If I take a photograph with my camera of someone else website or of a video that's playing on my computer monitor and then post it on my site, is that copyright infringement? Is it my photo?
It really would depend on how you intend to use it. These types of questions are not just yes or no. edit: lol, I just noticed my own avatar here on DP, which I have had for several years. It shows a photo of the screen of a computer showing digitalpoint.
@Jaffe: you sure you are an attorney? What kind of answer is that? Browntwn has that right answer anyways.
The best avenue here would be to contact the website owner directly and ask them. If they agree, make sure you keep copies of any emails etc...
Okay, this seems to be a very grey area. How about this: What if I draw a picture of the celebrity myself? Would I be in the clear then and not have to ask permission? I would not be selling the image.
Below you will find some simple copyright answers from the U.S. Copyright Office http://www.copyright.gov/ WHAT IS A COPYRIGHT? A copyright is the exclusive property right granted to the author or creator of original works including literary, dramatic, musical, artistic, and certain other intellectual works. HOW ARE COPYRIGHT RIGHTS ACQUIRED? Copyright is Secured Automatically upon Creation The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. Copyright is secured automatically when the work is created, and a work is “created†when it is fixed in a copy for the first time. “Copies†are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. WHAT WORKS ARE PROTECTED? Copyright protects “original works of authorship†that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works. These categories should be viewed broadly. For example, computer programs and most “compilations†may be registered as “literary worksâ€; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.†So when Mike 323 asks if he can take a picture of someone's web site, he is copying someone else's original work for his own use.
All you cited was a faq stating that the subject of his photo might be covered by copyright. But there is nothing there that says his proposed use of his photo not allowed. You are simply making a conclusion which seems to take a really simplistic approach to a pretty complex area of law. His intended use may or may not be legally permissible, it would depend on what he is going to do. According to your simple analysis, nobody could take a photo of a magazine or newspaper or of a book or painting - as they are all somebody's original work. I guess you just dismiss that he might have legitimate fair use rights to use someone else website as the subject of his photo. Seems odd to dismiss that out of hand. You also just make the assumption that the website he is proposing to take a photo is protected by copyright and may not be freely copied.
Dear browntwn, First off, I would like to say that I am a fan of your posts. You always give good advice. Further, your point that I don't know how Mike323 is planning on using the picture is accurate. And yes, there are some exceptions in copyright law which would allow for the use he is asking about. However, in my advice to clients on Internet copyright law, I always start by saying, "If it is posted on the web, the copyright belongs to someone else." While, Mike 323 could fall into the fair use doctrine, and while I did not go into detail with him about his use, the fact that he wanted to take a picture of a web site to use smelled to me like he was trying to create an invalid way to get around the law by creating a picture to which he had the copyright. Further, when discussing Internet copyright law, the minute I tell the client there is a fair use exception, they jump all over the exception, contorting the doctrine to fit what they wish to do. Therefore, before I post this reply, I will take a minute to discuss the Fair Use Doctrine in copyright law so that the readers of this thread will not misunderstand our discussion. "Under the "fair use" doctrine, which has long been part of U.S. copyright law and was expressly incorporated in the 1976 Copyright Act, a judge may excuse unauthorized uses that may otherwise be infringing. Section 107 of the Copyright Act lists criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that may be eligible for the fair use defense." (from: http://www.uspto.gov/web/offices/dcom/olia/copyright/copyrightrefresher.htm) Further, there is a four factor test sited in the law to determine if it is truly fair use: 17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors Please note, that we are talking about a judge excusing a copyright violation -- You can already see that fair use can get you into a court room quickly, and while you have an affirmative defense, you are paying plenty of legal fees to exercise it. Also, please understand that the fair use doctrine amounts to an ability to use the work to talk about it. For instance, if you wanted to comment upon the news events in Libya this week, you might like to start by taking a quote out of a news article. Notice I said taking a quote out of the article. Fair use does not amount to carte blanche to copy entire articles and post them on your site. It only allows you the ability to respond to the quote for criticism or comment. Finally, notice #1 of the four factor test talks about whether there is a commercial use of the copyright material. While it does not say it outright, the more you are using the copyright work to make money for yourself, the less likely it is that the fair use doctrine will apply.
Thanks for such a detailed reply, Andrew. It has made me rethink my approach to using copyrighted material. Without asking you to go into much more detail, I'm sure you're a bit weary of the subject by now, how do news sites like Huffington Post get to use so many obviously copyrighted photos without worry? Fair use?
Thanks for the reply. I am a fan of your posts as well. I agree with you, that without more information I would tell him not to do it as a default position. That being said, I think with something such as a photo of a website, there would be a pretty slim chance of someone suing and I think the fair use rights in many cases would be quite strong. There are so many variables. Is he using a full size photo or a thumbnail? Is he using it to link to that website or to some other website? Is the website even protected or is it something like www.fda.gov where it says, As a side note, U.S. government websites are a treasure trove of public domain content. I have been using them liberally.
Perhaps you added some confusion by wanting to take a photograph, which would be an inferior graphic to taking a screenshot. Maybe that's why it sounds suspicious.
Wouldn't that make it sound less suspicious, since I said it was taken with my own camera not even connected to the computer? Seems to me it would distance me further from copyright infringement than a screen shot.
If that is truly the case, you can right click and copy the material -- that is the very definition of "Fair Use".
Whether you take the picture with your own camera or whether it is even connected to the computer really has no bearing on the question. If the image is protected and your use is not fair use, it really doesn't matter what technology you used to obtain the image. If it is fair use, even a screen shot should be OK. On the issue of fair use, keep in mind that "using the pics for news and critical analysis" is NOT the same as using the image to illustrate an article that is a critical analysis of the underlying website. For example, if you are critiquing the design of a website, then having an image of the design is clearly key to providing a cogent analysis. If you are critiquing a blogger's position on some issue, then having an image of his blog to accompany your analysis is simply an illustration.