Infringement or Fair Use?

When people are caught using a photograph that has not been licensed from the photographer, the first defense is to cry “fair use” or “it’s free marketing.” Another common response is that the photo is not “special” and anyone could have taken it. Then why didn’t you?

One such case is the video, “Here Comes Another Bubble,” by The Richter Scales. Photographer, Lane Hartwell, asked that the video be taken down from YouTube because it contained one of her photos that was used without her permission.

The comments on Techcrunch show the widely-varied opinions about whether others can use your photographs without permission. However, opinions don’t matter in infringements – the law does.

Photographers haven’t done as well as other creative industries in teaching users that copying our photos is illegal. The first thing you see when watching a video is a large FBI notice and a short clip with loud music stating that making copies of the video is a crime. The recording industry has sued those who made music available online. We learned in grade school that to copy another’s written work is plagiarism and will result in a failing grade.

Some photographers’ websites have the copyright notice so small it’s barely visible. We worry that watermarks will impair the viewing of the photo. When infringements are found, we let them slide rather than using the DMCA takedown provisions or sending a cease and desist. We don’t register our photos and then are upset that we can only recover an ordinary license fee. Now, Hartwell is being criticized for complaining about the unauthorized use of her photo in the “Bubble” video.

It’s time to get tough as Hartwell has done. Infringements are only going to increase. And nobody is going to protect your rights unless you do.

Take my advice; get professional help.
PhotoAttorney®

Technorati Tags: copyright law, photography business

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