Discussion:
What is the name of your state? Texas
I am starting a company which creates digital images and video from images sent to me by customers. If someone sends me an image to work from that is not his own, would it be considered copyright infringement on my part or just on the customers part (or both)? What type of disclaimer or terms of use should I have posted on my website concerning this? Would posting a disclaimer or terms of use on my website be sufficient, or is there something else I should do as well?
Thanks very much!
Answer:
If someone sends me an image to work from that is not his own, would it be considered copyright infringement on my part or just on the customers part (or both)? You would be the one doing the infringing. I guess the customer could be liable for contributory infringement.
What type of disclaimer or terms of use should I have posted on my website concerning this? What do you want to do with the disclaimer? If you want a disclaimer that will prevent you from getting sued for infringement, or would place liability for infringement on someone else (the client), forget it -- there isn't one that will work, you can't simply disclaim liability for copyright infringement. You could develop a TOS that would require the client to indemnify you if you did get sued -- basically, require the client to pay your legal fees and any damages you have to pay if you get sued -- but you can't shift the liability itself to the customer.
Would posting a disclaimer or terms of use on my website be sufficient, or is there something else I should do as well? See above. The only way to really get any sort of protection is to do what some copy places do nowadays -- you have to prove that you either own the picture, or have permission to do what you want with the picture, before they will do anything with it. There just isn't any way to avoid liability if you actually do work with copyrighted materials without permission.
Answer:
Thanks for your reply, you mentioned:
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The only way to really get any sort of protection is to do what some copy places do nowadays -- you have to prove that you either own the picture, or have permission to do what you want with the picture, before they will do anything with it. There just isn't any way to avoid liability if you actually do work with copyrighted materials without permission.
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My particular situation would be that there would be really no way to know if a customer uploads an image/picture to me to work on that is not his own, other than his word.
What about something along the lines of the following (after researching similar websites):
"in order for us to provide you with the services you requested, you
acknowledge that you are the owner of the copyrights to the photos you post or transmit to us, or that you have the permission of the copyright owner to post or transmit the photos. "
I'm wondering if that would be enough for proof - it's seems too simple
Answer:
I'm wondering if that would be enough for proof - it's seems too simple It wouldn't. The problem here is that copyright infringement is a quasi-"strict liability" type of offense -- in other words, it doesn't matter if you knew, or should have known, that you were infringing -- if you are infringing, you are infringing, period. Even "innocent" infringement is still infringement (although a finding of factual "innocent" infringement allows the judge to reduce damages below the statutory minimums).
The disclaimer might be sufficient to protect you against a charge of "willful" infringement (so long as you don't "cvlose your eyes" and ignore stuff that is obviously something that someone doesn't have the rights to), but there simply isn't any way to keep yourself from being liable for infringement if someone sends you a picture they don't own and you reproduce the picture or modify it without permission from the copyright holder.
Answer:
hmmm, so based on what you are saying , then it would logically follow that any photo based (meaning either photo enancements, repairs, or artistic) website is illegal, and that there is no way for them to legally do business??
Here the situation is revolving around the intent of the customer, and while I agree there is no way to be certain of their intention or ownership rights, here still must be a way to do business in this area and legally protect oneself concerning the cooright law.
There are lots of companies currently in business in the photo enhancement field - some pretty big names (and small ones too for that matter) & they have such disclaimers as the example I've previously posted (I've been researching since my original post).
There obviously must be a way to do it, if a disclaimer is enough so much the better, if it is not enough - I'll find out from other sources and post it when I do so that anyone with similar questions can benefit.
Thanks anway!!!!
Answer:
hmmm, so based on what you are saying , then it would logically follow that any photo based (meaning either photo enancements, repairs, or artistic) website is illegal, and that there is no way for them to legally do business?? No, that's not true at all. There is nothing illegal about what you are doing, so long as the person submitting the photo has the right to authorize you to do whatever it is you do. So if the customer owns the photo (he took it or bought the rights to it), has a license to use it, or if the work is public domain, then there would be nothing at all illegal about your service.
Here the situation is revolving around the intent of the customer, and while I agree there is no way to be certain of their intention or ownership rights, here still must be a way to do business in this area and legally protect oneself concerning the cooright law. Actually, intent is irrelevant -- it doesn't matter whether or not you or the customer ever intended to infringe on someone's copyright. Intent is not a factor in copyright infringement, at least as far as liability is concerned -- it may be a factor when determining damages.
And yes, there is a way to do business in this space legally -- make sure that the customer has the rights to the photo when they submit it.
There are lots of companies currently in business in the photo enhancement field - some pretty big names (and small ones too for that matter) & they have such disclaimers as the example I've previously posted (I've been researching since my original post). The disclaimers are almost certainly in place to dissuade people from sending them stuff that they don't own in the first place, not to protect the companies themselves from a charge of infringement.
There obviously must be a way to do it, if a disclaimer is enough so much the better, if it is not enough - I'll find out from other sources and post it when I do so that anyone with similar questions can benefit. Don't confuse the legal and the practical -- from a legal standpoint, a disclaimer won't save you. However, it's certainly possible that, from a practical standpoint, either the general law-abidingness of the customers or the disclaimers might just mean that there isn't much infringement going on, or that copyright owners simply aren't enforcing their rights against these people. That doesn't mean that nobody is infringing, or that the disclaimers are protecting them -- let's face it, the whole internet is almost nothing BUT copyright infringment.