Being sued for copyright infringement for sharing your own photo

[Ben]

I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?

Could the model counter-sue the photographer for him using her image without her consent?

[David McNeish]

On Monday, 27 June 2022 at 13:10:55 UTC+1, Ben wrote:
> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>
> Could the model counter-sue the photographer for him using her image without her consent?

"Your own photograph" is one which you take. I presume that isn't the case here? Generally copyright is held by whoever is behind the camera, not in front of it.

[GB]

On 27/06/2022 13:10, Ben wrote:
> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>
> Could the model counter-sue the photographer for him using her image without her consent?

The copyright belongs to whoever owns it. That starts with the
photographer, not the subject.

Besides that, models usually sign a 'model release form'.

Often not the brightest, models, so might not realise she's done
something wrong.

[Norman Wells]

On 27/06/2022 13:10, Ben wrote:

> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?

Copyright in a photograph is the property of the photographer. No-one
is entitled to reproduce his photographs without his permission, which
the model presumably did not have.

> Could the model counter-sue the photographer for him using her image without her consent?

Possibly under privacy laws, especially in the USA, but it depends on
the circumstances. If she had signed a model release form as any
professional photographer would require, then no.

[Fredxx]

On 27/06/2022 13:10, Ben wrote:

> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>
> Could the model counter-sue the photographer for him using her image without her consent?

It is simply how copyright works. The photographer owns the copyright.
Whether it was taken by permission is a secondary aspect.

If in the UK taken from a public place then permission is not required.

When taken where privacy might be an issue, things get messy. But if the
model publishes the photo I would expect that hurdle has already passed
irrespective of jurisdiction.

I'm not surprised and don't see the issue here?

[Ben]

Apparently the photograph in question (which I didn't see) was of the model in the street, and also with an added caption.

https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/

[Roland Perry]

In message <t9c7cj$ftb2$1...@dont-email.me>, at 13:21:40 on Mon, 27 Jun
2022, Fredxx <fre...@spam.uk> remarked:

>On 27/06/2022 13:10, Ben wrote:
>> I was surprised to read the news of a model in the US being sued by a
>>photographer for sharing her own photograph. It seems nonsensical. Can
>>someone please lay out the legal nuance here for a layperson?
>> Could the model counter-sue the photographer for him using her image
>>without her consent?
>
>It is simply how copyright works. The photographer owns the copyright.
>Whether it was taken by permission is a secondary aspect.
>
>If in the UK taken from a public place then permission is not required.

Peeping Tom photos, even from a public place, might still get the
photographer into hot water.

>When taken where privacy might be an issue, things get messy. But if
>the model publishes the photo I would expect that hurdle has already
>passed irrespective of jurisdiction.

You mean: she clearly doesn't object to the photo being in circulation?

[Disclaimer, I have not seen any news reports in this matter]

>I'm not surprised and don't see the issue here?

--
Roland Perry

[Theo]

According to that link:

Under copyright law, photos don’t qualify for protection if they lack
“artistic merit” and the content of the images don’t “give the court any
reason to believe that any ‘creative spark’ was required to produce it.”
Photos that are purely descriptive, defined as merely capturing things “as
they are,” are similarly not afforded copyright protection.


which I think must be law in the USA or some part thereof. I'm not sure how
the same applies in the UK.

I've heard of cases about reproductions of modern photos of out of copyright
works - the Mona Lisa is out of copyright, so I am free to use somebody
else's picture of the Mona Lisa which is a straight image of how it looks,
ie lacking in any input from the photographer apart from successfully
operating a camera.

I suppose this is another twist on that idea: a CCTV photo of somebody would
not be deemed to have any artistic content because they happened to be
caught in frame, as whoever set up the CCTV put no effort into making that
picture - unlike the case with the 'monkey selfie' where there was artistic
input in setting up the camera just right to take a good picture.

Theo

[Mark Goodge]

On Mon, 27 Jun 2022 05:10:46 -0700 (PDT), Ben <benada...@gmail.com> wrote:

>I was surprised to read the news of a model in the US being sued by a
>photographer for sharing her own photograph. It seems nonsensical. Can
>someone please lay out the legal nuance here for a layperson?

Copyright in a photo belongs to the photographer, not the subject of the
photograph. There's no nuance there, it's one of the most fundamental aspects of
copyright law both here and in the US (and, for that matter, pretty much
everywhere). The nuance would be if she was able to rely on one of the statutory
exemptions to copyright (such as, in the US, the doctrine of "fair use"), which
is a defence she may use if it goes to court. But simply being the subject of a
photograph does not, in itself, give you any rights in it.

>Could the model counter-sue the photographer for him using her image
>without her consent?

If it was a long-lens paperazzi shot then there may be privacy aspects that she
could use (although that would be much harder in the US than this side of the
Atlantic). But if the photograph was initially taken either with her consent or
in a scenario where no consent is necessary (eg, a press photographer covering a
red carpet event that she was participating in), then that wouldn't apply.

The only other possible scenario would be if there was a contract between model
and photographer (eg, if he was paying her to pose for him, or she was paying
him to take a publicity shot of her), in which case there may be a clause which
either gives her the right to authorise or deny futher use by the photographer
or, conversely, gives her the right to use the photo herself.

Mark

[GB]

There are some exceptions to copyright law. There's a summary of the UK
law here:

https://www.gov.uk/guidance/exceptions-to-copyright

[Max Demian]

On 27/06/2022 13:21, Fredxx wrote:
> On 27/06/2022 13:10, Ben wrote:
>> I was surprised to read the news of a model in the US being sued by a
>> photographer for sharing her own photograph. It seems nonsensical. Can
>> someone please lay out the legal nuance here for a layperson?
>>
>> Could the model counter-sue the photographer for him using her image
>> without her consent?
>
> It is simply how copyright works. The photographer owns the copyright.
> Whether it was taken by permission is a secondary aspect.

Is that because photographers "paint with light" (actually just point
the camera and press the button)?

Was that law made when you had to be an artist to create a likeness?

What about that monkey who took a "selfie" of himself? Can a monkey own
a copyright?

--
Max Demian

[Pamela]

Perhaps this case is murkier than usual because the model is not
identifiable in the picture.

