using the phrase unless they bought a license from him. As far as I know, he only went after Swift for infringement.

Braham also wanted credit as an author of “Shake It Off.” I suspect he was hoping for a similar outcome as the Sam Smith/Tom Petty case over Smith’s song “Stay with Me” where Petty was credited as a co-author in the settlement.

My question in this situation was, “What lawyer would take on case?” It’s a violation of the Rules of Professional Responsibility for a lawyer to file a lawsuit if their client doesn’t have a case. It turns out, Braham didn’t have a lawyer. He filed the lawsuit by himself. He also requested that the court waive the filing fees, saying that he had not had a job since 2006.

If you believe that someone is violating you copyright, please contact an intellectual property attorney in your community. These cases have to be evaluated on the facts of each situation. If you want to chat with me about a specific question related to copyright law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Fair Use Victory!

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

The Ninth Circuit of the Federal Court handed down an important ruling regarding fair use this week. In Lenz v. Universal, aka the “Dancing Baby” case was about copyright, DMCA takedown notices, and fair use. The Electronic Frontier Foundation (EFF) sued Universal Music Publishing Group after Universal sent a Digital Millennium Copyright Act (DMCA) takedown notice when a mother uploaded a 29-second video of her baby dancing to a Prince song.

The key element of this court ruling is that the court declared that “copyright holders must consider fair use before sending a [DMCA] takedown notice.” Prior to this case, fair use was regarded as an “affirmative defense.” If you’ve seen my YouTube videos, you have seen this one where I declare, “Fair use is a defense, not a permission slip.” This court said that’s not the case, but rather that fair use is authorized by the Federal Copyright Act. There is no copyright infringement if your use of another’s copyright-protected work is permitted by fair use.

If you’re interested in learning more about fair use, I wrote a post that includes a mnemonic device for the fair use factors for a panel I did at Phoenix Comicon on fair use and fan art/fiction.

There are two downsides to the case (at least for now):

  1. Although the court said that copyright holders must consider fair use before sending a DMCA takedown notice, they only have to have subjective good faith belief that the use of the copyrighted work is illegal, even if this belief is objectively unreasonable.
  2. This ruling only applies to the Ninth Circuit. The Ninth Circuit is comprised of Arizona, California, and most of the western United States. However, this ruling is not binding on the other ten Circuit Courts, but they can take it under advisement in future cases.

This case is a step in the right direction and will hopefully lead to fewer abuses of the DMCA. You can read the EFF’s full report about the case here.

Footnote: This case took eight years to reach this ruling. Sometimes pursuing a lawsuit is the right decision, but you have to be prepared to be in it for the long haul.

How the copyright laws apply to the internet is a legal issue that is constantly developing. If you need a resource about how the law applies to social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about a specific question related to copyright or internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Working with People who Don’t Understand Copyright

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Here’s the scenario: You are a newly hired third party content creator for a company. You learn that your client has a habit of copying pictures from Pinterest or Google Images searches without verifying that they are allowed to use the images on their website and/or social media posts. They want you to do the same. What should you do?

Option #1: Your Client Needs an Education about Copyright
Some people truly believe they can use any image they find on the internet, particularly if they give an attribution and a link back to the original. There are so-called “gurus” who will tell you this is ok. It’s not.

What your client is likely doing is committing copyright infringement. Inform your client that he/she is running the risk of getting a cease and desist letter, a bill with a license, or a lawsuit. In the worst-case scenario, they could face a lawsuit for $150,000 per image they use, plus attorneys’ fees. Tell your client to thank their lucky stars they haven’t faced one of these consequences yet and advise them that the prudent thing to do would be to replace all images on their site with pictures they can legally use.

Use this an a teaching experience to educate your client about the importance of asking permission, using Creative Commons, and possibly exploring whether what they are doing in some situations qualifies as fair use.

Option #2: Your Client Understands but Disregards Others’ Copyright Rights
Fire your client.

This person is obviously an idiot. No money is worth being affiliated with this company. Run away as fast as you can.

Footnote: Every company should have a “No Jerks” rule when it comes to employees and clients. If you find someone violating this rule at a genetic level (not just having a bad day), cut all ties with them immediately.

