UPDATE: The photo in question appears to have been removed.

A.C. Kleinheider or someone at Nashville's WKRN-TV News2 has improperly made a copy of a copyrighted photo from this website and hosted it on WKRN's servers from where it is republished without permission in violation of U.S. copyright law under USC 17.

Read more...

Unfortunately the photo copyright isn't registered, so the owner isn't eligible for statutory damages of $150,000 per infringement. The owner is, however, due actual and compensatory damages. I hereby demand one double Glenlivet on the rocks as compensatory damages. (And this shall not be construed as establishing the value of any other copyrighted works by the author. Heh.)

But seriously, let's all be respectful of one another's intellectual property. I wouldn't copy a WKRN-TV News2 report or video without permission. Bloggers should expect the same courtesy from WKRN-TV News2.

I don't generally agree with A.C. Kleinheider very much, but he does run a good and entertaining and sometimes informative blog. This is not one of those times. I'm a little puzzled by the nature and/or the point of his post and the photo he selected from among the many photos available to him from this site. If he had just asked, I would have said fine, as I usually do when people go to the trouble to, you know, ask.

His response is, "I consider what I did to be proper Internet etiquette. If you believe you have a legitimate legal grievance you are more than welcome to contact the station."

Typical big-media v. little guy response. We've got deep pockets and lawyers. You don't. Bring it on. When it's all over, we'll still be here. You won't.

(Footnote: I also find his response interesting in light of the fact that his 'about' page says A.C. Kleinheider is responsible for everything on his blog and WKRN has nothing to do with it. Yet when a question of propriety comes up, he refers you to the station. So which is it? A.C. Kleinheider or WKRN?)

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lovable liberal's picture

Emily Python

Bleedin' etiquette don't enter into it.


Liberty and justice for all.

Andy Axel's picture

He's wrong about it, too

Read the Internet rules of the road embodied in the Internet Engineering Task Force's RFC 1855:

(link...)

"Respect the copyright on material that you reproduce."

I say he ran afoul of this one on etiquette bounds, ethical bounds, and by the ToS explicitly stated here. If that photo was registered, you can bet there'd be legal bounds as well.

____________________________

Wasabi peas are people! They're people!

R. Neal's picture

If that photo was

If that photo was registered, you can bet there'd be legal bounds as well.

There are legal bounds. Civil and criminal. The photo (or writing or whatever) is copyrighted the instant the shutter releases (or pen is put to paper, etc.). The trouble is, registration is necessary to collect statutory/punitive damages, as I understand it. Otherwise you are still eligible for actual damages, which are hard to prove.

Andy Axel's picture

Read & Understood.

You and I both make considerable effort and expend significant capital to cultivate an audience for our visual artwork. I get it.

However, if he's going to hang his hat on "netiquette..."

(a) There's a legitimate difference of opinion on what constitutes proper "netiquette."

(b) You've called him on it

(c) He's said, in so many words, "Too bad."

Now, if this was a matter of manners?

He'd say, "Oh, I didn't realize you felt that way. May I please use your work, and how would you like to be attributed?"

And if you still said no, and still insisted he could do as he pleased, then he's not following proper etiquette of any kind (Internet or otherwise). At that point, he would be, as we say in etiquette circles, an "asshole."

____________________________

Wasabi peas are people! They're people!

R. Neal's picture

Oh, I agree with you 100% on

Oh, I agree with you 100% on the etiquette issue. I was just being technical on the legal issue.

Andy Axel's picture

WKRN's ToS

Well, here's WKRN's ToS:

You represent, warrant and covenant that: (a) you shall not upload, post or transmit to or distribute or otherwise publish through the WKRN-TV Web Site any materials which (i) restrict or inhibit any other user from using and enjoying the WKRN-TV Web Site, (ii) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law, (iv) violate, plagiarize or infringe the fights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus or other harmful component, (vi) contain any information, software or other material of a commercial nature, (vii) contain advertising of any kind, or (viii) constitute or contain false or misleading indications of origin or statements of fact; and that (b) you are at least eighteen (18) years old.

These are the terms he's bound to while using WKRN as a host.

(link...)

____________________________

Wasabi peas are people! They're people!

SayUncle's picture

I can buy the etiquette

I can buy the etiquette angle but I'd say fair use may be applicable. But then, I'm no lawyer.

---
SayUncle
Can't we all just get a long gun?

metulj's picture

It's not fair use. Copyright

It's not fair use.

Copyright does not protect and anyone may freely use:

 R. Neal's picture is not in the public domain by simple virtue of being on the Web. Putting something on the web is akin to self-publishing. Works created after March 1, 1989, absence of a copyright notice means virtually nothing.*

They exercised the author's exclusive right to reproduce the picture without his permission. And he gave no exemption. That's a violation.

 * Source: (link...)

 

 

 

True happiness is knowing you are a hypocrite. -- Ivor Cutler

R. Neal's picture

What metulj said. In

What metulj said. In addition, fair use typically applies to quoting excerpted text, such as a portion of a newspaper article or book for editorial comment, and only then with attribution. It not a defense for copying entire photographs.

SayUncle's picture

Ok, then. Good to

Ok, then. Good to know.

---
SayUncle
Can't we all just get a long gun?

