Inkstain said:

Speaking of piracy, who owns the copyrights on that picture you're using for this post?

Posted on January 19, 2010 at 9:54 pm.

Alaric said:

It belongs to Veronique de Viguerie, a French photographer. The photograph can be found at The Guardian web site here. In case you are wondering whether I have the right to reproduce this picture on my blog, yes I do, as per section 3 of The Guardian's Terms of Service, which are listed here.

Oh, and even if that was not the case, I still have a right to use it under the Fair Use doctrine, which allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. A precedent has been established for using copyrighted images online, which fully covers what I'm doing. You can read more about it here.

So in short: IN YOUR FACE! =)

Posted on January 19, 2010 at 10:27 pm.

Glasuan said:

OWNED!

Posted on January 19, 2010 at 10:50 pm.

Inkstain said:

Umm... No.

1) El Ghardian's terms of use, section 3, clearly states:

You must not reproduce any part of guardian.co.uk or the material or transmit it to or store it in any other website or disseminate any part of the material in any other form, unless we have indicated that you may do so.

So unless you have obtained explicit permission, you're in violation of their terms of use.

2) I don't think fair use applies in this case, as your article is about a completely different topic and is not a parody of the original article or photograph. Moreover, your case is further hurt by the fact that maritime piracy and software piracy are vastly different legal concepts.

3) Your original post contained no attribution, thus you're at least guilty of plagiarism.

In short, your arguments wouldn't stand a snowball's chance in hell in a court of law.

Posted on January 19, 2010 at 11:55 pm.

Alaric said:

As far as I'm concerned everything you said is bullshit.

1) You either missed or purposefully neglected to mention the paragraph from section 3 that precedes the one you quoted.

You may download and print extracts from the material and make copies of these for your own personal and non-commercial use only. You are not allowed to download or print the material, or extracts from it, in a systematic or regular manner or otherwise so as to create a database in electronic or paper form comprising all or part of the material appearing on guardian.co.uk.

I did download the image, but since I am not doing it in a systematic or regular manner I am therefore allowed to do so.

2) Fair use is not limited to parody. And the fact that the two kinds of piracy are different, has no bearing whatsoever on my ability to claim fair use.

My use of this image passes the fair use balancing test:
a) Purpose and character - Creative wordplay aimed at promoting lawful activity.
b) Nature of the copied work - It has been published before.
c) Amount and substantiality - A cropped fraction of the original.
d) Effect upon work's value - None.

3) Neither The Guardian nor the Fair Use doctrine require attribution.

It will be interesting to have an actual lawyer look at our argument though. I'll see if I can get any to weigh in on it.

Posted on January 20, 2010 at 12:13 am.

Inkstain said:

Which part of, "You must not reproduce any part of guardian.co.uk or the material or transmit it to or store it in any other website or disseminate any part of the material in any other form, unless we have indicated that you may do so." confused you? Displaying that image on your web site is not personal use.

Whether Fair Use applies here is doubtful for another reason. You're using it as an advertisement for an article posted elsewhere.

None of which changes the fact that you're a plagiarist.

Posted on January 20, 2010 at 1:15 am.

Inkstain said:

Hmm... Now that I think about it, by cropping and resizing that image you have created a derivative work. So Fair Use definitely doesn't apply.

Posted on January 20, 2010 at 1:18 am.

Alaric said:

Displaying the image here IS in fact personal use. This, in case you didn't notice, is my blog. An on-line journal where I document events in my life, and my impressions of various things. It is not a source of revenue, and in an essence is equivalent to a scrapbook. The Guardian allows the use of its resources for such purposes.

This post is not an advertisement. Once again I am logging the fact that my article has been published in my personal journal. Mentioning something does not equate advertising it.

Plagiarism is passing a work of another as your own. At no point did I state, or hint, or imply that I took that picture.

Cropping is NOT the same thing as creating a derivative work. The same way as quoting a portion of the text is not. In actuality, the fact that the image I'm using is a) smaller and b) cropped, makes a stronger case for fair use, since according to Wikipedia, "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."

Posted on January 20, 2010 at 9:40 am.

Alaric said:

Ok, here are some news:

Apparently The Guardian is not the one distributing the image, nor do they hold the rights to it. Instead it is the Swedish Maritime Museum. This photograph is a part of their 2010 exhibition entitled Who is a pirate? and they do allow people to download (they even provide a high resolution original) as long as the name of the photographer is clearly stated during republication.

I clearly failed to do that, however, after consulting with a lawyer friend, I discovered that because I got the image from elsewhere and did not know that it was distributed under such conditions, I am fine.

Still, now that I know the name of the photographer, I see nothing wrong with giving her proper credit. It is after all a great picture.

Update:

I talked to another lawyer friend, and here is what she said: "Since the image is cropped and the resolution is low, and you are not using it for commercial use, I don't think it constitutes copyright infringement."

Posted on January 20, 2010 at 11:08 am.

Mitia said:

Shit, how much time is wasted due to respect for copyright.

Pirating is so much more fun and less bother:)

Posted on January 22, 2010 at 6:12 pm.

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