Photography & Copyrights (3 different questions)

[emartin]

What is the name of your state (only U.S. law)? CA

I am a new photographer and have 3 questions as it related to copyrights.

1) If I take a photo of something well known, can I sell it? For example, I took a creative picture of one of my kids "Thomas the Tank Engine" toys. People have asked for a print. By law, am I allowed to print and sell it, or does it violate copyright/trademarks?

2) Some of my photos were Creative Commons (CC) licensed and I recently changed to All Rights Reserved (ARR). What does that men for those who used it under the CC license. I assume that the license in effect when they used the image still apply?

3) My last question is in regards to displaying ARR images. I am using the Flickr API to display images with a certain "tag". My understanding is that as long as I only display thumbnails, link back to the site of the original image and not claim the images as my own work, that I am free to do so. Are there any other restrictions, like not being able to have ads on my site?

Anyway, thanks for any tips or information you can provide!

 

[FlyingRon]

1) If I take a photo of something well known, can I sell it? For example, I took a creative picture of one of my kids "Thomas the Tank Engine" toys. People have asked for a print. By law, am I allowed to print and sell it, or does it violate copyright/trademarks?

You might, you might not. Good treatment here:

Photos of Trademarked and Copyrighted Works

2) Some of my photos were Creative Commons (CC) licensed and I recently changed to All Rights Reserved (ARR). What does that men for those who used it under the CC license. I assume that the license in effect when they used the image still apply?

The terms of the CC license say it is perpetual. That means if they got it under the CC terms, they can use it forever under those terms.

3) My last question is in regards to displaying ARR images. I am using the Flickr API to display images with a certain "tag". My understanding is that as long as I only display thumbnails, link back to the site of the original image and not claim the images as my own work, that I am free to do so. Are there any other restrictions, like not being able to have ads on my site?

I do not agree with your understanding. Even the thumbnails are protected by the owner's copyright. Just because they grant Flickr rights to display them, doesn't mean you have them.

 

[emartin]

You might, you might not. Good treatment here:

Photos of Trademarked and Copyrighted Works

Thank you very much for the URL.

The terms of the CC license say it is perpetual. That means if they got it under the CC terms, they can use it forever under those terms.

Perfect, thanks for the information.

I do not agree with your understanding. Even the thumbnails are protected by the owner's copyright. Just because they grant Flickr rights to display them, doesn't mean you have them.

This seems to be a tricky one. I think I need to clarify, first. I have a site where I display the most interesting project 365 images on Flickr. It is just an aggregator of what is happening for a particular day on that subject (tag).

I am not claiming the images as my own and my understanding is that I am able to display the thumbnails, which link back to the authors image. For example, if you do a Google search for images, you will see ARR reserved images in the results (in particular, I'm talking about ones from Flickr). It seems as though Google would not do this if there wasn't some legal right for them to.

Flickr does offer the ability to people to opt-out of the search API completely, but it seems to me that displaying them in this way is not violating copyright.

 

[FlyingRon]

This seems to be a tricky one. I think I need to clarify, first. I have a site where I display the most interesting project 365 images on Flickr. It is just an aggregator of what is happening for a particular day on that subject (tag).

I am not claiming the images as my own and my understanding is that I am able to display the thumbnails, which link back to the authors image. For example, if you do a Google search for images, you will see ARR reserved images in the results (in particular, I'm talking about ones from Flickr). It seems as though Google would not do this if there wasn't some legal right for them to.

Flickr does offer the ability to people to opt-out of the search API completely, but it seems to me that displaying them in this way is not violating copyright.

You do not have the legal staff of google to defend yourself.
The images are not yours.
You have no rights to aggregate them or otherwise infringe on them.
The flickr search pages aren't yours to steal links too either.

 

[emartin]

You do not have the legal staff of google to defend yourself.

True

The images are not yours.

I never said they were.

You have no rights to aggregate them or otherwise infringe on them.

Perhaps. This is why I'm asking. It does not make sense to me that Flickr would allow ARR images to be included in their API if nobody had any rights for this kind of usage. There are a ton of sites that display all images from Flickr using the API - this doesn't make it right, it just makes me curious.

The flickr search pages aren't yours to steal links too either.

Steal links? I don't understand. The Flickr API TOS requires me to link back to the original image. What are you referring to?

 

[FlyingRon]

The Flickr API doesn't make any statements one way or the other as to ownership. They stand out of the way. It's up to you and the photo owner to sort it out. The fact that flickr makes the images available do you doesn't mean you have permission to use them on your own content.

 

[emartin]

I do appreciate your input.

I did a quick search and it looks like thumbnails are considered "fair use" in a search capacity (which is what I'm doing).

Court backs thumbnail image linking - CNET News

Although, I did find that Google lost a particular case with this defense.

Google’s Thumbnail Images Violate Copyright

Interesting stuff.

 

[FlyingRon]

Fair use doesn't prevent law suits.
While the 9th Circuit did rule fair use in Kelly, they did remand the case back over the linking issue (which also applies to you) so you are not out of the woods on this.

The concept of thumbnails isn't UNIVERSALLY (even in the 9th circuit) decided in Kelly. The factors in determining fair use was pretty evenly split for and against the thumbnails being fair use. The decider was whether the copyright holder suffered any impact from the infringement. While in Kelly, they argued no, you can't uniformly assume it's going to go your way on that one.

I'd suggest you read the decision rather than some half-assed magazine news article on it.

Kelly v. Arriba Soft Corp.

 

[emartin]

Fair use doesn't prevent law suits.
While the 9th Circuit did rule fair use in Kelly, they did remand the case back over the linking issue (which also applies to you) so you are not out of the woods on this.

The concept of thumbnails isn't UNIVERSALLY (even in the 9th circuit) decided in Kelly. The factors in determining fair use was pretty evenly split for and against the thumbnails being fair use. The decider was whether the copyright holder suffered any impact from the infringement. While in Kelly, they argued no, you can't uniformly assume it's going to go your way on that one.

I'd suggest you read the decision rather than some half-assed magazine news article on it.

Kelly v. Arriba Soft Corp.

Thanks again for the link. I've decided to go forward with my site. I do not store the images and I will provide all of the necessary information for a Flickr user to prevent their ARR images from being displayed through my domain.

I do appreciate your time and input.