Use of copyright text and images in forum: FAQ

[Ben]

Hi,

We were recently advised by a lawyer than the posting of text or images in the forum where the copyright is not owned by the person who makes the post, could land us in serious trouble, and lead to Notes from Spain being shut down.

This basically means that you can only post an image in the forum if you own the copyright: if you took the photo, or drew the image or cartoon. The same goes for text: you may not copy text from another source and paste it here - a link to the original source will do.

If you want to show people an image that you do not own, but have found elsewhere on the net, please link to it. People can follow the link, then come back to the forum to comment on it. Of course we fully encourage you to keep posting your own great photos here.

When I wrote to moderators this week about the issue, a few questions came up, which I'll answer here for the benefit of all of us:

for clarification - deep linking photos so they appear as though they are on the forum is not permitted, but an ordinary clickable link that opens the pic in a new window is okay.. is this right?

Yes, quite right

Do you want mods to pick up these pictures and remove/change link status?

Just remove the offending image and leave a note saying why, you don't have to go hunting for the original image if it is too much hard work!

Can anyone provide a little clarification, please? If I had a toy Top Cat, for example, and photographed it, would I be able to show that as my avatar?

Yes

On the copyright pictures. Does this include links to pictures on other sites? How do we tell with some, such as uploaded files, where they come from unless they have a watermark / copyright in them. Should we PM the poster first and ask?

It's usually obvious if someone did not take a picture - from the forum post you will know they haven't been somewhere, or met the famous actor in question. If in doubt mods can always PM the person to check and explain the situation.

What about creative commons photos and text?

If the text or photo is in the public domain/has a creative commons licence, you may post it in the forum if you link back to the original source. All text and images on wikipedia, for example, are creative commons, so you could use an image or quote from there as long as you link back to the original wikipedia entry.

Why do we have to worry about this?

Unfortunately there are photographers, editors and agents out there that are very aggressive about protecting copyright and will sue anyone they can find using their text or pictures.

Many thanks for your cooperation with this matter, it's all about making sure the NfS forum is around for a long time to come!

[omeyas]

[quote=Ben;36514

Unfortunately there are photographers, editors and agents out there that are very aggressive about protecting copyright and will sue anyone they can find using their text or pictures.

[/quote]

Yes, I agree with the "agressive" bit , I have found photographs of mine being used on other web sites, and as they certainly haven't asked permission or bought them, they have stolen them. I must admit to getting a bit more than aggresive, and contacted them and told them in no uncertains terms, to either remove them or pay me for them. I recently found a local caravan site using 5 of my photos, I wonder how he would feel if someone staying on his site just helped themselves to some of his property. Unfortunately, it's impossible to prevent photos being stolen( I do add watermarks, but that's not foolproof) I visit photography forums, and the amount of people having their photos stolen is incredible. Most photographers spend a lot of money on kit, a lot of time and effort to get photos, so you can understand them getting angry when they find their work stolen. I have been surprised by the photos reproduced on this site, clearly without permission, so it doesn't surprise me that you have been advised to clamp down on it.

[gtappend]

Originally Posted by Ben

Q: my avatar [is] a picture of an actor. Is that allowed?
A: Only if you took the photo.

I'm not so sure about that, I think that very much depends on the country where the photo was taken, the person lives, etc. as copyright law is so different from country to country.

German copyright law has a thing called "Recht am eigenen Bild" - ie. your rights to your own image. This means that even if you photograph a person and own the photograph, you cannot publish it as you please. You need the permission of the person on the photograph. Exceptions are when they are not the main subject (ie. person against a landscape backdrop), a historical photograph (they just happened to be on the Berlin Wall on the day if fell) or if they are part of a group (eg. you and your friends are photographed with a celeb.) I don't think using such an image as an avatar would fall under these exceptions (although I'm no lawyer...)

Of course, different countries have different laws and there is even an EU-copyright law/directive now (which is based in part on the German one).

NFS has the additional problem of not really being attached to one particular country, so which national law would apply?

Spain? because Ben and Marina live there
USA? because that's the administrative proxy address of the Domain
UK? because that's (presumably still) the real address behind the proxy
Netherlands? because that's where the domain registrar is according to WHOIS
Germany? because the Dutch registrar is using a German IP-address according to WHOIS
EU? because 4 of the 5 fall in that area
Other? such as the country of the poster concerned

OK, maybe that list is a bit OTT, but I wanted to point out that just because you took a photo doesn't mean that you can use it!

