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The Doc gets caught

Copyright Violator

Copyright Violator

Your host has been caught doing something he shouldn’t: using a copyrighted photo without permission. The photo is that iconic image of Orly Taitz as dentist, photographed by John Gilhooley, that was published on the OC Weekly web site. John makes his living as a photographer and I ripped him off.

This web site contains around 218 images from flying monkeys to federal judges, generally displayed at thumbnail size. Except for the photo attached to this article, I couldn’t tell you the copyright status of any of them. Perhaps at thumbnail size, the image comes under fair use. In any case, most of the images I use have been copied and recopied so many times, that it’s nigh impossible to find out who owns the rights to them or who to credit. However, in this case, the image was not used at a thumbnail size, and I could have found out the attribution.

Mr. Gilhooley has graciously allowed me to use the now properly accredited photo, which appears in my article Tatiz v. Kornhaber.

21 Responses to The Doc gets caught

  1. avatar
    milspec November 7, 2009 at 7:17 pm #

    Your a good man Dr. C

  2. avatar
    nBc November 8, 2009 at 1:27 am #

    Mr Gilhooley similarly pointed out to me that I was using his intellectual property and graciously allowed me to use the picture with proper attribution.

    Dr C points out a real issue, the use and reuse of copyrighted material, whether under fair use or not still is a pretty muddled area.

  3. avatar
    aarrgghh November 8, 2009 at 2:50 am #

    the basic principles are nonetheless very straightforward:

    1) if you didn’t create it, you need the creator’s permission to use it

    2) if you can prove your usage falls within the fair use exceptions, you don’t need to compensate the creator

    remember that the burden of proof falls on the person appropriating the work

  4. avatar
    Dr. Conspiracy November 8, 2009 at 7:56 am #

    What I get hung up over are derivative works.

  5. avatar
    aarrgghh November 8, 2009 at 8:49 am #

    that’s part of the purposefully muddy area. i say purposefully because the courts want to avoid stifling creativity. but if a judge decides that your use of another’s work is derivative, then you’ve lost. that means the court thinks your use was not sufficiently transformative to distinguish you from a lazy rip-off artist. a work becomes transformative when it brings enough new meta to the table (says something different). derivative vs transformative becomes an issue when dealing with usage that isn’t clearly part of news reporting, teaching aids or research publications. it becomes an issue when we’re talking about artists using other artists’ art.

    my most recent post “if i only had a brain” is a timely example of derivative vs transformative. does my appropriation of the song and the photo add enough fresh spin on it to fall under fair use? or am i just ripping off mgm?

  6. avatar
    nbc November 8, 2009 at 2:41 pm #

    I understand the basic principles, it’s the interpretation of what is fair use that makes the issue so muddled. Yes, if you know who created the work then getting permission should be relatively straightforward, and it’s either approved or denied.
    It’s a very muddled area.

  7. avatar
    Det. Cliff Hanger November 8, 2009 at 4:07 pm #

    I was watching the “The Godfather” today and there is a scene with a studio executive who looks strikingly like Kirk Kerkorian. Kerkorian bought MGM Studios and began selling off assets. One of those assets was Dorothy’s ruby red shoes from the “Wizard of Oz.”

    Kerkorian built the International Hotel and was responsible for bringing Elvis to Las Vegas to perform there. The fictional studio in the movie was called the International Film Studio.

    And like Barack, Kerkorian claims to be a native-born citizen of the US, yet neither can produce a valid birth certificate. Hmmmmmmm.

  8. avatar
    nBc November 8, 2009 at 4:16 pm #

    And like Barack, Kerkorian claims to be a native-born citizen of the US, yet neither can produce a valid birth certificate. Hmmmmmmm.

    Why are you promulgating a known lie?

  9. avatar
    aarrgghh November 8, 2009 at 5:01 pm #

    expect it to stay muddled, but ownership is really not as big an issue as usage. finding out from whom you may need to get permission is child’s play (often enough the creator will find you) compared to getting the courts to built a fence around fair use. they won’t.

    the courts want to give the public some leeway in using art and would rather not be dragged into arguments over what art is because, in black-and-white terms, there is an implicit judgment made when determining whether someone’s usage is transformative (“that’s art!”) or derivative (“that’s theft!”). judges are satisfied to deal with the issue case-by-case and what usually settles it isn’t running a finger down a list but hearing your own specific justification for your usage in that particular instance.

