I have seen Steemit users posting photos that do not belong to them. While some users try to pass off the works as their own, others cite the original creator/location and consider the citation to make it ok. But is it?
@masteryoda in particular has numerous high-value posts that are simply photos and citations copied and pasted from award-winning photographers. At the end of these posts, @masteryoda writes this, “Each photography is posted with the according photographer and credits under fair use license.”
But what constitutes fair use? I did a little research and found that fair use is ultimately determined by a judge, and judges use four factors to determine if something falls under fair use. One of those factors is the character of the use. If the use is transformative somehow (e.g. criticism, commentary, parody, otherwise adding value), that lends itself to fair use. Other things fall into a gray area (e.g. non-profit, educational and personal uses). Straight copying entire works for commercial use falls pretty squarely outside of fair use. (source #1, source #2)
Does re-posting to Steemit without permission from the original creator count as illegal commercial use? I think the blogging rewards do make it commercial use. What do you think?
(I’m not a lawyer. I just think this is a really important discussion to have. @thecryptofiend posted on this topic several days ago, but the post did not get the attention I feel this topic deserves.)
*By the way, image at the top of this post downloaded free from pixabay.com as public domain, free for commercial use.*
Great post, Corrine. This is an area where the law has not kept up with the technology, unfortunately. So, in many ways, it's a grey area.
As a lawyer, I can say that your summary of the law is correct. Commercial use generally falls outside of "fair use". In general, commercial use simply means using the copyrighted material to profit. Although I suppose it will take a court case to determine for sure, it seems to me that posting copyrighted material on your blog for purposes of making money via upvotes (curation awards), and without any additional criticism or commentary of the work, would be copyright infringement.
However, just because you infringe someone's copyright doesn't automatically entitle them to anything. To collect, they must show damages, and damages are extremely hard, and extremely costly, to prove in 99.9 percent of cases. For instance, in most cases it will be hard to show how much the copyright holder was harmed directly by the infringement. In some cases the copyright holder may actually benefit from the infringement. Consequently, the vast majority of the time, the copyright holder either won't pursue monetary relief for the infingement and instead will, if they really don't want their work exposed in the infringing manner, pursue takedown remedies under the Digitial Millenium Copyright Act (the DCMA).
The DCMA gives copyright holders the legal right to demand that contents hosts remove the infringing material. The do this by serving the Internal Service Provider with a Takedown Notice. After receiving such notice, the ISP must generally remove the infringing material.
However, being effectively uncensorable, blockchains could essentially deny copyright holders with an effective remedy under the DMCA. Unless a court can obtain jurisdiction over a sufficient number of miners (which seems unlikely) to force a hard fork, the material in the blockchain remains forever. However, a court could easily force blockchain browsers (like Steemit) to not display certain information that exists in the blockchain, and this will presumably be the best that a copyright holder can expect.
Currently Steem only stores text and not photos and videos on the blockchain, so as regards the latter, copyright holders could use the DMCA to force the image hosting cite to remove the content, which would then effectively prevent it from appearing on Steemit.
In short, to affirm @leta-blake's point, I'm not sure that the Steem community needs to be anymore concerned about this copyright issue (as regards photos and videos at least) than cites like Reddit and Tumblr are. Copyright holder will almost never pursue monetary damages. The likely case is that they would simply issue a Takedown Notice, which either the image hosting site or Steeemit would certainly honor.
Nonetheless, I personally try to avoid using images that are not my own unless they are clearly in the public domain, and I would encourage all others to do the same. If we don't recognize each other's property right, then shame on us. As to whether we SHOULD have property rights in intellectual property...well...that's a whole other issue.
Thank you for your legal insight.
Some interesting points here. One should however note that we have just recently had a case where a leading torrenting site was taken down and the owner arrested - despite not actually hosting the infringing works themselves. If national authorities start to see Steemit as a haven for copyright theft they could well take similar action particularly since the creators are publicly known and Steem now has a $400 million dollar valuation.
Excellent point! This has been my concern from the beginning. If we don't, as a community, properly police this in the beginning, it could easily spin out of control into something which could destroy this platform we're currently enjoying.
Good point.
Exactly.
I was surprised no one else took the conversation this direction. :) Maybe we'll leave that for another day. Wouldn't it be great if the bots of Steemit and the community consensus becomes our law with no need for coercion or the failed IP system we have today.
