Online magazine responsibility re: copyrights

[hannah_defran]

<p>I thought online magazines had a responsibility to check if photos submitted to them are copyrighted. They ran a modeling contest, the winner used my pics and they're now on the site. I had given him prints, which were scanned (no surprise here). I expected the website to be more careful. Am I correct?</p>

[Spearhead]

<p>Magazines of any type have a responsibility to check that there are model releases for the people in the photos. Regarding copyright, the usual contract says that the provider of the photo has the legal rights to license that photo. There isn't really any way to check on the copyright, someone can claim it's their photo and as long as the EXIF doesn't say otherwise, the magazine will never know. If this is a tiny operation, they could have no idea what they are supposed to ask for.</p>

[maury_cohen]

<p>The rentry forms for the contest very likely included a paragraph mentioning that any submissions could be used by the publisher. You should check with your photographer friend who entered the contest.</p>

[Matt Laur]

<p>It's not entirely clear, here, but it sounds like your friend was the model, and he submitted your photographs (of him) to a <em>modeling</em> (not a photography) contest.<br /><br />The web site that publishes the work doesn't really need to investigate copyrights (since, in the vast majority of cases, the photographer <em>always</em> retains the copyrights). Rather, the issue is whether or not the person who is presenting the image to them has been <em>licensed by you</em> to use it in that way. And if the model simply checked the box saying that he'd been granted permission to use it, that's just about all the web site needs to know. If the copyright holder (you) complains that they (the site) are reproducing the image with out permission, you can tell them to pull it. But you can't spank them too much harder than that, because they can simply point to the person who provided with them the image as the source of the bad information.</p>

[john_h.1]

<blockquote>

<p>Am I correct?</p>

</blockquote>

<p>As to copyright... http://cyber.law.harvard.edu/property99/liability/main.html</p>

<p> </p>

[hannah_defran]

<p>Do you think it's reasonable to expect that a site that works with models know/learn the basics: if the jpeg file is grainy and has no EXIF info, it's probably scanned and probably not licensed to the person checking the box?<br>

When I license an image to someone, there is always info about licensing and contractual uses in the metadata.<br>

I think it's a small business and that they're clueless. </p>

[Matt Laur]

<blockquote>

<p>I think it's a small business and that they're clueless.</p>

</blockquote>

<p>Sure, probably true. But the real offender here is your customer, since I'm sure you told him up front that the images couldn't be used for that sort of thing, which means he was deliberately breaking his agreement with you.</p>

[john_h.1]

<blockquote>

<p>Do you think it's reasonable to expect that a site that works with models know/learn the basics: if the jpeg file is grainy and has no EXIF info, it's probably scanned and probably not licensed to the person checking the box?</p>

</blockquote>

<p>Maybe. Why?</p>

[hannah_defran]

<p>The relevance is that the model won the contest using one of the photos I had done for his portfolio (kudos to me!). He was given a print, not a file. His scan is of rather low quality, and any person with a bit of experience would have seen a red flag. Plus the fact that the print shows a © with date and name of my company.<br>

I don't plan on pursuing legal action, but if I were, I would go after the entity with the bigger pockets: the site, not the model.</p>

[Matt Laur]

<p>Hannah: The copyright mark on the print, and your company name, do not say a peep about your licensing arrangement with the subject of the photo (or do you also printing licensing languate on your prints?). As mentioned above, your retention of the copyrights is a completely separate matter from licensing.<br /><br />The urge to sue the nearest party with deep pockets (instead of the person who actually mis-represented his arrangement with you) is an unfortunately common one. It's part of why it's so unnecessarily expensive to run a business in the US. Just try to imagine that web site having their <em>own</em> legal spat with the model in question (because he put them in a delicate position by misrepresenting his right to use that photograph), but talking about suing <em>you</em> because you're more likely to have some money than he is. Sounds ridiculous, doesn't it?</p>

[john_h.1]

<blockquote>

<p>The relevance is that the model...</p>

</blockquote>

<p>The relevance was lost right after the word relevance.</p>

[ianivey]

<p>Hannah, to put it perhaps a bit more gently, the site has no way to know whether the model has a license from the copyright holder to submit the photo for such a contest except to ask the model whether he has such a license. A bad scan does not reliably indicate the absence of a license; it may merely indicate amateur status.</p>

<p>So the site's agreement with the model very likely provides that the model shall indemnify the site against claims for infringement. This doesn't mean you can't sue the site if you want to -- it just means they will have the right to recover from the model whatever you recover from them, plus (probably) any legal costs they incur defending themselves against your claim. So, yes, suing (if you were so inclined) the deep(er) pockets would be a better choice for your sake (this of course assumes that you have information indicating that the site owner has more resources than your model, which is not necessarily a sound assumption). However, suing the site might result in significant damage to the model who falsely claimed to have rights to use the photo for this purpose, as the site may immediately turn around and sue the model.</p>

<p>The site likely would remove the photo if you asserted ownership and demanded that they do so. Alternately, you might write to them and provide a complimentary limited license to display the photo, along with a better-quality file for them to display, provided that they issue a photo credit and a link to your site. </p>