New Sherwood

Copyright question

Dear Readers, I’d like some advice. I’ve been blogging for roughly 10 years, and have always followed what I thought to be standard practice in using images found on the internet. That is, I have felt pretty free to use images from online news sources – without permission – for purposes of blog commentary. The “fair use” code states the following:

“Notwithstanding the provisions of sections 106 and 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.”

I admit that I never really looked into this, and only discovered the “fair use” provision this evening due to a threatening e-mail I just received. In all these years I’ve never received a single complaint, threat, or the slightest expression of disapproval concerning an image I have used.  But maybe YOU have. I’d like to know what you think of this letter I just received and whether I should be worried. Here it is:

***********

Dear Jeff,

I work for Polaris Images a news photo agency in NYC. We represent the San Francisco Chronicle archives of images.  Your blog is in violation of using a Chronicle image without copyright  permission.  Neither the San Francisco Chronicle or Polaris Images were made aware and asked for usage rights. Plase see the link below to see the image I am talking about.

The image is by Mike Kepka/Chronicle and is a photo of same sex marriages.

https://culbreath.wordpress.com/2008/10/12/first-grade-field-trip-in-san-francisco/

In violation the standard industry rate for copyright infringement is $1500- an image.

Please contact our office to discuss the usage of this image further and let me know where I should send the invoice for such use.  I can be reached at 212-967-5656.

Thank you,
Jennifer Weisbord
Assignment Editor
Polaris Images

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October 15, 2008 - Posted by | Uncategorized

23 Comments »

  1. Jeff,

    I’m no legal expert, nor do I know all the details of your situation, so please take this all cum grano salis, but here’s my two cents.

    Something about this letter just seems fishy to me. It’s not well-proofread, and appears generally unprofessional. For instance, the first sentence lacks a comma, and (more glaringly) “NYC” really should be written out in professional, formal correspondence. The next sentence, “in violation of…” is likewise poorly structured. The final sentence of the first paragraph has a glaring misspelling. I could go on listing such errors.

    Given that this person’s job is ostensibly to send such correspondence on a regular basis to other “offenders” like yourself, I would expect a much higher and more focused standard of writing. This not the type of this the author would compose fresh for each new case; it ought to be a precise, well-edited form letter. Its poor writing style thus inclines me to be suspect.

    On the other hand, the poor writing ability may simply reflect on how far our culture and educational system have fallen.

    Regardless of whether of not the letter is from a legitimate source, I suspect some sort of political agenda behind it, i.e., someone who’s after you not for merely using the photo, but for the purpose for which you’re using it, contrary to his own gay “marriage” agenda. In other words, someone who hates your message is out to get you.

    At the very least, I would investigate carefully this “Polaris Images,” and also make a determination as to the authenticity of the sender’s email address.

    I wish you the best of luck in sorting this out. And in the meantime, please keep up the excellent commentary on the state of our fallen world (albeit, perhaps, without the photos).

    Like

    Comment by David | October 15, 2008 | Reply

  2. Jeff-Fair use is a tricky issue and I can’t really comment specifically. But I have never heard of a $1500 ‘standard fee for infringement’. Infringement is determined in a court of law not by an editor.

    I too use freely for the blog-only, images on the internet-unless I see a copyright expressed. I do think care should be taken when using photos from professinal photogs organizations.

    Finally, usually a letter like you received would come from a lawyer or legal representative not a editor.

    I wonder if you had used the image in support of what it contained whether the email would have been sent? It could be that said editor didn’t like your content so said editor decided to scare you.

    What to do? I would quietly ignor the email for now and do some more research (both on the law and Polaris and the editor in question). (Maybe the Thomas More law center would point you to an IP lawyer who would give some free advice.)

    Good luck.

    Like

    Comment by Jim Curley | October 15, 2008 | Reply

  3. I’d take it down under the better-safe-than-sorry rule. I think it falls under fair use, but someone with an axe to grind can make your life misreable even if you prevail. One thing I am pretty sure of is that they can’t just invoice you.

    Then again, if your blog has attracted flies who scour your images to squeal on you, then it’s time to become an expert in fair use.

    Like

    Comment by Scott W. | October 15, 2008 | Reply

  4. +JMJ+

    Thank goodness for the Fair Use provision!

    I can’t believe that letter. >=( “Let me know where I should send the invoice” indeed! )

    What do they do for anonymous blogs?

    I suppose I should have more sympathy for owners of copyrighted images (or at least for the photographers and artists themselves), but it seems to me that they are fighting a losing battle in the age of Google Image Search.

