Does offering an embed feature violate copyright law?

Question

I know this is not a legal site, but this is closely related to photography so I hope this question can stay here. I am the owner and founder of a wildlife photo site, which I'll only plug here because its relevant for the question:

http://www.jungledragon.com

It's a photo sharing site (plus a whole lot more not relevant for now) where members upload their photos. Myself and the server are situated in the Netherlands, Europe. I'm just a guy with a website and have about zero capacity to withstand legal issues.

Yesterday I implemented a new feature that allows anyone (member or not) to embed a photo on sites external to JungleDragon, say a blog or forum. It does what you expect from other photo services: spit out an embed code that one can copy and paste.

I deeply appreciate the rights of photo owners, and therefore had taken the following measures:

• The size of the embedded photos is seriously constrained
• Although this feature allows photos to be displayed on other sites, the photo file itself still comes from JungleDragon. In addition, clicking it brings the user back to the original at JungleDragon.
• Members who do not appreciate their photos being embedded, can disable it globally, yet the default is that it is enabled (opt-out)
• Unrelated to this embed thing, right-clicking photos is disabled on the site

From my perspective, I have struck a reasonable balance between the control photo owners have over their content and the value of promoting content outside the site itself. Yet I have received some feedback that it is probably better to have embedding disabled by default.

It is absolutely safer, but it will also largely kill the embedding feature, as few users ever change their default settings.

Time to raise my main question: am I subject to any legal issues given the situation described above?

Of course I did a little digging myself, and found this interesting thread concerning 500px's embed feature (which cannot be disabled at all, hence it less reasonable than my proposal):

http://www.pixiq.com/article/500px-encouraging-copyright-theft

It seems there is no real consensus on that thread. 500px claims that thumbnailing is "fair use" and that "any photo posted on the web is trivial to reproduce". I would think that if such a popular service can get away with this, my solution which gives more control to photo owners is a safe bet?

The other thought I'm having concerns how embedding relates to other ways of sharing content. For example, like many sites, I have a social sharing widget on the site, allowing anyone to share a photo (preview) on Facebook and Twitter. It's a common practice and it happens without the photo owner's explicit consent, yet I don't hear anyone complaining about that? Another example is RSS, also available on many sites (including JungleDragon) and what about Google Image search. All of these services reproduce (display) a photo outside its original context without asking for permission.

Sorry if this question is a bit messy, but I'm trying to do good for photo owners whilst also trying to do good for the site. What are your thoughts?

Asked by Ferdy

Answer

IANAL - this is effectively-amateur-perspective comment:

What you seek to do seems fair and reasonable and no right minded person could take much offence at it. HOWEVER in the US and increasingly elsewhere such things may make you liable if a user used the means that you provided to violate copyright provisions. In the US The ?? Digital Millenium Copyright Act is probably what you need to consider. In NEw Zealand (my country) recent or proposed laws have provided protection to copyright owners with specific obligations on ISP's and site providers to ensure that copyright is no violated and specific assignment of responsibility if it is.

I am certainly not suggesting that this rough outline should be used as a basis for your actions - but it may point you towards areas which need to be considered, even in a European context.

The references below all relate to the US DMCA but seem likely to provide a good feel for how the relevant rights and desires of vendors, users and the people in the middle (ISPs, photo site providers, ...) all go together.

---

Wikipedia- DMCA

DMCA summary by US Copyright Office {USCO}

UCLA comments & links

Harvard University summary with links They note:

• The Digital Millennium Copyright Act ("DMCA") of 1998 endeavors to balance the interests of internet service providers and copyright owners when copyright infringement occurs in the digital environment. The DMCA protects internet service providers from liability for copyright infringement by their users, if the internet service provider meets certain statutory requirements.
  To fall within the protection of the DMCA, an internet service provider must, among other things, take certain steps when it receives notice that infringing material resides on its network; adopt and implement a policy that provides for termination in appropriate circumstances of users who are repeat infringers; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works.

  The DMCA protects only the internet service provider, and not the users of its system who infringe copyright.

Related:

DMCA USCO - related

Educause on DMCA

Useful: Unintended consequences of DMCA . They note

• This document collects reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors. It will be updated from time to time as additional cases come to light. Previous versions remain available.

Example action

Fair Use:

Useful Fair use and the DMCA

Useful Columbia edu paper on Fair Use & DMCA

Apple DRM legal ruling, 2010 - "Jailbreaks" are Fair Use

Fair use victories on the DMCA

Stanford

Answered by Russell McMahon

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PSE10 Insert Invisible Watermark

Question

I need to put an invisible watermark in some of my PSE10 edited PNG files, but since I am an amateur, I probably don't need an online subscription right now. How do I easily put an invisible watermark in my PNG files using PSE10 without subscribing to an imaging service.

When I go to Filter->Digimarc all I see is the option "Read Watermark". When I search through the PSE10 help, all I see are instructions on how to read such an invisible watermark.