The picture is show in this link, although I'm not sure how the site
was able to publish it bearing in mind the court case.

https://www.thefashionlaw.com/emily-ratajkoswki-settles-lawsuit-over-moo
d-forever-instagram-post/

[Norman Wells]

On 27/06/2022 16:34, Theo wrote:
> Ben <benada...@gmail.com> wrote:
>> On Monday, June 27, 2022 at 4:20:10 PM UTC+3, GB wrote:
>>> On 27/06/2022 13:10, Ben wrote:
>>>> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>>>>
>>>> Could the model counter-sue the photographer for him using her image without her consent?
>>> The copyright belongs to whoever owns it. That starts with the
>>> photographer, not the subject.
>>>
>>> Besides that, models usually sign a 'model release form'.
>>>
>>> Often not the brightest, models, so might not realise she's done
>>> something wrong.
>>
>> Apparently the photograph in question (which I didn't see) was of the model in the street, and also with an added caption.
>>
>> https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/
>
> According to that link:
>
> Under copyright law, photos don’t qualify for protection if they lack
> “artistic merit” and the content of the images don’t “give the court any
> reason to believe that any ‘creative spark’ was required to produce it.”
> Photos that are purely descriptive, defined as merely capturing things “as
> they are,” are similarly not afforded copyright protection.

The article isn't clear whether, as you've taken it, that is the
established legal position as some court has decided previously, or
whether it is just the argument she used in her particular case.

It is clear it is the latter, however, as the judge 'found that the
image meets the “extremely low” standard for originality', which means
that it did attract copyright protection.

It certainly would here in the UK too, where all a photograph has to be
is 'original', ie new. The courts here cannot judge artistic merit, and
don't have to. Nor do they in any country which is a signatory to the
Berne Convention on copyright, ie everywhere except the Solomon Islands,
South Sudan, Timor-Leste and Tuvalu..

> which I think must be law in the USA or some part thereof. I'm not sure how
> the same applies in the UK.
>
> I've heard of cases about reproductions of modern photos of out of copyright
> works - the Mona Lisa is out of copyright, so I am free to use somebody
> else's picture of the Mona Lisa which is a straight image of how it looks,
> ie lacking in any input from the photographer apart from successfully
> operating a camera.

Not necessarily. I don't think it has ever been tested in the courts,
and it would need a decided case to establish it.

> I suppose this is another twist on that idea: a CCTV photo of somebody would
> not be deemed to have any artistic content because they happened to be
> caught in frame, as whoever set up the CCTV put no effort into making that
> picture - unlike the case with the 'monkey selfie' where there was artistic
> input in setting up the camera just right to take a good picture.

I wouldn't rely on your view on that as necessarily a reliable statement
of the law.

[Mark Goodge]

On Mon, 27 Jun 2022 18:03:14 +0100, Max Demian <max_d...@bigfoot.com> wrote:

>On 27/06/2022 13:21, Fredxx wrote:
>> On 27/06/2022 13:10, Ben wrote:
>>> I was surprised to read the news of a model in the US being sued by a
>>> photographer for sharing her own photograph. It seems nonsensical. Can
>>> someone please lay out the legal nuance here for a layperson?
>>>
>>> Could the model counter-sue the photographer for him using her image
>>> without her consent?
>>
>> It is simply how copyright works. The photographer owns the copyright.
>> Whether it was taken by permission is a secondary aspect.
>
>Is that because photographers "paint with light" (actually just point
>the camera and press the button)?

No. It's because a photograph is the creation of the photographer.

>Was that law made when you had to be an artist to create a likeness?

No. Copyright law predates photography. Photographs were recognised as being
subject to copyright as soon as they were invented.

>What about that monkey who took a "selfie" of himself? Can a monkey own
>a copyright?

No.

Mark

[Mark Goodge]

On 27 Jun 2022 16:34:35 +0100 (BST), Theo <theom...@chiark.greenend.org.uk>
wrote:

>Ben <benada...@gmail.com> wrote:
>> On Monday, June 27, 2022 at 4:20:10 PM UTC+3, GB wrote:
>> > On 27/06/2022 13:10, Ben wrote:
>> > > I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>> > >
>> > > Could the model counter-sue the photographer for him using her image without her consent?
>> > The copyright belongs to whoever owns it. That starts with the
>> > photographer, not the subject.
>> >
>> > Besides that, models usually sign a 'model release form'.
>> >
>> > Often not the brightest, models, so might not realise she's done
>> > something wrong.
>>
>> Apparently the photograph in question (which I didn't see) was of the model in the street, and also with an added caption.
>>
>> https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/
>
>According to that link:
>
>Under copyright law, photos don’t qualify for protection if they lack
>“artistic merit” and the content of the images don’t “give the court any
>reason to believe that any ‘creative spark’ was required to produce it.”
>Photos that are purely descriptive, defined as merely capturing things “as
>they are,” are similarly not afforded copyright protection.
>
>
>which I think must be law in the USA or some part thereof. I'm not sure how
>the same applies in the UK.

It's not the law anywhere. That was the argument of the model defending the
claim. As the article later goes on to state, that argument did not succeed. Nor
would it succeed anywere. It's a complete misunderstanding of the nature of the
requirement for originality.

>I've heard of cases about reproductions of modern photos of out of copyright
>works - the Mona Lisa is out of copyright, so I am free to use somebody
>else's picture of the Mona Lisa which is a straight image of how it looks,
>ie lacking in any input from the photographer apart from successfully
>operating a camera.

It is the case that merely format-shifting an existing work (eg, digitising a
painting, or ripping a CD to mp3) does not create a new copyright in the
resulting file, because there is no originality in the resulting file. However,
if the format-shifted file is then subject to other wirk, such as audio
enhancement or vosual touching up, then that does create a new copyright because
there is now an element of originality in the resulting file.

>I suppose this is another twist on that idea: a CCTV photo of somebody would
>not be deemed to have any artistic content because they happened to be
>caught in frame, as whoever set up the CCTV put no effort into making that
>picture - unlike the case with the 'monkey selfie' where there was artistic
>input in setting up the camera just right to take a good picture.

Again, this isn't the case. CCTV is subject to copyright because the imagery is
original. The fact that the image was the outcome of an automated process
doesn't meake it not original. It's no different, in principle, to setting the
self-timer on a DSLR. So long as a human initiates the process which eventually
leads to the capture of an image, then that human (or their employer) owns
copyright in the image.

