Photographer sues over stolen photo

[Ausrock (Chris)]

OK, accurately define "copyright infringement".

At the end of the day, if you "take" a "work" created by another person, (or replication of that "work") without the consent of the creator/rightful owner, for any form of commercial gain then it is a form of theft.

[BPO]

Originally Posted by Ausrock

If someone "takes" a copy of that creation for their own use/enjoyment most "artists" wouldn't object too much, BUT when it's being "taken" for commercial reasons it's a whole different ball game and it does equate to theft..........maybe another way to put it is "deprivation of income".

It's not theft though. This isn't opinion, it's legal fact. Copyright infringement isn't theft or stealing or "piracy".

Don't get me wrong, I'm not saying copyright infringement is a good thing (nor am I saying it's bad). What's important are the facts. No lawyer will represent you if you claim theft, and no judge will take you seriously if you claim copyright infringement is "theft", because the law says it isn't.

Theft is when someone is deprived of something tangible. Nobody has been deprived of anything that the law would define as tangible in this instance. A claim has been made that a copy of something has been made and sold without the permission of the copyright holder, and the law is clear: that is a case of copyright infringement.

Too many people try to twist and distort things using emotive language and claims, but the law doesn't care for that kind of thing. The law clearly states this is not theft or "piracy", but copyright infringement.

[BPO]

Originally Posted by Ausrock

OK, accurately define "copyright infringement".

At the end of the day, if you "take" a "work" created by another person, (or replication of that "work") without the consent of the creator/rightful owner, for any form of commercial gain then it is a form of theft.

Nobody has taken anything. The person who claims legal ownership of the image says that somebody is selling copies of that work without her express permission. Copyright infringement.

[naskies (Dave)]

I don't understand the angst? Infringement is also defined in the Act (which I linked to for easy reference).

I understand that "copyright infringement" (the legal term) may feel like, and for all intents and purposes be equivalent to, the theft of physical property for some people. I'm not disagreeing (or agreeing) with that.

However, our laws and those of many Western countries, treat the two as completely separate offences - but people often claim that they're the same (in the legal sense).

It's like astronomy versus astrology... to many people, they're effectively the same thing and they don't care one iota about the difference. Doesn't mean that they're the same

[BPO]

Originally Posted by MortonH

Well, I think we all agree that it's wrong, regardless of the strict legal definition.

Only if it cannot be proved that permission was given or copyright relinquished.

Makes you think twice about posting any images online. Even if you think it's "rubbish" someone could turn it into a saleable image.

But that's not their problem. If you relinquish copyright by posting it to a site such as, say, Wikipedia (a site that will not accept copyrighted images) and someone makes a buck off it, you cannot complain. It's that simple.

It all comes down to ownership of the copyright. If in this case it's the complainant, then yes, somebody may owe her something if she didn't give them permission to reproduce the image.

But nobody stole anything. People need to get this into their heads. No theft has occurred, no "piracy". It's (as yet unproven) copyright infringement. That's the only cold, hard fact that matters.

[naskies (Dave)]

Originally Posted by ourkind

A photographer is suing 'Lowes' after they took a photo from her flickr photostream and printed it on t-shirts which were later sold.

It will be interesting whether she will win and be compensated accordingly.

From the information provided, it sounds like a fairly clear and cut case? If a Lowes employee downloaded the photo from her Flickr stream, made the T-shirt, and started selling it etc - then I would think it's a fairly cut and dry case. She'd be able to win back her legal costs, royalties, and possibly penalty costs (designed to discourage infringement).

On the other hand, what if some stock photo company took her photo from Flickr, posted it on their site, resold it to a fashion designer, the fashion design made the T shirt under good faith, sold it to Lowes who then produced the TV ad all in good faith? Clearly, the photographer's rights have been infringed, but I'd imagine that it would take a lot more legal untangling to sort out the mess...

[BPO]

Originally Posted by MrB

theft
the action or crime of stealing

steal
take (another person’s property) without permission or legal right and without intending to return it

property
a thing or things belonging to someone

intellectual property
Intangible property that is the result of creativity, such as patents, copyrights, etc.

So, intellectual property is considered property, the taking of which without permission is considered stealing, the act of which is considered theft.
Seems to work.

