|This diary is the result of another collaborative effort by Patriot Daily, Got a Grip, nonnie9999, mikk0, On The Bus, pico, melvin, jlynne, and srkp23. It is the first in a series on copyright in the digital age.
We have good news and bad news. The bad news is that kos was essentially right to ban posting wholesale copyrighted pictures. The good news is that a cumulative package of types of photos that are safer under the fair use doctrine, a safe harbor guideline and photos available from the public domain should enable diarists to continue posting photos in their diaries without limiting our creative expressions.
This diary tries to answer the question of how can we post pictures without being hauled into court. We provide a brief overview of the fair use doctrine and discuss several types of photos that may be covered by fair use, such as transformative, screenshots, thumbnail, collages and parody. We also discuss how the innocent infringer defense may be used to reduce or eliminate damages. Finally, we provide an extensive library of alternative sources to obtain pictures from the public domain and from similar forums that have more recent photos of current events and political news.
Due to the extensive coverage, this diary is long, and so we offer a hyperlinked table of contents so that you may skip to those sections of interest:
Table of Contents:
Source: From Old Books org
But, if you conduct a fair use analysis before posting a copyrighted picture or if Dkos adopts a safe harbor policy, then a good faith argument may be made that you are an innocent infringer who should face minimal penalties, if any.
Diarists should include with their diaries the source of their images, if they are not their own work, and should be able to justify the use of images other than their own, by adding a brief statement of why the diarist believes the image is a fair use. Here is what Wikipedia recommends:
Before you upload an image, make sure that either:
- You own the rights to the image (usually meaning that you created the image yourself).
- You can prove that the copyright holder has licensed the image under a free license.
- You can prove that the image is in the public domain.
- You believe, and state, a fair use rationale for the specific use of the image that you intend.
It's interesting to note that "Wiki allows low-resolution images of copyrighted material if they are unlikely to affect the potential market for the material, are used for the purposes of analysis or criticism, and for which there is no alternative, non- or free-copyrighted replacement available."
|A. The Fair Use Doctrine. |
1. Purpose And Character Of The Use.
The courts evaluate the purpose and character of the use for the new work and whether the objectives of copyright law are met by a new work that is transformative. Permissible fair uses for the new work include criticism, comment, news reporting, teaching, scholarship, or research. While a transformative use is not required to obtain a finding of fair use, it does improve the likelihood.
Courts also evaluate whether the use is for commercial or nonprofit educational purposes. The focus here should be on the use of the copyrighted material, not the status of the user as profit or nonprofit. Courts consider how the use of the copyrighted work may result in direct and indirect generation of revenue. While the user's status is considered, it is not determinative as courts have found that profit websites did not engage in commercial use of the copyrighted work while nonprofit sites did.
A finding that the work is commercial use does not bar it from being deemed a fair use and a finding of nonprofit educational use does not bar a finding of infringement. If a commercial use created a presumption against fair use, "the presumption would swallow nearly all" of the statutory permissible uses, such as news reporting, which are generally conducted for profit.
2. Nature Of The Copyrighted Work.
This factor focuses on the character and value of the copyrighted work and tips the scales against a finding of fair use when the character is "closer to the core (pdf file) of intended copyright protection."
If the original work had been unpublished, this weighs against fair use because copyright owners control when and if their work is first published. So, copying from a published work is favored over an unpublished work. Nonfiction or factual works (such as biographies, reviews, criticisms and commentary) will be favored over fictional or creative works, such as books or plays, because providing facts or information benefits the public.
Source: PD Photo org
3. Amount & Substantiality Of The Portion Used.
4. Effect Of Use On Potential Markets Or Value Of Copyrighted Work.
This factor determines whether the new work has deprived the copyright owner of income or undermined a new or potential market for the work. Potential market analysis considers "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original." For example, a website which permits the wholesale posting of MSM articles may interfere with the newspaper's plans to increase online markets because the free posting permits users to read articles without paying archive fees and reduces site traffic, which then reduces advertising revenues.
|5. Morality And Bad Taste. ||
6. Copyright Damages & The Innocent Infringer.
The innocent infringer defense is limited to an infringer who "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." This defense is not available to reduce actual or statutory damages if the holder provided proper copyright notice.