Thanks for brining your professional opinion to the discussion.
I absolutely believe creators should have property rights to their own creations. They are who put the blood, sweat, and tears into their own art. When I punch in and out at work, I don't make my paycheck available to anyone else, why should this be different?
Thank you, Sean! I was hoping you'd reply and help shed some light on this.
With steemit, however, the person's earnings are made public. Wouldn't be hard for the original creator to prove at all.
Maybe Steemit would make it that much easier for authors to go after damages because everything is on the blockchain, without dispute. Very interesting to think about how this may change law in the future and how people use the law to sue each other.
Thank you for your time and many thanks for explaining the legal point
I'm not reselling the rights to the photos, I’m just sharing work I like, it goes under news reporting part of the fair use license, and should I receive any infringement claim from the copyright holders I will deal with it appropriately.
Some people here start tracking my posts saying its copy/past, plagiarizing and some other ridiculous accusations, I don't claim it's my work, the photos I post made the news and are masters’ work posted with the necessary credits. I really appreciate personal photography work posted here, but this category also needs this kind of posts to learn from.
I started this category with this kind of photography, and people appreciated it. I do it because I like sharing my passion for photography!
Blogging reward is not commercial use, commercial use would be reselling the rights to the photography, which is obviously not the case.
There have been a lot of talk about my posts in the #steemabuse channel, so I thought I clear it out a bit for people willing to understand, but some people here are just plain jealous, there is nothing I can do about that!
Interesting. Has something like this gone to court before regarding photography? Like, if Steemit had a paywall, as an example, and people came there to view the photos, would that change things? Does it matter if you have press credentials or not?
I also appreciate great photography, but I've hesitated to upvote content which I think might threaten Steemit as a whole. If any infringement claims do show up, would they be directed at individuals or the site itself? For me, these discussions are less about jealousy (though I'm sure there's a lot of that going around) and more about the future use, safety, and identity of Steemit and its users. If the platform encourages something which later creates legal troubles for everyone involved, that could be a nightmare.
Really glad to see you commenting here and explaining your position on the matter.
Infringement claims would have to go to the individual not the site. See Tumblr, for example. It basically exists by people sharing and reblogging content that doesn't belong to them, without any transformative activity applied to it. Now, they aren't making money, but, again, the money is coming from curation, not sales of the item, and most of these items are freely available online as it is. I do think attribution is essential, but Tumblr would've gone under by now if this was a massive legal problem.
@masteryoda: In case it gets buried on your most recent post, I hope you see my reply here. Thanks.
Usually, before taking an action in court, the copyright holders will send you a takedown notice, so you can remove the content that is subject to the infringement. Also I’m posting photography that has made the news worldwide, it’s usually safer, and I have no intention of deceit whatsoever. I think the chances of my posts going to court are very slim to non-existent because I’m careful what I post and how I do it.
Here’s a good article about it:
http://artlawjournal.com/fair-blogging-bloggers-copyrighted-images/
I will try to acquire some photography rights for my next posts, but posting international contests photos with credit is a safe bet, no one want to go to court against a blogger for that.
Read the article. This portion seems particularly relevant: "The amount and substantiality of the portion used of the copyrighted work will hinge on the overall content contained in your blog. Generally speaking, if all of your photos are coming from the same source, and you don’t have permission to use these photos, then you could be facing a pretty serious problem. Courts will understand if you’ve used a photo or two in a long blog post to illustrate your points and provide background, but they will not be lenient if it’s clear that almost none of your content is original." I also noted this portion: "While your use of the image may constitute fair use, you’re still infringing on an artist’s copyright, and it’s better to remove the photo than become embroiled in litigation. In addition, be sure that the majority of the content on your blog and within your posts are original or licensed works. If your blog were to come under scrutiny and it is shown that the majority of your images have been used without express permission, you may have a harder time proving fair use." Thoughts?
Yes I read that too, but like I said, i'm posting these photos as phtography news reporting, please see sean-king post above, he seems to have a better knowledge in regards to the legal aspect of the subject.
"Commercial use would be reselling the rights to the photography." Yes, but is commercial use limited only to reselling the copyrights? I don't know about the news reporting aspect..... Anyone out there in the Steemit world have legal experience with intellectual property?
