Be Sure to Say Please Before You Say Cheese

In my column last week, I inadvertently gave some wrong advice when I suggested that consumers could obtain family photos for computer-generated holiday greeting cards by paying a professional photographer for a sitting fee, ordering a minimum set of prints and scanning the image. Although that is a way to get a high-quality image, it could put you on the wrong side of the copyright law.

After receiving a call from a concerned professional photographer and discussing the issue with Richard Greenstone, a San Francisco-based copyright attorney, I now realize that you must first seek the photographer’s permission before using such an image. Professional photographers, by default, own the copyright of any image they take, even if you pay them to take it. You can negotiate the transfer of that copyright or get permission to use the image on a holiday greeting card, a Web site or for any other use. But you are not free to reuse the image without permission.

John Atkinson, president of the Peninsula Advertising Photographers Assn., a Northern California trade group, concedes, “Protecting the copyright of images is difficult to enforce. Consumers tend to view photographs not as intellectual property but as a product that they have purchased.”

In the old days, photographers had total control because “we had the negatives and did the printing, and people didn’t have any other way to reproduce the image,” Atkinson said. Today it’s easy to scan an image and make your own prints. Atkinson advises consumers to “be upfront and tell the photographer how they are going to use the photo.”

Aside from legal and moral issues, there can be advantages to letting the photographer know your intended use. Many photographers can now give you the images in digital form, which in some cases will be a higher quality than what you can get from a home scanner. Some professional photographers use very high-resolution scanners, some output directly to CD-ROM, and others use high-end digital cameras that produce far better images than home scanners or the sub-$1,000 consumer cameras that are on the market.

This is one of many copyright issues that are surfacing now that computers and the Internet make it easy to copy and distribute other people’s intellectual property. I often receive e-mail that includes entire articles downloaded from the Web sites of copyrighted newspapers, magazines and other sources. Whether the people who send these messages know it or not, they may be violating the law distributing copyrighted material.

Frankly, I doubt if many publishers will bother prosecuting an individual who sends a copy of an article to a friend or two, but to play it safe, you’re better off simply including a link to the article in your e-mail.

Individuals or businesses that operate Web pages need to be careful about what they post. The copyright law, according to several attorneys I spoke with, does not permit you to post copyrighted images or the full text of articles on your site without permission of the copyright owner. The federal copyright law does make an exception for what is called “fair use,” which is defined as “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”

What actually constitutes fair use is a bit vague, according to Greenstone and Rex Heinke, a partner with Gibson, Dunn & Crutcher, but the law does state that “factors to be considered shall include whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”

The issue will come to a head in an upcoming trial. The Los Angeles Times and Washington Post have filed a lawsuit against Free Republic (https://www.freerepublic.com), a conservative Web site that allegedly allows visitors to post entire newspaper articles so that they can be discussed on the site’s forums. Heinke, who is representing the newspapers, says his clients would not object to the Free Republic linking to the articles on the newspapers’ site or taking short passages from articles for discussion purposes. But, he argues, “the regular posting of the entire text of dozens and dozens of articles violates the federal copyright law.”

Brian L. Buckley, a Los Angeles intellectual property attorney who represents Free Republic, argues that the fair-use provision of the copyright law permits “what would otherwise be infringement if the purpose is to promote education, scholarship and criticism on a noncommercial basis. That is precisely what occurs at that Web site.”

No one is taking my kids to court, but I have to admit that copyright issues have surfaced in my own family. My two kids, ages 12 and 14, know it’s wrong to copy entire articles from a newspaper or encyclopedia, but they have been known to download photographs, maps and other copyrighted images from the Web for use in term papers. Whether they’re violating the law depends both on the user agreement of the Web site in question and one’s interpretation of the fair-use provision of the copyright law.

Some copyrighted Web sites specifically permit students to use material under certain circumstances. Microsoft Encarta’s Web site (https://www.encarta.com), for example, allows people to use material “for informational and noncommercial or personal use only.” There are even instructions about copying, which include the statement: “When you copy and paste text or images from Encarta Encyclopedia to use in a document such as a school report, you must include the relevant copyright information.” The usage agreement on Britannica Online’s Web site (https://www.eb.com) states that “material may be used for noncommercial purposes in connection with the preparation of papers, reports, presentations or scholarly uses, provided that such use does not exceed the lesser of 15% of any single Britannica Online article or 1,000 words.”

I don’t live in fear of the copyright police dragging my children off in the middle of the night, but I am concerned about raising a generation of children who don’t understand or respect intellectual property. Frankly, I think the time has come when teachers need to cover copyright law as part of basic curriculum starting at about the 5th grade. Kids need to understand the difference between research and plagiarism, and teachers should insist that students cite the source of any graphics used in papers. It wouldn’t be a bad idea to insist that the students first read the user agreement that is posted on many newspaper, magazine and encyclopedia sites.

*

Lawrence J. Magid can be reached via e-mail at [email protected]. His Web page is at https://www.larrysworld.com. On AOL, use keyword “LarryMagid.”