Mark

[John Levine]

According to Norman Wells <h...@unseen.ac.am>:

>> According to that link:
>>
>> Under copyright law, photos don’t qualify for protection if they lack
>> “artistic merit” and the content of the images don’t “give the court any
>> reason to believe that any ‘creative spark’ was required to produce it.”
>> Photos that are purely descriptive, defined as merely capturing things “as
>> they are,” are similarly not afforded copyright protection.
>
>The article isn't clear whether, as you've taken it, that is the
>established legal position as some court has decided previously, or
>whether it is just the argument she used in her particular case.

Keeping in mind that they're talking about US law, there are court precedents.

I believe the classic example is a photograph of a painting. Lacking
some exprssion beyond what's in the painting (clever angle or lighting
or such), the photo can be subject to copyright as a derivative work
if the painting is still in copyright but not as a new work. Needless
to say, museums hate this.

I was tangentially involved in a suit that involved photos of used
cars on car dealers' web sites. The photographers had detailed
instructions about exactly what and how to photograph, as was evident
when you looked at the photos. I don't recall the outcome but
whichever way it went the result was not immediately obvious from the
facts.

None of this is relevant to the photo in this case. As others have said,
the photographer owns the copyright and unless the photographer is utterly
incompetent, the model will have signed a release waiving or assigning
any publicity rights.

--
Regards,
John Levine, jo...@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

[Norman Wells]

On 27/06/2022 21:24, John Levine wrote:
> According to Norman Wells <h...@unseen.ac.am>:
>>> According to that link:
>>>
>>> Under copyright law, photos don’t qualify for protection if they lack
>>> “artistic merit” and the content of the images don’t “give the court any
>>> reason to believe that any ‘creative spark’ was required to produce it.”
>>> Photos that are purely descriptive, defined as merely capturing things “as
>>> they are,” are similarly not afforded copyright protection.
>>
>> The article isn't clear whether, as you've taken it, that is the
>> established legal position as some court has decided previously, or
>> whether it is just the argument she used in her particular case.
>
> Keeping in mind that they're talking about US law, there are court precedents.

I'd like to see links to them please.

> I believe the classic example is a photograph of a painting. Lacking
> some exprssion beyond what's in the painting (clever angle or lighting
> or such), the photo can be subject to copyright as a derivative work
> if the painting is still in copyright but not as a new work. Needless
> to say, museums hate this.

It's an argument of course. But where exactly has that been decided?

[John Levine]

According to Norman Wells <h...@unseen.ac.am>:

>> Keeping in mind that they're talking about US law, there are court precedents.
>
>I'd like to see links to them please.

This is an area where US and UK law are different. The US specifically
rejects "sweat of the brow" arguments and denies copyright to facts or
mechanical collections of facts without something creative. The key
case is Feist vs. Rural Telephone in which the US Supreme Court held
that the alphabetical lists of names and phone numbers in a phone book
are facts in the public domain. The US has nothing like database
rights.

Bridgeman Art Library v. Corel Corp. held that photographic copies of
public domain art are not subject to copyright. This decision was in
the Second Circuit, one level down from the Supreme Court, but it's
considered persuasive in other circuits.

See https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

A relevant UK case is Interlego AG v Tyco Industries Inc in which the
court held that Lego bricks were not copyrightable separately from
the design drawings from which they were made.

See https://en.wikipedia.org/wiki/Interlego_AG_v_Tyco_Industries_Inc

The Bridgeman case cites Interlego so there is some relevance to UK
law. See the Wikipedia articles for more.

[Roland Perry]

In message <XnsAEC3A55...@88.198.57.247>, at 16:15:25 on Mon, 27
Jun 2022, Pamela <uk...@permabulator.33mail.com> remarked:

>On 13:30 27 Jun 2022, GB said:
>> On 27/06/2022 13:10, Ben wrote:
>>>
>>>
>>> I was surprised to read the news of a model in the US being sued by
>>> a photographer for sharing her own photograph. It seems nonsensical.
>>> Can someone please lay out the legal nuance here for a layperson?
>>>
>>> Could the model counter-sue the photographer for him using her image
>>> without her consent?
>>
>> The copyright belongs to whoever owns it. That starts with the
>> photographer, not the subject.
>>
>> Besides that, models usually sign a 'model release form'.
>>
>> Often not the brightest, models, so might not realise she's done
>> something wrong.
>
>Perhaps this case is murkier than usual because the model is not
>identifiable in the picture.
>
>The picture is show in this link, although I'm not sure how the site
>was able to publish it bearing in mind the court case.

[Link redacted]

It's a publication specialising in the law, and I expect it's unlikely
they didn't weigh up all the consequences (if indeed there are any).

On another level, perhaps there's a journalistic exemption?
--
Roland Perry

[Roland Perry]

In message <t9d3lu$29g$1...@gal.iecc.com>, at 20:24:30 on Mon, 27 Jun 2022,
John Levine <jo...@taugh.com> remarked:

>According to Norman Wells <h...@unseen.ac.am>:
>>> According to that link:
>>>

>>> Under copyright law, photos don’t qualify for protection if they lack
>>> “artistic merit� and the content of the images
>>>don’t “give the court any
>>> reason to believe that any ‘creative spark’ was
>>>required to produce it.�
>>> Photos that are purely descriptive, defined as merely capturing things “as
>>> they are,� are similarly not afforded copyright protection.

>>
>>The article isn't clear whether, as you've taken it, that is the
>>established legal position as some court has decided previously, or
>>whether it is just the argument she used in her particular case.
>
>Keeping in mind that they're talking about US law, there are court precedents.
>
>I believe the classic example is a photograph of a painting. Lacking
>some exprssion beyond what's in the painting (clever angle or lighting
>or such), the photo can be subject to copyright as a derivative work
>if the painting is still in copyright but not as a new work. Needless
>to say, museums hate this.
>
>I was tangentially involved in a suit that involved photos of used
>cars on car dealers' web sites. The photographers had detailed
>instructions about exactly what and how to photograph, as was evident
>when you looked at the photos. I don't recall the outcome but
>whichever way it went the result was not immediately obvious from the
>facts.
>
>None of this is relevant to the photo in this case. As others have said,
>the photographer owns the copyright and unless the photographer is utterly
>incompetent, the model will have signed a release waiving or assigning
>any publicity rights.