Very important disclaimer:
This post is my own personal opinion and based on personal experience. It is not intended to be legal advice.

[Elvis]

Possibly some useful information here, American, of course:
http://mason.gmu.edu/~montecin/copyright-internet.htm

More links to internet copyright laws than you can wave a mouse at:
http://www.ariadne.ac.uk/issue5/copyright/

[Ben]

Thanks for the comments. It is such a tricky issue that the easiest thing is just to say 'no copyright images'. Which is a shame, images do liven up a forum. That's why I hope people will continue to post their own photos from Spain and beyond.

[ValenciaSon]

Now I'm just gonna have to go to Spain.

[richardksa]

Or beyond!!

[ValenciaSon]

Originally Posted by richardksa

Or beyond!!

Those beyond images are public domain as with any images released by NASA to the public.

[gtappend]

On the very day we talk about the subject, look what came up on BBC News!

The big question in this case is, if you take pictures at a concert and thus own the copyright to the picture, can you publish it on the web?

It all reminds me about my "music in podcasts" thread.

[gtappend]

Something else I forgot to mention... removing images doesn't, of course, immediately remove them from every cache or archive.

eg. if you search for "eldeano" in Google picture search, then you still get the TC picture on #3, even though it's no longer live

The site archive.org stores snapshots of sites for years! Here is how the forum used to look...

[ValenciaSon]

Originally Posted by gtappend

Something else I forgot to mention... removing images doesn't, of course, immediately remove them from every cache or archive.

eg. if you search for "eldeano" in Google picture search, then you still get the TC picture on #3, even though it's no longer live

The site archive.org stores snapshots of sites for years! Here is how the forum used to look...

If you demonstrate a pattern of diminishing use, won't that suffice?

[deecree]

As far as I am aware, in various countries there are precedents and exemptions to various parts of copyright law.

For example, in the USA and UK, NFS wouldn't be responsible for the copyright infringement by users on its public forum. I don't even believe NFS has a duty to search for such infringements, but merely remove them at owners request. This thread alone shows intent by NFS to prevent copyright violations and an active willingness to seek them out.

In the USA and UK, I could happily post a McDonalds logo here whilst voicing my dislike of the company. Use of trademarks when critising a company is considered legal as proven in ___-sucks.com cases.


Preventing acts of copyright infringement on the forum is something you should definitely commit to, especially now you are incorporating NFS. But I think you should ask your lawyer again if you are liable for infringement by users of your service, rather than by yourself. Having your business dissolved if you didn't clear an infringement fast enough doesn't make sense - your websites host would have to be closed down too. "Landing NFS in trouble" is also unlikely, you'd be sent a rather unfriendly Cease and Desist notice at the very worst I'd expect.

Just my opinion(s).

[Jules]

Like so many issues of this kind it is possible to take these examples "to the far end of a f--t" (quaint English expression), while common sense flies out the window.

The British have always disadvantage themselves by over-interpreting laws & coming down hard on perceived violations that are an affront to common sense.

I think Decree is correct in his interpretation. It is the violator, not the medium that is used, who carries responsibility. Lawyers grow fat on giving 'advice' about possible 'risks' (often untested by precedent) to their clients.

Take for example the paranoia that people commonly hold regarding the UK data protection act. (e.g. an infamous double murder case highlighted a perceived risk of one police force sharing data with another - this turned out to be an incorrect fear of worrying about violating the DP act.)

[gtappend]

Originally Posted by deecree

As far as I am aware, in various countries there are precedents and exemptions to various parts of copyright law.

For example, in the USA and UK, NFS wouldn't be responsible for the copyright infringement by users on its public forum. I don't even believe NFS has a duty to search for such infringements, but merely remove them at owners request. This thread alone shows intent by NFS to prevent copyright violations and an active willingness to seek them out.

In the USA and UK, I could happily post a McDonalds logo here whilst voicing my dislike of the company. Use of trademarks when critising a company is considered legal as proven in ___-sucks.com cases.

Which sort of proves my point "which national copyright law is valid for NFS?"

For these two examples, German courts have conflicting decisions forums. Sometimes they decide that you have to "regularly" check what is being posted and take the necessary action, others say that you must react within a specified time if someone complains about a post (eg. because it is insulting or infringes on copyright). [LG Hamburg Az. 308 O 245/07 24.08.2007 & OLG Koblenz Az.: 2 U 862/06 12.07.2007]

In the case of logos it's probably a case of where you get it from - did you take it from the company's homepage? Did you go out and take the photo yourself? Do you need permission to use it on not?