The same rules about copyright that apply to your website also apply to your social media posts:

Whenever I work on a contract for the relationship between a company and an outside content provider, I always recommend that my client require an indemnity clause that will protect them if they are accused of intellectual property infringement based on material provided by the other party. Your contract is the master document for your working relationship. It should clearly define the parties’ obligations to each other which should include deadlines and deliverables and also how you will resolve problems when they occur.

If you want to know more about the complex issues related to copyright and the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Richard Prince’s “New Portraits” – Art or Infringement?

Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

Photos, the Internet, and the Law – FAQs

paparazzi! by federico borghi from Flickr (Creative Commons License)

paparazzi! by federico borghi from Flickr (Creative Commons License)

I get a lot of hits on my site from people asking questions about what they can and can’t do with photos that they get from someone else that’s sent to them, texted to them, or that they find online. In many cases, the person who took the photo (not necessarily the person in the photo unless it’s a selfie) is the copyright holder and so they have the right to decide when and how their photo will be copied, distributed, and displayed. If you want to use their photo, you need their permission. If you want to own the copyright, they have to give it to you in a written and signed contract.

Let’s look at some of the more common and interesting questions I get. (Of course, any situation involving the legalities of using a particular photo is fact dependent and you need to consider the specific circumstances. These cases are often governed in part by state laws so you have to look at what rules apply to you.)

May I Post Someone’s Photo on the Internet without Consent?
If we’re talking about a situation where you want to know if you can take a photograph of another person and post it online, the answer is often “Yes.” If you’re the photographer, you’re usually the copyright holder so you get to decide where your work is displayed. However, if you want to make money off the photo or use it for a commercial purpose, you often need the person’s consent.

If were talking about a situation where you’re not the photographer and you want to use another person’s photograph, you need that person’s permission to use their work.

What if I Illegally used Someone’s Photo but I had Good Intentions?
The law often cares about what you did more than your intentions. In many cases it doesn’t matter that you didn’t intend to hurt anybody or that you didn’t know what you’re doing was illegal.

If Someone takes a Photo of Me and They Don’t Delete it, Can I Sue?
It depends. Remember you have no expectation of privacy in public so if you’re just upset that a photo was taken and they don’t use it to harass you, make money, or otherwise violate your rights, there is often little you can do about it.

What are the Laws about taking Photographs of People on Private Property?
You would have to look at what laws apply in your state, but typically the property owner or manager sets and enforces the rules, including rules about photographs. Be mindful when you go into businesses or attend events that there may be a notice posted that informs you that by being on the property, you are consenting to being photographed and the property owner can use those images however they want without needing any additional consent or payment of compensation to you.

Can You be Sued if You Post Someone’s Picture Online if They Sent it to You in a Text Message?
The law treats photos taken by cell phones the same as other photographs. If someone sends you a picture in a text, you have permission to look at it. It doesn’t give you permission to send it to other people or posted online without the person’s consent. Be very careful if this is a situation involving a nude or intimate photo because the depending on the person in the photo’s age, it could be child pornography. Additionally, several states have passed criminal laws against revenge porn.

What if Someone took a Picture off my Facebook Profile and put it on Theirs?
When you post a photograph on Facebook, the “Share” function implicitly gives permission to anyone who has access to the image to share it according to the settings of the site. If it’s a situation where somebody downloads your photo or takes a screen shot that include your photo, and then posts it to their profile or somewhere else online, that is likely of violation of your copyright rights.

Is it Illegal for a Family Member to Post Pictures of You on the Internet?
It depends. The law applies equally to family members as to other people. If it’s their photograph, meaning they are the copyright holder, there may be little you can do unless posting that image somehow violates one of your rights. If you don’t like that someone is posting images of you online, hopefully they will respect you enough to remove them upon request.

As I said before, cases involving photographs are governed by federal and state laws, so if you have a legal question in this arena please consult a copyright attorney in the your community for assistance. If you believe that you might be the victim of a crime that involves a photograph, please call your local law enforcement agency.

If you want to talk about this issue further, please connect with me on TwitterFacebook, or LinkedIn. If there is a specific situation you want to discuss, please send me an email.

