Is my UK Facebook account subject to UK or US copyright law?

If you are worried about infringement or your work has been copied and you want to take action.
eefee
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Is my UK Facebook account subject to UK or US copyright law?

Post by eefee » Tue Sep 10, 2013 2:17 am

Hi All,

I hope you can help me to answer this question.

I produce doctored photoshop images of celebrities in absurd situations. I have a Facebook page to display these although I have taken it offline while I check my legal position.

I find the original images on Google. Naturally I don't own the rights to these.

I assumed that Facebook (including my page) would be subject to US copyright law as it is a US company and that my images would be considered fair use as they are transformative, parody or satire and currently non-commercial.

Can anyone tell me if my page is subject to US or UK copyright law please? I believe it makes a big difference.


Many thanks

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AndyJ
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Post by AndyJ » Tue Sep 10, 2013 6:36 am

Here is an extract from Facebook's general Terms of Use:
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.
which means that not only will US Federal law apply, but also Californian State Law, so that you may also need to consider the California Celebrities Rights Act in the way you handle images of celebrities.
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Post by eefee » Tue Sep 10, 2013 7:48 am

Hi AndyJ,

Thanks for your advice,

I wasn't aware of the California Celebrities Rights Act but from reading a few articles about it, it seems it doesn't apply to non-commercial use but would preclude me from advertising or selling, or soliciting purchases of, products, merchandise, goods, or services.

So if I've understood it correctly, I can publish the images but couldn't for instance, print the images onto t-shirts to sell.

Also, if my understanding is correct, I couldn't publish the images in a magazine that was for sale. Isn't this a breach of the US First Amendment?

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Post by eefee » Tue Sep 10, 2013 9:05 am

although, as my images are transformative, contain significant creative contribution and clearly don't suggest endorsement by the celebrity in question. Perhaps the California Celebrities Rights Act wouldn't apply to me, even if I were to print T-shirts?

Andy Warhol’s portraits of famous people were judged by a court to be:- “a form of ironic social commentary on the dehumanization of celebrity itself.”

Which is what I would argue my images are too.

Not that I would ever dream of comparing myself to Andy Warhol of course :)

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Post by AndyJ » Tue Sep 10, 2013 9:18 am

Hi Eefee,
Yes, you are right that if your use is entirely non-commercial the Celebrities Rights Act doesn't really impinge on what you want to do. But beware that if the claimant can establish a more tenuous commercial link (for instance if the website on which your images are hosted clearly has closely associated adverts) then the claimant may be able to invoke sub section (3) of the Act:
(3 )If a work that is protected under paragraph (2) [ie non-commercial] includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under this subdivision, [...]

The other aspect to consider is that of defamation, if your caricatures are particularly acerbic. Although the US laws on defamation are far weaker (due to the first amendment right of free expression which you mention) than in the UK, there is nothing to stop a celebrity or any one else using the UK courts to bring a claim of defamation if they wished to.
And on your final point, the Celebrities Rights Act does not apply to what is generally referred to as editorial use. This is defined in the Act as follows:
(j) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).
So as long as use of your images has a reasonably justifiable news or current affairs purpose then they should be covered under the first amendment. That said, if your images are to appear in a magazine, for instance, responsibility for that decision normally rests with the publisher through the editorial staff, so you don't really need to worry about it.
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Post by eefee » Tue Sep 10, 2013 10:12 am

That's really helpful. Thanks so much for taking the time.

Yes, my caricatures are sometimes particularly acerbic. However, if they are only published on Facebook and Facebook's terms of use state that it is governed by jurisdiction of the courts located in Santa Clara County, could a claim still be brought in a UK court?

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Post by AndyJ » Tue Sep 10, 2013 10:54 am

eefee wrote:Yes, my caricatures are sometimes particularly acerbic. However, if they are only published on Facebook and Facebook's terms of use state that it is governed by jurisdiction of the courts located in Santa Clara County, could a claim still be brought in a UK court?
In theory a defamation claim can be started in any jurisdiction where harm to someone's reputation has been sustained. This led to phenomenon known as forum shopping or libel tourism, in which the High Court of England and Wales was seen as favouring the claimant in defamation cases.
With the passing of the 2013 Defamation Act it has been predicted that this will all change. But, firstly, the majority of the Act is not yet in force, and also the New York Times article perhaps does not make it sufficiently clear that the 2013 Act only affects cases where neither the claimant nor the defendant are UK residents. Where the defendant is domiciled in the UK (as you appear to be) then there is nothing to stop an American citizen using the UK courts to sue. The Facebook terms have no bearing on this.
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Post by eefee » Tue Sep 10, 2013 11:18 am

Great advice. Thank you very much.