The innocent infringer defense also applies to infringers who have reasonable grounds to believe that their use of copyrighted work was a fair use but the statute limits this defense to specified persons, such as nonprofit educational institutions.
However, one court has applied the fair use innocent infringer defense in the context of determining the willfulness necessary to increase damages. This is important because if a person has conducted a fair use analysis or followed safe harbor guidelines, then that person may be able to prove a reasonable good faith belief.
In Princeton University Press v. Michigan Document Services, the defendant, a corporate commercial copyshop owned by Smith, reproduced coursepacks for university students for sale without the copyright holder's permission, which constituted infringement pursuant to the first case to address this issue a few years earlier. In this case, Smith was an activist opposing royalties for coursepacks. Mr. Smith's attorney advised him that there were "flaws" in the earlier decision but it would be risky to not obtain permissions and Smith educated himself about the fair use doctrine. Smith concluded that the case was wrong, and publicly stated his position in speeches and writings.
On these facts, the court found that the unsettled law on the fair use doctrine could provide an infringer with a good faith, reasonable belief that his conduct was covered by the doctrine. The court held that willfulness required not simply intent to copy but knowledge that defendant's conduct constituted infringement, which was dependent upon good faith beliefs. Thus, the "issue is whether the copyright law supported the plaintiffs' position so clearly that the defendants must be deemed as a matter of law to have exhibited a reckless disregard of the plaintiffs' property rights?" Even though a court decision held that the conduct was infringement and legal advice warned of the risk, the court could not "say that the defendants' belief that their copying constituted fair use was so unreasonable as to bespeak willfulness" because Smith had conducted legal research and a fair use analysis in an unsettled area of law.
1. Transformative Use.
Transformative use evaluates how and to what extent the new work has value apart from the original work. A use is transformative from the original work when it adds something new, a further purpose, or different character by "altering the first with new expression, meaning, or message." Transformative uses enrich society (pdf file) by adding new value, information, insights or understandings to the original work rather than simply repackaging or republishing the original work.
© Got a Grip
Does a Dkos diary that posts wholesale copyrighted pictures constitute a transformative use based upon the diary text of commentary or news reporting? The answer depends upon whether the "new work" is defined as the wholesale picture alone or as the photo and the diary text. Two cases indicate that courts may consider the "new work" as the photo and the diary, but are not likely to find a transformative use when there is wholesale reproduction. In Los Angeles Times v. Free Republic, the court considered the new work as both the wholesale text reproduction and website user commentary, but it did not find fair use. And, in Kelly v. Arriba Soft Corporation, the court also considered the new work (thumbnail images) in the larger context of the search engine website and found fair use where there was no wholesale copying.
The Free Republic court found that the wholesale reproduction of articles was "minimally, if at all" rendered transformative by the fact that users added comments and criticisms to the posted articles. The problem is that wholesale reproduction often serves the same purpose that people would seek from the original article, to read and use as a reference, which means that the "new work" was merely a substitute for the original work.
A similar problem arises with pictures posted in a diary, which would be using the wholesale copyrighted pictures to illustrate the subject or text of the diary or depict the news, and this would also be the purpose of the original work:
"Similarly, if you wanted to publish a photo of a current news event, such as a terrorist bombing, you could not just go to the online edition of The New York Times and download one of their copyrighted photos to illustrate your article. The photo depicts the news, but it is not the news itself and you can't make a Fair Use claim. If, however, you were you doing a story on how the news media covers terrorism, you could probably make a Fair Use claim for publishing a scaled down version of the entire front page of The New York Times, including the photo, to show how the newspaper placed the story. In such a case, the photo itself would be part of the news."