    Like

    Comment by Enbrethiliel | October 15, 2008 | Reply

  5. I don’t know the actual rules, but I find when things are protected, I can’t post them on blogger. Maybe you can ask them why it was downloadable and that you weren’t aware there was a problem, having never had a problem before?
    Your blog must be popular if they noticed… :)

    Like

    Comment by Annaberri | October 15, 2008 | Reply

  6. I could be _totally wrong_ and have not researched the legal aspects of this issue, but I _think_ this is frivolous intimidation. I’ve certainly heard of such intimidation being used selectively against conservative bloggers.

    Like

    Comment by Lydia | October 15, 2008 | Reply

  7. Looks like there is a Jennifer Weisbord at Polaris:

    http://www.polarisimages.com/contact.html

    You can see if the email addresses line up.

    Like

    Comment by TSO | October 16, 2008 | Reply

  8. This gal is not an editor. She’s not even a lawyer. When the Chronicle sendss a letter, pay attention. There is no such thing under law as a “standard industry rate for copyright infringement.”

    That said, while you are probably covered by fair use. unfortunately, a legal case would cost you a lot more than it would be worth. Under the DMCA, they have to send you a take-down notice first before they can file suit. If you get a credible take-down notice, comply immediately.

    Invoice demands over the internet are ignore-worthy.

    Like

    Comment by Danby | October 16, 2008 | Reply

  9. Is there a difference under the law between hotlinking a photo and copying and saving it to a blog’s storage space, and then putting it on the blog?

    Like

    Comment by T. Chan | October 16, 2008 | Reply

  10. Commentary and criticism is fair use, as far as I know, even when done for profit; and you presumably aren’t blogging for profit. I also think, though I’m no lawyer, that this is just bluster and intimidation.

    Like

    Comment by Zippy | October 16, 2008 | Reply

  11. Jeff, I’ve asked somebody who isn’t a lawyer (and says you shd. talk with one) but who knows a lot more about this than I do. His opinion, FWIW, is as follows:

    1) You probably are violating fair use, because you didn’t comment _on the photo_ (e.g., if you were unmaskng a faked photo) but only on the story the photo illustrates. 2) It might be possible to avoid the fair use violation if you cropped the photo and linked to their web page to see the full photo. I don’t know how much you would have to crop for this to work. 3) The “standard fee” thing seems questionable.

    Like

    Comment by Lydia | October 16, 2008 | Reply

  12. FYI.

    I suggest updating the post to make a comment about the photo itself, e.g. media complicity in the normalization of same sex “marriage” for public school first graders in San Francisco. It is part of the subtext anyway; make it explicit and the wind comes out of the “not fair use” sails, it seems to me.

    Like

    Comment by Zippy | October 16, 2008 | Reply

  13. Photoshop a copyright-free image of elephant dung in the lower left-hand corner, and call it art.

    Like

    Comment by Tom | October 16, 2008 | Reply

  14. I’m a 2nd-year law student, and by the terms of the paragraph, your post could count under criticism, comment, or news reporting. Ignore the email, and if she gets more aggressive, write this gal back and tell her that she doesn’t have a leg to stand on. You really are in the clear – you do what every other blogger in blogdom does every day. It’s just that someone in the Lavender Mafia has had their day made a tad less fabulous, and shutting you up would make them happier.

    Like

    Comment by Peter H. | October 16, 2008 | Reply

  15. Get a lawyer if you want to contest this. None of us, even if we are second year law students, have the legal capacity to advise you. So, to repeat, if you want to contest this, or otherwise follow-up on the letter, you should get a lawyer.

    Sorry.

    Peace out.

    Like

    Comment by Thomas | October 16, 2008 | Reply

  16. Peter H. who is a 2nd year law student:

    If a company is put on notice for infringement, should general counsel simply ignore it?

    I’m rather surprised that you advised Jeff Culbreath who likewise has been put on notice to simply ignore it.

    Like

    Comment by e. | October 16, 2008 | Reply

  17. Thank you, everyone. Good advice and food for thought all the way around.

    The email for Jennifer Weisbord checks out. I suspect the relationship she claims to have with Polaris, and the relationship she claims Polaris has with the SF Chronicle, are both legitimate.

    I don’t know why the last two commenters are picking on Peter H.. I’m grateful to have the opinion of a second-year law student, just as I’m glad to have the opinion of someone who has experience in publishing. Not that I take either as gospel, but they’re both a little higher up the chain of experience and that’s worth something to me.