  10. avatar
    aarrgghh November 8, 2009 at 5:04 pm #

    i’ll see your kirk kerkorian … and raise you kevin bacon!

  11. avatar
    Det. Cliff Hanger November 8, 2009 at 5:13 pm #

    All in.

    Kevin Bacon is married to a woman named Kyra and one of Kerkorian’s daughters is named Kira.

    Natural-born citzens father boys. Look at Barack … daughters.

    Jackpot!

  12. avatar
    aarrgghh November 8, 2009 at 6:13 pm #

    um, i believe you’re playing my hand.

  13. avatar
    Expelliarmus November 8, 2009 at 6:14 pm #

    Sometimes its better to take a pragmatic rather than legalistic view — you will save yourself a lot of grief.

    That is: 1) If you know who created the material such as artwork or image and how to contact them: ASK PERMISSION. You might include an explanation of the type/purpose of your web site and also provide ATTRIBUTION. Very often, the creator will be happy to provide such permission without asking for any sort of fees.

    2) If you don’t know who created the source material — then consider whether it is the TYPE of thing that is sufficiently unique as to be readily identifiable as a creative work. For example, a photograph of a common object or place is far less likely to give rise to copyright concerns. (If I go to Paris and take a picture or make a sketch of the Eiffel Tower — it is my creation — but it is probably not distinguishable from millions of other pictures and sketches that already exist — so you would probably be safe to put a generic Eiffel-Tower picture on your site, even if you don’t know who made it.)

    3) You are far more likely to get in trouble if you are SELLING an image or posting on a commercial site than mere inadvertant use. 99 times out of a 100, if you tread on someones copyright, that person will be happy if you simply remove the material from your site — they are unlikely to sue. Established artists and photographers might be happy to permit use for a very small one-time fee. Amateurs or newer artists & photographers might be happy with attribution and a link to their web sites, since they stand to benefit from greater exposure of their works.

    Bottom line: it was a mistake for you to post the iconic and clearly recognizable image of Orly without asking permission. You probably would not have run into the same problems if you had used a snapshot of her taken from one of her many interviews, even though technically the rights would still rest with the photographer. (Orly is a public figure, so you don’t run into potential problems with HER — but beyond that, there are always special concerns if you are running photographs of people, due to privacy concerns)

  14. avatar
    aarrgghh November 8, 2009 at 8:34 pm #

    an even better approach, if you’re planning to use images on a regular basis, is to cultivate a list of sources of public domain and royalty-free images. for example, the us govt is one such source of public domain images, audio and video. (your tax dollars entitles you to them — you’ve already paid for them!) there’s also the creative commons network of artists who offer their under various license schemes including free ones.

    of course, finding free images of someone like orly is going to be tougher, given her rather recent meteoric rise to public figuredom.

  15. avatar
    Dr. Conspiracy November 8, 2009 at 9:31 pm #

    The Wikimedia Commons is also a huge source of free images.

    See: http://en.wikipedia.org/wiki/Public_domain_image_resources

  16. avatar
    wendy November 8, 2009 at 9:56 pm #

    but I can produce a valid census record.
    I think you got your detective diploma from Orly’s law school.
    University of Cracker Jack.

  17. avatar
    Det. Cliff Hanger November 9, 2009 at 11:42 am #

    I’m a usurper and it feels right.

  18. avatar
    Dr. Conspiracy November 9, 2009 at 12:46 pm #

    I believe the word is “troll.”

  19. avatar
    SFJeff November 9, 2009 at 1:55 pm #

    Hey Doc at least you didn’t say “Mistakes were made….”

  20. avatar
    aarrgghh November 9, 2009 at 10:08 pm #

    sven climaxes:

    i’m a usurper and it feels right.

    as always, iokiyab

  21. avatar
    Laurie November 9, 2009 at 10:57 pm #

    Aw, what a gracious post. I love the caption of the photo, though I would change it to “blogger with integrity.”