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property and use of Ebay pictures


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#1 marentius

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Posted 14 September 2011 - 04:59 AM

Hi,just wondering if anyone has any suggestion about this topic:if I download pics of items for sale on Ebay,is it possible to use them in a publication?Who's the owner of the pics,once the item has been sold to an unknown buyer,since in most of the cases it's not possible to know the id of the buyer?should I eventually ask for permission from the Ebay member who posted the item for sale or once on Ebay and then sold the pics become public domain?
Thanks in advance for any opinion.

#2 teufelhunde.ret

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Posted 14 September 2011 - 05:33 AM

Read Fair use on the Internet located here; http://en.wikipedia.org/wiki/Fair_use

#3 Dave

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Posted 14 September 2011 - 05:50 AM

Read Fair use on the Internet located here; http://en.wikipedia.org/wiki/Fair_use


That's the best summary to use.

Just don't be the guy who is still using photos I took in my backyard in 2004 to sell one of my former uniforms on eBay right now... :mad: :pinch:

#4 Bob Hudson

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Posted 14 September 2011 - 06:52 AM

Read Fair use on the Internet located here; http://en.wikipedia.org/wiki/Fair_use


The US Copyright Office has published online a nice synopsis of FAIR USE:

How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.


This forum takes advantage of that for "commentary, criticism...and scholarly reports."

"Fair Use" Is a part of US trademark law only and does not apply to other countries. Copyright laws vary from nation to nation so it may be that Ebay photos taken by someone in another country may not even be under copyright in your country.

That appears to be the case under Italian copyright law, which seems to exempt "simple photographs" of "material objects" from copyright protection:

(This obviously is an English language translation,).


icl1.jpg

icl2.jpg



#5 67Rally

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Posted 14 September 2011 - 07:08 AM

Hi,just wondering if anyone has any suggestion about this topic:if I download pics of items for sale on Ebay,is it possible to use them in a publication?Who's the owner of the pics,once the item has been sold to an unknown buyer,since in most of the cases it's not possible to know the id of the buyer?should I eventually ask for permission from the Ebay member who posted the item for sale or once on Ebay and then sold the pics become public domain?
Thanks in advance for any opinion.



The internet doesn't necessarily translate to mean Public Domain. Images owned by the Federal Government are typically considered public domain, however there are rules/laws that govern the usage. Images belong typically to the individual who created them unless they transferred the rights. eBay may consider images that are uploaded to their servers as being their property and may have EULA (which no one reads) that define that action.

As defined above, the end use is covered by copyright law. If you use eBay images in your publication and one of the image owners is made aware of said use, they may take legal action to recoup monetary compensation or enact a cease and desist action against you.

When I published my first book, I spent an inordinate amount of time with this very issue as several of the photos were public domain and some were copies of old photos from private collections. If I couldn't obtain some sort of release from each owner (expressed or PD) I had to omit them (and they were some of the best images). I didn't want to risk legal action. Even if I was right in my interpretation of the use, I didn't want to deal with the financial burden of a legal defense.

Tread with caution.

#6 Dave

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Posted 14 September 2011 - 07:18 AM

I'm going to slightly hijack this thread with a question I've had:

Who owns the image once the item is sold?

Is the rightful owner the person who took the image when they owned the item? Does the subsequent owner have any rights to that image?

I've actually run into this before...a person had issue with me using a photo of a group that I owned (and I took the photo) but they later owned the group. They had absolutely nothing to do with the photo itself...they just happened to own the same group later on down the road.

Thoughts?

Dave

#7 Bob Hudson

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Posted 14 September 2011 - 07:31 AM

I'm going to slightly hijack this thread with a question I've had:

Who owns the image once the item is sold?

Is the rightful owner the person who took the image when they owned the item? Does the subsequent owner have any rights to that image?

I've actually run into this before...a person had issue with me using a photo of a group that I owned (and I took the photo) but they later owned the group. They had absolutely nothing to do with the photo itself...they just happened to own the same group later on down the road.

