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Microstock Photography Forum - General => General Stock Discussion => Topic started by: madelaide on December 22, 2006, 17:57

Title: Dilemma
Post by: madelaide on December 22, 2006, 17:57

I have received a brochure from a company and most to my surprise, many images in it were take from a certain microstock site - watermarks are clearly visible.

I went to their website and, although many brochures can be found (none of the ones I opened had this watermark problem), this particular one is not there.  If it was, I would simply forward the link to the microstock site so they would deal with the infringing company.

I could forward the brochure I received to the microstock site, but then I'd be hurting the technical relationship between this company and my office (I don't know the company directly, I got the brochure from a colleague who has been in contact with them).  If I were not involved with stock photography (and this is not my main job), I might never have noticed any of that.

I could ask this colleague to write his contact and say someone noticed this and that they should rectify it, but I doubt he would (this is none of his business).

This could be a pre-release of the brochure, sent to us in advance, who knows? 

Any suggestions?

Regards,
Adelaide
Title: Re: Dilemma
Post by: GeoPappas on December 22, 2006, 18:08
This could be a pre-release of the brochure, sent to us in advance, who knows?

Wouldn't you know if it was a pre-release or not?  Why did they send you the brochure?  What was the purpose?
Title: Re: Dilemma
Post by: Peiling on December 22, 2006, 21:10
i think you should report it. They should not be doing things like that. Its already so cheap microstock??? Besides its not ethical to do somehting like that.
Title: Re: Dilemma
Post by: MiguelAngelo on December 23, 2006, 20:59
Report it.

If there is an infringement,
If it's a pre release or not, the infringement is already done.

But no one better than the stock company to know if there is a case or not.
Title: Re: Dilemma
Post by: yingyang0 on December 23, 2006, 23:41
Report it.

If there is an infringement,
If it's a pre release or not, the infringement is already done.

But no one better than the stock company to know if there is a case or not.

What infrigement? In case you didn't know many sites (like iStock) allow free comp versions to be used for mockups. If they're just sending it around to get people's opinions on the brochure before letting it out, then it would be a completely legit use. I suspect that this is the case since all the publicly available brochures don't have the watermarks.

If he reports it, that company could decide to no longer do business with his (not a good outcome). I wouldn't be so quick to cry wolf.
Title: Re: Dilemma
Post by: madelaide on December 25, 2006, 15:51
I didn't get the brochure to comment.  The company who send it to a colleague (who forwarded it to me and others) is an equipment manufacturer.  It may be a pre-release, given to us in advance in a technical meeting.  They might well buy the images once they think the brochure looks good (let's face it, watermarked images do not look good in a piece of advertisement, so it's hard to believe a company would do that).

Regards,
Adelaide
Title: Re: Dilemma
Post by: ianhlnd on January 13, 2007, 22:08
Sounds fishy to me.
Title: Re: Dilemma
Post by: leaf on January 14, 2007, 05:23
i don't think it could hurt to call the company directly and find out.  If they are using the images illegally they are probably not purposly doing so,.. since obviously it would hurt their image and would only cost a few $$ to fix.

My home church in canada frequently used images in it's sermon to illustrate a point.  Images PLASTERED with watermarks from gettery, jupiter... you name it ... ouch.  I think that was a pretty clear example of someone not really knowing what the rules were.

I haven't been there in a while, but if i see it again i think i will inform them of what is illegal and not, and maybe give them a give of a starter $20 at dreamstime :)
Title: Re: Dilemma
Post by: GeoPappas on January 14, 2007, 07:20
...maybe give them a give of a starter $20 at dreamstime :)

Remember to use yourself as a referral.
Title: Re: Dilemma
Post by: yingyang0 on January 14, 2007, 14:06
My home church in canada frequently used images in it's sermon to illustrate a point.  Images PLASTERED with watermarks from gettery, jupiter... you name it ... ouch.  I think that was a pretty clear example of someone not really knowing what the rules were.

I haven't been there in a while, but if i see it again i think i will inform them of what is illegal and not, and maybe give them a give of a starter $20 at dreamstime :)

What they're doing isn't illegal, at least in the US. It's called fair use.
Title: Re: Dilemma
Post by: leaf on January 14, 2007, 15:03
how does that work??
i am not quite sure i understand YY
Title: Re: Dilemma
Post by: MiguelAngelo on January 14, 2007, 15:07
My home church in canada frequently used images in it's sermon to illustrate a point.  Images PLASTERED with watermarks from gettery, jupiter... you name it ... ouch.  I think that was a pretty clear example of someone not really knowing what the rules were.