Having now read an article about this incident, it appears to be a
Paparazzi shot (which she later put on her short duration Instagram
feed). I therefore think "model releases" are a red herring and it was
just a co-incidence that the occupation of this celebrity happened to be
modelling.
--
Roland Perry

[Max Demian]

On 27/06/2022 20:55, Mark Goodge wrote:
> On Mon, 27 Jun 2022 18:03:14 +0100, Max Demian <max_d...@bigfoot.com> wrote:
>> On 27/06/2022 13:21, Fredxx wrote:
>>> On 27/06/2022 13:10, Ben wrote:

>>>> I was surprised to read the news of a model in the US being sued by a
>>>> photographer for sharing her own photograph. It seems nonsensical. Can
>>>> someone please lay out the legal nuance here for a layperson?
>>>>
>>>> Could the model counter-sue the photographer for him using her image
>>>> without her consent?
>>>
>>> It is simply how copyright works. The photographer owns the copyright.
>>> Whether it was taken by permission is a secondary aspect.
>>
>> Is that because photographers "paint with light" (actually just point
>> the camera and press the button)?
>
> No. It's because a photograph is the creation of the photographer.

FSVO "create".

>> Was that law made when you had to be an artist to create a likeness?
>
> No. Copyright law predates photography. Photographs were recognised as being
> subject to copyright as soon as they were invented.

Photography involved a lot more work when it was invented. Even so, it
was more a craft than an art.

Perhaps the law should be changed.

--
Max Demian

[Mike Scott]

On 27/06/2022 21:02, Mark Goodge wrote:
....

>
> Again, this isn't the case. CCTV is subject to copyright because the imagery is
> original. The fact that the image was the outcome of an automated process
> doesn't meake it not original. It's no different, in principle, to setting the
> self-timer on a DSLR. So long as a human initiates the process which eventually
> leads to the capture of an image, then that human (or their employer) owns
> copyright in the image.
>
> Mark

Which led me to wonder some years ago... I'd set up a group of people,
with a space for myself to nip back into; putting the camera on a tripod
and framing the shot and arming the self-timer. Which didn't go off.
Someone not in the group volunteered to press the shutter release. As a
technicality, whose copyright was it? I'd done all the work, and his
action was totally equivalent to using the self-timer, but I still
ponder on it.

--
Mike Scott
Harlow, England

[Norman Wells]

On 28/06/2022 03:00, John Levine wrote:
> According to Norman Wells <h...@unseen.ac.am>:
>>> Keeping in mind that they're talking about US law, there are court precedents.
>>
>> I'd like to see links to them please.
>
> This is an area where US and UK law are different. The US specifically
> rejects "sweat of the brow" arguments and denies copyright to facts or
> mechanical collections of facts without something creative. The key
> case is Feist vs. Rural Telephone in which the US Supreme Court held
> that the alphabetical lists of names and phone numbers in a phone book
> are facts in the public domain. The US has nothing like database
> rights.
>
> Bridgeman Art Library v. Corel Corp. held that photographic copies of
> public domain art are not subject to copyright. This decision was in
> the Second Circuit, one level down from the Supreme Court, but it's
> considered persuasive in other circuits.
>
> See https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.
>
> A relevant UK case is Interlego AG v Tyco Industries Inc in which the
> court held that Lego bricks were not copyrightable separately from
> the design drawings from which they were made.
>
> See https://en.wikipedia.org/wiki/Interlego_AG_v_Tyco_Industries_Inc
>
> The Bridgeman case cites Interlego so there is some relevance to UK
> law. See the Wikipedia articles for more.

Being a US case, it isn't of course binding on UK courts who may come to
different conclusions.

We have no established authority in the UK as yet, and there is no
certainty that the US Bridgeman case will be followed. For what it's
worth, I hope it will, but the current UK position is well set out in
the 'Relevance to UK law' section of your reference above:

https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.#Relevance_to_UK_law

[Norman Wells]

On the other hand, if a photographer creates an image that others want
to copy rather than create the same or similar themselves, why should
they just be able to take his work for free?

[Pamela]

Out of (legal) interest, why did you choose to redact my link in your
reply? Especially as you say publishing it is unlikely to have
consequences.

[Tim Jackson]

On Mon, 27 Jun 2022 20:55:42 +0100, Mark Goodge wrote...

> Max Demian wrote...

> >What about that monkey who took a "selfie" of himself? Can a monkey own
> >a copyright?
>
> No.

And a US court has so held. To that extent, I'm pretty sure an English
court would have agreed. Monkeys don't qualify as 'authors' for
copyright purposes.

What doesn't seem to have been considered is whether the human
photographer who used skill and judgment to set up the scene, the
lighting etc; who adjusted the camera; who enticed the monkey to play
with it; and who then selected the one good shot out of all the crap,
had done enough to qualify for copyright. He was a professional
photographer, and there's more to professional photography than just
'point and shoot'.

The court just said (correctly) that the monkey didn't qualify. A
number of commentators have extrapolated from that to say no copyright
exists. I'm not sure that follows, though to be fair the photographer
didn't help himself by making ill-advised, off-the-cuff comments that
the monkey did everything.

The case was heard in the USA, and I can't really speak for the position
in US law. But I suspect that the photograper might have got a better
result, and certainly more cheaply, had the case been heard by a
specialist English judge at the Intellectual Property Enterprise Court.
There's even a small claims track, under which quite a few photographers
have been successful without legal representation.

--
Tim Jackson
ne...@timjackson.invalid
(Change '.invalid' to '.plus.com' to reply direct)

[Jon Ribbens]

On 2022-06-28, Tim Jackson <ne...@timjackson.invalid> wrote:
> On Mon, 27 Jun 2022 20:55:42 +0100, Mark Goodge wrote...
>> Max Demian wrote...
>> >What about that monkey who took a "selfie" of himself? Can a monkey own
>> >a copyright?
>>
>> No.
>
> And a US court has so held. To that extent, I'm pretty sure an English
> court would have agreed. Monkeys don't qualify as 'authors' for
> copyright purposes.

