Excuses, Excuses (Part 2)

As a continuation of a prior blog entry, here are more common excuses used in response to being caught infringing on photographer’s copyrights:

6. If it’s on the web, then it’s public domain unless clearly marked otherwise.

The urban myth that if it’s on the web, it’s free, it not true. In the United States, copyright vests in a work when it is created (17 U.S.C. 302 (a))  and “fixed in any tangible medium” (17 U.S.C. 102 (a)). While many think that an unmarked photo is in the public domain, in fact, after 1989, the copyright notice is no longer required to preserve a work’s copyright protection.

Check this blog entry on the only ways that a work can be in the public domain unless expressly put there by its owner. Absent a notice such as “this work is dedicated to the public use and may be freely reproduced,” it’s best to assume that the work is not in the public domain.

7. I only used part of it so it’s fair use.

Using a small part of a copyrighted work is one of the factors considered under the fair use doctrine, but the amount of use alone is not enough to excuse an infringing use. Instead, fair use is only when the use is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”  The Copyright Statute provides four factors to determine whether the use made of a work in any particular case is a fair use:

 · The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or for educa­tional purposes;

· The nature of the copyrighted work;

· The amount and substantiality of the copyrighted material that is used; and

· The effect of the use upon the potential market for or value of the copyrighted work.

 17 USC Section 107.

Courts look at all four factors, among things, in each case, so there is no bright line test to determine fair use.  Check this prior blog post to learn more. It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair. The safest thing is to get a license to use a photograph.

8. I hired the photographer so I own the photos (WMFH).

Many clients think that they own the copyrights to the photos when they hire a photographer. But, in the United States, if the photographer is not the client’s employee (a w2 employee instead of a w9 independent contractor), the photographer owns the copyrights unless the photographer otherwise agreed in writing and the work falls into one of 9 statutory categories. Circular 9 from the U. S. Copyright Office explains: a WMFH is ” a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The Circular emphasizes that when the work is created by an independent contractor, both parts must be satisfied–that is, the agreement must be in writing AND the work must fit one of those 9 categories.

All that being said, if the photos are taken by an employee within the scope of employment, then the photos are a WMFH and the employer is both the “author” and owner of the copyrights.

9. I gave credit to the photographer.

Many mistakenly assume that they may use a photo so long as they acknowledge the photographer or otherwise provide the source of the photo. But, as far back as 1938, courts held that “[t]he fact that the defendant acknowledged the source from which this matter was taken does not excuse the infringement.  While the acknowledgment indicates that it did not intend unfair competition, it does not relieve the defendant from legal liability for the infringement.”  Henry Holt & Co. v. Liggett & Myers Tobacco Co.,  23 F.Supp. 302, 304 (D.C.Pa. 1938).

10. I took it down when asked.

It’s a good thing to stop using a photo when asked, especially because continued use after notice constitutes willful infringement.  See Pye v. Mitchell, 574 F.2d 476 (9th Cir.1978) (finding defendants liable for higher statutory damages because defendants had actual notice of the infringement in the form of a written release of liability, yet defendants continued to infringe); and Peer Int’l Corp. v. Pausa Records, Inc., 909 F.2d 1332 (9th Cir.1990), cert. denied, 498 U.S. 1109 (1991) (holding that licensee willfully infringed copyright by continuing to make recordings of copyrighted works after receiving written notice of termination from the copyright owners). But stopping the use when caught doesn’t address the past infringement for which the photographer may recover. This lame excuse also doesn’t work when caught stealing the t-shirt from the store. While you may offer to give it back, you’re still on the hook for the theft.

Stay tuned for additional excuses and the law’s responses to the same, including a blog reader’s contributions to this list.


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