"Corporations are people too, my friend."

The difference in this case is that, legally-speaking, Mitt Romney was quite correct, because under US law, corporations have the same rights as people, as disgusting as that law is.

In your example, you're entirely incorrect. Theft is defined as the act of depriving somebody of a tangible possession. Intellectual "property" is not defined as a form of property of which you can be deprived, and the law does not view IP in that way.

A judge will not accept the claim that "My IP was stolen" because you cannot steal IP, you can only copy it, and that makes it a copyright infringement if the copyright holder did not grant permission to copy, or did not relinquish copyright.

It doesn't matter if that makes you angry. What matters is the law. The law quite rightly views copyright and IP as being something that cannot be stolen, only copied without permission of the owner.

Here's an example I used elsewhere:

If somebody takes your bike without your permission, the act is legally defined as theft, because you have been deprived of your property, namely the bike.

If somebody creates an exact duplicate of your bike - a perfect copy in every detail - and rides it around they have not stolen your bike. You still have it, you've not been deprived of any property.

Even if you designed and built your bike, it's not theft. If you have a patent on it, or copyright of the colours and markings, etc, and you did not give the person permission to reproduce it, then it's a case of patent and copyright infringement.

You have your bike. He has a copy of your bike. It is not stealing, theft, or "piracy" as clearly defined by current and existing law.

[BPO]

Originally Posted by naskies

From the information provided, it sounds like a fairly clear and cut case? If a Lowes employee downloaded the photo from her Flickr stream, made the T-shirt, and started selling it etc - then I would think it's a fairly cut and dry case. She'd be able to win back her legal costs, royalties, and possibly penalty costs (designed to discourage infringement).

Yes, If Lowes cannot prove they have permission to use the image. If the complainant cannot prove copyright then Lowes and all others involved are in the clear.

On the other hand, what if some stock photo company took her photo from Flickr, posted it on their site, resold it to a fashion designer, the fashion design made the T shirt under good faith, sold it to Lowes who then produced the TV ad all in good faith? Clearly, the photographer's rights have been infringed, but I'd imagine that it would take a lot more legal untangling to sort out the mess...

It's only clear if she can prove copyright and those accused of infringing copyright cannot prove they had permission from the copyright holder to use the image, or cannot prove that the image is public domain.

[mithrandir (Andrew)]

Originally Posted by BPO

Nobody has taken anything. The person who claims legal ownership of the image says that somebody is selling copies of that work without her express permission. Copyright infringement.

Is NZ law the same as Australian law? This is an Australian citizen/resident with an Australian photo allegedly being infringed by an Australian company in Australia.

[Poita (Peter)]

Originally Posted by LewisM

Intellectual theft is VERY real and VERY prevalent.

I have had a couple of my photos used by posers pretending they were theirs. A rather terse email or public ousting (like on a forum where they posted it) and the image, and the thief, usually disappears.

Lowes at least will be getting some much deserved negative feedback about this. Perhaps whoever designs the shirts -in China - just ripped an appropriate image after they were told ideas to create etc. No excuse though.

I watermark EVERYTHING I show online (unless it's bad ) and every photo I sell. My wedding shots get a watermark at 20% opacity (JUST see it), as do my portraits. I worked for 2 fashion labels last year at Melbourne Cup, and watermarked all images. Someone ripped one of the images, and tried posting it as theirs on Facebook... MOMENTARILY.

You watermark the final wedding photos that you sell to your wedding clients??

[LewisM]

On the CD, yes. There was a case recently where someone was selling wedding photos - arty ones - for putting into store photo frames etc just as art... weird, but true. The opacity I use is 20%, so you have to look HARD to see it. My contract stipulates they remain my property, sharing printing and display rights with the purchaser.

On prints I DO, no, but they get my stamp on the back Advertising

[BPO]

Originally Posted by mithrandir

Is NZ law the same as Australian law? This is an Australian citizen/resident with an Australian photo allegedly being infringed by an Australian company in Australia.

Any differences will be trivial.

[lacad01 (Adam)]

It's a crap photo anyway - if the photographer really wanted it to look vintage the surfer should have had a longboard

[BPO]

Originally Posted by lacad01

[I]f the photographer really wanted it to look vintage the surfer should have had a longboard

Agreed.