    To be sure, this letter definitely smells like low-grade political harassment. I haven’t decided what to do about it, if anything, but I’ll be considering all that has been said here. Once again, my sincere thanks to everyone who replied.

    Like

    Comment by Jeff Culbreath | October 16, 2008 | Reply

  18. Hey, y’know, free legal advice – you get what you pay for! I suggested to ignore it because she may not be able to do anything to you without knowing where you live (though she may be able to, I don’t know). Yeah, I’d maybe get a lawyer or at least ask one for his opinion, but the main thing is I think you are no-question within the scope of fair use.

    Like

    Comment by Peter H. | October 16, 2008 | Reply

  19. Jeff, I have the shark fin but I’m not going to pretend to understand copyright law. I have, however, sent this link to Steve Dillard at Southern Appeal, and his firm just might have somebody who can weigh in.

    Like

    Comment by Dale Price | October 17, 2008 | Reply

  20. Jeff,

    There is no controversy here, nor any reason for you to be worried, pay one dime, or fret about some frivolous legal action.

    First, the post in question falls under the terms of fair use, as you are clearly engaging in social commentary. If they follow up with any other threats (hard copy, not emails), I would contact the Pacific Legal Foundation (http://community.pacificlegal.org/NETCOMMUNITY/Page.aspx?pid=263&srcid=337) to explore potential tort law abuse with political/free speech undertones. You may also want to contact Jeffrey Hare, President of The St. Thomas More Society of Santa Clara County, at (408) 292-1826, or jbhare@aol.com.

    Second, it is noteworthy that you are not, in fact, hosting this photo on your blog — rather, you are hyperlinking to it. Is there a difference? You betcha. To host it, you would have had to copy it to the server that hosts your blog. Fair use notwithstanding, you may then be said (at least in theory) to be using the image in a way that the photographer did not intend.

    In this case, however, the link (http://imgs.sfgate.com/c/pictures/2008/10/10/mn-samesex11_wed_0499276989.jpg) calls up the photograph from the SFGate website. You haven’t altered it in any way, shape, or form, *nor could you if you wanted to*, as it is not located on your site. SFGate continues to maintain complete control over the image. If they were to change the filename or move the photo to a different directory on their server, the photo “on your site” would disappear and you’d get one of those cute little red “X”s.

    In summary, they have no case, so don’t sweat it.

    Cheers,

    ===> Brendan

    BTW, do you know how they “found” the photo? Hate to be a non-conspiracy theorist, but it’s pretty simple. Precisely because you hyperlinked to the photo, SFGate or their toadies can run a simple Google script (link:sfgate.com) to find all currently active links to their site — I just ran it and found 4,970 links. It’s fairly simple to compile and pare that information down, focusing on all image links, for instance. And then some lowly clerk does some quick research and fires off a threatening email. Don’t know what’s in it for them, as I doubt they collect much of anything, but I guess if even one person panics and pays, that’s $1,500 in free money. (Oh, and to save you the trouble of Googling it, there are about 973 sites linked to Stony Creek Digest; most fellow bloggers, I would suspect.)

    Like

    Comment by Brendan Murphy | October 17, 2008 | Reply

  21. Dale: I’ll be very interested to know what Mr. Dillard has to say about it. Thanks! (P.S. Shark fin, eh? I’ll try to stay on your good side …)

    Brendan: Great info, thank you! You might want to ask Dale where he picked up his shark fin. I think one of those would look good on you. Can it really be true that Stony Creek Digest has 1/5 the incoming links of the San Francisco Chronicle? Wow! When I told my wife last night she bowed her head and humbly proclaimed her unworthiness to be married to an internet superstar. Also – I tried clicking on your name, which indicates a link, but the website http://www.jenniferweisbordcankissmyass.org keeps coming up with an error message. Must have been sabotaged by the vile New Yorker. Those people will stop at nothing.

    Like

    Comment by Jeff Culbreath | October 18, 2008 | Reply

  22. Also – I tried clicking on your name, which indicates a link…

    LOLOL

    Like

    Comment by annabenedetti | October 18, 2008 | Reply

  23. Well, you really shouldn’t link to images on other sites, because it’s a burden on their servers. But that’s a matter of Internet etiquette, and possibly outdated.

    Anyway, you’re not actually publishing this sucker; you’re linking to it.

    The usual procedure in these cases is to ignore the letter and wait to see if they get bored and go away. Alternately, you can take down the link and also wait to see them go away.

    Like

    Comment by Maureen | October 18, 2008 | Reply


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