How can members post someone else's copyrighted photos?

+9 votes
266 views
asked in Policy and Style by Larry B G2G Crew (430 points)
retagged by Keith Hathaway

4 Answers

+2 votes
 
Best answer
There is a 'Copyright of Fair Use' Policy.  Postings in an open source, as WikiTree, can be downloaded UNLESS the photo has a copyright directly imbeded in the photo.  But, personally, I post only photos, documents and other items that are to be openly shared in the WikiTree community.  If someone wants the photos, I will provide a hi-pixel copy by email or they can download from the WikiTree profile.  Most of the photos can be classed as 'personal use' for download.  Hope that helps.

Rena
answered by Rena Donze G2G6 (6.5k points)
selected by Jeannette Saladino

This portion of the "best answer" is simply not true in the U.S.:
Postings in an open source, as WikiTree, can be downloaded UNLESS the photo has a copyright directly imbeded in the photo.

In the U.S., there is no requirement for a copyright notice of any sort, although it is prudent to watermark or include a copyright statement in the EXIF data. Images are protected as soon as they are placed in fixed media. 

Even if the site is open to the public, always operate under the assumption that the image is copyrighted and permission is necessary to legally republish.

 

Also, wikitree is not “open source.” It is a commercial, for profit corporation that does not make all its code open source. Just because it offers its services without paid subscriptions doesn’t make it non commercial.

@Jillaine, below this a couple of comments, Joe Willie Jones is claiming WikiTree is a non-commercial website "as stated in the Wikitree TOS", I could find no such statement.

+6 votes
Larry,

The person may not know they've done this. You could bring it to their attention. If it were me, I might approach them with something along the lines of:

"Mary, I see you've posted this photo (include a link to it). You may not be aware, but this photo is copyrighted by ______. [include a link to something that supports the claim that it's copyrighted.]

"The wikitree honor code [link] indicates we respect copyrights. Therefore, we should remove any copyrighted photos from wikitree or get explicit permission for using them. Thanks for understanding."
answered by Jillaine Smith G2G6 Pilot (662k points)
+2 votes

The best method is to simply ask for and receive written permission from the copyright holder.  The problem though, is that depending upon the source of the photograph, it is not always evident who the copyright holder is. Publishing a photograph, or having a photograph in ones posession alone does not imply copyright ownership. The copyright belongs exclusively to the orginal photographer at the moment he or she takes the photo, and remains exclusively theirs unless they expressly (in writing) pass (or share) this right to another party, Their copyright ownership remains in effect until the work passes into the public domain - usually 70 years after the death of the author (with some exceptions depending on the date of publication).

Having said that, U.S. copyright law does not automatically guarantee that the copyright holder has exclusive rights to their work in all instances.  In fact, the courts have ruled time and again that copyright laws were not established to protect the rights of the copyright holder – their purpose is to encourage creative works which would benefit society by providing limited protection of that work.  This is a crucial point to keep in mind.  Copyright law is meant to establish a balance between the rights of the creator and the public’s interest, but when in conflict, the balance tips more heavily toward the public’s interest, which is often contrary to what the creator believes to be fair or just.

Article I, Section 8, clause 8, of the United States Constitution states the purpose of copyright laws is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The limits of a copyright holders rights are further defined in the Copyright Act itself.  One aspect of copyright law that is of particular interest to Wikitree users are the sections of the act which define ‘fair use’.  The purpose of the Fair Use Doctrine is to allow for limited and reasonable uses of copyrighted materials as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish. Fair use has little to do with what we may think is fair, and everything to do with keeping the balance tipped in favor of the public interest.  Fair use is in place for the greater good, to allow copyrighted works to be used without permission for the benefit of the public.

Section 107 reads in part: “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work."

Given these directives, I believe that it would be extremely difficult for any legal scholar to conclude that republishing a copyrighted photograph of an ancestor or a gravesite on Wikitree - which is a non-commercial website (as stated in the Wikitree TOS) dedicated to scholarly pursuit, education and research for the public good - would in any way shape or form, infringe on the photographers copyright.  On the other hand, if Wikitree or the profile manager who posted the photograph were to change course and begin to use these photographs for financial gain (for example publish and sell a book which included the photos or charge a fee to access them on the website), the copyright owner would have legal reason to demand compensation for their work.

answered by Joe Willis Jones G2G Crew (800 points)
edited by Joe Willis Jones

Cannot find anything within your well stated position that is contrary to my understanding. However, I can't help but wonder if you have not yet perceived the irony of your argument. If, as you clearly state, copyright law was written “to encourage creative works”, then the high road for any author or photographer would be the creation of something original, and the low road would be the wholesale use of someone else's work.

For me, fair use of copyrighted material primarily means:

  • minimal use, to be used only to validate the content of a new creation; and

  • linking to online copyrighted material, rather than the wholesale use of cut-and-paste.

I fully agree with your point George, however I also understand the untenable dilemma that this creates for any genealogist whose desire is to provide valuable factual content for a profile.

