Copyright Qs & As: Infringement of Copyright

8.1 Question: My organization’s Web site has several photographs on it. We were recently asked to remove a photograph with the claim that we did not have permission to post it. However, we have a written agreement with the photographer and this second alleged owner of the photographer claims that he owns it (rather than the photographer with whom we have an agreement.) Should we remove the photograph?

Answer: You need to determine who in fact is the owner of the photograph and whether you have permission from this owner. Does your permission/license with the photographer state that he is in fact the owner of the photograph, and that it is an original work, and that he has permission to enter into this agreement? How about the alleged owner who has recently contacted you? Is he able to prove that he owns the photograph? Some investigation should reveal the owner of the photograph. (2006-2)

8.2 Question: I recently purchased a DVD movie on Ebay and when I received the DVD the label on it seems homemade and there is no box/cover for it. I assume it is a pirated copy. To whom shall I report this?

Answer: Contact Ebay, and the Motion Picture Association of America at: www.mpaa.org. You should also contact the seller and ask for your money back. (2006-2)  For pirated computer software and digital content, contact the Software & Information Industry Association at:  www.siia.net.

8.3 Question: What is the role of the WIPO treaties on copyright law (www.wipo.org) and how do they govern copyright in each country?

Answer: WIPO administers a number of copyright treaties however these treaties do not govern the copyright law in any country. Rather, the countries who adhere to these treaties must include the minimum standard of copyright protection in these treaties. For instance, the Berne Convention specifies 50 years after an author’s death as the minimum duration of copyright protection. Each Berne member country must protect copyright works for at least 50 years, but may do so for longer, as in the U.S., for 70 years. (2007-2)

8.4 Question: Can you go to jail for copyright infringement?

Answer: Most countries’ copyright statutes provide for some criminal liability for copyright infringement. It is unlikely that there would be criminal liability for photocopying a single article in a library. Criminal liability would be for large-scale piracy and likely willful copying where the user knew or had reason to know that his actions were illegal. (2007-2)

8.5 Question: Will our company’s copyright compliance policy exempt us from copyright liability by our employees?

Answer: Although certain legislation or case law provides some advantages for your copyright policy limiting your liability in specified circumstances, for the most part your policy will not exempt you from your employees’ copyright liability. However, your policy will help educate those in your enterprise about copyright and in doing so, may lower the occurrences when copyright-protected material is used without permission. (2007-3)

8.6 Question: If I want to do a “Where’s Waldo” type of book, using a “Where’s ___________?” (someone else), what copyright issues need I be concerned about?

Answer: There is no copyright protection in ideas, so you can create a similar idea to the Where’s Waldo books. Your content should be original and not copied from anywhere else, unless you have permission to include that content in your book. (2009-1)

8.7  Question:  I own a collection of copyright-protected figurines, and have taken a photo of one of them for my book cover art.  The figurine is photographed in a setting with a backdrop, pearls at her feet and special lighting that enhances the appearance of her wings.  Is the photo of the figurine an infringement of copyright?

Answer:  If the figurine is protected by copyright, then you need permission to photograph it “as-is”, and in any “modified” manner.  You should get permission prior to taking your photograph.

8.8 Question:  I am an artist and plan on making a pencil drawing of a photo, with 25% of the drawing being different from the photo.  Is that an infringement of copyright in the photo?

Answer:  There is no percentage that makes copying legal or illegal.  Copying any amount more than a “substantial” amount (which is not clearly defined in the law) requires permission.  Although this is a judgement call in each particular circumstance, it is likely that copying 75% of a work would be considered substantial and require permission. (2010-4)

8.9 Question:  As an online seller can I take a picture of a book or dvd cover, and copy the synopsis material from the inside cover or DVD packaging, and simply reference it as described by the publisher/author?

Answer:  You need permission to reproduce the cover of a book or DVD package. Generally, the publisher/producer owns the rights to the cover art so start by asking the publisher/producer. Reproducing a small portion of the book may be permissible and it is arguable that copying the synopsis material may be legal however it depends on the circumstances in each situation. Summarizing the contents of the book in your own words is fine and does not require permission. (2011-1)

8.10 Question:  Is it an infringement to distort an image, for example, create an animated flash website out of a static image, or an image of a button that changes color when one hovers over it?