(a) Video Screenshots & TV Screen Caps.
While there may be some distinguishing features, the terms "screenshots" and "screen captures" are often used interchangeably. kos deems screen caps from TV news to be covered by the fair use doctrine. This is consistent with Sony Computer Entertainment America v. Bleem (2000), which held that the unauthorized use of a "screen shot" or a frozen image from a personal video game was protected by the fair use doctrine. The court defined the screen shot as "a small image depicting the computer or television screen in a frozen moment during the playing of the video game. The cinematic equivalent of a screen shot would be a depiction of one single frame from a movie."
Screen cap by spread the word IRAQ NAM
In this case, Bleem used the screenshots in comparative advertising to illustrate how his software enhanced the graphics of Sony's PlayStation games. The court found that all 4 factors weighed in favor of fair use, but the amount of copying and purpose of use were most significant.
The quantitative use was minimal because a screen shot is such an "insignificant portion" of the original copyrighted work as a whole:
"Video games, much like motion pictures, create the illusion of movement by displaying in rapid succession a series of still pictures with incremental differences. Film is projected at 24 frames per second; video is projected at 30 frames per second. A screen shot is therefore 1/30th of a second's worth of the video game. Temporally, therefore, there can be no doubt that a screen shot is a small amount of a video game. Inasmuch as these games involve plots that can be controlled interactively by the player and may elapse over several hours, it also seems true that a screen shot is of little substance to the overall copyrighted work."
The court characterized the use as comparative advertising, whose social utility or public benefit lies in providing information to the public to enable reasonable decisionmaking. The same may be said about diaries reporting on political news or current events.
(b) Hyperlinked Thumbnail Images.
Given that hyperlinking and thumbnail images are permissible, it may also be permissible to combine the two by having the thumbnail serve as an image hyperlink to the original picture.
Source: Baby Animalz.com
|How To Link a thumbnail: Save the full-size image on your computer. Make sure that you copy the URL to the page you found it on so that you can link the thumbnail back to the original photo. Any photo editor will allow you to resize the picture or crop it to a smaller size. Save your small image and upload to one of the Daily Kos approved
image hosts. At the point in your diary where you want to place the image, enclose the image source (img src) tag inside an anchor (a href) tag that links to the original page where the image was found.
(c) Video Image Linked To YouTube.
An image from a YouTube video may be fair use when a click on the image takes the user to the YouTube page in order to view the video. For example, see the first two images at this page: "Reagan's General: US Out of Iraq Now" and "Howard Dean: McCain Is The New Nixon."
This is essentially an example of (a) above. The image is a screenshot of a part of the video and the image itself functions as a hyperlink to the video so that the user must click to an external website to play the video. However, caution should be exercised when using YouTube videos because there may be infringers lurking amongst the selections.
2. Thumbnail Images.
Right now the safest way to post copyrighted photos for which you have not obtained permission or paid royalties appears to be the use of thumbnail images. The size and resolution of a copyrighted digital image has a significant bearing on whether the use of that image on a website qualifies as a fair use. The smaller the image, the more likely the use falls under the exemption. For example, the General Counsel of Princeton University states that "thumbnail" images "limited to 125 x 125 pixels have been deemed a fair use, per se, because they are not suitable for sale as prints or otherwise prone to commercial exploitation and misappropriation. However, using larger digital images with higher resolutions is more likely to qualify as a `fair use' if the image is displayed with technological restrictions (e.g., password protection, encryption, etc.) that protect against unauthorized downloading."
This per se rule is presumably based on Kelly v. ArribaSoft (2002) (pdf link) which held that the use of thumbnail pics to provide image rather than text responses for search engine queries by Ditto.com constituted fair use. The factor which tipped the scales toward fair use was the transformative nature of Ditto's use of the images. The original copyright holder created the pictures for artistic and illustrative purposes while Ditto transformed that use into part of its search engine to catalog and improve access to images on the Internet.
