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 Ronn, not all copyright issues are clearcut. This situation may depend on several factors. The fact that you will be using it for commercial purposes in various countries would make me caution on obtaining permission. You should also become familiar with moral rights issues which are part of copyright as this sort of use may raise some moral rights issues.

  2. Ronn says:

    As a photographer I have been asked by a client to accurately reproduce an artwork originally executed by an airbrush artist, but using a live model and a 3 dimensional staged setting in the studio. The style is very distictive. I queried the legality of this with the client who tells me that it’s legal as it’s just a “nod” to the artist’s original work and executed in a different medium. I understand that the resulting image(s) will be used for commercial purposes (advertising?) in the UK, but possibly also in USA, Canada and Australia. So, legal or not, and if illegal who’s liable for any infringement, me or the client who commissioned and paid for the work?

    Thanks.

  3. Lesley says:

    Hi Julie, you need to obtain permission to use a picture as your book cover (assuming the picture is protected by copyright.)

  4. Lesley says:

    Hi Mel, just because you found a photo on Google does not mean that it is in the public domain. Return to where you found the photo and look up the related copyright information, terms of use, etc. and determine if you need permission.

  5. Julie adams says:

    I am writing a book I found a picture that would be perfect. is it illegal to use this picture as a cover of my book that I am writing?

  6. Lesley says:

    Hi Gina, generally a person’s name cannot be the subject of a trademark so you may want to check into this fact. Fair use is an allowable defence depending on how much of a work you use, which parts you are using, how it competes with the original and other factors. You need to look at each particular situation in which you are involved and go through the 4 fair use factors found in the US Copyright Act.

  7. Mel Reynolds says:

    I own a retired racing greyhound, I found a photo of him racing online and posted it on my Facebook. Is this allowed? I found the pic on google not through the website selling the racing pix.

  8. Gina says:

    I am a writer. May I write a biography of a person whose name has been trademarked? Also–am I in violation of fair use if I quote frequently from this person’s writings?

  9. Lesley says:

    That may be both a copyright and trademark issue. For trademarks you want to ensure that no one will confuse the symbol with your client as being the source of the symbol. For copyright in the image, look at the fair dealing provisions (assuming you are in Canada from your email address and chosen team of Montreal Canadians) and see whether your use would fall within the fair dealing factors. This kind of determination always depends on applying all of the facts to the law.

  10. Lesley says:

    Hi Claire, it may be fair use – go through the 4 factors and apply them to your situation and see what you decide. Each fair use application depends on the particular circumstances to which the conditions are applied.

  11. Holtzman says:

    I’m making an invitation for a bar mitzvah based on an nhl Montreral Canadiens jersey. I’ve modified the logo by hand drawing it in the shape of an ER instead of a CH to represent my client’s initials , but I’m still keeping the colours relatively the same. What copyright do I need to worry about?

  12. Claire says:

    Hi Lesley,

    I work for a small art/fashion magazine and we are publishing a review of a recently released book of photographs. The publisher has given us a hi-res cover image to use however we would like to photograph a couple of the spreads with the open book on a table. Would this be considered fair use/ critical review given the book is credited and the article is promoting the book launch?

    Many thanks
    Claire

  13. Lesley says:

    Hi Curios, what you need to determine is if anything in your photo is copyright protected. Are they the types of things protected by copyright? If yes, then you need permission.

  14. Curios says:

    I create digital backdrops for photographers. I recently purchased a backdrop for over $200 and used it in one of my digital backdrops. I used it in my studio…hung it on my backdrop stand and added props that were flattened into the backdrop as well as props that were “layered”…is this in anyway copyright infringement? I am photographing using a photography backdrop I own and purchased! Not selling the backdrop by itself.

  15. Lesley says:

    Hi Laura, depends on the facts — the greater the differences the better!

  16. Lesley says:

    Hi Chris, you need to apply the fair use factors to your specific situation and determine if your use falls within fair use.

  17. Lesley says:

    Hi Mark, using content without permission violates the copyright law. It is a civil action and up to the copyright owner to enforce her own rights. Criminal remedies for copyright violation are usually only for large-scale commercial piracy.

  18. Laura says:

    I have a photo that I bought an extended license for from istock. I know that it cant be used as a logo. I would like to have a logo made to closely resemble the photo. Is there any copyright infringement in that?

  19. Lesley says:

    Hi Aaron, references are fine without permission. In many countries (but not all) linking does not require permission.

  20. chris says:

    I recently paid a website to print a children’s book that i wrote and illustrated for my wife for valentines day. However, one of the characters in the book resembles a fatter and modified version of a cartoon character. The book will not be sold and I am not planning to ever benefit from the book monetarily. I am not an author or professional illustrator. So i wont benefit promotionally either. I simply made the book to give to my wife as a gift. Is this infringement?

  21. Mark Fleck says:

    Hi Lesley

    I enrolled in a school of dog grooming recently and was charged $75 for the student manual. I became suspicious when I noticed that the cover, publisher, and copyright information was omitted. I was able to discover who the author was from information in the text and contacted her. She said that the manual was indeed hers and being used–and sold–without her consent. The person running the school that I had enrolled in had actually enrolled herself in the author’s school of grooming and obtained the manual for herself but withdrew from the school and began using the manual for her own shool at a later time. She insists she is not violating copyright laws. Isn’t this criminal?