Thoughts?

Dave



The photos are still yours unless you specifically transfer title.

#8 Jack's Son

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Posted 14 September 2011 - 12:25 PM

Thank you for clearing this question up.
I think it worth a bump!

#9 Mr.Jerry

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Posted 15 September 2011 - 04:28 AM

Interesting topic.

We work under the guideline that the photographer is generally the copyright right holder ( even of the work is done for hire) unless the rights are expressly transferred. Ownership of the subject does not transfer right to the photo.

#10 marentius

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Posted 15 September 2011 - 04:32 AM

That's the best summary to use.

Just don't be the guy who is still using photos I took in my backyard in 2004 to sell one of my former uniforms on eBay right now... :mad: :pinch:


nonononononononon I solemny swear!!!! :crying: :thumbsup:

#11 BEAST

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Posted 15 September 2011 - 04:40 AM

Thanks for bringing this topic up again.

One of the eBay dealers is selling copies of WWII photos that he has reproduced. In his eBay ad, he says that he retains the right of use of these photos. In other words, if you buy his reprint, you still don't have free use of it. How does the copyright law apply to this? He is not the original photographer, and the only change that he has made to the image is to shrink it so it fits on the print paper.

#12 marentius

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Posted 15 September 2011 - 04:52 AM

well,jokes apart thank you all for the interesting contributions to my question.I am not thinking of making a production of a book or a web page I could get some money from.Actually since a couple of years I am copying as many pics as i can from items I see for sale on [email protected]@y,items I can't buy or cannot afford or was not able to win,in order to create a kind of database as a reference.For the moment it's just something I am doing for myself,I'd eventually think about a web page accessible to everybody,but we will see.

From Wikipedia (thanks @teufelhunde for the link)I copy and paste:

"Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.....
The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit....
To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection.
The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use.
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original....
Fair use on the internet
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.

well from my point of view it's not easy to find the right answer to my question.As Dave asks,what happens if I sell an item,the picture of the item is still mine,it becomes of public domain,it becomes property of the new owner?In my case I am talking about pics of patches badges and insignias,so in many cases items not unique even though may be quite rare,usually pictured on a neutral display.

#13 marentius

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Posted 15 September 2011 - 04:58 AM

:thumbsup:
Another very interesting issue,I too would like to read some opinions

Thanks for bringing this topic up again.

One of the eBay dealers is selling copies of WWII photos that he has reproduced. In his eBay ad, he says that he retains the right of use of these photos. In other words, if you buy his reprint, you still don't have free use of it. How does the copyright law apply to this? He is not the original photographer, and the only change that he has made to the image is to shrink it so it fits on the print paper.



#14 Dave

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Posted 15 September 2011 - 06:36 AM

This is an interesting topic for me as well. I plan on writing a book here in the near future and use a lot of the photos of groups I've owned over the years. Obviously, I don't own most (if all) of the items that are photographed, but I plan on using the photos in the book. So, some people might be surprised to see the group they own published in the book...but legally, I shouldn't have an issue of someone complaining. I hope...

Dave

#15 67Rally

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Posted 15 September 2011 - 06:52 AM

Thanks for bringing this topic up again.

One of the eBay dealers is selling copies of WWII photos that he has reproduced. In his eBay ad, he says that he retains the right of use of these photos. In other words, if you buy his reprint, you still don't have free use of it. How does the copyright law apply to this? He is not the original photographer, and the only change that he has made to the image is to shrink it so it fits on the print paper.



This is a fantastic question that pertains to the photographic image source.

The "owner" would have to prove that the use by another person stemmed from their source image. In other words, tracing the usage back to the source. In addition, the "owner" would have to prove that they own the only source (the negative/transparency) which can be difficult to prove if they weren't the photographer.

These sellers you mention are applying a blanket statement that, in my opinion, wouldn't pass a legal review or hold up in court. If they merely purchased a photo album, they have no way to prove that any particular image is the source or sole copy before they begin to reproduce and sell. They are operating under the assumption that they can take ownership of the image as the copyright holder by purchasing an old photograph.