I haven't been there in a while, but if i see it again i think i will inform them of what is illegal and not, and maybe give them a give of a starter $20 at dreamstime :)

What they're doing isn't illegal, at least in the US. It's called fair use.

Isn't this a public presentation? As I understand images can't be used for public display without paying royalties. At least around here in Portugal.
Title: Re: Dilemma
Post by: Greg Boiarsky on January 14, 2007, 15:30
This may be "fair use."  Fair use is use for commentary, criticism, or academic research.  However, I would argue that the church should obtain permission because criticism and commentary are nebulous terms.

Also, fair use typically does not allow use of a work in whole or even in substantial part.  In academic circles, fair use applies to a document shorter than 10 pages or a segment comprising less than 10% of a work, whichever is shorter (although this is just a rule of thumb; absolute quantity has not been established).

My home church in canada frequently used images in it's sermon to illustrate a point.  Images PLASTERED with watermarks from gettery, jupiter... you name it ... ouch.  I think that was a pretty clear example of someone not really knowing what the rules were.

I haven't been there in a while, but if i see it again i think i will inform them of what is illegal and not, and maybe give them a give of a starter $20 at dreamstime :)

What they're doing isn't illegal, at least in the US. It's called fair use.
Title: Re: Dilemma
Post by: leaf on January 14, 2007, 15:39
ahh "fair use" has to do with for example, writing a school project and quoting someone or an article.

I don't think fair use would allow a picture included in a report.
Title: Re: Dilemma
Post by: yingyang0 on January 14, 2007, 18:12
This may be "fair use."  Fair use is use for commentary, criticism, or academic research.  However, I would argue that the church should obtain permission because criticism and commentary are nebulous terms.

Also, fair use typically does not allow use of a work in whole or even in substantial part.  In academic circles, fair use applies to a document shorter than 10 pages or a segment comprising less than 10% of a work, whichever is shorter (although this is just a rule of thumb; absolute quantity has not been established).

This is fair use.
"for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

If you want actual case law I'd be happy to provide it. The fact is that the church is using it in a non-commercial, educational way that does not impede the copyright owner from marketing his/her work. What applies to documents is irrelevant.

Note: This only applies to US law. Canada has a different version of fair use, so I'm not sure how a Canadian court would view this.
Title: Re: Dilemma
Post by: yingyang0 on January 14, 2007, 18:24
I just saw this story on canadian fair use, you should check it out:
http://www.cbc.ca/technology/story/2007/01/11/copyright-canada.html (http://www.cbc.ca/technology/story/2007/01/11/copyright-canada.html)
Title: Re: Dilemma
Post by: yingyang0 on January 14, 2007, 18:29
ahh "fair use" has to do with for example, writing a school project and quoting someone or an article.

I don't think fair use would allow a picture included in a report.
We're talking about two different things. The report wasn't what I said was fair use. The use of a photo by a church in a sermon would be.
Title: Re: Dilemma
Post by: IRCrockett on January 14, 2007, 18:54
I would lean towards it being an unfinished product using comp images but I also know that many people just don't have the first clue how all this works.

Case in point, a person very close to me asked for one of my images for a brochure that would have a circulation of several hundred thousand. After the layout was done they showed me a copy. There were quite a few other images in the brochure so I asked where they had gotten them. (I was more interested in if they were donations like mine or paid for) I was told they were all free images from Yahoo and Google.

Turns out they thought that all images found via Yahoo and Google image search were free to use for whatever they wanted. After much freaking out and scrambling to buy appropriate images (which resulted in a few sales for me) before the print deadline, they had replaced all of the misappropriated images.

So, I would ask them about it even if it seems inconceivable that they would use watermarked images.
Title: Re: Dilemma
Post by: Greg Boiarsky on January 14, 2007, 21:50
Hmm.  Quite a response, I'd say.  But, as I said, it may be fair use.  You are assuming that the church is using the images for education or commentary.  Unless you see the specific materials being used, the context of such use, and any specific agreements between the user and the creator of such intellectual property, you cannot make such specific, hard claims.  For example, if the church is using the materials for the purpose of generating donations, such use could be construed as "commercial."  While the original post noted that the materials were being used in a sermon, we don't know if that sermon has been recorded and made available for sale, for example.  I bring up this possibility merely to illustrate the fallacy of making hard and fast claims without sufficient information.

As for your providing specific case evidence, you don't need to.  This is a friendly discussion, not a court of law.

This may be "fair use."  Fair use is use for commentary, criticism, or academic research.  However, I would argue that the church should obtain permission because criticism and commentary are nebulous terms.

