Top 10 Misconceptions about Photography and the Law

[dakwegmo]

This is a must read article about copyright for photographers. Points 4, 6, and 9 are especially salient to most copyright discussions here on DPS. NewsletterArticlesShould You Tweet?

[OsmosisStudios]

3 and 10 are somewhat flawed, but otherwise a decent list.

[Mr Guy]

I'm actually a little disappointed in her for apparently simplifying to the point of being wrong. For example, in number 1, she's assuming all photographs are taken for commercial use. You are, of course, absolutely allowed to take a photograph of anything you can legally observe, in the United States. You may not absolutely use any photograph for commercial purposes.

3 has a similar problem because she leaves out a ton of nuance, number 4 she forgot the flipside: NOT getting money doesn't NOT automatically make it fair use, either.

[Jim Poor]

Originally Posted by OsmosisStudios

3 and 10 are somewhat flawed, but otherwise a decent list.

Those points aren't really flawed at all in terms of U.S. law.

[Mr Guy]

Originally Posted by Jim Poor

Those points aren't really flawed at all in terms of U.S. law.

There's a crap ton of nuance about identifiably, public figures, where the picture was taken, etc etc.

[Jim Poor]

Originally Posted by Mr Guy

There's a crap ton of nuance about identifiably, public figures, where the picture was taken, etc etc.

Granted, but the premise of the article wasn't to cover everything, so, as presented, the points are not flawed.

[andyw]

Well point 1 is flawed to start with.

The rest is related purely to US copyright law and not relevant to the majority of my work but even though I am not fully versed with US copyright law I can see that some of the points are "debateable" at the very least.

[dakwegmo]

Originally Posted by Mr Guy

You are, of course, absolutely allowed to take a photograph of anything you can legally observe, in the United States.

While that may be true for people, and most buildings, it's not true for most things that are protected by copyright. If I walked into a public gallery, and take a photo of someone else's photo, I've violated their copyright. Yes, fair use comes into play depending on how it's used, but if all you're doing is reproducing the copyrighted material in photograph form, then you're violating the creators copyright. What you ultimately do with it may effect the penalties incurred for such a violation, but it's a violation nonetheless.

[Mr Guy]

Originally Posted by dakwegmo

While that may be true for people, and most buildings, it's not true for most things that are protected by copyright. If I walked into a public gallery, and take a photo of someone else's photo, I've violated their copyright. Yes, fair use comes into play depending on how it's used, but if all you're doing is reproducing the copyrighted material in photograph form, then you're violating the creators copyright. What you ultimately do with it may effect the penalties incurred for such a violation, but it's a violation nonetheless.

No, fair use trumps copyright:

§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Companies have put a LOT of effort into brainwashing people about fair use. Stand up for yourself. Protect your rights.

[dakwegmo]

Originally Posted by Mr Guy

No, fair use trumps copyright.

Yes, if the image you make qualifies for fair use protection. However, if you're merely duplicating someone else's work, then the very act of taking the photo can infringe the original artist's copyright.