I refer the honorable gentleman to the celebrated case of Asimov v Gold
https://en-academic.com/dic.nsf/enwiki/3933678

[Norman Wells]

On 28/06/2022 17:11, Tim Jackson wrote:
> On Mon, 27 Jun 2022 20:55:42 +0100, Mark Goodge wrote...
>
>> Max Demian wrote...
>>> What about that monkey who took a "selfie" of himself? Can a monkey own
>>> a copyright?
>>
>> No.
>
> And a US court has so held. To that extent, I'm pretty sure an English
> court would have agreed. Monkeys don't qualify as 'authors' for
> copyright purposes.
>
> What doesn't seem to have been considered is whether the human
> photographer who used skill and judgment to set up the scene, the
> lighting etc; who adjusted the camera; who enticed the monkey to play
> with it; and who then selected the one good shot out of all the crap,
> had done enough to qualify for copyright. He was a professional
> photographer, and there's more to professional photography than just
> 'point and shoot'.
>
> The court just said (correctly) that the monkey didn't qualify. A
> number of commentators have extrapolated from that to say no copyright
> exists. I'm not sure that follows, though to be fair the photographer
> didn't help himself by making ill-advised, off-the-cuff comments that
> the monkey did everything.

Had he not, though, the photo would be pretty unremarkable. Its appeal
lies wholly, I suggest, in its being a selfie.

And if the result is in demand by others to use, why should those others
be entitled to use it for free to their own advantage?

[Mark Goodge]

On Tue, 28 Jun 2022 08:43:11 +0100, Mike Scott
<usen...@scottsonline.org.uk.invalid> wrote:

>On 27/06/2022 21:02, Mark Goodge wrote:
>....
>>
>> Again, this isn't the case. CCTV is subject to copyright because the imagery is
>> original. The fact that the image was the outcome of an automated process
>> doesn't meake it not original. It's no different, in principle, to setting the
>> self-timer on a DSLR. So long as a human initiates the process which eventually
>> leads to the capture of an image, then that human (or their employer) owns
>> copyright in the image.
>

>Which led me to wonder some years ago... I'd set up a group of people,
>with a space for myself to nip back into; putting the camera on a tripod
>and framing the shot and arming the self-timer. Which didn't go off.
>Someone not in the group volunteered to press the shutter release. As a
>technicality, whose copyright was it? I'd done all the work, and his
>action was totally equivalent to using the self-timer, but I still
>ponder on it.

That would be an interesting one for a court to have to rule on, if it
ever came to it. A similar scenario is where someone volunteers to
take a photo of you with your own camera (or, these days, phone) so
that you get a better shot than would be possible with a selfie and
with less effort than a self-timer. It's quite common for
holidaymakers and tourists to do that for each other as complete
strangers, for example.

Although it's not explicitly covered in legislation, and I'm not aware
of any case law, I think that the courts would probably interpret such
a situation as either an implied contract of service or an implied
transfer of rights, so that the camera owner owns the copyright. But
it would take case law to be certain.

Mark

[Tim Jackson]

On Tue, 28 Jun 2022 09:02:17 +0100, Norman Wells wrote...

>
> On 28/06/2022 03:00, John Levine wrote:
> > According to Norman Wells <h...@unseen.ac.am>:
> >>> Keeping in mind that they're talking about US law, there are court precedents.
> >>
> >> I'd like to see links to them please.

.....

> > Bridgeman Art Library v. Corel Corp. held that photographic copies of
> > public domain art are not subject to copyright. This decision was in
> > the Second Circuit, one level down from the Supreme Court, but it's
> > considered persuasive in other circuits.
> >
> > See https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

.....

> > The Bridgeman case cites Interlego so there is some relevance to UK
> > law. See the Wikipedia articles for more.
>
> Being a US case, it isn't of course binding on UK courts who may come to
> different conclusions.
>
> We have no established authority in the UK as yet, and there is no
> certainty that the US Bridgeman case will be followed. For what it's
> worth, I hope it will, but the current UK position is well set out in
> the 'Relevance to UK law' section of your reference above:
>
> https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.#Relevance_to_UK_law

I think Wikipedia needs updating. English law has moved on, in the
direction you hope, as a result of European case law. Please see my
separate response to Mark Goodge.

[Tim Jackson]

On Mon, 27 Jun 2022 21:02:10 +0100, Mark Goodge wrote...

>
> On 27 Jun 2022 16:34:35 +0100 (BST), Theo <theom...@chiark.greenend.org.uk>
> wrote:
>
>
> >I've heard of cases about reproductions of modern photos of out of copyright
> >works - the Mona Lisa is out of copyright, so I am free to use somebody
> >else's picture of the Mona Lisa which is a straight image of how it looks,
> >ie lacking in any input from the photographer apart from successfully
> >operating a camera.
>
> It is the case that merely format-shifting an existing work (eg, digitising a
> painting, or ripping a CD to mp3) does not create a new copyright in the
> resulting file, because there is no originality in the resulting file. However,
> if the format-shifted file is then subject to other wirk, such as audio
> enhancement or vosual touching up, then that does create a new copyright because
> there is now an element of originality in the resulting file.

At one time, the UK courts used to hold that any photo of a painting was
'original' and had its own copyright, separate from any copyright still
subsisting in the painting. This was by analogy with some very old case
law, Walter v Lane, about copyright in verbatim transcripts of
speeches. However, that approach has changed as a result of pre-Brexit
European decisions.

See https://tinyurl.com/ykfww9uv

which leads to
https://www.blakemorgan.co.uk/photographing-the-public-domain-eu-to-
remove-copyright-protection-from-public-domain-art-images/

<Quote>
Copyright in Art Images

Traditionally in UK law there are two copyrights in a photograph/
digital image of a painting or sculpture - the photographic
copyright in the image (typically owned by the photographer as
"author") and the copyright in the original work of art owned
by the artist or their estate (assuming the artist is alive or
died within 70 years - the copyright term is life plus 70 years).

This traditional view has been challenged in recent years by
arguments that a faithful reproduction of an artistic work is
not "original" enough to warrant copyright protection. The
current position following a raft of recent European case law
is that originality requires a work to be the author's own
intellectual creation. In the context of photographs one case
talks of copyright in a photograph requiring free and creative
choices and the author's personal touch if it is to be original
in the sense of being the author's own intellectual creation.
It can certainly be argued that a photograph of a work of art
which is intended to faithfully reproduce an underlying artistic
work lacks the free and creative choices now required by
copyright law albeit that a lot of skill and labour is still
required - it is difficult to see how such an image can be said
to bear the photographer's "personal touch." Having said that
such an approach goes against long standing UK authorities but
the weight of European case law is now strongly against such
authorities.