Answer:  When manipulating images in any manner, you may need the permission from the copyright holder for the right of reproduction and adaptation, as well as be concerned about moral rights (changes that may harm the reputation of the creator of the work).  (2012-3)

88 Comments

  1. Lesley says:

    Hi Richard, a photograph of a painting is a right that belongs to the painter. However, you may be able to successfully argue the fair use defense in your situation. Look at he 4 fair use factors and see if your use may comfortably fit within fair use.

  2. Lesley says:

    Hi Vanessa, any image may be protected by copyright and this is automatic upon creation of the image. Generally, names and slogans are not protected by copyright law, but by trademark law. An image accompanying a logo may have both copyright and trademark protection in its various components. Good general info on both these areas of the law can be found in your country’s copyright and trademark offices websites.

  3. Vanessa says:

    Hello,

    I hope I am in the appropriate section.

    I was wondering if something like the “Hello, I’m…” sticker (such as these http://www.bytedust.com/wp-content/uploads/freebies/hello_sticker_v3.gif) can possibly already be copyrighted?
    I would like to use it as part of my logo and am looking for any advice on how to find this out. And can I trademark my logo with that in it?, (basically my logo is that with my unique business name, that I have obtained a dba for).
    If it is, do you have any advice about researching it?

    Thank you so much for your time.
    Sincerely,
    Vanessa

  4. Lesley says:

    Hi Stan, the general rule is that the copyright in a work belongs to the person who created that work. This is unless it is a work for hire (or employment work) or the creator has signed an agreement transferring ownership of the work to another party. This information should help you determine copyright owner. Physical ownership of signage etc. is a separate issue, however it would too depend on the circumstances and whether any agreements were signed between the parties.

  5. Stan says:

    Long story short – our studio was contracted to develop creative (as well as physically produce signage elements/ etc. and end product) for a resort real estate project. 2 weeks before opening the project was put on hold due to a downturn in the real estate economy (about 1 1/2 years ago). The developer owes over $100,000 to date/ and despite numerous meetings to date – has indicated that they cannot pay the bills. HOWEVER, found out in the past day that they are now moving forward with this project (launching this weekend) and they have taken all of the design (PDF’ layouts) and have contracted an outside party to do final production files working from our design. They have admitted that they understand that they are using design and finished product ($30,000 in signage that we produced) that they have not paid for – but are ‘doing so in the hopes that the project will move forward so they can pay us..’ Is there any option legally to serve them with a cease-use’ order and/ or take criminal or legal actions as they are knowingly essentially stealing creative and finished product that has not been paid for… Any insight or recommendations on this would be appreciated

  6. Lesley says:

    Hi Eric, if you created your sculpture from the original Greek sculpture which I assume is in the public domain (PD), then you do not need to clear copyright permission in the underlying pd work to create or sell your work. You also want to ensure that you did not enter into any contractual agreement for eg by purchasing a ticket to enter the British Museum in which you agreed not to replicate any of its content.

  7. Eric says:

    Dear Lesley,
    I have done two thirds scale sculpture, a replica of an ancient Greek sculpture in the British Museum. Can I sell copies of my sculpture without their permission.

  8. Lesley says:

    Hi Richard, reproducing an entire work for any purposes is generally only permitted with the permission of the copyright holder. There are some circumstances where reproducing a portion of a work (or arguably a whole work) is permitted — notably when fair use applies. Do a search of fair use and you will find much helpful information.

  9. Richard says:

    This is a great site!

    I purchased a painting from an artist. Now I want to resell it. I know under the First Sale rule I am allowed to resell the painting. However, may I take a photograph of the painting for purposes of advertising the sale? I want to put an ad on my website that shows an image of the original painting I am selling. Would that photograph be an infringing “copy” of the original work?

  10. Lesley says:

    Lynda, you need to look at your purchase/license agreement and see what is permitted under the license. Also, there are some preservation provisions in the Canadian Copyright Act for certain libraries, archives and museums and switching formats may fall under them under certain conditions.

  11. Lynda says:

    If an institution has purchased a movie with Pubic Performance Rights in one format (VHS), is it legal to switch it to a more modern format (DVD)? Is the PPR purchase dependent on the media which deteriorates over time?