However, this year Perfect 10, Inc. v. Google (pdf link) addressed a similar issue for the Google search engine, rejecting fair use of copyrighted images displayed for image searches primarily on commercial use grounds.
The Google case does not have precedent value because it is being appealed. However, the court distinguished the case from Kelly mainly on financial grounds. Kelly involved a company that did not receive any financial benefit from the display of the copyright holder's pictures. However, Google did obtain a financial benefit because it displayed thumbnails which led users to infringing sites from which Google made money from its AdSense program. And, the Kelly court found that thumbnail displays did not harm the market for the copyright holder's work, partially because the work was Western scenery for which there was no market for the licensing of thumbnail images. However, in Google, the court found the use consumptive rather than transformative because the plaintiff had a licensing agreement for a cell phone company to use thumbnail images with the cell phones.
If you find an image on another site that is, or may be copyrighted you can link to it with a thumbnail, which is basically just a smaller size image than the original. The reader can click on the thumbnail if they want to view the full size picture as it appears on the original page. There is no standard rule for thumbnail size, but depending on the dimensions of the original, you should try to make it 150x100, give or take a few pixels in either direction. You want the picture to be detailed enough to give the viewer an idea of the content. By resizing the image you are already making a substantial transformation of the digital pixels that comprise the image. The large image (500x333) is 166,550 pixels. Resizing to 150x100 makes 15,000 pixels; that's over 90% reduction.
Source: Department of Defense
If resizing makes the image too small to be clearly seen, the alternative is to crop a section of the image to show enough detail of the subject matter but not the entire picture. The crop can either be 100% of the original size or reduced slightly if necessary. The image on the lower left (250x200) is 70% smaller than the original but has 100% of the detail.
Sources: Guggenheim and Blanch v. Koons (see PDF linked in text)
A fair use blogger described how the new work was an almost perfect example of transformative use:
| 4. Parody.|
C. A Photo Club, Safe Harbor & Take Action Proposal.
Our proposal takes into consideration kos' position on copyright that we just "don't post" copyrighted photos without permission unless covered by the fair use doctrine. While kos has a "blanket ban on wholesale reproduction of articles and wire photos," he will permit "poems, song lyrics, cartoons, etc." and then "pull if the copyright holders complain."
The problem area lies for those diarists who write about politics or current events. Obtaining a picture from the public domain is really akin to looking for a needle in a gigantic haystack of out-of-date photos. The style of safer gray areas -- like parody and collages -- are not always conducive to the subject matter of current events, particularly serious stories. So, that leaves the large darker gray area of fair use as legal grounds to post copyrighted pictures.
Therefore, we offer some suggestions and ideas that we hope will stimulate discussion and debate, but it should be noted some contributors to this diary strongly oppose one or more of these ideas:
Source: personal collection
1. A Daily Kos Photo Club.
2. A Dkos Safe Harbor Policy.
kos acknowledges that there is a murky area between fair use and infringement and is "willing to allow some gray area."
This gray area is a zone where lack of clarity and risk of expensive litigation causes people to not exercise their fair use rights, contrary to the Constitutional motivations for copyright law. This is why some organizations have drafted guidelines or checklists to protect their members "from the dangers of the no-man's land while supporting our exercise of fair use rights." The guidelines delineate what is the "safe harbor" of fair use so that activity conducted within the guidelines should be covered by fair use because the "slippery slope" cases would be excluded.
The safe harbor policy should really have two components. First, a section on those types of pictures which are safer under fair use, such as thumbnail images. Second, the policy would provide a concise analytical outline of the 4 fair use factors for users to review for those cases not covered by the safer use categories. This component would provide a list of the safer, middle ground, and risky uses so that users could evaluate pending work before posting to determine if there is a good faith, reasonable basis for the new work to be classified as fair use.