Also, fair use typically does not allow use of a work in whole or even in substantial part.  In academic circles, fair use applies to a document shorter than 10 pages or a segment comprising less than 10% of a work, whichever is shorter (although this is just a rule of thumb; absolute quantity has not been established).

This is fair use.
"for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

If you want actual case law I'd be happy to provide it. The fact is that the church is using it in a non-commercial, educational way that does not impede the copyright owner from marketing his/her work. What applies to documents is irrelevant.

Note: This only applies to US law. Canada has a different version of fair use, so I'm not sure how a Canadian court would view this.
Title: Re: Dilemma
Post by: yingyang0 on January 14, 2007, 22:50
Hmm.  Quite a response, I'd say.  But, as I said, it may be fair use.  You are assuming that the church is using the images for education or commentary.  Unless you see the specific materials being used, the context of such use, and any specific agreements between the user and the creator of such intellectual property, you cannot make such specific, hard claims.  For example, if the church is using the materials for the purpose of generating donations, such use could be construed as "commercial."  While the original post noted that the materials were being used in a sermon, we don't know if that sermon has been recorded and made available for sale, for example.  I bring up this possibility merely to illustrate the fallacy of making hard and fast claims without sufficient information.

As for your providing specific case evidence, you don't need to.  This is a friendly discussion, not a court of law.

Yes, I'm assuming the church is using the images for education/commentary since that is what a sermon is by definition. I'm also assuming there weren't "any specific agreements" to use the photo since the images were watermarked. Lastly, I'm assume he doesn't go to a TV evangelist church or any other for profit church that sells their sermons.
Raising crazy hypotheticals just for the sake of arguing a point is a waste. Why don't we stick to the facts give instead.

Title: Re: Dilemma
Post by: leaf on January 15, 2007, 02:05
Ok, just for arguments sake I will point out some guidelines.

1. The sermons were used for education / commentary
2. NO the sermons were not sold or recorded via video.

Does this  mean it is ok?  Does this mean that a company giving out an education brochure for free is alloud to use whatever photos they want without paying for them?

Here is something i found about free use
Quote
4.2.4 Illustrations and Photographs
The reproduction or incorporation of photographs and illustrations is more difficult to define with regard to fair use because fair use usually precludes the use of an entire work. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less, may be reproduced or otherwise incorporated as part of an educational multimedia project created under Section 2.

FROM HERE (http://www.utsystem.edu/OGC/IntellectualProperty/ccmcguid.htm#2)

I had one comment from a paster on dreamstime once.  He had downloaded a photo to use in a sermon.  I responded with a thanks, and he said your welcome but was sad because they could no longer use photos in their sermons because they were being recorded on dvds.
Title: Re: Dilemma
Post by: yingyang0 on January 15, 2007, 02:31
Ok, just for arguments sake I will point out some guidelines.

1. The sermons were used for education / commentary
2. NO the sermons were not sold or recorded via video.

Does this  mean it is ok?  Does this mean that a company giving out an education brochure for free is alloud to use whatever photos they want without paying for them?
For your first question:
A church, visually displaying an image durning a sermon is fair use under your two guidelines. On a more personal note: Are there really people here that would be upset that a church used their photo in a sermon without permission?

For your second question:
Remember we have to stick with the specific details given. A company using a photo in an educational brochure is very different than a church displaying an image during a sermon.
1) A company is a for-profit enterprise, a church is not (at least I hope you go to a non-profit church).
2) A one-time visual use is different than printing a brochure for distrobution.

Title: Re: Dilemma
Post by: leaf on January 15, 2007, 02:48
ok, thanks for the explanation.

I would be upset if the church used the photos (and it was illegal) because they should be setting an example.  if they can steal images why can't I.
Title: Re: Dilemma
Post by: MiguelAngelo on January 15, 2007, 06:31
I'm with you Leaf on this.

I don't go to church, and I'm not a religious person and never add religious education. But as I see it, they really should get permission. If someone ask me for some pictures to use on a sermon I'll be glad to allow it's use for free. If someone just still some of my images for the same pourpose, than we have a problem.

I can understand this "fair use" concept. But can a presentation in a sermon be considered a public presentation?


ok, thanks for the explanation.

I would be upset if the church used the photos (and it was illegal) because they should be setting an example.  if they can steal images why can't I.
Title: Re: Dilemma
Post by: Greg Boiarsky on January 15, 2007, 10:10
On a personal note:  Yes, I would be disturbed if a church used my images without permission.  Other than the "moral leadership" issue noted by others, I would have a problem with that use because I am not a Christian and I don't necessarily agree with the commentary for which the pastor would use my image.  I realize that if the pastor purchased my image, I would have to live with it; however, that would be a legal use and one that I have agreed to cede control over.  None of my opinion matters, though.  The legality of the use is what matters, not my agreement with the stated opinions of the user of my image.