R. Neal's picture

The only exceptions might be

The only exceptions might be for educational purposes, as schools and universities, which I believe have wider latitude.

SayUncle's picture

Then how does, say, the

Then how does, say, the press get away with publishing someone's copyrighted logo or pic with a story? I can't imagine they get permission every time.

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SayUncle
Can't we all just get a long gun?

R. Neal's picture

What kind of photo are you

What kind of photo are you talking about? As for logos, I don't see that very often. But I imagine they do indeed get permission. If it is included in a press release sent voluntarily to the publication, or available on a corporate website's press info section for download and it's used according to whatever persmissions are granted and whatever restrictions apply they are covered.

P.S. Logos fall more under trademark law. And if a blogger or newspaper or magazine wrote a negative article about a company and included their logo without permission, you can bet they would hear from the company's lawyers.

SayUncle's picture

As a for instance, the

As a for instance, the typical press report about some scary product. They usually show the product or it's logo and I doubt they get permission since no one is going to give permission to have their product bashed. Or the 911 photo of the firefighters raising the flag. They say it's copyrighted but I've seen that photo a lot. And, based on something I saw on TV, I know permission wasn't granted.

---
SayUncle
Can't we all just get a long gun?

R. Neal's picture

Those are good examples. I

Those are good examples. I think something like the product example would come under the exception for news reporting, but I'm no lawyer so I'm not sure. None of this is comparable, however, to copying my photo and using it without permission. In this case, the violator has taken my work on original news reporting without permission.

As for the firefighter photo, that's a good example of how owners are responsible for enforcing their copyrights. Nobody else is going to do it for them. And failure to do so doesn't make it public domain. I'm guessing it gets tracked down often enough, though.

Andy Axel's picture

Then how does, say, the

Then how does, say, the press get away with publishing someone's copyrighted logo or pic with a story?

A lot of news agencies pay for the use of photos through bulk fees or through an association (like the Associated Press has its own legion of photographers, e.g.). Anything that an AP photog does which s/he sends out on the wire is considered "work for hire" and is paid for by the news agency's subscription to the feed.

Also, there are a lot of pictures that are "free for commercial use" stock.

As far as Thomas E. Franklin's picture from the WTC, or anything else he's ever done, here's the information you need in order to reproduce his work.

____________________________

We'll even the score in WW IV

metulj's picture

If the picture were the

If the picture were the story, then it would be ok to print the picture. That's fair use.

If someone finds Proctor and Gamble's trademarked and copyrighted logo offensive, you don't need permission to reprint it as it is the subject matter of the story. 

 

 

True happiness is knowing you are a hypocrite. -- Ivor Cutler

Andy Axel's picture

Oh, and add .htaccess

I may just do this on my new PHP site.

(link...)

____________________________

Wasabi peas are people! They're people!

Rachel's picture

copyright resources

Here are some helpful resources on copyright, for those who are interested:

14 Copyright Tips for Bloggers - (link...)

Bloggers Cautioned on Copyright Concerns - (link...)

EFF: Legal Guide for Bloggers - (link...)

Bloggers Beware: Debunking Eight Copyright Myths of the Online World - (link...)

Copyright and Fair Use - (link...)

Librarian's Index to the Internet: Copyright - (link...) - tons of links to good resources here 

Rachel's picture

for SayUncle...

I think there are certain fair use exceptions for criticism, commentary, and news reporting. Not sure if the news reporting bit is an extension of the criticism and commentary bit, or has it's own place in copyright law. But it's very complex, and I'm not a lawyer. If I find a clear explanation, I'll send it along.

Stick Thrower's picture

Send him an Invoice.

Send Kleinheider/WKRN an invoice for using the photo. That's what the Graphic Artists Guild suggests for instances of infringement.
 
http://www.gag.org/dear_mark/mark_artwork_infringement.html
 
I suspect there were plenty of ways Kleinheider could have given satisfactory attribution (which oddly he has refused to do), but--ultimately--a news organization should have no problem paying a freelance photojournalist for using an original photo.
JustJohnny's picture

GAG?

Is there a local GAG chapter? I just submitted an application for the at-large group. Any local GAG members out there? Msg me if your one of them!

Paul Witt's picture

Actually, I have to agree

Actually, I have to agree with the guy.  While he could've and maybe should've given you explicit credit for the photo, he did link back to your article.  He also didn't externally link to your photo and use your bandwidth, but instead copied it over to his own servers.

JustJohnny's picture

watermarks?

Perhaps a nice watermark would help? I still don't agree with what he did, but a watermark would at least ensure proper credit.

Rachel's picture

doesn't matter if he gave credit

Paul,

It doesn't matter if he gave a linkback or credit. He didn't have permission to use it, a copyrighted work. Same thing with copy/pasting whole news articles, books, etc.

gttim's picture

Contact the station.

I think they would be interested in knowing that the guy is posting pictures he does not have the right to. If you started images images of the station's, they would be pissed.

Brian A.'s picture

Missed it

Didn't everyone hear?  In one of his signing statements, President Bush made a "proper Internet etiquette" (whatever that means) exception to the copyright law.

Copyright infringements are frequent on the Internet.  But I'd like to think that most people, when notified, acknowledge what they did or seek permission.  I'm not sure why this blogger thinks offering gibberish is a good response.

Brian A.
I'd rather be cycling.

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