  12. Lesley says:

    If you use royalty free music, then you will be more certain that you have the rights to use that music. However, is it royalty free in all circumstances? Check the fine print. Although a Mozart piece may be in the public domain, an adaptation of it may have new protection and there may be other rights involved in a recording of a public domain piece.

  13. lee hallworth says:

    Hi

    I am entering a competition. I am re creating a sporting moment. The competition is being ran by sony. They have put the following statement in their terms and conditions

    “each entry does not infringe upon the copyrights, trademarks, contract rights, or any other intellectual property rights of any third person or entity, or violate any person’s rights of privacy or publicity, and your entry does not include trademarks owned by third parties; copyrighted materials owned by third parties; names, likenesses, voices or other characteristics identifying celebrities or other public figures, living or dead.”

    I would like to use 8 seconds of a mozart piece in this. Does this infringe upon copyrights? And does that change if I purchase a royalty free version?

    Also other entries have used the original commentary fron the sporting event in their video which sony seem to have accepted as an entrant. I wish to do the same, it is commentary from argentina, is this possible to use?

    NB.If we win the competition, we give sony a nonexclusive world wide royalty rights to this video, which we are happy to do.

  14. Di says:

    Hi Lesley,
    I have a question that I can't seem to find a black and white answer for. I am really hoping that you can clear this up for me.
    My question is regarding some framing I am currently doing. What I do is purchase comic books I like. Then I cut out images or pages I like and sort of do a collage of sorts. I have made some for myself but friends are now interested. I have had so much interest that I am considering selling them online. Would that be infringing the copyright? I am not reproducing anything, just cutting and pasting.
    Thanks in advance for any advice you can give.
    Diana S in Saskatchewan

  15. Copyrightlaws.com says:

    Hi Joanne, best to review your license agreement and see exactly is permitted in your agreement. Your agreement is a summary of your relationship with the vendor.

  16. joanne says:

    I would like to share my database from RefWorks (citation management software) with other researchers that are not affiliated with my university but who are part of the research team for the project. Please note that the members are dispersed globally. Now, RefWorks allows its users to share a specific folder or the entire database with others by providing a URL. I was in the process of sharing my database of citations but the following message appeared and I would like to know if I would be infringing on copyright:

    "The data you are about to share may be copyright protected or subject to data provider restrictions. Users should check with the appropriate database provider(s) to ensure compliance with any restrictions such provider(s) may impose upon downloading or sharing of the information."

    The default settings for sharing the folder are: allow export, allow print, allow bibliographies and enable option to email me. However, I would also like to permit them to post comments on each of the references.

    Thank you in advance.

  17. Copyrightlaws.com says:

    Hi NN, some complicated questions there which go beyond a simple answer. Please refer to a lawyer in your state/province for a consultation.

  18. NN says:

    A company produces portable music player.it created a separate downloading format for the songs from internet.A independent software developer , reverse engineered the format system followed by the company and created a software which convert the format to any other format..
    Is there any copyright infringement over the companies system by the software developer??please refer any case laws…

  19. Copyrightlaws.com says:

    Hi Alba, there is no exact amount that can be used without permission. It really depends on which lyrics from the song you use, and what amount. For example, if you use the "main" couple of lines, that may be considered infringement…however other sets of two lines may be fine. If you live in the U.S., look up information on fair use, to guide you through your analysis of what portion would be considered ok.

  20. Alba says:

    Using lyrics in a novel.
    Please help!
    I've just written a novel in which the main character often sings songs to himself from his youth (mainly 80s and some 90s). I'd like to know what percentage (or how many lines) of a song I can use without getting into copyright infringement issues.
    I have already received permission from the singer Dougie Maclean to reproduce his song 'Caledonia' in full but with the other songs I just want to use enough to get the song going in the reader's head.

    Many thanks.

  21. Copyrightlaws.com says:

    Hi Kimberly, not an easy answer. You touch upon trade mark and industrial design issues as well as the tort of passing off and likely more areas of law! Bottom line is that whatever you do with others' works, a person should not be confused with what you do with your images and who owns the underlying subject/object in your image. Beyond that, you would need to ask your lawyer for a legal opinion on specifics.

  22. Kimberly says:

    Copyright question.

    I noticed there is someone selling images of an apple computer on istockphoto. Did they have to obtain permission from Apple to use such a widely recognizable product? It looks like the logo was removed, but that is all.