Commercial use is not limited to reselling. For instance, if I display copyrighted material on my web page to draw an audience and then sell advertising on my page and profit therefrom, I have made commercial use of the copyrighted material even though I didn't resell it.
"...I have made commercial use of the copyrighted material even though I didn't resell it."
Exactly. Infringement can occur even if a business is using an image as a display. A grocery store once got in trouble for this very thing because they Googled images that ended up being used on their big window display. They didn't resell the image, but it could be argued that their window display resulted in sales, profiting the store.
The news angle seems a bit....eh. While, yes, news outlets used the material to report a story, the poster here is not a news outlet. They're an individual reaping benefits from posting such content. I personally believe that any profits earned should be split evenly among ALL the creators of the content, no matter if any one of them takes up the majority of the post.
Example: Say you use 10 photos in your blog post, each one by a different person. Even if your post is mostly text that you yourself have written, if you make $1,100 then I think fair would mean that each contributor gets an even share. Each person would get $100, including the writer of the post.
Fair use should also = fair gains.
I guarantee you that those news outlets got permission first. Most newspapers, magazines, and news websites have compliance editors whos job is just taking care of stuff like that.
As a photographer myself, I would be pretty livid if someone were raking in tens, hundreds, thousands of dollars off of one of my photos and I would be very much pursuing whatever legal action I could bring against the poster.
Exactly. It is no different form having public showings of movies you have pirated.
That's my thinking as well. And not just public showings, but specifically public showings which include a financial exchange.
My biggest concern would be that the post edit function is not deactivated after so long. Until the payout for the post is made, it can be edited to remove the image and any detail within it. Is there any way to prove it after that? Because then it would simply be a blank post with a large amount of money attached to it.
The blockchain is forever. Every edit can be seen via https://steemd.com/ (as well as other tools).
Awesome, @lukestokes . I love it. If that's the case, I would imagine people will learn after the first couple of court cases. lol
Yes I posted about this earlier. I don't think curation would count as fair use - imagine reposting a movie you like and saying it is fair use because you are curating it. You would get laughed out of court. What makes Steemit a bigger target is the fact that there is direct money making potential. Anyway here is a link to the original post where I discuss it.
https://steemit.com/photos/@thecryptofiend/posting-photos-and-art-without-permission-is-not-ok
I think the difference is that (for the most part) people are posting photos that are already available for free on the internet, whether they be on the photog's site or wherever. So, in that case, it's different from a movie.
Yeah, I already included a link to you and your article in my original post :)
I definitely think this is going to get explored in the courts at some point if Steemit continues to grow. It's only a matter of time.
I actually decided to come back and say that I do wonder if one argument is that the curation/blogging rewards are paying out for the value of having CURATED content. So you're not getting paid as credit for the content itself, but are getting paid for content curation of freely available content online. This argument might hold a bit of water if people are including links back to the original content and creator for people to purchase/buy, etc.
I don't think that would hold up in court, but as I said, I'm not a lawyer....
I think if the Steemit post just links to the original content, rather than re-posting it, it is ok. Because then the link is driving traffic to the original content, rather than profiting directly off of it without permission from the original creator.
How do you explain Tumblr, then? It is a site that is nearly 100% driven by the sharing and reblogging of material that is not transformed or owned by the people sharing and reblogging it. Obviously, the difference is the curation reward, but, again, you're being rewarded for curating freely available stuff that you can already see, for free, on the internet. I think attribution is essential and key, but I'm not sure if it's actually stealing money from the original creator when they're giving it away to begin with.
The article that @masteryoda linked to above addressed Tumblr specifically: "The one exception to this rule are images you’ve re-blogged or copied on sites like Tumblr and Pinterest. These websites’ terms of service grants the site the right to copy and distribute the work and for other subscribers to the site to do so, as well. That means that if someone has posted an image on Tumblr or Pinterest, that image is fair game. However, it’s important to make sure that the original poster was not posting a copyrighted photo that belonged to someone else without express permission, because that would constitute infringement." (my emphasis)
Wrong. Having work available online is not the same as having it freely available. Strictly speaking most stuff on Tumblr is illegal - it is not pursued because no money is changing hands. I don't think you understand how the system works at all.
There is a difference between how the system works, and how one FEELS that the system should work. The bottom line is the text of the law, not the assumption of the public. If I found one of my photos posted by someone else raking in a lot of money, I would pursue it no differently than if a magazine had printed it in one of their issues without permission. The burden of proof usually falls on the photographer to show if the perpetrator has made any money.