In Germany, for example, you are not allowed to use a company name in your blog unless it instantly recognisable that it is not a publication of the company itself. At the same time you are not allowed to be defamatory.

So companyname-blog.de is not allowed, companyname-unsatisfied-customers.de could be allowed, and companyname-sucks.de would not be allowed.
[OLG Hamburg AZ 3 W 110/07 31.05.2007 & LG Düsseldorf Az.: 2a O 245/01 30.01.2002]

Originally Posted by deecree

Having your business dissolved if you didn't clear an infringement fast enough doesn't make sense

I don't think the business would be dissolved, but the fine might be large enough to bankrupt it.

@Ben: I would suggest writing down some examples of what could happen in the forum and asking your lawyer how you should react to them and what could happen (a) when you react (b) if you are too slow (c) you don't do anything. If he/she's up on internet topics then they should also be able to tell you which national law applies.

Unfortunately, lawyers sometimes disagree with each other, so even if yours tells you that eg. Spanish laws apply, a lawyer in the U.S. may take a different view.

[Jules]

Originally Posted by gtappend

Unfortunately, lawyers sometimes disagree with each other, so even if yours tells you that eg. Spanish laws apply, a lawyer in the U.S. may take a different view.

Keeps the lawyers fat & ensures that however daft is the perceived risk you will always find a lawyer who will 'agree' with you

[greytop]

By coincidence today a Gooogle ad on this page had one for a site offering low cost, royalty free photos. Look here if it is not available now, although there are probably many more available. Maybe that is the answer for those who need an illustration for their Blog etc. without losing sleep over who is about to descend on them with a lawyer in tow.

[tad]

My LOST avatars have been deemed unsuitable even though they are publicly posted by the TV company that owns the rights to them, for use by the public.

Of course there is a need for copyright, as omeyas has indicated. Images from a sydicated TV series are in my opinion a whole different kettle of fish.

The trouble is how are we supposed to know what is and isn't legal? I think common sense should guide us on this matter.
Look at any TV site forum and something like 95% of the people have an avatar that represents a character from the show.

[gtappend]

Originally Posted by greytop

By coincidence today a Gooogle ad on this page had one for a site offering low cost, royalty free photos. Look here if it is not available now, although there are probably many more available. Maybe that is the answer for those who need an illustration for their Blog etc. without losing sleep over who is about to descend on them with a lawyer in tow.

A word of warning - that site likes serious enough (having read the T&C), but there are others that are not.

A couple of years ago there was a case here where a student used pictures from such a site (based in the UK I believe) on his homepage, only be sent a lawyer's letter because a German agency held the exclusive usage rights to the photos within Germany (and therefore on German websites). I think they had obtained them directly from the photographer.

In the end there was so much PR, that the last I heard was that he didn't have to pay the 6000EUR fine (the court agreed with this but left room for an appeal), but he still had the hassle of it all. (German readers, see here).

[deecree]

Originally Posted by tad

My LOST avatars have been deemed unsuitable even though they are publicly posted by the TV company that owns the rights to them, for use by the public.

Of course there is a need for copyright, as omeyas has indicated. Images from a sydicated TV series are in my opinion a whole different kettle of fish.

The trouble is how are we supposed to know what is and isn't legal? I think common sense should guide us on this matter.
Look at any TV site forum and something like 95% of the people have an avatar that represents a character from the show.

I think if a TV network such as ABC gives out a bunch of images from the show for fans to use on the web, in places such as.. uhm... forums, so that the show is promoted amoung various circles.... use of these images could not be considered violation of copyright as there is implied permission. Perhaps the ABC Lost banners and buttons were posted on a page that explicitly said fans are not allowed to use them for any purpose other than private use, I don't know. I was surprised when you were forced to take them down.

As with the avatars, NFS is probably the strictest forum on the web, and probably the only one that removes peoples avatars.

[ribeirasacra]

It is a shame that legal matters have to spoil our fun, but at the same time we understand it.
It seems that some lawyers like to aim for the easier targets. There are plenty of copyright infringements happing all over the web. Other forums and Youtube are just tow examples.
And as omeyas has said about another web site using ones own photos. We now have added a logo to ours so that others cannot use them.
There are plenty of free avatars on the web, hopefully of TC…can we use the full name or is that an infringement?