  22. Aaron says:

    Hello,

    My website offers a collection of reviews from other websites in one place. If I reference where the review originally came from, offer a disclaimer or notice that the review is not mine and also even offer a link from that source as well, am I doing something wrong legally?

  23. Lesley says:

    Hi Jules, there is no copyright in your image. This is a matter of privacy and personality rights. You may want to look into this area of the law. In addition, keep in mind that although you do not have a written agreement, you may have an oral agreement (if you can prove that.) Generally a photographer needs a release when photographing a person and you orally gave this permission. All this to say, lots of issues here, and you may want to contact a lawyer for advice.

  24. Jules says:

    Lesley,
    I model for an artist who is in a band. A few years ago, the artist took photographs and paid me to model for a painting they did. (I knew about this intention) The artist recently used images from photographs of me and made t-shirts and posters etc for a large concert. I was not told that my image would be used for more than the initial painting. The simple math behind the poster and t-shirt sales shows that the artist has brought in well over $30,000 for these products alone. I was only paid for time modeling, the equivalent of less than $200. No contract was signed. What are my rights?

    Thank you.

  25. Lesley says:

    Hi Mike, please see the following articles for suggestions: http://www.wipo.int/sme/en/documents/copyright_infringement.htm.

  26. Mike says:

    I had a company contact me stating that I was using their copywrite image without their permission and they are requesting payment for $780.

    I Iooked into the image and found that only the bottom half of the image is theirs. And the entire image is that from a CD music cover. I was given the image a few years back from a resort/hotel that want me to place their spa information on my site. My site is free information for wheelchair and other walks of life on travelling to the Philippines. I charge nothing to help or for advertising. I did it for fun. Im now assuming that the CD cover was used to show the tranquility of the spa.

    Is it acceptable for me to take the image down, or must I still pay? I cant afford the cost, and I meant no harm.

    Mike

  27. Lesley says:

    Hi Rebecca, if you live in Canada, you could possibly obtain a licence for an unlocatable copyright owner from the Canadian Copyright Board. There is no equivalent procedure in the U.S. Keep researching! Some may be comfortable using a work in certain circumstances without permission and after analyzing the risks for unauthorized use if the copyright owner comes forward. Please do not take this information as legal advice!

  28. Rebecca says:

    I’m a composer of choral music and I either choose texts in the public domain, or I contact the publisher for permission. One text I want to set is an English translation of a 12th c. poem. The translation was published in the UK in 1958, and the translator died in the 1970s. All online references to this book name a particular publishing company, which was acquired by another publisher some years ago. I wrote to this acquiring publisher, who responded that they “have no record of this particular title” and were sorry they could not be of help to me. I feel stymied. Can you advise me what to do next? I would be grateful for your suggestions.

  29. Lesley says:

    Hi Tony, there is no copyright in story lines and ideas. However, I wouldn’t be surprised if Grinch is a trademark. The more different your work is, the better. If it’s a parody as defined in copyright law, it may fall within fair use. Not exact answers but copyright doesn’t always provide yes and no responses.

  30. Tony says:

    I’d like to do an original modern-day novel about the Grinch with no other resemblence to the original story other than name, slight physical characteristics and a hatred for Christmas.

  31. Jennifer says:

    I took a picture of my sons ipod. I took it to the bakery to have a copy printed on a sugar sheet to put on a cake I’m making for my sons birthday. The bakery said that they could not reprint my photo because the ipod icons and name are copyright protected.

    Is this true. If I’m not selling the picture, can I not use it for personal use? I’m disappointed now because I can’t make the cake how I wanted. Please advise.

  32. Lesley says:

    Hi Stephen Budd, there is no copyright in a character so you may be able to make the figurine bust however you also want to be concerned about privacy, personality rights, libel, etc and even trademark law if you are using the TV show name.

  33. Steve says:

    I am hoping to make a figurine bust in ceramic of a TV star from an early 90s American TV show (I’m located in Australia). What sort of copyright would be on such use of a character, and would it be complicated by me labelling the bust with the characters name, and having the TV show name on the website and/or packaging?

  34. Lesley says:

    Hi Tracey, sounds like you are already in discussions with the radio station. You may need to contact a lawyer to send a cease and desist letter on your behalf to get some results. They lawyer can also analyze the situation and make sure that you are the copyright owner of the works in question. Contact your local bar association or a legal clinic for artists and others.

  35. I am a registered publisher with library archives of canada. I am having an issue with an internet radio station that is using my written review writings as their own, they have taken my name of the reviews and replaced it with their name. I have been trying to find out how to deal with this issue for about 4 months now and the radio station claims to own the material in question. What do I do, where do I get HELP!

  36. Richard Rosenthal says:

    Ok so I have a blog on tumblr, and I write reviews for music and books and such. Am I infringing on copyright laws if say I take a picture of me posing reading a book I’m going to review with the cover clearly showing? Is just having the book in my picture infringing on copyright laws? I know on most books it says “May not be reproduced in any form” but it’s not like I’m opening the book and scanning lines of text for people to read for free.

  37. Lesley says:

    Although ingredients in a recipe by themselves are not protected by copyright, the way the words are expressed for the entire recipe are protected by copyright. You do need permission to use someone else’s recipe.

  38. Saucy says:

    I own an online apron business. I am thinking of writing a cookbook. Some of the recipes are not originals but ones I have used and loved. I don’t know who the authors are. Can I use them in my cookbook. Also, if I do know the author, can I just give them credit or do I need their permission to put into book?

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