I absolutely agree that creative written content should not be subjected to ‘cut and paste’ before copyright claims have expired even if ‘fair use’ applies (factual content is not subject to copyright).  However when it comes to images of ancestors, records, gravestones or similar, the same rule seems excessively prudent to the point of largely defeating our purpose of gathering verifiable factual data about an ancestor.

Any website content, especially content hosted on websites which are completely outside of our control, may be deleted (or hidden behind a paywall) for various reasons at any time without warning.  It is common to find dead links to content that is more than a few years old.  Therefore I think it is a mistake to imply that linking to content is a valid and lasting solution for building a comprehensive ancestor profile.

Genealogical images may be creative, but a genealogist is interested in these images for factual (not creative) reasons. This factual content is often crucial towards adding needed depth to a profile - depth that the printed word cannot supply, no matter how beautifully crafted the prose might be.  Humans are a species that have evolved to depend on images to fully engage our senses. There is truth behind the saying that ‘a picture is worth a thousand words’.

Should Wikitree policy be so strict on copyrights that it stretches well beyond what is required by law?  Perhaps, but only if it makes sense from a genealogical point of view.  In this case, I think we are already well covered by the Honor Code which requires that sources be credited (and linked).  This type of requirement meets our community’s moral obligation to combat those who would simply plagiarize another genealogist’s hard work of gathering these facts and photos.

 

Like a chess-master, you have secured your position with each advancement. If I found myself in the position of having to debate you on this topic, I would surely loose.

Joe, it's a pleasure to read your recent contributions to the G2G forum. Its been a little over three years since your sole previous posting, so I want to take this opportunity to invite you to join us here more frequently.
What George said.
Thank you for your kind statement George.  I appreciate that you feel that my words have value.  I don't often read the G2G Forum, mostly due to the fact that my available time is limited in this pursuit.  As far as contributions, I've read so many excellent contributions on this and other topics, I feel that I have little to offer that has not already been said. But your encouragement may change that for me.  Thanks again.

Jillaine, same goes to you ;)
When the item is already available to the public (i.e. on a free-access website), in what way is republishing that item on WikiTree "for the greater good"? The objective of seeing the item can be achieved via a link.
To me, it seems many use this justification when their reason really boils down to "I want it HERE."

As already stated above, "Any website content, especially content hosted on websites which are completely outside of our control, may be deleted (or hidden behind a paywall) for various reasons at any time without warning.  It is common to find dead links to content that is more than a few years old.  Therefore I think it is a mistake to imply that linking to content is a valid and lasting solution for building a comprehensive ancestor profile."

So yes, republishing content, rather than a link to that content, is a much more reliable solution for ensuring that the content remains accessible to the public via WikiTree.

Joe Willie Jones, while republishing content may be "more reliable", it was my understanding members of this site adhere to the "honor code" regarding copyright and being courteous. 
Asking permission is courteous. 
If you can obtain permission, by all means, republish.
If you cannot obtain permission, do not republish. 
 

A Wilson, thank you for your comment.  If you would please be so kind as to take the time to read all of my statements in the chain of this discussion, you will see that we are not in disagreement.  It is indeed correct to honor copyrights and to be courteous.  Of course the idea of courteous behavior must also extend to the individual who might refuse to "give permission" to a photograph of which he or she cannot claim copyright.  Good day to you.

Oh, I read all of your comments and I do understand copyrights, including fair use, very well.
I disagree that using a photograph on this WikiTree would be considered "for the public good", particularly if you found the photo on another website. The fair use prong you gloss over is the "purpose" prong. According to a relative who teaches copyright law, if your purpose is exactly the same as the purpose on the original site (i.e. genealogy), you're 'fair use' defense would probably fail if it was ever taken to court. Of course, it probably wouldn't get that far because the copyright holder would first file a cease & desist letter to WikiTree, and the image would probably be removed as WikiTree would want to retain their Safe Harbor status under DMCA. 
I also disagree that anyone should be encouraged to republish rather than link to an image, as you did by saying it is "more reliable", on the chance that, at some unforeseen future point, the image may no longer be available on the original site. That's justifying stealing a book from your neighbor because they might move away and you would no longer be able to borrow it. 
If I have a non-commercial genealogy-related website where you find one of my original photos that you wish to add to WikiTree, you need to ask permission. I would, in fact, politely decline while encouraging you to link to the site. It doesn't matter that my site might disappear at some point in the future. As the copyright holder, it is my right to decide whether to publish, when to publish, and where to publish. You may view it; you have no "right" to have the photo other than personal use (i.e. on your own computer).
This mindset ("We want this on WikiTree even if we can't obtain permission or because it might go away") makes a mockery of the honor code. 

Food for thought:  http://www.legalgenealogist.com/2016/07/20/no-right-to-sharing/

+2 votes
Larry, you may want to read this excellent blog post by The Legal Genealogist:

http://www.legalgenealogist.com/blog/2015/08/20/the-limits-of-ownership
answered by Jillaine Smith G2G6 Pilot (662k points)

Great article! Great website!

Just placed the web address to attorney Judy G. Russell , The Legal Genealogist, on my navigation page's scratch pad. Thanks Jillaine!

Judy is one of the smartest and articulate researchers out there. I subscribe to her blog, so I get an email every time she posts something. She's one of the few that I almost always read!

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