The UK Intellectual Property Office in 2014 also came to a
similar view in its Copyright Notice: digital images,
photographs and the internet Copyright Notice Number:
1/2014 (Updated: November 2015) which noted "there will
generally be minimal scope for a creator to exercise free
and creative choices if their aim is simply to make a
faithful reproduction of an existing work."

<End quote>

Note that this is given as background to the EU's "Copyright in the
Digital Single Market" Directive, which the UK does not intend to
implement post-Brexit. However, I think the UK courts are likely to
continue to follow the pre-Brexit European case law unless Parliament
says otherwise.

[Jon Ribbens]

On 2022-06-28, Mark Goodge <use...@listmail.good-stuff.co.uk> wrote:
> Although it's not explicitly covered in legislation, and I'm not aware
> of any case law, I think that the courts would probably interpret such
> a situation as either an implied contract of service or an implied
> transfer of rights, so that the camera owner owns the copyright. But
> it would take case law to be certain.

Indeed - I wouldn't want to put money on you being right there.
Suppose some scenarios:

* it turns out there's a celebrity doing something outrageous in
the background of the photograph, which therefore becomes worth
a lot of money to tabloid newspapers; the photographer sues the
holidaymaker

* as above but the photographer notices this before handing back
the phone, and uses it to forward the photo to his own email;
the holidymaker sues the photographer

* as above but the photographer notices the celebrity before
pressing the shutter and aims at them deliberately

[Norman Wells]

You can't imply a transfer of rights, because that has be in writing.

See Section 90(3) of the CDPA 1988.

It's probably covered by the law on agency.

[Fredxx]

On 28/06/2022 21:25, Mark Goodge wrote:

There might be some confusion here. Copyright ownership and ownership of
rights are two different things.

In reality rights are more important, except perhaps when copyright expires.

I might suggest where a third party takes a photo they own copyright,
but when asking a stranger in such circumstances to take the photo, as
you say there is an implied acceptance to hand over the rights.

However it isn't clear, as suppose I do some paid work for you, unless
the contract is explicit in handing over my IP, I own the rights to any
work I create, even if you thought otherwise or implied you would use my
creation.

[Norman Wells]

On 28/06/2022 21:36, Tim Jackson wrote:
> On Tue, 28 Jun 2022 09:02:17 +0100, Norman Wells wrote...
>>
>> On 28/06/2022 03:00, John Levine wrote:
>>> According to Norman Wells <h...@unseen.ac.am>:
>>>>> Keeping in mind that they're talking about US law, there are court precedents.
>>>>
>>>> I'd like to see links to them please.
> .....
>
>>> Bridgeman Art Library v. Corel Corp. held that photographic copies of
>>> public domain art are not subject to copyright. This decision was in
>>> the Second Circuit, one level down from the Supreme Court, but it's
>>> considered persuasive in other circuits.
>>>
>>> See https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.
> .....
>
>>> The Bridgeman case cites Interlego so there is some relevance to UK
>>> law. See the Wikipedia articles for more.
>>
>> Being a US case, it isn't of course binding on UK courts who may come to
>> different conclusions.
>>
>> We have no established authority in the UK as yet, and there is no
>> certainty that the US Bridgeman case will be followed. For what it's
>> worth, I hope it will, but the current UK position is well set out in
>> the 'Relevance to UK law' section of your reference above:
>>
>> https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.#Relevance_to_UK_law
>
> I think Wikipedia needs updating.

The whole idea of Wikipedia is that it can be edited by anyone. And the
onus to do so is on anyone who thinks it needs updating.

> English law has moved on, in the
> direction you hope, as a result of European case law. Please see my
> separate response to Mark Goodge.

It may seem to be moving, but there's no evidence that it has actually
moved at all.

[Norman Wells]

On 28/06/2022 21:36, Tim Jackson wrote:

So, in summary, the law in the UK is not established either by Statute
or case law, and it's not at all clear which direction it will follow in
future.

Fair enough.

[Norman Wells]

Since copyright *is* the right that is owned, they're exactly the same.

> In reality rights are more important, except perhaps when copyright
> expires.
>
> I might suggest where a third party takes a photo they own copyright,
> but when asking a stranger in such circumstances to take the photo, as
> you say there is an implied acceptance to hand over the rights.

The photographer is not necessarily the person who actually presses the
shutter. He may be just an agent of the photographer, acting on his
instruction and command.

> However it isn't clear, as suppose I do some paid work for you, unless
> the contract is explicit in handing over my IP, I own the rights to any
> work I create, even if you thought otherwise or implied you would use my
> creation.

You *may* own the rights, depending on the circumstances and the actual
arrangement, but if I pay you to create a work for me, I have an implied
licence to use that work for the purposes I commissioned it.

[Mark Goodge]

On Tue, 28 Jun 2022 21:36:38 +0100, Tim Jackson
<ne...@timjackson.invalid> wrote:

>On Mon, 27 Jun 2022 21:02:10 +0100, Mark Goodge wrote...
>>
>> On 27 Jun 2022 16:34:35 +0100 (BST), Theo <theom...@chiark.greenend.org.uk>
>> wrote:
>>
>>
>> >I've heard of cases about reproductions of modern photos of out of copyright
>> >works - the Mona Lisa is out of copyright, so I am free to use somebody
>> >else's picture of the Mona Lisa which is a straight image of how it looks,
>> >ie lacking in any input from the photographer apart from successfully
>> >operating a camera.
>>
>> It is the case that merely format-shifting an existing work (eg, digitising a
>> painting, or ripping a CD to mp3) does not create a new copyright in the
>> resulting file, because there is no originality in the resulting file. However,
>> if the format-shifted file is then subject to other wirk, such as audio
>> enhancement or vosual touching up, then that does create a new copyright because
>> there is now an element of originality in the resulting file.
>
>At one time, the UK courts used to hold that any photo of a painting was
>'original' and had its own copyright, separate from any copyright still
>subsisting in the painting. This was by analogy with some very old case
>law, Walter v Lane, about copyright in verbatim transcripts of
>speeches.