Who to Ask for Permission to Use a Photo

What is a Real Image?  by puuikibeach from Flickr (Creative Commons License)

What is a Real Image? by puuikibeach from Flickr (Creative Commons License)

I had the pleasure of speaking at TechPhx over the weekend and fielding a lot of questions about how the law applies to blogging and podcasting, especially copyright, trademark, and privacy issues. The big take-home lesson surrounding copyright is usually “get permission” to use a photo on your site by using images from Creative Commons or asking the copyright holder for permission to use their work. (I’ve never had anyone tell me “no.”)

But what do you do if there’s an image you want to use and you can’t tell who the copyright holder is to ask permission?

I would start by evaluating the situation where I found the photo and contact the website administrator if it’s on a website or the profile owner if it’s on a social media site and say something like, “This picture is really beautiful. Who took the photo?” or “Where did you find this photo?” I probably wouldn’t ask, “Who is the copyright holder?” because a lot of people don’t understand copyright law and they think that owning a photo or having a copy of the file means they own the copyright, when they don’t.

I saw a situation where a publication asked a person if they could use some of the photos she posted on her social media site in an upcoming edition and she said “yes.” Unfortunately, that person wasn’t the copyright holder and she didn’t understand that she didn’t have the authority to give such permission. The publication thought they did everything right but because they didn’t verify they had permission from the copyright holder, they had a bit of a mess to fix once the photographer learned what had happened and informed the publication that they used his work without his permission.

Another tactic I might use if I wanted to find a copyright holder is run the photo through the Google Image search engine to see where else the image is available online. That might reveal the original source.

Here’s a video with more information about how to determine who is the copyright holder or whether is in the public domain.

Legal Side of Blogging Book CoverIf you can’t determine who the copyright holder is to ask permission to use their work, you may want to ask yourself how important it is to use that particular image and whether a similar image that is available under Creative Commons.

If you want more information about how copyright law applies to blogging and social media, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Avoid Copyright Infringement in your Social Media Posts

+ I collect old cameras + Land camera 1000 w/ polatronic 1 {b} by PhotKing from Flickr (Creative Commons License)

+ I collect old cameras + Land camera 1000 w/ polatronic 1 {b} by PhotKing from Flickr (Creative Commons License)

The other day I smiled when I saw a friend put a post on Facebook that included a Creative Commons attribution. He was the person who taught me how important it is, just from the perspective of respect, to get permission before posting another person’s work on your social media page. This was before I studied and fell in love with copyright.

Now, it warms my little lawyer heart to see someone respecting copyright.

And I finally have time to read Gary Vaynerchuk’s book Jab, Jab, Jab, Right Hook, which is filled with helpful information on how to market your business and excellent demonstrative case studies. One of his lessons is to use each platform to suit the needs to the users. So if a site is visually-focused, like Facebook or Pinterest, you want to create posts that have images that will provide users value and hopefully they’ll share them. His book has great examples of how companies are doing this effectively and what habits you shouldn’t emulate.

This is when the red flag went up for me.

If a company’s marketing department created a photo, there’s no problem with copyright. But if a company is using someone else’s photo (because companies don’t just have to talk about themselves online), they have to deal with the question of whether they have permission to use the image in question.

A lot of companies appear to be thoughtful about making sure they are using their own photos or finding images via Creative Commons for their website or blog. However, they don’t apply the same standards to their social media posts. If you’re doing this, and pulling images from other site without getting permission from the copyright owner, you could be setting your company up to be accused of copyright infringement and face a cease and desist letter, a DMCA takedown notice, a bill, or possibly a lawsuit.

Legal Side of Blogging Book CoverI’ve been inspired by people who use social media effectively and find amazing images to incorporate into their posts. I hope to create more content on social media that’s worth sharing. If you’re in my boat, please make sure to use images you own or use Creative Commons. When I use Creative Commons, I only pull images that come with a license that let me modify (aka crop them) and commercialize them. And even on social media, give your photographer the attribution. You may be legally obligated to do it, and it’s also a sign of respect for their work.

If you need an effective legal resource written in layman’s terms on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.