Thanks,

Shawn

Asked by Shawn Eary

Answer

First off I am not sure if there is an easy way to create an invisible watermark in PSE without buying a Digimarc subscription. With that said there is a way to create an (almost) invisible watermark using the blue channel and layer styles but this is not possible in PSE. Here is a tutorial on how this is done in PS. (Maybe download the trial version of Photoshop to insert the watermark?)

With all of that said if you are going to release the PNG file into the public via the web license the file using creative commons.

Answered by Lynda

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JPEG XR Plugin for Photoshop Elements 10?

Question

I think I took a neat picture of a butterfly that I just used PSE10 to cut out of its background. Now, I want to package the butterfly as "free" clipart using appropriate tags to preserve my intellectual property.

Is there a decent JPEG XR plugin for PSE10 that supports transparency? If there is such a plugin, would using the plugin or JPEG XR force me to pay a royalty fee to a company every time I give someone a copy of my butterfly?

I've seen several posts on Bing that there used to be a JPEG XR plugin for older versions of Abobe Photoshop CSX, but all links I find to that plugin seem to be broke. Also, I am a very crude ameture so I don't want to shell out the money for CS6.

Thanks,

Shawn

Asked by Shawn Eary

Answer

I am not sure about a JPEG XR Plugin for PSE, however, I would use PNG for my file.

You could download GIMP and then use the GIMP JPEG XR Plugin to do what you are looking for.

Hope this helps.

Answered by Lynda

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Can I “lock” copyright metadata in an image?

Question

I'm going to be distributing some of my images as TIFF files and want to put my copyright and contact information into the metadata for the images in a way that prevents it being stripped or altered by third parties. At the moment I'm using Photoshop CS5 and inserting the information using Bridge. Is there a method for locking the metadata that anyone can recommend?

Asked by Danny Edmunds

Answer

Anyone with an editor can open a TIFF and save it again without the metadata. I don't think there is any way to lock the metadata from being stripped out.

You could look at digital watermarking, such as Digimarc

Answered by MikeW

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Why do event organisers have the right to restrict the activities of photographers?

Question

Many public events such as sports, concerts, etc have restrictive policies that limit the ability of the audience to take photographs. These policies can vary from an outright ban to a ban on the use of 'professional' equipment. See also this discussion.

So my question is this: what gives the organising companies the right to enforce photographic restrictions on, what is after all, visible to a public audience?

Now I can understand their rights to make restrictions in purely private, by invitation only, events. But when any member of the public can choose to attend do the organisers still have rights to dictate the behaviour of members of the public?

Answer

You're entering into a contract - you agree to follow their rules, and they agree to let you into the concert. Any event that requires a ticket or is held on private property isn't truly a "public" event, and the property holders or event organizers can set their own rules.

It's much like this website. Yes, you may use this website for free, and it's publicly accessible, but it does have a legally binding contract that you agreed to when you made an account.

(IANAL, TINLA)

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How can I tag or mark scanned photos to show they are mine?

Question

I have scanned some photos of mine from prints, and I would like to mark them with some indication that I took them. Is there a recognised way of tagging photos that might survive some basic post processing?

I don't need it to be secure, just for the data to be kept if the photos are copied, maybe cropped or touched up a little.

Answer

If you can import the scanned photo into any kind of photo-workflow software, such as Lightroom, then you can add information into the "Author" and "Copyright" fields of the EXIF data. Then, when you export the file, this will be baked in to the JPG.

Alternatively you could add a watermark to the photo, though personally I hate these as they detract from the photo itself.

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Should I be worried about ownership of photos taken on my camera by others?

Question

If you are at a social event, such as a party, and someone wants borrows your camera to take a couple of photos (which will typically be of the photographer!), are you concerned about copyright issues?

(Ignore for a second the many other issues, such as your fear for theft, damage, thumbprints on the lens, lost opportunities and your cynical doubt that anyone but you can actually take a reasonable photo.)

I spoke to one (amateur) photographer recently, who said he flatly refused to let others borrow his camera, due to two fears:

• They would claim copyright on the photos they had taken. I assume that is a low risk, but a fair one: Without any other agreement in place, the copyright belongs to the person who composed the shot, not the person who owns the camera, right? I could see some shared copyright in situations where the lighting has been set-up by one person, the composition by another, the subject created by a third, etc.

• They might (incorrectly) claim copyright on other photos that he had taken.

This sounds rather implausible to me. I would have thought the onus would be on the borrower to prove the photos were taken by them.

Am I being naive? Has this happened to you and/or are you concerned about it?

Update: I assume in this scenario, that there has been no agreement beforehand as to the disposition of the copyright.