[Ausrock (Chris)]

I hope your comment was tongue in cheek. Longboards were being replaced by shorter boards long enough ago for the term "vintage" to apply (disregarding board design issues in the image which may be a giveaway), however, the habit of surfer's wearing full wetsuits may be another matter............as an aside, I was known to be astride a shortening longboard at that particular beach in the mid 60's

In any case, the photographer is entitled to call the image anything she wants.

Originally Posted by lacad01

It's a crap photo anyway - if the photographer really wanted it to look vintage the surfer should have had a longboard

[alan meehan (Alan)]

After working in the tshirt printing business for 40 years i assure you this sort of thing happens everyday,i have done work for corporate stores like lowes best and less big w etc now always done in china and have been
involved in copyright disagreements ,they probably at worst will withdraw the stock from the stores if any left by the time anything happens .China is
ripe with this it happens all the time ,if you change the original design by
10% then it is not a copy
AL

[BPO]

Originally Posted by alan meehan

[I]f you change the original design by 10% then it is not a copy

There it is. Flip it in Photoshop; Change the colours; Add a new/different background/foreground, or just about any element, anything that makes it noticeably different and the problem of infringement essentially goes away.

[Kunama]

Originally Posted by BPO

Any differences will be trivial.

A rather large assumption ................... but seriously ........

Originally Posted by BPO

What an idiotic headline. Nothing has been stolen. She still has her photo. If it's anything it's copyright infringement, not theft. I wish people would be prosecuted for what amount to false accusations and misrepresenting charges.

Copyright infringement is formally defined in law, and it's not defined as theft. And no, I'm not condoning or supporting copyright infringement, even though copyright law is now insanely out of control. I'm merely pointing out the incontrovertible facts.

I am a little bemused by your reaction, why attack the thread author merely because the title is technically not correct, surely the point of the thread is that we should beware that this could happen to any images we post here. Being pedantic about the OPs choice of words really is probably not the sort of response the OP expected.
And for those that want to b-anal about it, copyright infringement is no longer defined as theft, case law Dowling vs USA (1985).

[mithrandir (Andrew)]

Originally Posted by BPO

There it is. Flip it in Photoshop; Change the colours; Add a new/different background/foreground, or just about any element, anything that makes it noticeably different and the problem of infringement essentially goes away.

Not really. Excerpt from:
Australian Copyright Council INFORMATION SHEET G052v11 August 2012

Infringement
Copyright is infringed when a person uses all, or a “substantial part”, of copyright material in one of the ways exclusively controlled by the copyright owner without the express or implied permission of the copyright owner, where no defence or exception to infringement applies.

What is a “substantial part”?
A “substantial part” is any important, distinctive or essential part of the original material, not necessarily a large part. There have been many court cases about whether reproducing part of a work constitutes an infringement of copyright. In one case, a court held that reproducing 6 notes from a piece of music was found to be an infringement.
A person may also use a “substantial part” of copyright material by paraphrasing, or closely following the structure and order of another personʼs work, even if they have not directly reproduced any of it.

There are no guidelines about the quantity of material, or percentage of a work, which may be used without permission, since each case depends on its own facts.

The "6 notes" refers to the case against Men at Work over "Down Under" which the plaintiffs won. Later in the same document:

Decide what you want
You should decide how you would like the matter resolved and what you want from the infringing party. A lawyer may be able to help you work out what is appropriate. You may be entitled to demand any or all of the following:
• that the infringement stop (an “injunction”);
• that infringing copies of your material be delivered to you, or disposed of as you direct;
• that any master copies or plates used to make infringing copies be delivered to you, or disposed of as you direct; and
• that either you be paid for the use of the work or you be given the profits the infringer has made from it.

If the two parties can't agree it can wind up in court and then the judges get to decide if it infringes.

[Kunama]

Infringing on the copyright occurs regardless of whether the infringer adapts or varies the work, such action are known as 'derived work' and the original owner of the copyright has the legal right to object to such use and if the infringer has benefitted financially from the derived work the copyright holder has a rightful claim in relation to such monies.

Edit: Andrew I was typing too slowly, darn two finger hunt and peck !!!