Obligation to Copyright marking on Photos

[david_herman4]

<p>I do photo printing and art reproduction for clients and would never knowingly reproduce copyrighted material.I was recently asked to print a vey small 40<strong>K</strong> file from a memory stick (not a CD), to 8x10, that could have easily been photographed by <em>anyone</em> with any halfway decent P&S!<br /> I had absolutely no idea or indication on the image or file that this could have been a pro portrait.No exif data to indicate the maker,camera ,etc.<br /> I have come to find out roundabout that the photo was indeed a pro portrait proof and I may have unknowingly printed and infringed on a pros work.<br /> how is one to know when a file is copyrighted if there is no indication, I am not informed by the client, and could I be liable for infringement ?<br /> Isn't the photographer obligated to mark the files with either a copyright symbol,proof, or watermark tp protect their copyright?</p>

[ellis_vener_photography]

The person who delivers the file to you is obligated to prove they have a license to reproduce it if you have questions

about it. In the USA and now in Canada (maybe elsewhere as well) unless the photographer signs away his or her

copyright or grants a license to a designated client they own the work from the instant the shutter closes.

[david_herman4]

<p>Ellis,<br>

I had <em>absolutely no reason</em> to suspect or question the file was not taken by the friend of the client that brought it in to ask me to print it. It is a photo anyone could have captured, candid, outdoor, no studio background, no special lighting, .<br>

Am I to make every person who brings in a file to print, prove without a question of doubt,signed in blood,sworn on the Bible, that they own the photo (file) if there is absolutely no exif, iptc metadata,copyright symbol, proof marking, or watermark, indicating that the file was taken by a pro?<br>

This was a 40k file! not 10, 16, 24 or 50MB</p>

 

[bob_sunley]

<p>David, you are ALWAYS reproducing copyrighted material. No matter if it is marked or not, someone owns the copyright and/or reproduction rights to any image.</p>

[danmarchant]

<p>No, there is no legal requirement for a photographer to mark their photos with a copyright notice (that would ruin the prints) and, even if there were, such watermarks (and the image exif data) are easy to remove.<br>

<br />Unfortunately "ignorance is no point of the law". If the copyright owner were to come after you you can't just say that you didn't suspect/know. In fact, in truth there is no 100% guaranteed way to protect yourself. The best thing to do is to have all customers sign a form attesting that they own the copyright or have a valid license to print the image. Some print shops actually ask to see such a license. <br>

<br />The downside with the above is that it may cost you business. People who are being dishonest and printing images they have no right to will probably go elsewhere. In addition it still isn't a 100% guarantee of protection. Some people may just lie and sign the form anyway. In that case the form will at least prove that you made the best effort possible to verify the ownership and will also mean that, in the extremely rare, event that someone sues you, you can at least counter sue the client. </p>

[daverhaas]

<p>Dan is 100% right - You can provide a form for the client to sign - saying that they have the right to print the photo or own copy right. Most chain stores require this as table stakes now. </p>

<p>If there are doubts as to the origin of the photo / validity of the claim - ie if the person making the print is in the photo - then the store will often ask for a release form. I routinely provide this form to my photo shoot clients and have been called more often than not by printers asking if indeed that is my signature and if it is okay for them to release the prints. </p>

<p>A technical note - if you get sued over printing and have a release signed by the person requesting the prints - you would not "counter sue" that person - you'd file a new lawsuit against them stating that they falsified the release. Technicality. </p>

<p>PPA routinely conducts "market" surveys of vendors, they have in the past focused on large chains, for compliance with the release / copyright. They send a person with photos that are varying degrees of "good" and see if the store / employee requests a release. If they don't request a release, they fail and PPA threatens them with legal action or makes them aware of the issue and helps to train them (I think). </p>

<p>Dave</p>

 

[john_h.1]

<p>Asking for releases or obtaining signed representations demonstrates a good faith effort to prevent infringement which is helpful should an infringement claim be made. Same with turning away pro looking work without a release or evidence of ownership. The latter because the odds of infringement are higher. Any infringement under such policies can be seen as not willful.</p>

[DrBen]

