Fair use of photos

'Is it legal', 'can I do this' type questions and discussions.
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Anna
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Fair use of photos

Post by Anna » Fri May 13, 2016 2:22 am

Can photos from stock houses and news agencies like BBC, Reuters, Associate Press, Getty image, etc fall into fair use when the required conditions are met?

My purpose is criticism and commentary, the material I need should be news report of facts. I'll only use the necessary excerpt and it will be non-commercial. While some of these companies have notices on their websites to forbid sharing and Getty image has the history of aggressively protect their copyright. Will my use of photos from these companies fall into the protection of fair use? How safe is it to do this?

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AndyJ
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Post by AndyJ » Fri May 13, 2016 5:59 am

Hi Anna,
Yes the same rules apply to stock and agency photographs as apply to all other copyright works, when it comes to fair dealing. The difference is that, as you note, the agencies take a pro-active approach to protecting the works they manage on behalf of the photographers they represent.

Therefore you need to be very clear about what constitutes fair dealing under the criticism and review exception.

The law says that the criticism or review must be "of that or another work or of a performance of a work". In other words you cannot use a photograph of some activity or person in order to criticise the activity or person or their views. The criticisn must be of a copyright work - either the photograph itself, or a work which is the subject of the photograph. What's more, use of the photograph must be necessary in order to fully carry out the criticism etc. So for instance if you wished to make a critical appraisal of, say, a piece of sculpture recently placed on the fourth plinth in Trafalgar Square, using a photograph of it might well be entirely justified if the wider public was unaware of what the work looked like. It would be less justifiable to use a picture of, say, a work such as the Angel of the North, because there would be little need to refer to the photograph in order to criticise Anthony Gormley's work. Obviously each case will need to be judged on its merits, but the fair dealing exception can't just be used as an excuse not to pay for licence.

What's more, if your use could reasonably defined as reporting current events, then the use of photographs is specifically excluded. Arguably this is what was so egregious about the BBC's use of a picture of scene from a Manchester street following New Year's Eve 2015, which they lifted from a social media site without permission and which went viral at the time. Only later did the Corporation try to dress this up as a critical review of the photograph itself, once they had been caught out.

The second thing to bear in mind is that if, as seems likely, you use the entire photograph, you will have used a substantial part of the work, which again may well count against the 'fair' in fair dealing. Contrast this situation with a piece of literary criticism, where a sentence or two may need to be quoted in order to illustrate the author's style or some other aspect of the work. That would be acceptable, and indeed it illustrates exactly the purpose of this fair dealing exception.

And of course any use must be accompanied by a credit for the photographer.

So carefully examine why you need to use a photograph, and only if you feel it is essential in order to convey some information which mere words can't do, then you are probably on safer ground. However don't be surprised if Getty's lawyers don't see things from your point of view!
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Anna
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Post by Anna » Fri May 13, 2016 7:36 am

Hi Andy,

Thank you for the explanation and example. :) :)

What about video clips from these companies? Some material (photo & footage) might be essential to me, because they cannot be found elsewhere or purchased.

I want to make sure one point, can I use the photo or footage to criticize the facts they present? There'll be new value added to them. Will my use fit the criteria of criticism and review exception?

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Post by AndyJ » Fri May 13, 2016 9:43 am

Hi Anna,

While you can apply the same rules to video, there is no blanket approval for you to use the fair dealing exception to criticise 'facts' or opinions etc contained within the works. The criticism and review should be targeted at the work in terms of its artistic or aesthetic qualities. Although theoretically if you were criticising the works of a writer it would be legitimate to include his opinions within the criticism, I'm not sure that would always be applicable to something like a video or film, if you could just describe the opinion you wished to highlight using words, rather than a video clip. Unfortunately the Court of Appeal have previously said: " [t]his court should not in my view give any encouragement to the notion that all that is required is for the user to have sincere belief, however misguided, that he or she is criticising a work or reporting current affairs "*.