Yes, and that analogy was, once upon a time, valid, in that making a
photo required a considerable amount of skill just as making a
verbatim transcript of a speech requires a considerable amount of
skill. But digital technology has almost completely eliminated the
need for the technical skills required to make an accurate copy of the
original artwork.

Interestingly, I've recently had reason to use MS Office's built-in
transcription system to make a transcript of audio recordings. The
system is, for the most part, remarkably accurate. It's not quite
there yet, and I did need to go over it and correct some errors in the
automated transcript. But I wonder if Walter v Lane will itself
eventually be superseded when anyone can just press a button (or click
a mouse) to get an accurate verbatim transcript of a speech with no
human involvement.

>Note that this is given as background to the EU's "Copyright in the
>Digital Single Market" Directive, which the UK does not intend to
>implement post-Brexit. However, I think the UK courts are likely to
>continue to follow the pre-Brexit European case law unless Parliament
>says otherwise.

I think it's now sufficiently established in both the US and the EU
that format-shifting a visual work of art (eg, photographing a
painting) is equivalent to format-shifting an audio work of art (eg,
ripping a CD to mp3), and hence does not create a new copyright in the
output format, that it's unlikely that UK law, even if/when it
diverges from EU law, will take a different approach. Not least
because the genie is now out of the bottle; there are many copies of
digitised public domain paintings in circulation that have been made,
and allowed to circulate unchallenged, that a change in the law to
render them all an infringement of copyright would potentially clog up
the courts for years to come.

Mark

[Tim Jackson]

On Tue, 28 Jun 2022 21:35:41 +0100, Norman Wells wrote...

> You can't imply a transfer of rights, because that has be in writing.
>
> See Section 90(3) of the CDPA 1988.

That's only true of the legal ownership. A court is able to make a
different decision on equitable ownership. In that case, the legal
rights would be held on trust for the equitable owner, and the legal
owner wouldn't be free to do as they like. Compare the situation where
shares are registered in the name of a stockbroker's nominee account,
but held on trust for the client.

For copyright, it does depend very much on the facts of the case. What
is necessary to give effect to the intention of the parties?

For example, in Robin Ray v Classic FM, the court said that
circumstances may exist when equitable ownership is established. But
that wasn't so in the case at hand. The radio station was held to have
only a licence for the uses originally envisioned for Ray's catalogue of
musical works, not for the lucrative new uses found susequently.

But on the other hand, in Griggs (Doc Martens) v Evans, the court held
that Griggs had full equitable ownership of the copyright, as only this
would give effect to the parties' original intentions. Similarly in
Atelier Eighty Two v Kilnworx.

[Tim Jackson]

On Tue, 28 Jun 2022 23:28:08 +0100, Norman Wells wrote...

> So, in summary, the law in the UK is not established either by Statute
> or case law, and it's not at all clear which direction it will follow in
> future.
>
> Fair enough.

Which is not what has just been said, but that is Norman's view.

Fair enough.

[Roland Perry]

In message <XnsAEC4772...@88.198.57.247>, at 11:42:40 on Tue, 28

Abundance of caution because I might be accused of republishing the
photo, and I'm not a US-based legal newsletter with loads of funds
and lawyers at my elbow.
--
Roland Perry

[notya...@gmail.com]

On Monday, 27 June 2022 at 13:10:55 UTC+1, Ben wrote:
> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>
> Could the model counter-sue the photographer for him using her image without her consent?

We had a t****r try this. A photographer was invited to a conference.

The clear understanding was that whilst he owned the copyright, and could sell the photos to media organisations etc. we would would have the right to reproduce any images taken for our own purposes [without charge]. Obviously this condition should have been put in writing, but I did not handle the conference.

I then authorised the printing of half a million leaflets with one of the photos taken on it and the image also went on a web sight.

The sneaky bar steward then tried to claim royalties for both using some contingent fee solicitor. As with a lot of these "flying a kite" cases the hope was that we would pay something rather than get dragged into litigation, however he annoyed us so much we had our solicitor write to him giving him advice on sex and travel and issue if he dared.

He didn't.

[Martin Brown]

On 27/06/2022 16:34, Theo wrote:

> I've heard of cases about reproductions of modern photos of out of copyright
> works - the Mona Lisa is out of copyright, so I am free to use somebody
> else's picture of the Mona Lisa which is a straight image of how it looks,
> ie lacking in any input from the photographer apart from successfully
> operating a camera.

That seems to me extremely questionable.

There is an incredible amount of careful lighting setup, positioning of
camera and lights to get an apparently perfect rendition of a copy of a
real physical artwork without any defects caused by reflections of
background objects in the varnish. Taking archival quality images is
highly skilled technical work and professional photographers fully
deserve their copyright on any images that they produce for that purpose.

Or in the case of the Mona Lisa behind about 20" of bullet proof glass.
I found the thing very disappointing when I finally got to see it.
Pretty much dominated by the scrummage of tourists around it and the
very thick layers of glass in front of it. Like looking into a cave.

I have seen many other Leonardo works with much less fuss.

--
Regards,
Martin Brown

[Roland Perry]

In message <t9u9nu$619$1...@gioia.aioe.org>, at 09:52:14 on Mon, 4 Jul
2022, Martin Brown <'''newspam'''@nonad.co.uk> remarked:

>Or in the case of the Mona Lisa behind about 20" of bullet proof glass.
>I found the thing very disappointing when I finally got to see it.
>Pretty much dominated by the scrummage of tourists around it and the
>very thick layers of glass in front of it. Like looking into a cave.

Tourist trap! And while when I went to see it there wasn't quite such an
obvious bulletproof glass, it was much smaller than I was expecting.
--
Roland Perry

[Andy Burns]

Martin Brown wrote:

> Mona Lisa behind about 20" of bullet proof glass.

How does a custard pie make it through 20" of bulletproof glass?