Second, you need to distinguish the non-profit status of the church from the use of the image.  A non-profit enterprise may use my image in a profit-making enterprise, such as selling copies of a sermon.  Or the church may engage in not-for-profit activities and still be using my image illegally, such as by freely distributing copies of the sermon, which would be an illegal use of the image.

So, my earlier point stands:  This may be fair use.  It would be best if we all remembered to speak about legal issues in generalizations, rather than making hard-and-fast claims about specific situations of which we do not have total command of the facts.

A church, visually displaying an image durning a sermon is fair use under your two guidelines. On a more personal note: Are there really people here that would be upset that a church used their photo in a sermon without permission?

1) A company is a for-profit enterprise, a church is not (at least I hope you go to a non-profit church).
2) A one-time visual use is different than printing a brochure for distrobution.


Title: Re: Dilemma
Post by: yingyang0 on January 15, 2007, 14:52
I would have a problem with that use because I am not a Christian and I don't necessarily agree with the commentary for which the pastor would use my image...Or the church may engage in not-for-profit activities and still be using my image illegally, such as by freely distributing copies of the sermon, which would be an illegal use of the image.
Here in lies the problem. Since you don't go to church you're not familiar with a sermon and so don't realize that the sermon isn't normally printed. The image is being displayed on a screen behind or by the pastor while he speaks. There is no distributing or printing going on here.

You are correct that I need to distinguish between the non-profit status of the church and the use of the image. However you go on to make an incorrect conclusion from this. The distrobution of the sermon, if it were to happen, would not be for-profit. The only distinction that would matter is if the church was using the image in a for-profit manner. Distributing a sermon would not be a for-profit enterprise because they wouldn't be selling the sermon.

I think it is interesting that you say not to make "hard and fast" claims when you are infact doing that very thing. You say that by freely distributing copies of the sermon the church would be doing something illegal. That statement is the fallacy of which you speak. Can you cite a case where a church was found guilt of copyright infringement for distributing a sermon with an image in it?
Title: Re: Dilemma
Post by: Greg Boiarsky on January 15, 2007, 15:24
I can see this is going to go nowhere.  My point still stands, regardless of how poorly it may have been stated or how weak the example may be:  In the absence of specific and complete information, it is unwise to offer more than general opinions of how a given case might be interpreted in a court of law.  That is all I have intended to say, and I think we are brewing one heck of a tempest in the tiniest of teapots.

As for my not going to church, you have absolutely no basis for making such a claim.  I have been to many services, from many different denominations.  I know that most sermons are purely verbal, most not being recorded except as a service for shut-ins.  It is conceivable that some churches will videotape sermons, particularly invited sermons, for distribution to members.  And, it is certainly conceivable that a church would use such distribution to generate donations.  I am not saying it is common practice--likely, it is quite rare--but it is conceivable.  The law, in general, requires the individual to prepare for conceivable, if unlikely, outcomes.  Just check product liability law--which we need not discuss here.

And now back to our regularly scheduled discussion of the photographic industry and those who wish to earn money in it . . .

I would have a problem with that use because I am not a Christian and I don't necessarily agree with the commentary for which the pastor would use my image...Or the church may engage in not-for-profit activities and still be using my image illegally, such as by freely distributing copies of the sermon, which would be an illegal use of the image.
Here in lies the problem. Since you don't go to church you're not familiar with a sermon and so don't realize that the sermon isn't normally printed. The image is being displayed on a screen behind or by the pastor while he speaks. There is no distributing or printing going on here.

You are correct that I need to distinguish between the non-profit status of the church and the use of the image. However you go on to make an incorrect conclusion from this. The distrobution of the sermon, if it were to happen, would not be for-profit. The only distinction that would matter is if the church was using the image in a for-profit manner. Distributing a sermon would not be a for-profit enterprise because they wouldn't be selling the sermon.

I think it is interesting that you say not to make "hard and fast" claims when you are infact doing that very thing. You say that by freely distributing copies of the sermon the church would be doing something illegal. That statement is the fallacy of which you speak. Can you cite a case where a church was found guilt of copyright infringement for distributing a sermon with an image in it?
Title: Re: Dilemma
Post by: yingyang0 on January 15, 2007, 15:36
As for my not going to church, you have absolutely no basis for making such a claim. 

And now back to our regularly scheduled discussion of the photographic industry and those who wish to earn money in it . . .
Um...you said you're not a Christian, hence no church. Other than that I agree that is is going no where, so lets get back to where we should be (photographing and enjoying beauty).