This is not an area of the law which has been tested that much. The most recent case which touched upon it which I can think of is Hyde Park Residence v Yelland, in which the Sun newspaper sought to justify using CCTV footage obtained without permission, to try and prove that the account given by Mohammed Al Fayed about the hours before the death of Princess Diana was false. The court held that it was not necessary to print stills taken from the video footage to make this point since they had already published a statement by Al Fayed's former PR person in support of their claim, and their point was not in any case criticism of the footage (the copyright work), but rather it was a personal attack on Mr Al Fayed's theories about what had happened to Diana. On the other hand, in a much earlier case called Time Warner v Channel 4 Television, the court found that Channel 4 was justified in showing a clip from the film A Clockwork Orange in order to show the way in which the film glorified mindless violence. As you can tell, the law is far from settled in this area.

There really isn't space to go into this in any great detail here, but you could take a look at this Channel 4 Editorial Guidance on the subject.

* Aldous LJ at para 21, Hyde Park Residence Ltd v Yelland & Ors [2000] EWCA Civ 37
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Post by Anna » Sun May 15, 2016 1:38 am

Hi Andy,

Now I see I misunderstand the requirement of criticism and review. Thanks for the clarification. I'll consider very cautiously before using these materials. But I still have a question. Can ordinary photos uploaded by individuals(not photographers or other professionals), which do not have much artistic merit or skill be used safely? The lawyer in my country (South Korea) said these kind of photos cannot reach the standard of copyright protection.

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Post by AndyJ » Sun May 15, 2016 8:45 am

Hi Anna,
No, you can't assume that because a photograph has no artistic merit (a subjective judgement) that it doesn't qualify for copyright protection. The UK courts long ago very wisely decided not to become arbiters of artistic merit simply because of the problem of what or whose standards they should adopt. This was then incorporated into the law (the Copyright Design and Patents Act 1988) in the following section (with my emphasis added:
4 Artistic works.

(1) In this Part “artistic workâ€￾ means—
  • (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

    (b) a work of architecture being a building or a model for a building, or

    (c) a work of artistic craftsmanship.
That said certain other European countries (notably France and Germany) do have a much higher threshold when it comes to originality in photographs, as can been seen from this case from France. Perhaps something similar also applies under South Korean copyright law.

Of course, not every amateur or casual photographer (ie just about anyone with a smartphone) will be that concerned or even understand about copyright applying to their pictures, and so you could just ask if you can re-use the image, as this probably won't involve any money changing hands and might even flatter the person whose picture you wish to use.
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Post by Anna » Wed May 18, 2016 7:43 am

Hi Andy,

I've done a little research, and I agree with you opinion. Thanks for the help. :) :)

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Post by cindylin » Sat Sep 03, 2016 10:11 pm

Even a CCTV footage can be copyrighted? Is it even a creative work?

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Post by AndyJ » Sun Sep 04, 2016 7:25 am

Hi cindylin,

You are right to be sceptical about CCTV footage or stills from CCTV qualifying as a creative work. The problem is that the courts have been asked to decide on this specific issue and so we lack certainty about it.

The closest they have come in recent times was in a case called Hyde Park Residence Ltd v Yelland (1999). The case involved stills taken from CCTV footage made at Mohammed al Fayed's Paris home (known as Villa Windsor) following the death of Princess Diana, and published in the Sun newspaper. David Yelland was the editor of the Sun at the time.

The problem with that case is that the existence of copyright was never challenged and it was assumed from the outset that it did. All the argument then involved whether there was any fair dealing defence against the claim of infringement, such as the use of the stills being in the public interest. Mr al Fayed lost his claim at first instance and appealed. The Court of Appeal reversed the judgment of the first instance court, but again did so without examining the subsistence of copyright. Here's what paragraph 6 of the Court of Appeal's judgment had to say on the issue:
6. The summons came before Jacob J. Before him ownership and subsistence of copyright were not in dispute. Although a draft defence alleged that the driveway stills did not form a substantial part of the copyright work, that appears to have been abandoned ...
in other words, the defence only considered a very narrow issue of whether the still images formed a substantial part of the overall CCTV footage, not whether copyright existed in the first place, and even this line of defence was dropped early on.

So on the basis of Hyde Park Residence judgment, case law appears to support the proposition that copyright does exist in CCTV images. However developments in the European copyright law since 1999 would tend to suggest that such would not necessarily be the case today.
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Post by cindylin » Mon Sep 05, 2016 6:00 am

Just feel it's beyond what I know... If a CCTV footage can be copyrighted, then who will be the author? Maybe the one who turns the camera on? :shock:
Law is interesting :D

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