    So I could submit a photo to istockphoto of say a stapler and remove the logo and it would be acceptable?

    What about jewelry?

    —————–

    If I take a photo of a product and remove the logo in photoshop, can I then incorporate my photo of the product as an element in web page graphic design. The web page would not be selling the product or describing the product.

    Thank you for clarifying this for me.

    Sincerely,
    Kimberly

  23. Copyrightlaws.com says:

    Hi Cody–sounds like your employer had an oral agreement with you that he is not honoring. If you are based in Canada, you may enforce your moral and economic rights in copyright, and if in the US you have economic rights to prevent your employer from using your photos.

  24. Cody Clingan says:

    I work as a server at a fine dining restaurant in a hotel. Recently we came out with a new menu. Knowing I was majoring in photography, the chef approached me about taking some photos of the new menu items for his personal portfolio. I agreed, came in a few days later with my equipment, and took the photos.

    A few days after I had given him digital copies of the photos, he told me that everyone loved my work, and that the sales department wanted to use them for advertising. I asked if my name would be on the images, and was told, not to worry… We'll take are of you.

    After doing two other jobs for the hotel, I have yet to receive any compensation and my name was never put on on any of their ads. The photos have been used in elevators and given out on smaller print ads at local events.

    I refuse to do any more photo work for the hotel and recently left all together. Do I have a copyright infringement case?

  25. Copyrightlaws.com says:

    JN–please re post your question under 4.0 Ownership. Thanks.

  26. Jn says:

    My question is this:

    Real names and websites excluded for privacy.

    My friend and I create friendlyfroggy.com , an SEO site for users to search for deals and offers and whatnot.
    He coded it, I supplied the logo, name, and did the graphics for that. The domain is in his name. We have had a disagreement and parted ways, and I have started a new site entitled friendlyfroggymarket.com

    the logo used was free clip-art, adapted to my needs. I have re-used the same piece and adjusted it even further. The website is the same idea, re-designed.

    As I was the original author of the name and visuals, but he uploaded them, who has the copyright ownership? The author (myself), or the publisher (him) ?

    thanks!

  27. Copyrightlaws.com says:

    Hi Lightbox, there are several advantages to registering with the Canadian Copyright Office should you ever have to enforce your rights. You can register at any time. You can also register a group of works to save money rather than each individual one. Many Canadian additionally register with the US Copyright Office so a copy of the actual work or works is deposited with them — similarly you can register a group of works rather than each one and save money by registering a group.

  28. lightbox says:

    Hello. In the U.S., a photographer can only recover statutory damages for copyright infringement if the work was properly registered (submitted) with the U.S. copyright office. Do I have the right to sue for damages if I do not register my work with the Industry Canada? Since registration of photographic work does not involve a submission, I fail to see the point of paying $50 if Industry Canada has no visual record of my work. As an amateur photographer who posts some images on Flickr, it would be expensive to register each image.

  29. Copyrightlaws.com says:

    Hi Kara, some good questions. Check the license/accepted uses of the articles and database when you initially access them. What uses by end-users are permitted? If reproducing the articles for your client are not permitted, you may be able to obtain the articles from their owners, by photocopying them under a copyright collective license, from a document delivery service or by your client licensing the same databases. Each of course would have to be analyzed based on costs and permitted uses of the articles.

  30. Kara B. says:

    I'm a student who has been asked by a previous employer to do some research on a specific topic. The research requires me to obtain journal articles and other resources from databases licensed at the university where I attend. The employer is a for-profit company. How can I conduct this research, provide articles to the company, but not infringe upon copyright? Is there a way for the company to pay a royalty for any articles I find for the company, or do you recommend that the company find a way to purchase the articles from a document delivery service instead? Thanks for your help.

  31. Copyrightlaws.com says:

    Hi LLA, you might consider having a lawyer contact them on your behalf. There may be several different areas of the law that are relevant to this situation.

  32. LLA says:

    Over the past couple years, I have left a number of comments on a blog owned by a couple who are editors for a major publisher. Their blog includes a "Dire Legal Notice" that the blog is their copyright, but at no time have I seen the site owners refer to this notice as being anything but a claim that the blog, in general, belongs to them.