<p>Under U.S. law, Canadian law and the law of all the 157 other countries that are signatories of the international Berne Convention on intellectual property, a copyright comes into existence when the work is created (takes tangible form). No one can reproduce the work or create derivative works (adaptations, translations, screenplays, choreographs, etc.) without the copyright owner's permission.</p>

<p>No notice of copyright and no copyright registration is required on the work when it is published. However, if practical, it is a good idea to indicate copyright. Such indication does not require and does not indicate that the copyright has actually been registered. In fact most countries (including the U.K.) do not have a national copyright register.</p>

<p>In the event of infringement, in the U.S. and some other countries, if the copyright is not registered, court awards for infringements are limited to the actual, proven damages (e.g., lost income), although an order for removal all copies of the infringing work can be obtained.</p>

<p>If a copyright is registered, punitive damages may be awarded in addition of actual damages. In the U.S., copyright can be registered retroactively after infringement within a limited period of time following discovery of the infringement thus giving access to punitive damages.</p>

<p>In the original poster's situation, I presume he gives his client a receipt of some sort when he receives something to be reproduced. That document could contain a general declaration that the client holds the copyright or has the holder's permission to reproduce the work and that the client undertakes to "indemnify and hold harmless the supplier against all claims" in the event the supplier were ordered to pay damages to the copyright holder.</p>

<p>When signed by the client, the supplier's copy of that document would usually be sufficient to protect the supplier, unless there was evidence that the supplier knew or should have known that a reproduction would be an infringement.</p>

<p> </p>

[steve m smith]

<p>In my opinion, it is the customer who is infringing the copyright, not his third party sub-contractor who is paid to produce the image.</p>

<p>In my local supermarket they have a sign at the mini-lab pointing out that it is the customer's responsibility to ensure that they have the rights to have copies made.</p>

[bob_sunley]

<p>Agreed Steve, but the merchants usually have deeper pockets to target in a lawsuit.</p>

 

[DrBen]

<p>Steve Smith wrote, "In my opinion, it is the customer who is infringing the copyright, not his third party sub-contractor who is paid to produce the image."<br>

<br />Your opinion is NOT the law. Copyright law gives the copyright holder the <strong>exclusive</strong> right to reproduce. Anyone who reproduces without permission has infringed on the copyright, even if that person is an "innocent infringer", i.e., someone who did not intend to infringe or did not know his actions were infringement.<br>

<br />The scope of "exclusive right" in regard to copyright infringement without intention or knowledge was settled in 1930 by the decision of the U.S. Supreme Court in Buck v. Jewell-LaSalle Realty Co., which held that "Intention to infringe is not essential under the Act." Therefore, everyone involved in infringing on the copyright holder's exclusive rights, including a printer, is liable and can be sued.<br>

<br />A printer who tries to avoid liability on the grounds that he was providing a service as a contractor and that only the person who gave the contract can be held responsible for an infringement will not get very far in court.<br>

<br />He is like a hit man who receives a contract to murder someone and then pleads not guilty on the grounds that only the person who gave the contract is liable for the victim's death.</p>

<p>In both cases, the person who gives the contract and the person who carries it out are equally liable.</p>

[steve m smith]

<p>Actually, a contract for an illegal act is invalid.</p>

[john_h.1]

<p>I'm pretty sure Steve was merely offering an opinion and has discussed the difference in U.S. law vs. elsewhere in the past. It probably wasn't clear, this time, that it was opinion in principle vs. a legal opinion.</p>

<p>He is correct, in any event, about the murder for hire contract not being analogous. Moreover, copyrights can be the subject of a contract but copyright infringement is not a copyright matter so the analogy differs on that ground as well. Also, murder is a specific intent based crime offered here as a illustration to a discussion concentrating so much on a lack of that level of intent. Murder for hire also tends to involve a conspiracy which is applied to a discussion, here again, about lone conduct.</p>

<p>Let's just say that infringement can occur unintentionally.</p>

[starshooter]

<p>Well guys, I have negatives and digital images dating back to the 1960s including photographs of the Beatles, Elvis and so on. Having said that -- out heer in the real world millions of photographs are sent over the Internet every day with no regard to the copywright ownership.<br>