And I'll be darned if that info ain't available publicly here.
Folks please get behind this post and Upvote it. Especially if you are a photographer and work hard to create original work.
It's in your interest that this issue be discussed and resolved.
Thanks for the love :)
Just to let you know @corinnestokes, I've referenced this article in my latest piece here:
https://steemit.com/ethics/@condra/copyright-doing-the-right-thing-will-it-pay-off
Best of luck
Thanks!
Good post.
Also watch this: Me trying to understand and explain the same thing to other users.
Taken of upside:
By the way, image at the top of this post downloaded free from pixabay.com as public domain, free for commercial use.
On a site put a description for each video or image in front makes it unaesthetic and not practical, in the future must exist other more viable solution for it, more than internet has become faster.
Else , just to read the terms of service of each site occupy a long time and sometimes the average user does not understand them because its like long legal terms .
Thanks for highlighting this Corinne. When I search for images, I do so using the "labelled for reuse with modification" feature, but I need to get better at giving proper credit. Could credits be given at the end of the post rather than under the image?
It definitely makes it easier when the credit is put right by the photo. Not sure if there is a hard rule about it....
It's no surprise that this topic isn't getting much attention b/c let's face it most people are either not involved, don't care or clueless. Nonetheless, it's a really important issue going forward and doesn't have to single any one party out.
As a similar recent example involving commercial usage:
The FAA (in the US), stated that any commercial usage of drones/sUAS goes against what they consider to be legal. Even if you provide the aerial images/video for FREE and the company that gets the footage uses it in a commercial manner (for profit) then this is violating that clause. When you use Youtube, you lose your rights to earn on a particular video if copyright infringement is detected (music) or reported. Youtube does not and cannot afford to have a bunch of liabilities laying around - they are smart enough to police it. If this doesn't happen here... well, someone may go after then entire domain at some point if it's found to be littered with rampant commercial usage with $$$ attached to each post.
What will be interesting is when these photographers who shot these images uses services like tineye.com to monitor their content and discover where it's at and how it's being used.
It's all so new, that most are still unaware of the potential of Steemit.
One thing I'm noticing about images being used on Steemit: they aren't showing up via the google reverse image search or via tineye.com (this is only true for a few of my images that I tested with)
Also thank you to the OP @corinnestokes & @sean-king for taking the time to share knowledge on this topic. Also thanks should go to @masteryoda for keeping the dialogue going - good to get both sides to any story.
@masteryoda No, it absolutely doesn't fall under the news reporting section of fair use. Also, there is no such thing as a "fair use license". If youre reproducing the work for a fair use purpose, then there is no license required. Saying youre posting it by the authority of some made up license is dishonest.
I notice youre dancing around the word that you don't like from the actual SC decision becasue it doesnt jibe with your argument.
The supreme court basically saw two categories of use. COmmerical use, or NONPROFIT educational use.
Considering you made thousands of dollars from publishing others' photos, its clear where your use falls.
I really hate people stealing other peoples post.
whats about if i post blogs with pictures from other sites and i place the source link. is this still a copyright problem?
Well, if you read through all the comments above, you'll find various opinions. In my personal opinion, while citing the sources is better than not citing the sources, simply copying and pasting from other sites is not cool. It hurts the Steemit platform by reducing the percentage of original content and therefore lowering the platform's value compared to other websites. For a much better explanation of that point, see this post by @cheetah, paying particular attention to the section titled "Why is copy-paste "bad"?"
Let's say that I want to critique a 2 minute movie clip that is using Neuro Linguistic Programming to install ideas of suicide into the minds of the people who watch it. And now let's say I want to do this for 5 separate 2 minutes scenes in this movie. If I upload one of these 2 minute clips with me commenting, critiquing, basically explaining the programming, would this count as Fair Use because I would be making money on Steemit via DTube with a copywritten movie? If we can't use movie clips on DTube to make a point because we earn money through Steemit, doesn't this platform have the potential for greater restrictions than YouTube?
Sorry for the delayed reply. It's been awhile since I've been on Steemit. (Tsk, tsk.) As I wrote in my original post, use that is transformative (e.g. commentary) lends itself to fair use. Ultimately, however, it's up to a judge to determine if it falls under the fair use category. And just a reminder....I'm not a lawyer.