I think I'll wait and see how the new defamation act pans out before I release any particularly controversial images.

Also, let's see what happens in response to the Hargreaves Review of Intellectual Property. Hopefully there is a fair use exception for parody on the way....

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Post by eefee » Thu Sep 12, 2013 1:00 am

Ok. I've removed a couple of possibly defamatory images and re-published the page.

You can see what I'm talking about now, here-

https://www.facebook.com/pages/Fonzie-i ... 9604043020

I presume that making t-shirts for sale in the UK would be subject to current UK copyright laws?

and the Celebrities Rights Act might also apply then as it would then become a commercial venture?

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Post by AndyJ » Thu Sep 12, 2013 7:39 am

Taking your points in reverse order, selling your images on tee-shirts would certainly constitute commercial activity, and making copies of other people's images without permission on tee shirts would probably amount to infringement under UK copyright law.
However, I suspect that the way in which you are using these celebrities' images takes them some way away from what the Celebrities Rights Act is supposed to protect, and firmly into the world of parody and satire, which the First Amendment would protect. Since you are not resident in the USA, the only effect of the CRA, if at all, would be to pressure Facebook to remove images from your profile by misusing the DMCA take-down process. You of course cannot be sued in the UK courts under the CRA.
I mentioned the Defamation Act earlier only in order to alert you to the possible danger from this quarter, but I wouldn't want to over-emphasise it. Proving defamation is a relatively high bar and very costly for claimant and defendant alike, so it is not a first resort for most people:
1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
(section 1 of the Defamation Act 2013)
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Post by eefee » Thu Sep 12, 2013 5:48 pm

The potentially defamatory ones depict a very rich and famously litigious gentleman on a toilet.

The other is a former French president using a class A substance.

I think I'll play it safe :)

Also, wasn't the Rhianna vs Top Shop case heard in an English court?

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Post by AndyJ » Thu Sep 12, 2013 7:17 pm

eefee wrote:The potentially defamatory ones depict a very rich and famously litigious gentleman on a toilet.

The other is a former French president using a class A substance.

I think I'll play it safe :)
Yes, that sounds sensible in the circumstances.
eefee wrote:Also, wasn't the Rhianna vs Top Shop case heard in an English court?
The Rihanna v TopShop case was indeed heard in the High Court, but that was about passing off, not defamation. More details of the judgment here: Fenty v Top Shop [2013] EWHC 2310 (Ch)
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Post by eefee » Thu Sep 12, 2013 11:23 pm

Ah, sorry, I thought the Rihanna vs Top Shop case was about the Celebrities Rights Act. I see now.

Anyway. I've learned a lot. Thanks once again for taking the time to explain it all. I appreciate it.

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Post by eefee » Thu Oct 02, 2014 5:35 pm

Am I free to proceed unhindered now? :)

http://m.bbc.co.uk/news/entertainment-arts-29408121

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Post by AndyJ » Thu Oct 02, 2014 7:55 pm

Hi eefee
Good to hear from you again.
I think the new parody and pastiche fair dealing exception should give you a lot more protection since your work falls squarely into the parody category. Obviously we don't yet know how the UK courts will apply the new Regulations, but it has been suggested by some experts in the field that parodies will need an essential element of humour in order to qualify. You can find some guidance on the practical application of new rules from the UK Intellectual Property Office here (in pdf)
And we have recently had a decision from the Court of Justice of the European Union in a case known as Deckmyn in which the Court said (amongst other things) that the rights owner of the original image (rather than the person portrayed in the image) might have a right to object to a parody if the message of the parody was deemed racist or discriminatory. From what I have seen of your work on Facebook, I doubt if this will become a concern for you.
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