<https://i.dailymail.co.uk/1s/2022/05/30/10/58452119-10867395-image-m-1_1653902325145.jpg>

[Jon Ribbens]

It doesn't. That's a picture of bulletproof glass covered in custard pie.
You can tell if you look closely, or if you go to the article that image
is from, there's a video of museum staff just wiping it off with a cloth,
which obviously they would not do if it was on the painting itself.

https://www.dailymail.co.uk/news/article-10867395/Mona-Lisa-ATTACKED-custard-pie-man-disguised-elderly-woman-wheelchair.html

[Norman Wells]

On 04/07/2022 09:52, Martin Brown wrote:
> On 27/06/2022 16:34, Theo wrote:
>
>> I've heard of cases about reproductions of modern photos of out of
>> copyright
>> works - the Mona Lisa is out of copyright, so I am free to use somebody
>> else's picture of the Mona Lisa which is a straight image of how it
>> looks,
>> ie lacking in any input from the photographer apart from successfully
>> operating a camera.
>
> That seems to me extremely questionable.
>
> There is an incredible amount of careful lighting setup, positioning of
> camera and lights to get an apparently perfect rendition of a copy of a
> real physical artwork without any defects caused by reflections of
> background objects in the varnish. Taking archival quality images is
> highly skilled technical work and professional photographers fully
> deserve their copyright on any images that they produce for that purpose.

But it's all technical stuff of a purely mechanical nature. And it's a
matter of principle whether copyright protection should apply to such
processes, even if skilled, when it was designed to apply only to the
creative activities of man, like original art, literature and music.

It would actually surprise me if photographs rather than digital scans
were used any more anyway, which reduces even further any skill and
minimal creativity required.

> Or in the case of the Mona Lisa behind about 20" of bullet proof glass.
> I found the thing very disappointing when I finally got to see it.
> Pretty much dominated by the scrummage of tourists around it and the
> very thick layers of glass in front of it. Like looking into a cave.
>
> I have seen many other Leonardo works with much less fuss.

If they were that great, I'd have expected everyone to want a copy on
their wall. But they don't, do they?

Does art serve any purpose other than as wall coverings?

[Martin Brown]

On 27/06/2022 15:10, Ben wrote:
> On Monday, June 27, 2022 at 4:20:10 PM UTC+3, GB wrote:

>> On 27/06/2022 13:10, Ben wrote:
>>> I was surprised to read the news of a model in the US being sued by a photographer for sharing her own photograph. It seems nonsensical. Can someone please lay out the legal nuance here for a layperson?
>>>
>>> Could the model counter-sue the photographer for him using her image without her consent?

>> The copyright belongs to whoever owns it. That starts with the
>> photographer, not the subject.
>>
>> Besides that, models usually sign a 'model release form'.
>>
>> Often not the brightest, models, so might not realise she's done
>> something wrong.

Usually it is not in anyone's interest to sue over web exposure like
this since the low resolution teaser image on the web results in more
sales of the master high resolution image from whichever agency the
photographer uses. He obviously didn't like what she said about him...
>
> Apparently the photograph in question (which I didn't see) was of the model in the street, and also with an added caption.
>
> https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/

Under those circumstances I suspect it could only really happen in
America where trivial lawsuits are very much in vogue.

I reckon it constitutes fair use if she used it in a post intended to
make a point in an article about paparazzi following her around.

In her position I might be looking very carefully at the pavement for
brass studs since if he was stood on private land when he took it then
he would lose. Taking a photograph without permission stood on private
land without the landowners permission can get you into serious trouble
if the image turns out to have a real commercial value.

Landowner is entitled to a cut of the action...

--
Regards,
Martin Brown

[John Levine]

According to Norman Wells <h...@unseen.ac.am>:

>On 04/07/2022 09:52, Martin Brown wrote:
>> On 27/06/2022 16:34, Theo wrote:
>>> works - the Mona Lisa is out of copyright, so I am free to use somebody
>>> else's picture of the Mona Lisa which is a straight image of how it looks,
>>

>> There is an incredible amount of careful lighting setup, positioning of

>> camera and lights to get an apparently perfect rendition ...

This is the "sweat of the brow" theory. The US firmly rejects it, no amount of
work is a substitute for creativity. In the UK it seems to be less clear.

See my note a few dozen messages back with some citations.

--
Regards,
John Levine, jo...@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

[Adam Funk]

What about the subject?

[Norman Wells]

On 05/07/2022 09:23, Martin Brown wrote:
> On 27/06/2022 15:10, Ben wrote:

>> Apparently the photograph in question (which I didn't see) was of the
>> model in the street, and also with an added caption.
>>
>> https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/
>
> Under those circumstances I suspect it could only really happen in
> America where trivial lawsuits are very much in vogue.
>
> I reckon it constitutes fair use if she used it in a post intended to
> make a point in an article about paparazzi following her around.

'Fair use' here in the UK does not mean 'anything I think is OK'. After
all, many people think it perfectly OK to download any copyright
material they can get their hands on for free.

On the contrary, the 'fair use' provisions in the UK are those specified
in Chapter III of the Copyright Designs and Patents Act 1988, and no
others.

And the situation we are considering here does not fall within any of them.

[Mark Goodge]

On Thu, 7 Jul 2022 18:32:20 +0100, Norman Wells <h...@unseen.ac.am>
wrote:

There is no such thing as "Fair use" in the UK. There is a thing
called "Fair dealing", but, despite having the same first word, it's
not a directly equivalent concept.

>And the situation we are considering here does not fall within any of them.

The situation we are considering took place in the US, which does have
a "Fair use" principle in copyright. And, although I'm less familiar
with US copyright law than I am with copyright law in the UK, I would
be inclined to agree that there probably would be a fair use defence
in this case.

Mark

[John Levine]

According to Martin Brown <'''newspam'''@nonad.co.uk>:

>> Apparently the photograph in question (which I didn't see) was of the model in the street, and also with an added caption.
>>
>> https://www.hollywoodreporter.com/business/business-news/emily-ratajkowski-lawsuit-over-paparazzi-photo-settles-1235130004/
>

>I reckon it constitutes fair use if she used it in a post intended to
>make a point in an article about paparazzi following her around.

US law on fair use is unlike any other copyright law I know, and is
deliberately ambiguous. The 1976 update to the law tells judges when
they evaluate a fair use defence, to consider:

(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.

There was case law about fair use starting in the 1840s but 1976 was
the first time it appeared in statutes. There is a mountain of case
law, much involving commercial use of photography. The word
"transformative" often appears in analyses of the first factor, if the
new use is different in kind from the original.

The judge in this case made comments that suggest that if the case
hadn't been settled, he'd have found the use sufficiently
different to be fair use.

Again, this is US law, your mileage will definitely differ.