Answer

It is a regular occurance that someone insists on taking a photo of me at weddings, saying "you taking all these photos but I bet you never have any of you!" when in fact I have a photo of me at pretty much every one! Here are some of the best ones:

I find it impolite to refuse, so I simply don't use the photos (they are usually out of focus anyway). In fact I actually quite like to have the photos to remember the event by, but in any case they very rarely end up in the album unless the couple request it. In the occasions where I've given my camera to someone I trust I'll usually shoot a photo of the floor before and after, and then if I do anything with the photos I'll add an appropriate attribution.

The only tricky case I see is when a stranger uses your camera at an event and produces a good image that you want to be able to send to the client, but you have no idea who actually took it. In this case you could probably get away with using it under the orphaned works legislation, though if you really want to cover your back just don't use the image!

If someone does take a photo with your camera which turns out to be valuable that shouldn't be a difficult situation at all, you simply don't claim credit or profit from it! When I shoot with other people's cameras I will do my very best to obtain a copy of the photos on the day by whatever means possible. This prevents any disputes before they even start!

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Which rights to photographs should I retain when writing a contract?

Question

The title says it all, but to clarify, assuming that the client does not have a specific contract that I must sigh or specific clauses that they want added, what rights to the photographs that I take should I retain for myself?

Answer

You should assert your copyright and all other rights (with the 'all rights reserved' clause), and explicitly grant the customer a licence to use the image for the purposes they need and no more, unless it's a royalty-free sale. If the image contains people or property you should check to see whether you need a signed release; if images of people are used for commercial/advertising purposes then without a release, the subject can reasonably demand a share of the profits from the use of the image.

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In Canada, who owns the copyright to a photograph that has been taken by a hired photographer?

Question

According to The Canadian Copyright Act (R.S.C., 1985, c. C-42)

Section 10.2.a states:

(2) The person who

(a) was the owner of the initial negative or other plate at the time when that negative or other plate was made

is deemed to be the author of the photograph... [irrelevant information removed for clarity]

Section 13.2 states:

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

[Italics added]

A few follow up questions:

1a. Would this mean that without an agreement to the contrary, the customer would be deemed the author & owner? (Owner per 13.2, owner is the author per 10.2.a

1b. Does 13.2 provide the photographer with a legal way to retain ownership of copyright?

Answer

The "agreement to the contrary" needs to be very explicit and carefully worded.

The default assumption in fields deemed to be graphic arts (traditionally, things like engraving and lithography, but under which photography also falls by law) is that the contribution of the graphic artist is of a purely technical nature. In other words, one is normally deemed to be nothing more than a "camera operator", someone who merely records what is -- like an engraver or lithographer who copies an illustration for use in print, it is assumed that you are merely a walking set of technical skills with a tool kit.

The reason it needs to be carefully worded is because it is very difficult, under Canadian law, for a person to relinquish their natural copyright in a work. It is impossible, for instance, to release any work into the public domain voluntarily -- the best you can do is to grant license to everyone for every purpose, gratis, and without requirement for attribution, but that license is revocable at will. Similarly, assignment of all rights in a work (which the customer holds naturally under commission) is difficult to make in an irrevocable manner, so the language around the agreement needs to be clear regarding both the intent as to who will hold copyright and as to who has creative control in the production of the image.

If it's not clear that you, as the photographer, are acting in the capacity of a creative artist, then even an explicit agreement that you will hold copyright in the resulting work may not, in fact, be legally binding. The intent of the law surrounding the alienation of natural copyright is good; the fact that photography is deemed in the Act to be little more than a technical process in the reproductive arts is not so good.

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What are the most important issues to cover in a portrait photo contract?

Question

I am planning on doing some photo sessions for friends and want to do it right. I want to have a contract, but I'm not sure what all I need to include.

What are the most important issues to cover in a photo contract?

Answer

• Pricing details, even if you are doing it for free
• Session details, when/where/etc
• What happens if you can't make the session
• What happens if you lose the images
• Model Release if you want to use the photos to promote yourself

Those are the biggies.

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What should one be aware of when taking pictures at work, but not as one's primary role?

Question

I took a few pictures around work and they were used on our website (more here). I've just been asked to do some shots of the executives, and it looks like there may be more requests like this. Any advice?

• Money came up. What's a fair price? Pay per shoot, or increase salary?
• Rights agreement — any gotchas I should look out for?
• Other stuff I should think about?

Answer

This greatly depends on your intentions, if you intend to become a full time photographer then drawing up an agreement would be a very worthwhile endeavour. I'm not a lawyer but in that case you'd probably want to ask to retain the rights to use photos for promotional purposes for use on your website etc.

If you don't then I'd suggest specifying a nominal fee of say 150CDN (you don't say how many photos we're taken) on the understanding any more sets of photos will incur a further fee. If you take this route you're being rewarded monetarily for your time and investment in equipment but also by being seen as performing an act of good will to the company because you're cheaper than getting in a professional photographer. I'd be wary of asking for an increase of salary because that implies that you would become 'official company photographer' and as great as this sounds that might affect your career by taking your time from your main position.

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