    The owners have allowed posters to post comments with copyright notices and numerous commentators have stated that they will no longer post on sites that have started to require them to relinquish all rights to their comments.

    Posting on their site is simple: you enter a user name and e-mail address, then type your comment. There is no checkbox indicating an assignment of copyright, nor are there any indications that the owners consider such a release to be necessary.

    Recently, after a particularly acrid thread in which my comments elicited libelous remarks, some of which are still extant, I asked the site owners to remove all of my posts. They refused to do so and have become increasingly insulting as I have pressed my case. They acknowledge that I have a right to the copyright over my words, but deny that that copyright requires them to remove my posts. Any suggestions?

  33. Copyrightlaws.com says:

    Hello AC again — you may copy a very small amount even before copyright comes into play…as well, you may copy a small amount under fair use — but fair use is a defense and not an exception.

  34. The Archangel Conspiracy says:

    Hi Lesley,

    Thanks for your reply. When you say "a very small portion", are you referring to what's allowed under fair use (i.e. a single chapter from a book, articles of 2,500 words or less, or excerpts up to 1,000, etc)?

    Thanks again!
    Michael Perera

  35. Copyrightlaws.com says:

    Hi Michael, you own the physical book and may do what you like with it, including taking it apart. However, you do not own the copyright in the book merely by purchasing it. Therefore, other than to reproduce a very small portion, you would need permission to reproduce the whole or part of the book.

  36. The Archangel Conspiracy says:

    If the school where I work purchases a textbook, can we photocopy the relevant sections of the book, dismantle the copy, and file the now-dismantled copy in our overall teaching binder without infringing on the copyright of the original book? The dismantled copy will not be distributed to students, who are required to purchase their own books for the class. We need to have the textbook dismantled in order to show the national acupuncture accreditation committee what we use for our teaching materials.

    Thank you!
    Michael Perera

  37. Copyrightlaws.com says:

    Hi again Kirti — copying an entire test would generally require permission from the copyright holder — this would require an analysis of fair dealing and whether your use falls within one of the purposes and would be considered fair. You may also be able to copy a portion of the test under fair dealing if you analyzed fair dealing and came to that conclusion. It is always a matter of fact based on the particular circumstances at hand. Summarizing the test in your own words would not.

  38. kirti d says:

    Thanks for input Lesley.
    Just clarifying my question.
    You mentioned that Providing answers to an exam does not require copyright permissions. But to provide answers I need to have the question and question has copyright. So won’t I be infringing copyright laws.

    Thanks
    Kirti

  39. Copyrightlaws.com says:

    Hi Kirti D – there is copyright protection in an exam just as there is in any text including an email, letter, or office memorandum. You would need permission to reproduce the exam as is. There is no copyright protection in ideas and the words you select to summarize the ideas or perhaps an exam written by someone else. Providing answers to an exam does not require copyright permissions unless you are copying the answers from somewhere else.

  40. kirti d says:

    Your blog is very informative. I have a question and I would be obliged if you could help me out with it.

    A competitive exam is held by an organization. Last year papers are available to buy from that organization.
    What if I provide the solutions to the question paper and sell it on net. Am I violating copyright laws? What if I provide a sample question paper and answers?
    Question paper for a competitive exam has copyright. What if I want to provide solutions to the question paper and sell it on the net. Is it allowed?

    Thanks
    Kirti

  41. Copyrightlaws.com says:

    Hi John, it is difficult to provide you with a yes or no response. It depends on the circumstances and whether you have “copied” portions of the original work or are simply using ideas from it. Ideas are not protected by copyright so this would be a safer scenario for you.

  42. john says:

    My company has been providing constituent surveys for schools for nearly 20 years. I’m creating a new survey based on concepts laid out in a recent book – specifically 4 domains of teaching responsibilities. Each domain has 2-5 elements. I’ve written questions targeting each of these elements. I plan to market the survey as an aid to effective teacher evaluations. Does this violate their copyright, or is there a way to do this without violating it? Thanks, John S

  43. Copyrightlaws.com says:

    Hi Marianna, two issues to consider. The copyright issue — copying your logo/design is protected. You may wish to contact someone using your design if you think they may have had access to it and copied it. The trademark issue works differently. Logos are protected by trademarks in association with a certain product, service etc in a certain geographical location. So if a similar logo is being used for a different product or in a different location you may not have any further rights. If the mark is registered with the national trade marks office then you will have protection throughout your own country.