For example, this is one safe harbor policy on the first factor of character of use:
FACTOR 1: What is the character of the use?
- Otherwise "transformative" use
"Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right."
Daily Kos could create a panel to develop a safe harbor policy. This panel may be selected or approved by the community, which should also have a voice in the final safe harbor policy.
3. Should Daily Kos Lobby Democrats To Provide Some Per Se Rules For The Gray Areas?
Source: Fish & Wildlife Service via Gimp-Savvy
Credits: Standing ovation for nonnie9999 and On the Bus for sheer brilliance in the selection and arrangement of photos --- special thanks for tech designs and programming to my wizard friends mikk0 and pico --- kudos to nonnie9999 for our title --- sincere gratitude to jlynne, melvin and srkp23 for critical commentary, advice and invaluable assistance --- and a thunderous applause to Got a Grip and her team for compiling a magnificent photo index and having survived their hunt in the wilds of the public domain.
The first thing we discovered was that there is no clear list of sites from which to gather images. Beginning with the Wiki site, we began looking for the sites that would hold the mother lode of images. Unfortunately, the first thing we learned upon clicking on a site in Wiki is that it doesn't take you to where the pictures are, it takes you to another page of sites, clicking on one of those links takes you to another page of sites, and on and on, ad infinitim. Thinking there must be easier sites to navigate, we jumped back into the tubes to search for sites with definitive lists of images. Imagine our surprise and dismay when we found they don't really exist.
All the sites with lists we encountered were as convoluted, if not more so, as the Wiki site. We had to dig through layers and layers of misdirection and obfuscation before we would finally hit the last layer of lists. After a day or so of this digging we came to see that what was needed was for someone, or a group of someones, to take these lists and tear them apart, separate all of the spaghetti-like strands and lay them out into something that might begin to make sense to the average human. With fear in our hearts, we took up our tools and strode bravely into the tubes once more. The resulting mayhem wasn't pretty but, my friends, we have begun to make progress.
|Name / URL||Subject Matter||Comments||Restrictions on Use|
|U.S. Geological Survey||Photo collections under the following headings: featured sites, biology, ecosystems, geology, geography, hydrology, national parks. From these collections you can navigate to a host of photos that include studies of illnesses in fauna and flora, studies of volcanoes and other geological phenomena, water quality and research, research facility images, misc.||This is a vast site, with remarkable photos of such a widespread variety that if defies description. A very important site for more than just photos, full of information concerning environmental concerns. Highly recommended.||Public domain with exceptions a very few exceptions. Check each collection for individual usage/guidelines, sometimes on separate pages. Information policies.|
|Human Rights Watch||Images of places around the world where human rights are under attack, and the people who suffer because of it.||All images are under copyright to HRW. You must ask permission to use them. However, they provide e-mail contact info, and it is my understanding that the turnaround time on this is very short. Read their permissions page carefully.||Copyrighted material that can be used following the usage criteria, read carefully! Permissions FAQ.|
|RIAN, English version||Current events photos from around the world.||You can use anything on the free version of the site, excluding AP AFP and Reuters, but have to pay if it's from the subscription-only version. Check carefully,and avoid photos from these three sites.||Copyrighted material that can be used following the usage criteria. Copyright information.|
An incredible amount of work has gone into this, and this is an ongoing project that requires constant updating and editing. Therefore, we have decided that for the time being we will house this document offsite where we can do the daily maintenance required. The link to this in-depth resource document is here http://theponyexpress.org.... Those of you who use images regularly may want to bookmark this site.
And while everyone listed as participating in this diary have contributed links, information and other much appreciated help, you should give special thanks to nonnie9999 (in-depth research and advice), mikkO (research, layout, coding and advice), pico (in-depth research and advice), and Got a Grip (that's me). These folks have gone above and beyond the call of duty to bring you a resource that would not otherwise exist.