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In a number of recent cases, individual photographers have
successfully sued third parties for unauthorized reproduction and
use of photographs, particularly those from stock photography
sources. Courts have found third party liability for willful and
innocent copyright infringement for the use of individual
photographs and have awarded damages to copyright holders based on
such conduct. Generally, professional photographers offer their
photographs for use by third parties through professional stock photography agencies that negotiate
licenses for use of the photos on behalf of the photographer.
Stock photography is big business as evidenced by the Carlyle Group's recent bid for Getty
Images in a deal that could be worth close to $3.5 billion.
There are many online stock photography sites on which thousands of
photographs can be viewed and used for a fee. On some sites,
there are a few photographs that can be used for free.
The use of stock photographs can be much less expensive than hiring
a professional photographer to take photographs for a particular
purpose.
But what about sites on which there are photographs not taken by
professional photographers, such as Pinterest? If these photographs were placed
online by the individual who took the photograph, and there are no
restrictions on the ability to print it out and/or copy and paste
it elsewhere, isn't it okay to do either of those things? The
answer is "no," because to do so without the express
permission of the copyright owner would constitute copyright
infringement. By posting a photograph, a photographer of any type
does not impliedly give permission for anyone to use it. So how do
you know if the photograph is protected by copyright? Just assume
that any published photograph taken after 1923 is currently
copyright protected.
The owners of sites like Pinterest may be protected from
copyright infringement liability under the provisions of the Digital Millennium Copyright Act as long
as they comply with the provisions of that law. After a somewhat
rough start, Pinterest has modified some of its Terms of
Use to make it clear to users what rights they are giving
Pinterest by posting content to the site and what rights Pinterest
has to use and display the content. Nowhere on its site or in
any of its Terms of Use does Pinterest state that users of the site
may copy content on the site
without fear of any liability. This is also true for most other
sites on which copying of content is not technologically
restricted. Thus, it is important before copying any content from
any site to first check the site's terms of use. Depending on
the purpose for which the content is to be used, you may have a
fair use defense, but what constitutes fair use is not
always obvious or easily determined.
So, just because you can copy a photograph doesn't mean you
may copy the photograph. Getting permission to use someone
else's property, including their intellectual property, is
always the best course of action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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