David is doing the right thing and I applaud him. I had a formal portrait several years ago and my agreement with the photographer is I that could reproduce it any time and in any way I wanted. Do I still have the paperwork? Sure, somewhere deep in my files someplace.<br>

Quoting the alledged laws and regulations is not going to disguise the fact that photographers who care about their work are faced with a disaster of the first magaitude. If somebody steals a car they go to jail. If they steal my or your images probably not much will happen. Are we gonna sue somebody 3,000 mailes away?<br>

Photographers en mass need to get on their hind legs and demand the take-the-big-boys'-money-and-run politicians to do something.</p>

[steve m smith]

<blockquote>

<p>I'm pretty sure Steve was merely offering an opinion and has discussed the difference in U.S. law vs. elsewhere in the past.</p>

</blockquote>

<p>And that's what I am doing here.</p>

<p>In the UK, one of the most popular film processing and printing and digital printing companies is Peak Imaging. This is from their terms and conditions:</p>

<p> </p>

<blockquote>

<p>It is a criminal offence under the Copyright Designs and Patents Act 1988 to knowingly infringe copyright and it is the customer’s responsibility to ensure that all material supplied to the Company for processing, copying or reproduction is free from any third party claim of infringement. Orders are only accepted on the clear understanding that: <br>

1. The customer owns the copyright or that the work is out of copyright. 2. The customer has the copyright owner’s written consent. In this case the written consent must accompany the order and work supplied. 3. The customer indemnifies the Company against all costs, claims, damages and losses of whatsoever nature arising from any action or claim brought by a third party in respect of alleged infringement of copyright.</p>

</blockquote>

[bob_sunley]

<p>And then you now have a major problem in Canada due to the new copyright laws which are similar to the USA, vs the one in effect before where every photograph taken for a fee belonged to the person paying, not the photographer. So when and under what circumstances was the photo taken, it matters.</p>

<p> </p>

[david_herman4]

<p>Back to the crux of my original question...<br>

How am I the printer, to know for sure that ANY file brought to me to print is indeed the lawful property of the person who asks me to print if there is no data to identify <em>ownership of copyright</em>.<br>

There are billions of good photos of the Grand Canyon taken by photogs of all skill levels,amature or pro out there in world.<br>

Am I to have every person who brings me a file of the Grand Canyon to print,(or<em> any</em> other subject matter), sign a release that certifies ownership ?<br>

In my mind this is about tantamount to the local police stopping every motorist in every car on the road to prove that the car is not stolen and they are the owner!<br>

Where do I draw the line?... </p>

<p> </p>

[david_herman4]

<p>Just ta add a little sidenote to my question...<br /> Here's a related article I remembered reading and finally found, by Mike Johnson of TOP on the subject.<br /> <a href="http://theonlinephotographer.typepad.com/the_online_photographer/2012/06/c-in-circle-reminder.html">http://theonlinephotographer.typepad.com/the_online_photographer/2012/06/c-in-circle-reminder.html</a></p>

[john_h.1]

<p>There's no perfect demarcation but businesses continue to make prints and you might notice that those that use due diligence techniques like those discussed aren't being deluged with infringement lawsuits. Those claims in the U.S. are complex and need to be filed in federal court. If normal procedures are done to limit willful infringement, such claims are less attractive to pursue.</p>

[steve m smith]

<p>As John points out, businesses manage to exist producing prints without drowning in paperwork.</p>

<p>I think you just need two things:</p>

<p>1. A statement in your terms and conditions similar to the one I posted but more pertinent to the laws which apply to you. This needs to be visble to customers if they actually visit the premises or on your website if it's a mail order/on-line business.</p>

<p>and most importantly...</p>

<p>2. Some common sense. If you think something doesn't seem right then ask questions. If you are still not sure, don't do it.</p>

[danmarchant]

<blockquote>

<p>Back to the crux of my original question...<br /> How am I the printer, to know for sure that ANY file brought to me to print is indeed the lawful property of the person who asks me to print if there is no data to identify <em>ownership of copyright</em>.</p>

</blockquote>

<p>I have already answered your question above and David has confirmed. There is no way to know 100% - that is what indemnity insurance is for.</p>

[david_herman4]

<p>Thanks Everyone!</p>

<p>David</p>