What happens to them if an intellectual or image property license-house who actually owns the source (like Corbis) slaps them with an injunction? They could pursue all sale proceeds from the eBay seller's transactions. The IP house could just tie them up with legal challenge regardless of ownership and bury the eBay seller in legal fees.

#16 Bob Hudson

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Posted 15 September 2011 - 06:52 AM

but legally, I shouldn't have an issue of someone complaining. I hope...

Dave


Nope, not at all. As a newspaper editor, publisher, web designer, photographer and videographer, I have dealt with these issues many times over the decades and unless you sign a document giving someone else your copyright, it's yours. I have had clients who hired me as a freelancer to do creative work and were surprised to find out later that I, not they, owned the copyrights because I had not signed a "work for hire agreement." Now if I was a regular employee of their's they would have automatically owned the copyright, but since I was not an employee, they had to buy the copyrights from me if they wanted them and that's what you would tell anyone who complained about your photos of "their" uniforms: pay me!

#17 67Rally

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Posted 15 September 2011 - 07:00 AM

This is an interesting topic for me as well. I plan on writing a book here in the near future and use a lot of the photos of groups I've owned over the years. Obviously, I don't own most (if all) of the items that are photographed, but I plan on using the photos in the book. So, some people might be surprised to see the group they own published in the book...but legally, I shouldn't have an issue of someone complaining. I hope...

Dave


The issue doesn't surround the subject within the photo but the creator of the creative work (i.e. the photograph). If the subject were of humans that were discernible, an issue could be raised if you were publishing images of people (unless you had obtained signed releases).

Also, a challenged could be posed if the subjects were copyrighted or trademarked products that you had photographed (if you had been hired) for a particular company for their marketing purposes. In that case, the contract that you would have signed to shoot the products would have some sort of a non-disclosure agreement where you couldn't publish the images on your own AND that by virtue of being hired by them, the IP belonged to them.

In your case, Dave...these are historical items that you own(ed) and the images of which you created. You have every right to publish these images in any way that you see fit to do. They are entirely yours.

#18 Mr.Jerry

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Posted 15 September 2011 - 11:05 AM

and just to add in on about the guy publishing scans of WWII photos, while he does not hold the copyright to those actual images, he actually holds the copyright to his scans of those images, which is what he is offering for sale, and can prevent you from copying ( and in this digital age there is enough hidden info in there to allow positive ID of electronic sources) like with a CD recording of Beethoven, while he is long dead, and his music is in the public domain, the performance, and recording can each be copy written.

I too am working on a book, and have some images that I am seeking release to use. Some I have written and received permission, some I am still waiting.

But with any legal battle, he with the most money wins...

#19 RelicHunter99

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Posted 22 September 2011 - 10:14 PM

I'll say this, anyone thinking of publishing anything with these types of concerns, go talk to a lawyer. You don't want to run afoul of property law.

#20 Dave

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Posted 23 September 2011 - 06:14 AM

This guy still has photos I took in my backyard in his eBay listing. Almost kinda creepy...

http://www.ebay.com/...s-/380306232481

I've asked him to take them down, but...obviously he's not interested...

#21 teufelhunde.ret

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Posted 23 September 2011 - 06:21 AM

he with the most money wins...



OR those who are willing to spend the most, which, in most cases is not worth it.

#22 M1garandgunner

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Posted 24 October 2011 - 01:32 PM

Look up fair use, as long as you arent saying their yours I am pretty sure its fine.

#23 Dave

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Posted 24 October 2011 - 01:38 PM

This guy still has photos I took in my backyard in his eBay listing. Almost kinda creepy...

http://www.ebay.com/...s-/380306232481

I've asked him to take them down, but...obviously he's not interested...



Good news...I did complain to eBay and they removed his auction. They didn't punish him (he's a big-time dealer) but they took the auction down from it's um-teenth time running for a "bargain" of $6000..... :blink: :pinch:


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