Intellectual Property Forums (http://www.intelproplaw.com/Forum/Forum.cgi)
Other >> Copyright Forum >> Using newspaper pictures.
(Message started by: Floyd Baker on May 30th, 2004, 7:16pm)

Title: Using newspaper pictures.
Post by Floyd Baker on May 30th, 2004, 7:16pm
Hello.  

If a newspaper takes pictures of something owned by others, can those others use the pictures as their own, specifically to make money?  If no, is there a time limit where it could be done?  Or other circumstances, such as explaining that it is a newspaper picture included in a news piece the paper did about their property?  

I understand it is ok to reprint less than 5 percent of a publication for 'review' purposes?   Is that true and if so, does it include pictures?

Lastly in a co-authored publication, can one of the authors make changes and additions and do a second printing without permission of the other author(s)?  

Thank you.

Floyd

Title: Re: Using newspaper pictures.
Post by M. Arthur Auslander on May 31st, 2004, 7:23am
Dear Floyd Baker,

The law is not just cut and dried, it has to be understood to be worked with. If abused, as it often is not every transgression is caught or challenged. But when they are is it usually expensive to all concerned.

Title: Re: Using newspaper pictures.
Post by m on May 31st, 2004, 1:19pm
The answers may change depending upon any further facts you supply, but simply:

- generally, a picture of something else is still itself an indepedently created copyright work, even if it infringes whatever it took the picture of, and the original person has no automatic right to use the picture;
- there is no time limit other than the life of the work (author + 70 years, e.g.);
- there may be fair use considerations, more detail required;
- "5 percent" is a thumb in the air - it depends upon quality of what is being reprinted, how "substantial" it is of the original authors effort, but generally there is a greater allowance for "review or criticism" (where it really is this, and not just a "colourable" attempt at leveraging the original work for some other purpose);
- pictures can be used in general, but beware: e.g. in the UK, the exceptions for fair use in "current affairs" specifically exclude pictures because of their known commercial value in such cases, thus you could be caught out;
- the co-author would be infringing, because said work is a derivative of original work: however there may be contractual issues between the authors that allows this;

You are asking abstract questions: which is virtually useless because much of these issues turn on the specific facts, thus you need professional advice.

Title: Re: Using newspaper pictures.
Post by M. Arthur Auslander on May 31st, 2004, 5:08pm
Dear m,

You can (I believe) get a valid copyright which is a copy of someone else's copyrighted picture. Using that picture will not protect you from being stopped by the original copyright proprietor.

Title: Re: Using newspaper pictures.
Post by Floyd Baker on May 31st, 2004, 9:05pm

on 05/31/04 at 13:19:34, m wrote:
- generally, a picture of something else is still itself an indepedently created copyright work, even if it infringes whatever it took the picture of, and the original person has no automatic right to use the picture;

ok.  

- there is no time limit other than the life of the work (author + 70 years, e.g.);

Not what our forefathers intended, eh?  

Btw; on what year of origination does that apply...?
That is, I collect postcards for instance.  I understand that there is/was a 25 year from publication date for these to become public domain.  That would make it  those published prior to 1975.  But if it was increased to 70 years recently, wouldn't that include a grandfather for anything that was already public domain?  



- there may be fair use considerations, more detail required;
- "5 percent" is a thumb in the air - it depends upon quality of what is being reprinted, how "substantial" it is of the original authors effort, but generally there is a greater allowance for "review or criticism" (where it really is this, and not just a "colourable" attempt at leveraging the original work for some other purpose);

Speaking of newspapers, what else would 'review' consist of other than critisism?   <g>

- pictures can be used in general, but beware: e.g. in the UK, the exceptions for fair use in "current affairs" specifically exclude pictures because of their known commercial value in such cases, thus you could be caught out;

I am in the U.S. looking for pictures for a history book I am writing.   The pictures are 20 or more years old but the subject is still rather current.

- the co-author would be infringing, because said work is a derivative of original work: however there may be contractual issues between the authors that allows this;

Ok then forget the modifing.   2 authors, 1 book.  One author wants to do another printing, the other does not.  Can the first one do a reprint if he abides by all the original arrangements and agreements as to compensation, etc?  

-You are asking abstract questions: which is virtually useless because much of these issues turn on the specific facts, thus you need professional advice.


I thought bering vague would get me a more cautious answer.  I really don't want to be sued.  <g>  

Thank you, and the others, for responding.  

Floyd

Title: Re: Using newspaper pictures.
Post by m on Jun 2nd, 2004, 12:53am
Arthur: Exactly what I meant, it is a derivative work much like an improvement patent: you may own the derivative, but any use if it infringes the basic work unless license or statutory exception allows you.

Title: Re: Using newspaper pictures.
Post by M. Arthur Auslander on Jun 2nd, 2004, 9:31am
Dear m,

I don't care what the nomenclature is, I like to help keep my clients out of trouble and yet not be timid.

Title: Re: Using newspaper pictures.
Post by nobody on Jun 5th, 2004, 8:04am
'm' wrote: "Arthur: Exactly what I meant, it is a derivative work much like an improvement patent: you may own the derivative, but any use if it infringes the basic work unless license or statutory exception allows you."

What are you basing that on? The federal statutes say otherwise. You do NOT own any rights in the derivative work. Do you have some specific case law you are referring to?

If your added work is substantial enough to stand on its own, apart from the derivative work, then you would own the rights in that work.

Title: Re: Using newspaper pictures.
Post by Isaac Clark on Jun 5th, 2004, 8:03pm

on 06/05/04 at 08:04:04, nobody wrote:
'm' wrote: "Arthur: Exactly what I meant, it is a derivative work much like an improvement patent: you may own the derivative, but any use if it infringes the basic work unless license or statutory exception allows you."

What are you basing that on? The federal statutes say otherwise. You do NOT own any rights in the derivative work. Do you have some specific case law you are referring to?

If your added work is substantial enough to stand on its own, apart from the derivative work, then you would own the rights in that work.


I agree with 'nobody' that the creator of a derivative work has no rights in the derivative work if he does not have permission to use the underlying work.  He may have rights in his own part if it is separable from the original.

However in the original scenario, it is not clear that the problem in the original picture is a copyright problem.  If I take an unauthorized picture of a person or his dog, that does not create a copyright problem.  However if the owner of the dog tried to copy or distribute the picture without permission of the photographer, I think there is copyright infringement.

Title: Re: Using newspaper pictures.
Post by nobody on Jun 6th, 2004, 3:43pm
"I agree with 'nobody' that the creator of a derivative work has no rights in the derivative work if he does not have permission to use the underlying work.  He may have rights in his own part if it is separable from the original."

Isaac, here's a complication to that scenario:

What if somebody colorizes a B&W movie from 1924.  Not knowing it is still under copyright protection, they re-release it. They would not own the rights in the derivative work, and would be exposed to damages, but...

The question for you is: after 2019, when the original becomes PD, does that mean that the colorized version will also be PD? Who owns (if anybody) the colorized version?


Title: Re: Using newspaper pictures.
Post by nobody on Jun 6th, 2004, 3:47pm
To Floyd:

When you say "takes pictures of something owned by others" do you mean pictures of copyrighted material, or do you mean pictures of non-copyrighted utilitarian objects? It can only be copyright infringement if you make pictures, facsimiles, etc of copyrighted works.



Powered by YaBB 1 Gold - SP 1.3.2!
Forum software copyright 2000-2004 Yet another Bulletin Board