  44. marianna says:

    I’m a graphic designer in Canada and have registered my own business just over a year ago for which I designed a brand identity and website. Recently my son traveling in the U.S. noticed a company opening under the same name as my company (the only difference is mine has “design” at the end of the co. name while theirs has “theater”) and almost identical logo. What can I do to stop them from taking my identity and prevent others from doing the same?
    This is the second time a logo I had designed has been spotted in other parts of the world used for different products.

  45. Copyrightlaws.com says:

    Hi Alan, obviously the best route would be to obtain permission to go forward. If you do not, I would advise you to contact a lawyer as there is no simple answer as to whether you should otherwise go ahead. A lawyer will explain to you all of the legal implications of various routes you may take.

    Lesley

  46. Alan says:

    Hi….Great Blog!

    Simply put, I am writing a book to help people be happy. I, of course, do not wish to violate copy right laws. Most, if not all of what I know of being happy, I've learned from other people, books, orginizations, talks, religion, etc. How many of us truly have an original idea? :) I need to get a bit personal here so that you may better understand. I have been a member of AA for 18 years & much of my happiness can be attributed to what I've learned from listening to others & by implementing AA's Twelve Steps into my life. So, I thought I would alter those 12 steps so that they may benefit those who are not alcoholic & asked for permission from AA World Service. Most of the steps remained unchanged. I was told by AA that I needed to make a couple of modifications to the (my) steps & they would probably grant permission. I am not sure though that my intentions will fit the modifications they wish me to make. Understand that AA' s steps are just a list of 12 short phrases while further expanation of the steps can be found in a couple of different AA publications. In addition to listing my version of the 12 steps, I was going to discuss, in my own words, how to incorporate my altered steps into one's life.

    So, I am thinking of not trying to meet AA's request of changing my original submission to them & just not actually list 12 steps. Instead, I could explain, in my own words, bearing in mind, that my words & principles are inspired by AA's 12 steps, how people can practice these principles in there lives, resulting in happiness. What do you think? If you need further explanation, please let me know, as if this post isn't long enough already.

    Thanks, Alan

  47. Copyrightlaws.com says:

    Keith, lots of questions and complications within your scenarios. To start, any public performance of music requires a license from a performing rights society (eg, ASCAP, BMI, SOCAN in Canada). In addition to rights in lyrics and music, there are separate rights in a performance and separate rights in a sound recording. Rights extend to reproducing as is, but also to adapting a work. Your scenario includes various works and rights which you would have to separate and analyze one by one.
    Lesley

  48. Keith Wood says:

    I have a copy write question for you. As a band, you can play covers (other artist music) live, like most bands do in clubs and such. Now if say you wanted to do an acoustic or small set (2 people, musician & singer) and say said musician (me) took a song and recorded the bass line and percussion onto his laptop by playing and recording it himself on his own instrument (not ripping it off an artist original Cd) for a background sound and play the guitar part and sing live, can you do that? I know a whole band can play any cover out there as long as they don't record it for sale, and the recorded parts are actually me playing that instrument, but I only have two hands, I can't play the bass, drums and keyboard all at the same time, If I could we would all be drinking lemonade on the beach! LOL Anyway let me know what you think, I don't want to put in all that work for nothing! It would be like say you took a Gathers song, recorded the guitar yourself onto a Cd and then played the piano to it in church, can you do that or does it all have to be live at the time even though you are not recording it for sale, or in a club where you get paid for what you are doing on stage, not by what material that you play.
    Keith

  49. Copyrightlaws.com says:

    Generally, design on wrapping paper will be covered by another area of intellectual property, sometimes called design or industrial design. Whatever country you are in, you’ll have to look up the design laws and see what would be considered an infringement. In copyright law, if you photograph for example a painting, you would need permission from the painter — perhaps that example helps you understand this area of the law. Not familiar enough with design law to know the exact answer to your particular situation.
    Lesley

  50. strangelander says:

    I have commissioned some holiday photography that includes several wrapped gift boxes. These images will be used in a store window as holiday marketing. If the design on the wrapping paper is identifiable, is this copyright infringement?

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